Spying on US citizens

[Johnny Coli]

I just don't get it.  I have no idea why they would just go ahead and tap without ever asking for a warrant when they know the warrant would be granted.  I can only guess that they were tapping people with such a complete absence of grounds, that they knew FISA, even with its "any reason will do" standard, would have denied the warrant.

537258[/snapback]

My thoughts exactly. Here we have a law that basically allows them to do whatever-the-hell-they want, provided they get a warrant at some point over the next three days. It doesn't have to be in their hands when they start, it just has to be granted in three days. But for whatever reason, this administration feels the need to go into triple-secret-decoder-ring mode, laws, seperation of powers, and constitution be damned, and not bother to get what they could have if they'd only ask. Power grab indeed.

[Ghost of BiB]

If you are saying that there were cicumstances where it was not possible to get a warrant, or a complete one, then that would be easy enough to defend.  "We didn't use FISA in certain limited situations where the technology involved made it impossible to process the warrant application in 3 days."  They are not saying that.  They are saying that the authorization to use military force in Afghanistan gave the President the authority to tap US Citizens.

 

As for the need, why the barest of minimums under FISA couldn't be bothered with, they haven't offered anything.  I imagine there are some "excuse gnomes" buried beneath the White House chained to the wall and being whipped daily until they come up with a plausible excuse for all this.  Early money is on "9/11".

537336[/snapback]

 

I'm talking purely in the hypothetical, and I'm not a lawyer. I do suppose that methods and technology outstrip the intents of the laws. We see it to an extent with copyright laws, and the new mediums being invented to record movies and music. From a legal perspective - how justifiable or currently legally defensible is a warrant to interecept virtually every cell phone conversation in a 1,000 mile radius, in order to sort them for certain phrases, or names? Then, once those are found, go back for specific warrants against certain people? Is that sufficient, or legal to establish probable cause? A corallary might be, you live in a neighborhood where someone sells drugs. Can someone search your house because drugs are known to be in the neighborhood, and if they find a pack of zig zags, use that to get a further warrant?

 

The administration has a valid point if one is looking at this as a national security issue, being done under a wartime footing. It's another issue entirely if it's being viewed as domestic law enforcement. Once again, what is going on in the world is outpacing the intents of the laws. Then, toss in the political posturing of both sides, and it's a recipe for disaster.

 

This is the same group crying about intelligence agencies not sharing information. Well, where does one think the information comes from? When trying to connect the dots to form a picture in terms of situational awareness, one can't do it by picking and choosing the medium that gets sifted.

 

So, the laws need to be re-written. Looking at what is going on with the Patriot Act, I don't know if that is likely to happen. In my view, a lot of this definitely is driven by the technology, and once again the methods. I assure you, no one is interested in your conversations with the neighbors wife. No one has the time.

 

The big issue to me here, is that a lot of people don't seem to realize there is a war going on, beyond the nightly Iraq news.

[Johnny Coli]

From a legal perspective - how justifiable or currently legally defensible is a warrant to interecept virtually every cell phone conversation in a 1,000 mile radius, in order to sort them for certain phrases, or names? Then, once those are found, go back for specific warrants against certain people? Is that sufficient, or legal to establish probable cause? A corallary might be, you live in a neighborhood where someone sells drugs. Can someone search your house because drugs are known to be in the neighborhood, and if they find a pack of zig zags, use that to get a further warrant?

537403[/snapback]

 

They're not talking about casting a wide net and trolling for intel. Both Bush and Gonzo have said it is used on suspected individuals.

 

MSNBC Link

 

Bush and other officials have said the program involves monitoring phone calls and e-mails of individuals in this country believed to be plotting with terrorists overseas. They have also emphasized that it only involves people suspected of being tied to al-Qaida and that one end of the communication has to be abroad.

 

Bush stressed that calls placed and received within the United States would be monitored as has long been the case, after an order is granted by a secret court under the provisions of the Foreign Intelligence Surveillance Act.

 

If that's the case, it would seem pretty easy to get a warrant within 72 hours, because they appear to have a pretty specific and narrow range of targeted individuals. Unless, of course, they are lying. But we know that would never be the case with this administration, which has restored honor and integrity to the Executive Branch.

