Apparently, the former Chief Justice of the secret star chamber Foreign Intelligence Surveillance Court (FISC) has decided to do an interview with James Bamford who writes in The Atlantic (subscription required). In this article, Lamberth recounts a day in April 2002 when FBI agents come to is house to request an emergency hearing. This is not unknown to Judge Lamberth. The judge also recounts when he had to review requests for surveillance in the middle of the night after the embassy bombings which led to evidence pointing to Bin Laden. Too bad the judge waits until the threat is so obvious no one has doubts about the risks. Recall both Lamberth and the current Chief Judge have gone on record refusing to review leads from the NSA:

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

Emphasis mine. These are interceptions of terrorists talking to people in the US, probably terrorists themselves if the request is hitting the FISC. Which is why Bamford’s reporting on the history of FISA is suspect:

The court’s job is to decide whether to grant warrants requested by the NSA or the FBI to monitor communications of American citizens and legal residents.

NSA does not go to the FISA court to get permission to monitor our enemies. It is a military unit. Only the Department of Justice, basically the Attorney General, submits request to the FISC with support from DoJ and FBI lead investigators. I am going to be asking for my subscription money back if Bamford continues to do this poor of reporting. For example, he discusses how the FISC arose out of the Watergate madness and the Church Committee report, but fails to mention the fact the NSA always through away any and all information regarding people in the US in contact with our enemies overseas – until 9-11 woke us up to the stupidity of such a quaint ‘tradition’.

Bamford lazily repeats the idiotic claim that FISA allows 72 hours to request a warrant after the surveillance begins, without adding in the restriction from the FISC judges that NSA information alone will not be considered for probable cause (no matter how clear) and requiring the FBI to generate independent evidence. Is Bamford dumb enough to claim all this can be accomplished in 72 hours? Maybe he should not watch so much TV if that is what he believes.

At least Bamford acknowledges the FISC has gotten more antagonistical since 9-11, not a rubber stamp. And most of it apparently is from the FISC refusal to deal with NSA generated leads, something they did not have to deal with prior to 9-11 since the NSA had a policy of never passing them on.

It is true that the court has been getting tougher. From 1979 through 2000, it modified only two out of 13,087 warrant requests. But from the start of the Bush administration, in 2001, the number of modifications increased to 179 out of 5,645 requests. Most of those—173—involved what the court terms “substantive modifications.”

It seems we now have one new possible source for leaking classified information to the press regarding the NSA program – Judge Lamberth. Who else could tell Bamford about this:

Concerned about preventing future 9/11-style attacks, President Bush secretly decided in the fall of 2001 that the NSA would no longer be bound by FISA. Although Judge Lamberth was informed of the president’s decision, he was ordered to tell no one about it—not even his clerks or his fellow FISA-court judges.

To be clear again, FISA never dealt with NSA leads as probable cause. The court seems to think only information that comes from an agency with F and B and I in its name is valid, and information from an agency with N and S and A is invalid. Dumb, but we have all seen dumb laws and dumb judgements in our history.

Bamford is right about one thing: the NSA doesn’t ‘wiretap’. It collects information and sifts through it. All communications have a to/from address in it, and they will pick up all data with a to/from field matching those associated with terrorists. The other field is irrelevant and can include a to/from address here in the US. That is the same way warranted surveillance works: you get all communications with the target and those on the other end get legally caught up in the matter. This is how you target someone overseas. You DO NOT use key word searches when monitoring a target. Technology neophytes should really avoid discussing the details of this subject or pretending they understand it.

Bamford also correctly identifies the NSA’s mission and domain:

The NSA’s task is to listen in on the world outside American shores.

So all their targets are overseas, making their domain off limits from FISA which covers TARGETS of surveillance here in the US – not contacts of targets overseas. There is a legal and important distinction between a target and all the contacts who get swept up communicating with the target.

The rub comes when a contact here in the US needs to graduate from a contact communicating with an NSA (military) target to a domestic law enforcement target under through the FISC. The friction has come because the FISC has resisted taking the NSA leads and dealing with them. Just like no one dealt with 9-11 highjackers Hamzi and Midhar who were here in the US communicating with their contacts through Yemen. Right now, if all we had was the NSA intercept of the Yemen contact – the FISC judges would throw out the lead.

I dare any reporter to prove me wrong and ask Lamberth what the traditional process would determine in that real world hypothetical. Bamford doesn’t get any of this. He thinks the world somehow changed and before some magical period the NSA never picked up communications with someone in the United States:

Sometimes a thread leads back inside the United States. An internal agency report predicted a few years ago that the NSA’s worldwide sigint operation would demand a “powerful and permanent presence” on the global telecommunications networks that carry “protected American communications.” The prediction has come true, and the NSA now monitors not only purely “foreign” communications but also “international” ones, where one end of the conversation might be in the United States. An internal agency report predicted a few years ago that the NSA’s worldwide sigint operation would demand a “powerful and permanent presence” on the global telecommunications networks that carry “protected American communications.” The prediction has come true, and the NSA now monitors not only purely “foreign” communications but also “international” ones…

As I linked to above, this is not true as stated in the Chuch hearings which discuss this exact situation and how the NSA dumped the US details of the intel on the ground. Then Bamford illustrates how he can miss something right in front of his face:

As a result, the issue at hand since the revelation last December of the NSA’s warrantless spying on American citizens is not the agency’s access to the country’s communications network—it already has access—but whether the NSA must take legal steps in preparing to target the communications of an American citizen.

