Much has been made of the Rasmussen poll on NSA surveillance I cited yesterday — from the timing of the poll (which, because polling was done over the holidays, would tend to hurt Republicans) to the absence of the word “warrantless,” which formulation would’ve advanced the New York Times and attendant media’s framing of issue moreso than the NSA / Bush framing (on which more to follow).
Reaction on many left-liberal sites understandably focuses on the omission of the word “warrantless”; and here, our very own progressive commenter MF offers a few alternative questions that would most certainly produce a different set of poll results (at least three of which, however, rely on hypotheticals that don’t match the official descriptions of the program).
To revisit what we know of the program thus far, I’ll requote from the original news sources. From the New York Times, here’s how General Hayden describes the program:
At a news conference at the White House on Monday, General Hayden also emphasized that the program’s operations had “intense oversight†by the agency’s general counsel and inspector general as well as the Justice Department. He said decisions on targets were made by agency employees and required two people, including a shift supervisor, to sign off on them, recording “what created the operational imperative.â€Â
An intelligence official who was authorized to speak only on the condition of anonymity said, “It’s probably the most scrutinized program at the agency.†The official emphasized that people whose communications were intercepted under the special program had to have a link to Al Qaeda or a related group, even if indirectly […]
[…] officials who have been granted anonymity in describing the program because it is classified say the agency’s recent domestic eavesdropping is focused on a limited group of people. Americans come to the program’s attention only if they have received a call or e-mail message from a person overseas who is already suspected to be a member of certain terrorist groups or linked somehow to a member of such groups. And the agency still gets a warrant to intercept their calls or e-mail messages to other people in the United States.
And here’s President Bush:
I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates. That’s important. So it’s a program that’s limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa. So in other words, this is not aâ€â€if you’re calling from Houston to L.A., that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.
Again, from the NYT:
A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.
[…] questions about the legal and operational oversight of the program last year prompted the administration to suspend aspects of it temporarily and put in place tighter restrictions on the procedures used to focus on suspects, said people with knowledge of the program. The judge who oversees the secret court that authorizes intelligence warrantsâ€â€and which has been largely bypassed by the programâ€â€also raised concerns about aspects of the program.
The concerns led to a secret audit, which did not reveal any abuses in focusing on suspects or instances in which purely domestic communications were monitored, said officials familiar with the classified findings.
Finally, here’s the New York Times on what amounts to traffic analysis:
The government’s collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.’s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic “switches,†according to officials familiar with the matter.
[…]
The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.
In each of these formulations, we see that “warrantless wiretaps on American citizens” is misleading (is the US person a particular target? How did s/he come to be a target? If one side of the communication is overseas, does such an activity require FISA protections, or is the involvement of the US person, provided s/he is not the primary target, considered incidental under the applicable statutes?); which is why I think the formulation of the Rasmussen questions remain fairly true to the issue, though perhaps the question could be adjusted thusly: “Should the National Security Agency be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States without first applying for a warrant?”
As others have noted, 68% of those polled say they’ve been following the story closely, which would suggest, to me at least, that in those cases the “warrant” question would be moot; at the very least, we’d need to know how many of those who responded simply assumed the President had he authority to issue orders for warrantless foreign intelligence surveillance that took place entirely overseas. Another interesting question would be to ask about a willingness of those polled to trade their perceived right to privacy on international phone calls for national security surveillance.
And of course, “warrantless” searches of American citizens should be placed into some sort of perspective.
A reminder about the current state of the law, from the 2002 FISA Court of Review ruling:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.
And the language in the definition of electronic surveillance as pertains to FISA:
the acquisition … of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes…
****
see also, my earlier response to Glenn Greenwald (as pertains to Youngstown; and then there’s the question of whether FISA even legally applies given the logistics of the program, from what we’ve been able to gather from news reports and official statements [see p 1501 and beyond]; the DoJ legal argument; legislative history of FISA)
****
Incidentally, Mahablog has managed to take this away from my many posts on the NSA story:
Who cares if the President is running the Constitution through a shredder, as long as it’s hurting Democrats?
More of that vaunted “nuance” from the reality-based community, I see.
I invite you to judge for yourself. My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.
****
related items from Tom Bevan at RCP, A Blog For All, and Decision ‘08
If one more NSA post pops up on this page, I’m going to lay down in traffic. Is it just me or are the sensible folks beating the piss out of a dead horse here.
War + President = wiretaps to collect intel
Seems logical enough to me. I just don’t understand what it is about this kind of intel gathering that people find so offensive. As a matter of fact, I don’t understand why people aren’t relieved to hear that this has been going on. Christ on a bike!
No hotlinks at the end of your post. [was adding them; fixed now – ed]
Dear God.
That Maha post is the most idiotic thing I’ve seen since the last Eleanor Clift appearance on McLaughlin.
Since he translated you so well, Jeff–I’ll translate him:
“Bush is a totalitarian dictator. Really. NO, I’M NOT KIDDING.”
Oh–and our spying at the UN is for political purposes. All the other countries who spy there do it for interesting dinner conversation. There agin, that part was from the Guardian, so consider the source.
From the details that you provided above–here is the portion that knocks the stupid feather that the left thinks is a sword out of their hands:
I emphasized differently than you.
Yeah, that’s some Gestapo/KGB/Rove mind ray thing going there.
You know, instead of debating this issues with liberals, I just go directly to a brick wall and knock my head against it. Really, it’s less painful.
t/w: However, I do believe it’s gonna leave a mark.
Knocking their heads against the wall would be even less painful.
Maybe this scandal will end up harming the public perception of the Democrats. But maybe the Democrats will drag a few Republicans onto their side. I read that Senator Spector wants hearings. Chafee and cry-baby Voinovich will see a way to get in front of a camera again. Who knows what McCain will do. Then voila, a bipartisan Senate “majority” is “for” civil liberties. The NY Times will continue to pound away. Few outside the blogosphere will hear the facts. There’s really no reason this can’t be as big as Iran-Contra if the Democrats keep pushing.
