Where I'd Like to See FISA Challenged

by Charles

The Authorization to Use Military Force was tantamount to a declaration of war against al Qaeda.  In my view, signals intelligence is part and parcel of a president's war-making arsenal and falls under category of "necessary and appropriate force".  In the interests of national security, if the NSA intercepts a communique between Zahawiri and a bloke in New Jersey, I'm not going to have kittens if it's done without a court order.  However, I would have a litter of twelve if none of the parties involved is Zawahiri or some other known al Qaeda suspect (the NSA's inserting of persistent cookies into the computers of those who visit the NSA website might give me a contraction).

In this light, that is why I believe that FISA Section 1811 strains the Constitution.  A 15-day waiver period for electronic surveillance without warrants seems too great an encroachment on the inherent authority of the president under Article II of the U.S. Constitution.  This part of FISA is not a check on presidential power, it is a taking of power because it unreasonably weakens the Commander-in-Chief's ability to effectively wage war against a foreign enemy.  Fifteen days is an arbitrary number, especially since there is no provision in the statute for extension or modification.  Why not sixty days?  Or three?  Or one year?  Why should an act that is allowed on Day 15 all of a sudden become verboten when the clock strikes midnight?  It makes no sense.

It would be an injustice to wait for a court order when a warehouse in Detroit has Khalid Sheikh Muhammed waiting on line 2.  It would be a further injustice to be penalized for doing this.  This should go without saying, but any evidence discovered and obtained without warrants should not be used in any subsequent criminal prosecution.  That is a risk that eavesdroppers should accept.  But the primary issue isn't criminal prosecution, it's about locating declared enemies and preventing future attacks.  It's about war, and it seems that once again too many liberals have lost sight of this.  We aren't in a Law Enforcement Response Against Militant Islamism (LERAMI?), although law enforcement is one of the tools in this war.

So what about FISA Section 1811?  To me, absent a court challenge, it would be much more reasonable to codify the procedures that are currently in place, i.e., renewal every 45 days and appropriately monitored by the Inspector General and the Justice Department (additional monitoring by the FISA court would also be advisable).  But even if nothing happens, I don't think this program should end, not if national security is at stake.  The real dispute here is the extent of unilateral executive authority.  Surveiling communications without a warrant where at least one known al Qaeda suspect is involved--in a program that is appropriately monitored--does not come off to me as much of a stretching of that extent.  It's a stretch that needs to be there, but I wouldn't stretch beyond that.

Comments

[SKI]

The Congressional REcord for the Conference Report for FISA specifically stated that the 15 day window was designed to allow the executive then in power to seek an AMENDMENT to FISA to deal with the particular requirements of a war. That fact, which most commentators seem to be ignoring (or ignorant of) changes the calculus dramatically. The problem, and the critical question at this point, is not whether teh Administration should have the authority. The question is why they didn't seek to amend FISA to give it to them (esp. when they did amend other parts of FISA in the Patriot Act).

[Dianne]

In the interests of national security, if the NSA intercepts a communique between Zahawiri and a bloke in New Jersey, I'm not going to have kittens if it's done without a court order. However, I would have a litter of twelve if none of the parties involved is Zawahiri or some other known al Qaeda suspect

I'm sure it says something terrible about me, but I love the image of CB having a litter of twelve...Have I mentioned that I really like the writing of all the commenators here at ObWings even when I disagree completely with the argument?

Apart from that, though, why shouldn't the government just get a court order allowing it to intercept communications between known al Qaeda suspects and other unknown parties rather than allowing interception without the check of court oversight?

[Ugh]

A 15-day waiver period for electronic surveillance without warrants seems too great an encroachment on the inherent authority of the president under Article II of the U.S. Constitution.

Orin Kerr predicts this claim would lose 8-1 in the Supreme Court, with Justice Thomas as the lone dissenter.

[Marblex]

Uhm...as congress is the only body vested with the authority to declare war, there has been no war declaration, therefore, this is not a "war".

It's an illegal action, just as Vietnam was. Trying to make the illegal legal is how Hitler operated and these fuckers are running Hitler's playbook. But why not? The Bush family fortune was devoted to supporting the Nazis...Preston Bush was Hitler's banker and propaganda minister.

Get a clue. We are NOT at war.

"Terrorism" aka privatized violence is a CRIME not an act of WAR which notably must emanate from a (hostile) STATE. . . not a bunch of rag tag criminals holing up in a cave in bumfuck. That is of course, for any of you who still believe the 19 arab fairy tale.

Check out Loose Change for some further provocative 411 on 911 . . .the inside job of all time.(google it)

[Anderson]

Wow, SKI, this thread basically can come to an end after your comment, at least as far as Charles's complaint goes.

Let us dither around some more next time, okay? ;)

[Blue Neponset]

Charles,

Everytime I start to take you seriously you write some ditto head comment like this:

It's about war, and it seems that once again too many liberals have lost sight of this.

This is about the law not politics. If you want a political solution to FISA then get Congress to repeal it and quit complaining about liberals. If you want to argue about the law then you should be able to do it without implying liberals are unpatriotic.

[togolosh]

15 days is no more (or less) arbitrary than any other time limitation in the law. Why does a crime suddenly stop being a prosecutable when the statute of limitations expires? Why limit the response period for proposed rulemaking, or the time to appeal a court ruling?

You choose an arbitrary number for all these things because you need to light a fire under the butt of the responsible parties. Argue all you want for a longer period, as long as the choice has some justification related to the ability of the executive to respond in a timely fashion.

Another point that gets glossed over in these discussions is that there are mechanisms by which violations of the law can be excused if there are sufficiently good reasons. Judicial review, Presidential pardons, and the discretion of the prosecutor, to name a few.

Finally: A time limit does not in any way prevent initiation of a wiretap. It only requires that the warrant be issued within a specified time after the wiretap is initiated. For a true national security emergency, NSA or whoever can just go ahead and listen in. If the conversation overheard is illegal, they can get a warrant in short order through FISA. If the conversation is not illegal, destroy the tapes. If, in the unlikely case that the conversation involves plotting an attack *and* FISA turns down the warrant, the attack can still be prevented based on information obtained via the illegal tapping - it just can't be used to convict the plotters. A loss, but a much smaller one than the buggaboo being held out by the proponents of unlimited presidential power.

[KCinDC]

I can't believe you mentioned the NSA cookies -- an idiotic nonstory that has absolutely nothing to do with spying or any other nefarious activity. Now I really am thinking it's being intentionally publicized by Bush supporters to trivialize all other NSA-related stories and make the objectors seem like fools.

[Francis / BRGORD]

oddly enough, CB's post touches on something i've been thinking about, the admin's claim that sigint is an intrinsic part of warfighting.

first, the notion that Congress may not prohibit the president from using certain general techniques in war, due to the C-in-C power, is clearly wrong. Chemical warfare is banned. Any order directing the use of chemical weapons against the enemy would be illegal and every soldier would have a duty to refuse to obey that order.

second, i think that there is an interesting Posse Comitatus issue. Let's assume, just for grins, that the DOD learns, lawfully, of a massive strike being contemplated by US citizens against a federal building. DOD believes that the group has sufficient size and firepower to justify a military response.

