Why Not Just Get FISA Warrants?

Back on the subject of the NSA warrantless eavesdropping, we have some intriguing hypotheticals to trot out.

Let's give Brit Hume a chance to set the stage - here he is interviewing Jane Harman, ranking Democrat on the House Intelligence Committee:

HUME: So if you're listening in on an Al Qaida suspect overseas, and you're listening to all of his or her, as the case maybe, phone conversations, and suddenly he's on the phone to someone in the United States, or he's in the United States and you're listening, and he's talking to somebody in the United States, do you believe that you need, then, to shut the surveillance down and go to the FISA court to get it authorized, or to go there later, or what?

HARMAN: Well, I think that in the -- those conversations in the United States would be a perfect basis to get court approval. And there is a 72-hour delay mechanism in the FISA statute. So my answer to you is, number one, it is very important to learn the plans and intentions of our enemies.And number two, we can do that within a legal framework that would give Americans comfort and actually give our court system comfort that the Fourth Amendment is being observed and that our system of laws that Congress has passed, including FISA, which was supposed to be the exclusive way to do electronic surveillance on Americans in America, are being observed.

Let's give Mr. Hume modified props - assuming it is the AL Qaeda operative being targetted while overseas, and his US contact is incidental, a warrant would seem to be unnecessary, based on FISA 1801(f).

However, Mr. Hume modified his question to put both ends of the call within the US, so let's allow him his hypothetical in order to make another point:

Folks seem to be thinking of these taps in terms of real time, with agents wearing headphones listening in as our enemies chat.

However, let me propose my own hypothetical: 

Let's *ASSUME* that the NSA *records* every digital transmission from Afghanistan to the US that they can get ahold of.  Decrypting and translating take time, so initially they simply maintain a huge vault of raw intercepts.  Let's imagine that in June, a telephone of no apparent interest in Kabul dials a phone number of no apparent interest in Manhattan.

That phone in Manhattan is then used to dial a number in Washington DC; the call is also recorded but not decrypted.

A month goes by.  Then, come July, Osama himself calls the formerly-uninteresting phone in Kabul.  Wow!  The NSA is interested now, you betcha!

So, some questions for spies and lawyers:

(a)  Is it now worth the computer time to decrypt and translate the June calls from Kabul to Manhattan? 

Easy - of course it is, and I think there is broad agreement that, since one leg originated overseas and the interception occurred overseas (broadly defined, perhaps, to include the border), FISA warrants are not necessary.

(b)  Will spychasers want to decrypt the Manhattan-Washington DC phone call recorded in June?

I promise, the questions will get more difficult - as to decrypting the call to Washington, of course they will want to.

(c)  Can the NSA invoke the 72 hour rule and get a retrospective warrant for that call?

I don't know, but I do know that a lot more than 72 hours have passed since the recording was made.  Can the NSA argue that "interception" includes decryption?  Would that fly?  I don't know (but I would guess not).

So, what is a President to do?

It may be that our data storage capability simply does not mesh well with FISA.  Let's go back to 1801(f) for the definition of surveillance:

“Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication...

Emphasis added.  One might argue that, until the call has been decrypted and evaluated, the "contents" have not been captured - all that has been stored are digital ones and zeros.  If a tree falls in the forest and no one is there to hear it, did it make a sound?

Consequently, the act of "intercepting" and storing the call in digital form was legal (one might argue).  And decrypting it later?  Well, a probable cause argument is a lot easier if the connection to Osama can be shown.

Now, I am not a lawyer, and some of these points may have been settled.  But I'll say this without fear of contradiction - my hypothetical is a lot more interesting than Brit Hume's.

AG Gonzalez alluded to difficulties in amending FISA in ways that covered The Program without revealing it.  The second hypothetical may be the sort of thing he had in mind.  Or at least, it suggests ways in which the problem might be more complicated than folks realize.

MORE:  Keep Legal Eagle Orin Kerr in the mix for NSA coverage.

Comments

[Geek, Esq.]

The technology involved is the main reason I haven't gotten too worked up about this contretemps.

Still, it shouldn't have been too hard to get a provision covering this smuggled into the Patriot Act from the outset--it's not like anyone read the damn thing before it passed. When in doubt, be sure to comply with the law.

[clarice]

Read Kerr--apparently the language in Patrior II might have covered this.

[TM]

Still, it shouldn't have been too hard to get a provision covering this smuggled into the Patriot Act from the outset

Well, the first Patriot Act only got, like, 99 Senate votes.

[Geek, Esq.]

There shouldn't be any "might have's" when it comes to Federal snooping on American citizens, imo. Clear Congressional authorization should be required.

[Geek, Esq.]

Well, the first Patriot Act only got, like, 99 Senate votes.

