Via Newsbusters, a David Burnham NYT story from November 7, 1982:
“COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES”
A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.
Because the National Security Agency is among the largest and most secretive intelligence agencies and because millions of electronic messages enter and leave the United States each day, lawyers familiar with the intelligence agency consider the decision to mark a significant increase in the legal authority of the Government to keep track of its citizens.
Admittedly, the excerpt doesn’t talk about the need (or not) for warrants; but this does get us closer to warrantless monitoring, if the call proceeds from a foreign agent. After all, the NSA can’t know, if they are simply monitoring phone trees, that the persons being contacted in the US are US citizens or not, because that would require a special mindreading power that not even Master Rove has perfected.
If the Dems’ argument is that, should an al Qaeda operative phone a US number, the NSA should hang up for fear of violating the rights of US citizen—even though there is no evidence the government ever planned to use the information gleaned in a criminal proceding—well, then, let them make that case.
Democratic party spokespeople are all over TV today stuttering through their talking points about the President’s supposed violations of federal law, asserting such with absolute certainty—which, sadly and obviously, means they are forced to argue around the objections raised to their sudden rousing defense of FISA (and against Presidential powers claimed by Carter, Reagan, and Clinton). On FOXNews just now, my own Senator Salazar looked particularly unconfortable and out of his depth.
Again, I think this is a losing proposition for Dems, and I have the feeling that the Republicans are allowing the Democratic leadership to overreach on this point and burn themselves on the national security issue.
The President, the perception is, has stopped further attacks on the homeland; the Dems, on the other hand, are now backing the position, at least peripherally, that such a feat is unfair to those who may be in contact with terrorists.
Meanwhile, even staunch libertarians like Judge Andrew Napolitano (who, incidentally, believes the President does not have the statutory authority to authorize the surveillance) says there is “no way this is an impeachable offense.”
Looks like Chimpy has suckered his betters into a uncomfortable position on national security yet again…
(h/t Bill INDC)
See also, The Baltimore Sun (1995):
…the basic rules set by Executive Order 12333, the Foreign Intelligence Surveillance Act of 1978 and a few court decisions are as follows: NSA can intercept any communication—phone call, fax, electronic mail, etc.—as long as at least one end is in a foreign country.
*****
update: FISA Court review upholding President’s power (“In re: Sealed Case No. 2-001”):
After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution. We therefore remand for further proceedings in accordance with this opinion.
The court’s decision from which the government appeals imposed certain requirements and limitations accompanying an order authorizing electronic surveillance of an “agent of a foreign power†as defined in FISA. There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism.
Lots more here, from Cassandra at Tigerhawk
****
update 2: Hilzoy responds on two counts. First, with regard to “COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES,” Hilzoy writes:
The case in question concerns conduct that took place before FISA was enacted. It presumes that the NSA surveillance was legal, and concerns only the question: when the NSA turned over information to the FBI, did that act violate the Fourth Amendment? Excerpts from the case are here.
I never used this case as an argument against fourth amendment violations (Orin Kerr and Dale Franks have discussed that issue at length). Instead, I used it to show that the NSA was within its rights to gather intelligence between an American citizen and people overseas without a warrant (“the NSA lawfully acquired Jabara’s messages”). Hilzoy points out that the facts of the case preceded FISA; but the 1995 Baltimore Sun report points out the same thing I have, namely, that “the basic rules set by Executive Order 12333, the Foreign Intelligence Surveillance Act of 1978 and a few court decisions are as follows: NSA can intercept any communication—phone call, fax, electronic mail, etc.—as long as at least one end is in a foreign country.” True, SCOTUS has never ruled on this. But the acceptance is evident between the ‘82 ruling and the ‘95 Sun article.
Which brings me to Hilzoy’s second concern, regarding Reagan’s Executive Order no. 12333. Hilzoy excerpts this bit to suggest that NSA intercepts are not, in fact, legal without a warrant:
2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.
[her emphasis] But what Hilzoy fails to mention is that the FISA court review (2002) sided with the administration, noting “that the restrictions imposed by the FISA court are not required by FISA or the Constitution” and that “the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism.” This agrees with the conclusion both Robbins and I came to with regard to the contingent nature of “US person” [see footnote].
