28 September 2007

Legislation without Law: What hath FISA wrought?

Our present condition, is, Legislation without law;
wisdom without a plan;
a constitution without a name;
and, what is strangely astonishing,
perfect Independance contending for dependance.

The instance is without a precedent;
the case never existed before;
and who can tell what may be the event?

The property of no man is secure in the present unbraced system of things.

The mind of the multitude is left at random, and seeing no fixed object before them, they pursue such as fancy or opinion starts.

Nothing is criminal;
there is no such thing as treason;
wherefore, every one thinks himself at liberty to act as he pleases.

-Thomas Paine, Common Sense.

(courtesy the Gutenberg Project)
I have done some reformatting to let things stand out a bit in the above, as a minor artistic liberty. I do not think that Paine would object, overmuch.

The following is from ABC Political Radar of 27 SEP 2007:
Iraqi Insurgent FISA timeline: Probable Cause and the AG

ABC News' Jason Ryan Reports: The Acting Deputy Director of National Intelligence has sent a letter to the House Intelligence Committee revealing details on the gap in obtaining a FISA after 3 US soldiers were captured in Iraq on May 12.

The incident where the military was required to get a FISA warrant is a real world example in the FISA reform legislation being examined by Congress. The FISA legislation passed by Congress in August, the Protect Act, provided a fix to the government's ability to intercept foreign to foreign communications.

The letter from the acting Deputy Ron Burgess notes, "On May 14, 2007 as soon as the specific leads had been identified analysts began to compile all the necessary information to establish a factual basis for the issuance of a FISA court order as required by the emergency authorization provision of the statute."

"This case presented novel and complicated issues…This was the focus of the internal Executive Branch deliberations between 12:53pm and 5:15pm and the reason behind the decision to contact the Attorney General for emergency authority rather than the Solicitor General." Burgess wrote.

The letter to Intelligence Committee Chairman Rep. Silvestre Reyes also notes, "The Director used this example to illustrate the point that, due to changes in technology, the FISA statute extends privacy protections to foreign terrorists located outside of the United States merely because FISA makes a geographic distinction based on the location of the collection."

According to one intelligence official, US officials were attempting to intercept and review email and Internet communications of the insurgents. A career Justice Department official said tonight that the Attorney General needed to get to a secure phone and secure location before he could be briefed on the situation. A copy of the letter has been sent to the DC Assignment desk.

The key times attached to the letter:

May 12, 2007: :Three US solider were reported missing and believed to have been captured by Iraqi insurgents…SIGINT [signal intelligence] assets responded by dedicating all available resources to obtaining intelligence concerning the attack."

13& 14th: Intelligence community began to develop leads.

May 15: 10:00am "key US agencies met to discuss options for colleting additional intelligence."

10:52am: "NSA notified..DOJ of its desire to collect communications that require a FISA order…it was determined some FISA coverage already existed."

12:53pm to 5:15pm :"Administration lawyers and intelligence officials discussed various legal and operational issues associated with the surveillance."

5:15pm: DOJ's FISA Office the Office of Intelligence Policy and Review (OIPR) received a call formally requesting emergency authority to conduct surveillance."

5:30pm: "The OIPR attorney on duty attempted to reach the Solicitor General who was the Acting Attorney General while Attorney General Gonzales was addressing a United States Attorney's Conference in Texas. However the Solicitor General had left for the day and the decision was made to attempt to reach Attorney General in Texas."

OIPR contacted DOJ command center and requested to locate the Attorney General. "After Several telephone calls with the staff accompanying the Attorney General, the OIPR lawyers were able to speak directly with the Attorney General and brief him on the fact of the emergency request."

" At 7:18pm, the Attorney General authorized the requested surveillance, the Justice Department attorney's immediately notified the FBI."

"At 7:28pm, the FBI notified the key intelligence agencies and personnel of the approval."

"At 7:38pm, surveillance began."
Yes, you have read that correctly.

The lovely FISA concept covers terrorists in foreign lands communicating to each other and prevents the gathering of INTEL when US soldier's lives are at risk. This is covered in 50 USC Chapter 36, Section 1801 (and associated), text courtesy Cornell University Law School. In Section 1802 we get the procedures to do this:

    (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that

      (A) the electronic surveillance is solely directed at—

        (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

        (ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

      (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

      (C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

    if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
Got that? So if you are in Iraq and need the assets of the greater INTEL Community to bear on a kidnap situation involving those illegally at war with the United States, and you are the Commander in the Field you first need to:

1) Contact your Command, either the overall commander for your operation, or the actual Command itself, in this instance CENTCOM.

2) That chain of command then, at sufficiently high level to review the assets available and finding that, indeed, in-Theater assets are not enough to meet this need, are to go to the Head of the Dept. of Justice, as US assets are being used for Foreign Intelligence gathering, or the President.

3) Dept. of Justice, getting a request for Emergency Authorization, which is the NSA contacting DoJ above.

4) To comply with FISA multiple lawyers from different Agencies (most likely FBI but also CIA, NSA, DIA, possibly DISA) need to discuss if this request can be done via an Emergency Authorization or needs to go through the normal 30 day waiting period....

At this point the decision of actually needing this to be done has already been determined by the Combatant Command (CENTCOM). This is a force-protection issue against those illegally at war with the US and that is the ONLY determination that should matter. As the Combatant Commands do not have enough manpower, equipment or infrastructure to perform National Intelligence, they need to rely upon the National Intelligence assets. By inserting FISA into this, the actual determination of need is taken out of the hands of the Field Commander and Commander of CENTCOM and has been delegated to civilian legal staff in Washington, DC.

