Wednesday, April 2, 2008

Everything You Wanted to Know About the Wiretap Debate

Now that we're in a kind of holding pattern on the issue of Telecom Immunity and illegal warrantless wiretapping, I think this is an especially useful article in Wired Magazine to check out.

First, the good news is - according to articles in the Wall Street Journal and Raw Story - the President seems to be softening his opposition to the House version of the FISA bill, and maybe seeking to negotiate with the Democrats. But, when it comes to this administration, and its relationship to the Constitution and privacy, I am always skeptical until I have absolute verification they haven't broken some kind of law or deeply held value of mine. And even then there could always be a "signing statement" hiding in the fine print.

So, until we get some real news on just what is being negotiated between the parties, and how willing the Democrats are to stand up and fight immunity for the telecom companies, this Q &A on the larger issue at stake is a perfect primer.

Wired Magazine goes step by step through the issue:

So under the proposed new powers, any international e-mail or international phone call I make can be legally intercepted by the government?

Yes. But if the government decides your call has some intelligence value and writes it up in an intelligence report, they are supposed to black out your name or give you a pseudonym. But if your name is necessary to understand the intelligence information, or an official calls up the NSA and asks for your name, they'll identify you. Newsweek reported that this happened to 10,000 people in the United States from January 2004 to May 2005.

They can also use the information from your international communications to decide they need to target all of your calls and use that initial wiretap to get a more invasive one.

I saw ads saying that the Democrats want to make U.S. spies get warrants before listening in on terrorists in Pakistan phoning their comrades in Iraq, thus crippling our intelligence. Why do Democrats hate the United States?

The ads are false. The secret spying court has no authority over what the NSA does overseas. If the NSA finagled a way to wiretap entire cellphone networks in Iraq, Pakistan or Afghanistan, they are free to do so without getting a warrant.

So you may safely ignore attack ads from supposedly nonpartisan groups or columns like this one.


If Bush won't sign spying legislation without telecom amnesty and the House won't do that, what then?

The 2007 temporary expansion of spying powers known as the Protect America Act seriously degrades starting in August. Without a bill signed into law before then, the nation's spies will not have much in the way of blanket wiretaps inside the United States.

So if the House and Senate send Bush a bill that expands spying powers, but does not include amnesty, Bush will be forced to choose between powers that he says are necessary to prevent an attack on the country, or amnesty for the phone companies that helped him.

Bush could try to start the programs up again based on his theory of the "unitary executive," but it's unlikely any telecom would help out this time without a court order.

So the NSA would fall back on the long-standing FISA court to get warrants when they want to wiretap inside the United States, or figure out how to wiretap foreigners outside the county, like they used to.

Click here to read the article in its entirety.

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