[See also, EO 12139, which expands on FISA wrt Electronic Surveillance; Title 50, Chapter 36 (see esp. 1801(f))]
****
update 3: Hilzoy’s original piece was a critique of the James Robbins piece in NRO I’ve noted as one possible way to read the FISA exemptions.
I emailed Mr. Robbins about the post and received the following replies:
[…] I agree with the point that lacking specific knowledge of the activities in question, it is difficult to apply the law. I note that the WH is not trying to use section 1802 of FISA anyway, and from the information available (to the extent it is accurate) the NSA may have been engaging in activities covered by another part of the law (section 1843) which also has emergency provisions though not as broad as those to which I referred in my piece (only a 48 hour warrantless window instead of a year).
I think the debate over FISA sections 1801 ff. which I suppose my piece has generated (not to take credit) illustrates why the lawyers may want to use an Emergency Powers Doctrine argument—more room to maneuver. But I think personally it is wiser to peg actions to specifics. If you want to surveil without a warrant, use the law entitled “Electronic surveillance authorization without court order.” It’s a perfectly good tool in the war against terrorism.
And then the follow-up:
the 1995 Clinton Executive Order that Drudge posted authorizing warrantless physical searches—which is a little more invasive that just surveillance—cites 50 U.S.C. 1801 ff. Wish I had known that before I went to press, seems highly relevant and supportive.
Drudge also posts the Carter EO linked above and in my previous posts on this topic.
And one final email:
Another example of the firmly established precedent for warrantless surveillance against agents of a foreign power inside the US—Ronald Reagan’s landmark Executive Order 12333, which states in section 2.5, “The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.” Carter ordered basically the same thing before Reagan, and Clinton after him.
All are based on 50 USC 1801 ff.
Also, just found this, an FY 2000 report to Congress by the NSA on “Legal Standards for the Intelligence Community in Conducting Electronic Surveillance”—highly relevant, wouldn’t you agree? Here is the operative section:
B. The Legal Standards for Intentional Targeting of the Communications to or from United States Persons.
(U) The legal standards governing the targeting of U.S. persons in the United States are set forth in FISA and in Attorney General minimization procedures mandated by FISA. With respect to U.S. persons outside the United States, section 2.5 of E.O. 12333 establishes the standards, and the Attorney General-approved procedures required under E.O. 12333¹4; provide the implementing guidelines. The requirements in both instances include a finding, by a Foreign Intelligence Surveillance Court judge in the former case and the Attorney General in the latter instance, that on the basis of the facts submitted there is probable cause to support a finding that an individual is an agent of a foreign power.
If all this doesn’t satisfy my detractors then I don’t know what will. It is all consistent with what I wrote. I will say this—if I’d found the above paragraph earlier I would probably have just posted that on the Corner rather than write an article because it not only is from the Clinton era (hence counters this “King George” nonsense) but is the NSA’s interpretation, the very agency in question.
Okay, so I lied. One final final email:
[…] of course the Reagan EO requires FISA be followed—it’s the law! The whole debate is over what FISA says. But Reagan would not order something illegal in the very document he requires FISA be followed. And if EO 12333 says the AG can go after agents of a foreign power without a warrant, and a US citizen is designated such an agent, there we go. FISA says that an agent of a foreign power can be “any person” 1801(b)(2) participating in various activities such as engaging in terrorism, and that section (unlike section 1801(b)(1)) does not explicitly except US citizens, which is just common sense, since Americans working for foreign powers are the biggest threats.
Thanks to James for all his help and patience.
Now if you’ll excuse me, I’m going to have a beer and watch Serenity.
****
More, from Belmont Club; and PJ has a roundup that doesn’t include any of my stuff.
Thanks for staying on top of this, Jeff. I’m afraid, however, that our liberal friends will continue to plug their ears and scream “IMPEACH BUSH!” no matter what.
John Kerry must be feeling a bit nauseous about now…
The Dems are backing a position…that such a feat is unfair to those who may be in contact with terrorists.