Given the AUMF, can the DOD call in an airstrike on US citizens? What happens / what should happen if DOD is wrong?

If CB is correct and a FISA restriction on wiretapping during wartime is unconstitutional, I see no essential difference between the power sought by the President (and CB) and my hypothetical. Both are military operations launched by the US govt against US citizens.

[Ugh]

Given the AUMF, can the DOD call in an airstrike on US citizens?

Why does he need the AUMF? Under John Yoo's theory of constitutional law, the President can do whatever he wants to defend the nation and congress' power to declare war just serves notice on the other side.

[Marty Lederman]

SKI is right about the reason for the 15-day limit -- see http://balkin.blogspot.com/2005/12/nsa-euphemism-watch-part-2.html.

And Francis is right that there's no Article II problem -- Congress can take certain tools off the table for the President's use (e.g., torture, chemical weapons, land mines, surveillance that might intercept domestic conversations, capture of ships heading a certain direction (Little v. Barreme), seizing steel mills, detaining persons only tenuously connected to Al Qaeda, etc.).

[Jake - but not the one]

Between the war powers act and the AUMF, Bush clearly had sufficient leeway to to what had to be done wrt to Afghanistan and Al Quaeda. The section of the AUMF that actually authorized the use of force says this:

(a) IN GENERAL- 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.

Now I am not normally a suspicious man, but does anyone else think it odd that we haven't captured Bin Laden after all this time? And that our efforts in Iraq seem all out of porportion to the thread posed by Iraq? And do you ever wonder why the Pres keeps tying 9/11 and Al Quaeda to Iraq? When I read the AUMF, I get the distinct impression that finding Bin Laden is the absolute last thing the Pres wants to do - becuase if he does, the AUMF arguably comes to an end.

Note, I am not saying our exposure to terrorism. Just that the AUMF is specific to 9/11. Terrorism still needs addressing, but if Bin Laden and AQ are no longer important, then the AUMF needs to come to an end.

Jake

[CharleyCarp]

CB, once again a thoughtful post. I've got to quibble with you on Article II, though. A great many folks think that the commander-in-chief power is a whole lot bigger than it really is. Congress has the unquestionable power to pass laws regulating the conduct of the Army -- and could therefore ban all sigint activity if it wanted.

Being the C-in-C is the same as being the chief law enforcement officer. You make the decisions about how to do stuff, but only within the rules, and someone else gets to make those rules.

Article II is not a blank check in almost any respect. The power of the pardon is one of the few things a President has that's not controlled by Congress -- even the unilateral termination of presidential appointees was a close enough case to have Holmes and Brandeis on the other side.

[Jeff Eaton]

For a true national security emergency, NSA or whoever can just go ahead and listen in. If the conversation overheard is illegal, they can get a warrant in short order through FISA. If the conversation is not illegal, destroy the tapes. If, in the unlikely case that the conversation involves plotting an attack *and* FISA turns down the warrant, the attack can still be prevented based on information obtained via the illegal tapping - it just can't be used to convict the plotters.

This bears repeating and re-reading, folks.

Well-put, well-summarized.

[Catsy]

So. Charles writes a very cogent, mostly non-political, but ultimately factually flawed post. At least two commenters point out that based on undisputable facts in the public record, his main complaints about FISA are moot and utterly without basis.

I am interested to see Charles' response.

[togolosh]

Thanks, Jeff.

This being ObWi, I'm now going to undermine my own argument :-)

It seems likely that what NSA was actually doing is a combination of traffic analysis and electronic monitoring. They've had plans for this for a long time. I think that pattern analysis could certainly be useful in detecting terrorist cells. The basic idea is to track who calls who, identify known or strongly suspected bad guys, and look at the pattern of who calls them, who calls someone else right after getting a call from known bad guy (KBG), and build up a picture of the network of interconnections. Many of these connections will lead nowhere, but over time it will become clear what the overall web of connections is. If there is a sudden shift in the network (increased activity, change in the pattern of activity), it's a good sign that something may be up, and more intrusive surveillance is called for.

The other part is sampling conversations for keywords and selecting conversations (including email, IM, etc) for additional scrutiny if they include a suspicious keyword. Obviously this can be used with traffic analysis to help weed out unimportant nodes in the network (if a KBG orders pizza, who cares?). It can also help with things like odd word usage that may indicate use of code words. If a bunch of the nodes in the KBG network suddenly develop an interest in the weather, that's a good sign something is up.

On of the most significant developments of the past decade has been the explosion of tools and techniques for extracting useful information out of what looks like noise. It is entirely reasonable to believe that these techniques could be used to extract information about terrorist networks from the jumble of information in cyberspace.

Since pattern analysis and automated electronic conversation sampling can potentially help find terrorists, why not use it? Privacy concerns are mitigated since no human actually listens in unless there is some reason to believe the activity is suspicious. The downside is that these things tend to grow and find new justifications when the immediate threat has passed. The War on Drugs creates obvious room for expansion, as does any activity which generates networks of contacts, from political activity, to union organizing, to events like Burning Man. If your network is doing something politically OK there is nothing to worry about, at least until the next shift in political power.

[hilzoy]

togolosh: one possible answer to your question comes in this post by Matt Yglesias, in which he makes an important point based on statistics. (I know it from biostat and public health.)

Basically: any algorithm will get a certain percentage of false negatives (people who are terrorists, but we don't pick up on), and a certain percentage of false positives (people who aren't terrorists in reality, but who our algorithm says are (or: are suspicious)). Suppose the rate of false negatives is 10%, and the rate of false positives is 1%. (As commenters in Matt's thread pointed out, this is an absurdly low error rate, but I'm doing a hypothetical, so I get to be absurd.)

Now: the false negative rate (real terrorists who our algorithm says are not suspicious) is a percentage of the number of terrorists. Suppose that there are, oh, 20,000 terrorists and friends of terrorists in this country: that means we miss 2000 of them. A lot. But at least we flagged 18,000.

The false positive rate (innocent people our algorithm says are terrorists, or suspicious) is a percentage of the number of non-terrorists. The population of the US is 297,813,482, google tells me; if 20,000 are terrorists and friends, that leaves 297,793,482 non-terrorists. 1% of that number is 2,977,935 people. With a 1% error rate.

So this algorithm will flag 2,995,935 people, the overwhelming majority of whom will be innocent. And that's with an absurdly low rate both of false negatives (driving the number of terrorists up) and of false positives (driving the number of innocent people wrongly tagged down.)

The basic point is: whenever the number of people you're looking for (terrorists, people with breast cancer, whatever) is low relative to the population you're testing, the number of false positives will swamp the number of correct identifications, just because even a small percentage of a very large number is bigger than a large percentage of a very small number.

To decide whether it would be worthwhile to run the algorithm, you need to ask: what are the costs, both of running it and of whatever follow-up you decide to do; and what are the benefits. (In particular, how bad is it to miss a certain number of people? If you're screening for a very, very infectious disease, missing some people can obviate the benefits. Likewise, I'd think, for terrorist cells who operate with a certain level of redundancy.)

