From the WSJ editorial page:
The Bush Administration’s use of warrantless wiretaps in the war on terrorism continues to generate controversy, and Congress is planning hearings. Some of the loopier elements of the Democratic Party have even suggested the wiretaps are grounds for impeachment. But the more we learn about the practice, the clearer it is that the White House has been right to employ and defend it.
The issue is not about circumventing normal civilian Constitutional protections, after all. The debate concerns surveillance for military purposes during wartime. No one would suggest the President must get a warrant to listen to terrorist communications on the battlefield in Iraq or Afghanistan.
But what the critics are really insisting on here is that the President get a warrant the minute a terrorist communicates with an associate who may be inside in the U.S. That’s a loophole only a terrorist could love.
[my emphasis]
At this point, the “civil libertarians” like to invoke the 72-hour free pass rule, which they fail to acknowledge still requires getting the paperwork completed and the petition before the FISA court before the intel is “usable”; similarly, warrants rely for their force on probably cause—and questionable procedural requests are vetted beforehand, with those that don’t meet probably cause standards removed, making the FISA Court procedure appear (erroneously, insofar the deck for success has been pre-loaded) like a rubber stamp for the intel services; and finally, there has been not a single example offered to date that such FISA warrants weren’t in fact applied for in those situations requiring them (and in fact, Gen Hayden and the President have both said that in such apposite cases, FISA warrants WERE applied for. It is only in the hypothetical bad-faithed situations conjured by the program’s critics and civil libertarian absolutists that any law was “obviously” broken and any constitutional protection “obviously” trampled).
But I digress…
To the extent the President’s critics are motivated by anything other than partisanship, their confusion seems to involve a 1978 law called the Foreign Intelligence Surveillance Act. FISA provides a mechanism by which the executive can conduct warrant-approved surveillance under certain circumstances. But FISA covers only a limited number of intelligence-gathering scenarios. And no Administration—Democrat or Republican—has recognized FISA as a binding limit on executive power.
Jimmy Carter’s Attorney General, Griffin Bell, emphasized when FISA passed that the law “does not take away the power of the President under the Constitution.” And in the 1980 case of United States v. Truong, the Carter Administration successfully argued the government’s authority to have conducted entirely domestic, warrantless wiretaps of a U.S. citizen and a Vietnamese citizen who had been passing intelligence to the North Vietnamese during the 1970s Paris peace talks.
In 1994, Deputy Attorney General Jamie Gorelick also asserted an “inherent authority” not just to warrantless electronic surveillance but to “warrantless physical searches,” too. The close associate of Hillary Rodham Clinton told Congress that much intelligence gathering couldn’t be conducted within the limits placed on normal criminal investigations—even if you wanted to for the sake of appearances. For example, she added, “it is usually impossible to describe the object of the search in advance with sufficient detail to satisfy the requirements of the criminal law.”
Some critics have argued that the surveillance now at issue could have been conducted within the confines of FISA. But that doesn’t appear to be true. FISA warrants are similar to criminal warrants in that they require a showing of “probable cause”—cause, that is, to believe the subject is an “agent of a foreign power.” But if the desired object of surveillance is a phone number found on 9/11 mastermind Khalid Sheikh Mohammed’s computer, you may not even know the identity of its owner and you can’t show probable cause [the logistical problem raised by such scenarios was addressed here]
Nor does the actual track record of FISA argue for the sacredness of judicial oversight of intelligence gathering. In the 1990s, FISA judges nitpicked warrant requests to the extent that Ms. Gorelick and others believed FISA required a complete “wall” of separation between foreign intelligence gathering and U.S. criminal investigators. One consequence was the FBI’s failure to request a warrant to search alleged “20th hijacker” Zacarias Moussaoui’s computer. Only after 9/11 did FISA’s appeals panel rule that such a wall had never been necessary, and did the Patriot Act destroy it once and for all.
Other critics accept the President’s inherent power but say he still should have asked Congress to approve the wiretaps. But some in Congress were informed of the wiretaps and did nothing to stop them. Instead, the ranking Democrat on Senate Intelligence, Jay Rockefeller, wrote a private letter to Vice President Dick Cheney expressing his “lingering concerns” and saying he’d keep it on file for posterity—or more precisely, for posterior-covering. The Senator then released the letter after the story became public as a way to play “gotcha.”