True, that provision may have cost them another 0-1 votes. A 98-2 vote was simply unacceptable.

[TM]

Here is Orin Kerr on that point:

(Aside: Remember back in 2003 when a copy of the Administration's "Domestic Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to the press? Section 501 of that Act would have made "providing material support" to a terrorist group an automatic ground for terminating citizenship. This is just a guess, but I wonder if the thinking was that this would make the NSA warrantless monitoring program legal under FISA. An individual who made regular contact with Al Qaeda could be giving them material support, and the individual would then no longer be a United States person and could then be legally subject to monitoring. Just speculation, but it might explain the thinking behind the legislative proposal. Anyway, back to our regularly scheduled programming.)

Well, maybe. Of course, suspending a person's citizenship opens up a lot more obvious things in terms of arrest, confinement, coercive interrogation, etc.

Color me skeptical.

[oceanguy]

You might have different opinions if you had a fuler understanding of the technology involved. "Eavesdropping" and "wiretapping" are not accurate terms used in the screening process.

Your questions, and Brit Humes', are interesting but almost certainly they have little applicability to the technology that is likely being used.

[Dwilkers]

"...Let's imagine that in June, a telephone of no apparent interest in Kabul dials a phone number of no apparent interest in Manhattan.

That phone in Manhattan is then used to dial a number in Washington DC; the call is also recorded but not decrypted.

A month goes by. Then, come July, Osama himself calls the formerly-uninteresting phone in Kabul. Wow! The NSA is interested now, you betcha!

Good on you TM. This is, I suspect, much closer to the type of thing that is being done than what is being assumed in much of the conversation about this issue.

Add in all the complexities of modern communication, message boards, text messaging, and on and on and on. Voice recognition. Speech patterns. Massive data analysis on a scale unheard of before this.

It is this sort of thing that I think may be what's going on, and this is a much, much more complicated - and difficult - issue than has generally been discussed.

[Kevin B]

Excuse my ignorance,but as a Brit my knowledge of the US justice system comes from watching Laura Norder and

similar cop shows.

Let's try another hypothetical

A cop is walking down the street and sees someone who looks a bit suspicious, follows him to his pad, busts in and finds

illegal guns, bombs, stolen propery etc. and arrests the guy. The DA won't even take the case to a judge because the

cop didn't have a warrant, wasn't in hot pursuit and didn't have probable cause.

But the cop is never arrested , charged with some felony and locked up. He just gets bawled out for not finding or

inventing some justification for the bust.

So why are so many people talking about what the NSA and Bush have done as 'illegal'. Surely the only problem is that

any evidence found may not be admissable,

Indeed I read in a column sowewhere that the FISA judges are not concerned with what the NSA is doing per se, but

whether evidence from unwarranted surveillance can be used to grant warrants for surveillance on US persons without

being tainted.

The NSA is sniffing out leads, looking for patterns and just generally being a cop, and if it gets a lead it passes it on to the

FBI to followup and go through the legal hoops.

So why all this talk of crimes and impeachment and the like.

Ok, I can see why NSA surveillance might be different, like CCTV and loyalty cards, but I still cn't see the indictable

crime.

Incidentally, I think the reason for Atrios et al taking the 'Leaks didn't cause any national security problems ' line is that the

pressure on the leakers is starting to grow.

Mind you, I think the extrordinary rendition of the two JRs is a tad excessive, (or is there some other reason we haven't

heard from them recently).

[cathyf]

Of course, suspending a person's citizenship opens up a lot more obvious things in terms of arrest, confinement, coercive interrogation, etc.

But that's already settled law, right? In WWII when the German sabatours came ashore, the president sent them to a military tribunal and they were summarily executed. The Supreme Court ruled (four months after they were dead) that the fact that 2 of the sabatours were American-born was irrelevant. Once they started working for the Germans they were no longer American citizens.

cathy :-)

[Charlie (Colorado)]

I think it gets a little better yet: if you don't have a FISA warrant, "minimization" requires you to delete the intercepts after 72 hours.

[Anonymous Liberal]

Tom,
This is an interesting post, as always, but it's still hard to see how it's relevant whether or not the prohibitions of FISA are "practical" in light of the surveillance we're now doing. If the prohibitions of FISA are unreasonable, the president has to go to Congress and get the statute amended. That's exactly what he did with the Patriot Act, which made a number of important changes to FISA, including doing away with the probable cause requirement. You seem to indicate in your post that FISA requires probable cause. It doesn't. The standard is now MUCH less stringent.

And your concern over the difference between "interception" and "decryption," if important, could easily be addressed by statutury amendment. There is no reason whatsoever to think that Congress would have refused to go along with such an amendment.

