With folk looking to lessen their impact on the environment, the subject of burial has popped up and it makes for a very interesting discussion.

In Oz, cremation is used for 90% of burials which is a total turnaround from the early 1900’s when it was very rare not to be buried “6 feet under”. When cremation was first discussed most folk were horrified by the thought of being burnt but now the idea of being eaten by worms seems to be regarded as horrific. The “worms” option is probably a misnomer in any case, with modern caskets and the actual depth of burial making it difficult for nature to take its course.

Some new thinking on the matter has given rise to several choices.

Firstly, the carbon generated by a cremation is rated at 160 kilos while the carbon generated by a straight burial, on the day, is rated at a mere 39 kilos. On the face of it, the cremation looks to have lost the battle but the key here is the “on the day” qualifier. After cremation there are generally no ongoing costs while traditional burials have maintenance issues such as mowing the lawns. Add to this argument the new idea of the grave returning to the cemetery for re-use and the calculations get very complicated.

I wonder how they came at the 160 kilo figure for a cremation? I don’t know if it is just from the body or includes the furnace process too. Perhaps you can be atomised by a solar panel on a hot day for a more carbon friendly exit?

Secondly, the idea of being buried in a shroud and not so deep down, with a tree to grow from your remains. This offers the environment the chance of re-using your body in a much quicker time frame. Aesthetically, this will probably find some favour but no one really knows if this is any better environmentally. By the very nature of the cemetery being a bush setting, they are miles out of town so every visit, not made by bicycle, carries a carbon cost. And how does the cost work out here? What happens if a bush fire sweeps through? Does the price of internment cover replacement of trees lost through an act of God?

Probably the best carbon outcome would be to have the doctors removed the bits they need for the living, then send the rest of the body home for a shallow burial down behind the shed. With a couple of fruit trees planted on top. Aside from breaking goodness knows how many by-laws, it sounds like a marginal improvement on what they did in the Good Ol’ Days and a big improvement on recent common practice.

I look forward to seeing the new options and the calculations behind them. Hopefully I don't have any snap decisions to make before it's all clarified.

New York Times Spares McCain Embarrassment By Rejecting Op-Ed

Posted by Jason Linkins, Huffington Post at 4:03 PM on July 21, 2008.

As anyone who hasn't been living under a boulder knows by now, John McCain has always enjoyed an extra-special relationship with the press, who care for the Presidential nominee as one might nurture an orphaned lamb, doing him no end of solids. For example, even though Barack Obama has consistently led in the polls since clinching the Democratic nomination, we are told that this is Good For McCain, because according to something written on the Ancient and Illuminated Manuscript of Press Corps Conventional Wisdom, Obama should be leading by more, and his waste should smell like Springtime in Vermont. Also, when McCain visits Europe, it burnishes his Presidential pedigree, but if Obama does so, it makes him look un-American.

Now, however, the McCain camp is angry at their special friend, specifically the New York Times, because the paper of record spiked an op-ed column that McCain had prepared in response to a similar offering from Obama. McCain's surrogates are flush with outrage over this. But I've now read the piece, and it's pretty clear to me that the Times' decision, if anything, is in keeping with the press' traditional friendly relationship. The Times put bros before prose, and in so doing, spared McCain no end of embarrassment, because the op-ed is rivetingly dumb and laden with inaccuracies. None of which would have come to my attention if the candidate had done the smart thing and kept his mouth shut! But since he wants the attention, let's give it to him.

In January 2007, when General David Petraeus took command in Iraq, he called the situation "hard" but not "hopeless." Today, 18 months later, violence has fallen by up to 80% to the lowest levels in four years, and Sunni and Shiite terrorists are reeling from a string of defeats. The situation now is full of hope, but considerable hard work remains to consolidate our fragile gains.

An inauspicious beginning! Surely the last thing McCain, as an Iraq War advocate, needs to be doing right now is pointing out that four years ago, things were really horrible in Iraq, and after an Olympic season of Surge and sturm and drang, we've only managed to almost get the level of horror back to where it was when it was horrible.

Progress has been due primarily to an increase in the number of troops and a change in their strategy. I was an early advocate of the surge at a time when it had few supporters in Washington. Senator Barack Obama was an equally vocal opponent. "I am not persuaded that 20,000 additional troops in Iraq is going to solve the sectarian violence there," he said on January 10, 2007. "In fact, I think it will do the reverse."

