Rebuttal to NYT and Wiretapping article

[DixieFlatline]

Not sure if this was all covered in the other wiretapping thread, it seemed to be heading into a different direction when I was last reading it.

http://www.humanevents.com/article.php?id=21855

Today, Michigan Republican Pete Hoesktra sent a scathing letter to NYT executive editor Bill Keller, detailing what Hoekstra called the Times' "...recklessness in repeatedly disclosing highly classified intelligence programs to enemies who seek to attack our nation," and the Times' coverage of the Foreign Intelligence Act amendments.

Hoekstra said of the Times' editorial titled, "The Fear of Fear Itself," "The only real basis for "fear" here is the scare tactics being perpetuated by the Times, which has knowingly and willfully misrepresented the new law to scare the American people."

READ THE WHOLE LETTER HERE

Mr. Bill Keller

Executive Editor

The New York Times

620 Eighth Avenue

New York, NY 10018

Dear Mr. Keller:

It has been my practice not to deal with the New York Times after its recklessness in repeatedly disclosing highly classified intelligence programs to enemies who seek to attack our nation and because of what I believe was a lack of honesty and integrity in its dealings with me as Chairman of the Committee at that time.

However, I believe that your editorial this morning “The Fear of Fear Itself”, and an article that ran yesterday purporting to describe legislation to clarify the Foreign Intelligence Surveillance Act (“FISA”) I supported in the House of Representatives to address an urgent intelligence gap so mislead the American people as to require urgent correction. The only real basis for “fear” here is the scare tactics being perpetuated by the Times, which has knowingly and willfully misrepresented the new law to scare the American people.

Before moving to a point-by-point rebuttal based on the actual text of the new law, extensive experience with FISA, and knowledge of the actual facts at issue not available to the Times, I would like to also address two broader points. First, the legislation was intended to address significant and substantial intelligence gaps that have arisen at a time of enhanced threat of terrorist attack on the United States. The need for the bill was urgent and obvious. DNI McConnell repeatedly emphasized that “we are missing a significant portion of what we should be getting” to detect and prevent terrorist attacks. Bipartisan recognition of the need for this bill is why it passed both the House and the Senate so quickly.

And the recently released key judgments of a National Intelligence Estimate clearly emphasized that the United States is in a time of enhanced threat from Al Qaeda, which still is planning “high-impact plots” “likely to continue to focus on prominent political, economic, and infrastructure targets with the goal of producing mass casualties.” Had we not passed this law and an attack not been prevented, I’m sure that the New York Times would have been first in line to criticize the failure to “collect the dots”, much less to “connect the dots”.

Second, it is unfortunate that you so completely disregard the professional judgments of DNI McConnell, other Intelligence Community professionals, and even indications from judges of the FISA Court itself that this legislation was urgently needed to close intelligence gaps and better focus the FISA process on protecting the civil liberties of Americans instead of radical jihadists overseas. Director McConnell – who served as NSA Director under President Clinton – deserves praise for repeatedly emphasizing that FISA reforms must balance intelligence speed with the civil liberties of Americans. His personal involvement and guidance of this process at every step were critical to making it happen, and he deserves PRAISE for his effectiveness and professionalism instead of ugly personal attacks. There is no evidence whatsoever that any alleged “agreement” was reached with congressional Democrats, and there is no cause to smear Admiral McConnell based on hearsay.

Below, I have corrected a number of specific misstatements and exaggerations in your August 6 article and in this morning’s editorial. Any of them should have been readily apparent from a cursory look at the text of the law itself, but unfortunately your newspaper chose fearmongering over what “might” be happening rather than the facts and what the law actually says.