I remain baffled by the outrage over these alleged “warrantless searches.” Warrantless searches are common in America, and for much less important reasons. From random drunk driving stops, to the IRS searching your bank records, to Customs looking through your luggage, to the countless outrages of the TSA, such searches have been commonplace for decades.
This has reached “Bush lied” status.
No amount of facts will change any “minds” on the left.
The party has been hijacked by silly, ignorant people who say silly, ignorant things.
They won’t change as they can not change.
Per the topic:
International communications are not protected by the 4th amendment or FISA and never have been. If one end of the communication takes place outside US borders, then that communication is “international†and fair game for the NSA under USSID 3, 18 and US Code Title 18.
Good points Toren, and I’d add Carnivore to the list which I believe was implemented under a Donkey’s watch.
But only because I like to give the FBI’s computers something interesting to read every once in a while.
As to the first sentence, the fact the Bush has promptly and aggressively defended the program suggests that others will hear the facts. The MSM can’t ignore the POTUS entirely. Plus, there’s talk radio. Plus, there’s cable which—even aside from FNC—has to fill a 24/7 cycle.
As to the second sentence, Iran-Contra occurred before the MSM started into its decline. And even then, Ollie North (regardless of my opinion of him) ended up making Congress look bad. And the hearings screwed up almost all of the I-C prosecutions. And GHWB got elected in ‘88. And the Sandanistas are still out of power.
That being said, I don’t think this becomes as big as I-C. The Rasmussen poll shows a big majority already figured this was being done (and they have some basis for that opinion, in light of the Echelon program). Despite the ALL-CAPS OUTRAGE of the Left, there’s really not much shock value here to most of the public. I suspect the average apolitical person is not going to think that some NSA agent accidentally hearing their gossip with an friend or relative outside the US is more harmful than some terrorist taking down the Brooklyn Bridge.
Ah, the old “Bush is running the Constitution through a shredder” meme. I find that it goes well with some plastic turkey and a nice, dry white wine.
The only poll that matters is the one inside the beltway (in Washington D.C.) Remember the official Democrat congressional plan is to deny, delay and denounce. This is a perfect opportunity for them to obstruct the congressional Republicans. The Democrats will be “protecting the public”. The Senate won’t do anything else for months. All the Democrats really need now is a poster child whose civil liberties were denied. THEY CAN MAKE ONE UP! Have you forgotten the two most important facts about creating a scandal? 1) facts don’t matter and 2) repetition beats reasoning.
Jeff:
Thanks for the shout-out in the main post, but this formulation…
…is unsatisfactory for a number of reasons.
First, the FISA judge exists precisely to ensure that the person, on the other end of the phone and outside the country, is a “terrorism suspect.” I’m sorry, but the simple fact that a number of people within the Executive Branch have stated this to be the case is not dispositive. If thei assertions alone ended the discussion, there would be no check in place to ensure that the Executive Branch is not playing us. Our government does not operate on trust. The FISA judge is there to make sure that each and every time surveillance is authorized, there’s a terrorism suspect involved. You can’t skirt past that by simply asserting that the people on the other end are, were, and forever will be “terrorism suspects.”
Also, look at the formulation that you bolded:
What does “certain terrorist groups” mean? Certainly Al Qaeda would apply. Would Hamas? What about the PA? Basque separatists? IRA? What about conversations between PETA members in the US and Canada? Surely the AUMF didn’t cover PETA, right? I mean, do you see the problem with allowing the President to define the scope of his powers, merely on his say-so, without any judicial oversight at all?
Also, what does “linked somehow” mean? Two degrees of separation? Three? If Terrorist X in Iran calls brother Y in Yemen who calls cousin Z in Syria, and then Z calls US citizen, is US citizen “linked somehow”? Can all of US citizen’s future calls to his relatives abroad be tapped without a FISA court order? Does Bush get to decide what “linked somehow” means? Who’s to stop him from expanding that to include all Muslims naturalized within the last 5 years? 20 years? All Muslims period? These concerns are amplified by the fact that the program is administered in secret. So we’d basically be depending on the balls and goodwill of a whistleblower to know if the President is abusing his powers. That can’t be correct.
Back to your proposed question:
Second, it’s not just “people living in the United States,” it’s American citizens. There’s a material difference.
Third, “without first applying for a warrant” is misleading. “Without ever applying for a warrant” is a better formulation; “without a warrant or court order” is the most neutral. (The President, under FISA, can spy for 72 hours without first applying for a warrant, but you know that.)
Fourth, the question isn’t normative, i.e., should the NSA have the authority to do this. (Although that’s a fair question, one that should have been addressed to Congress as soon as practicable after 9/11.) The question is positive, i.e., did Bush have the authority to do this. And it seems clear to me, having read and re-read the Administration’s legal arguments, that Bush did not.
Whether I’m correct, and if so, what that ultimately means, will depend on Congress (and, to a lesser extent, the courts).
I’m sorry, but the simple fact that a number of people within the Executive Branch have stated this to be the case is not dispositive.
Only when you are ignoring the DOJ, NSA IG, and Congressional reviews which you obviously are.
Ace:
Come on. DOJ is a part of the Executive Branch. No Congressperson has, or could have, any reasonably certain knowledge about how the Administration goes about identifying “terrorist suspects” and those who are “linked somehow,” nor could they possibly know if the Administration is doing what is says it is doing when it briefs them in secret. Once again, that’s why the FISA judge exists.
As far as the NSA IG goes, despite having statutory job security the IG is the quintessential example of the whistleblower with balls we’re relying upon to make sure there’s no funny business. I refuse to accept that one man’s goodwill alone is the sole check to ensure that electronic surveillance isn’t being abused. That’s just not how the system is set up.
My brother tried to explain this to me three years ago and I thought he was nuts at the time: Democrats are trying anything they can to impeach Bush as payback for the Clinton impeachment.