As all "Surge" proponents tend to do, McCain overlooks a situation that was unfolding in Baghdad contemporaneously with the "Surge," namely a massive campaign of sectarian cleansing that expelled people from their homes, hardened neighborhoods, and created a massive internal displacement problem. Violence dropped as a result of the factions getting what they wanted -- the people they were killing out of their neighborhoods.

Also, isn't it time that McCain stopped getting credit for being an "early advocate" of the Surge that President Bush was going to implement anyway? I was an early advocate and a vocal supporter of all of the Washington Redskins Superbowl victories, but you don't see me asking for a ring!

Now Senator Obama has been forced to acknowledge that "our troops have performed brilliantly in lowering the level of violence." But he still denies that any political progress has resulted.

I think that when Obama denies that any political progress has resulted, it's probably because no political progress has resulted. Indeed, the "Surge" was supposed to "create space" for the Iraqi government to reach a level of functionality. What's the impediment? Well, according to a majority of Iraqi legislators, that "space" has been occupied by the occupation. They said so in the letter they sent to Congress, attesting to this:

Likewise, we wish to inform you that the majority of Iraqi representatives strongly reject any military-security, economic, commercial, agricultural, investment or political agreement with the United States that is not linked to clear mechanisms that obligate the occupying American military forces to fully withdraw from Iraq, in accordance with a declared timetable and without leaving behind any military bases, soldiers or hired fighters.

I don't know...it seems like Obama might be aware of this!

Perhaps he is unaware that the U.S. Embassy in Baghdad has recently certified that, as one news article put it, "Iraq has met all but three of 18 original benchmarks set by Congress last year to measure security, political and economic progress." Even more heartening has been progress that's not measured by the benchmarks. More than 90,000 Iraqis, many of them Sunnis who once fought against the government, have signed up as Sons of Iraq to fight against the terrorists. Nor do they measure Prime Minister Nouri al Maliki's new-found willingness to crack down on Shiite extremists in Basra and Sadr City -- actions that have done much to dispel suspicions of sectarianism.

Wow. That's a mouthful of nonsense to parse. It's not the U.S. Embassy in Iraq who's made such a claim, it's "Surge" architect and editorial-page-welfare recipient Fred Kagan who's contended that the Iraq has had benchmark success. This is a claim that CNN Reporter Michael Ware has already debunked. In truth, on benchmarks, it would be more accurate to say McCain has it precisely backwards.

Also, it's really unfortunate to see McCain citing the Sunnis here as a sign for the better, especially at a time when "the Sunni Arab guerrilla movement against the US and the Iraqi government has regrouped and reorganized, and is effectively lashing out again." And al-Maliki's "willingness" to "crack down" on uprisings in Barsa and Sadr City is mostly spirit. The flesh, on the other hand, has been weak. Al-Maliki's troops were proven unready for prime time, leaving U.S. forces to once again "take the lead" in ending the crisis.

The success of the surge has not changed Senator Obama's determination to pull out all of our combat troops. All that has changed is his rationale. In a New York Times op-ed and a speech this week, he offered his "plan for Iraq" in advance of his first "fact finding" trip to that country in more than three years. It consisted of the same old proposal to pull all of our troops out within 16 months. In 2007 he wanted to withdraw because he thought the war was lost. If we had taken his advice, it would have been. Now he wants to withdraw because he thinks Iraqis no longer need our assistance.

You'd think, of course, that had the military operation been a "success," that the rationale for withdrawal would be self-evident. At any rate, Obama's "plan for Iraq" pretty overtly stipulates that he wants to withdraw the troops from Iraq so that we might prevail over the terrorists who attacked us and who have benefited from Bush and McCain's policy of appeasement.

To make this point, he mangles the evidence. He makes it sound as if Prime Minister Maliki has endorsed the Obama timetable, when all he has said is that he would like a plan for the eventual withdrawal of U.S. troops at some unspecified point in the future.

Uhm, actually? To suggest that Obama has "made it sound" like al-Maliki has said something he didn't say distorts the fact that al-Maliki has been clearly and consistently voicing his opinion that we need for a timetable for withdrawal. And after reports yesterday that he was walking those statements back, Maliki, as of this very morning, endorsed the Obama timetable.

