Original URL: http://www.theregister.co.uk/2007/09/23/bush_mcconnell_testimony/

Iraq fiasco creeps into NSA surveillance controversy

Congress to lick Bush at last?

By Burke Hansen

Posted in Government, 23rd September 2007 17:44 GMT

The battle over domestic electronic surveillance returned to prominence last week with fresh hearings in Congress and the usual Cheney administration demagoguery. In a clear attempt to shape the debate, on Wednesday the President took to the bully pulpit at NSA headquarters in Fort Meade to demand that Congress stop pussy-footing around and make the six month FISA statute passed in August permanent. Chop, chop.

New revelations about NSA snooping, however, would seem to make quick passage of such legislation impossible. After all, the whole point of the six month sunset provision was to provide for six months of debate, not to just delay the vote until Congress had the chance to enjoy a month-long break, and then rubber stamp it like the good old days.

Congress sings surveillance blues

"The threat from al-Qaeda is not going to expire in 135 days," W said, "so I call on Congress to make the Protect America Act permanent."

Dubbed by critics the Police America Act, the law allows warrantless wiretapping of electronic communications as long as the target of the surveillance is overseas, or if domestic, the target of a terrorist investigation.

He had more than that on his mind, however. He also sought to bail out the telecommunications companies, which sold out their customers by granting retroactive immunity to the companies aided the administrations efforts.

"For years, the FBI was not only asking telecom companies to do its investigative work, but also asking them to sidestep the Fourth Amendment," said Michael German, ACLU National Security Policy Counsel. "The fact that telecoms complied with the FBI’s intrusive demands is shocking. It sets an extremely risky precedent to hand out such broad and vague authority to telecom companies. Ceding investigative powers to private companies will have disastrous effects not only for Americans’ privacy, but for their safety."

Whether or not Congress folds and bails out the telcos – and we think they will – some kind of formal expansion of the law also appears to be on the table. A sticking point between the administration and the secretive FISA court has been the court’s refusal to allow blanket wiretapping of foreign calls routed through American communications switches, and the President’s call for a permanent expansion of the law clearly envisions warrantless surveillance sweeps of these calls as well.

FBI, DCSNet and security

One interesting byproduct of expanded warrantless surveillance is how systems designed for ease of use - based on the assumption that the necessity of obtaining a warrant would minimize abuse, and which provide for nearly seamless monitoring of domestic communications - now provide for real-time warrantless snooping from anywhere in the country with the click of a mouse.

Since 1994, telcos operating in the US have been required to install switches that meet very specific wiretapping requirements, as mandated by the Communications Assistance for Law Enforcement Act, or CALEA. The CALEA-compliant switches allow the FBI to log directly onto the telco networks, whether land-based or cellular.

As Wired explained, after an examination of redacted FBI documents obtained originally by the Electronic Frontier Foundation (EFF):

Together, the surveillance systems let FBI agents play back recordings even as they are being captured (like TiVo), create master wiretap files, send digital recordings to translators, track the rough location of targets in real time using cell-tower information, and even stream intercepts outward to mobile surveillance vans.

FBI wiretapping rooms in field offices and undercover locations around the country are connected through a private, encrypted backbone that is separated from the internet. Sprint runs it on the government's behalf.

The network allows an FBI agent in New York, for example, to remotely set up a wiretap on a cell phone based in Sacramento, California, and immediately learn the phone's location, then begin receiving conversations, text messages and voicemail pass codes in New York. With a few keystrokes, the agent can route the recordings to language specialists for translation.

The numbers dialed are automatically sent to FBI analysts trained to interpret phone-call patterns, and are transferred nightly, by external storage devices, to the bureau's Telephone Application Database, where they're subjected to a type of data mining called link analysis.

Normally, the telcos flip the switch once served with a court order, but court orders are not necessarily mandatory these days, and anyway, the big telcos for the last few years have not seemed overly concerned about anything other than toadying up to the FBI and the NSA.

The prevalence of surveillance backdoors in the nation’s telecommunications infrastructure has also raised serious concerns over the security of that infrastructure.

McConnell, Iraqi surveillance and the 4th Amendment

McConnell testified on Wednesday before the House Intelligence Committee, and when pressed, claimed that fewer than 100 Americans had become targets of surveillance as a result of warrantless wiretapping on foreign targets. More revealingly, he admitted that the new law is as much about establishing the constitutional principle that such surveillance was never covered by the 4th Amendment in the first place as it is that such surveillance is a national security necessity.

McConnell was asked about allegations that the FISA requirements had led to a twelve-hour delay in getting a warrant for a communications tap on Iraqi insurgents, and gave this telling response:

Now, when we've talked about this before, people frequently say, ‘Well, wait a minute. Why don't you just do emergency FISA?’ Well, that is the point. We are extending Fourth Amendment rights to a terrorist foreigner foreign country who's captured US soldiers. And we're now going through a process to produce probable cause that we would have authority to go after these terrorists.

And then people say, ‘Well, why don't you just go? You got emergency authorization.’ Well, emergency authorization doesn't mean you don't go through the process, which is probable cause. So some analyst has got to do it and some official's got to sign it out. And it has to come to either me or some other official. Then it goes to the attorney general. Then it goes to FISA court.

The 4th Amendment thus is more than mere collateral damage in the so-called “war on terror”: it is a specific, determined target of that activity.

The attempt to connect the dots between Iraq and some hypothetical necessity for warrantless wiretapping authority strains credulity by any measure, and the attempt only turned the focus back to more obvious administration issues in Iraq - Blackwater, for example, which made it back into the news, and back onto the streets of Iraq.

I don't need a rocketlauncher, pal

Iraqi Prime Minister Nouri al-Maliki fingered Blackwater for a jail break that occurred at the end of last year, in which an Iraqi official accused of embezzling $2.5 bil of American aid originally earmarked for rebuilding Iraq’s electricity infrastructure, Electricity Minister Ahyam al Samarrai, escaped from jail while awaiting sentencing. Reportedly living in the US now, no one in the administration seems overly concerned about this particular war profiteer.

As McClatchy News reported Wednesday,

Until now, Iraqi officials hadn't named the private security company that they believe helped Samarrai, the only Iraqi cabinet official convicted of corruption, to escape from a jail that was overseen jointly by U.S. and Iraqi guards. He subsequently was spirited out of the country and is believed to be living in the United States.

The US State Department made note of his escape in its December report on developments in Iraq, saying that "Iraq's Commission on Public Integrity (CPI) said they believed he fled with the help of members of a private security company."

But the accusation that Blackwater, which earned at least $240m in 2005 from contracts to provide security to US officials in Baghdad, assisted in his escape raises questions about what American officials might have known about the breakout.

A US Embassy spokeswoman couldn't be reached for comment.

As if all that were not enough, as this went to press the AP broke a story on Pentagon and State Department probes into whether or not Blackwater illegally smuggled weapons into Iraq, at least some of which were then sold on the black market and ended up in the hands of Kurdish nationalists in Turkey.

Congressional hearings this week also revealed criminal investigations into $6 bil worth of contracts in Iraq and Afghanistan, reports of forced labor utilized by a Kuwaiti subcontractor in the construction of the American Embassy, and allegations of cover-ups of fraud and waste in Iraq by the State Department’s Inspector General, the man assigned the task of ferreting out those very same criminal activities.

Bravo, Bushies.®

Burke Hansen, attorney at large, heads a San Francisco law office