Article

• Misstatement and Exaggeration: “…impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists.”

o Facts: FISA is an extremely complex statute that is difficult enough to understand and apply even when it is not being deliberately distorted. Unfortunately, instead of reading the law, the New York Times chose to make up new assertions wholly unsupported by the facts. This did a disservice to our intelligence professionals who are attempting to keep America – especially prominent targets such as New York – safe.

o The new law plainly and expressly provides that surveillance must be “directed at” (targeted to) a person reasonably believed to be located outside the United States. Under well-established FISA practice and precedent, this only permits surveillance of foreign targets on foreign soil, not Americans on American soil. The Intelligence Community must develop procedures to ensure this is the case, and those procedures must be reviewed by the FISA Court.

o Any surveillance targeting Americans in the United States would still require an individual warrant from the FISA court, and any incidental collection of the communications of U.S. persons would still be subject to extensive minimization procedures. The bill expressly requires such minimization procedures to be imposed on any surveillance conducted under the new law, and those procedures must also be reviewed by the FISA court,

o Congresswoman Wilson expressly clarified in the Congressional Record that so-called “reverse-targeting” of the communications of Americans is intended to be illegal under this bill. Director McConnell also repeatedly has stated his intent in congressional briefings to seek an individualized order of the FISA Court to target any communication of an American.

o Judges of the FISA Court itself have also clearly expressed frustration with the fact that so much of their docket is consumed by applications that focus on foreign targets and involve minimal privacy interest of Americans.

• Misstatement and Exaggeration: “…new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act … that is supposed to regulate the way the government can listen to the private communications of American citizens.”

o Facts: The Attorney General has publicly disclosed that the activities previously conducted under the Terrorist Surveillance Program described by the President were moved completely under FISA. The new law applies only to surveillance targeted at foreign persons, and a FISA order would continue to be necessary for surveillance targeted at Americans. The current FISA structure can handle these applications with speed and agility.

• Misstatement and Exaggeration: “[A] still-classified ruling earlier this year … which said the government needed to seek court-approved warrants to monitor those international calls going through American switches.”

o Facts: It’s not necessary to address or discuss any alleged court opinion to demonstrate that this assertion is false. The FISA modernization legislation passed by the House in the 109th Congress – well before the alleged opinion – attempted to address and close the FISA loophole for foreign terrorists.

• Misstatement and Exaggeration: “[T]he court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted.”

o Facts: This is a false and selective characterization of the plain provisions of the law. Third parties who are asked to assist the intelligence community under the law may challenge the legality of any directive by filing a petition with the FISA Court.

Editorial

• Misstatement and Exaggeration: “[T]oo scared of Republican campaign ads to use it to protect the Constitution.”

o Facts: Even without addressing the obvious fact that radical jihadists in foreign countries are not entitled to privacy rights under the Constitution relating to foreign intelligence collection, courts that have addressed the issue to date have made clear they believe that the type of surveillance contemplated by the bill is fully consistent with the Constitution, including the Fourth Amendment.

• Misstatement and Exaggeration: “They gave the Director of National Intelligence and the attorney general authority to intercept – without warrant, court supervision or accountability – any telephone call or e-mail message that moves in, out of or through the United States as long as there is a ‘reasonable belief’ that one party is not in the United States.”

o Facts: This assertion is false under the express terms of the statute. The law clearly requires that the surveillance be “directed at” (meaning targeted to) persons outside the United States, and that procedures be in place and reviewed by the FISA Court to ensure that surveillance concerns persons outside the United States. In addition, the law requires minimization procedures reviewed by the FISA Court to be in place to deal with incidental collection of communications of Americans.

• Misstatement and Exaggeration: “It would allow the government to intercept, without a warrant, every communication into or out of any country, including the United States.”

o Facts: If this were the case, the FISA Court would be virtually shut down. We still expect the Court to be conducting a significant and appropriate volume of work to protect the privacy interests of Americans, as it has and as it should.

Protecting America at a time of increased threat continues to pose great challenges for our Intelligence Community and our professionals. It is unfortunate that you choose to compound those difficulties with further politicization, fear-mongering, and the suggestion that we simply dismiss the increased threats to American citizens at home and abroad.