Senator Obama is also misleading on the Iraqi military's readiness. The Iraqi Army will be equipped and trained by the middle of next year, but this does not, as Senator Obama suggests, mean that they will then be ready to secure their country without a good deal of help. The Iraqi Air Force, for one, still lags behind, and no modern army can operate without air cover. The Iraqis are also still learning how to conduct planning, logistics, command and control, communications, and other complicated functions needed to support frontline troops.

Funny thing. You go to war because you have to stop a terrorist mastermind's powerful military from unleashing their awesome arsenal of diabolical weapons of mass destruction, and you end up staying at war because the military you defeated is no longer good for anything but a few laughs. Nothing fails like success, I guess.

No one favors a permanent U.S. presence, as Senator Obama charges. A partial withdrawal has already occurred with the departure of five "surge" brigades, and more withdrawals can take place as the security situation improves. As we draw down in Iraq, we can beef up our presence on other battlefields, such as Afghanistan, without fear of leaving a failed state behind. I have said that I expect to welcome home most of our troops from Iraq by the end of my first term in office, in 2013.

You see, when I read McCain saying things like, "A partial withdrawal has already occurred with the departure of five 'surge' brigades, and more withdrawals can take place as the security situation improves. As we draw down in Iraq, we can beef up our presence on other battlefields, such as Afghanistan, without fear of leaving a failed state behind." I think: Yes, that is Barack Obama's plan.

But McCain's endorsement of the Obama Doctrine is bookended by two inane statements. In the first place, the United States favors a permanent U.S. presence. We are, at this moment, spending many a taxpayer dollar building "enduring" bases. One such base, located on the banks of the Tigris, will be as large as Vatican City. If McCain doesn't know this, then one can hardly take him for the spending hawk he claims to be.

Additionally, it's just seems to me that if McCain wants to insist on people not criticizing him for being dotty, he's simply going to have to stop saying things like he's going to "welcome home most of our troops from Iraq" one sentence after committing them to "beef[ing] up our presence" in Afghanistan.

But I have also said that any draw-downs must be based on a realistic assessment of conditions on the ground, not on an artificial timetable crafted for domestic political reasons. This is the crux of my disagreement with Senator Obama.

Actually, it's also the crux of your disagreement with the sovereign government of Iraq, who back Obama's call for a timetable. And wouldn't you call the sovereign government of Iraq a "condition on the ground?" McCain once did!

From 2004:

Question: "What would or should we do if, in the post-June 30th period, a so-called sovereign Iraqi government asks us to leave, even if we are unhappy about the security situation there?"

McCain: "Well, if that scenario evolves than I think it's obvious that we would have to leave because -- if it was an elected government of Iraq, and we've been asked to leave other places in the world. If it were an extremist government then I think we would have other challenges, but I don't see how we could stay when our whole emphasis and policy has been based on turning the Iraqi government over to the Iraqi people."

Based on McCain's recent statements, one can only assume that McCain is now flip-flopping on the issue of Iraqi sovereignty.

Senator Obama has said that he would consult our commanders on the ground and Iraqi leaders, but he did no such thing before releasing his "plan for Iraq." Perhaps that's because he doesn't want to hear what they have to say. During the course of eight visits to Iraq, I have heard many times from our troops what Major General Jeffrey Hammond, commander of coalition forces in Baghdad, recently said: that leaving based on a timetable would be "very dangerous."

Well, Obama's got the Iraqi leaders clamoring for a timetable now. And as far as our commanders on the ground go, they've made it clear that they serve at the pleasure of the President:

CLINTON: And finally, General, if there were a decision by the President, in your professional estimation, how long would a responsible withdrawal from Iraq take?

ODIERNO: Senator, it's a very difficult question, and the reason is, is because there are a number of assumptions and factors that I'd have to understand first...based on how do we want to leave the environmental issues in Iraq, what would be the final end-state...what is the effect on the ground, what is the security issue on the ground. So I don't think I can give you an answer now, but, certainly, at the time, if asked...and we do planning, we do a significant amount of planning to make sure that an appropriate answer was given, and we would lay out a timeline.

I think that if you aren't aware of what "Commander in Chief" means, you really can't claim to have crossed the "Commander in Chief threshold."

The danger is that extremists supported by Al Qaeda and Iran could stage a comeback, as they have in the past when we've had too few troops in Iraq. Senator Obama seems to have learned nothing from recent history. I find it ironic that he is emulating the worst mistake of the Bush administration by waving the "Mission Accomplished" banner prematurely.