Among the costs are: collecting data on nearly three million innocent people, and putting them under surveillance.

[Jackmormon]

Charles, I responded here in much the same way as the lawyers above, but without any actual legal expertise.

Everyone else, go ahead and use that link to hate on Charles Bird.

[hilzoy]

Jackmormon: even in the absence of legal expertise, it's amazing what you can do with a basic ability to construe texts, a few rereadings of the Constitution, and a sense of when you're getting out of your depth. (There's a reason I haven't commented on any of the fourth amendment issues raised by the NSA story. I read a little bit and thought: here be dragons.)

[Ugh]

Surveiling communications without a warrant where at least one known al Qaeda suspect is involved

Exactly what is a "known al Qaeda suspect"? Is just any old al Qaeda suspect? Why are you using "known" here? I'm genuinely confused.

[Bruce Baugh]

If it's a declaration of war against Al Qaeda, what constitutes victory conditions? When does anything done for the duration have to expire, and how do we know that's the threshold? I don't mean what Charles or Sebastian or Gary or I might wish, but what the administration has ever said that can reasonably taken as meaning "at this point we'd stop, and everything done for the duration ends unless we get it renewed for the post-war era."

[Jonas Cord]

Among the costs are: collecting data on nearly three million innocent people, and putting them under surveillance.

I'm no surveillance expert, but I have to say that if it were me writing this data-mining analysis algorithm, I'd write it closely as how Togolosh described it - start with known Terrorist suspects and work outward. Not only would it be dumb to do it by monitoring everyone in this country, it would be far more resource intensive (not that the NSA doesn't have impressive resources, but still.)

While this is all speculative, so is the "millions of false positives" thesis.

[Edward_]

I have two primary nonlegalistic disputes with a defense of the president's claim he need not comply with FISA.

First what does it logically mean that "we're at war" if we very likely won't see the end of this "war" in our lifetimes? Are we supposed to willingly accept that from now to our deaths the president may be spying on any of us at anytime with no judicial oversight? Seriously, that hands the president carte blanche in the spying department. He can't/won't define what "victory" in this war means, so essentially we have no measure for when he should stop spying on Americans without a warrant. Therefore, he has single-handedly changed the law for all intents and purposes for the foreseeable future. The fact that doesn't scare some folks is mindboggling. Perhaps if they consider this power in the hands of the next POTUS, they'll get it.

Secondly, we are NOT in a global "war" against terrorism. We are in a continous state of high alert at best. "Wars" cannot be so nebulously defined as to permit the POTUS to cherry pick the best (most politically advantageous) of war and peace time priveleges. Moreover, if the Geneva convention and torture laws and habeus corpus laws don't apply because this isn't a traditional war, then why does he get to have it both ways and enjoy the traditional powers (and/or abuses of those wartime powers)?

For me it's maddening that Americans are arguing essentially "It's ok, because he's only doing it to keep us safe." (If Katrina didn't convince you that's not #1 on his priority list, you're not paying much attention.) Buck up, you cowards. Taken to its logical conclusion, he'll NEVER stop spying on you. That's an incredible power. In fact, it's an absolute power combined with his ability to define any American an enemy combattant who then disappears into secret prisons.

[hilzoy]

Edward: we miss you!

[hilzoy]

And Jonas: if the algorithm were written that way, why on earth not just get the warrants?

The administration seems to me to be shuttling back and forth between two views:

(a) this is very narrowly drawn; it only catches people who are connected to known AQ members. -- In which case, why not get warrants?

(b) this is something very new, and broader, to which warrants are not appropriate. -- In which case it's exactly the sort of thing that FISA was written to prevent, and that should really worry us.

[Edward_]

I miss you too H...trying to restructure my life to allow more time for political bloggin...soon, I hope.

[Ugh]

Wow, John Dean throwing bombs today.

"Having been ferreted out as a criminal, Bush now will try to ferret out the leakers who revealed him."

[Carleton Wu]

Charles,
It would be an injustice to wait for a court order when a warehouse in Detroit has Khalid Sheikh Muhammed waiting on line 2.

Not only would it be an injustice, it would also be profoundly stupid since FISA allows for warrantless wiretaps under those circumstances, regardless of the nationality of the parties involved.

Since you're showing off your familiarity with FISA by citing chapter and verse, surely you're aware that FISA wiretaps can be executed and then retroactive warrants issued by the FISA court.

Im faced with two possibilities:
1)You've managed to learn a great deal about the other parts of FISA without encountering this vital piece of information (which has been oft-cited in the blogosphere discussions of the issue). Not a very likely scenario, but I include it out of an excess of graciousness.
2)You are aware that your example is contrafactual, but you've gone ahead with it because you like the picture that it paints (ie National security is obviously at risk, but the foolish Dems hate America so much they want to foul up our counterterrorist efforts in red tape and legal motions).

The entire premise of your post that FISA limits the president's ability to conduct wiretaps against suspected AQ agents is patently false. The executive can conduct such taps as quickly as it's bureaucracy can approve them, and the FISA count will grant retroactive warrants whenever the administration can offer reasonable suspicion.
The issue at hand are cases where the administration cannot present a reasonable suspicion. That is, mass interception and data mining.

We could have a discussion about whether the government ought to do mass interception and data mining- whether Congress ought to pass a law, whether it's a violation of the 4th amendment, etc. (In fact, that discussion seems to have started without you). But you can't have that discussion while you're off in la-la-land pretending that liberals want to stop us from listening in on Osama's phone call to the sleeper cell in Miami.

[Jake - but not the one]

Bruce, that is the exact point of my comment - so when is the AUMF done with? Sometime in our children's children's children's lifetime? Or now?

Jake

[CharleyCarp]

Sometime in our children's children's children's lifetime? Or now?

One doesn't have to be a conspiracy theorist to note that the death/capture of bin Laden would have to be a significant event in coming to the answer of this question.

Assuming that the situation in Iraq either (a) goes the way the most hopeful proponents hope, that is little fighting of any kind as Sunni Arabs work their way through the system or (b) devolves ever more into civil war between the 3 main factions, our own involvement will be lessening. Look 15 months into the future, and we're not in a "war" in Iraq. We'll likely be no more "at war" in Afghanistan than we are today, probably much less so. It's going to be getting progressively harder for the President to claim war time powers, such as they are.

Unless the potential threat of attack is the equivalent of war, in which case we have always been at war, and will always be at war in the future.

[togolosh]

Hilzoy - the false positive issue is significant for statistically independent trials, but when you're looking for patterns and networks of interconnections I think the scaling is quite different. I'm not an expert in these things (I'm a plasma physicist by day), so I don't want to get into detailed calculation, but I think a little fiddling with probabilities will convince you that the scaling is much less bad when you are looking at networks than at individual trials. Full disclosure: I started doing a thought experiment but realized I need to do some serious calculation before I post anything - suffice to say this joint probability stuff can get subtle.

[NeoDude]

War is Truth!

[Bruce Baugh]

CharleyCarp: I would certainly be less concerned about "for the duration" powers if the president weren't on record as not caring about the most obvious event that could signal the end of the duration.