If Mr. Rockefeller had been serious about his objections in 2003, he should have told Mr. Cheney to cease and desist or that he’d try to pass legislation to stop it. After reading Mr. Rockefeller’s letter of self-absolution, we can understand if Mr. Cheney concluded that the wiretapping was too important to the war on terror to risk seeking an explicit legislative endorsement from so feckless a Congress. The way the Members have played politics with the Patriot Act is another reason not to give Congress a chance to micromanage war-fighting decisions.
[Again, my emphasis]
Another point to add here is that the President was in a Constitutional / political conundrum: an appeal to Congress for the authority he has already asserted under AUMF and Article II would have been a tacit admission that his authority is in fact subject to the approval of Congress—a move that would have weakened executive branch authority. And had Congress acceded that the President did have such inherent authority (in keeping with earlier implied precedent), the FISA Court would have been effectively neutered and, like so much else in government, rendered superfluous and bureaucratically hamstrung.
As for the judiciary, one question that Congressional hearings should explore is whether FISA itself is unconstitutional. That is, whether it already grants the courts too much power over the executive branch’s conduct of foreign policy by illegitimately imposing the “probable cause” standard.
Laurence Silberman, a former deputy attorney general, testified on this point while Congress was debating FISA. He also pointed out that while fear of exposure is a strong disincentive to executive abuse of surveillance power, “since judges are not politically responsible, there is no self-correcting mechanism to remedy their abuses of power” in such matters. In other words, FISA grants the judiciary a policy supremacy that the Constitution doesn’t.
[My emphasis]
…Which, let’s face it, is the real issue here. We are witnessing a battle over separation of powers, and the President’s critics, as has been their political ploy for the last 40 years or so, are relying on the courts to side with them in an attempt to constrain executive power. The idea here is to profess an interest in checks and balances, but what is obviously happening is that the legislative branch, with the help of an unelected branch of would-be philosopher kings, are trying to rework the Constitution so that we move toward more of a parliamentary government.
But the Founding Fathers gave the President war powers precisely so he could not be hamstrung on how to fight the war tactictly. The “checks” provided againt Presidential overreach is the legislative power of the purse—not to mention the possibility of initiating impeachment hearings if they believe laws have truly been broken.
To date, no one single prominent critic has called for the President to cease authorization of the program. Instead, they continue to “raise concerns” with the hope the mere appearance of impropriety can damage the President, particularly insofar as it fits in the Democratic leadership’s narrative of a pervasive GOP and administration “culture of corruption” and “imperial overreach” made all the more obvious by their Parallax-View like secrecy.
The upside of the coming Congressional hearings, we guess, is that Americans will get a lesson in the Constitution’s separation of powers. We’re confident they’ll come away believing the Founders were right to the give the President broad war-fighting—including surveillance—powers.
As am I. Because once we bracket the legalese of anti-program advocates—whose entire case begs the question by assuming laws were broken that are in fact contested and argued being used by the administration to support their position (see Youngstown, for example)—what we’ll see is that critics of the program, in addition to being confused about the methods used and the logisitical safeguards taken to avoid impropriety, will be left arguing that Congress authorized the use of military force against our enemies—missiles, special forces invasions, bombing campaigns, raids, et al—but that they didn’t (per Daschle) give the President authority to protect the homeland by gathering signals intel, which has been recognized as a military function by every court ever to address the matter.
Politically, such a posture will prove to be a disaster for Democrats, I predict; and personally, I’m increasingly surprised that Dems and civil libertarian absolutists continue to take the administration’s bait and go further and further out on a limb arguing hypotheticals under which we’ll find the FISA rules were followed domestically (at least, those that fall outside the purview of FISA’s authority).
(h/t Terry Hastings)
Excellent coverage as usual, Jeff. We breathlessy await as the “usual suspects” argue their cases for Al Qaeda. After all, the poor souls are just a little high strung/deranged.
Emphasis missing in first quote. Nice post, as usual.
People to whom I no longer even feign attention:
1. Those who think the NSA is interested in whether they order the kung pao chicken or the falafel. Becasue that’s PROFILING.
2. Lawyers of the entire ideological spectrum who believe their internet opinion is the definitive legal answer to a program whose specifics ARE CLASSIFIED.
3. Individuals who want the President to “come clean” by revealing even MORE CLASSIFIED INFORMATION in a time of war.
4. Barbara Boxer.
5. Talking heads of the entire ideological spectrum who believe their CNBC/CNN/Fox News/ESPN/Cartoon Newtwork opinion is the definitive legal answer to a program whose specifics ARE CLASSIFIED.