Today, it’s as obvious as the wetness of water or the blueness of the sky. The left was humiliated during the Clinton impeachment, and their subsequent lust for vengeance has left them insusceptible to reason and owners of a previously unknown level of political bad faith and unseriousness. It’s now quite clear that if the Republicans had managed to successfully elect Mother Theresa in 2000, the Democrats would be feverishly working 24/7 to discover some technicality, anything, on which to base articles of impeachment. It’s sad really, and it has essentially left a very large bloc of Americans without legitimate political representation.
yours/
peter.
Although I have been trying to follow all of Jeff’s posts and comments on this issue, I haven’t seen a focus on what I think is the dispositive issue with respect to the legal aspect of these intercepts: whether either of the participants of the communication have a “reasonable expectation of privacy” in the contents of their conversation. It is this expectation that triggers the 4th Amendment and the need to obtain a warrant. It would be reasonable, using Bush’s example, for the participants of phone call between Houston and L.A. to reasonably expect that their conversation will remain private and will not be intercepted by their government without a warrant based on probable cause. However, no such expectation of privacy would be reasonable if the phone call was between Houston and, say Tehran. No reasonable person would be free to assume that the government of Iran would not decide to monitor or intercept the communication. As such, any participant in such an international conversation would have no expectation of privacy, since once the communication is transmitted outside the United States, all bets are off. If you, as an American, are having a conversation with someone in a foreign country, especially one hostile to our interests and/or a harborer of terrorists, you would be a fool to expect your conversation to be private.
How is a judge better qualified to determine this than the NSA intelligence professionals? Why should a judge have the final say in what is reasonable?
I refuse to accept that one man’s goodwill alone is the sole check to ensure that electronic surveillance isn’t being abused.
And there is the crux. But why not say what’s really on your mind and substitute “one man’s” with “George Bush’s”?
After all, when you were in the Gas ‘n Sip buying that cock pump, the only thing standing between you and that surveillance video being plastered all over the internet was the clerk’s goodwill. Of course, you’re a lawyer who knows how to bend the law to your purposes, so I’m sure you’d have that clerk’s ass pretty quickly and completely.
So, if the President plasters some poor granny’s conversation about her IBS all over the internet – would he have to face consequences as well? I hope not, cause I know he really wants to do that, and I say let him have his outlets. Besides, the web suffers from a severe lack of Irritable Bowel Syndrome material as it is.
angler- you raise an excellent point.
Come on. DOJ is a part of the Executive Branch. No Congressperson has, or could have, any reasonably certain knowledge about how the Administration goes about identifying “terrorist suspects†and those who are “linked somehow,†nor could they possibly know if the Administration is doing what is says it is doing when it briefs them in secret
We get it.
You don’t like Bush
We get it
Which in no way means what you’re posting is fact, significant, or true.
Your positon is:
Because I say so
Y’know, I finally figured out what MF is driving at, and I had to stop and give thanks to God that I did not have (1) MF within ten yards and (2) a .45 automatic in hand before I could post.
What MF is ultimately after is trials, complete with delaying motions, perp walks, Ramsey Clark, and the whole circus. If somebody—CIA, BSD, Surete, doesn’t matter—finds Abdulhassan al-Fallujah and half a dozen friends amid a pile of plastic explosives and AKs, and detailed maps of U.S. and European cities with vulnerable points listed, color-coded by size of explosive required, MF wants a trial to establish that these are, in fact, Bad Guys; once they’re convicted beyond a reasonable doubt, with the complete set of legal protections enjoyed by U.S. citizens at trial, and the full chain of evidence is in place (yes, that is Abdul’s laptop, he did in fact enter the data in it, and we do have legal (search warrant) access to the data) then MF will concede that we might be able to issue a warrant to find out if anybody else ever called any of those numbers.
Can it be a U.S. trial, MF? (I take it for granted that it has to be splashed across the front page of every paper from Deutsches Zeitung through the New York Times to the Pittsburg, Texas Gazette.) Or does it have to be before the ICC, with the results thrown out if it can be shown that a Republican was given seating in the public-observation area?
And, of course, since the whole point is to stop those guys before they commit outrages, the plain fact is that they won’t be guilty of anything but innocent hi-jinks on a par with Dungeons and Dragons, and after all Semtex is the new black, so Abdul and friends will get to walk (with apologies) and take their records with them, right?
I am ready, nay anxious, for George Bush to declare that anybody evincing a desire to blow up anything North and East of a line from Baltimore to Philadelphia, or West of the Coast Range, will be given a first-class ticket, a 100-kg. luggage allowance, and an escort past security. It’s the least we can do to satisfy MF’s delicate sensibilities regarding the rights of the accused.
Regards,
Ric
I refuse to say what the Turing word is. But the AI is getting scary, folks.
And then came this:
So whatever EVILE Chimpy is cooking up in congressional briefings is akin to a random sentence generator and whatever passes to the halls of FISA is 100% accurate. From the same Executive Branch that can’t be trusted.
Like all things that spews from the left, your argument is ultimately contradictory and vapid.
I see what MF is driving at, but I happen to disagree with his conclusions. For one, we don’t know enough about the program as a whole to reach those conclusions; and two, the conclusions completely ignore the practical considerations at hand. I also don’t see having your conversation listened to as an automatic civil rights violation; I think it depends on what the listeners do with what they glean from that listening.
Shit, I hope somebody’s reading the mail of anyone identified as a suspect under this program, too.
If we’re not prepared to be ruthless enough to win, we don’t deserve to win.
So much invective. Is it so hard to make a point without being a jerk about it?
I will say, to Ric, that if the suspected terrorist is a U.S. citizen, then you are damn straight there has to be a trial. Your legal theory allows George Bush to be President, Congress, and the Judiciary all at once. If you’re talking about non-US citizens abroad who are engaged in terrorism, then they can be captured, or killed, at George Bush’s discretion. (But not tortured, because that’s specifically prohibited by Congressional statute.)
To alppuccino, read my post again. The “one man” I was referring to was the NSA Inspector General. Ace had claimed that there were checks on the President, citing the DOJ, the NSA IG, and the 8 Congersspersons who were briefed in secret. I explained why those weren’t actual checks on his power: (1) the DOJ is an Executive department, and employment there is at the pelasure of the President; (2) the Congresspersons briefed in secret by a member of the Executive Branch, who can decide what to tell them, and then required to stay silent, do not count as a check on possible abuse; and (3) the NSA IG is only a check if he whistleblows, and I said I wasn’t willing to rely solely on his doing so to ensure that the program won’t be abused.