[Gary Farber]

"It's about war, and it seems that once again too many liberals have lost sight of this. We aren't in a Law Enforcement Response Against Militant Islamism (LERAMI?)"

I'm not up to doing much more just now (and haven't read the comments yet), but might you agree that this is, at the least, unlike any other war in history?

If we are truly at war, why has the President not mobilized the nation?

But mostly, just at the moment, I'd like to hear what you believe are precedents for this sort of "war," if you feel like explaining. I have trouble seeing this as an actual war, beyond the police action in Iraq and our generalized post-1945 state of permanent low-level "war."

But I'm perfectly willing to be convinced by the right arguments.

[Steve]

The Supreme Court briefly grappled with the issue of the unending War on Terror in the Hamdi v. Rumsfeld case. Their basic conclusion was that it's troubling to conceive of a war that may never end in the context of presidential war powers, but that as long as active hostilities are still taking place in Afghanistan and Iraq, there's pretty much no need to get into the more difficult issues.

The question of when a state of war exists really cuts down the heart of the liberal/ conservative divide, and since it's a threshold issue, it really gets in the way of a lot of intelligent discussions about governmental power. To the far left, we are never at war unless Congress passes a good old-fashioned Declaration of War with all the i's dotted, and maybe not even then. And to the far right, we are always at war with Eurasia, Eastasia, or perhaps both.

I think liberals would probably agree with a lot more of the conservative position about what powers the President should have during a war, if conservatives were to agree with more of the liberal position about when an actual war takes place. Then again, I'm not sure what conservatism has to do with expanding governmental power in the first place, so maybe it's simply a partisan issue rather than an ideological one.

[Ugh]

Is there some doctrine/case out there that says the President has increased powers in war time (other than statutes that might not, by their terms, apply during that time)?

Also, unrelated, one should note that the administration is on record saying that their spying without a warrant would be barred by FISA absent their (dubious) reliance on the AUMF.

[Pooh]

Ugh,

Every supporter (is apologist an inherently derogatory term?) of the program is forced to assume that conversations being monitored include "known" al qaeda types. Otherwise all their argument fall inwards like a stack of cards. If it is not a "KBA" then the AUMF argument is inapplicable, and the Art. II argument is demonstrably ridiculous in light of Youngstown, et seq. The best response I've gotten to the "how do you know that it is only KBA being snooped" is "how do you know it isn't?" Which proves my point to a degree...

Edward,

Secondly, we are NOT in a global "war" against terrorism. We are in a continous state of high alert at best. "Wars" cannot be so nebulously defined as to permit the POTUS to cherry pick the best (most politically advantageous) of war and peace time priveleges. Moreover, if the Geneva convention and torture laws and habeus corpus laws don't apply because this isn't a traditional war, then why does he get to have it both ways and enjoy the traditional powers (and/or abuses of those wartime powers)?

This is a FANTASTIC point. It should be noted that this sort of expedience-based justification is exactly what seems to have gotten the adminstration in very hot water with the notably deferential 4th Circuit. (I still can't believe that it was JML who wrote the most recent Padilla bit...)

[Sebastian Holsclaw]

"if the algorithm were written that way, why on earth not just get the warrants?"

Because you don't have anything remotely like probable cause on second-order contacts (the people the known terrorist called). But it is impossible to do traffic analysis or similar types of signals intelligence unless you track things like volume of calls at least one level out from the known terrorist.

[Jonas Cord]

Hilzoy:

And Jonas: if the algorithm were written that way, why on earth not just get the warrants?

Er... the problem is, until you analyze the traffic, you won't know who the likely terrorists are. I doubt you could get a FISA warrant on someone for merely receiving a phone call from a Terrorist, and if you can, there's no point to the FISA courts.

Unless there is a revision of FISA (which would be the common-sense solution to the data-mining problem, alas) you simply can't do this analysis, which is unfortunate.

Which is not to say that Bush should have just run around doing it anyway. Given that the Patriot Act would have passed apparently with anything in it, had the Bush administration been serious about this type of analysis they could have easily made it inarguably legal.

[Sebastian Holsclaw]

"Every supporter (is apologist an inherently derogatory term?) of the program is forced to assume that conversations being monitored include "known" al qaeda types."

No. This is wrong in two major ways.

A) Tapping the Al Qaeda calls is one thing and so far as I can tell isn't at issue here. The SIGINT analysis of traffic beyond the definitely known contacts is not. It is tracing from a known contact to someone else and then that second person's contact seems to be the key problem area.

B) The bulk of the monitoring wouldn't be "conversations being monitored". The NSA doesn't have time to listen in on the conversations of even all the third-order calls linked backwards from a known Al Qaeda link. But it probably could track the numbers called quite easily on a third or fourth order basis. I fairly certain that FISA couldn't give warrants on those calls, though I am NOT certain that FISA warrants would be necessary for a large percentage of them considering the issues I raised in my post of a few days back.

[Pooh]

Sebastian,

Point A - absolutely agreed.

As to point B, I was speaking more directly about 'wiretapping' rather than datamining, as I'm very far out of my depth in discussing the technical aspects of the latter. However, I still think my point holds in that in order to defend the propriety and legality of datamining, you still have to assume that the output will only be used for legitimate 'anti-terror' purposes - otherwise it's just COINTELPRO with faster processing speed.

It's not the sigint itself, it's the lack of oversight and proper procedures.

[CaseyL]

I, too, would like to see some definition of this war: who it's against, how long it can be expected to last, and are we indeed supposed to tolerate any old expansion of Presidential power for the entire, indefinite duration.

It would help if we could wring some specifics from the war crowd.

Right wingers, as near as I can tell, when they actually get around to defining the "WoT" at all, say it's a "war against radical Islamofascism."

If really pressed to be specific, they'll say Wahabism is the real enemy, or the main enemy. In places like RedState, they're not at all shy about calling for the eradication of Wahabism down to the last Wahabi. (Actually, in some forums, righties aren't terribly shy about calling for the eradication of Islam altogether, but let's stick with the less insane cases.)

Let's start with that.

Are we at war with Wahabism? If not, then who are we at war with? Who, please; not what.

(This is not at all a trivial question. We were 'at war,' once upon a time, with a what-not-who: 'Communism.' That one lasted 50 years - and ended with the fall of the USSR, not with the eradication of every 'Communist' government on the planet.)

Who, exactly, is the enemy?

How, exactly, will the WoTerrorism/Wahabism/Islamofascism be fought? How many more 'hot' wars will it entail, and will the time between hot wars (assuming there will be any time between hot wars) be like the Cold War was?

How will we keep our armed forces strong and capable? How much money will we give to the Pentagon, to the military-industrial complex; and where will we find that money? Will we carry the fight alone?

And will we be expected to support, or at least not oppose, whatever expansion of powers any President might deem necessary to fight the WoT/W/I?

How long should the President be allowed to order surveillance without any oversight whatsoever? What actions or powers would the WoT/W/I supporters not think appropriate?

