All right, y'all.
Welcome back to the show.
It's Anti-War Radio.
I'm Scott Horton.
Our first guest on the show today is Jason Mick from DailyTech.com.
The piece is called Obama Administration Fights to Renew Warrantless Wiretaps, Block Transparency.
Welcome to the show, Jason.
How are you doing?
Oh, great.
Good to be with you, Scott.
Well, I'm very happy to have you here.
It's a very interesting piece of work that you put together here about the amendments to the Foreign Intelligence Surveillance Act.
So, I guess rewind and start out in 1978 with what this law is in the first place, and then we maybe talk about the FAA, not to be confused with the airline bureaucrats here, the Amendments Act of, what was it, 2008, right?
Yes, exactly.
Yeah.
So, to give a little bit of historical perspective to this current situation, so the FISA, the original Foreign Intelligence Surveillance Act was put into law in 1978, and to give a little bit of a historical background of that, America has a pretty longstanding tradition of spying on its own citizens.
If you look back to J. Edgar Hoover and spying on John Lennon and Martin Luther King and other civil rights and progressive advocates, there was a lot of domestic spying that was going on in the 60s and 70s.
So, ostensibly, this FISA, which was passed in 1978, was kind of a response to that and the whole Richard Nixon scandal.
So, it put strict limitations on what kind of warrantless wiretaps the government could put in place, and basically, the only people it could tamp without who are American citizens that it could be tamped without warrant would be people who were suspected of being foreign spies.
So, that's a pretty strict criteria, and if you look at the Fourth Amendment, the Fourth Amendment says that people have the right protections against unreasonable search and seizure and have a right to a certain degree of privacy.
So, the key word there is unreasonable search and seizure.
So, under the FISA, that argument could be made that in the case of a person who was suspected of being a foreign spy, there might be a good reason to tamp them without warrant.
The real problem since then has been what has been added onto the bill and the question of how to maintain accountability in such a sensitive program where you may be dealing with people who might want to, you know, commit violent crimes or other things of that nature, you know, gather intelligence that could hurt the country.
Well, as you pointed out in your piece, the FISA Act actually is a criminal statute that says Richard Nixon goes to jail for five years if he breaks this, which it was after Nixon, but the next one who tries it is what it says.
Yeah, so they put in place, you know, strict criminal charges if somebody violates the FISA.
So, basically, if somebody goes and if the president orders an everyday American to be wiretapped, say a peace advocate or a political activist who has an idea different than theirs, if they order a wiretap on them without warrant, then they're subject to a fine of up to $10,000 and up to five years in prison, which is a pretty serious charge there.
But the problem has just been enforcing it, basically, because you basically need a list of who has been wiretapped without warrant.
And increasingly throughout the various administrations, you know, including the Bush administration and most recently the Obama administration, the executive branch has really been fighting to keep that information out of the hands of Congress, who could kind of assess it and try to decide if it had been abused.
So, in other words, what you're saying is the Congress, in debating or approaching the time when the amendments are to sunset or whatever, they're trying to go back and they want information about, well, who have you been using this against?
How have you been using this power?
And they're keeping this information secret, even from the senators you're talking about.
Exactly.
And when you're talking about the FAA, which is, in this case, we're talking about the FISA Amendment Act, which was passed three decades after the original FISA, so in 2008, which was signed into law by President George W. Bush, the FISA Amendment Act granted immunity to telecoms in exchange for not testifying in cases against the government.
So basically what that did was it prevented telecoms from spilling, you know, any sort of dirty secrets they might have on warrantless wiretapping programs.
And in exchange, they were given a free ticket.
They were free from any sort of civil lawsuit that individuals could bring against them.
And as I'm sure you're familiar with, there was a number of allegations during the Bush administration, you know, Michael Moore in his movie, Fair Night 9-11, talked about the suspicions that, you know, the Bush administration had been wiretapping political rivals, say, like peace advocate groups that had no semblance of the, you know, terrorist or espionage sort of activities that were covered by the FISA or the subsequent Patriot Act, you know, amendments or things of that nature.
