Delayed Reaction to NSA Wiretapping

by Charles

After absorbing over a week of news regarding the warrantless surveillance by the NSA, I thought I'd write this down to keep it all straight.  Calls for impeachment are serious business, not to be taken lightly or quickly or without good reason, and several of those calls have been made.  From what I've seen so far, the person who has written the most clearly on the NSA surveillance matter has been Orrin Kerr, along with a few others such as Cass Sunstein (more from Sunstein here).  Going through the list of fundamental questions:

Did it violate the Fourth Amendment?
Probably not, since the surveillances involved international calls and e-mails, and there is a plausible argument that border search exceptions exist.  There is also case law which opens the door to exceptions on the grounds of national security.  Kerr links to the relevant court cases and he comes across as reasonable.  In a follow-up post, Kerr raises the issue of the special needs exception.

At this point, there is much we don't know about who was being surveiled, their citizenship, where they were and the nature of the communications but, to me, it is unsettling that this course of action was taken.  The administration made the excuse that they didn't want to codify the surveillance into law because Congress wouldn't approve it anyway.  The excuse is lame, but it doesn't look like it violates the Fourth Amendment.

We also don't know where the surveillance was taking place.  Jeff Goldstein:

The point being, that we don’t know enough about the program itself to state with any kind of certainty that FISA law (or fourth amendment protections, for that matter) has been violated, and from what we do know from official statements is that the collection of information is happening outside of the US ["when the surveillance occurs outside of the United States, FISA is not applicable, and there is no requirement of prior judicial authorization. In these cases, Executive Order 12,333 is the primary source of regulation”—Duke Law Journal, in an analysis of the Echelon program; much more here.]

However, the idea that collecting information outside the United States yet still involving a United States person on U.S. soil is unnerving.

Did it violate FISA?
Probably so.  The language is fairly direct about who United States persons are, what electronic surveillance is, and the requirements for warrants before surveiling them.  What's more, while al Qaeda can be classified as a foreign power under 50 USC 1801(a), they are specifically excluded from domestic surveillance sans warrants because 1802(a)(1) covers only three of the six kinds of foreign powers, and international terrorist organizations aren't in that top three.  If the law is to be changed, adding one or more of these kinds of foreign powers to the list would be a start. 

But even if al Qaeda were included as a foreign power as defined in 1801(a)(4) or (a)(5) and if communications among its agents, defined under (b)(2), are targeted for scrutiny, the administration still has to deal with the definition of electronic surveillance in 1801(f) and major restrictions to the exception language in 1802(a)(1)(B):  "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a part can be monitored without warrants."  As I see it, a United States person could very well be a traitor, but a warrant to monitor him or her is still required under the law.

But there is a huge "however", since the FISA Court of Review has addressed the issue and allowed the surveillance under the auspices of the Authorization to Use Military Force.  Former associate attorney general John Schmidt in the Chicago Tribune:

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

If impeachment should occur, then it should extend to two branches of government or not at all.

Was it allowed under the Authorization to Use Military Force?
Probably not, according to Kerr, but I'm leaning toward "probably so".  50 USC 1809 states that a person is guilty of FISA "except as authorized by statute", with the statute being the AUMF:

"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

There is some squishiness to it, depending on whether communications among al Qaeda agents and the surveiling of them is "so fundamental and accepted an incident to war".  Orrin Kerr sided against.  I think his first two reasons are debatable but the third reason (the Patriot Act was passed a month after the AUMF and it did not extend that authority to the president) is his best one.  To me, this area looks fairly gray, particularly since signals intelligence is a part of war and could fall under the interpretation of "all necessary and appropriate force".

Does Article II of the Constitution give the president the authority?
Kerr is not convinced since most of the administration's arguments tended toward a relaxed Fourth Amendment, and not directly addressing whether Article II made certain Congressional requirements inoperative.  I'll side with Kerr on this one, mostly because I'm not well versed in this area.  The argument that a president can violate an existing law because he has the inherent authority to do so (in his own judgment) is worrisome to say the least.

But the biggest question is: 

Was it an impeachable offense?
Opinions will vary.  To me so far, the answer is no because this is a not black-and-white case and there is much that we do not know.  Also, violating FISA may not have been a crime, and the standard for impeachment is that a high crime or misdemeanor was committed.  I don't believe this was a high crime because the surveillance actions were taken after consultations with the Justice Department, the procedures were time-limited and circumscribed, they were taken to FISA Courts of Review, and members of Congress were notified.  In other words, but for the surveillance of United States persons without warrants (yes, they are big buts and I don't like big buts*) FISA was followed.  Another ameliorating factor is that the communications were restricted to international calls and e-mails involving known al Qaeda suspects [Update:  At least, that's what the administration is telling us].  If the administration were intentionally trying to hide this surveillance by bypassing the Justice Department, the FISA Court of Review or Congress, then that would be another story.

* big butts on the other hand...

Comments

[rilkefan]

"the communications were restricted to international calls and e-mails involving known al Qaeda suspects."

Do we know this? And if so, why skip the FISA court?

[Duane]

So would you support appointing a special prosecutor? Correct me if I'm wrong (I'm not American), but their job is to investigate alleged law-breaking by a president, no? And it certainly sounds like an investigation is needed, even if you believe that it was probably not very illegal.

[Dianne]

Calls for impeachment are serious business, not to be taken lightly or quickly or without good reason,

This statement, from a Republican, made me...well, not roll on the floor laughing, but at least smile cynically. If Gingrich had made it my irony meter would have been blown sky high.

[Dianne]

the surveillances involved international calls and e-mails

Hmm...Don't we already have a dubiously legal entity known as ECHELON to eavesdrop on international email and calls? Why did anyone bother with wiretapping?

[Dantheman]

Dianne,

What does the addition of "Also, violating FISA may not have been a crime, and the standard for impeachment is that a high crime or misdemeanor was committed." do to your irony meter?

[Joe]

I second the first comment. This doesn't seem at all clear.

Second, is Kerr really the only one who covered this ground rather well? It seems, call be suspicious, convenient that the person who did so is sympathetic (if somewhat iffy ... which only helps really) to some of the President's claims. As shown by Krauthammer's column, etc., Sunstein doesn't add much to diminish said suspicion.

I think the impeachment bit is a red herring. It's the most controversial matter and a conversation stopper at that. I do note enough red flags are raised in this post to be quite wary of what the President did.

Finally, the FISA appellate panel is surely not the final word on the subject, surely not when legislation clearly tempers said authority. It surely is not the case when the open-ended words are dicta.

[spartikus]

"the communications were restricted to international calls and e-mails involving known al Qaeda suspects."

Do we know this?

We do not know this. There has in fact been credible reports to the contrary.

[Ugh]

Second, is Kerr really the only one who covered this ground rather well?

There have been posts at Jack Balkin's blog, http://balkin.blogspot.com/.

Also Charles, will you be posting this at redstate.org too, as you have done in the past? It's always fun to compare the comment threads...

[CharleyCarp]

A fine post, Mr. Bird.

Fourth Amendment

I don't find the border search cases relevant. The cases Kerr cites have to do with reasonable suspicion that there is contraband. They do not stand for the proposition that every letter sent from abroad can be read by the government, without a warrant.

Surveillance outside the US that involves a US citizen is outside of FISA, but is not outside of the Fourth Amendment.

I think we're going to have to have more facts before the Fourth Amendment can be ruled irrelevant.

FISA & AUMF

As you say, we don't have sufficient information to say for sure whether FISA was violated, becuase I'm not sure we know whether the surveillance was conducted inside the US. If it was, I don't think the AUMF is enough to get over the hump, because FISA itself provides for what happens in a state of war. The reason FISA amendments were included in the Patriot Act -- and further amendments were explored -- is because all the players understood that AUMF isn't alone sufficient to immunize lower officials from criminal and civil actions under FISA. Note that listening to one foreign AQ member talk to another isn't going to me a FISA violation. But listening to me talk to someone said to be the mother of a member of AQ is. And the AUMF isn't going to reach that latter scenario.

