August 11, 2007

TSP Cut By 75% In Earlier FISA Ruling

Now we know why the Democrats caved on the FISA adjustment earlier this month that allowed the warrantless surveillance to proceed at the NSA on international communications. The same reporters that blew the program's cover in December 2005 now report that a FISA decision earlier this year forced the NSA to get warrants on purely international calls that happened to pass through American telephony switches. That reduced surveilled traffic by 75%, which forced Congress to act:

The prelude to approval of the plan occurred in January, when the administration agreed to put the wiretapping program under the oversight of the Foreign Intelligence Surveillance Court. The court is charged with guarding against governmental spying abuses. Officials say one judge issued a ruling in January that allowed the administration to continue the program under the court’s supervision.

A ruling a month or two later — the judge who made it and its exact timing are not clear — restricted the government’s ability to intercept foreign-to-foreign communications passing through telecommunication “switches” on American soil.

The security agency was newly required to seek warrants to monitor at least some of those phone calls and e-mail messages. As a result, the ability to intercept foreign-based communications “kept getting ratcheted down,” said a senior intelligence official who insisted on anonymity because the account involved classified material. “ We were to a point where we were not effectively operating.”

Mr. McConnell, lead negotiator for the administration in lobbying for the bill, said in an interview that the court’s restrictions had made his job much more difficult.

“It was crazy, because I’m sitting here signing out warrants on known Al Qaeda operatives that are killing Americans, doing foreign communications,” he said. “And the only reason I’m signing that warrant is because it touches the U.S. communications infrastructure. That’s what we fixed.”

The FISA court ruling relied on the legislation created thirty years ago, when no purely international calls went through American switches. That started changing after the breakup of ATT and the globalization of the telecommunications industry. Now calls that start in one foreign country and end in another get routinely routed through switching equipment located in the US, even though those calls were never meant to be protected under the original FISA legislation.

Needless to say, those would provide the easiest intercepts for the NSA, and potentially the most valuable. Since Congress had never updated FISA to cover the changing role of American switching equipment, the law forbade the NSA from surveilling it without a wiretap -- even though no US terminus existing on the communication. The judge ruled correctly on the letter of the law, which conservatives might wryly note is an example of judicial restraint and modesty championed by the Right on other issues.

Congress had a duty to act to rectify this problem. Yet, according to James Risen and Eric Lichtblau, they stalled, even after being told of an increasing intelligence gap. Even as late as early July, when the DNI started getting very specific about the gap, Democrats wanted to put off any work on FISA until mid-September. Only after the White House went public with its concerns and demanding some sort of action on the bill did Democrats finally and resentfully agree to get it done before the August recess.

And immediately after that, Democrats accused the White House of "playing the fear card," an asinine allegation. Democrats have castigated this administration of deceiving them and bullying them in order to get themselves off the hook with their base, but in the end, these complaints amount to an admission that Democratic leadership is populated with fools and wimps who can't stand up for their beliefs, whatever they profess their beliefs to be.

It took four months for this Congress to act to fix a deepening intelligence gap that everyone saw developing. If they had addressed it immediately, they could have set the tone for the debate and passed FISA legislation they liked better. Instead, they dithered with it like they dithered with the Iraq war funding appropriation, and got stuck in a position with no power to negotiate. If anything confirms the vapidity of Democratic leadership, this session and these two specific narratives reveal it completely.


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Comments (17)

Posted by kingronjo | August 11, 2007 11:33 AM

I have some ultra-liberal, progressive friends who love to tell me what an oxymoron is- "military intelligence" (dont question their support of the troops however!)

I have a better one, one that is actually true- "Democrtaic Leadership" (I also prefer "progressive values", there are none).

Posted by PersonFromPorlock | August 11, 2007 12:15 PM

"Congress had a duty....:

I think we can stop right there.

Posted by Drew | August 11, 2007 1:18 PM

To say that the Dems in Congress are led by a group of Air-Heads, would be an insult to air.

Posted by Drew | August 11, 2007 1:21 PM

Which reminds me:
Sheehan v Pelosi?
She might be nuts, but at least she's consistently nuts.
This could be interesting.