6. Kostards.
7. Europeans.
8. Texas fans who believe Vince Young needs another year of college. Get over it.
Does that include the “Europeans in spirit” who reside in Canada and New Zealand?
If it walks like a cheese-eating surrender monkey and talks like a cheese-eating surrender monkey, Robert…
I think there are two closely-related issues to discuss in relation to the NSA surveilance of foreign terrorist suspects:
(1)Whether the program is legal.
(2)Whether the program constitutes good policy
Most of the discussion so far has centered around whether the program is legal. However, enough legal experts have weighed in on this question that the NSA program cannot be said to be illegal or unconstitutional on its face, but neither can its legality be considered a slam-dunk. Furthermore, many arguments about the legality or illegality of the program depend on classified details that are not known to the public at large.
Consequently, I don’t think further discussion of the legality of the NSA surveilance program is productive. Like it or not, the legality of the program will be decided by a court, perhaps the FISA court or more likely the Supreme Court, which are the only bodies with the authority and competence to decide the question. (Whether their decision will be proper and wise is another question entirely, but can only be debated after the decision has been made, and such debates will only address whether the program should be legal or not, not whether it is legal or not.)
Thus, I think it would be more productive to focus on the second question: whether the NSA program constitutes good policy or not. Although like the first question, the answer to this second question depends on unknown classified details, we can still discuss whether and under what conditions the loss of privacy the program entails is worth the gains in security. We can also discuss what sorts of oversight should be present to prevent abuse from occuring, whether under the current administration or a future one. For example, much like the PATRIOT act, I believe the NSA program is needed to track down terrorists who are hiding in America and stop them from carrying out another attack, but I would not want to see it expanded to fight the war on drugs.
Of course, discussing whether the NSA program constitutes good policy means dropping the rhetoric about Bush the criminal fuhrer and impeachment and discussing the question in terms of the trade-offs it entails. If Presidents could be impeached for bad policy, then no President in American history would have every completed a four-year term. Opponents of the administration persist in focusing on the first question long after it can be usefully discussed precisely because it gives them the ability to spin the Bush administration as an out-of-control monster trampling on the rights of Americans in the name of fighting a boogeyman who, if he exists at all, is not quite as fearsome as the Administration would have the American people believe. They wish to have the legality of the program decided not by the courts or Congress, but by public opinion and outcry. While this may be another club for the Democrats to try to beat the administration with, it still doesn’t offset their primary weakness, which is a lack of good policy suggestions to fight the war on terror. Even if the NSA program is illegal, or if it is legal but bad policy, the Democrats have yet to offer a better means of ending the threat from Islamofascit terrorists, or even a coherent plan at all, and until they can do so, it will be difficult for them to make any gains towards recapturing the Congress or the White House.
But Tom, if I can’t comment on the legality of the NSA program, wishbone won’t even pretend to pay attention to my comment!
Wishbone does have a point though. Without the details, there can be no “definitive legal answer.” I certainly haven’t tried to offer one – I’ve only tried to knock down the presumption, advanced by MF and others, that the program is illegal based on what we know.
Over the past few years I’ve discerned a pattern in the President’s critics. They angrily score him on various goals he hasn’t yet reached (up until the time he reaches them, at least), and object to whatever means he employs to reach them. These people want Bush to protect America, grow Iraqi democracy, beat back The Jihad, etc., not with surveillance, spec ops, and the military, but with a magic wand.
Turing = color, as in What color is the sky in their bizarro world, anyway?
No. That isn’t it at all. What they want is for Bush to give them what they perceive as their due; that is, when he has to decide what to do on any subject, he should come to them on bended knee, touch his forelock, and beg humbly for Wisdom and Assistance. That being the case, it is frustrating for them that such a person should hold (nominal) high office.
In other words, what you hear from them is exactly what you would have heard from the white citizens of (e.g.) Meridian, Mississippi circa 1965, if Martin L. King had been President and Stokely Carmichael SecDef. Except that they’re better read and use prettier words sometimes, of course.