. . . or, that they thought the president was talking about tourists.
CHIMPY HAS TAKEN US TO THE BRINK OF FASCISM. Where do I get my jack boots?
The only way the dems could look worse at this point would be to sponsor a bill for military aid to the jihadis.
Yeah, but Bush stacked the court with Clinton appointees when he was doing mind control from Austin. So of course they ruled in his favor.
So has Russ Feingold spontaneously combusted yet?
I suspect this whole thing was yet another Rove conspiracy to make the dems look yet even more retarded on national defense. And as usual, they fell for it hook, line and sinker.
Oddly and with no particular concern, it occurs to me that the Internet, with blogs in particular – especially those that allow commenting – would fall under this category as well. As Wadard, Piator, and many many others have shown daily, even Protein Wisdom is effectively a series of ’messages between US citizens and people overseas.’ Every blog is, actually.
I’d be amazed your posts and our comments weren’t being screened at some level for keywords and place names (or some such) on a regular basis. That’s the nature of SigInt—you gotta listen to darn near everything or you’re guaranteed to miss what you most need to hear.
It looks to my amateur (if not amateurish) eye that Bush probably has the legal authority to approve of these types of wiretaps notwithstanding the FISA requirements and limits. And the few court decisions (none SCOTUS apparently since Keith) appear as well to support this type monitoring.
I guess.
I’d still like to see some sort or regimen established to at least periodically monitor or watch for potential abuses. Advising Congress or keeping the FISA court informed mitigates some of my concerns. But I’d like something with more teeth.
After all, the Clinton Administration actually engaged in this practice during peace time. Before a Congressional authorization to use military force was granted the president.
Yikes.
BLT,
In that case, just let me say: Echo, Delta, Wichita, Romeo, Walla-Walla…Howard Dean…Poopy Brains…sixty seats… November 2006…Petticoat Junction, Beverly Hills, Possum Springs.
Of course all that’s in code, but let me tell you, the guys that are monitoring this site for W. and Rove are lauging their asses off right now.
Hey Jeff:
Oliver’s at it again. I think he likes you. He wanted me to pass you a note after gym class, but I demurred. So he posted it:
Freaky! I think he knows something we don’t. Whatever. It’s fun watching them crawl further out on the branch.
Jeff, did you read this enormous post by Cassandra at Tigerhawk? Lots of goodies there.
TW: others; Don’t blame others for the Democrats political destruction. They really believe this shit.
John —
I’ve put research and time into establishing and arguing my position—which I developing by setting out to find out as much as I can about FISA, the President’s authority, etc; Oliver’s response is to call me a kneejerk Bush supporter—which is all he’s capable of, because even surfing the web is a strain on the fat fuck.
If Oliver has some argument to make rather than irrelevant suggestion that “if it’s wrong it’s wrong” (I’m arguing that it’s not wrong, which makes his objection as flabby as his thighs), let him make it. Otherwise he should just get back to the business of mauling rib slabs.
StevenMG – all those who participate in such activities at the NSA or on the behalf of the NSA are already subject to rigorous self policing activities. Violating these ground rules would be the worst thing ever for their careers and it could likely mean jail for them.
The timing of this “leak” was no coincidence, coming right as the Congressional break is beginning. The Dem’s, not having any power to leverage, put the issue out to the public (yes, a Dem leaked this, I suspect) to see if it can get any legs. If it does, the GOP will have to investigate it in a bi-partisan manner, and potentially it could go before the Supreme Court for a decision as to whether or not bush exercised legitimate authority.
But, the risk they run is that the public will come to realize that Bush was completely within his powers to do this, that members of Congress knew enough about this program and did not squeak about it or attempt to solve their differences with it politically behind the scenes, and that there is little or no legal merit for a SC review.
The end result can be that the Dem’s appear to be, once again, weak on defense, more interested in protecting the rights of criminals and terrorists, and utterly incapable of weilding political power.
Prairie Biker:
all those who participate in such activities at the NSA or on the behalf of the NSA are already subject to rigorous self policing activities. Violating these ground rules
Okay, I’ll run the risk of sounding too clever by half here by arguing this point: Those working in the NSA also take an oath not to release classified information. After all, NSA was once jokingly referred to as “No Such Agency”.