Finally, assuming there are, in fact, any actions or powers the Right would not support:

Having already, now, defended discarding oversight, discarding checks and balances, carrying out illegal actions done in secrecy - having already, now, (to echo that much-quoted bit of dialog from A Man For All Seasons) torn down the forest of laws which restrain the Executive, how does the Right propose to prevent the President from simply taking those actions or powers whenever he or she wishes?

[Phil]

One doesn't have to be a conspiracy theorist to note that the death/capture of bin Laden would have to be a significant event in coming to the answer of this question.

Would that be the point at which we send four of our best to deliver the news to the Supreme Chancellor to see how he reacts and whether he gives back his emergency powers? Because from what I've seen, that doesn't generally work out well.

[Jeff Eaton]

having already, now, (to echo that much-quoted bit of dialog from A Man For All Seasons) torn down the forest of laws which restrain the Executive, how does the Right propose to prevent the President from simply taking those actions or powers whenever he or she wishes?

The President is a good man, Casey, and he has earned our trust. November 2004 was his moment of accountability, and the American People spoke.

--Jeff

[Windle]

Gary Farber,

Gary,

"Can you cite a single person ever using such nomenclature on this blog? I certainly could have missed it; I simply don't recall ever seeing it here."

People at this site often talk about Republicans and fascism in the same breath. It's pretty common. Just a little while ago a whole thread got taken over by the discussion of Republicans and fascism if I recall correctly.

Posted by: Windle | December 29, 2005 at 11:46 AM

"People at this site often talk about Republicans and fascism in the same breath."

True. I take it then that you agree with me. Feel free to denounce people calling Republicans fascists, and any other silly things they actually say. You have my full permission. Contemplate the Golden Rule in regard to this, I humbly suggest.

Posted by: Gary Farber | December 29, 2005 at 12:20 PM

"Would that be the point at which we send four of our best to deliver the news to the Supreme Chancellor to see how he reacts and whether he gives back his emergency powers? Because from what I've seen, that doesn't generally work out well."

Gary,

Maybe you see the significance of distinguishing between BusHitler comments and ones referring to the Supreme Chancellor, but I don't. It's all absurd and all dishonest.

[ral]

I think that might be a reference to Star Wars.

My irony meter needs adjustment -- Jeff Eaton, was your comment in earnest?

[Phil]

It was a joke, Windle. A riff on the whole "capturing/killing Person X will go a long way towards revealing Person Y's true intentions." A figured the nontrivial number of Star Wars fans here might get a larf out of it. I didn't mean to suggest that George W. Bush = Supreme Chancellor Palpatine.

Having never, ever, ever encountered you before, though, and me being a longtime commenter here -- back to the day when several of these people were merely regular Tacitus commenters -- I definitely appreciate being called "absurd and dishonest" by a stranger. The same to you, my new friend.

[liberal japonicus]

I think that might be a reference to Star Wars.

But any comment against Bush is absurd and dishonest, ral, especially if it references pop culture. If someone starts talking about Sauron, they are so going to get their phone tapped.

[Windle]

Phil,

We can argue your intentions all night. Gary and I had a discussion about my use of the BusHitler term. Your comment whether humorous or not still speaks to the tone that is used by many when talking about this President. The tone used by many here whether joking or serious is in my opinion absurd and dishonest.

[liberal japonicus]

We can argue your intentions all night.

A big thank you to Windle for his Quod Erat Demonstratum on the overall badness of datamining absent any consideration of intentions. Keep up the good work!

[Phil]

We can argue your intentions all night.

Well, we can, in an extremely abstract sense, but given that only one of us (hint: me) knows what my intentions actually were, I submit it would be somewhat pointless on your part. Still, knock yourself out.

Gary and I had a discussion about my use of the BusHitler term.

That's nice. Irrelevant, but nice.

Your comment whether humorous or not still speaks to the tone that is used by many when talking about this President.

Heaven forfend someone engage in humorous talk about a US President. Late-night hosts worldwide will be out of jobs!

The tone used by many here whether joking or serious is in my opinion absurd and dishonest.

Do you regularly engage total strangers with a hostile attitude and accusations of dishonesty that would probably get you punched in the face in real life, or only here online, where you're free to mouth off without consequence?

[Frank Wilhoit]

Charles,

1) The Constitution of the United States of America does not contain the word "tantamount".

2) The recently-exposed domestic surveillance program has nothing whatever to do with terrorism, but is simply the belated implementation of the Huston Plan. If you wish to be taken seriously, you must first forthrightly acknowledge this point.

[CaseyL]

I love how some Righties - who delight in bruiting about such nicknames as Bubba, Slick Willie, Al Bore, Sore Loserman, etc. - get their delicate knickers in a twist over Maximum Leader, Little Boots, etc. Such outrage! Such dudgeon! Such false sanctimony!

But one must admit, it's a somewhat useful tactic. Waxing wroth over political nicknames is certainly easier than, say, coming up with specifics about who the 'WoT' Enemy is, how long the War will last, and whether it is indeed the duty of all true Americans to put their civil liberties in a blind trust until such time as Maximum Leader decides the WoT has been won.

[Dave Marco]

The NSA is NOT limiting monitoring to cross border communications. The technology can't limit itself to comply with the law, human monitors have to do that, and there are procedures in place that create a database of US citizen's communications.

[dmbeaster]

A 15-day waiver period for electronic surveillance without warrants seems too great an encroachment on the inherent authority of the president under Article II of the U.S. Constitution.

Conservatives seem to be in love with the fallacy that the President has the inherent power to conduct war as he desires, without application of law as passed by Congress.

Sorry -- Article II makes him Commander of the armed forces -- it does not suspend the law-making power of Congress, including passing laws on what the President can and cannot do as Commander in Chief.

It is a pure fallacy that Article II gives the President an independent source of power to make war or override Congressional law concerning the waging of war. Republilcans seeem to like this doctrine, but only when a Republican is President. Its just lazy and hypocritical thinking.

Also, as with Charles prior post, he keeps assuming that this is a problem concerning NSA wiretapping of known Al Queda suspects, which FISA more than adequately covers. The issue is random monitoring of American citizens in the hope that it picks up terrorism leads based on slender reeds of justification that it would not pass muster under FISA.

It would be nice to seee a post directed to the actual issue, rather than a straw man.

[CaseyL]

The Pritzker Military Library in Chicago hosted a debate about the Patriot Act in May 2004, with two speakers in favor of the Patriot Act and two speakers against it.

FISA came up early and often in the discussion. Even the anti-Patriot Act speakers agreed we needed to keep a close eye on possible AQ/terrorist agents, and they agreed that FISA warrants were the proper authorization procedure.

They did have some important caveats: FISA, which predates the Patriot Act, was changed by the Patriot Act, in that the FBI no longer needed to present 'probably cause' to get a warrant. Also, the Patriot Act imposed a gag order legally barring people from revealing they'd been contacted by law enforcement authorities in the course of a FISA warrant.