The people doing the complaining have assigned to a bit over half the American public the station in life I and my redneck neighbors consigned black people to half a century ago. Under that system, George Bush has two strikes against him: first, that he’s a member of the despiséd class, and therefore “uppity”, which is to say, presuming insultingly above his station. (Note that “uppity” almost requires that the despised person be actually performing the office adequately or better, probably better than the person making the sneer could.) And second —
Bush was born into the privileged class. By family and upbringing, one would have expected him to become, for all practical purposes, John Kerry. Instead he voluntarily defected to the “wingnuts”. Apostates are always calculated to cause the True Believers to froth at the mouth.
Regards,
Ric
O’Reilly was just on telling John Ashcroft that his viewers, his pipple, if you will, need to understand how the NSA program works.
Ashcroft: No they don’t
O’Reilly: But…
Ashcroft: Don’t
O’Reilly: B..
Aschroft: D.
“Power of the Purse”?
Nice in theory but sometimes weak in practice.
Especially since, when it comes to military deployments, once U.S. troops have shed their blod then Honor becomes an issue and its a lot harder to pull the plug – even when we should.
I agree that the powers are arguably appropriate – but I no longer trust the WH as I did in 2001. Do we have evidence that they are abusing their power? No, but absense of evidence is NOT evidence of absence – especially when we know any abuse is going to be hidden as best as possible by the perps. The issue boils down to trust and a lot of us simply do not trust these men any more and are therefore hesitant about this kind of stuff.
Then there is the precident for potentially worse soundrals who WILL occupy the WH down the road.
Now, my father made the point that some people understand this fear but think that American democracy is enough to withstand it – that we got through Lincoln and FDR and we can get through Bush and (maybe) Hillary too. I’m not so sure I agree. Those we all “temporary” measures – but the WH takes the position that the GWOT will take “Decades”. I hate sounding like a qwak, but it all sounds like a simplistic snowjob designed to secure long term political power.
I don’t have the facts to back this up, but I feel that tolsen1 is about 60% right.
Okay, I’m predicting that next will come Quis custodiet ipsos custodes – anyone interested in starting a pool on that one?
I have enough faith in the ability of people that if they meant to secretly take over the world, they would not do it so clumsily. If one truly means to take over the world, one must not take half-measures. I always say.
Over and over and over again I say it. Where is even ONE example of the misuse of signal intercepts?
I just can’t believe that ANYONE (except perhaps for “Progressives”) in power would be so stupid as to so clumsily use something like this to “take over” the Constitution.
So far, the only beef I see is between the ears of mush brained Leftists. If, if, if….
I think you’re essentially right on the “rubber stamp” part, and I’d add (forgive me if you’ve gone over this before) that the 2002 Court of Review decision essentially argues that FISA isn’t supposed to have much power over the warrants. They’re supposed to strictly follow 1805 and just check to make sure the application and certifications are correct, not to second guess the executive or add restrictions to the warrant.
Thanks Jeff, I’ve been making those arguments on lefty blogs myself, but not as eloquently or thoroughly as you did here.
Two notes here. I was listening to Limbaugh on the radio and he had on a former FBI guy who worked approximately 30-35 FISA cases. Said he never got a FISA warrant. He said that the application process was so burdensome that in order to get a FISA warrant he would basically have to make his case before hand and once he had a case good enough for a warrant, he had a case good enough for prosecution. His story.
Then on O’Reilly last night, I caught Dick Morris while surfing through and O’Reilly was lamenting that the NYT had run something like 135 editorials bashing Bush. Morris actually made a salient point: It doesn’t matter that the Media is bashing Bush, it matters what they are bashing him about. If they are bashing him about National Security it plays in Bush’s favor because approx 70% agree with his stance on protecting us, whereas if they are bashing him about Social Secuirty or Drug Prescription then it hurts him as that is a subject that is 70% against him. Morris said the Dems playing up the NSA thing actually helps Bush because it keeps National Security in the front pages and Bush is strong on National Security.
O’Reilly also noted a Fox News Poll that asked what the “Top Story” of 2006 would be. The winner was the War in Iraq with 47% and at the bottome was the NSA story with 7% (Below gasonline prices at 13%)
Apparantly we are not the only ones who think that the Dems are stepping all over their dicks with beating this NSA story.
And then fail spectacularly so their guys can finally win an election afterward.
Well, I think if the strongest argument people can make against the Bush Administration doing these things without abuses, is that someday the Democrats may get back in power and do these same things with abuses, the things the Bush Administration is doing may not be the real problem.
Besides, it’s not as if the last Democrat in power needed a war or a Patriot Act to be able to abuse the powers of his office.