But someone in the NSA who signed on to that confidentiality agreement blabbed to the NY Times.
Correct?
My point is that the folks working for the NSA are humans. Frail, flawed folks like everyone else (Jeff being an exception of course). Probably smarter, maybe more ethically professional than most, but still simply human beings.
And history shows that humans do dumb and ugly things. They also just, well, screwup.
I’d like to prevent both the dumb ones and the screwups from doing too much damage.
Trust (but if possible) verify?
SMG
Hadn’t seen the post yet, no, Apologist.
Thanks for the link. I’ll add it to an update.
SteveMG – I agree with Prarie Biker. Select members of Congress were briefed on the operation. That seems to be a more likely source of the leak. FWIW
The language you quoted seems to simply overrule some of the conditions the FISA court placed on a FISA compliant tap. That doesn’t really ‘uphold the presidents’ power as it says that the court added restrictions which FISA did not require.
I went and found the NYT story you link to. It’s important to the case under discussion (Jabara v. Webster) that the NSA’s actions were legal when they were committed. (FISA had not yet been passed.) So I don’t think that this shows that warrantless wiretaps are OK now.
So, actus, you started a petition to recall Biden yet?
Additionally, the court assumed the NSA was acting properly, and only looked at whether the NSA’s giving of the info to the FBI was improper:
Jabara v. Webster, 691 F.2d 272, 275 (6th Cir., 1982).
Dems going to burn themselve out over unlawful spying?
Not likely.
Unless you actually believe most Americans want to be subject to warrantless searches.
Now your Neocons, they just love warratless searches. Don’t mind them at all.
Not so ordinary Americans.
No, if anyone’s going to be burnt on this issue it will be the Republicons.
It’s getting awfully Clintonian around here. Have we finally found the “controlling legal authority”? If this weres President Hillary’s crimes, I doubt you would be arguing so many nuanced legal techncalities.
These are not lefty, socialist, whatever-the current-insult-is-around here concerns. Protection from unreasonable intrusion by the Government defines the Constitution. I thought Conservatives liked the Constitution
Do you people actually think the President would go on national TV and baldly state he committed a crime? You’ve got to be kidding. This is politics baby and the Dims think they are playing hardball. The President covered his bases on this and all the proper LEGAL authority was met, by NSA, by DoJ, and by the Congress. Just because some of you don’t like it, doesn’t mean it’s not legal. Tough Shit. Sometimes things happen in your life you don’t like. Move on, get over it. If US citizens were identified in the course of picking up transmissions and they had nothing to do with AQ or Terrorism, the conversations were minimized and NSA moved on.
It’s easy to spout off when you sole agenda in life is to get the President out of office, but Jesus, get a clue ok. WE ARE AT WAR people. The President has the right and the authority as the CINC to do WHATEVER necessary to protect the United States. If you don’t like that, tough shit. MOVE. Go to Iran or China if you really want to see what monitoring is all about.
Sorry Jeff, I’ve about reached my limit with the assholery that is going on with this “revelation.” Keep up the good work and talking to the “left” is like talking to my fucking fish.
TW: heard, sorry I got nothing. Two LARGE Jamisons and I’m done.
Robert Crawford
I live in DC. I wish I had 2 senators to recall. I’d trade them for mr. credit card joe biden any day.
“Do you people actually think the President would go on national TV and baldly state he committed a crime?”
— Do you think that this President has such a careful and nuanced understanding of the law that he’d know that he was admitting to one?
The “impeach Bush” stuff is just laughable. Klinton deserved impeachment: he lied and besmirched the White House. He should be in jail, both for perjury and for his involvement in the death of Vince Foster.
Jim —
You beg the question, because some of us are arguing that the “intrusion” is, in fact, reasonable and legal.
Actus —
Handing over the info to law enforcement without a warrant was illegal; not the gathering of the info without a warrant.
Hilzoy offers that the actions under scrutiny occurred before FISA was passed in ‘79, suggesting it is not dispositive.