Article II

This is the dangerous argument, and the only one that makes the issue worth discussing. The full Yoo/Miers/Gonzales theory of executive power must be repudiated. And it's important to note that these people are not talking about empowering GW Bush, they are talking about empowering the Presidency. So it doesn't matter whether or not one trusts Bush -- accepting this notion requires one to trust everone who ever occupies the WH again. It's a bad idea, and contrary to the constitutional scheme.

Impeachment

Not where I'd go, but I didn't think the last two were worth doing either. (I would have gone along with impeaching Nixon, though, and can imagine, at the end of the day, facts sufficient to put GW Bush into Nixon country. Haven't been convinced of them yet).

[Blue Neponset]

I found a good response to this:

To me, this area looks fairly gray, particularly since signals intelligence is a part of war and could fall under the interpretation of "all necessary and appropriate force".

at Balkinization:

Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

[Anderson]

Agree w/ Charles that, on the facts *as we now have them*, impeachment isn't plausible. Did the President have good reason to *know* he was breaking the law? Nixon was covering up good old breakin' & enterin', etc., stuff that anybody should know is illegal.

I don't buy Charles's argument that FISA wasn't violated, however. The administration hasn't made any decent arguments to the contrary (the AUMF thing is just laughable, and I hope Charles retreats from it).

[Rob]

"Calls for impeachment are serious business, not to be taken lightly or quickly or without good reason . . ."

My only comment to that is: Would somebody please explain to me the difference between a consenting sexual escapade and an order to spy on law abiding americans??????????????

[Ugh]

I don't buy Charles's argument that FISA wasn't violated, however. The administration hasn't made any decent arguments to the contrary

This is exactly right, they haven't even bothered to argue that FISA wasn't violated, other than to say the AUMF was an authorizing statute. Without the AUMF, they have nothing and clearly know they have been violating FISA.

[Tully]

Realistically speaking, "impeachable offenses" are whatever Congress says they are. That's (realistically) politics, not law. Johnson's legal position in his impeachment was later vindicated by the Supreme Court--decades later, that is. That didn't stop the process from reaching the Senate and failing by a hair.

The argument about conflicting Constitutional authorities between branches has been ongoing since before the ink dried in 1789. And those authorities do change a bit after a declaration of war, for which the AUMF qualifies. (Per both Biden, who drafted it, and the Supreme Court.)

It is important to note that there's a BIG difference between military/security intel gathering and criminal investigation. The general relief to an illegal search in criminal cases is exclusion of the evidence, not indictment of the investigators.

[EB]

Charles, try this exercise as honestly as you can: the exact same facts and circumstances have just taken place, but the President is Al Gore.

What kind of legal conclusions would you be pimping in this post?

[Pooh]

Charles, good post, a few quibbles.

First of all, the Schmidt quote, is, I believe dicta from a FISC case not on point. (Sorry, don't have a link handy, but I believe it was Lederman at Balkinization.

Second, Krauthammer egregiously misrepresented Kerr's position through selectve quotation. (see here for his mildly worder correction.)

Third, electronic surveilance in violation of FISA is a felony: 50 U.S.C. sec. 1809

As for impeachment, I'm skeptical, but if more stuff like this starts to come out, all bets are off: U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.

A review of Justice Department reports to Congress by Hearst newspapers shows the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.

The 11-judge court that authorizes FISA wiretaps modified only two search warrant orders out of the 13,102 applications approved over the first 22 years of the court's operation.

But since 2001, the judges have modified 179 of the 5,645 requests for surveillance by the Bush administration, the report said. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004. And, the judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection of a wiretap request in the court's history.

[Anderson]

Realistically speaking, "impeachable offenses" are whatever Congress says they are. That's (realistically) politics, not law.

Exactly right, Tully. Talking 'bout impeachment is just whistling Dixie, with this Congress, this President, and this issue. Not to mention this electorate.

[Dianne]

Danthman: I've had to send my irony meter out for repair and recalibration (to a lower level of sensitivity) _again_ since you pointed that quote out to me.

[John Thullen]

I was about to add, before Tully said it better, that "high crimes AND misdemeanors" can be construed to include everything ... I'm a layman .. so what do I know? Or does it mean treason or lying about a wedgee in the Oval Office but nothing else and/or nothing in between?

I don't get how a guy like George W. Bush, who never permits black and white good or evil) to mix in his world, can somehow always end up in the gray zone. It would make me green with envy but I'm already green from being sick to my stomach.

I love, too, how Cass Sunstein is in this one instance a cudgel to beat the Democrats (I'm talking now of Leon H.'s post at Redstate, not so much of Charles' here) over the head, but Chuck Hagel, Jack Murtha, and John McCain become something less than American when they occasionally criticize the Admininstration.

I don't really love it. I'm fed up with it, as in utterly disenfranchised and f------ pissed off. I'm sick of ending yet another year feeling doomed.

Happy New Year. I hope it's a short one.

[Francis]

As one of the lawyers in the crowd, i've got to jump in on this.

as a threshold matter, CharleyCarp (who is also an atty and doing great credit to the profession [not to mention risking his ass and his career] by representing Gitmo detainees) is entirely correct in his comment above.

As to the 4th amendment, the admin. is relying entirely on the reasonableness clause. one area where warrantless searches are reasonable is persons and things seeking entry into the country (the "border search" exception).

now, it doesn't take a rocket scientist to see a HUGE difference between searching persons and things, so as to exclude contraband and undesirables, and the content of communications. As the border searches cases note, our border officials have never (in modern times) had the authority to read international mail without a warrant, because statutes specifically prohibited such conduct.

so reliance on the border searches cases is just wrong. The argument fails to recognize that the underlying premise for allowing the warrantless search is completely inapplicable in the context of speech / information.

other special needs: i'll get back to this in a bit.

FISA: since FISA specifically contemplates its continuing vitality during wartime, the idea that the AUMF constituted a silent override of FISA is just outrageous. that's just making stuff up. what this argument is really about is that FISA is unconstitutional.

now, I believe that the president, due to his constitutional obligation to faithfully uphold the law, is barred from arguing that a law is unconstitutional. (i have not done the research on this, though, and would welcome differing viewpoints.)

i also believe that the argument that FISA is unconstitutional is utterly without merit. The Congress has extensive powers under Art. I to establish rules governing the conduct of warfare, and the President's Art. II C-in-C power is clearly subservient. Otherwise, for example, the UCMJ is unconstitutional, as are all the treaties (like the Geneva Convention) limiting the way in which the C-in-C can wage war.

my beliefs aside, the notion of executive supremacy in warfare is a really big deal, and one that should be investigated both by Congress and a Special Prosecutor. The administration is asserting truly unparalleled powers.

Before I give any credence to the Yoo memos, I'd like to know what the assignment was. If it was "what are the scope of the president's powers", that's an important fact in the President's defense. If it was "Come up with all possible ways to justify what the President wants to do" (which I think is more likely), then Yoo is just another co-conspirator in a nasty conspiracy to avoid judicial and congressional oversight over an illegal spying program.

Back to special needs: In the "Sealed Case" decision of the FISA appellate court, the administration makes much of the fact that the wall between foreign surveillance and criminal investigation (a) didn't ever exist and (b) was in any event eliminated by the USA PATRIOT Act amendments.

well, ok, i guess. i don't know a lot about this area of law. HOWEVER, this argument cuts strongly against warrantless searches for the purpose of foreign surveillance ONLY.