A little less hyperventilating about potential abuses inherent in these powers, might be in order.
“Zell Miller or Joe Lieberman, Gentlemen, which ever of you is the last to leave the Democratic Party, would you please turn out the lights?”
TW: through – That party is through!
A simple point to add to all the above: warrants are required for prosecution under criminal law, while military intelligence is used to further the prosecution of a military campaign under the rules of war (shoot ‘em where you find them, unless you want to keep monitoring them). What the NSA does is military intelligence. Just ask the guy at the guard shack who will turn you away with lethal force if you try to visit the NSA (just off the Baltimore-Washington Parkway) without an invitation.
TW: Anyone think the arguments against NSA surveillance are missing the point that there’s a war on?
“Bush Administration doing these things without abuses”
The problem with this is that abuses hidden behind the veil of national security are naturally going to be harder than normal abuses to uncover.
You want to give him a veil, trust that he is behaving behind it, and then attack anyone who wants to take a peak to make sure.
Precisely. Of course, “he” isn’t collecting the intel, the Senate intel committee is briefed, the NSA has its lawyers monitoring things, and the program undergoes repetitive FISA Court reviews.
Whereas YOU, because you don’t trust “him” and “his veil,” think you have the right to throw open a highly classified program on the off chance it is being abused—national security be damned.
And yet I bet you think YOU’RE the conscientious one.
Tom Ault:
You’re right to say that this debate involves two separate and unrelated issues:
1)Whether this spying program is legal and
2)Whether the program is good policy
I’m perfectly willing to believe that the program is good policy, that it’s an effective way of fighting terror without encroaching unreasonably on civil liberties. But the fact is, none of us knows enough about the program to judge whether it’s good policy. All the specifics of the program are classified.
The reason the debate has so far focused on the legality of the program is obvious: 1) unlike the policy questions, we have enough information to make an informed judgment about the program’s legality, and 2) if the program is illegal, the policy question is irrelevant.
The administration itself has conceded that the program does not comply with FISA. The arguments proffered by the DOJ in support of the program are incredibly weak and fly in the face of well-established Supreme Court precedent. If this program is indeed good policy, there is no good reason for not seeking to have FISA amended to allow for it.
I’m continually amazed that so few people are capable of separating this issues out in their own minds. Conservative sites like this one offer endless speculative arguments as to why this spying program is a good idea. But this amounts to an argument about what the law SHOULD be, not an argument about what the law IS.
The cases cited by the WSJ are laughable in their lack of support for the administration’s legal theories. The line from Sealed Case is mere dicta and was clearly NOT intended to suggest that Congress lacks the authority to regulate the surveillance of U.S. citizens within the U.S. And the Troung case evaluated pre-FISA law. As anyone who knows anything about constitutional law is aware, there is a world of difference between the president’s authority absent a law and the president’s authority in the face of a congressional law directly on point. So Troung is totally irrelevant.
I’m getting pretty tired of arm-chair lawyers opining about things they clearly don’t understand.
If the program at issue is vital to national security, it’s well past time for the President to seek congressional approval of it. If he can’t secure approval for the program (in a Republican congress) then so be it; that’s the will of the people. But it’s high time to end this charade that the President can pick and choose which laws to follow so long as we are fighting terrorism somewhere in the world (i.e. forever). That is so clearly NOT what the Framers intended when they drafted the constitution that it’s stunning how many self-described “originalists” are willing to endorse it for clearly partisan reasons.
Not surprisingly, you have things exactly backwards. As I have been at pains to point out in each post on the subject, from what we know of the actual program, not a single law has been provably broken. That the admnistration has chosen to engage the hypotheticals—often hysterical and farfetched hypotheticals, mind—by the programs’ critics seem to me to serve two purposes: 1) assert executive war time powers, and create a legal debate over the matter within the bounds of the hypotheticals set up by civil libertarian and leftist critics; and 2) to bait the left and civil libertarian absolutists into overplaying their hands by suggesting that laws were broken in an effort to serve the national interest, with no proof that such laws were in fact broken—and to further take the position that the hypothetical breaking of those laws (to which there is no proof in evidence) is more important to explore (by further revealing classified information) than is keeping state secrets that have, in has been reported time and again, been reviewed by members of the Senate, the DoJ, the NSA’s lawyers, and the regular oversight and review of the FISA court.