But the Baltimore Sun column notes (in 1995) that “..the basic rules set by Executive Order 12333, the Foreign Intelligence Surveillance Act of 1978 and a few court decisions are as follows: NSA can intercept any communicationâ€â€phone call, fax, electronic mail, etc.â€â€as long as at least one end is in a foreign country.”
Again, this doesn’t answer the warrant question (as I noted in my post), but it does point out problems that would need to be overcome for an NSA phone tree program, for instance, where the intel in instantaneous and cannot be planned for. And the sheer volume makes getting warrants for all the potentially usable intel impossible.
I don’t know what you’re talking about, because Jabara v. Webster says that the NSA’s handing the information over to the FBI did not violate the 4th amendment because it was not a ‘search’ that is subject to the 4th.
I don’t know what YOU are talking about, actus. I took it from your comment (and the excerpt provided) that “What Jabara does contend, and the district court agreed, is that his rights were violated when the NSA turned over the information, without a warrant, to the FBI”—meaning that the gathering of the intel was not a crime, and that Jabara’s rights were only violated, according to the court, once the intel was handed over to the FBI.
What we are talking about here is the gathering of the evidence itself—which Jabara didn’t contend violated his Fourth Amendment rights.
If I’m misunderstanding, set me straight, because I only have the excerpt you gave me to go on.
People who know how to read might have noticed that the legality of this had been looked into a long time ago. People who are rational adults understand that there’s more to this than Bush pulling his cowboy jeans on over his underoos in the morning and announcing to his lackeys that ‘he’d like to spy on some folks’.
I am concerned that we are dealing with people who do not fall into either category.
The excerpt I gave was explaining what the district court did and how the appellate court was going to proceed.
That holding of the district coutrt was overturned. The appellate court was not a violation of the 4th amendment to hand over the data to the FBI, because it wasn’t a ‘search’ that fit into hte 4th amendment.
The issue of whether the surveillance by the NSA was proper was assumed by the court, it took it as a given. I don’t know why.
Oh. Well I was only using the case to show that the collection of the intel on an American citizen without a warrant was held to be legal.
The fourth amendment question has already been dealt with effectively by Orin Kerr and Dale Franks.
Y’all can save yourselves a lot of angst on this if you believe that a FISA Appeals Court confirmed Dubya’s authority to do exactly what has been reported he did.
Here’s their opinion (which Jeff has already linked for readers of English)supporting Dubya’s authority. It’s 56 pages so won’t be read by trolls or Dems, but I’ll give you 200 to 1 odds that SCOTUS, if asked, will support Dubya’s authority.
<a href=”http://news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf” target=”_blank”>
This is a real “slam dunk” and the Dems are going down on this one. Must be the work of Rasputin Rove.
Perhaps because it is?
Robert Crawford,
Yeah, it’s a given. Unlike Tenet, this one is a real slam dunk.
Hmmmm.
Clinton, as outlined by Jeff, also did warrantless intel gathering. Frankly I don’t like Hillary. I think she’s adopted some of the slick techniques of Dollar Bill, though she’ll never match the master. But if she were President and directed the NSA to do the same thing then no I wouldn’t be climbing all over her back on this.
If the President’s aim is to defend the country against terrorists who are trying to kill us all during wartime then I think that President, whomever he/she is, deserves a little slack. Does that include Hillary if she became President? Sure it does as long as it is directly and specifically oriented to fighting or capturing terrorists.
Hey I like bashing liberal wing-nuts just as much as anyone else. But my priorities also include not having myself or friends and family starring in the archival photos of the Nasty Terrorist Attack of 2006.
everyone is all over the legal end, which is good. but, when you examine the political aspects~~think about 1978, when FISA was enacted. post-church committee, post-watergate. jimmah. disco. crap clothes. the time was ripe for a piece of turd legislation.
But someone in the NSA who signed on to that confidentiality agreement blabbed to the NY Times.
Steve, a little expansion on this. It wouldn’t be just the NSA that knew.
As others have mentioned, there are clearly some people in Congress who knew.
There would also have been people in Cheney and Bush’s offices who knew.