Sincerely,

Peter Hoekstra

Ranking Republican

[USS Redskins]

Thanks for the post.

For the life of me, I cant understand why a newspaper would tell the enemy the methods used to track them down. Unfortunatley this type of spying has to be done b/c the enemy is here.

It's a new world and it's reality.

[helptheSKINS]

Great Post Dixie. Nothing makes me happier then the NY Times being called out. Everyday, more and more people realize just how far left their agenda has gone. They do not represent the moderate democrats that support them, they represent only the very far left. They are more concerned with trashing the current administration then reporting facts. I've known Mike McConnell for about 10 years. You will never meet a nicer or smarter guy. His background is truly amazing. It is also way off base to question his motives. He left a VERY high paying job as Sr. Partner at Booz Allen because he wanted to serve his country. I guarantee he has this countries best intentions in mind when he makes any decision. Not that the NY Times cares.

[PeterMP]

Interesting. If he is telling the truth, it would seem that most of the issues I did have w/ it are not real. In this case, based on already established precedence (i.e. people in foreing countries are not protected by the 4th ammendment), I don't think the Supreme Court will have a problem w/ this.

[hokie4redskins]

Can we not try the Times editors for treason?

:whoknows:

[Midnight Judges]

I'm surprised how much trust you guys have in a politician. This thread perfectly outlines the difference between information on the right and left. Lefties prefer an independant media and righties prefer to get their information straight from the Republican party. Hoekstra is quoting Gonzalas's testimony that was all but proven false for crying out loud. I'll comment more after I read the actual NYT editorial that they conveniently forgot to link.

[Predicto]

Great Post Dixie. Nothing makes me happier then the NY Times being called out. Everyday, more and more people realize just how far left their agenda has gone. They do not represent the moderate democrats that support them, they represent only the very far left. They are more concerned with trashing the current administration then reporting facts. I've known Mike McConnell for about 10 years. You will never meet a nicer or smarter guy. His background is truly amazing. It is also way off base to question his motives. He left a VERY high paying job as Sr. Partner at Booz Allen because he wanted to serve his country. I guarantee he has this countries best intentions in mind when he makes any decision. Not that the NY Times cares.

I guess John Edwards must be the greatest American alive. He gave up a VERY high paying job as a trial attorney because he wanted to serve his country. It is way off base to ever question his motives. I guarantee he has this countries' best intentions in mind when he makes any decision. Not that FoxNews cares.

[Midnight Judges]

surveillance must be “directed at” (targeted to) a person reasonably believed to be located outside the United States.

Why not people who "actually are" outside the USA?

[SkinsOrlando]

Lefties prefer an independant media

:laugh: :rotflmao: Yeah, the NY Times doesn't have an agenda and is completely unbiased in it's reporting.

[Predicto]

:laugh: :rotflmao: Yeah, the NY Times doesn't have an agenda and is completely unbiased in it's reporting.

Did he say completely unbiased or did he say "independent?" The difference is significant.

[Popeman38]

Before you all get your panties in a wad, try reading the law:

http://www.govtrack.us/congress/billtext.xpd?bill=s110-1927

[Larry]

Why not people who "actually are" outside the USA?

I wonder about that, too.

Seems to me, if the NSA is monitoring somebody's phone, it's kind of hard for them to not know which country the phone's in.

I'm wondering if this is simply a deliberate loophole that's been built in, kind of like the law that prohibits the US from sending prisoners to countries that are known to torture, which simply resulted in the administration saying "well, we didn't know that Syria tortures prisoners when we sent the prisoner there along with a list of which questions we wanted Syria to ask him."

Still, it's nice to see someone at least trying to discuss the subject rationally.

[Popeman38]

I wonder about that, too.

Seems to me, if the NSA is monitoring somebody's phone, it's kind of hard for them to not know which country the phone's in.

