Original URL: http://www.theregister.co.uk/2007/07/30/bush_wants_star_chamber_sidelined/

Bush to Congress: streamline star-chamber spy court

I've already tried ignoring it

By Lewis Page

Posted in Government, 30th July 2007 15:06 GMT

President George Bush has urged Congress to approve modifications to American laws governing surveillance and wiretapping.

In his Saturday speech to the nation, the President said the Foreign Intelligence Surveillance Act (FISA) was out of date, and that it hampered US terror-busting spooks unduly. Under FISA, when feds or spies want to monitor communications in America they must obtain a secret warrant from the special star-chamber-esque FIS court.

In the wake of 9/11, President Bush secretly adopted the position that, in fact, he could order surveillance against Americans without approval from the FIS court, and did so. The National Security Agency (NSA) embarked on a massive automated data-mining'n'wiretapping programme targeted at communications between people in the USA and those overseas. This involved extensive cooperation from American comms providers.

The president's argument at that time was that his orders were legal, and he was allowed to circumvent FISA. It was also argued that FIS court supervision was too time-consuming and cumbersome, and was preventing the US spook community from defending America against terrorists.

The judge who presided over the FIS court at the time of 9/11 has since strongly refuted this, claiming that nobody could have been more keen to authorise wiretapping and surveillance than him. Indeed, he has said that he approved several surveillance operations by cellphone while stuck in traffic.

Assertions that the NSA's White House authorised US spying programmes were completely legal have not been fully tested, as the administration put the spooks back under FIS control after the matter became public.

It would appear that President Bush has come to accept that he hasn't the power to ignore FISA, as he now proposes to amend it.

"This week," he said on Saturday, "I visited with troops at Charleston Air Force Base. These fine men and women are serving courageously to protect our country against dangerous enemies. The terrorist network that struck America on September 11 wants to strike our country again."

But, in fact, the President wasn't on about some kind of deadly airborne attack against South Carolina, which could lift the fighting airpeople of Charleston AFB into the same courageousness bracket as grunts patrolling Baghdad or Anbar. He went on:

"To stop [the terrorists] our military, law enforcement, and intelligence professionals need the best possible information ... One of the most important ways we can gather that information is by monitoring terrorist communications... Today we face sophisticated terrorists who use disposable cell phones and the internet... technologies like these were not available when FISA was passed nearly 30 years ago... our nation is hampered in its ability to gain the vital intelligence we need to keep the American people safe."

It seems that Mike McConnell, US spy czar, told Congress in May that FISA meant his spooks were "significantly burdened in capturing overseas communications of foreign terrorists planning to conduct attacks inside the United States."

President Bush also sought to emphasise that the proposed FISA amendments were all about spying on nasty foreigners, not Americans. He said American spies shouldn't have to "obtain court orders to effectively collect foreign intelligence about foreign targets located in foreign locations".

Of course, they don't actually need court orders to do that. If the US intelligence community was a bit more willing to spend time operating in foreign locations, it could find out stuff without any court order at all. But that's dangerous and sweaty. It involves possibly doing without a flush lavatory and air conditioning* for lengthy periods of time, eating suspicious foreign food, and probably spending years trying to bribe weird, smelly locals to spy on each other. Even, worst case, doing without a diplomatic passport and thus perhaps getting captured by unsympathetic foreign spooks or police, being denied by Washington and jailed or tortured to death.

It's a hell of a lot more pleasant to just intercept the foreigners' comms whenever they pass through the USA, which they often do - especially if the foreigners ever speak to or communicate with an American. Lots of times an interesting email, an IM, or even a phone call between two foreign locations will travel via America, where American spooks could so easily notice it as a result of automated scanning - if it weren't for that pesky FISA. Or suspicious-seeming foreigners will communicate with people inside America, giving away their phone numbers and email addresses and all the rest of it, which could then be shunted in bulk into a nice big database ripe for mining - if the damn FISA wasn't there.

"Our intelligence community warns that under the current statute, we are missing a significant amount of foreign intelligence that we should be collecting to protect our country," said President Bush.

This presumably means that it's illegal to collect that information under FISA; or that even the flexible secret judges won't issue a warrant to collect it. There is also, apparently, an issue with the telecoms providers, who aren't happy about laying themselves open to lawsuits from disgruntled wiretappees.

The Associated Press quotes Caroline Fredrickson of the American Civil Liberties Union as saying: "The administration claims the Foreign Intelligence Surveillance Act must be 'modernised'. Actually, it needs to be followed."

The top Republican in Congress said that was a lot of crap, and FISA was "a terrorist loophole".

John Boehner of Ohio thundered to the AP: "Rather than learning the lessons of September 11 - that we need to break down the bureaucratic impediments to intelligence collection and analysis - Democrats have stonewalled Republican attempts to modernise FISA."

It seems Americans are being offered a choice between being secretly spied on by possibly inefficient spooks bound by star-chamber red tape, or being spied on much more efficiently. Those of us who live outside America in countries where it isn't dangerous or difficult to be an American spy can presumably rest assured that we're being monitored all the time anyway.

There's a full transcript of the President's speech here. ®

*To be fair, so does working at NSA HQ, sometimes.