Posted by Scrapiron | August 11, 2007 2:00 PM

As is see this we have several months of 'gap' in gathering intel which means we could have hundreds of terrorist in this country with dozens of attacks already planned and we have been blinded by the democrats and the democrats in the court system. I'll bet this will be the same bunch of idiots in the street screaming 'Bush did it' when one or more of the attacks occur. Right now NYC is in a semi-panic because of some dirty bomb radio traffic by the terrorists. How much of this traffic did we miss? Enough to kill a few hundred thousand Americans? It sure isn't hard for the terrorists to outsmart the democrats.

Posted by sherlock | August 11, 2007 2:46 PM

Our society is going insane. The MSM "thought-leaders" like Maryann Means, EJ Dionne, Helen Thomas, et al have columns all over the newspapers lambasting the failure of the Dems to "rein in" Bush's attempts to "destroy the constitution", and half the letters to the editor say the same thing. The other half scream for impeachment because of an "illegal" war that congress voted for.

A significant proportion of the people of this country are behaving irrationally, but you have to understand that our news media has created the syndrome in the majority of them. I know people, and some are loved ones, who were slightly liberal-leaning as I was 6 years ago (yes, I voted for Al Gore) but on a steady diet of MSM propaganda they have evolved into radical leftists who are in denial about basic reality (no, I did NOT vote for Kerry). I am still liberal-leaning on social issues, but new realities have pushed me toward conservative values on national security, economics and international relations.

In essence, "1984" is here as far as the way the manipulative information distribution networks have created a deluded class in the citizenry. But this has not been inflicted on us by an evil dictator, but by the dead hand of a dead system that left its cadre of fanatics alive to grow inside our society like a cancer. And we have let it grow, and it is now an open question of which it will do first: get us killed, or drive us completely insane as a society.

Our great institutions and values seem to have left us powerless to defend ourselves against a free press that has become the most powerful tool of the enemies of freedom.

This is not going to end well, I fear.

Posted by Corky Boyd | August 11, 2007 2:57 PM

I think the reason is simpler than you suggest.

There appears to have been an agreement between the White House and the new Democrat leadership that they would support legislation to close the international gaps in the FISA Act. This in exchange for the White House not appealing the recent FISA court decision. In the interim, Bush would abide by the court's decision for a limited period of time, despite the dangers.

Bush reminded Reid and Pelosi that he expected legislative action on FISA before they recessed in August. This is not something the Democrats dreamed up to look good, it's not in their nature. They didn't want the courts to decide what they felt was a legislative prerogative and that was Bush's club.

The 75% story is simply political cover for the Democrats, courtesy of the NY Times.

Posted by Jim Rockford | August 11, 2007 5:36 PM

Bill Roggio is reporting that AQ camps in Waziristan emptied out. And that no one knows how secure Musharraf's control over the Pakistan nuclear arsenal is.


At it's worst, Dem obstructionism could lead to a loss of several US cities to Pakistani nukes provided by Pakistan to AQ. With comms not being monitored because courts view the President and conduct of national security is subordinate to unelected Judges. Who have arrogated to themselves conduct of National Security.

Gut check for Dems: how many US cities are worth privacy rights for terrorists and Judicial activism?

Because that is the question I will be asking. And likely, many others. Is NYC worth trading? How about Chicago? Dallas? Atlanta?

Posted by sherlock | August 11, 2007 5:51 PM

"Because that is the question I will be asking..."

If that nightmare scenario happens, the question many more will be asking is "Are you a Journalist, or a Democrat?". Answering "yes" to either will be very dangerous for your health.

Like I said above, I fear this is not going to end well.

Posted by Terry Gain | August 11, 2007 8:37 PM

The judge ruled correctly on the letter of the law, which conservatives might wryly note is an example of judicial restraint and modesty championed by the Right on other issues,

I respectfully disagree. The correct approach is to have in mind the spirit of the law while intrerpreting the language. It was not the intent of FISA to require the government to obtain warrants to monitor conversations between aliens occuring outside the United State.

Every suggestion and argument to the contrary was politically motivated.

Posted by kubob | August 11, 2007 9:45 PM

"A ruling a month or two later — the judge who made it and its exact timing are not clear — restricted the government’s ability to intercept foreign-to-foreign communications passing through telecommunication “switches” on American soil." Translation: We have a good idea who the judge is, but we aren't going to reveal it because he/she is a Dem appointee and it makes us libs look even more incapable of protecting America. The blogosphere might want to find out 2 key facts: who this judge is? Is it the Libby judge? And who are the political associates of Thomas Tamm who is under investigation for leaking the TSP in the 1st place?