Long story short, unless it can be demonstrated that Bush's program is does not in fact in violation of FISA (which seems unlikely considering it is not even being argued by the administration), the practicability of FISA is totally irrelevant to consitutional issues presented by this case.

[searp]

The only way to get a useful opinion on the legality of the program is to get it reviewed by the courts. The FISA court seems like the right jurisdiction. Why doesn't the administration just do this?

No, it is not enough to brief in a single judge.

Hypotheticals simply may be completely wide of the mark.

[epphan]

There shouldn't be any "might have's" when it comes to national security. Clear Congressional authorization should not be required.

[Wonderland]

TM gallantly attempts to point out:

"One might argue that, until the call has been decrypted and evaluated, the "contents" have not been captured - all that has been stored are digital ones and zeros."

Yes, one might, but one might also be wrong. Read the statute again, Tom, because under 1801(n) the term "contents" is defined to include any information concerning even the "existence" of the intercepted communication. So even if its simply a computer recording some 1's and 0's, then the contents have been captured -- it's inarguably a record of the "existence" of the communication -- and FISA applies.

I readily admit that various hypotheticals pose some practical problems for FISA's application. And certainly, to the extent that the program was/is necessarily and we're talking weeks and months following 9/11, the President might be able to make some sort of necessity argument for its temporary authorization that would have spared him most of the grief he's now getting 4.5 years later. But, like AL, I believe that our system requires the President to go to Congress, in closed session if necessary, and get the law changed. He cannot have the unitary ability to do this on his own -- not, at least, when communications from the phones of Americans inside the US are concerned.

[Rick Ballard]

epphan,

One must consider the mischief that al-Queada's useful idiots might get up to to were they not focused on the "how many angels will this pinhead hold" question that now consumes their time.

Bringing treason charges against the leakers might provide a means of fully exploring the the wholly theoretical legal and constitutional questions in a practical manner. Lesser charges might do the trick but my preference would be Risen, Keller and Sulzberger in the dock alongside their "sources" in a nice lengthy trial followed by appeals that would last for five to seven years.

[marianna]

It takes 72 hours to get a warrant. For something possibly life-threatening, that is way too long. In a pre-911 world, FISA might have made sense. But in a post-911 world, it simply doesn't.

[clarice]

Bravo, Rick.

The FISA court, like all other courts, can only rule on justiciable controversies, which means someone has to show that he was harmed by the program. And unless we can haul in the apparently dead Osama and his buddies that might be hard.

[epphan]

Wonderland is right on the "existence" issue. TM's hypothetical in that area doesn't cut the legal mustard. Question: If you assume Bush is not a power-hungry dictator (a harder assumption for some than others), what is his motive for not pursing a change in law? Stupidity? An issue that is much more complex than anyone realizes?

[Rick Ballard]

Perhaps he's leaving the legislative funtion to the dolts theoretically responsible? Is there some bar against Harman or Rockefeller actually proposing legislation? Aside from ineptitude, of course.

If I'm told by a competent mechanic that my car ain't broke from whence does my duty to have it fixed arise? It runs, it takes me where I wish to go and my mechanic says it's good for another fifty thousand miles. Why should I overhaul the engine?

[maryrose]

Rick,
Lots of talk about separation of powers:
Let the legislators- legislate
Let the executive- execute

[BurkettHead]

What if the NSA doesn't maintain the database, but the telecommunications company does in the ordinary course of its business? If the NSA has to "destroy" the results of its intercept, does it just "destroy" the results of a sort or filter, or does the NSA "destroy" the contents of the telecommunications company database?

[Les Nessman]

Funny how during these latest Epidemic of Leaks the Lefties don't even question the motives and/or legalities of the leakers; but during the Plame non-story it was the ONLY thing they questioned.

[marianna]

"Lots of talk about separation of powers:
Let the legislators- legislate
Let the executive- execute"

Very well put.

[Anonymous Liberal]

That is funny, Les, until you stop and realize that "Righties" were willing to give Karl Rove a medal for outing Plame (seriously, John Gibson of Fox wrote an editorial saying exactly that) but now are obsessed with prosecuting the nefarious leakers behind the NSA story. Hypocrisy is a two-way street.

There's also the fact that the topic of the Plame leak (that Plame was a spy) wasn't particularly interesting and didn't raise serious legal/consitutional issues. In the NSA case, the information that was leaked raises the possibility of executive branch illegality and overstepping of constitutional authority. I have no problem with investigating the leaks, but clearly the program itself it the more newsworthy item is justifiably getting the bulk of the attention.

[Cecil Turner]

Can the NSA invoke the 72 hour rule and get a retrospective warrant for that call?