It also bears noting that the President DID seek congressional approval of the program when he appealed for (and had passed) the joing resolution on the use of force—which includes the use of military intel for purposes of monitoring (though not, in all cases, of prosecution).
If you are really, as you say, tired of “armchair lawyers opining about things they clearly don’t understand,” you might begin by applying that standard to yourself. Because every one of the legal arguments I’ve read suggesting something illegal has happened depends upon facts no where in evidence, and upon an understanding of the program that is at best highly speculative, and at worst completely wrong.
Finally, the administration has NOT conceded that the program does not comply with FISA; instead, it has said it complies with one of the exemptions allowed for BY FISA—statutes never meant to constrain the President’s war time power (and a conclusion backed up by any honest reading of the electronic surveillance definition or 18 50).
So no—like Glenn Greenwald, et al, before you, you simply beg the question: we DO NOT have enough information to make an informed judgment about the program’s legality, and 2) because we have no evidence the program is illegal, the policy question is perfectly relevant.
So noâ€â€like Glenn Greenwald, et al, before you, you simply beg the question: we DO NOT have enough information to make an informed judgment about the program’s legality, and 2) because we have no evidence the program is illegal, the policy question is perfectly relevant.
Nice try, Jeff, but you can’t have it both ways. If we don’t have enough information to judge the legality of the program, we certainly don’t have enough to judge its policy merits. If you insist on remaining agnostic about the former, you have to remain agnostic about the latter. Policy analysis is, after all, much more fact-intensive than legal analysis.
It also bears noting that the President DID seek congressional approval of the program when he appealed for (and had passed) the joing resolution on the use of forceâ€â€which includes the use of military intel for purposes of monitoring (though not, in all cases, of prosecution).
Rubbish. The topic of warrantless wiretapping was never even raised during the AUMF debate. No one in Congress thought they were giving the President permission to do warrantless wiretapping in controvention of FISA. Senators Brownback and Specter (among others) have made this clear. Plus, shortly after the AUMF, the White House sought and Congress passed the Patriot Act which amended FISA in a number of important respects to help fight terrorism. Those amendments would be both unnecessary and redundant if the AUMF authorized the circumvention of FISA. And, let’s be frank, there is no case law at all that supports the idea that a vague joint resolution supercedes a very specific statute, especially when the joint resolution in no way mentions the statute and it is clear that Congress did not intend to change it in any way. Moreover, FISA contemplates war, it has a whole section on it. So the wartime/peacetime distinction is empty as well.
You’re also wrong about what the president has conceded. On several occasions now he has conceded that U.S. citizens were wiretapped without a warrant. That plainly violates FISA. And tellingly, the administration has not even argued that the spying they’re doing complies with FISA procedures. What will it take for you to concede this plainly obvious point? Do they have to wiretap you personally?
Finally, Jeff, your suggestion that the “other statutes” language in FISA is some kind of super loophole which justifies all this is silly. That line refers to Title III and the other pre-existing wiretapping statutues. It was included in order to make it clear that FISA did not supercede them. It does not refer to the AUMF, particularly when that resolution makes no mention of FISA and was never intended to authorize wiretapping of U.S. citizens.
New post up at the top of the page. The gist, to answer some of these questions:
Secondly, there is nothing that is “rubbish” about the President not assuming he had to relitigate every aspect of standard AUMF language. The question is, why WOULDN’T the President assume AUMF gave him the power to gather foreign signals intel?
Your entire outrage requires you to reframe the question as Congress having not authorizing the President to warrantlessly wiretap US citizens—which begs the question in every way, under electronic surveillance definitions (Where, how, who was the target, how was the acquisition done, what is its legal use, what are the relevant legal protections, etc—all questions under dispute), as well as under fourth amendment protections and FISA exemptions following Hamdi and US v UBL.
FISA may have a whole section on war, but it was clear from its legislative history that it was not meant to hinder the President’ abitlity to fight a war against foreign enemies.
Finally, “wiretapping of US citizens”—which continues to be your language and the language of the NYT—does not necessarily mean what you think and suppose it means. Not only does the technology play havoc with your imagining of event, but so does automatic triggering mechanisms, and the fundamental differences you refuse to draw between law enforcement and military intel gathering.
At any rate, the new post is here. We can continue the discussion in that thread. But please allow my some time to track down pertinent links, eat my lunch, change a diaper, and read “Eddies Giant Teddy” to my son.
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