I'm wondering if this is simply a deliberate loophole that's been built in, kind of like the law that prohibits the US from sending prisoners to countries that are known to torture, which simply resulted in the administration saying "well, we didn't know that Syria tortures prisoners when we sent the prisoner there along with a list of which questions we wanted Syria to ask him."

Still, it's nice to see someone at least trying to discuss the subject rationally.

Read the law, your questions will be answered.

`Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that--

• `(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;
  `(2) the acquisition does not constitute electronic surveillance;
  `(3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;
  `(4) a significant purpose of the acquisition is to obtain foreign intelligence information; and
  `(5) the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

[helptheSKINS]

I guess John Edwards must be the greatest American alive. He gave up a VERY high paying job as a trial attorney because he wanted to serve his country. It is way off base to ever question his motives. I guarantee he has this countries' best intentions in mind when he makes any decision. Not that FoxNews cares.

You've got some issues

[helptheSKINS]

I wonder about that, too.

Seems to me, if the NSA is monitoring somebody's phone, it's kind of hard for them to not know which country the phone's in.

I'm wondering if this is simply a deliberate loophole that's been built in, kind of like the law that prohibits the US from sending prisoners to countries that are known to torture, which simply resulted in the administration saying "well, we didn't know that Syria tortures prisoners when we sent the prisoner there along with a list of which questions we wanted Syria to ask him."

Still, it's nice to see someone at least trying to discuss the subject rationally.

I still think it's purpose is to listen to your phone calls Larry. They are very interested in your personal life.

[PeterMP]

I wonder about that, too.

Seems to me, if the NSA is monitoring somebody's phone, it's kind of hard for them to not know which country the phone's in.

I'm wondering if this is simply a deliberate loophole that's been built in, kind of like the law that prohibits the US from sending prisoners to countries that are known to torture, which simply resulted in the administration saying "well, we didn't know that Syria tortures prisoners when we sent the prisoner there along with a list of which questions we wanted Syria to ask him."

Still, it's nice to see someone at least trying to discuss the subject rationally.

I THINK you are wrong about them having to know who's phone it is.

I'm not an expert on this at all, but this is my understanding. Like most forms of data, these things have multiple levels. One level of data is where it came from and where it is. Based on that data, the goverment can make an assment if the person is likely to be in this country or not. So they can simply sit on the "hub", look at the data at this level only, have a computer make a determination based on that if they can listen and if so listen/record the conversation. They don't physically now the person is out of the country, but if you assume their phone/computer is sending accurate information then it is a reasonable assumption that you know where they are. If based on that data, you are in the country, you'd have to throw it away. That's what I THINK they've been doing, and this is what they mean when they talk about chatter. An increase in chatter means an increase in calls going through these hubs from certain locations to others (e.g. the ME to the US and Canada).

[Baculus]

As soon as you start talking about jailing the press or trying them for "treason," you have gone into the realm of authoritarianism; and what's worse is that some of you are oblivious to this fact. Some of you would definitely be at home in Orwell's 1984, as minions of the State and Party.

And at least the Times is talking about an issue that many of you would love to brush under the rug. they didn't discuss anything that would provide an advantage to any terrorists - they already know that they are being observed.

"OMG, THE TIMES REVEALED OUR SEKRITS!" Let's try to jerk our knees too much!

I think some of the issues that appears to be missed by the writer of this rebuttal are the following:

1) The Bush administration has been accused of violating FISA due to the domestic spying programs.

2) The Bush administration has asserted that FISA has been amended due to the WoT and by the Congressional "Authorization for Use of Military Force" in 2003.

The writer even contradicts himself, with statements such as "The new law applies only to surveillance targeted at foreign persons, and a FISA order would continue to be necessary for surveillance targeted at Americans," since FISA is supposed to be directed at foreign individuals, not Americans. So the fact that he even mentions a FISA order directed at Americans demonstrates the issue that the Times was discussing in its article. And by the virtue of the domestic surveillance program, this demonstrates the issues and concerns that the Times, and others, have voiced in regard to this issue.