Wishbone wrote:
There are incentives and processes that work against Executive malfeasance when presenting reasonable suspicion to a judge in pursuit of a lawful wiretap. Although you can’t be sure the Executive isn’t lying to the judge, such a process does allow for the government’s evidence to be recorded and held by an independent entity; thus, if accusations of government malfeasance later arise, the record is there for examination. Also, if a judge does surmise that the government is lying to him, he has contempt remedies he can pursue. As a lawyer, you just don’t lie to a judge, not least because it could ruin your career. In short, there are massive disincentives to malfeasance when the Executive is forced to present his case to a neutral magistrate. A program by which the NSA only has to satisfy itself lacks such disincentives, making the probability of abuse much greater.
Lastly, B Moe wrote:
Literally, because that’s how our system works, including the system set up by FISA. A judge may not be more qualified than an intelligence professional to determine who is a terrorist. But a judge is more qualified to apply legal standards, set by Congress, in determining whether the Executive met his burden of proof that the targeted person is linked to a suspected terrorist. By the same token, you could argue that a federal judge is no more qualified than an FBI agent to say who is a gangster, but surely you’re not advocating doing away with the criminal warrant requirement, right?
I repeat, this NSA program is controversial only insofar as it is applied inside the U.S against U.S. citizens and other legal residents with Constitutional and statutory rights. The idea that a neutral judge stands between the Executive who wants a warrant and a citizen with a reasonable expectation of privacy is older than our country. We shouldn’t ditch these ideas simply because we’re scared of getting blown up. Terrorism will be with us for a long, long time—certainly for our lifetimes—and we can’t suspend the rule of law and the Constitution until it’s gone.
Shorter MF:
Because job security is more important than national security.
tw:remember-> the Bar is just another union after all
MF,
Your point that the application of the NSA program “is controversial only insofar as it is applied inside the U.S. against U.S. citizens and other legal residents … [and] a citizen with a reasonable expectation of privacy…” is well-taken.
But you are completely ignoring the fact, which Bush (in his Houston-to-L.A. analogy) and others have repeatedly emphasized, that the program is not being applied (1) solely inside the U.S., (2) against citizens with a reasonable expectation of privacy. Instead, the application is limited to conversations involving an overseas participant.
If you believe the participants of a phone call between Houston and Tehran have a reasonable expectation of privacy, why? If not, then by your admission, this program “as applied” is not controversial, and you are encouraging us to choke on an awfully small gnat.
BMoe, now THAT’S concise. I hope Cloudy takes note.
BTW, Angler, that’s a very interesting argument, one I’m going to think about more.
I would point you toward 1801(f)(2) however, which covers more types of electronic surveillance of communications by wire. It doesn’t include the “reasonable expectation of privacy” requirement. I think it probably covers a whole heck of a lot of the surveillance being monitored by the NSA, but others on this site have quibbled with that assessment. In response, I’ve argued that if the NSA program was not monitoring communications covered by subsection (f)(2), then it’s a pretty crappy program with a gaping loophole for wire communiations. (Others have objected that there’s no evidence that the actual acquisitions are made in the U.S., but I don’t buy that either because of NY Times reports that the NSA is doing its monitoring from two major stations, one in WV and one in WA.)
Off the cuff, however, one response to your argument is that the simple fact that the Iranian government might be listening to your call does not make your expectation that they not listen unreasonable. Another might be that if you’re on the phone, in your own home, you do have a reasonable expectation of privacy regardless of who you’re talking to; and the simple fact that a foreign government has chosen to invade that privacy does not, as a matter of law, make it okay for your own government to do so too.
In any event, you definitely present an interesting, colorable argument.
I also wonder how our beloved *sob* Republic ever survived this shredding of the Constitution. MF, I guarantee that link will make you throw up just a leeeetle bit in your mouth.
Eye heart James Taranto.
It should be hard to believe that someone should be unaware of what section 1801 actually says at this point. But somehow, it’s entirely believable.
B Moe,
You know that’s not what I said. I just wanted to make the point that the necessity of presenting your reasonable suspicion to a judge before surveilling a U.S. citizen makes it much less likely that the Executive will engage in malfeasance, in part because the lawyers presenting the application are extremely wary of lying to judges, because if they get caught, they’re screwed. That fear alone provides a solid check against funny business on the part of the hypothetically crooked Executive, a check that would be nonexistent when the entire process occurs within the NSA, whose employees work at the pleasure of the hypothetical President who’s ordering the funny business.
If I went around like this, I would have whiplash.
TW: Cognitive, as in dissonance.
Karl:
Let me just clarify for you. What the above assumes is that a FISA judge would clearly allow for the tapping of the phone calls (both domestic and int’l) of U.S. Citizen X in Cleveland whose phone number was found in the recovered cell phone of a Suspected Terrorist Y in Yemen. So when the AG goes into the FISA court and says, “We want a tap on U.S. Citizen X’s phone because his phone number was found in the cell phone of Suspected Terrorist Y,” the FISA judge will verify (1) that the phone number is indeed X’s and (2) that Y is indeed a Suspected Terrorist (by relying on info provided by the Executive).
That the FISA judge existed, in part, to make determination (2) above is what I meant when I wrote:
So, yes, I can read, and yes, I know what section 1801 says. Clearly, the person being surveilled must be a U.S. person inside the U.S. for the law to apply.
There is one other aspect that keeps running through my mind. Maybe I’m behind on the arguments, because I’ve been away.
A warrant is only for one party in a two-party conversation, even in domestic survelliance.
If my uncle Mario in Jersey is suspected of being a mob boss, all of his communications may be intercepted. With a warrant of course. If I call him from Idaho to talk about Christmas presents, I expect my conversation to be private but it won’t be. I’m a non-suspect American citizen but the FBI can now listen to anything I want to talk about with Mario or anyone in his family, and they don’t need a warrant against me to do it. Isn’t that right?