Inconsistent argumentation is for private sector lawyers like me, who can take different sides for different clients. When the govt tries to do so, it pisses off judges, even conservative ones like Luttig.

In "Sealed Case" the government essentially argued that there was no such thing as "foreign intelligence surveillance" only. All FIS, the govt argued (at least, so I interpret) can also be used for other purposes, like criminal punishment.

If that is so (please note that I take no position on the govt's argument), then the notion that pure FIS falls within the special needs exception to the 4th amendment FAILS, because there is no such thing as pure FIS.

this post has gotten long enough. i'll stop for now.

[hilzoy]

Charles: I don't know if you saw this, but AG Gonzales said:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

As I read this, he's saying: the surveillance in question is covered by FISA, and would be illegal without statutory authorization. The only reason it wasn't illegal is that the AUMF provided that authorization. So at any rate the administration seems to have believed that it was covered by FISA.

About the AUMF: the PATRIOT Act included various revisions to FISA. I'm not sure why Congress would have done this had they believed that they had already authorized the President to engage in any wiretaps he pleased. And I believe that two normal rules of statutory construction are:

(a) statutes need to be repealed explicitly, and

(b) when an earlier, vaguer law is followed by a later, more specific law, the later one trumps (since it's clearer that it's on point, b/c less vague, and also it supersedes the earlier law, because it's later.)

For this reason I tend to take the PATRIOT act, which revised FISA, as evidence that FISA still holds after the AUMF.

I called for the President to be impeached if it was true that he had ordered his subordinates to engage in violations of the criminal law. I still believe that, if that happened, it is impeachable. I can see arguments for and against the claim that impeachment would be a good idea in those circumstances, but not against the claim that ordering lawbreaking by government officials is not impeachable.

The arguments about whether it's a good idea would (to me) be affected by whether or not the President showed any sign at all of recognizing that what he did was wrong. (Not because I'm out for a pound of flesh, but because it matters that this not happen again.) I see no signs of that at all, and nothing in my knowledge of Bush suggests that I'll see one any time soon.

To the contrary, he seems to think this is just fine, and says he'll continue to authorize this program again. Moreover, I'm still completely unclear on why he had to evade the FISA court: it's not as though it's hard to get warrants or anything. The suggestion that some new technology makes FISA inappropriate makes me think: (a) change the law, if need be, and (b) the most likely reason for its being inappropriate to this technology is that it does, in fact, sweep up huge amounts of data without anything resembling probable cause. Which means: you can't get warrants for it under FISA because you shouldn't be able to.

So we seem to have a President who thinks: when the laws are inconvenient, we can just disregard them in secret. This sort of power grab by the executive is, to me, the paradigm case of an impeachable offense. I could easily be persuaded that impeachment was nonetheless a bad idea, but it would help a lot if the President showed some glimmer of understanding of what was wrong with what he did.

[rilkefan]

EB - check the posting rules.

Looking forward to more comments from Francis, CC, and (I wish) von and SH.

[hilzoy]

Oops:

"but not against the claim that ordering lawbreaking by government officials is not impeachable."

has an extra 'not' (the second one.)

[rilkefan]

Good stuff at LacDogDuFeu.

(And man do I love this pic.)

[Ugh]

the most likely reason for its being inappropriate to this technology is that it does, in fact, sweep up huge amounts of data without anything resembling probable cause. Which means: you can't get warrants for it under FISA because you shouldn't be able to.

I think this is right-on hilzoy, they're scooping up massive information for a giant fishing expe- excuse me "data mining" and wanted the FISA court to bless it. When the court wouldn't (or more likely, wouldn't after the fact), they just decided to ignore it.

In addition, Charles has posted this on the front page at redstate, which, if they're done celebrating Christmas yet, should be enjoyable.

[Pooh]

Francis,

now, I believe that the president, due to his constitutional obligation to faithfully uphold the law, is barred from arguing that a law is unconstitutional. (i have not done the research on this, though, and would welcome differing viewpoints.)

I disagree strongly with this - I see it as a parrallel to Rule 11's bit about 'good faith argument to modify existing law'. If a President views a law as unconstitutional, he can challenge it (though doing so by breaking the law and not telling anybody is not what I have in mind).

As to the Yoo memos, I don't particularly care which 'question' was asked. Yes the objective/subjective dichotomy exists, but it's fair to say that this admin has made clear that 'objective' means 'objectively what the president wants'. (See e.g. the recent DoJ VRA flaps, the FDA Plan B decision, etc...) The 'my lawyer said it was ok' defense doesn't do much for me when the lawyer will be fired if he doesn't say it will be ok.

Hilzoy,

Well stated on the AUMF point. That 'implied repeal' argument just makes me mad every time I hear it.

[Ugh]

Pooh -

I think the practice of the SG's office is that they will argue in court that a federal statute is constitutional if there is a "colorable" (or maybe non-frivolous) argument that it is. Whether that standard holds anymore (or if it ever was the standard), I'm not sure, though it's likely subject to revocation by the President at any time.

[Tully]

Without jumping on any of the rest of it, as a practical matter the admin can't address the question of specific defenses/violations under FISA without revealing the exact handling of specific cases--which would be difficult without revealing the specifics of the classified methods employed. Which would make the continuation of the intercept program kinda pointless.

Without knowing the exact details of specific cases, it's impossible to say that FISA has or has not been violated. I can see numerous ways under FISA that such surveillances as described would not be violations--under the correct specifics. So failing to present a specific-case defense to nebulous and broad allegations means nothing at all. You don't defend against a case not made, and you don't indict on generalities.

That's without addressing the "constitutional authorities" dogfight at all, or the statutory exemptions argument.

[Pooh]

Tully, Ugh, etc.

I don't disagree, I was merely taking issue with Francis's contention that the President doesn't have the right to challenge the constitutionality of a law. (If it's a law he signed, he might be estopped from doing so, but that is not the case here.) Like I said, the manner of the challenge chosen here (if his intent was to challenge FISA...ok, maybe not) is not appropriate.

[CharleyCarp]

Francis, "ass" and "career"? !!
You know something I don't?

OT: My personal safety is less at risk with this case than yours is if you have to drive to a zoning board hearing in Santa Barbara. The Navy folks assigned to escort us around the base are unfailingly professional. The Army guys at the prison have the same interraction with us as TSA guys at the airport security gate, and are as threatening. My clients aren't a danger. The biggest risk, I suppose, is the 3+ hour flight in an 8 seat prop plane.

On the career, side, I work for a great firm, that is unstinting in support of pro bono efforts, even with major cases like the Intelligent Design case and this one. (The former gets all the press, which I don't mind in the least). I'll take a minor pay hit, I imagine, but compared to what people who actually work for a living make, I can't complain about that in the least.

/OT]

I think the AG can argue that a law is unconstitutional, especially 'as applied.'

[Ugh]

Keep fighting the good fight CharleyC!

In the meantime, I have to go back making sure large multi-national corporations pay as little in taxes as possible.

[Francis]

CCarp:

abortion providers and public defenders are not exactly the most popular individuals in any community. Counsel for Gitmo detainees fall in the same category. I've long since stopped reading LGF, but i suspect that there are plenty of people who wouldn't mind seeing you dead. please follow common-sense precautions.

As to DOJ arguing unconstitutionality -- cites, please? even to a SG policy piece?

[Ugh]

I've long since stopped reading LGF, but i suspect that there are plenty of people who wouldn't mind seeing you dead.

Yes, James Wolcott has a recent piece about LGF's commentors wishes for war critics to have their heads cut-off by terrorists.

[Charles Bird]

Also Charles, will you be posting this at redstate.org too, as you have done in the past?

I put it in a diary and the editors front-paged it, Ugh. Must have been a slow posting day at Redstate.

