NSA Spying – Which Law Was Broken?

I’ll fess up to not being completely familiar with the Foreign Intelligence Surveillance Act [FISA] which was enacted in 1978. After a story by NewsMax Sunday about the use of NSA’s Echelon program by the Clinton Administration I did a little more looking.

First I found some snippets from the 60 Minutes story referenced by NewsMax:

The NSA runs Echelon with Canada, Britain, Australia and New Zealand as a series of listening posts around the world that eavesdrop on terrorists, drug lords and hostile foreign governments. But to find out what the bad guys are up to, all electronic communications, including those of the good guys, must be captured and analyzed for key words by super computers, a fact that makes Former [Canadian] spy Mike Frost uncomfortable.

“My concern is no accountability and nothing, no safety net in place for the innocent people who fall through the cracks,” he tells Kroft.

As an example of those innocent people, Frost cites a woman whose name and telephone number went into the Echelon database as a possible terrorist simply because she told a friend on the phone that her son had bombed in a school play.

“The computer spit that conversation out. The analyst was not too sure what the conversation was referring to, so, erring on the side of caution, he listed that lady,” Frost recalls.

Democracies usually have laws against spying on citizens, but Frost says Echelon members could ask another member to spy for them in an end run around those laws. Frost tells Kroft that his Canadian intelligence boss spied on British government officials for Prime Minister Margaret Thatcher.

Two more sites expand on the story of Echelon, former Canadian spy Mike Frost, and Margaret Newsham (another of the former spy’s featured in the 60 Minutes piece) – What Really Happened and cryptome

In the far corners of the Internet, the NSA’s domestic spying capability is hardly news. In one section in a rambling history of the program the applicability of FISA is discussed.

Within the United States, FISA still leaves the NSA free to pull into its massive vacuum cleaner every telephone call and message entering, leaving, OR TRANSITING the country.

By carefully inserting the words “by the National Security Agency” into the FISA legislation, the NSA has skillfully excluded from the coverage of the FISA statute as well as the surveillance court all interceptions received from the British GCHQ or any other non-NSA source.

Thus it is possible for GCHQ to monitor the necessary domestic circuits and pass them on to the NSA through the UKUSA Agreement, giving them impunity to target and watch-list Americans.While there may be debate about whether or not such spying is appropriate, it appears that the US government (and it’s allies) have specifically built a system designed to give them the capability to do this type of surveillance, and apparently to do so legally.

The wisdom of a “black” operations like this (which dates back to the 1940’s) is up for debate, but trying to spin it as an invention of the Bush administration, or their use of it as “unprecedented” doesn’t jibe with history.

Update: Think Progress argues that during the Clinton administration the use of Echelon was done strictly in compliance with FISA. They cite no less an authority than this bit of testimony from former CIA director George Tenet as proof.

There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.

All of which completely ignores the fact that Echelon was designed to catch ALL communications, and that the information sharing system and distributed processing system described in the 60 Minutes piece (and elsewhere) make that statement potentially “false but accurate.”

The system was designed to allow other allied countries to do spying for the U.S. that it couldn’t and vice versa, which creates a convenient wall of deniability and compliance. Under Clinton (and presumably other Presidents) the Echelon program was used for industrial espionage (see APEC and the Independent / UK), again presumably outside of the purview of the lax FISA review process.

Tenet’s testimony sound suspiciously like the defense of the program given by Bush and Gonzales, and most certainly does not prove that the Clinton administration always used the FISA process.

The New Colonialism
No Longer a Voice in the Wilderness


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