Posted by hunter | August 12, 2007 7:54 AM

So the FISA court reneged on its reform. They NYT knows exactly who the judge was, but is covering for that person.
The interesting question is why:
Why do the courts seek to inflate their power into something - international communications- that clearly has nothing to do with the intent of FISA, and why do they and the dhimmies choose to construe the law in ways that hurt American interests?
And now, why are the dhimmies publicly lying about a former Clinton admin. intel leader?
It is difficult to find answers to these questions that include good faith or patriotism or even loyalty to the country.

Posted by Keemo | August 12, 2007 9:23 AM

kubob & hunter,

Good takes...

Regardless of who (whom) is responsible for making bad decisions regarding the business of protecting the American people, we need to know. I don't care which side of the isle they are on as much as I care about exposing these men/woman and purging them from the position that would allow them to put us all at risk. These people must make the "right" decisions; decisions that will bring about the maximum protection possible for our people; failure to do so must be met with the replacement of the individual. We are at war; these are dangerous times; with the weapons available in todays world, we could lose thousands (if not hundreds of thousands) with one single act of terrorism.

Competence is the key dynamic here; I don't care if competence is brought to the table by a Republican or a Democrat; we must have competence from every single man/woman in position to make these decisions. Democrats in control of Congress; Republicans in control of Congress... Going to go both ways... Each individual must be held accountable for the job performance done; both parties have some serious failures taking place. We, "the people" must demand accountability from each and every person, and be willing to attack those who fail us.

O.K.; I will go get some more coffee so that I can wake up and stop dreaming...

Posted by Keemo | August 12, 2007 9:34 AM

OMT: The big press & the big media must be held accountable for their horrible job performance.


These institutions are biased and have failed to report the news based upon facts. They have manufactured stories; manufactured lies; manufactured phony documents; manufactured phony video... All deliberate acts of deceit designed to push forward a lie rather than to simply report the facts. This is a failure of these institutions to perform the designed purpose. These institutions must reform; perform the designed tasks or be shut down entirely.

Posted by sherlock | August 12, 2007 10:36 AM

Keemo, those institutions are not going to reform unless something forces them to.

The question of what that something will be and how it can be brought to bear is the one that rational patriots, and any REAL liberals, must regard as the most important of our time.

The most viable mechanism: the generation of young people who are now fighting terrorism will have to continue to battle on the home front after they (I pray) return home.

They can do this by becoming civil role models, running for office on the moral code they have taken as liberators, and leading a movement designed to economically neuter any media that work against the safety and security of America and western civilation.

The free press has morphed into the most dangerous weapon the enemies of freedom have, and defeating terrorism militarily will not make us secure as long as it is nurtured by media and cultural elites who share its objectives.

That objective is the dimunition of American power, cultural, economic, and military, to the point where radical socialism can operate freely. The "core" terrorists of course want to go beyond the dreams of the socialists, into religious fascism. But that is merely a small step: after you topple America, you kill the socialists that will not convert. Most of them will.

Posted by hunter | August 12, 2007 4:05 PM

Until we resolve the crisis of having a major political party dedicated to undermining our wars and helping the enemy impose defeat on us, all else is moot. The dhimmies took power in a very narrow election just last year. They have still not come up with one single plan on this war that is devoted to victory. Their leadership is still vested in declaring defeat and in justifying our surrender.
The media is still outing our top secrets and seeking to increase sympathy to the enemy and to undermine our allies.
We have a serious candidate for the WH who openly talks of attacking our allies in the GWOT. There is another candidate who says publicly there is no war.
Cowardly FISA judges who secretly make rulings designed to help terrorists is a small problem, in that context.

Posted by Rich Rostrom | August 12, 2007 5:40 PM

During WW I, Britain cut all the German telegraph cables to the Americas. Germany asked the neutral U.S. for use of a cable operated by the State Department from our Denmark embassy to the U.S. The U.S. agreed, provided the German messages were not ciphered. In 1917, the Germans sent the infamous Zimmerman Telegram, instructing their ambassador in Mexico to incite Mexico to attack the U.S. (The Germans persuaded the U.S. to allow the ZT to be sent enciphered.) The British had broken the cipher, and they soon had the text of the ZT to lay before President Wilson. They had it because (unknown to Germany), that cable ran through a relay station at Land's End, the SW tip of England. So the British monitored all that traffic.

Which is to say that intercepting telecom that happens to pass through a country is a practice that goes back at least 90 years.

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