[stuckincincy]

The big issue to me here, is that a lot of people don't seem to realize there is a war going on, beyond the nightly Iraq news.

537403[/snapback]

 

Yes. When folks say that they mean to kill all of us, have acted upon that and will try to act again - ignoring the civil nicities that many potential victims prize - I for one take it seriously.

 

It's that old, big picture thing...

[GG]

TBush and other officials have said the program involves monitoring phone calls and e-mails of individuals in this country believed to be plotting with terrorists overseas. They have also emphasized that it only involves people suspected of being tied to al-Qaida and that one end of the communication has to be abroad.

 

Bush stressed that calls placed and received within the United States would be monitored as has long been the case, after an order is granted by a secret court under the provisions of the Foreign Intelligence Surveillance Act.

537409[/snapback]

 

And that is the rub. Without having more of the details, you don't know if the monitoring of these people was done outside the US. No one has addressed the legality of tapping a US-Afghan phone conversation in Turkey. By the letter of the law, it appears to be legal.

[Berg]

They're not talking about casting a wide net and trolling for intel.  Both Bush and Gonzo have said it is used on suspected individuals.

 

MSNBC Link

If that's the case, it would seem pretty easy to get a warrant within 72 hours, because they appear to have a pretty specific and narrow range of targeted individuals.  Unless, of course, they are lying.  But we know that would never be the case with this administration, which has restored honor and integrity to the Executive Branch.

537409[/snapback]

 

I don't think you get exactly what BiB meant. Even if you know narrowly who you are "targeting", that doesn't necessarily mean your intelligence data collection will be that narrow. Unless the suspects are stupid enough to always talk on the exact same landline which happens to be the target. Possible I suppose, but unlikely it seems to me.

 

Bottom line - it is impossible given the currently disseminated data to exactly characterize this situation. I would tend to give the benefit of the doubt to the NSA, but would have no problem seeing an investigation as long as appropriate security measures were taken, public and media be damned.

[OGTEleven]

I don't think you get exactly what BiB meant.  Even if you know narrowly who you are "targeting", that doesn't necessarily mean your intelligence data collection will be that narrow.  Unless the suspects are stupid enough to always talk on the exact same landline which happens to be the target.  Possible I suppose, but unlikely it seems to me.

 

Bottom line - it is impossible given the currently disseminated data to exactly characterize this situation.  I would tend to give the benefit of the doubt to the NSA, but would have no problem seeing an investigation as long as appropriate security measures were taken, public and media be damned.

537425[/snapback]

I'm with you on that.

 

It's our job as citizens to be wary of the government. That said, I think it is strange that this topic has generated so much of an issue (especialy publicly aired and heavily run in the media). We know the intent of the enemy and we know their method of communication. We have the technology to stop it (or at least try). If the government catches a drug dealer in the process (by accident) and the case gets thrown out then terrific.

 

They can't have carte blanhce but we also have to be realistic. Does anyone suspect that the phone taps are being used for anything other than the presumed intent? Is anyone really suggesting we lay off the terrorists until congress can pass a special law and the courts can hear all the appeals?

[Chilly]

I think Tom is dead on with the balance between the protections offered by the constitution and the need for national security.

 

It would seem to me that there should be a way for the government to tap a phone based on intel with a grace period, and either act on it in a non-legal way, or get a warrant, reviewed by a judge (top secretly is fine).

 

From what Mickey is saying, it sounds like FISA is setup to do this exact situation. If so, I think it would be another mistake by this administration not to go down those routes. It makes no sense NOT to, and is another damaging blow to this administration's credibility.

[Simon]

Considering their perfect record of obtaining the desired warrants, you have to consider that they are choosing to only apply for warrants in cases where they are a guaranteed lock to be granted. In cases where their evidence or sources may be lacking (or have come from questionable methods) only then do they choose to circumvent the required processes necessary to legally obtain the warrants.

This methodology suggests several possibilities:

a) they are doing their difficult jobs the best they can

b) they are understandably reluctant to divulge certain means or methods

c) people outside the scope of national security have appropriated these allowances for domestic use.