Well, and journalists as well, right?
Yeah, journalists as well.
So, you know, I mean, you know, this thing is nothing new, you know, J. Edgar Hoover, like I said, was doing this back in the, you know, 60s or whatever.
So, I mean, you know, John Lennon was spied on, Martin Luther King was spied on, and probably a lot of us journalists used to stir up trouble about being spied on.
But, you know, I mean, it's a question of how much damage can be done by this.
But overall, there's a serious question, too, of whether the Fourth Amendment's being violated by, possibly by these spying programs.
And the only real answer to that is through some sort of a transparency or accountability program.
But the problem is, most recently, the Obama administration has tried to block that transparency.
Obama's Director of National Intelligence, Clapper, he basically has said that it would be impossible to make a list of who has been wiretapped without warrant.
So, basically, and this would be a private list that's given to the U.S. Senate.
So, a common misconception is, well, we can't give this list because it could, you know, hurt U.S. defense.
It could hurt, you know, our anti-terrorism efforts.
But we're talking about a list that only the U.S. Senate would have access to.
So, they're saying they can't even give the U.S. Senate, our most, you know, supposedly most trusted federal politicians access to a list of who they've wiretapped.
Now, they could make the argument that it's physically impossible, like they don't have records on it.
But the real question is, how is there any accountability if you're not maintaining records on who you're wiretapping without warrant?
Well, now, I don't know if I ever read the thing.
If I did, it was back then, and I don't remember all the different parts of it.
But I was hoping, well, and we're coming up pretty much near the time wall here.
Maybe you can confirm my understanding and develop it more on the other side of the break.
Or, you know, dispute it if you want to.
My understanding of this thing, basically, this amendments, the FISA Amendments Act, was the Democrats, you know, attempt to legalize what George Bush had been doing in violation of the FISA statute.
And he had come out and said...
Well, I mean, there's some different things in the FISA Amendment Act.
One, it does make it expressly illegal for them to spy on people within, American citizens with it while they're within the U.S. But outside the U.S., they can be wiretapped without warrant under the previous laws.
So there are some provisions that add extra protections.
But you're right in that the Democrats did also sort of give President George W. Bush a blank check in that they gave this immunity to telecoms.
So basically, they couldn't spill any dirty laundry of George W.
Bush or the wiretap program.
Right.
Well, you know, Greenwald, Glenn Greenwald at Salon.com used to write about this and still does, I guess, mocking Obama for promising he would, you know, filibuster any such law.
And he turned around and voted for it, but said, yeah, but leave the poor telecoms alone.
They were made to do it by the evil Bush administration.
So it's those officials that will prosecute.
And then, of course, none of that.
Well, you know, as much as I'm sorry, I'm sorry.
Right there.
I'm editorializing your interview, but we got to go to this break.
We'll be right back, everybody, with Jason Mick from Daily Tech dot com.
All right, so welcome back in Santa War Radio.
I'm Scott Ward.
I'm talking with Jason Mick from Daily Tech dot com talking about the upcoming, I think probably inevitable renewal of the FISA Amendments Act of 2008, which is extremely important.
And I want to get back to that in just a second.
But I think if it's all right with you, Jason, I want to go back and discuss one thing that you said at the beginning here about the Fourth Amendment and about how the key word there is reasonable in terms of the original FISA Act probably being constitutional in the first place.
And I was thinking that and I could be, you know, it may just be a difference of opinion, but it seems to me like the key word in the Fourth Amendment is particularly and that unless the complainant, the person swearing to the police or a cop himself swearing in the affidavit to the judge, they must particularly describe reason to believe that this is, you know, the evidence will be found that shows that this is the person that did the crime they're looking into or whatever like that.
And that's where the probable cause level threshold, you know, is reached and that.
So it's different about the FISA Act.
And you could argue maybe that this is if we're talking about foreign spies or foreign terrorist type people or whatever, fine or something like that, maybe.
But when we're talking about the FISA court, just to be specific, what that means is the cops have to have a reasonable belief, not a not probable cause, which is a higher threshold.