The difference is the status of the party to whom the warrant would apply. Uncle Mario in Jersey gets a warrant. But it seems no warrant is necessary to screen communication of an international suspect. The effect on the person communicating with the original target is exactly the same in either case. They are US persons not subjected to warrants, but who are being surveilled.
Touche counselor. You were talking about the NSA IG in your post. I must also give you cudos for portraying Harry Reid and J. Rockefeller as the useless scrotums-with-teeth that they are.
But still, if a citizen is harmed through a loss of privacy there would be recourse, no?
They need Sandy Berger in there to provide that ironclad check.
Wear loose fitting clothing, Sandy.
MayBee:
I think you have it right. I’m not arguing, and I don’t think anybody is arguing, that if some technology exists by which every call made from the cell phone of a known terrorist in Iran can be intercepted, that NSA would need a warrant to listen to all such phone calls even when they are made to recipients in the U.S.
What we are saying, though, is that if the government wants to intercept future calls made by a recipient of one of the phone calls described above, and that recipient is a “US person” under FISA, the government needs to go to the FISA court and get approval within 72 hours of beginning surveillance. And we’re also saying that Bush had no authority to authorize surveillance of US persons outside of the FISA regimin.
You’re right MayBee. The FBI has the authority to listen to your conversation with Uncle Mario until they determine all you are talking about is Christmas presents, even though the subject of the warrant was Uncle Mario, and not you.
Which illustrates the reasonableness of the NSA program as applied. Even though the government should not be very suspicious of an Idaho niece’s phone call to her own uncle over the holidays, her conversation, or portions of it, are not out-of-bounds for intercept.
I would think, however, that if the Idaho niece’s phone number showed up on Zarquawi’s cell phone, the reddest of red flags would shoot up the flagpole. It is in the latter example that the Executive, without a warrant, ought to, and in my view does, have the ability to see if the dot in Idaho and the dot overseas should have a sinister line connecting them.
My question again: who gives a fuck what a judge thinks? The NSA are pros, what they think is what matters. All this does is guarantee job security for a bunch of shysters.
You just can’t make this shit up.
That certainly is what you’re asserting. Whether that’s what 1801 would actually require is your problem. To get there you have to ignore much of what Jeff wrote and quoted—about the acquisition of calls outside the US, whether using a computer dragnet is “intentionally” “targeting” a “particular” and “known” US person, the Article II authority to conduct warrantless foreign surveillance, the effect of the AUMF, etc. And on that basis, I assume you will continue to ignore them and no response is required.
B Moe:
Well, apparently Congress does, because that’s how they wrote the damn law. If you don’t like it, call your Senator. But you can’t possibly argue that your belief that judges are idiots and that NSA pros are awesome has any bearing on the legal issues or propriety of the President’s action.
Couldn’t have said it better myself.
In order to actually address substantive, debatable points in this discussion, I would think that the two sides (which, in fairness to MF and angler, et al is starting to be done) need to focus through some established points.
1. Are we in a war. Not a war on drugs/poverty/ignorance kind of war, but WAR?
2. Do we all concede that we are debating intercepts from citizens of this country, whether inside or outside, talking to other citzens of this country inside its borders?
3. Are we talking about evidence that can be acceptible in a non-military trial, or information that can compel a judge to issue a warrant, wherein binding evidence can be obtained?
I swear I’m reading several barely connected debates here.
MF,
The technology certainly does exist to monitor all cell phone calls from Known Terrorist in Iran.
That aside, your comment, respectfully, misses the application of the NSA program.
In your comment, you concede that it is O.K. to listen to “all … phone calls” between (1) Known Terrorist in Iran and (2) the U.S. resident WITHOUT A WARRANT.
You opine (and I tend to agree, I think) that it is not O.K. to listen, without a warrant to ”all” future calls” (meaning whether those calls are with Known Terrorist in Iran or Aunt Millie in Topeka) of the U.S. resident.
But your second example is not what the administration is reportedly doing. It is intercepting, without a warrant, only those calls between Known Terrorist in Iran and U.S. resident.
I don’t accuse you of bad faith, but it seems to me you are erecting a straw man here.
Tom M,
(1) Legally, constitutionally, morally, we are undoubtedly at war.
(2) I may be off-base, but what I am debating is the legality or appropriateness of monitoring calls between a person who at the time of the conversation is in the U.S. (whether a U.S. citizen or not) and another person who at the time of the conversation is not (whether a U.S. citizen or not).
(3) What I am talking about is the harvesting of information that will enable us to win (1) – the war – and prevent terrorist attacks – not to make a criminal case.
Angler and MF, from the NYTs (Jeff posted above):
I understand it the way Angler does.
I had heard speculation that numbers dialed by the person in the US may then be automatically and instantaneously tracked as well, but that would be the numbers (email addresses, etc) and not the conversations themselves. Warrants could then be issued to monitor communications to/from those sources. It would be the electronic equivalent of following someone around in an unmarked Crown Victoria, and getting warrants to search the private buildings the person entered. And as I said, that bit was only speculation.
Not true.
Dealt with here and here. Also, this article suggests it’s occurring within the US.
Doesn’t sound like that’s what’s going on from this excerpt: ”Americans come to the program’s attention only if they have received a call or e-mail message from a person overseas who is already suspected to be a member of certain terrorist groups or linked somehow to a member of such groups.”
Here, and here is Jeff’s post quoting Greenwald’s long pst re Article II which I agree with.
the effect of the AUMF, etc.
Here
I’m not trying to ignore anything. Can’t spend all day commenting, though.
Here’s where your position falls apart for me, MF–you assume that it’s much easier for the Executive to lie to Congress than to the Judiciary. That’s just not true, regardless of who the majority party is.
I add, just for kicks, that no Democratic member of Congress claims they were misled in the administration’s briefings.