Charles, try this exercise as honestly as you can: the exact same facts and circumstances have just taken place, but the President is Al Gore.

Well gosh, you mean I have to answer honestly? To humor you, EB, I don't do hypotheticals as they tend to be big fat wastes of time.

Charley and Hil, I hear what you're saying, and all I can say is that there's way too much that we don't know.

[Ugh]

To humor you, EB, I don't do hypotheticals as they tend to be big fat wastes of time.

I tried that with my law school professors during exams, but they weren't buying.

[spartikus]

OT: Is Redstate.org frontpager "Leon H." and commentator "MachoNachos" one and the same?

Just curious...

-Redstate.org Politburowatcher

[CharleyCarp]

Now you're scaring me!

I've been favorably surprised by the reaction of my neighbors (all interviewed for my clearance) kids' friends' parents, and clients.

I would think that cases on 28 USC 2403(a) and on new FRCP 5.1 is a good place to look re: government obligations. It is certainly presumed that the government will defend a statute, but I'm not sure it is barred by the Constitution from taking the other position. I could be wrong.

[Pooh]

Ugh,

An aphorism one of my profs liked seems apropo of the course of this debate: "If you want to change the hypothetical, pay more tuition."

[CaseyL]

"I can say is that there's way too much that we don't know."

Isn't this one of the cruxes of the problem?

Bush ordered secret wiretaps, without FISA review/approval.

He says no purely domestic communications between Americans were targeted, but unless we know who was targeted, that claim can't be verified... and Bush is also claiming that revealing such information would damage national security.

There's also the issue of whether the 'wiretaps' were actually datamining operations - which, as I understand it (and please correct me if I'm wrong), by definition doesn't distinguish between purely domestic communications and foreign ones. So, if datamining was used, that's ipso facto in violation of the law.

So what we have is an Administration that mounts an operation in secret that might be illegal - and uses that same secrecy to keep hidden the information necessary to determine whether the operation is illegal.

[CharleyCarp]

Myers v. United States, 272 U.S. 52 (1926). I don't know why it took me so long to think of it. The government argued for the unconstitutionality of a statute:

By the 6th section of the Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179, under which Myers was appointed with the advice and consent of the Senate as a first-class postmaster, it is provided that

Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law.

The Senate did not consent to the President's removal of Myers during his term. If this statute, in its requirement that his term should be four years unless sooner removed by the President by and with the consent of the Senate, is valid, the appellant, Myers' administratrix, is entitled to recover his unpaid salary for his full term, and the judgment of the Court of Claims must be reversed. The Government maintains that the requirement is invalid for the reason that, under Article II of the Constitution the President's power of removal of executive officers appointed by him with the advice and consent of the Senate is full and complete without consent of the Senate. If this view is sound, the removal of Myers by the President without the Senate's consent was legal, and the judgment of the Court of Claims against the appellant was correct, and must be affirmed, though for a different reason from that given by that court. We are therefore confronted by the constitutional question, and cannot avoid it.

[CharleyCarp]

I had a case about 10 years ago where we were arguing over the meaning of Myers. (It had to do with the applicability of the Federal Advisory Committee Act to the Clinton Admin's formulation of spotted owl policy.) Today, I like the Holmes dissent:

The arguments drawn from the executive power of the President, and from his duty to appoint officers of the United States (when Congress does not vest the appointment elsewhere), to take care that the laws be faithfully executed, and to commission all officers of the United States, seem to me spider's webs inadequate to control the dominant facts.

We have to deal with an office that owes its existence to Congress, and that Congress may abolish tomorrow. Its duration and the pay attached to it while it lasts depend on Congress alone. Congress alone confers on the President the power to appoint to it, and at any time may transfer the power to other hands. With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end. I have equally little trouble in accepting its power to prolong the tenure of an incumbent until Congress or the Senate shall have assented to his removal. The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.

[Francis]

wow. what a great case. it needs more time than I can give it right now.

btw, wasn't there a relatively recent case regarding the appointment and removal power, where Scalia wrote a vicious dissent? (something to do with special prosecutors investigating the executive branch? magic 8-ball says reply hazy, try again.) doesn't that case discuss the power of the Congress to place limits on the exercise of Executive power?

regarding current ignorance on details of the program. The NY Times has its flaws, but I seriously doubt that it would sit on a wiretapping story for a year, then publish it over White House objections, if the response from the White House had been that the program was perfectly legal in light of the complex definitions of FISA.

having been involved in some legislative drafting efforts, I believe that there is likely only a very small group of people who have a deep understanding of the relationship between our nation's technical skills and the definitions in FISA. the language of those definitions suggests to me that the drafters of FISA (and its amendments) were briefed on what NSA could and couldn't do, and drafted back from there.

i'm also guessing that the recent leaks as to how NSA taps (ie, apparently by having access, fettered only by the issuance of FISA warrants, to the physical switches in the US routing communications through the backbone of the US communications systems) are being done by those who understand the importance of the "in the US" language in FISA.

[Michael Cain]

As one of the (few?) technologists reading here, I have to ask how effective is broad monitoring of cell phone or wireline voice conversations? Non-standard real-time IP audio applications are not hard to write -- I wrote my first one in 1993, running on hardware that was painfully slow by today's standards. Source code for strong encryption is readily available. Operating systems such as Linux are guaranteed not to have any odd backdoors. Essentially random IP addresses are available through the growing number of public wifi hotspots, or by using private but unsecured wifi networks. I can think of a variety of schemes for exchanging the necessary IP addresses at the last minute that are reasonably secure.

Assuming the terrorists are practicing at least a bit of so-called tradecraft, it ought to be easily possible to conduct secure voice conversations with parties overseas. Am I grossly overestimating al Qaeda's ability? Or underestimating the NSA's? Could they feasibly monitor every sustained TCP or UDP exchange and process it as if it were strongly-encrypted audio?

[Jake - but not the one]

As hizoy pointed out, it's not the blow job, it's the lying under oath. The question is, why did Clinton lie under oath? I think it's because he knew that he'd TOS'd up big time from a personal trust standpoint. There was Hillary, Chelsea, the rest of the family, and the rest of us. Clinton cared, for whatever reaso, about trust, and about a lack of trust. Bush, otoh, seems to be oblivious to the trust he has lost. He never had much - hence just barely beating Kerry in '04 - and now he has lost most, if not all, of the bank of trust he had as pres. The big middle, that 40% of the country that is not hardcore dem or rep, has turned away from him.

That is the issue. Whateve happens, unless he actually rises to some occasion, a feat of which he seems incapable, he will end his presidency profoundly mistrusted, and not missed at all.

Jake

[Jake - but not the one]

At least I think it was hilzoy. The comment may have been made by another woman poster for whom I have great respect, and I confused the two.

That's the problem with respect. It's so hard to keep track of. :)

Jake

[CharleyCarp]

Francis, you might be interested in http://www.usdoj.gov/olc/nonexcut.htm>this discussion from OLC about Executive power to ignore statutes. Executives always think they have lots of it -- and I wonder what a Court without CJ Taft would've done with Myers.

OT: The founder of my firm argued Myers on behalf of the Senate. Lost, of course.

[Anderson]

The Scalia op was in Morrison v. Olson, 487 U.S. 654 (1988), IIRC, dissenting from the Court's 8-1 upholding of the independent-counsel law.

[Jesurgislac]

Rob: My only comment to that is: Would somebody please explain to me the difference between a consenting sexual escapade and an order to spy on law abiding americans??????????????

I dunno, but I told a friend who announced out of the blue that he'd blow George W. Bush if he met him cruising, to make damn sure he had a friend waiting with a digital camera, and we'd get the pics all over the web.

Jake: As hizoy pointed out, it's not the blow job, it's the lying under oath. The question is, why did Clinton lie under oath?

