Clarity Part II: The FISA Stuff
A bipartisan group of former national security officials involved with FISA wrote the following, tying to debates of last week amidst concerns that the interrogation/FISA debate is likely to merge in terms of congressional authorization. Here it is:
The President has spoken repeatedly and emotionally in recent days about the need for intelligence professionals to have clarity in the law. He has emphasized that it is not fair to ask these men and women to operate in an uncertain legal environment and that, in fact, legal uncertainty hampers operational effectiveness and thereby jeopardizes our national security. Yet legal uncertainty is exactly what will result if Congress heeds the President’s call to enact legislation that replaces the obligation to use the procedures of the Foreign Intelligence Surveillance Act with broad language about relying upon the President’s constitutional authority.
Before FISA was enacted, courts addressed the issue of warrantless surveillance for domestic security purposes but did not clearly resolve the scope of the President’s authority regarding foreign intelligence surveillance. FISA was enacted in order to clarify this murky legal area by setting forth a clear process for electronic surveillance of foreign powers and agents of foreign powers. The Executive Branch welcomed the clarity and this law has been viewed as an essential national security tool for 28 years.
This legislation would return a complex subject to the murky waters from which FISA emerged by making going to the FISA court or applying FISA in any way optional rather than mandatory. It leaves it to the President to decide when he has the authority to conduct warrantless surveillance of Americans or foreigners. Whether he has made the right determination will not be known unless and until it is challenged in court.
If advances in technology or other exigencies not contemplated in FISA present the President with a national security emergency, he should have a window in which to act while promptly seeking appropriate amendments to FISA -- and this could be provided for in the statute. But this extraordinary emergency authority should not be permitted effectively to repeal FISA.
FISA was a political compromise between the Legislative and Executive branches of government; unforeseen exigencies should require those branches of government to continue to coordinate, not condone unilateralism by either branch. Indeed, the world has become so much more complex, both technologically and socially, than it was in 1978, that making FISA optional rather than mandatory would significantly destabilize the balance struck then between law and policy.
As individuals with extensive experience in national security and intelligence, we strongly urge that the requirements of FISA remain just that -- requirements, not options. Congress should continue to work to get the facts and if, once they are provided, these facts demonstrate the need for changes in the law, amend it only as needed to meet genuine national security imperatives. Legal clarity is just as essential in this context as any other in which intelligence or law enforcement officers are asked to operate. FISA provides that clarity and should not be abandoned or amended in ways that render it irrelevant.
Ken Bass
Formerly Counsel for Intelligence Policy, Department of Justice
Eugene Bowman
Formerly Deputy General Counsel, Federal Bureau of Investigation
Mary DeRosa
Formerly Special Assistant to the President
Formerly Legal Advisor, National Security Counsel
Juliette Kayyem
Formerly Member, National Commission on Terrorism (The Bremer Commission)
Formerly Legal Advisor to the Attorney General, Department of Justice
Elizabeth Larson
Formerly Senior Staff, House Permanent Select Committee on Intelligence
Formerly Senior Executive, Central Intelligence Agency
Elizabeth Rindskopf Parker
Formerly General Counsel, National Security Agency
Formerly General Counsel, Central Intelligence Agency
F. Whitten Peters
Formerly Secretary of the Air Force
Formerly Principal Deputy General Counsel, Department of Defense
Stephen Saltzburg
Formerly Deputy Assistant Attorney General, Criminal Division, Department of Justice
William S. Sessions
Formerly Director, Federal Bureau of Investigation
Formerly Chief United States District Judge for the Western District of Texas
Michael A. Smith
Formerly Assistant General Counsel, National Security Agency
Brit Snider
Formerly General Counsel, Senate Select Committee on Intelligence
Formerly Inspector General, Central Intelligence Agency
Suzanne E. Spaulding
Formerly General Counsel, Senate Select Committee on Intelligence
Formerly Assistant General Counsel, Central Intelligence Agency
Michael A. Vatis
Formerly Director, National Infrastructure Protection Center, Federal Bureau of Investigation
Formerly Associate Deputy Attorney General, Department of Justice
William H. Webster
Formerly Director, Federal Bureau of Investigation
Formerly Director, Central Intelligence Agency
Before the latest issues surrounding the Administration's effectively ignoring FISA, I had a long chat, over dinner, with a technical security expert who had direct contacts with the FBI personnel who prepared the documentation for FISA warrant approval. He denied that FISA was a rubber stamp -- ironic in the present context -- but that FBI culture (i.e., "never embarrass the Bureau") was such that they internally made sure that the request was thoroughly justified before submission. He also indicated that the Bureau had not found the procedure overly onerous, including in emergent situations under the 72 hour rule.