But it was the pro-Patriot Act speakers that prove, in retrospect, to be the most unintentionally revelatory. They both insisted that the Patriot Act did NOT violate civil liberties, and the reason it did not was because FISA provided the necessary oversight. In other words, they wanted to reassure the audience (and, presumably, the public) that requiring surveillance orders to get approval from FISA approval meant that the powers in the Patriot Act could not be, and would not be, abused.

That, as I said, was in May 2004.

I wonder what those two speakers would say now that Bush has dispensed with FISA oversight.

Oh, and BTW? The pro-Patriot Act speakers weren't pundits, or professors, or members of Congress, or just some guys off the street. One of them is Joseph S. Morris, an Assistant Attorney General under Reagan and member of many Bar Associatiosn, conservative foundations, etc. The other is Patrick Fitzgerald, Prosecutor Extraordinaire, bete noir to mobsters, terrorists, and Bush Administration officials - and a huge fan of the Patriot Act.

[dmbeaster]

As a side point, its worth noting that the "inherent power" nonsense would have made "legal" the private wars run out of the White House by Oliver North, et al. But I guess Republicans think that is a good thing so long as a Republican is doing it.

And that's the end result of this nonsensical view -- that the White House ends up with its own unchecked warmaking power.

Its hard to believe that rational people actually find that this argument has any merit -- as opposed to its actual purpose, which is partisan window-dressing for whatever nonsense undertaken by Bush.

Its also worth noting that Yoo, a key legal proponent of the concept, was a low-level official until his work was essentially "stove-piped" in the Justice Department to provide a fig-leaf legal justification for what amounts to lawlessness.

[Joe]

As to the infringement of Art. II power ...

This is, to be perfectly honest, insane. Various comments listed various limits Congress can put on said power. But, more importantly, and this was really not emphasized enough, it bears mentioning that Art. II is not the only part of the "Constitution."

How about the Fourth Amendment? Payton v. N.Y., for instance, raises the suggestion that Congress can have some place in determining what "reasonable" means.

Some mention, for instance, was made in another thread regarding a law that involves postal inspectors to examine international packages (something three justices still found troubling, at least the fact the law appears to not explicitly give such authority).

FISA is just such a law. It tries to balance civil liberty concerns with executive power and so forth. This includes the 4A. As 11A sovereign immunity fans might note, the amendment comes after Art. II. Just as the 14th is allowed to infringe upon state immunity to some extent, the 4th infringes on Art. II (and Art. I, III-VII) ...

THAT IS THE POINT OF THE BILL OF RIGHTS!

Sorry, just practicing screaming "happy new year."

Sigh. Your posts on this matter are to some degree balanced, but this wilful blindness to certain points that interfere with your pro-executive argument is tedious.

[Joe]

Oh, as to the concern for the "arbitrary" 15 day limits. This is not insane, it is just willfully blind of history. The point of restraints in FISA was that flexibility gave us the excesses of Nixon.

Even if John Dean is wrong about GB being worse, he isn't so much better that giving him more free reign would be a good idea. This is so esp. since there are exceptions for immediate action, when necessary, and the Court is not too strict anyway.

[Francis / BRGORD]

what really baffles me is that i've been forced into defending a law which allows for RETROACTIVE warrants!!!

Radley Balko, at theagitator.com, is doing yeoman's work on the abuses by local police forces of no-knock warrants.

put simply, the more we (as a society) condone reductions in the checks on the police, the more innocent people will get killed. The trade-off is that simple and direct.

and now i'm supposed to believe that if the FISA court denies an application for a retroactive warrant then suddenly the feds are simply going to "forget" anything juicy that they learned illegally?

[shares in the brooklyn bridge corporation are available for sale by contacting the author of this post at the e-mail address listed below. buy enough of them and you get to install your own toll booth.]

[praktike]

Charles, you have misunderstood.

The 15 days is so that the WH can push a statute through Congress if he deems he needs to amend FISA.

[Sebastian Holsclaw]

"put simply, the more we (as a society) condone reductions in the checks on the police, the more innocent people will get killed. The trade-off is that simple and direct."

I think you are conflating two different issues. Physical search warrants and monitoring warrants have two very different levels of dangerousness attached.

[Carleton Wu]

The tone used by many here whether joking or serious is in my opinion absurd and dishonest.

Ok, wtf is a 'dishonest tone'? I've been sitting here for several minutes trying to imagine what that would be...
Windle, are you just stringing nasty-sounding words together in the hopes that the result will sound both highbrow and perjorative? 'cos if that's the case, I am here to regretfully inform you that it is not working. Particularly on the 'highbrow' front.

[Francis / BRGORD]

SH: i'm pretty sure that Maher Arar, and Mr. Al-libbi, not to mention some recent guests of the Uzbeki govt, might really disagree with you regarding the risk of harm arising from illegal searches.

or does screaming your guts out in a foreign country, due to lousy intel, somehow count differently from being shot in a screwed-up drug raid?

[double-plus-ungood]

Windle: We can argue your intentions all night. Gary and I had a discussion about my use of the BusHitler term.

And you used a reference to an imaginary character from the Star Wars films as evidence to support your position?

Hmmm.

[Sebastian Holsclaw]

" i'm pretty sure that Maher Arar, and Mr. Al-libbi, not to mention some recent guests of the Uzbeki govt, might really disagree with you regarding the risk of harm arising from illegal searches.

or does screaming your guts out in a foreign country, due to lousy intel, somehow count differently from being shot in a screwed-up drug raid?"

The intel is far more likely to be lousy under your method than mine.

[Anarch]

The intel is far more likely to be lousy under your method than mine.

But one is also much less likely to operating under the delusion that all the intelligence is actionable, yes? So the claim about intel in the abstract seems a little strawmannish...

[Pooh]

Francis/B,

That's an absurd non-sequitor, especially in relation to SH's rather mild point.

[CharleyCarp]

I'm not saying that there's an impeachment looming, but if it's true that http://www.nytimes.com/2006/01/01/politics/01spy.html?ei=5094&en=51dcd73cfc5cb1a6&hp=&ex=1136091600&adxnnl=1&partner=homepage&adxnnlx=1136089757-Kaj2jhKgCdiEUGlJ8TqXEg>DOJ was having trouble signing off on the thing, I think I'm going top have to stop paying any attention to all the folks who want to just wave this away on any factual basis (including that AQ people were the primary focus).

[Francis / BRGORD]

SB and Pooh, let's see what we know:

1. the war against iraq was based on stovepiped intelligence, some of which (al-libbi) was obtained by torture.

2. the war has likely caused approximately 100,000 excess deaths.

3. the US has been utterly incapable of penetrating the iraq insurgency, as evidenced by its continued success.

and you think that Constitutional methods of intelligence gathering are worse? how much more blood-soaked evidence do you need?

put another way, the 4th amendment and FISA not only protect human dignity, they also serve to ensure that the evidence gathered has some faint taint of credibility.

something that the admin and its supporters have long lost.

[Windle]

And you used a reference to an imaginary character from the Star Wars films as evidence to support your position?

Hmmm.

Posted by: double-plus-ungood | December 31, 2005 at 07:52 PM

Well, I guess you all got me. No one posting here has ever compared or implied that the Bush administration is fascist.