Because he'd been asked a highly inappropriate question. See the Plaid Adder for some contemporary Democratic commentary on the issue.

[Joe]

The "border search" dodge has been addressed, but since it was on my mind today, I'll second the criticism above.

Most importantly, surely there is a distinct different between an actual search at a border and a search of something that in some virtual sense went thru one. Such as let's say an email to me from Canada.

Secondly, this is a bit much: "I don't believe this was a high crime because the surveillance actions were taken after consultations with the Justice Department, the procedures were time-limited and circumscribed, they were taken to FISA Courts of Review, and members of Congress were notified."

This is surely a slim reed. (1) The Justice Dept. is a branch of the executive; consulting with one's agents doesn't really temper illegality, does it? (2) Just how "time-limited" and "circumscribed" are we talking about here? Is FISA only concerned with really long breaches or something? (3) What about a "high" (which btw also means "national in scope" or such, not just "large") "misdemeanor"? (4) How exactly were they taken to FISA? If adequately, why the concern from the judges themselves? and (5) Does notifying -- somewhat and w/o them having to ability to tell any one -- a few members of Congress of a crime somehow not make it one?

Anyway, my concern is the secrecy, failure to ask Congress for the authority (clearly debatable), excessive claims of executive power, and the lackluster nature of the press coverage. The rest, and yes I know Marty Lederman et. al have covered it well (I was being a bit sarcastic above), is troubling too. But, those four really upset me.

[liberal japonicus]

OK, I suspect that Chas is trying to put HoCB out of business with reasonable posts like this. However, I don't think he counted on the amount of will that has been harnessed in the enterprise. For all of you tired of discussing this question in a reasonable way, a post holiday HoCB thread for all you ObWi folks who haven't had enough strife and snark during the holidays is open for business.

[Ugh]

As hizoy pointed out

H to the hizoy, h to the hi-zous!

[Francis]

CharleyC: for a reference to my own (not-so) glorious attempts at oral argument, see my latest comment on the No Relief to Offer post (two down).

[John Lopresti]

Recall in the news a very few years ago some US plane grounded somehow in a here unnamed east Asian country; US mfg trying to bring the plane back; question of how much equipment there was insufficient time to alter when it was clear the plane had to land; it was eavesdropping in international waters into that country. I wonder if those rigs are more snoop equipped than mere US-based CALEA ports, the brand-x variety the onshore local secret court here processes. Another unknown: in 2003, was it, the Madrid cellphone based catastrophe; but that probably was that nation's version of a CALEA access to the composite storage of all audio from all towers, servers, and switches. The perpetrators of the Atocha debacle were identified and brought to court quickly.
Though this is only the equipment stuff. The checks and balances are important. I appreciate this discussion.

[NeoDude]

Why do right-wingers pretend to hate sex so much?

[NeoDude]

Charles wrote,

Calls for impeachment are serious business, not to be taken lightly or quickly or without good reason,

Why do right-wingers pretend to hate sex so much?

[Jake - but not the one]

Jesurgislac, no doubt Starr was a gunslinger. But my point is that in comparing Clinton to Bush, there are fundamental differences in how each man views the people who trust him - and why he belives they should trust him. Clinton lied because he belived that trust was all that a pres really had going for him, and he rightly believed that Monica and the blow job would cost him his presidency. Bush didn't lie, at least not about the FISA thing, because he expects people to trust him simply because he IS the pres. I don't think he has grasped that in his misguided pursuit of presidential perogative, he too has lost the trust of the American people - only he has not yet recognized it.

Clinton knew he was screwed. Monica happened AFTER the Starr investigation was underway. He is, and was, more than bright enough to know that, with Starr looking for dirt, keeping his willy in his pants was the only smart thing to do, yet he didn't. And without Monica, it's quite possible Bill gets away with it all. As for GW, I don't think he ever really stood a chance. He simply doesn't have the tools for these times. He certainly doesn't understand how much he has lost in the past year.

I don't think his supporters realize how much he has lost, either. He no longer has a majority of the American public supporting him. It's unlikely he ever did - a simple majority of voters is all he can claim. Not that the majority, any majority, is automaitically right, but the pres is supposed to serve all of us as best he can. We are not children, and he is not all knowing. GW taking care of the radical right, as few as they really are, is not serving the rest of us very well at all. I think he is incapable of seeing that he is not serving us well.

That's the trouble with yes men and women. No one there to tell you when you are driving the train off the tracks.

Jake

[angela]

The administraton has stated some of the taps may have been purely domestic.

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/12/22/MNGOHGBM9N1.DTL

This speculation is disturbing and would explain lack of warrants.

http://www.latimes.com/news/nationworld/nation/la-na-spy25dec25,0,1480152,full.story?coll=la-home-headlines

[JoeJP]

"Clinton knew he was screwed."

Which, in his mind and others, was different from having sex. Anyway, I don't really accept your reasoning in full. After all, Clinton's presidency was not destroyed -- he served his eight years and so forth.

As to the trust matter, yes it was important, but his emphatic defenses of what many knew to be false (they just didn't want to know about it ... the difference with France is not the cheating, it is that they know how to be more discreet about it) was simply put stupid as well as self-defeating.

Likewise, in a sense, it was when he was on the defensive that he was most popular. Not only here, but also in his battles with Newt etc. There was an "enemy," a "right wing conspiracy" to oppose.

As to Bush having a chance, well he was re-elected and so forth. He is playing the system pretty well ... where are all the investigations and special prosecutors (okayed by the Clinton Justice Dept ... I'm sure Bush could have avoided many of them, even under the old law)? Impeachment is deemed even by many Democrats as silly to even bring up.

Finally, he really doesn't completely trust that the people will trust him because he is the President. Thus, the secrecy, misleading defenses, and hesistance to actually forthrightly and openly put forth his policy inclinations. This as much as the substance of them is the major problem, to the level of despising, so many people have with him and his fellow travellers.

This applies to this specific matter too.

[Ugh]

Ah, and so the consequences of Mr. President's fun little wiretap game begin:

Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts

"Government officials, in defending the value of the security agency's surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets."

"David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment."

This should be fun.

[blogbudsman]

Not Jake - "Bush didn't lie, at least not about the FISA thing, because he expects people to trust him simply because he IS the pres. I don't think he has grasped that in his misguided pursuit of presidential perogative, he too has lost the trust of the American people - only he has not yet recognized it."

Say what? Listen to yourselves. The only reason you all haven't run off a cliff is because you're chasing your tails. Snap out of it people. We have been attacked. We are at war. The future of our children are at stake. Our President is strong and determined, and is using the most of whatever weapons and safeguards available that the constitution and past pattern and practice will allow. Me thinks you are going to be a little surprised wherein lies the trust of the American people. Thank you Mr. President for what you've accomplished to keep us relatively safe this year. And to all, a happy and safe New Year.

[Jeff Eaton]

Well gosh, you mean I have to answer honestly? To humor you, EB, I don't do hypotheticals as they tend to be big fat wastes of time.

If only the 'ticking timebomb' crowd shared your principled, even-handed approach to the issue.