I simply do not see the trampling of the Constitution that all the screeching from the left implies, epspecially in light of the details in the NYT article that Jeff quoted. I tend to give the DOJ and NSA the benefit of the doubt that they are serious people and take the issue SERIOUSLY (and no IG office is a single person in any federal agency, BTW).
If abuse comes to light, I’ll be the first in line for the outrage parade, but the evidence presented so far indicates that the executive branch is aware of the pitfalls and behaves accordingly.
With all due respect, MF: Balls. Those goalposts are not only mobile, they have wheels and a Hemi. Supercharged. Your whole argument rests on the question: who gets to say Y in Iran, or H in Germany, is a terrorist?
Breaking: the judge responsible for FISA warrants and his wife had dinner at the little Italian place up Connecticut from the zoo, and right next to them at the next table was a couple from Texas who donated $1000 to the “Bush for President” campaign in ‘00. And the judge and his lady didn’t get up and leave. They even exchanged greetings with the other couple.
How can you possibly trust the integrity of a <sneer>judge</sneer> who parades such obvious Republican cooties in public? Why, you might as well appoint Carl Rove! He probably got his orders from the Chimperator passed in microdots masquerading as black-pepper flakes in the Alfredo sauce!
Now, I realize that you’re approaching this from the point of view of a Full Employment for Lawyers Act rather than strict partisanship, but you have to admit that partisanship is a huge chunk of what’s driving you. Either you trust the President or you don’t. If you do, this whole business is quite literally nothing. If you don’t, absolutely nothing that involves secrecy will ultimately satisfy your requirements; and, in the end, nothing but a full-blown, US-standards, public trial (cool! all those billable hours on the public’s nickel!) that establishes beyond a reasonable doubt that the person in Iran is a “terrorist” will satisfy you that the legal niceties have been preserved. Contending otherwise is just prestidigitation—Look, nothin’ up my sleeve! while you pull the next Absolute Requirement out of your ass.
Regards,
Ric
Okay, cool, let’s maintain that point of agreement: if NSA can listen in to every call made by a particular cell phone, they’re okay to do so even if it means connecting to an occasional phone call in the US.
(They can, by the way, and I’m by no means revealing a particular secret by saying so; it’s pretty straightforward given the architecture of the switching system.)
Okay, now, what constitutes an “intercept”? I’m morally certain that this is a traffic analysis program, not a content analysis program. In other words, they’re not nearly as interested in what is said as what calls are made and when. Does capturing the numbers of calls leaving the US from that phone count? In other words, if Alice in Islamabad calls Bob in Peoria, does it count as a “wire tap” to observe that Bob makes correlated calls to Carl in Amman? And to connect those to the calls to Carl from Dan in Denver, Earl in London, and Frank in Milan?
How about if the intercepts all occur in Amman, where they notice that Bob is calling Carl a lot and that many other incoming and outgoing calls are ending up at Carl?
The problem I’m having here is that similar monitoring to phone, telegraph, and even mail communication was done during WW 2, the Korean War, and probably even Viet Nam, without so much as a audible gripe. Now, it’s horrible.
Among the more obvious differences is the party in control of the White House during those occasions and now. It appears to be more OK for a Democrat President to gather intelligence than a Republican one. Don’t understand that.
And since trial lawyers are one of the largest Democrat constituent groups, I’m not even willing to give MF a pass on “full employment for lawyers” grounds.
I think that we have too damn many lawyers and could stand to hang a few.
TW: truth. Ain’t that the truth?
General Hayden also emphasized […] An intelligence official who was authorized to speak […] The official emphasized […] officials who have been granted anonymity in describing the program because it is classified say […] And here’s President Bush […] officials say […]
Uh-huh.
Because, y’know, you can trust the White House and the FBI when it says it will only use these powers on real terrorists…
Natural born serfs, the lot of you.
Then why on earth do you hang out here? Are you a slave fucker? Is that it? Does our bondage turn you on?
The FBI counterterror program is different animal entirely from the NSA program. Until you know what you’re talking about, howsabout you don’t bother me with your smarmy bullshit.
The FBI counterterror program is different animal entirely from the NSA program.
Right – the NSA program is more secretive. But I’m certain you’re absolutely right, and it will never ever ever be abused or go too far. You can trust your government, your government is your friend.
Back where I grew up we used to round up and shear creatures like you.
Here’s the URL to Scott Adams rules of debate.
http://dilbertblog.typepad.com/the_dilbert_blog/2005/11/results_of_why_.html
Little Miss Phony just used number 1. Way to go sweetie!
You grew up PiatoR?
Hey klrfz1,
I checked out your link. Specifically #4 and I gotta say, if you’re going to try hard enough to eat pebbles, you’d better get her consent first.
alppuccino –
I don’t know where you can pick up the bonus points but I think you just earned some because …
… consent will not be forthcoming. The pebbles are not presently conscious, a prerequisite to informed consent.
The Submit word I see below is “boys”. How did she do that?
Killer Fuzzy One,
We are still talking about the Flintstones spinoff, right?
“Hi. My name is Noel and I’m a FISA-holic. {”Hi, Noel.”} Ya know, for me it started out small, just a quick comment at Cold Fury. Next thing you know, I’m hittin’ the hard stuff over at Protein Wisdom at 3 a.m. …”
Look; we shouldn’t even be talking about this. But since the Times changed its motto to “All the Helpful Counter-Intelligence That’s Fit for the Enemy”, here we are.
We are not at war; we are at “wars”. The War on Terrorists and the War on George W. Bush. I don’t know much about FISA, but I do know there are judges who enjoy releasing dangerous criminals, so I assume there may be judges who enjoy excusing terrorist suspects. It sounds like one of them quit last week. Good.
I also know this is Job #1-10 for any government. Not Midnight Basketball. Not Tattoo Removal. Not Mohair subsidies. Winning wars. Yet we seem to be hell-bent on giving terrorists more rights than we give our servicemen.
“Bush Spies On Americans!”? No. “Bush Spies on Those Who Spy on Americans”. Followed by:
“Did You Ever Wonder Why We Haven’t Been Attacked Since 9/11? Well, Now You Know!”
The Times will never say it that way.
But now you know.