There has been a fair bit of plausible leaks, into the computer security technical forums, to get some idea what the major program does. It appears that the largest NSA effort is not "wiretapping" in the classic sense, but what technically is called traffic analysis, the process of deriving information from knowledge of the pattern of communications: calling party, called party, time of call, call duration, etc.
If this is correct, there may even be a simpler route than FISA. In the Communications Act of 1934, there is a section on "pen register" surveillance. Pen registers themselves are obsolete ways to get the calling data in question, but it is reasonable to project the Act's restrictions into the current equivalent technology, Call Detail Records (CDR). The Act doesn't even require warrants for such surveillance, but provides for a declaration, presumably classified, by the Attorney General, stating the surveillance is needful and legal.
On an intuitive level, assuming it is a CDR-based program, I'd still like to see it brought before FISA due to the scope of the project. There are other alternatives.
In the late seventies, the Federal government sought technologies for the encryption of sensitive but unclassified data, to be called the Data Encryption Standard (DES). The winning technology came from IBM; one wonders if IBM's internal project code name of Lucifer would have doomed it with the current administration. In any event, NSA made two changes before approving it. One was reducing the "key length", often a measure of encryption strength, from 64 to 56 bits. It also made changes, for classified reasons, in a part of the Lucifer math called the "S-boxes".
There was widespread suspicion these changes were to give NSA a "back door" into DES. The Senate Intelligence Committee managed to put together a review panel, mostly of academics with solid reputations in cryptography, and with full clearance for cryptography and communications intelligence. The Committee then insisted NSA make a full classified disclosure, to the panel, on the reasons for the changes.
The panel came back with an opinion that NSA's changes were reasonable, did not create a back door, and actually improved both efficiency and security. DES is now obsolete, and NSA declassified the reasons for the changes. I'm just on the brink of having the mathematical knowledge to have some ability to agree these were reasonable and useful.
In contrast, when a "waived" Special Access Program, or the equivalent compartmented intelligence, is briefed only to 8 senior legislators, unless they have the appropriate technical background, they cannot give independent review. Under the current rules, they cannot involve staff.
I would like to see another trusted panel, much like the one for DES, get full disclosure from NSA and render an opinion on it. Part of the opinion would be the probability that the intrusion produces useful intelligence on terrorism. Other parts of an opinion would include the relevance of the FISA process and needs for possible new legislation.
A review of this type, however, restores the classical Constitutional checks and balances. As with DES, the panel might opine that the program is reasonable -- but procedurally needed either an Attorney General certification, or FISA Court approval.
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Howard
*equal opportunity offense to both extremes*
September 25, 2006 10:47 AM | Reply | Permalink
I am grateful for the illuminating details, and of course pleased to see all these professionals saying what I feel.
It should be a settled argument, with every expert that can talk in detail about these issues coming down on the side of regular procedure as opposed to ad-hoc executive decision. It remains contentious only because the administration has staked its reputaton on expanding discretionary power.
As such, GOP congressional allies collude in keeping the arguments either vague or simple buzz-word slingfests. It is here that media is failing to do its nominal job (as opposed to its profit-making goals). This leads to asking why media would not do the obvious and report on the details better, and since a controversial subject like this would normally be expected to attract readers (and make them more $$). The only conclusion I can reach is that either the owners and/or editors are being partisan, or they are being pressured. Since I find it a stretch that nearly every newspaper and TV network is heavily partisan, I conclude the atmosphere of shouting down dissent has been effective.
September 25, 2006 3:14 PM | Reply | Permalink
Refer to the torture article on TPM Muckraker and contact your Democratic Party leaders and officials and press for them to block this outrage! I have provided contact info and some text for letters if you want a shortcut! Let's light up their inboxes and switchboards!
Rick
September 26, 2006 9:04 AM | Reply | Permalink