[Jay C]

Well, I'm with Ugh re the news article about terror-case attorneys jumping on the recent revelations about wiretaps: although I'm not sure how much "fun" it is really going to be: for the nation, that is. Maybe I have just a tinge of suspicion when it comes to the Bush Adminisration's attitudes towards civil liberties* in "terrorism" cases (gee, wonder why?) - but I have a sinking feeling that legal challenges of the sort cited in the NYT piece are going to be used as ammunition in favor of the Bush crew's assertions of untrammeled Presidential authority, rather than as a club for the Adminstration.
Maybe not so much in the legal arena -where the Admin's actions are, AFAICT, theoretically testable - but in the political sphere (which of course, to this White House, is the only area that matters). Whatever we here, or even a substantial percentage of Congress, might think about the Bush gang's abuses of the FISA process, it is, IMO, no great stretch to imagine that criticism of their counter-terrorism tactics can, and will, be spun as a classic right-vs-left "law and order" issue.
There is already a bit of this showing in the NYT piece linked above, where official emphasis has been placed on the fact that "very bad men" are in jail - that the methods used to put them there might not be 100% in accordance with stringent US legal procedures is NOT one which, I think, will bother much of the public much at all , and will merely provide the Administration with a chance to strut their "standing tall against terror" credentials. And, of course, give the WH and its chorus of enablers a chance to beat their opponents with the "liberal-wimps-want-to-see-terrorists-go-free-on-technicalities" stick.
Yep. BIG fun.

*JFTR, the Clinton Administration was (IMO) no great shakes in the civil-liberties-protection area, either. I know "Clinton did it too" is an all-too-common rejoinder for critics of the Bush Administration's policies; but that does not make the actions right.

[Ugh]

but I have a sinking feeling that legal challenges of the sort cited in the NYT piece are going to be used as ammunition in favor of the Bush crew's assertions of untrammeled Presidential authority, rather than as a club for the Adminstration.

Sadly you're likely right. The general public doesn't like ordinary criminals to be let go on "technicalities," imagine how they'll react when we're letting the baby-eating-child-rapist-terrorist-hordes-who've-come-to-kill-us-all go on such "technicalities" (because the administration would never, ever make a mistake in this area, right?). Fortunately, I work a block from the White House and, given that I haven't been arrested yet, must mean I'm not a threat and therefore have nothing to worry about.

And by "fun" I meant "yet another horrible tragedy," sorry if there was some confusion.

[Jay C]

Ugh: I got it re your use of "fun" - my irony meter hasn't maxed out yet - and I agree: "horrible tragedy" is the term I interpreted it as.
Oh, and blogbudsman: a couple of suggestions: if you are going to use overblown rhetoric like:"The future of our children are at stake" to try to make a point, you should at least make it grammatically correct.
And also you should keep in mind that there are more than a few of us out here that view the American heritage of "rule of law" and respect for the Constitution and its legal protections and procedures as an vitally important part of "our childrens' future" as well; TOO vital to be casually trashed by a power-hungry Executive chasing "terrorist" chimerae in response to wildly overblown "threats".

[Jake - but not the one]

Y'all, when I said that Clinton's presidencey was over, I meant that the lasting legacy will be Monica and the impeachment proceedings. Not how he wanted to be remembered.

As for trust, bbm, Bush has lost substantial trust. That is significant in and of itself. If a large portion of the country has no faith in him, he has lost.

Thank the pres? Frankly, I'd rather see him in jail. That's how much I dislike and distrust him, and how ineffective I believe him to be.

Jake

[Ugh]

Speaking of Monica, the amount of Presidential fellating going on at redstate.org has reached Lewinsky like proportions (with notable exceptions).

[Dantheman]

Ugh,

My favorite line was in the top post today, when Leon H states: "Really, I just wanted to emphasize that last point, and get as many Democrats on the record as we possibly can".

Of course, if you want Democrats to state something on the record, banning them in droves for stating opposing views is almost exactly unlike what you want to do.

[Gary Farber]

Shamelessly calling attention to myself, because I'm not really up to conversation at the moment, I humbly point out this substantive post on the topic, and this observation, and this piece of crankiness.

Of course this will be no surprise to fine faithful ObWings readers, who remember me going on weeks ago how the technology aspect was crucial here, and how impossible it would be to understand how they're relevant to the law without understanding that this wasn't old-fashioned "wiretapping," but wholesale integrated data-mining.

I shouldn't point to this again, probably, but, hey. It's just an excuse to say "hi," while I'm not more conversational. Carry on.

[blogbudsman]

Sorry JayC, Senator Reid and I have similar educational backgrounds.

[lily]

I don't think Bush deserves any credit for giving us a "relatively safe year".. One of the outstanding features of his Presidency is its incompetence and this extends to homeland security as well as the management of the war. DHS is even more badly managed than FEMA. Remember, this is the administration that failed repeatedly to repond to warnings about the posibility of an Al Quaida attack by airplane on a major US landmark.
Incompetence aside, I donb't really understand the point aout the technology being different. I mean yes, I understand that the technology is different, but I don't see how that is an excuse for breaking the law or a means of rationalizing that the law was not broken. Murder is illegal. Suppose I came up with a way of killing people by imagining them dead. New technology, right? It would still be murder. If the law doesn't allow a new technology, then the law needs to be changed. If the law doesn't address a specific technology, then the government should proceed based on application of the priniciple of the law.
Bottom line for me is that people who are willing to throw our basic principles in the garbage because they are afraid are more of a threat to us than terorists, who, by the way, have killed far fewer people in the last six years than drunk drivers.

[Ugh]

Dantheman -

Leon H is one of the leading contenders for fellator-in-chief.

[CaseyL]

Every defense attorney in the country is reviewing his or her cases, to see if they can get their clients freed by charging that prosecutors used illegal wiretaps, or evidence gained from illegal wiretaps.

Jack Abramoff's defense attorneys are among those looking into that possibility.

This should be interesting.

[Gary Farber]

"I understand that the technology is different, but I don't see how that is an excuse for breaking the law or a means of rationalizing that the law was not broken."

Of course, I said absolutely nothing of the kind whatever, and in fact repeatedly wrote, eac time, that the opposite was so.

The point was that was, indeed, not practically possible to get FISA warrants to do this nothing. Observing this is in no way a comment on whether that was right or wrong or legal or illegal (and it pretty much looks like it was illegal).

As I've said each time, if Bush thought this was necessary, he needed to go to Congress to have the law changed to make it legal.

[Dantheman]

Gary,

What makes you think Lily was talking to you, especially if you are "not really up to conversation at the moment"?

[Gary Farber]

"The point was that was, indeed, not practically possible to get FISA warrants to do this nothing."

"...that it was, indeed, not practically possible to get FISA warrants to do this thing," not the above.

[dmbeaster]

Strangely antiseptic post for such a hot button issue. Why are so many conservatives losing their principles when faced with behavoir by Bush?

The assumption in the post seems to be that this is just about excessive spying techniques being employed against international communications by terorism suspects, when the indications are mostly to the contrary. If it was just about that, then I imagine that there would never have been any reason to evade FISA courts (except sloth or incompetence). It is true that there is a lack of information on the scope of the program, but its not credible to suppose it is so limited.

It would seem that this disturbing invasion of personal liberties would merit some judgment as to the merits -- as least as much as Charle's frequent dust-up about the McCain-Feingold campaign finance laws. Is that supposedly a greater invasion of personal rights?

[john miller]

Several comments:

Charles: Thank you for a reasoned post, although I may disagree with you on a few points. One of the reasons that I, a dedicated liberal (though somewhat moderately so) visit this site is that I get to read the opinions of conservatives who are not necessarily spouting the company line.

Gary: Hope you are feeling better soon. Thank you for presenting a viewpoint that attempts to stay within the bounds of reason and avoids knee-jerk reactions. As you pointed out, the technological changes are not an excuse for disobeying the law, but rather state why the law must be updated.

BBM: In what ways, precisely, do you think that Bush has made us safer? Report after report, from the 9/11 commission and international terrorism experts have concluded the opposite. If he has made us safer, which I would truly want to believe, I would just like to know how so I can sleep a little better at night.

Lily: I agree with you that to some degree the whole "WOT" thing is overhyped. Yet it is a real threat and cannot be ignored. The key is how to go about it, which is where I have major disagreements with this administration.

JayC: Love your use of the word "chimerae."