Of course, al Qaeda has staged a comeback precisely because we have too many troops in Iraq. And the surplus of American firepower has done nothing to prevent the expansion of Iranian influence in the region. This was made clear by one of the two Iraqi parliamentarians who traveled to the U.S. to offer testimony:

KHALAF al-ULAYYAN: And, unfortunately, now Iran is going into Iraq, and this is under the umbrella of the American occupation of Iraq.

Finally, McCain concludes:

I am also dismayed that he never talks about winning the war -- only of ending it. But if we don't win the war, our enemies will. A triumph for the terrorists would be a disaster for us. That is something I will not allow to happen as president. Instead I will continue implementing a proven counterinsurgency strategy not only in Iraq but also in Afghanistan with the goal of creating stable, secure, self-sustaining democratic allies.

Naturally, I'd have to point out that McCain has, only recently, even suggested that his administration might get back to the task of winning the war on terror, having first announced a policy of avoiding that war for one hundred years. Only now has McCain put Afghanistan back in his foreign policy profile, and McCain has no idea where the troops are going to come from to support his "Surge Part Deux."

In short, there is just not one word of that op-ed that makes a lick of sense. Far from complaining, the McCain camp owes the Times a little gratitude.

AlterNet is a nonprofit organization and does not make political endorsements. The opinions expressed by its writers are their own.

By way of disclosure, I am something of a Civil Liberties fanatic, and am firmly convinced that Obama did the wrong thing on retroactive immunity and am angry about that. Also, I haven't trusted George W. Bush since the first 10 secs I saw him speaking. He reminded me of the arrogant lying bullies who used to break my bones when I was a youngster. He set off all my alarms just by the way he talked and moved.Obama was something like my 4th choice in the primaries, ahead of Clinton.

So, I'm not an apologist for any of the current crop of politicians, and not at all well disposed towards anything that looks to weaken the rule of law, the Constitution or our civil liberties. All that being said, the brouhaha over FISA and the accusations of cowardice, lack of principles and political opportunism has started sounding a whole lot more like heat than the light of reason. A recent claim claim by Lawrence Lessig, a Civil Libertarian with a background in law made me stop and think.

[Obama's] vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.

People on the left, people like Glenn Greenwald, Jonathan Turley, Russ Feingold and Chris Dodd keep painting the recent FISA as a false compromise, a capitulation to Bush, and a blot on the fourth amendment. So why do Lessig and former Constitutional Law lecturer Obama say that it is important? Who is right?

Well either you can pick your authority figure and believe them—you pays your money and you takes your chances—or roll up your sleeves, wade into the bill and make your own decision. I never was the "argument from authority" type. So why should I pick one camp or the other?

I've been working on this posting for more than a week, and I think I have a handle on a line of reasoning that shows that the FISA amendment makes sense and may very well be a "Good Thing™". I don't find the argument compelling, but I think that it really deserves to be fully explicated, discussed and weighed, and as of yet, I think that I can respect and understand anyone who feels either that it outweighs the argument that FISA as a whole or as amended is so damaging to civil liberties and the rule of law that it outweighs the benefit or the other way around. I would really like to hear people who are passionate on both sides after they understand this reasoning.

Assumptions

There are a number of assumptions regarding the level of protection that should be afforded communications depending upon the people and jurisdictions involved. In terms of the three major combinations, the following breakdown seems to by the default assumption:

1. Spying on foreign/foreign communications is OK.
2. Intercepting US/US communications requires a warrant or constitutional equivalent.
3. Intercepting US/foreign communications is the purview of the FISA court and law
4. The location where the spying is done is not as important as who is communicating.
   

In the next couple of subsections, I will lay out each of these, at least briefly.

1. Spying is OK

Some would argue that "spying is important" or even "spying is necessary". For the purposes of this analysis, all we need to assume is that it is legitimate for the foreign intelligence services to spy on foreigners when that is in keeping with their mission, our relationship to the foreign nations involved, so long as they do so in accordance with their regulations and charter. Such spying is conducted beyond the jurisdiction of the United States and beyond the guarantees of our constitution. Thus "foreign/foreign" communication, by which I mean communications between two people, neither of whom is a "US person", should not be controlled by US warrants or restricted by Constitutional rights. International laws may apply.

It is certainly possible to disbelieve in spying, but we have done foreign spying for a very long time and the foreign intelligence services have always been unencumbered by the US courts and Constitution, so long as they were operating outside the US and the subjects were foreigners.