 

If it's "a", we can only hope a quick investigation doesn't create unnecessary barriers for those whose responsibility it is to catch bad guys.

If it's "b", this administration has possibly decided that they will have an easier time dealing with the issue of investigative methodology rather than the issue of torture.

If it is "c", some mutherfu(kers need to go to jail.

[Taro T]

I took a look at the FISA. It appears that the reason Gonzales referred to Congressional authorization for the war in Afghanistan and against Al Queda is it would kick the surveillance taps over to paragraph 1811 "Authorization During Time of War".

 

This states: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."

 

1811 doesn't mention anything about the 72 hour time limit for the AG to certify / send the certification to the FISA court and also limits the time period for the tapping to 15 days down from 1 year.

 

I may be misreading this, I'm sure Mickey can help clarify; but it sounds to me that as long as the correspondence originated/terminated outside the US and was expected to be directly related to the war w/ Taliban / Al Queda (which is my understanding based on Yahoo's version of the NYT story) that Gonzales and Bush are correct in stating no FISA court warrant was required.

 

Taking a look at the Statute, I'm starting to understand why Condi was stating she isn't a lawyer when asked for clarifications. It seems a bit more convoluted than the typical environmental / labor regulation that I have more experience deciphering.

[Alexander Hamilton]

I took a look at the FISA.  It appears that the reason Gonzales referred to Congressional authorization for the war in Afghanistan and against Al Queda is it would kick the surveillance taps over to paragraph 1811 "Authorization During Time of War".

 

This states: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."

 

1811 doesn't mention anything about the 72 hour time limit for the AG to certify / send the certification to the FISA court and also limits the time period for the tapping to 15 days down from 1 year.

 

I may be misreading this, I'm sure Mickey can help clarify; but it sounds to me that as long as the correspondence originated/terminated outside the US and was expected to be directly related to the war w/ Taliban / Al Queda (which is my understanding based on Yahoo's version of the NYT story) that Gonzales and Bush are correct in stating no FISA court warrant was required.

 

Taking a look at the Statute, I'm starting to understand why Condi was stating she isn't a lawyer when asked for clarifications.  It seems a bit more convoluted than the typical environmental / labor regulation that I have more experience deciphering.

537711[/snapback]

 

FISA gives him 15 days to surveil without warrant after the declaration of war, but also requires that the government not tap US citizens. So he'd still need a FISA warrant eventually.

[Mickey]

I'm talking purely in the hypothetical, and I'm not a lawyer. I do suppose that methods and technology outstrip the intents of the laws. We see it to an extent with copyright laws, and the new mediums being invented to record movies and music. From a legal perspective - how justifiable or currently legally defensible is a warrant to interecept virtually every cell phone conversation in a 1,000 mile radius, in order to sort them for certain phrases, or names? Then, once those are found, go back for specific warrants against certain people? Is that sufficient, or legal to establish probable cause? A corallary might be, you live in a neighborhood where someone sells drugs. Can someone search your house because drugs are known to be in the neighborhood, and if they find a pack of zig zags, use that to get a further warrant?

 

The administration has a valid point if one is looking at this as a national security issue, being done under a wartime footing. It's another issue entirely if it's being viewed as domestic law enforcement. Once again, what is going on in the world is outpacing the intents of the laws. Then, toss in the political posturing of both sides, and it's a recipe for disaster.

 

This is the same group crying about intelligence agencies not sharing information. Well, where does one think the information comes from? When trying to connect the dots to form a picture in terms of situational awareness, one can't do it by picking and choosing the medium that gets sifted.

 

So, the laws need to be re-written. Looking at what is going on with the Patriot Act, I don't know if that is likely to happen. In my view, a lot of this definitely is driven by the technology, and once again the methods. I assure you, no one is interested in your conversations with the neighbors wife. No one has the time.

 

The big issue to me here, is that a lot of people don't seem to realize there is a war going on, beyond the nightly Iraq news.

