Tuesday, January 31, 2006

NSA's unwarranted surveillance

secret agentI'm still trying to figure out exactly what the NSA has been up to in its surveillance of cross-border communications involving U.S. persons and, in particular, why exactly HRH George II decided he needed to transcend U.S. law instead of simply proceed through the U.S. Foreign Intelligence Surveillance Act (FISA) courts to do it or, if necessary, seek an amendment to the FISA. (Those who have been living under a rock, or maybe in a cave near Tora Bora, can find some background on the controversy at the Wikipedia NSA warrantless surveillance controversy page; more information on the legal aspects of the issue is available here.)

Like its southern counterpart, the Canadian government also concluded that the laws governing interception of cross-border communications presented problems following The Day That Changed Everything (tm). Canada, however, chose to enact changes to those laws in Bill C-36, the omnibus Anti-Terrorism Act. (Wesley Wark had an interesting commentary on the two countries' differing approaches in last month's Globe and Mail: How do we keep Big Beaver at bay?, Globe and Mail, 22 December 2005.)

The two countries' legal situations were not entirely parallel. NSA already had the ability to conduct intercepts by obtaining (beforehand or up to 72 hours after the fact) a warrant from the FISA court, while CSE claimed to have no legal means of conducting cross-border intercepts. This claim ignored the fact that a CSIS Act warrant could indeed provide CSE authority to conduct surveillance of cross-border communications to specific individuals or locations. But the CSIS Act does not provide for the monitoring of whole classes of targets or activities or for retroactive authorizations, so it was not suitable for live, up-to-the-minute broadband trawling or similar monitoring operations. Presumably, the system of ministerial authorizations created by the Anti-Terrorism Act does provide for some such capabilities.

CSE's oversight watchdog, CSE Commissioner (and former Supreme Court justice) Antonio Lamer, considers the ministerial authorizations established by the Anti-Terrorism Act to be "a strange sort of creature." But they do establish a firm legal basis for CSE's monitoring practices, in sharp contrast to the "Laws? Laws? We no need no stinking laws!" approach of the Imperial Presidency down south.

All of which makes it a little strange that our parliamentarians were told way back in 2001 that the U.S. already had its legal authorities all sorted out:
The limitation that now exists creates a serious gap in Canada's intelligence capacities. It is a gap that, amongst our allies, is unique. Our key partners, the United States, the U.K., Australia, and New Zealand, already have legal frameworks in place that allow them to collect this kind of intelligence. Our inability to do what they can now do makes us a weak link in our collaborative intelligence efforts against terrorism. (CSE Chief Keith Coulter, Testimony to the Standing Committee on National Defence and Veterans Affairs, 29 October 2001.)

Interestingly, in Coulter's 4 May 2005 testimony to the Subcommittee on Public Safety and National Security, this claim was changed to the much less specific "By the time the events of 9/11 took place, all of CSE’s key international partners – the US, Britain, Australia and New Zealand – had already found ways to deal with this issue" (emphasis added).

Way to correct the record.

The Canadian experience raises another interesting issue. The U.S. Department of Justice stated in a 22 December 2005 letter that President Bush could not ask Congress to amend the FISA because "any legislative change... that the President might have sought specifically to create [the monitoring program] would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities." Are we to conclude, therefore, that Canada's legislative changes spilled the beans? Speaking personally, I'm more inclined to believe that W and his gang were just talking out of their asses again.

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