No references to brown shirts or such. No references to big brother or anything liket that.

Just one big love fest.

[Windle]

And you used a reference to an imaginary character from the Star Wars films as evidence to support your position?

Hmmm.

Posted by: double-plus-ungood | December 31, 2005 at 07:52 PM

Well, I guess you all got me. No one posting here has ever compared or implied that the Bush administration is fascist.

No references to brown shirts or such. No references to big brother or anything liket that.

No one here has every talked about how much they hate this administration.

The tone set is just one big love fest.

[ral]

Windle, perhaps you are mistaking ObWi for Political Animal?

[KCinDC]

So, saying you hate this administration is exactly equivalent to saying Bush is Hitler. I suppose any criticism at all falls into that category, really.

[ral]

Why shouldn't there be references to Big Brother? I give you the "unnamed senior administration official" quoted by Ron Suskind:

"That's not the way the world really works anymore," he continued. "We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do."

Here is part of the torture scene in 1984 (O'Brien speaks):

You believe that reality is something objective, external, existing in its own right. You also believe that the nature of reality is self-evident. When you delude yourself into thinking that you see something, you assume that everyone else see the same thing as you. But I tell you, Winston, that reality is not external. Reality exists in the human mind, and nowhere else. Not in the individual mind, which can make mistakes, and in any case soon perishes; only in the mind of the Party, which is collective and immortal. Whatever the Party holds to be truth is truth.

Draw your own conclusions.

[Gary Farber]

When John Ashcroft thinks you have a civil liberties problem, you just might.

Happy 2006!

[Gary Farber]

No one posting here has ever compared or implied that the Bush administration is fascist.

No references to brown shirts or such. No references to big brother or anything liket that.

Just one big love fest.

Here's a hint, out of kindness, and because it's a new year: yes, some people here have said all those things.

Of course, since no one here has denied that this is factually true, you don't actually "win" the argument, save for the one in your own head. You know, the straw man argument.

Words have meaning. Each word has an individual meaning. One thing does not mean another.

I asked if you could cite a single case of anyone posting on ObWings calling President Bush "BusHitler," since you seemed to feel that this was an apposite citation of an inappropriate imprecation frequently used here.

Clearly, you could not find a single citation, or you would have presented it forthwith.

Lacking actual facts, instead of honorably admitting error, you simply change the subject, and declare that it makes no difference, words pretty much all mean the same thing, anyway.

Which, of course, is quite possibly an accurate representation of how you read, hear, and parse words, as well as how you apparently use them.

So it will probably be of little interest to you that many others actually parse more carefully. In which case, do, by all means, have a good year. HTH, HAND.

[Gary Farber]

Acknowledgement, by the way, to CharleyCarp's prior posting to the same link in the link I gave, but I'll argue that it's possible mine is funnier. (And I hadn't caught up on this thread when I posted.)

[AlanDownunder]

This post assumes that the "war on terror" is a real war, not a souped-up police operation or a dictatorial gambit.

Faced with a FISA he considered inadequate, Bush had a 3-way choice:
A. Seek an amendment (from a compliant Republican majority in both houses).
B. Not seek an amendment and obey the law (congress has express - not merely implied - power to pass laws to regulate military conduct).
C. Become a criminal.

The crook chose C, allegedly for the best of motives, but we are supposed to take the crook's word that he is only surveilling terrorist targets.

[Sebastian Holsclaw]

"But one is also much less likely to operating under the delusion that all the intelligence is actionable, yes?"

No, not particularly.

We should be clear. Are you arguing against signal intelligence style programs as a substantive issue or do you merely think that Bush went about authorizing them the wrong way?

As I said in my post before, I'm not at all convinced that FISA is applicable at all in a huge percentage of these cases.

[CharleyCarp]

I'm not at all convinced that FISA is applicable at all in a huge percentage of these cases.

Now this is basically what I'm talking about above, in my humor-impaired way. No one would doubt that this is true. It's just that the "huge percentage" isn't 100, and we don't know what it is, yet. It was enough below 100, seemingly, to give the Attorney General pause.

We can all agree that a "huge percentage" of killings that occur in this world are not covered by section http://caselaw.lp.findlaw.com/cacodes/pen/187-199.html>187(a) of the California Penal Code. Quite likely even a majority of the killings in California aren't covered by it. Do either of these facts provide a defense to conduct that does come within section 187(a)? Would you take seriously a single utterance from a defense lawyer (or other partisan of the defendant) who said they did?

Yes it's silly, but how about this: you've got a guy running a criminal operation, killing people for hire in Mexico. Procures deaths of a hundred people there in one year. Then he orders one in California, and it's carried out. Yeah, you know where this is going -- now suppose all 101 of them are major drug dealers, most with murders of their own on their accounts. OK, suppose further that the guy running the operation spends a considerable portion of the proceeds thereform on charitable works -- supporting an orphanage and supplementing the pensions of police widows.

[Anarch]

Are you arguing against signal intelligence style programs as a substantive issue or do you merely think that Bush went about authorizing them the wrong way?

I was arguing against something?

[Sebastian Holsclaw]

"I was arguing against something?"

Apparently not.

"We can all agree that a "huge percentage" of killings that occur in this world are not covered by section 187(a) of the California Penal Code. Quite likely even a majority of the killings in California aren't covered by it. Do either of these facts provide a defense to conduct that does come within section 187(a)?"

But this isn't a good analogy for what is happening. The argument here appears to be that Bush is wrong to not ask for a FISA warrant even when FISA warrants do not apply. If you don't need a FISA warrant when you are targetting for example cell phone or satellite radio calls placed outside the country because FISA says "and if both the sender and all intended recipients are located within the United States" (for intercepting radio signals) then you don't need to ask FISA for a warrant. If you don't need a FISA warrant when you are doing signals analysis starting with calls from a known non-US citizen terrorist when he isn't in the US because it isn't true that you fall under "if the contents are acquired by intentionally targeting that United States person" you don't need to apply for a FISA warrant.

If the argument is purely procedural (we need to do these kinds of things but we need to amend FISA because we want FISA to cover everything) fine I guess. But I'm not seeing that clearly here.

[hilzoy]

Seb: here's what I don't see. The FISA statute doesn't cover everything. But it does cover a lot. We don't know a lot about the NSA program. But people in the administration, who presumably do, and who are speaking against the administration's interest, think that FISA applies. Alberto Gonzales:

"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."

James Comey:

"A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate."

Even John Ashcroft had concerns:

"Accounts differed as to exactly what was said at the hospital meeting between Mr. Ashcroft and the White House advisers. But some officials said that Mr. Ashcroft, like his deputy, appeared reluctant to give Mr. Card and Mr. Gonzales his authorization to continue with aspects of the program in light of concerns among some senior government officials about whether the proper oversight was in place at the security agency and whether the president had the legal and constitutional authority to conduct such an operation.

It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it."

So why not assume, absent further knowledge, that unless you buy either the AUMF or the Article II arguments, whatever it was that they were doing was illegal?

[CharleyCarp]

SH, I don't think anyone is claiming that FISA applies to that to which FISA does not apply. The question is whether FISA applies to any of what the NSA was doing. The answer to this question appears to be "yes," even if for the huge percentage of what NSA was doing the answer is "no."

