Articles by Tim Lee

The Honorable Peter Hoekstra has taken to the august (virtual) pages of National Review to further muddy the waters of the debate over Joe Klein’s column. It would take a lot more time than I’ve got to untangle all the distortions and obfuscations of his arguments, so let me just jump to his particularly egregious concluding paragraphs:

It’s hard to imagine General Eisenhower going to court to ask for permission to conduct the D-Day invasion on the off-chance Americans might be on the beaches of Normandy. Yet this is exactly what Democrats want to force Admiral McConnell to do to conduct terrorist surveillance.

At the end of the day, we should be honest that this is not a legal debate, but a political one. It highlights the fact that Democrats believe that lawyering-up foreign intelligence to guard against every imagined or potential civil-liberties concern is more important than ensuring that we have the full capability to conduct quick and effective surveillance of foreign al-Qaeda targets in foreign countries. I’ll welcome that debate anytime.

Now, in the first place, absolutely no one is proposing that the FISA court have jurisdiction over wiretapping activities that occur overseas. If the US Army wants to tap an Iraqi cell phone tower, or if the CIA wants to tap an underseas optical cable outside of the US territorial waters, neither the current FISA law nor any proposed changes would require court oversight of those activities. So the Eisenhower hypothetical is a total non-sequitur. Unless General Eisenhower somehow needed to tap American phone lines in order to carry out the D-Day invasion, none of the bills under consideration would have had any effect on his activities.

He says he’s worried about the ability to “conduct quick and effective surveillance of foreign al-Qaeda targets in foreign countries.” But the only time the Restore Act would require judicial scrutiny of “surveillance of foreign al-Qaeda targets in foreign countries” is when that surveillance requires ordering American telecom companies to install wiretaps on American soil, and when one end of that communication is likely to be on American soil. That’s a tiny fraction of our foreign intelligence-gathering activities, and so the Restore Act would place a correspondingly small burden on the executive branch.

Finally, when Hoekstra talks about “lawyering-up foreign intelligence,” he neglects to mention that every single proposed bill, the Restore Act included, expands the executive branch’s ability to engage in warrantless surveillance and restricts the courts’ oversight role compared to the status quo. Nobody is “lawyering up” anything. The debate is between Democrats who support only modest reductions in judicial oversight and a White House that is demanding the complete emasculation of judicial oversight of domestic-to-foreign eavesdropping.

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Wow. Here, in its entirety, is Time’s “correction” to Joe Klein’s error-ridden column on the Restore Act:

In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would allow a court review of individual foreign surveillance targets. Republicans believe the bill can be interpreted that way, but Democrats don’t.

Glenn Greenwald gets this exactly right:

Leave aside the false description of what Klein wrote. He didn’t say “that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would allow a court review of individual foreign surveillance targets.” He said that their bill “would require the surveillance of every foreign-terrorist target’s calls to be approved by the FISA court” and “would give terrorists the same legal protections as Americans.” But the Editor’s false characterization of Klein’s original lie about the House FISA bill is the least of the issues here.

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Ryan Singel points out even more problems with Joe Klein’s follow-up post on his train wreck of a column:

In his two follow-up blog posts, Klein compounds his errors and valiantly argues he is right that the Dems are coddling terrorists because a bill passed by the House says that if the NSA targets a foreigner or group of foreigners who will likely communicate with someone inside the United States, the spies need to get court approval.

Klein says this gives foreign terrorists the same rights as Americans.
But, this restriction is only true when the nation’s spies are wiretapping fiber optic cables, telecom switches and web mail providers INSIDE the United States.
Klein continues to miss this most crucial distinction in the debate, which is why THREAT LEVEL, paraphrasing Klein’s column, continues to believe that Klein is well beyond stupid. He’s dangerous.

Outside the United States, such wiretapping isn’t even defined as surveillance and it never has been.

If the NSA is listening in on cell phone calls in Iraq, they don’t need a warrant nor do they need court approval of their techniques.

If the Iranian cell phone user they are listening in on calls an American, they don’t have to stop and get a warrant. Instead they follow long-established minimization procedures that disguise the American’s name, unless there’s a good reason not to.

Wiretapping inside America is the whole reason various bills are being debated. After a secret spying court decided last spring that the government’s wiretapping inside America without having particularized warrants was illegal, the Administration began pushing for new powers from Congress. The administration then scared Congress into rush passage of a bill that massively expanded the government’s spying powers outside and inside the United States, without any real expansion of oversight.

But Klein can’t grasp this simple point, which may be why he defends himself by saying that bills are hard to read and details are unimportant

I can write half-baked articles about subjects I don’t understand. Where’s my Time column?

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