I have a problem with this.

This is a clear crossing of the separation of powers mandated by the US Constitution so that the Commander of the Armies and the Navies, namely the President, can conduct war-time operations to protect the Armed Forces of the United States. Emergency tasking needs during Congressionally Authorized Use of Force situations should *not* have *any* legal overhead outside the UCMJ, and that should afford minimal protection to US Citizens in a warzone or area of high combat as those comms can be captured and used by *any* enemy to coordinate activities against the US Armed Forces.

An operation to task National Intelligence assets in the US can have an *automatic* compartmentation in the security structure, so that any Agencies or individuals needed can be tasked under military authorization for that need. By having separate tasking, utility and, indeed, information security overhead during that, all data is secured and recorded with full trail of why such information is needed, when it is gathered, what its sources are and what the resulting INTEL is. It is rare, indeed save for a very few individuals who have shifted allegiance to these illegal, predatory warfare organizations we call 'terrorist' that ANY US Citizen information should be picked up and those that are in that war zone or conducted as part of such an operation is SAFEGUARDED via the compartmentalization system. Any operation that does take more than a few days can be reported to the House and Senate Committees, probably both Intelligence and Defense, and that all information gathered is being done as necessary and will undergo legal review AFTER the operation is over, but done with the full knowledge of the Committees involved that it is going on.

By doing any other thing on the legal side, and by requiring that an operation taking place wholly overseas in a war zone needs to go through legal decisions by a group of legal counsel is *nuts*. These are the Armed Forces of the United States fighting to not only carry out the direct authorization of Congress but *also* looking to protect their own force structure and find their own people illegally captured and held by a predatory warfare organization.

So, by the time things finally get decided, over 6 hours have wandered by as *lawyers* discuss the legal niceties of protecting troops during wartime. The sweetness does not end *there* however.

5) With the actual concept that this NEEDED TO BE DONE, the folks at DoJ then try to find someone to sign off on it, which would be the Attorney General, as specified under law. But the Acting-AG was out for the day, by then and the AG, himself, was at a conference and had to be contacted.

Ever try to contact someone at a convention or conference these days? Most turn off their cellular phones and pagers, so as to not interrupt the conference. Otherwise you are caught like Rudy Giuliani actually trying to take a phone call while addressing large group of people or interrupting a speaker, or.... you get the picture. So the Acting-AG off, most likely on personal business after work and hard to get and the AG, himself, also hard to get....

6) One hour and forty eight minutes later they are able to TALK TO the AG! This is heading almost to 8 hours after the initial request was made.

7) The AG makes an Emergency Authorization and 20 minutes later the FBI can start helping out.

After that the AG and DoJ can take some time filling out the paperwork in 1804 and 1805, which looks to be a butt-load of paperwork to fill out with justification, needs and so on. Really the entire amount that needs to get generated and re-generated is awe inspiring. Plus in 1805, the AG has 72 hours to generate up this mound of documentation which, remember, he is given 30 DAYS to do as part of normal surveillance. That's right, you don't even get to put in an overview or summary, but the whole kit 'n caboodle... 30 DAYS of work in 72 hours. Or the surveillance STOPS.

Thomas Paine would call this 'legislating without law': Congress has no right to step in on the needs of the US Armed Forces for force protection and any US Citizen wandering around in a war zone or high combat area previously designated by the US has ZERO expectation of 'privacy' on personal communications. That is how war zones operate, in case folks have missed this in history class. When in one combatant forces will utilize any means they can to gain advantage, and when one side operates under NO Geneva Conventions or Hague Conventions and contravenes the Treaty of Paris 1856, it has gone a long way to indicate that it will stop at NOTHING to attack those that oppose them. Which includes NO respect for the rights of civilians, in case folks deploring IEDS/VBIEDS, chemical weapons attacks, sniping at just about anyone, and holding folks hostage for show and cutting their heads off for video cameras, (say, you folks trying to uphold the GC *have* noticed that, haven't you?) have forgotten what this enemy can do and will do to a mere civilian and that to try and have civilized forces *protect* you, your rights for private communications can be expected to be NIL.

Any law that is vague enough to not CLEARLY demarcate such activities in a war zone or area of military operations and *waive* normal procedures at the START of such law, is clearly intruding 'civil rights' into an arena where there are damned few and that respecting peace-time civil rights of those operating in, aiding or abetting illegal predatory war groups can expect to have themselves found out as doing so. Under *military law* as such individuals are taking part in war time operations. And such individuals who are *outside* the combat zone assisting such illegal organizations can *then* expect that information to be handed over to the Dept. of Justice that will then go through the FISA procedures, with the full acknowledgment and citation of military INTEL being the source of such surveillance needs.

Why is this important?

Because in JUN 2007, al Qaeda announced that two of the three captured soldiers had been killed and the third was also found dead at their hands.

When the US Congress can no longer write legislation to recognize the difference between war and peace-time INTEL gathering in support of field operations and force protection, it has failed its duties to protect the United States. Especially as this is put into the US Code Title 5o - WAR AND NATIONAL DEFENSE.

You would think the name of that Title section would hand them a HUGE clue as to what this is about. Apparently, that is not the case.

Do expect the US to treat wartime just like peace time in the near future, and we will send out the FBI to fight for us, since they will be the only ones able to figure out the law as the Armed Forces will be too hamstrung to actually operate in a meaningful and effective form.

Thomas Paine named this directly in Common Sense: 'wisdom without a plan'.

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