A major issue here is trust. Can we trust this administration to utilize it's "eavesdropping" capabilities in ways that are purely for defense of this country? Up to now, I have not seen one scintilla of reason to trust Bush or anybody else in this administration.

And that includes most of the Republicans in Congress who have gone out of their way to use security capacities of the country for political purposes. Does anyone remember DeLay and the rebellious Texan Democrats?

In terms of impeachment, although I think it is impractical until the Democrats gain control of Congress, and maybe not liley then, I think that, even without this latest imbroglio, Bush has given us plenty of reasons to want to see him impeached

This is without a doubt the most secretive administration I have seen (going back to Eisenhower) and the most ready to lie to Congress and the American people.

Not everything that comes out of their mouths is a lie, but by this opoint, except for the True Believers, everything has to be greeted with a large dose of skepticism.

[Gary Farber]

It would be a great deal more clear and accurate to refer to the NSA operation as one of "datamining," not "wiretapping," I suggest. But it's just a suggestion, and it's still a complete simplification, of course.

[Gary Farber]

"What makes you think Lily was talking to you, especially if you are "not really up to conversation at the moment"?"

I could be entirely wrong, of course. I was responding to this comment:

"I donb't really understand the point aout the technology being different."

And she wrote it almost directly after I made that point.

That someone else was making that point, I missed. Apologies. Of course, that sort of thing is why it's useful to quote what one is responding to, and why that's been the norm on the internet since it was Arpanet.

[bolgbudsman]

Well john miller, there is no doubt you http://xfiles.wearehere.net/believe.htm>Want to Believe. Your interpretation of the 9/11 conclusions or your reliance on expert du jour notwithstanding, 300 million Americans get up and go to work and play everyday under far, far more safer conditions than does most the rest of the world.

[john miller]

BBM: I agree. Now would you answer the question I asked of you.

[Gary Farber]

"Assuming the terrorists are practicing at least a bit of so-called tradecraft, it ought to be easily possible to conduct secure voice conversations with parties overseas. Am I grossly overestimating al Qaeda's ability? Or underestimating the NSA's?"

Just the opinion of a guy who sits in an office chair and dabbles, but I think your point is essentially correct, but that this is not a black & white matter.

The fact that that those who practice the best tradecraft, and don't have bad luck, are unlikely to get caught, doesn't mean that other operatives aren't more careless, nor that even the best don't ever make mistakes from time to time.

The yet larger point I keep hammering, because above even someone as incredibly bright as Hilzoy still wasn't getting it, is that the voice eavesdropping is just a small part of a totally encompassing mining of every possible type of data (I'm betting, or as we say, "guessing").

Naturally, every bit of data you have on someone (except for the erroneous stuff) builds a larger and wholistic view of the individual, as well as the operation/endeavor/other operatives/connections/habits/pastpractices/plans is submitted to pattern analysis.

So every bit helps predict the possibility of another connection/data-bit to then be specifically hunted for.

Focusing on "wiretapping" is just not understanding what this is about, at all.

In my guestimate.

"Could they feasibly monitor every sustained TCP or UDP exchange and process it as if it were strongly-encrypted audio?"

Although interception of telephone voice and text certainly does remain important, as well as online interception, and good old shoe leather, and every other means at their disposal.

I don't know if everyone followed the details that came out in the piece I linked to here on the 24th; I didn't include any of the other crucial details, because I wasn't in the mood. Among others:

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.

"There was a lot of discussion about the switches" in conversations with the court, a Justice Department official said, referring to the gateways through which much of the communications traffic flows. "You're talking about access to such a vast amount of communications, and the question was, How do you minimize something that's on a switch that's carrying such large volumes of traffic? The court was very, very concerned about that."

On the 22nd, I quoted:

A former sigint type -- who also talked to Ryan, apparently -- suggests a different technological approach: the NSA "may have compromised a hardware manufacturer -- say Motorola or a satellite phone manufacturer, a telecom carrier or a satellite(s)."

This has since been confirmed, in stories I've not blogged, because I've mostly not been blogging news in the past week.

[stickler]

...300 million Americans get up and go to work and play everyday under far, far more safer conditions than does most the rest of the world.

Sure, Americans have had to give up a few essential liberties for that safety, but it's worth it to give up libery in return for safety. After all, we deserve it.

[blogbudsman]

It might be interesting, stickler, and helpful in this thread to learn what essential liberties you have given up for your safety. How about a My Lost Liberties open thread? Where's slarti when you need him?

[lily]

Actually I wasn't responding to Gary. I was respondig to the general drift of argument from Bush supporters who seem to think he didn't break a law because the law doesn't address this precise type of technology, or else they seem to think he had to break the law because the law was wrong and the situation urgent. Those aren't the only defenses put forth, of course.
If I am speaking directly to someone I use their name or put their words in quotes.

[Gary Farber]

"It might be interesting, stickler, and helpful in this thread to learn what essential liberties you have given up for your safety."

Not so much given up, as "it appears that a few may have gone on involuntary holiday," we might consider such lefist notions as the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Another is the right to "nor be deprived of life, liberty, or property, without due process of law...."

Myself, I'm also good with "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Pretty extremist stuff, I know.

[KCinDC]

Oh, come now, Gary, you know those rights are only being violated for very bad people -- not the likes of you and me and BBM. So it's not our liberties being sacrificed, just the very bad people's. And surely we can trust that Bush -- or Richard Nixon, or Hillary Clinton, or whoever happens to be in the White House -- would never target anyone but very bad people.

But stickler seems to be saying that the violations of rights have made us safer. I don't concede that at all. We seem to be losing both liberty and safety under the Bush plan, so there's no tradeoff to discuss.

[hilzoy]

"First they came for the bad people, and I did not speak up, because I was not a bad person..."

[blogbudsman]

That's pretty interesting hilzoy. PC dictates that the root of Pastor Martin Niemöller's lament not be dug out here, so I ask which side you're retort supports. Fer or agin?

[Francis / BRGORD]

what aggravates me no end about this whole thing is the waste.

It is a waste of valuable translator time to listen to perfectly innocuous telephone conversations held in Arabic.

It is a waste of the remaining faith that Americans have vested in their President that he actually understands his Constitutional obligations.

It is a waste of DOJ time spent defending utterly ridiculous arguments like the AUMF overrides FISA.

It is a tremendous waste of the resources offered by the Arab American community. Instead of being held up as a model of integration between faith and liberal democratic values, the Arab Americans find themselves targeted by the FBI (nuke searches) and the DOD (eavesdropping).

ya know, when Bush said that you're either with us or against us, i honestly didn't think that he was including american citizens in the class of people he was addressing. i thought, perhaps naively, that as an american citizen / taxpayer / voter that i had the privilege of disagreeing with the President without becoming an enemy of the state.

oops.

bbm: read the WaPo stories about DHS, especially the bit about Cheney protecting the chemical industry against homeland security regulation. there happens to be a real difference between real safety and the perception of safety. You have fallen for the latter.

[cleek]

"It might be interesting, stickler, and helpful in this thread to learn what essential liberties you have given up for your safety."

we've given up the right to be free from unreasonable searches conducted without warrants.

we've also given up the right to expect that the government reasonably follows the laws as written. apparently we now have to assume that, regardless of what a plain reading of the law tells us, it's probable that the government is doing something that's 180 degrees of what that plain reading says.

so, you go right on cheerleading. but when President Hillary comes-a-knockin, don't wave your precious pocket-Constitution at the kindly Agents - that rotten old document just don't cut it anymore.

It would be a great deal more clear and accurate to refer to the NSA operation as one of "datamining," not "wiretapping,

if the goal is to make sure the public is completely uninterested in the issue, then yes, describe it using jargon that only DBAs and statisticians use.

