Updates at the end!

Here is a link to the just released, 42 page document laying out the administration’s case for the NSA program adjustments made after 9-11. I will be reading this as time permits and possibly posting on it later, but if the scope of the program is as it is defined in the introduction, the impeachment hounds are going to have a very rough 2006:

As the President has explained, since shortly after the attacks of September 11, 2001, he has authorized the National Security Agency (“NSA”) to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. This paper addresses, in an unclassified form, the legal basis for the NSA activities described by the President (“NSA activities”).

We all know intercepting international communications as part of a broad effort is legal as long as it is not singling out any one person in the US, or is making a person the target of a surveillance program where all their communications are monitored. If communications are being tied to known or highly suspected terrorists before being reviewed for further action – the administration is in a good position. Sifting out calls based on contacts with a known target of interest is functionally the same as monitoring a target of interest. In today’s modern communications infrastructure, the only way to monitor all communications is to collect the information by computer that is necessary to determine a contact is happening with a terrorist. That is because communication is no longer point-to-point. In the digital age we cannot simply find a wire and listen in (mainly because the wires are not dedicated to a single persons communications and it is now in the form of 1’s and 0’s).

Since you cannot tap a wire, you have to filter the information packets and find the ones linked to your target. It is the logical equivalent of finding a phone line and listening in on that one wire. Wires are now virtual relative to communications.

More later if time permits.

UPDATE:

Right on the first page I believe is the pivot point of this argument

By targeting the international communications into and out of the United States of persons reasonably believed to be linked to al Qaeda, these activities provide the United States with an early warning system to help avert the next attack.

Emphasis mine. For terrorists overseas this is no big deal, we can monitor their calls. For US citizens here (and overseas) and possibly people here in the US there is a simple legal path: declaring them enemy combatants. Now I mean simple in the sense the designation removes much of the protections a citizen or person in the US would be provided druing peace time. In a war, enemy combatants are the enemy. They can be detained and monitored without legal processes, because they are not criminals.

Now it is clear Bush and company cannot misuse this designation. They would lose a lot of political capitol. I do not think they would and I think the internal review process is too broad to allow to happen. But keep in mind we have not really explored what the designation of enemy combatant does to the scope of FISA. The predicate for enemy combatant status is set in the next paragraph:

The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.

Just pointing out an interesting twist we have nor explored to date. It would be a higher bar for allowing surveillance of US Citizens and others here in the US.

UPDATE II:

The more I think about though, it is clear if you can make a case for enemy combatant you can make a FISA case. I go back to my original position that this is about how to find communications in the modern day where you have to sift through the data to find the communications of interest – even when you know details of the target.

This is something important to understand. In digital communications, if I know the IP address of the target overseas I am interested in, I still need to open every packet to see what the address of that packet of data is. The analogy is having the ‘to’ and ‘from’ address information for a letter on the inside of the envelope instead of the outside. The post office has to open the envelope and get the address information before it can route it to the destination.

Of course this is not completely accurate. The problem is that the addresses in digital communications is only machine readable. So humans tell machines to read the address fields just like the post office reads the addresses on the outside of the envelope (now by machine of course). So when the NSA reads the address of a packet of data, is that any different than the when the post office reads the addresses on an envelope? And if the NSA has authority to read the data from certain addresses, is that any different than the government intercepting mail from certain addresses? No.

This is the problem when lawyers and judges with agendas run into technology. All the reporting we have pointed to which justified our early assumptions have questioned whether the NSA has the right to read the addresses on data packets.

In my opinion they do since it is the only way to find those addresses they are legally allowed to monitor. Even under warrant you have to read the addresses of packets not covered under the warrant to seperate them out from the ones of interest.

The NSA and administration appears to be on really firm ground at the address level at least. To know if a letter is legal to monitor one has to read the addresses to determine if the letter is in the scope of the surveillance being performed. Same with reading address headers in data packets.

UPDATE III:

I have been having email exchanges with someone who is very familiar with the law and not so computer savvy (which is of course, the reverse of my knowledge). This person has been working with me to translate the computer jargon to something everyone can relate to. So here is her review of my first attempt above talking about letter addresses and data packet addresses:

Is this, for example, like a cop sitting by the side of a highway who’s been asked to keep an eye out for a white SUV believed to be carrying a kidnap victim.The cop may chase every white SUV that passes and stop the drivers for questioning, but only arrests the one which meets the other criteria on the APB..criteria he cannot know until he has stopped the car .

Which was an excellent question. In my mind the problem facing the NSA is more basic than this. In this example some features have been provided to law enforcement that narrows the search – which as you note is still invasive to a lot of innocent drivers. Being from Northern Virginia the example recalls the days of the beltway sniper and miles long road blocks pulling over suspected white vans and trucks.

Here is my response filling out my example more, and then relating it to the example of the policeman on the lookout for a car:

No, it is more basic than that, and I will try and use your example. First mine again.

All digital data flowing from point A to point B (off your computer essentially) has two addresses, just like a letter: one for the sender and on for the receiver. In my example it is assumed one has authority to intercept all mail with address A. But to find that mail ,one has to read the ‘to/from’ addresses of each letter being mailed to find the ones with Address A in the ‘to/from’ field.

If I was to take this to your example, the police are on the look out for a license plate number. But they have to read the license plate numbers of every car that goes by to find the one they are looking for. Its like asking them to only read the one they are looking for.

So what some are claiming is the government cannot read the address fields of data without a warrant covering the addresses THEY MIGHT read! Probable cause would be a joke in this case. How can you find the data, letter or car you are legitimately looking for if the act of reading the addresses or license plates is considered an invasion of privacy?

Hopefully this is helpful to those trying to understand what is going on here. There are some claiming the act of reading where data is coming from or to is an invasion of privacy, which I believe is pure BS. This is sometimes called ‘meta data’. It is as different as reading the addresses on an envelope vs opening the envelope and reading the contents.

Since all data shipped has ‘to/from’ addresses on it, those containing ‘Address A’ – the target of interest – have numerous associated addresses for every contact made with Address A.

How far can one go to evaluate these addresses to determine whether they are innocent or of concern? Well, once ‘Address A’ is found in one of the address fields, it is OK to crack open and read the data – since Address A is a legal target of surveillance. It also seems clear in light of the latest NY Times story on this subject, the NSA alerts the FBI to contacts (addresses) located in the US for further investigation.

BTW, Clarice Feldman of American Thinker fame is the person who is graciously helping me to clarify my points. Many thanks to her for her patience with an uber geek like me.

UPDATE IV:

One thing the anti-Bush forces just don’t understand is the FISA process has determined Bush has the authority to perform intelligence gathering outside of FISA. It is moronic to argue Bush must follow FISA and then dismiss the FISA Review Court ruling clearly establishing the President has the authority to direct the NSA to monitor our enemies without going through FISA.

Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.

When you point to FISA and say Bush needs to follow it, it helps to know that the FISA Court of Review determined Bush’s actions are legal way back in the fall of 2002. This logic bomb is just sitting there ready to explode on the left. If FISA is the proper law to follow, and the judiciary branch determined FISA was not the only authorization for surveillance, then the left needs to show their sacred FISA process is flawed. Ouch!

UPDATE V:

Check out News Busters busting the NY Times in contradictory claims:

The president authorized the program after the Sept. 11 attacks, allowing the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The NY Times doesn’t understand the words they are trying to use. If FISA is used for internal surveillance, then the monitoring of oversears targets is not domestic spying. What a bunch of putzes. They only look good relative to the people who buy into their mistakes.