537403[/snapback]

I think the hypotheticals you suggest are covered. They can tap anybody, anywhere without a warrant for 3 days. The FISA courts are classified so the application for a warrant on the target is secret. FISA always grants the application, always. The stat I heard was 1,222 granted out of 1,226 requested, all 4 rejects were granted on appeal. What you are suggesting in the hypos are possible scenarios where a tap would be necessary that likely would not be approved by the FISA court but I find that hard to believe given their record on this of 100% approval.

 

Even if there were a legitimate fear of a needed warrant application being rejected despite the 1,226 out of 1,226, they could just apply, take the rejection and continue to tap anyway. The only penalty for doing it without the warrant is that the info is not admissible in court. That is the same result of the taps for which no application for a warrant was ever made. Identical results. I just can't come up with an explanation of this.

[KRC]

I took a look at the FISA.  It appears that the reason Gonzales referred to Congressional authorization for the war in Afghanistan and against Al Queda is it would kick the surveillance taps over to paragraph 1811 "Authorization During Time of War".

 

This states: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."

 

1811 doesn't mention anything about the 72 hour time limit for the AG to certify / send the certification to the FISA court and also limits the time period for the tapping to 15 days down from 1 year.

 

I may be misreading this, I'm sure Mickey can help clarify; but it sounds to me that as long as the correspondence originated/terminated outside the US and was expected to be directly related to the war w/ Taliban / Al Queda (which is my understanding based on Yahoo's version of the NYT story) that Gonzales and Bush are correct in stating no FISA court warrant was required.

 

Taking a look at the Statute, I'm starting to understand why Condi was stating she isn't a lawyer when asked for clarifications.  It seems a bit more convoluted than the typical environmental / labor regulation that I have more experience deciphering.

537711[/snapback]

 

 

The problem arises in the fact that war was never declared by Congress. Military action was authorized, but there was no declaration of war. Therefore, 1811 does not apply, IMO.

[Ghost of BiB]

The only penalty for doing it without the warrant is that the info is not admissible in court.

 

And this is where it gets muddy. Are domestic terror suspects going to be handled in the courts? Or as enemy combatants? In my layman's view, it still seems very legally sticky if the original probable cause for a specific warrant comes from a blanket search of cell phone traffic, or mining chat boards.

[Taro T]

The problem arises in the fact that war was never declared by Congress. Military action was authorized, but there was no declaration of war. Therefore, 1811 does not apply, IMO.

537804[/snapback]

Interesting point. The bad guys declared war on the US and the US responded back by declaring authorization to use military force. So although we are at war and everyone knows we are at war, we technically aren't at war because although Congress said we'd fight a war they never actually said we are at war.

 

It appears you are correct KRC that 1811 is not applicable, but it also appears that 1811 is what Gonzales is using as justification.

[KRC]

Interesting point.  The bad guys declared war on the US and the US responded back by declaring authorization to use military force.  So although we are at war and everyone knows we are at war, we technically aren't at war because although Congress said we'd fight a war they never actually said we are at war.

 

It appears you are correct KRC that 1811 is not applicable, but it also appears that 1811 is what Gonzales is using as justification.

537831[/snapback]

 

Herein lies the problem with the administration's argument (if in fact that is their argument).

[Taro T]

FISA gives him 15 days to surveil without warrant after the declaration of war, but also requires that the government not tap US citizens. So he'd still need a FISA warrant eventually.

537798[/snapback]

Not exactly. KRC found a more legitimate hole in the 1811 reasoning.

[VABills]

Herein lies the problem with the administration's argument (if in fact that is their argument).

537848[/snapback]

The Sep 2001 resolution stated that the President was authorized to use all neccessary means and force to battle Al Qeada. In addition, they discussed some 1978 law that somehow include the surveillence of foreign nationals.

[KRC]

The Sep 2001 resolution stated that the President was authorized to use all neccessary means and force to battle Al Qeada.  In addition, they discussed some 1978 law that somehow include the surveillence of foreign nationals.

537851[/snapback]

 

Cite the Congressional declaration of war for me, please. Provide the link.

[VABills]

Cite the Congressional declaration of war for me, please. Provide the link.

537856[/snapback]

I was giving you the admins arguement, and a "quote" from the post. But if it will make you feel better I will try to find it.