[bolgbudsman]

No Francis, safety is as much as a perception as whatever you consider real safety is this day and age. The moment we perceive we are not safe is the moment they can declare victory. If we become afraid to get on the bus, or go to the game, or celebrate New Years in Time's Square, the end will be very near. I have fallen for nothing. You on the other hand...

[bolgbudsman]

cleek - "we've given up the right to be free from unreasonable searches conducted without warrants."

No we haven't. That's horse pucky.

- "we've also given up the right to expect that the government reasonably follows the laws as written."

FISA and other similar acts before have never been interpreted to trump the constitutional powers given to the Executive Branch. Congress just can't
'enact' itself a constitutional change.

- "it's probable that the government is doing something that's 180 degrees of what that plain reading says."

More horse pucky. The government must obey the law or there will be Obsidian hell to pay.

- "so, you go right on cheerleading."

If the faith I have in our President to make the tough decisions to keep us safe from out enemies is cheer leading, then guilty as charged.

- "but when President Hillary comes-a-knockin, don't wave your precious pocket-Constitution at the kindly Agents - that rotten old document just don't cut it anymore."

Whatever. I'm not sure yet that I wouldn't vote for Hillary. Something tells me she knows the difference between executive leadership and populist defeatism.

[Francis / BRGORD]

re: fear and risk.

ok, everyone. without looking it up, what are the five leading causes of preventable death in the US?

(i will guarantee that terrorism is nowhere on the list.)

bbm: if you're afraid of terrorists, turn off fox news and start reading EPA's website. Many fears are, in fact, irrational.

[ral]

Francis, thanks! I have been pondering posting and you have expressed my point of view. Also, thanks for the pointer to Alvarez-Mendez v. Stock (that was you, wan't it?).

I mean, I'm a congenital Democrat, a card-carrying ACLU member, so I might be opposed to such cavalier disregard of rights on principle, even if it were effective. But to be willing to give up rights for such bunk, when so many other actions that might really enhance our security are left undone for lack of resources -- the mind reels.

-- ral (the Jackhammer of Compassion)

[john miller]

BBM: So I don't unfairly accuse you of cheerleading, please answer the question posed to you twice upthread.

[Anarch]

No we haven't. That's horse pucky.

Cogently reasoned.

FISA and other similar acts before have never been interpreted to trump the constitutional powers given to the Executive Branch.

Well-supported.

More horse pucky. The government must obey the law or there will be Obsidian hell to pay.

Beautifully-phrased disjunctive.

If the faith I have in our President to make the tough decisions to keep us safe from out enemies is cheer leading, then guilty as charged.

A perfect prayer.

Something tells me she knows the difference between executive leadership and populist defeatism.

And not in the slightest a scurrilous allegation predicated upon total ignorance.

All in all, what a truly festive holiday pile of steaming crap. Thanks for making our season ever-so-much brighter -- or at least, more fragrant.

Should you ever wish to answer John Miller's question, btw, shorn of "cheerleading" goalpost-moving, I too would be interested in your response. For that matter, if you'd like to augment your fragrant answer above with what we in the reality-based community call "facts", "evidence", "arguments" or "reason" -- particularly those which actually pertain to the matter at hand -- I'd be eternally grateful, not that I think the absence of my gratitude is likely to keep you up at nights.

[Gary Farber]

"It is a waste of valuable translator time to listen to perfectly innocuous telephone conversations held in Arabic."

I have no idea how efficient or screwed up this system is, but the people working aren't going to be political -- they're intelligence professionals (and it's precisely because the President ordered the NSA to violate Rule Number One that this leak has occurred -- obviously a number of significant employees of No Such Agency have been sufficiently horrified that they've violated Rule Number Two to get word to the public and Congress, as I've pointed out before (original quote not mine, but it's too good a phrasing to not reuse -- and they're going to be well aware of that.

It's also, as I keep reiterating endlessly, not about a human actually listening to a conversation until a bunch of data-mining at least strongly suggests that would be profitable, however inaccurately or accurately the system functions, about which we as yet have no clue, nor, of course, would getting a human involved to read or make a transcript at first pass be either necessary or desirable -- the entire point of this system is to go wholesale, not retail (I'd guess that first passes, wherever possible, are machine-translated, although obviously that step wouldn't be read without prior datamining steps; again, this is a data-mining operation; the eavesdropping is only a part of hit).

Again, none of this is a defense of this program in any way. This is not a political point I am making; it is a neutral point about the facts as they presently appear to me. That's all. And, of course, I could be all wet. This is clearly a highly complex and involved program, with many parts, and all we have as yet are a few basic facts and hints. (I'm largely with you on your other "waste" points; I'm perfectly open to an impeachment inquiry, and absolutely want thorough Congressional examinations, and if they point towards impeachment, fine by me.)

"if the goal is to make sure the public is completely uninterested in the issue, then yes, describe it using jargon that only DBAs and statisticians use."

Well, I'm not trying to write propaganda here, for anyone. I'm not trying to agitate about the issues just now. I feel an odd need to get people to understand the facts before making proclamations and declarations as to what we think of them. I suggest that this is a more useful set of priorities than the reverse, but naturally, mileage will vary.

And if people stay unaware of what "datamining" is, we're all in for a world of hurt. You can ignore it, but it won't ignore you. People must learn about it, and what it means to our lives. This was a crucial issue prior to this NSA program coming out (I won't digress onto the implications of private data-mining, but that's pretty important, as well).

At risk of hammering, I really think that arguing in favor of ignorance may not surely be the best way to go, for any of our sakes.

"No Francis, safety is as much as a perception as whatever you consider real safety is this day and age."

Safety, liberty: it turns out these aren't at all the same things.

When did the budsman of blogs turn to bolgies, by the way? Is this somehow related to Ray Bolger?

[Gary Farber]

One more pass. The point I'm trying to emphasize is that datamining is vastly more threatening to our privacy and liberties, by many orders of magnitude, than mere wire-tapping is.

The most alarming part is the total-information data-mining (or so it appears to be; we know very little as yet; but it's the mostly likely thing).

Data-mining, for those unfamiliar with it, simply put, collecting every available bit of information about you, public and that which comes up via investigation of others, accurate or inaccurate, putting it all in a massive file about you updated on a constant real-time basis, and then integrating that into a massive data-matrix that shows all perceived links between you and other people and enterprises, and then analyzes that, and then washes, rinses, and repeats, non-stop.

The second most frightening thing going on here is the revealed colloborative relationships with, apparently, all the major U.S. telecommunications providers, which has involved direct tapping into the "switches" through which all traffic flows (other than completely independent systems, which I won't detail, and only know a little about, anyway). Repeat: all (relatively and simply put) traffic.

Surely I shouldn't have to over-emphasis just how vastly more totalitarian even this is, let alone the Total Information data-mining it's a part of, then mere wire-tapping. Even if they had been slapping on 5,000, or hell, 50,000, new individual taps a day (not that that would be humanly possible, of course), it would be relatively trivial compared to just how massively, wholly, totalitarian these two vastly more important issues are.

Trying to get people to understand this is not an attempt to minimize the issue. It's to point out how completely anyone instead talking just about "wiretaps" is fricking minimizing the issues at stake here.

People have to learn how datamining threatens them. They have to. Saying it's a boring subject of interest only to only DBAs and statisticians is, I'm trying very hard to do more than suggest, is very unuseful.

[ral]

Well, Gary, I agree that most of the technical talk is speculation. Perhaps I am a bit more skeptical than you. Perhaps there are patterns that can be discerned or careless operatives talking without encryption yielding valuable intelligence. Maybe forcing terrorists to use encryption creates a traffic pattern that can help detect them, I don't know. It just seems like a lot of effort and a big sacrifice of principles for an unlikely return to me.

I wish we could have an open and honest debate about it, informed by the facts. I don't expect it.