2. US/US requires a warrant

On the other hand, spying on Americans in America requires a court order. In essence, whenever the US Constitution is the ruling law, Warrants are required, otherwise it is "unreasonable search and seizure". The simplest version of this is communications between two US citizens, in the US, but resident aliens in the US are by  precedent also protected by the Constitution. The term "US persons" is used in many laws as a shorthand for US citizens, US resident aliens and US corporations, since corporations are generally treated as "persons" in US law at present. For the purposes of FISA, "US person" is defined as follows:

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

The requirement for warrants is a fundamental right in America, and the Constitution specifically limits the power of the government within its jurisdiction. There are certain questions about where the Constitution holds sway, but it at the very least applies within the sovereign jurisdiction of the United States and in all dealings between the US government and US citizens regardless of location.

3. FISA controls US/foreign surveillance

One may think, either as a civil libertarian or as a proponent of a strong federal executive that FISA in principle is bad law, but since 1978 in order to balance the government's legitimate foreign intelligence interests with the need for judicial oversight, FISA has been the law. It's basic charter is to control spying that occurs between US persons and foreign powers or agents. The simple Wikipedia summary of FISA is pretty much in keeping with my understanding and reads as follows:

The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed warrantless surveillance within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.

In short, if no US person is involved, even if the surveillance occurs within the US, assumption #1 applies, if a foreign agent power and US person are both involved, a FISA order is required. If not foreign agents or powers are involved, assumption #2 rules. FISA arose because the line between all-foreign and all-US can be blurry. FISA adds assumption #3 as the middle ground.

4. Location is now unimportant

When the mindset behind FISA was formed, location was pretty much static. If you were spying on two foreigners who were outside the US, you pretty much could be assumed to be outside the US. If you were listening to the conversation between two Americans who were inside the US, then you were probably there, too.

Today, this is less true. Main communications lines are often centered in the US and communications between foreign locations can often be picked up in the US. Similarly, Internal US communications may very well travel outside the US en route. It is generally assumed that this shouldn't change the situation vis a vis rights and Constitutional protections. The US government shouldn't be able to spy on Americans who are in America just because the act of spying occurs outside the US. Likewise, if traffic between known terrorists in Pakistan and agents in Spain happens to flow through the United States, the CIA should be as free to spy on it would have been if the bits/electrons had never crossed over our borders.

This is at the heart of the "FISA must be modernized to keep up with technology" argument that you often hear. And generally, I think that it is correct. The rights and protections should be determined primarily by who the actors are and who the subjects are, and secondarily where the subjects are located. Anything done in the US or to Americans must take the Constitution into account. From an ethical perspective we might like to say that, just for instance, all people are created equal and are naturally endowed with certain unalienable rights, and so the US Constitution should protect the rights of all of humanity everywhere. There are,however, myriad practical and political problems with that view.

What is "private"?

Beyond jurisdiction, the other thing that determines the legality of information gathering is the question of privacy. Gathering public information is merely being well informed. Gathering private information is spying, or at least searching. And so the notion of an "expectation of privacy" enters the picture.

Current law holds that while the content of electronic communications such as phone calls and emails is generally protected (where US Constitutional and other protections apply), the addressing of the messages are not. The court generally has held that the average citizen has less of an expectation of privacy regarding the numbers called than regarding what is said. The address and return address on a postal envelope along with the postmark information is even less protected.

In the purely telephonic days, the devices that were used in this area were "pen registers" and "trap and trace devices". Pen registers recorded the numbers that a phone dialed. Trap and trace devices could determine and record the numbers from which incoming calls originated. These concepts have been adapted to digital messaging and networking. Thus, capturing and recording the addresses that computer traffic flows through is less protected than examining and recording the content of the messages.

This brings us to the illustration of the post card that accompanies this article. Most Internet traffic isn't encrypted, and the address and data portion of a network packet are the same sort of things. In many ways, it is as if mail was accomplished with postcards rather than envelops. Imagine if you will, that the law applied to the information on a postcard the way it does to the Internet or phone call. Without a warrant, it is OK to capture and record the address and return address and the postmark information, but not the text.

Further, let us apply our assumptions above. If the sender and recipient are foreign nationals, operating outside the US, then it is OK for the intelligence services to read the whole postcard, but if either the sender or recipient is a "United States-person", then a warrant or other authorization is required. One can envision a peculiar device that covers the left half of the card or the handwriting on the left, exposing the printed return address, scans the address and postmark and determines the identity and location of the sender and recipient, compares that with suitable records and makes the decision as to whether the hidden portion can lawfully be photographed and recorded.