Charlie (CO):
Right, so long as that cell phone belongs to a non-“US person” as defined by FISA, whether here or abroad.
Yes, it most certainly does. FISA regulates, in general, “electronic surveillance” of US persons in the US. “Electronic surveillance” is defined as the “acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication…” (emphasis added).
Further down in section 1801 of FISA, we see this:
So, even tracking the existence of that communication, i.e., “what calls are made and when,” is prohibited by FISA unless done in compliance with FISA.
Now, I might be convinced that simply tracking the existence of calls, one one end of such calls are outide the US, should not be regulated by FISA. But under the current law, it most definitely is. So even under your scenario, where the NSA is “capturing the numbers of calls” leaving the phone of a US person in the US, the program violates FISA.
Well, you can trust it to educate your children, invest for your retirement, provide your healthcare, invest your money in charities, protect and shape nature, home and the workplace, you just can’t trust it to spy on terrorists for you.
MF,
Again you are making false connections. You should know that capturing the numbers dialed by a phone has always been treated differently than actually intercepting the contents of the call.
SPQR:
Read the definitions I quoted above! It’s clear as day: using electronic surveillance to acquire information concerning even the existence of a call made by a US person in the US requires a FISA court order. And naturally recording the recipient phone number is information that necessarily confirms the “existence” of the call being made. There’s no way around that.
Again, I’m not arguing that this is a good policy. As I said above, I’m amenable to arguments that the law should be changed to only cover the “substance, purport, or meaning,” but not the “existence,” of the intercepted communication. Or changed in other ways.
But the law says what it says, and you can’t pretend otherwise.
And I’ll repeat for the zillionth time that if the Administration’s program were legal because the surveillance at issue did not run afoul of FISA’s technical definitional requirements, they would be making that argument. Since they are not making that argument, neither should any of you.
And please don’t respond with some form of “they aren’t making the technical definitional argument because that would give away secret aspects of the program.” That makes no sense. They could easily say, “The nature of the surveillance at issue is such that it does not fit within the definition of “electronic surveillance” under FISA, and thus FISA is inapplicable.” That would give nothing at all away, and at least provide some cover on the FISA issue (unless and until details emerge that suggest the explanation is false). The fact that they’ve never said that, and instead resorted to the [atrocious] argument that the AUMF altogether abrogated FISA is strong evidence that they don’t have a technical definitional defense under the statute.
MF, why do you keep making that argument when it’s clearly fallacious?
Charlie (CO):
If you’d explain to me why it’s “fallacious,” I’d appreciate it. Give me one good reason why the administration hasn’t just come out and said it.
Also, do you concede my point that “capturing the numbers of calls leaving the US from that phone” of a US person is covered by FISA?
Oh, by the way, MF, don’t take that Bamford article too seriously. While Bamford is not a bad reporter, he’s a poor physicist. I’m somewhat limited in what I can comfortably say, but if you think about it, cell phone stations are usually more more than a couple of miles apart, and the cell calls can be block by big buildings; most other calls are transmitted digitally on fiber-optic lines. There are a lot of things that the WV site could be doing, but one thing it is not doing is intercepting all the calls made in the US, the East Coast, or even all of West Virginia.
Charlie (CO):
Okay, point taken. But I’m not sure what bearing it has on the analysis.
If the communications are transmitted on fiber-optic lines, then such a line would come under the definition of “wire” udner 1801(f)(2), right?
And you still haven’t explained why they wouldn’t just make some broad statement about the inapplicability of FISA because of technical definitions.
Btw, do you have some sort of security clearance that limits what you can “comfortably say”? Just curious.
MF,
You are still condemning an intelligence practice that is not being practiced by the administration.
The administration has stated that the NSA, without a warrant, listens in on conversations between (1) known/suspected overseas terrorist and (2) U.S. person. You have agreed that this practice is neither illegal under FISA nor “controversial.” In fact, you’ve said that no one is even arguing that such a practice is forbidden.
You are hung up on the legality of whether the NSA can listen to all future conversations of the U.S. person involving persons other than known/suspected overseas terrorist without a warrant. The administration is not claiming that it is entitled to engage in the latter practice. In fact, it is asserting that if the NSA wishes to listen to future U.S. person’s conversations with other U.S. persons, it must, and in practice does, obtain a warrant.
angler:
There are two different calls at issue here.
First (type 1) is the the proverbial cell phone call from Terrorist X in Iran to US Person Y in Boston. If the NSA has a beat on X’s cell phone, it can listen to any calls made from that phone without a FISA order, including calls to Y. Such interception is clearly allowed by FISA section 1801(f)(1), because Y is not a “particular, known US person” who is being “intentionally targeted.” I don’t think anybody has argued that this practice is controversial or forbidden.
(Aside: There is the possibility that, if X’s call to Y is somehow made by “wire” and is intercepted inside the US, it might run afoul of FISA section 1801(f)(2). But I’m not sure about that, so let’s ignore it for now.)
The second call at issue (type 2) is a future call from US Person Y in Boston to Terrorist X in Iran. If the NSA wants to listen to that call, or any other calls made by Y to anyone in or out of the US, it needs a FISA court order within 72 hours of beginning surveillance of Y’s calls. In this case, Y is a “particular, known US person” being “intentionally targeted” and a FISA court order is required. There is no exception for international calls, and no exception for cases when the recipient of a call is a terrorist.
Unless I am gravely mistaken, Bush has admitted to, and asserts that he has the authority for, conducting surveillance of both types of calls. At least, nothing I’ve read suggests that they’ve drawn a line between type 1 and type 2 calls.
All we’re saying is that he most definitely does not—and cannot, under any theory of limited Executive power—have authority to tap the second type of call without reference to or compliance with FISA.
So where do we disagree, if at all?
Ah, right here:
No, I’m “hung up on the legality whether the NSA can listen to all future conversations of the U.S. person involving persons” who may or may not be “known/suspected overseas terrorist[s] without a warrant.”