They just have to have a reasonable belief that if they tap this phone, they might find something.
And that's, you know, to me, unconstitutional in the first place.
But then what this with this FISA Amendments Act does basically is it allows them to tap, if I understand it right, and you're the guy at Daily Tech and this is beyond my purview here, but don't they authorize like entire categories of information to be grabbed where the judges in the FISA court, which is inside the Department of Justice building is like Article 1 court of some kind, Article 2 court of some kind, where they can say, well, you can tap all gmails or all phone numbers that begin with 512 or whatever like that?
Well, I mean, there certainly could be a mass tapping scheme, but you have to consider in any of these cases that any sort of individualized intelligence is going to be very expensive.
Personally, I'm a very, I guess, wary or suspicious person when it comes to matters like surveillance and stuff.
But one thing I always bear in mind that the listeners should bear in mind is that while some, you know, they can be out to get you and sometimes they are, they got they got to have the money to do it.
So honestly, they're limited in how many people they can surveil at any given time.
But, but absolutely people in certain groups, like say people traveling overseas, there's certain areas or stuff might be might be subject to these kind of warrantless wiretaps.
But to answer your original question, which is whether you know, these kinds of things have happened, we don't know, because they've never published even to the Senate a list of who, who has been warrantless wiretapped.
There's plenty of allegations, but the actual, I guess, truth has never been put out there.
But is that am I misinterpreting the language of the act of 2008?
The additions there?
Doesn't it say that that it's that these categories of information can be mined now rather than individual warrants?
Well, yeah, it does have certain provisions about I mean, email surveillance, you know, is also built into both that act and the Patriot Act.
But yeah, I mean, there's a increasing level of email surveillance.
But again, at the end of the day, you know, automated systems, you know, if you have smart people, you can write good automated systems to filter, you know, certain, I guess, whatever you want to look for, whether it's political dissidents, or, or actually dangerous, you know, people like, you know, say, a person who's planning a terrorist attack or something, you could, you could, in theory, filter emails, filter phone calls, with that kind of stuff.
But the problem is, at the end of the day, you need human operators to analyze those, those phone calls.
So they're limited in how many people they can actually wiretap just from a logistics perspective.
Yeah, remember in the Simpsons movie, or they had a giant room full and I say, guys, listen, phone calls.
Well, you know, this is actually part of the the persecution of Thomas Drake, right, the former NSA official who was the whistleblower, who they finally that, you know, the judge got all mad the other day about what the prosecutors did to this guy, they ended up, you know, he ended up pleading to the most minor misdemeanor charge that they could come up with and let him go.
And what he was complaining about was, one of them was thin thread.
And I forget what the other one was.
But it was the competing programs inside the NSA for whose information to store forever and and who to what to analyze.
And they chose the more expensive didn't work as well stored everybody's everything program over the less expensive works really well.
Discard everything that doesn't matter and and move on program, you know, and then they persecuted the guy for leaking that information to the newspapers.
Yeah, you look at the efforts today.
And there's an interesting mix of kind of big brotherish efforts.
You know, I will warrantless wiretaps and you know, invasions of property, which I've covered some of daily tech to plant, you know, GPS tracking devices on people's vehicles, they can actually go on private property now and plant GPS tracking devices on people's vehicles without a warrant in many states.
So with all these kinds of kinds of things, there's a kind of curious mix of you know, the big brother mentality, but also the kind of bungling government because when you look at the US intelligence community, I mean, they have some people are very bright, absolutely.
And I think a lot of the brightest minds are you know, the ones that go to like the CIA and are trained on more the foreign nations.
But when you look at at the end of the day, they can't even secure, you know, American networks against, you know, cyber cyber attackers from China and stuff.
So, you know, you know, they could certainly listen in on your phone calls.
But the question is, how much?
How many people can they really listen into?
And how good a job can they really do at it given how bungling they are in terms of certain other cyber defense efforts and things of that nature?
We know James Bamford had whistleblowers telling him that, yeah, we'd sit there and listen to phone sex between soldiers deployed in Iraq and their wives back home.