Mr. Kringle is a native of the North Pole, territory claimed by the Russians. Records show that the postcard arrived on a plane from Canada, but the postmark shows that before that it was mailed within the US. Young Mr. Dough is a US-person, possibly a US citizen. Before such phrases as "keeping a little list" and "fellow travelers" can be used as evidence that Mr. Kringle is a "Red", Mr Dough's rights must be accounted for.

My fanciful steam punk postcard scanner is actually not all that fanciful. It is rather analogous to the sort of software you would need to use in order to capture email. Email messages are just streams of bytes organized into packets and messages according to a whole hierarchy of standards and protocols, and the way that the addresses are encoded is not particularly different from the way that the message content is. In the outer couple of protocol layers,IP addresses are encoded in binary, but the to and from fields of an email message are encoded in exactly the same sort of human readable text as the body of the message. The most simple minded search programs that you could use to search an email stream could readily scan unprotected addresses and protected contents with equal ease.

To implement the intent of our laws, that foreign/foreign messages can be scanned, searched and recorded by our intelligence services, without a warrant or the involvement of the courts, but insure that US/US email requires an ordinary warrant and US/foreign-agent email can be handled in accordance with the FISA law, a moderately intelligent and carefully crafted program needs to be used.

Basically such a device would consist of a "pen register" to determine who the message addressed to and a "trap and trace device" to determine where it came from. An analyst or analytical engine of some sort then determines if at least one "US person" is involved, and if any foreign agents are involved. If both are "United States Persons", then a list of applicable warrants determines if the contents can be saved or analyzed. If no US person is involved, then the message can be freely analyzed. If a mixture, then a check for the FISA process must be made.

Any system for scanning the Internet trunk feeds that we have access must be very carefully controlled. The software wants to be carefully designed and implemented, and the people operating and maintaining it must be carefully vetted. The policies and procedures for authorizing and monitoring its use must be carefully written and and enforced with appropriate oversight.

Personally, if I were with the federal government, my approach would be to split the trunk and send the duplicate feed into a highly secured room, control who had access to that room, staff it only with people who had serious background checks, make sure there was a field manual and oversight. Given their charter, the combination of technology and surveillance would suggest that the NSA be the agency chartered to handle this. I'm thinking it would look a whole lot like the whistle-blower described. The question is can the feds be trusted? Given my  dedication to civil liberties and my view on the lawless behavior of the current administration,  I'd have to say, no, not in the current instant. But that doesn't mean that no US Attorney General and no National Security Adviser can be trusted. It just means that we know that they can't all be. We have illustrative examples.

Now a bunch of Senators, Representatives and the odd Presidential candidate probably have more faith in the notion that the federal government can be structured and run in a way that is trustworthy. In the end, most of us trust ourselves and some fraction of folks like us. So, with that in mind, how does the recently passed FISA amendment stand up?

What is the new FISA?

While working on this posting I've read Title I of the recently passed FISA amendment bill a couple of times and tried to chart out the differences. While doing so, I came across someone who has done the same thing and published his completed flow chart of the original and amended FISA, skipping the short-live Protect America Act. Let's have a look at his analysis along with the actual text. The original article can be found on Wes Walls' blog Ketchup and Caviar. Here are the two flowcharts:

In his analysis, Wes says:

"The focus of change is the bolded red line marked “U.S. or non-U.S. Persons Located Inside or Outside the U.S.” Currently a warrant is required in this case. Notice the changes involving the bolded blue lines and text in the [second] chart. What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but “certified”) wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted."

I would have worded the change differently. What I would note is that the upper middle section of the flowchart changes from being based on location (the one rounded corner box and the three red lines) to a simpler pair of boxes based on whether any US person is involved. As a result, there is now a relatively simple three way decision regarding foreign surveillance. (Note that there is a fourth case, the "normal" one: If no foreign agents are involved, surveillance requires an ordinary warrant.)

1. If any US person is involved or the communications is domestic, a FISA warrant is needed
2. If no US person is involved, the communications is email or over cables, a special "Certification of Mass Acquisition" is available.
3. Otherwise, no warrant is needed when no US person is involved.