Under FISA, there is no exception for calls made by a US person in the US to “known/suspected overseas terrorist[s].” If they’re intentionally targeting the US person, they need a FISA order. It doesn’t matter who’s receiving the call, and nothing I’ve seen in FISA supports your assertion that it does. If you have language that suggests otherwise, please advise.
MF,
Your construction of FISA makes it meaningless and leads to an absurd result.
Terrorist X in Iran calls Boston Y. NSA has its headphones on and is listening. Terrorist X says “Hey, Y, hang up and call me back in 30 seconds.”
Y does as instructed, Terrorist X answers the phone call and the two proceed to discuss a plot to bomb a shopping mall in Boston.
Under your interpretation, NSA may listen to the first conversation without a warrant but not the second.
I have little doubt that you have superior knowledge of the nuts-and-bolts of the text of FISA, but isn’t any reviewing court also guided by the requirement that it must give effect to the intent of the statute, and to not construe it in such a way as to make it meaningless or absurd?
While I maintain that FISA is inapplicable because neither of the participants have a reasonable expectation of privacy in this example, I would have no outrage if the executive authorized the listening of the second conversation based on his inherent constitutional powers.
angler:
You would have a nice point, except that FISA already has provisions to deal with your hypothetical.
The NSA could immediately tap Y’s return call to X—no question about it. But within 72 hours, some NSA lawyer would have to go to the FISA court and get an order retroactively authorizing the tap. It’s right there in the law.
If you’d explain to me why it’s “fallacious,†I’d appreciate it. Give me one good reason why the administration hasn’t just come out and said it.
It’s a false inference. If P implies Q, you can’t infer from (not Q) that (not P).
Next question?
Oh, sorry — on your second point there: I can think of several possible reasons offhand, including the possibility that they think the AUMF argument is the strongest and they’d prefer to see the Article II argument established as precedent. As I understand it, you’re an attorney — do you normally reveal to your opposition all the possible things you might argue before filing the briefs?
And no, you can’t infer that I agree about the FISA act covering calls leaving the US from that phone, either. Among other things, I’m not at all clear that this would hold if, eg, the intercept happens outside the US, or by a US intelligence partner, eg, Canada.
Nice try, though: I bet a lot of your high school debate opponents would fall for it.
As to what bearing it has, the most immeidate bearing is that you shouldn’t take Bamford as being completely authoritative; since we can be sure he got this wrong, he may well have other things wrong.
The point about fiber optics was there particularly to show that the WV site couldn’t possibly be the intercept site. If the intercept is done soemwhere else, within the sovereign territory of the US, and is done with reason to suspect they might be capturing comms from a “US person” under 1801(b), then yes, it’s certainly possible it would require a FISA warrant, depending on the way the courts interpret 1801(a), Article II, and all that other stuff we’ve been talking about.
Well, I do have other fish to fry; I just looked back. In any case, I mentioned one possible reason above: they might want to keep their game plans to themselves until then use them. Another one that occurs to me — I’ve got to write the thing I’ve been thinking about on traffic and social network analysis — is that they’re intercepting traffic information overseas, or getting intercepts from friendly foreign powers, and simply don’t know whether a particular number goes with a “US person” until after the analysis.
If they know it’s a US number, but don’t know who it is until late in the analysis after they’ve identified a clique and have good reason to think the number is getting a lot of calls from, I dunno, pay phones in Kabul frequented by someone they’re watching otherwise, it could be pretty late in the game before they know if it’s a “US person.” At that point, as I understand the statute, one of three things comes in: they can drop the particular contact under the minimization section; they can get a FISA warrant and start watching that US person; or they can conclude the US person is an “agent of a foreign power” and continue surveilling them. Explaining this reasoning, however, would reveal “sources and methods” and make it easier for the al Qaeda people to circumvent the approach.
I do, or rather did, actually. I also have done a lot of unclassified, but potentially sensitive research on some information-theoretic aspects of traffic analysis. The WV site in particular may have something to do with things I know from cleared days, and unlike some people in this business apparently, I take my oath seriously, so I have to be circumspect.
The social-network analysis stuff I’m certain is all stuff I learned from open sources, so I can walk on eggs a little less.
If you read Bamford’s books, you could probably figure out everything you need, but I’m uncomfortable giving too many hints. I know when The Puzzle Palace came out, I damn near soiled myself at some of the stuff he was revealing.
Well, Bush has said explicitly that when they think FISA applies, they’re getting FISA warrants, so I don’t think that’s a particularly strong inference. But there’s a second point here: we do know, from what’s been said, that the essential issue is speed. Let’s say, for example, that we get a call going from BAgdad 3-0721 to +1 (408) 123-4567. By examination, we can be sure the recipient number is from the US, in fact from the southern Bay Area; we can fairly quickly find out that the number is owned by, say, Abu Abubul Amir. We don’t know if Mr Amir is, or is not, a US person, and in fact we don’t even know if that other endpoint is within the US. (We can find out eventually by examining the actual cell routings; in fact, we can get a pretty good idea of where the phone was when the call was made. Eventually.) But the number is the same whether the phone is physically in Amman or Atherton. If I really wanted to engage in a pilpul here, I’d argue that until they’ve ascertained the person receiving the call really is a “US person”, the FISA stuff doesn’t apply, and should they find out after the fact that it is a US person, then the “minimization” procedure is sufficient defense.
What it sounds like to me is that Bush simply declared that it doesn’t take a National Command Authority decision to follow up on who (408) 123-4567 calls before finding out who the caller is.
Contrary to MF’s assumptions, the collection of telephone numbers dialed by a telephone has been dealt with separately from the interception of the communications therein since the Supreme Court ruled in 1979 that there was no expectation of privacy in the numbers dialed from a telephone. In the ‘80’s, Congress passed an act that created a statutory privacy right in the dialed number, and required law enforcement agencies to obtain a court order to record dialed numbers ( for historical reasons, this was called a “pen register” ) but with the lowest evidentiary showing to the court possible and with little consequences for violation.
The result is that MF creates, from the vague definition in 1801(n) a stronger protection for pen registers than exists in the Electronic Communications Privacy Act.
Truly bizarre.