Peter Hoekstra did nothing to clarify the issue at hand, and in fact has further muddied the issue.

[Baculus]

Before you all get your panties in a wad, try reading the law:

http://www.govtrack.us/congress/billtext.xpd?bill=s110-1927

I think a lot of the issue has to do with how the law has been interpreted or violated.

[Larry]

Problem I see with that theory is: They can't monitor a person, they can only monitor a phone number. And that phone number very clearly says which country it's in. (OK, maybe there may be a few exceptions. When I travel to Canada, my cell phone still has a US phone number.)

To use TCP/IP (which I do understand a lot better) as an example, if I'm monitoring a particular IP address, then I have to know which IP subnet that address is part of. (It's part of the address, just like your area code is part of your phone number).

The only way I don't know which subnet a packet belongs to, is if I'm not monitoring one computer's communications, I'm monitoring everybody. (In which case, I'm not directing my surveillance at anybody.)

[USS Redskins]

There is no such thing as an unbiased press but there should be a fair press.

That said, I sure dont need GOP.com to tell me that spying on suspected terrorists is a good idea.

Even if you are against a war, I would think that you wouldnt want to do anything that would endanger your country's safety and that is what the NY Times did.

[Midnight Judges]

There is no such thing as an unbiased press but there should be a fair press.

That said, I sure dont need GOP.com to tell me that spying on suspected terrorists is a good idea.

Even if you are against a war, I would think that you wouldnt want to do anything that would endanger your country's safety and that is what the NY Times did.

Disagree 100%. Everybody and their dog already knows we conduct wiretaps. This has been wide spread knowledge for 60 years. Nothing about the NYT article is going to change their course of action. They aren't going to come out and say things over international phone lines. If they truely are that stupid we have nothing to worry about anyway.

[Larry]

Read the law, your questions will be answered.

1) I have read the law. (At least the part you quoted.)

2) The question is: Why does the law say "reasonably believed to be outside the US", instead of "people outside the US"?

(I'm also scratching my head over the line "(2) the acquisition does not constitute electronic surveillance;", since I thought that the sole purpose of this law was to authorize electronic surveillance.)

[SkinsOrlando]

2) The question is: Why does the law say "reasonably believed to be outside the US", instead of "people outside the US"?

Cell phone's maybe?

[Popeman38]

Problem I see with that theory is: They can't monitor a person, they can only monitor a phone number. And that phone number very clearly says which country it's in. (OK, maybe there may be a few exceptions. When I travel to Canada, my cell phone still has a US phone number.)

To use TCP/IP (which I do understand a lot better) as an example, if I'm monitoring a particular IP address, then I have to know which IP subnet that address is part of. (It's part of the address, just like your area code is part of your phone number).

The only way I don't know which subnet a packet belongs to, is if I'm not monitoring one computer's communications, I'm monitoring everybody. (In which case, I'm not directing my surveillance at anybody.)

What hapens when a bad guy buys software that makes his IP address appear as a US address? Are we (the US) not allowed to monitor him? Or since it appears as if he is in the US, but we (the US) can be reasonably sure he is not, are we (the US) permitted to monitor him?

[PeterMP]

The writer even contradicts himself, with statements such as "The new law applies only to surveillance targeted at foreign persons, and a FISA order would continue to be necessary for surveillance targeted at Americans," since FISA is supposed to be directed at foreign individuals, not Americans. So the fact that he even mentions a FISA order directed at Americans demonstrates the issue that the Times was discussing in its article. And by the virtue of the domestic surveillance program, this demonstrates the issues and concerns that the Times, and others, have voiced in regard to this issue.

Peter Hoekstra did nothing to clarify the issue at hand, and in fact has further muddied the issue.

This is where things get complex. The FISA does not require that the person be foreign. It requires the person be an agent of a foreign power. I'd be shocked for example if FISA was not used in the Hannsen case (but no, I don't have any proof, but I think there is clearly a reason for that type of language).