If, as you seem bound to insist, the answer has always been no -- because of the facts, not because of some cockamamie reading of the Constitution -- then you and I are not arguing about anything. FISA related.

I think there's more than sufficient smoke to suspect a FISA violation, and look forward to a fuller development of the record.

[CharleyCarp]

And I think that based on the conduct of the people who have sufficient facts to make a judgment about whether FISA applies to the conduct.

[CaseyL]

I see hilzoy's aleady brought up the latest revelations: James Comey's refusing to recertify the surveillance program.

What her excerpt doesn't mention is that Comey was, at the time, the Deputy Attorney General. Ashcroft was in the hospital recovering from gall bladder surgery. Gonzalez and Andy Card went to Ashcroft - in the hospital - and Ashcroft was reluctant to recertify the program, too!

So, when WH spokesperson Jeannie Mamo says, "[T]he intelligence activities that have been under way to prevent future terrorist attacks have been approved at the highest levels of the Justice Department," the truth is, we don't know who those 'highest levels' were. Comey refused. Ashcroft was reluctant - and we don't know if he was eventually pressured to certify the program, or what condition he was in when and if he did certify.

I can sure understand the WH's dismay that the story's gotten out, but I don't think 'national security concerns' are the reason why. More like the WH knew then and knows now the surveillance program was an illegal abuse of power.

[Gary Farber]

"I see hilzoy's aleady brought up the latest revelations...."

Actually, CharleyCarp brought it up first, at 11:31 p.m. (the timestamp timezone) last night, and then I brought it up here, at 3:23 a.m., citing the piece I wrote about it, and then I acknowledged CharleyCarp's precedent in the next post, two minutes later, since when I first posted, I'd not yet read the comments.

Sorry for pointing out trivia. I had no brilliant insights to add in that post; I just waxed sarcastic, and wrote about ancillary matters. No real reason anyone should read it. It's hardly what's important here.

"What her excerpt doesn't mention...."

I keep thinking people read the actual articles when they're crucially important, and someone such as CharleyCarp or Hilzoy posts a link to them. But I'm projecting. Sorry, again.

[Catsy]

Personally, I don't think the revelations about Ashcroft's reservations are all that damning. Significant and relevant, yes, but not damning.

What's damning is the statement from AGAG quoted in the same comment--that it is their position that the actions in this program are covered by FISA and should require a warrant, except that they think the AUMF gives them authority that supercedes that.

It's a ridiculous argument, Sebastian, but it is the administration's official argument. I appreciate that you have a different view, but could you perhaps address the merits of the argument that the administration is actually putting forth instead of the one you think they ought?

[Sebastian Holsclaw]

At this point I'm assuming a SIGINT style net with traffic analysis with the starting nodes being in known or strongly suspected Al Qaeda members or the rumored "all calls ending in Afghanistan during the invasion" type of program. I certainly agree that an "all calls inside the United States" monitoring program would be an entirely different issue.

Quite a bit of the legal argument comes down to targets and purpose. I am willing to buy PART of the force authorization argument. If these procedures are used against Al Qaeda or other related Islamist groups. It seems silly (from both a logical and a legal perspective) to suggest that bombing in Afghanistan (actively risking innocent people's lives) was part of "all necessary force" while listening in on traffic in and out of Afghanistan was not (risking people's phone messages). While the number of people implicated are greater in the latter case, the interest in one's life is a higher priority for most people. FISA also speaks to targets, and specifically doesn't cover a large number of the targets that people seem to be worried about. The "if the contents are acquired by intentionally targeting that United States person" clause means you shouldn't need a FISA warrant (or even need to apply for one) if you are tapping a foreign call that is made to a United States person who is not your target. As far as targets go, I think the authorization covers (at a minimum) any non-citizen Al Qaeda member or affiliate of such a person.

As for purpose, once again the authorization guides. You can't use this to investigate drug crimes. You can't use this to investigate business crimes. You can't use this to investigate someone murdering his girlfriend.

Also, this is where the war/policing distinction becomes weird. If everyone is subject to this being a criminal proceeding, true enough these NSA taps won't be eligible for evidence. That is why it makes a lot of sense NOT to treat this as a normal criminal matter. The pressure for special techniques and treatments will be overwhelming in the whatever-you-want-to-call-it against Al Qaeda and other forms of violent Islamism. Far better to recognize that and deal with it separately rather than let it infect the standard criminal justice system with precedents that should never be applied out of the Al Qaeda/terrorist side of things.

[Frank]

Sebastian- I agree with that last paragraph, I wish that people fighting the war on organized crime, and the war on drugs had taken steps to prevent their tools from entering general usage. At the same time what happened in both of those cases makes me doubt that tools developed for the war on terror won't be used on more ordinary criminals.

[Gary Farber]

The latest from Pincus on NSA passing along info to other agencies (CIFA, DIA, etc.), with some words from me, as usual. Should I be quoting excerpts here, rather than hoping people will click the link?

[Gary Farber]

"At the same time what happened in both of those cases makes me doubt that tools developed for the war on terror won't be used on more ordinary criminals."

This is, of course, what happened with the PATRIOT Act.

Those powers were given by Congress with the understanding -- though not clearly so restricted by the Act, insofar as I understand it (but IANAL) -- that they would be used against terrorism, not against common criminals, or anyone else.

But the government immediately put those powers into effect against pornographers, gangsters, and other strictly domestic criminals.

The Founders really were on to something with that that whole "restrict the powers of the executive" and "have checks and balances" and "divide government into three equal branches" thing, because of their wise knowledge of history and humanity that power made available almost always winds up being used, and thus abused.

"Do not tempt me, Frodo! You cannot offer me this Ring-- through me it would wield a power too great and terrible to imagine. You see, I would seek to use the Ring for Good...."

(I paraphrase from memory.)

And, of course, Acton. This is assuming the President didn't enter the White House already corrupt and corrupted by Sauron, but it's not necessary for now to agree upon that. What's inarguable is that even if you think the President started out as noble as Saruman once was, he's somewhere past chopping down Fangorn Forest now.

Is this less shockingly and offensively disrespectful than analogizing to Chancellor Palpatine?

[Sebastian Holsclaw]

Yes, and this is precisely why the terrorism problem ought not be dealt with as a normal criminal matter. Doing so locks us into either expanding the techniques used against all criminal matters or severely limiting our effectiveness against international terrorism. It would be far better to realize that it is a special case and carefully craft things around that.

[Charles Bird]

My apologies for not responding to comments. At this point, I haven't read any comments either, but I will. I hit the "post" button Friday morning, then went skiing for the day, then spent the next two days flat on my back with the flu. Not the way to usher in the new year. I have read Sebastian's Narrowing Down post and find myself pretty much in agreement with it.

[Jackmormon]

I hope you get better soon, Charles.

[hilzoy]

Get well soon, Charles.

[Gary Farber]

Same same, Charles.

[dutchmarbel]

I hope you are feeling better now Charles.

[Gary Farber]

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