Most interesting from the standpoint of my prejudices, is that people in the Directorate of Intelligence (analysts) and in the Directorate of Operations (because they have the special operators who would be recovering the stuff) would both know. In other words, CIA also would know.
It would be interesting to do a “social network” model of what we know in open sources about these leaks. Sure sounds to me like the network keeps coming around to CIA.
And I’m just saying they didn’t hold that. They assumed it. As Orrin Kerr points out, there are arguments its permitted, but it hasn’t been ruled on. At least one of his arguments depends on the calls being international though.
Okay, so they assumed it—and, as Hilzoy points out, in advance of FISA. But the point is, this is the established legal presumption (in advance of a SCOTUS ruling), as the Baltimore Sun piece notes.
Here’s what Kerr writes in summary:
Actually,for ‘78 FISA was not a bad piece of legislation. It secured for the Executive a right, with limitations, necessary to deal with foreign (read Soviet) agents without requiring a traditional 4th Amendment warrant. It did impose the continuation of “probable cause” vs. “reasonable cause” for matters of prosecution and possibly for intelligent gathering in peacetime which I now consider a bad decision but, at the time, supported.
Everyting then was seen through a “Soviet Cold War” filter. I’m at a loss to understand the reasoning that excluded International Terrorism, by definition, from the definition of “foreign agent”.
Has anyone yet researched the history of this apparent statutory exclusion? Was it just a typo? Can anyone give a common sense reason for excluding “International Terrorists” from the definition of “Foreign Agents” in 1978?
Trolls, don’t take these questions to mean Dubya’s relatively recent action was illegal. The FISA Review Court reversed this in 2002 in the previously cited case (noted in Jeff’s most recent update and my earlier comment}.
River Rat,
In 1978, I was a stylish piece of headwear. Look at me now.
bzzzt! wrong.
SteveMG, as an adept in evil, i want you to consider one thing–if the leakers were NSA, wouldn’t the NYT have claimed it? Instead they deliberately declined to say what agency held the billets for “nearly a dozen current and former officials”….no agency named!
ha ha, how clever–you are convinced by implication, manipulated by the skillful evil.
Lucky,
Jay Rockefeller or his toyboys on Senate Intel would be the first place I’d look. Then CIA and then some of the Dem clowns at NSA that are trying to cover up “Able Danger”.
I sense there’s a tech thread connecting the DIA and NSA data mining projects that may have led to at least some of this active surveillance.
Good question for Kurt Weldon.
There was never anything a legislative act could give or take away.
The Constitution in Article II establishes the president’s executive powers–among them to enforce the laws enacted by congress and to act as commander in chief of the armed forces, who protects against external national security threats. Look at the dicta in SCOTUS (Keith, Katz, Truong) and lower court cases which supports the determination that these two powers are distinct from each other under the Constitution.
It took the Fourth Amendment to the Constitution to restrict the president and his agents in exercising searches in connection with the conduct of criminal law enforcement. How is a mere congressional statute adequate enough to impose the warrant restriction on the president in exercising not just his power, but his constitutional duty, to protect the nation from external threats?”
Don’t you need an amendment to roll back the Article II authority?
SteveMG, as an adept in evil, i want you to consider one thing–if the leakers were NSA, wouldn’t the NYT have claimed it?
You’re trying to corrupt me, aren’t you Mrs. Robinson?
Well, it seems to me that if they had leakers in the NSA that they wouldn’t want to reveal that as to risk an internal review causing them to lose that source or sources.
IOW, don’t mention it.
My guess is that they got the information from a number of sources, primarily former officials first and then used that information to work down and through the various agencies. Risen has been working on this beat for decades; I’m sure he’s got a bunch of source throughout the intelligence agencies.
The NYT piece today reveals that the NSA inadvertently monitored domestic only calls. That’s pretty inside baseball stuff that, I’m guessing, would likely only be known by folks within the “No Such Agency”.
Could be wrong.
SMG
Lucy-chan: To what ends and for what purpose are you spreading these memes you mention?
Hi—I didn’t mean to imply that you were using the case to talk about 4th Amendment issues; just that that’s all the case itself talks about.