And we tell our bosses, are you serious?
And they would say, just sit there and listen.
And this is what they were doing was tapping basically as many overseas phone calls as they could.
Well, I could believe it.
And I think a lot of you know, what may be going on again, there's the big problem here is the lack of accountability.
And another problem is just that, you know, I don't think always the people that, you know, are good enough judges to make the kind of distinctions that are needed for these kinds of roles are put in these positions.
I think a lot of the time, there probably are people that are doing like what you suggest, you know, just goofing off and, and, you know, something abusive.
But I, you know, I would say it abuse that's not like, I guess, you know, maybe not robbing you of your freedom, just robbing you of your privacy and firsthand personal way, but not on like an official capacity.
And I think, you know, there really is a curious mix of, you know, there's these provisions that give the government sort of big brother capabilities.
But then at the end of the day, when you look at the federal politics these days, basically politicians are just trying to stay in power and preserve their little, their little political kingdom.
And it's not so much about, you know, destroying the country or anything.
It's just about, they want to do whatever it takes to maintain that political power.
And that, that's a dangerous thing, but you have to also understand where they're coming from in order to, I guess, better understand the issue.
Right.
Well, and, you know, as you're saying, this is our most sacred kind of principle, right?
A man in his house, you know, this is our fourth amendment.
And it's even if they're not tapping all of our phones and reading all of our emails, it's the precedent set that, well, we can, you know, pretty much ignore the bill of rights when we feel like it.
And it's not the first precedent, you know, practiced on our fourth amendment, but it's certainly a severe one.
And, you know, it's very important that there's some kind of backlash against this thing.
I guess I was glad to read in your article that they were having any trouble sailing this thing through the Senate now, the reauthorization.
Well, I think it's part of a broader series of, I guess, erosions to the fourth amendment.
And I've written extensively on this with daily tech.
A couple of the other major ones are the fact that, that police officers, if you don't have a clear obstruction to your property, in many States, they can enter your property and plant electronic surveillance devices, such as GPS trackers, or possibly some sort of wiretap or snooping devices on your property without a warrant.
And another major erosion has been, you know, the whole monitoring of emails online.
You know, again, it takes a certain level of staff, but, you know, and a third important issue that some of your listeners perhaps are aware of is that in many, in many regions, it's actually now illegal to take videotape on your cell phone, or, you know, take a picture of a police officer performing their duties.
So, you know, because there's been all these cops that have been caught, you know, and sort of police brutality or things of that nature.
So, yeah, many police officers who are, you know, upstanding and honest individuals, and most of them say, you know, we're on the job, of course we should be able to be videotaped.
But there's a certain, I guess, extremist sort of element in the national police leadership that have worked to outlaw this.
And ironically, many of the regions that have these laws are the regions that have the highest reports of police wrongdoing or police brutality.
Regions like Chicago or Newark, New Jersey, where...
And they've gotten judges to agree with them, too, right?
And put people in prison for filming them.
Oh, absolutely.
In Newark, New Jersey, they were trying to charge a 16-year-old African-American girl with, you know, they would have thrown her in jail if they'd see all you had and stepped in, basically.
But, you know, she just...
There was a sort of drunken homeless man who was on a bus, and the police came in to remove him.
And so she, you know, took out her cell phone and instantly started recording it just to make sure, you know, the man wasn't abused or anything of that nature.
And all of a sudden, she was put in handcuffs and taken to a car.
And this is just a, you know, young girl and, you know, this kind of thing.
And you look at Newark, and there's actually an internal affairs investigation pending against them because of how many reports of police wrongdoing there have been.
Well, I'm sorry we have to leave it here, man.
We're all out of time.
But you're right, though.
And police abuse is way out of control.
I really like this site.
I like your blog, man.
It's dailytech.com.
Jason Mick.
The latest piece is, Obama administration fights to renew warrantless wiretaps.
Block transparency.
Very important.
Very good work here.
Thanks very much for your time.
Thank you, Scott.
