Sleight-of-Hand Trick

Now we know why the White House has recently gotten its panties all in a bunch to get FISA changed.

A judge has ruled that an important part of the U.S. COMINT program is illegal.

But there is a deception story being floated by the administration involving this "revelation."

A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration's wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president's spying powers.

House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court's decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision. ...

The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA). ...

Gaining access to the foreign communications at issue would allow the NSA to tap into the huge volume of calls, faxes and e-mails that pass from one foreign country to another by way of fiber-optic connections in the United States.

"If you're calling from Germany to Japan or China, it's very possible that the call gets routed through the United States, despite the fact that there are geographically much more direct routes to Asia," said Stephan Beckert of Telegeography Inc. ...

Since March, the administration has quickly tried to build a case for the legislation, while concealing from the public and many in Congress a key event that appears to have driven the effort.

Do not be fooled by the administration about this. The spying being discussed here is not one of the important aspects of the extra-legal NSA domestic warrantless program that has brought the heat down upon the White House.

Intercepting "foreigner to foreigner while both outside the USA" communications has never required a FISA warrant and is not illegal.

The routing of so much of this traffic through the United States is not just an accident of technology. It is a marriage of convenience. The intelligence community assumed that it would be able to take advantage of their traditional legal ability to spy on foreigners and that building the modern telecom backbone in the USA and using it for international transit traffic would make their lives easier.

A judge obviously thought otherwise.

The politics of this "revelation" is important. The White House is already conflating this matter with the illegal NSA CATCH-ALL program that was exposed by the New York Times in December 2005. Sleight-of-hand always requires something in the decoy hand. Todays news is the decoy.