Paths 1 and 3 represent the simple cases. One no US persons are involved and the communications is foreign, the foreign intelligence services are unencumbered by US law (#1). Generally, if the foreign intelligence services want to spy on Americans or in America, then a FISA warrant is needed (#3). One exception for this is allowed. Spying on electronic communications of non-US persons outside the US by means of surveillance inside the US can be done under the new "Mass Acquisition" process. Note that this is specifically the case where communications that is fair game to our spies is embedded in a system that is known to contain protected US communications that is not targeted. (This is pretty much my case where the combination of a pen register, trap and trace device and analytical engine can be used to separate the two.)

And that brings us to the blue box in the bottom right. Here's what Wes has there:

1. Is the target reasonably believed to be located outside the United States?
2. Is the purpose of the targeting to acquire foreign intelligence information?
3. In the particular case, will "minimization procedures" adequately balance the privacy of US citizens against foreign intelligence needs?
4. Will there be a good-faith effort to avoid domestic targets and domestic communications? Will other limitations be observed?

I've removed the struck out text and the pointer to part II of David Kris's "A Guide to the New FISA Bill". I will address these shortly.

Questions #1 and #2 basically reiterate the decisions that got us through the flow chart to Mass Acquisition. The new act's jurisdiction has gone from searches involving a "foreign power or agent thereof" to focusing on non-US persons outside the US (question #1). This is actually a good thing for the civil liberties of US persons, since as previously defined, a foreign agent could be a US person working for a foreign power. The question now is just "US person or non-US person". Without the struck out text, question #2 is basically a restatement of part of the logic that got us to this section. It becomes "Is the purpose of targeting [foreign communications between non-US persons believed to be outside the US by capturing traffic within the US] to target foreign intelligence information?"

With Question #3 we get to the heart of the issue, the "minimization procedures". These are spelled out in the bill in section 702 e, as follows (via OpenCongress):

(e) Minimization Procedures-

1. REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
2. JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

Section "301(4)", mentioned in #1 refers to physical surveillance, so the relevant section is 101(h), as follows (via Thomas):

(h) “Minimization procedures”, with respect to electronic surveillance, means—

1. specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
2. procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
3. notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
4. notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

In essence, this is the requirements document for the pen register, trap and trace device and analytical engine device. Where as question #3 is "will the procedures be adequate?", question #4 is "will a good-faith effort be made to see that they are applied?" Two changes in the law would seem to attempt to speak to this question.

First, throughout the document, things that used to be the purview of the Attorney General or "the Attorney General or the National Security Advisor" are now "the Attorney General and the National Security Advisor" or at least "the Attorney General with the advice of the National Security Advisor". This doesn't guarantee the good intentions or competence of the two people, but it at least requires the collusion of two Senate approved officials, and one can see why the Senators might want that.

Second, the bill explicitly states in a number of places that the actions taken "shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." This may seem frivolous. After all, all US laws must be consistent with the Constitution, and no federal action may legitimately violate Constitutionally protected rights. However, the inclusion of this specific proviso in the FISA law means that violations of the 4th amendment in carrying out these procedures is not only a violation of Constitutionally protected rights, with all that entails, but a federal crime under this statute as well. This provides an additional means of prosecution.

It remains to be seen whether these changes will have the beneficial effects that the Senators and others who support it hope, but I begin to see why they might think that this is an important improvement to the FISA laws. It

• brings all foreign surveillance under this law
• aligns the law with the jurisdiction and protections of the Constitution
• requires explicit procedures be defined for winnowing protected US communications from unprotected foreign communications
• makes the AG and NSA jointly responsible
• requires review
• makes explicit the criminal nature of stepping outside this law or the Constitution
• increases senate oversight
• makes explicit the grounds for criminal proceedings

While it may be argued that this law can be abused, that the government can use it as cover for domestic surveillance, the law explicitly addresses that. The law makes it a crime to target any of the following (from section 702(b)):

(b) Limitations- An acquisition authorized under subsection (a)--

1. may not intentionally target any person known at the time of acquisition to be located in the United States;
2. may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
3. may not intentionally target a United States person reasonably believed to be located outside the United States;
4. may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
5. shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

Making it a crime doesn't stop it, but it does give us a handle for dealing with it.

In the end, given the need to balance the Constitutional protections of US persons and anyone in the US with the need to allow the foreign intelligence services to spy on foreigners overseas, and the facts of the mingling of foreign and domestic traffic and that email is more like postcards than letters in envelopes, I am left wondering  what alternative there is other than a law something like this one.