I don’t really see how Robbins’ emails actually respond to my post.
Also, I’m not a he
Lucy-chan: Especially since your e-mail address is redolent of Ghost in the Shell, and that’s enough to kindle the interest of a Nihon culture addict like myself.
Sorry about the gender mistake, hilzoy.
I linked to the piece on the Jabara v Webster case because it showed that the Court wasn’t concerned with the warrantless collection of intel of an American communication overseas. The “search” part wasn’t my concern. And because the title of the NYT piece is “COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES,” I thought that was an appropriate use for citing the story.
Robbins’ emails are less concerned with your post that on expanding his own in light of new info. But with regard to your post, I think he wishes to further highlight 1801 f to suggest that if the target is a foreign agent (as al Qaeda are) there are clearly circumstances where warrants aren’t necessary.
I live in DC. I wish I had 2 senators to recall. I’d trade them for mr. credit card joe biden any day.
Hey, if you guys hadn’t wimped out you could have had a couple dozen.
“First in war, first in peace, and last in the American League.”
And I’m just saying they didn’t hold that. They assumed it. As Orrin Kerr points out, there are arguments its permitted, but it hasn’t been ruled on. At least one of his arguments depends on the calls being international though.
Actus, everyone including the NYTimes says they were international calls.
Hmm. I guess I just don’t see why Robbins thinks that citing a lot of orders that say: Obviously, FISA is the standard here, without addressing any of the arguments about why he misrepresented FISA, would satisfy his detractors.
Probably I’m just dense, though
He says he didn’t misrepresent it, at least not intentionally. And the standard for electronic surveillance and warrant requirements you refer to is addressed in the three EO (Carter, Reagan, Clinton).
Similarly, the FISA Court review that found for the administration makes clear that the US Person designation is not absolute. From update 2, above:
– At the risk of giving everyone heartburn here I can assure you with absolute sourced conviction that NSA has been intercepting any and all communications they can cover technically for many decades. The volume is horrendous. The problem is trying to review it all. There’s never been any question as to whether they do it or not. I personally know it was in full force by the early 70’s, with a lessor, technically limited series of programs, in the 60’s. sS through many adminstrations and sessions of Congress the overseer’s have concluded the gathering is lawfull (any extra-country communications of any kind).
– So you’re left with the single question as to whether the NSA people are on legal ground if they pass the Elint along to a domestic security group, in this case thr FBI apparently. Personally its looking more and more that the Jihadists are using the seperation we have between “criminal-(domestic)” and “advesarial combatants-(international) to advantage.
– Another question occurs to me. Is this why Clinton was so adiment about hanging to the “criminal” category for the Jihadists/Al Qeada denizens. After all, if defined as “criminal” then no such limitation could be applied as to the legality of inter-agency data sharing with the FBI.
subversion.
Funny just today I read that there was at least one that wasn’t. In the NYT.
Outrage delayed is outrage denied!
Outrage, outrage, fight fight fight!
Woo!
(thanks for staying on top of this. you’re my favoritest, 4evah!)
Woke up this morning to Charlie Gipson on GMA talking about the “concerns” that Bush violated Federal Law to spy on Americans, a “possible” impeachable offense. That’s the talking point we will hear for the next few months.
Again, Bush is too little, too late. We are going to lose the war. And it’s because the Democrats and their MSM allies will lie, cheat and steal to make us lose…and the Republicans are too big a pussies to stop it. Grandma Jones and Uncle Phil, political dolts like 99% of the public, will follow the Dems because of repetition.
WE ARE GOING TO LOSE. AND IT’S OUR FAULT.
I notice you didn’t give the details of that claim. You see, one of the phones was an international number. It wasn’t until the call was made that the NSA was able to determine both ends of the call were inside the US:
To quote Powerline:
Well, actus, first that’s a December 21 story and I posted on December 20; I apologize for my lack of detailed clairvoyant knowledge, but believe me if I could read tomorrow’s newspaper I wouldn’t be wasting time with you here.
However, it might be useful and informative to consider what the story actually says:
Charlie – do not give in an inch. You were right the first time. Some, if not all, of these “purely domestic” calls were international cell phone numbers being utilized within the US.