Dude! The NSA doesn’t do domestic surveillance! It doesn’t do domestic searches! It doesn’t arrest people! The people who ‘target’ someone legally in America (citizen or not) is the FBI and DoJ – and they cannot do anything if the FISC judges throw out the NSA leads!

How obvious does someone have to make it for these people? NSA passes leads to FBI after 9-11, FISC judges refuse to review these leads and start massive rejections of applications, judges go on record saying they will not take NSA leads without independent FBI evidence developed. Wake up America – the Star Chamber of secret FISC judges are playing God and determining, without any public debate or accountability, what is reasonable cause! We the People have had no say and our representatives have not legislated this matter. More poor reporting:

It used to be that before the NSA could place the name of an American on its watch list, it had to go before a FISA-court judge and show that it had probable cause—that the facts and circumstances were such that a prudent person would think the individual was somehow connected to terrorism—in order to get a warrant. But under the new procedures put into effect by Bush’s 2001 order, warrants do not always have to be obtained, and the critical decision about whether to put an American on a watch list is left to the vague and subjective “reasonable belief” of an NSA shift supervisor.

Well, better an NSA shift supervisor than some lame judge. And the reason there is no warrant is…

…because the judges refuse to consider NSA leas! Welcome to the self licking ice cream cone.! NSA bypassed the FISC because the FISC rejected NSA evidence. Fortunately this is not a chicken and the egg problem. We know the FISC judges resisted the new leads – they said so. They had their chance to protect us and review evidence and decide the risk, the refused to do it! They took themselves out of the game, and now leak the details of NSA surveillance to the press because the world decided to go ahead without them!

And look at what Bamford singals out as something we should not do!

If telephone records indicate that one of the NSA’s targets regularly dials a given telephone number, that number and any names associated with it are added to the watch lists and the communications on that line are screened by computer.

Got that? If Bin Laden keeps calling a number and says “hey Zawahiri, how’s it hanging’ it is suspect for us to assume a regularly used phone by terrorists might just be …. I don’t know, let me go out on a limb here: A terrorist? Want another boner from Bamford:

Names and information on the watch lists are shared with the FBI, the CIA, the Department of Homeland Security, and foreign intelligence services.

So if Chuck Schumer’s or Hillary’s number ended up being monitored – only a few thousand people would know! How do you think checks and balances work? Want to bet each and everyone of these organizations can come back to the nSA and say ‘we checked out Schumer and, while he is obnoxious, he is not a terrorist”! Bamford is so wrapped up in his conspiracy theory he cannot see he is making the opposite case.

And that is all on page 1! More later if time (and patience with idiocy) permits.

Update: Well, the rest of the pages are history and hangwringing. Bamford notes a case of someone being erroneously targetted as a smuggler based on intel gathered in December 1977! Got that. Someone detected what they thought was a reference to a weapons system but it ended up being power generators. The person in question was detained and then released when the mistake was discovered. So, just in case we make a mistake, Bamford argues, we should never monitor potential Al Qaeda communications here in the US. It is that kind of lame reasoning that allowed 3,000 people to die on 9-11, they died so there would be no chance of someone’s rights being accidentally infringed upon. So sorry for the rights of the 3,000 who need not worry about rights any more.
Bamford then spends pages reviewing the last few decades of how the NSA monitors calls, divulging secrets left and right – none of which are new since 9-11. Why he feels he needs to expose more and more of the program’s pre 9-11 details to make a post 9-11 argument is baffling. Unless you consider the idea he would rather the NSA not exist at all! Then it makes sense – in a suicidal, lunacy sort of way.

Bamford even wanders back to the Vietnam era! What a crock. And then he ends with this paranoid fantasy: we are all being WATCHED!

NSA personnel, the customs inspectors of the information superhighway, have the ultimate goal of intercepting and reviewing every syllable and murmur zapping into, out of, or through the United States. They are close to achieving it.

Do the math! While computers can process the data for key fields, there is no way to personally review every syllable! As Bamford notes a single transatlantic cable can carry 10 million ‘communications’, and there are 38,000 NSA employees. That is 263 ‘communications’ to monitor per employee on that one cable! Bamford obviously is not versed in math or he would have done the simple division himself before claiming the NSA can spy on everything we say. It can’t. It must sift and it must focus on high probability targets – it has no time or resources to spare going down blind alleys. The NSA is not rewarded for listening in, the people there are rewarded by stopping attacks on us. Only an ideologue like Bamford would look at this immense challenge and conclude this:

As history has shown, the availability of such vast amounts of information is a temptation for an intelligence agency.

Must be the voyeur in him. All I see (and what I bet the administration sees) is a nuclear needle in a continent sized hay stack.