Joining the fray.
Let’s start with a few factual assumptions we can all agree on:
1) US Citizen may also be AQ agent;
2) Bush (or official with delegated power) determines that US Citizen is AQ agent;
3) This determination is unilaterally made within Executive branch and no judge need approve of designation;
4) Bush orders electronic surveillance that targets US Citizen/AQ agent’s int’l conversations.
Is there anyone who is disputes that this is the(possible) sequence of events? This what you guys are arguing is permissible, right?
Let’s start there.
MF,
works for me.
Okay. What protections exist, under this framework, to ensure that the President (or his delegate) don’t mislabel a US Citizen as AQ agent in #2 above?
In other words, are we depending solely upon the goodwill and competence of Executive branch officials in making the AQ determination?
Or are there other safeguards? If so, what?
Any mistakes are not being made by the President you dolt!! Mistakes are inherent in the process. Sort of like friendly fire casualties. What is it about war that you don’t understand?
Noah:
Of course mistakes are inherent in the process. That’s part of the problem. Suppose we had a particularly inept president, who appointed particularly inept screeners, who had a 2% mistake rate in US citizen/AQ agent determinations. You’d probably respond that it’s too bad for those innocent 2% whose rights are violated—this is war, and their rights are merely victims of “friendly fire.” But what if the mistake rate were considerably higher, say, 20%?
This raises two questions:
1) How high of a mistake rate is tolerable? What would you personally tolerate?
2) If the program is secret, how do we even know what the mistake rate is? Is that inability to know a problem?
MF, if you actually look at the statute, (50 USC Chapter 36 Subchapter I) you’ll find that there are provisions for that. If someone is intercepted by accident or as part of a training mission, the information collected has to be destroyed, and the AG has to include in his biannual report to Congress how it’s done and what the safeguards are. Look under “minimization”.
If you want to get exercised about something, notice that you can listen to pretty much anything in a training mission.
TW: york. %s/y/d/g
Jeez, and what exactly are the consequences of a mistake? A disinterested staffer at NSA listens to a potentially embarassing conversation that he doesn’t give a shit about? And he is monitored by other disinterested non-political professionals. Maybe they have a giggle about some guy talking about a blowjob he is getting while talking on the phone…big deal!
What really pisses me off is that we’ve been sliding into fascism for decades, and the uniforms of our military still look kinda lame. Except for Marine dress blues—those are cool.
We need to figure out how fascist we have to be to get the cool-looking uniforms, and stop there.
Damn right. Because cool-looking uniforms are one thing, but that stupid goose-stepping? Not so much.
– The goose-stepping might work with jodpirs and tassled loafers, maybe a riding crop and twin pearl handled holstered 45’s. Patton would be proud….
TW: “NOT”
I agree with your point about the goose-stepping; John Cleese is the only guy who can really pull that off.
That’s pretty much it.
But we don’t depend on Executive branch officials to have goodwill and competence.
We make them that way by threatening to whup their sorry asses if they’re corrupt.
You know, the same way we keep the Judicial and Legislative branch officials in line.
“Again, Bush is too little, too late. We are going to lose the war.”
What war exactly is it you’re expecting to lose? What will be the nature of the defeat? What do you think this war is about?
I’m not being facetious. Somebody please tell me. Most wars have objectives and victory conditions. What are those in this case, do you think?
You’ll want to comment in the live threads, JB. Otherwise all you’re doing is masturbating all over my site.
We’ve moved on. I’ve done 3 more posts on this topic. Join us THERE.
Sorry. The site isn’t as well-organized as it could be. The current structure is imo too top-down and dictatorial in terms of which threads are considered live and which aren’t, i.e. recently-created (by you) = live.
It’s generally a better format (again, imo) to have a list of threads on the homepage sorted by time of last posting (with brief details of that last post) in addition to your more verbose set of pages listed in order of creation (i.e. reverse chronological). That way, you get the best of both worlds, with certain threads just dying a natural death and others carrying on organically as “live” threads because people keep posting to them.
Regards,
JB