Maybe I'm misreading FISA, but my understanding based on 1805.f. is that the AG can authorize a wiretap if:

1. an emergency situation exists [. . .] and
2. the factual basis for issuance of an order under this subchapter to approve such surveillance exists

He then has 72 hours to tell the judge. He doesn't have 72 hours to find probable cause. (And unless I'm misreading it, Harman's answer was unresponsive B.S.) Can I get an opinion from one of the professionals? Geek? Clarice?

the practicability of FISA is totally irrelevant to consitutional issues presented by this case

Nonsense. If it undermines the President's authority to wage war, it's arguably unconstitutional. It certainly isn't "irrelevant."

[Cecil Turner]

Hypocrisy is a two-way street.

No doubt, but that's a poor example. Whatever happened with Plame/Wilson and the Niger trip, he obviously leaked details of intelligence operations detrimental to national security . . . and she had a hand in it. Her identity leak was more like an NFL fracas where the second foul draws the flag.

[clarice]

Cecil--I just don't see how what little I know of the NSA program can fit into FISA which is designed for ordinary wiretapping where you've singled out a set person and begun listening in on all his calls. The FISA section you cired is illustrative of what I mean.

I doubt if 72 hours after we've connected to a link here we even know who he is--giving cell phones and internet connections.

[clarice]

givEN, not givING..

[Cecil Turner]

I just don't see how what little I know of the NSA program can fit into FISA . . .

That's where I was going (eventually) . . . the advances in technology for storing, scanning, sorting, etc. make it difficult to fit into existing law (which Tom's hypotheticals nicely illustrate). But on the basic legal question, posed competently by Hume:

do you believe that you need, then, to shut the surveillance down and go to the FISA court to get it authorized [?]

The only defensible answer from the statute would appear to be "yes." (And that's not the "right answer."™)

[clarice]

Which is why the gutless Rockefeller and Pelosi never tried to stop the project---FISA was simply not aplioacble.

Why didn't they offer up new legislation which might cover it? Why bother. As Rick says, the car's working just fine.

[Anonymous Liberal]

Correction:

In an earlier comment I said that FISA doesn't require probable cause. That's wrong. While FISA doesn't require probable cause that a crime has been or is about to be committed (like the 4th amendment), it does require probable cause that the target being wiretapped is a foriegn power or an agent of a foriegn power.

Not that anyone here pays attention to what I say anyway, but I justed wanted to correct the record.

[Geek, Esq.]

Do those who want the NY Times prosecuted also advocate jailing Richard Shelby? How about Orrin Hatch?

[Rick Ballard]

"Do those who want the NY Times prosecuted also advocate jailing Richard Shelby? How about Orrin Hatch?"

Sure, as long as Leahey, Biden, Schumer, Kennedy, Feingold and Levin will fit in the same cell. Any net that would take Shelby and Hatch has to be big enough to accomodate a rather larger number of Dems. Funny how that works.

I'll toss in Specter and McCain for no extra charge.

[Rick Ballard]

That would be for malfeasance though. Treachery belongs to the Time's men and their sources.

[Cecil Turner]

Not that anyone here pays attention to what I say anyway, but I justed wanted to correct the record.

Now, now, AL. We don't agree on much, but we pay attention. (Besides, what fun is it to argue with a bunch of folks who agree? We neeeed people like you.) Who loves ya, baby?

[cathyf]

Hey, AL, I listen to ya... :-)

While FISA doesn't require probable cause that a crime has been or is about to be committed (like the 4th amendment), it does require probable cause that the target being wiretapped is a foriegn power or an agent of a foriegn power.

And I'll point out here, as it seems to be a common source of confusion, this follows logically that warrants can only be applied to specific identifyable individual targets -- people, and you can't just get a warrant on a phone number.

Interestingly, I think that you have pointed out the strongest argument that FISA is unconstitutional. Instead of FISA being a law which implements 4th Amendment protections of Americans who might be suspected of committing crimes, it is a law which applies a sorta-kinda-like 4th Amendment regime to protect enemy combatants on the battlefield. But Article II of the constitution says that the president is not only allowed to fight against those who make war against our country, but obligated to do so. You could make the president's Article II obligations to spy on the US's enemies go away by amending the constitution to extend 4th-amendment-like protections to enemy spies and sabatours, but you can't just pass a plain old law. (FISA being a plain old law.) The fact that FISA explicitly requires probable cause of something other than what the 4th amendment is about makes it quite clear that FISA is trying to illicitly amend the constitution to give 4th-amendment-like rights to people who don't have them as opposed to implementing the 4th amendment for people who do have them.

cathy :-)

[Rick Ballard]

AL,

Based upon your previous comment on probable cause I looked up this Report on the Amendment

[marianna]

"That is funny, Les, until you stop and realize that "Righties" were willing to give Karl Rove a medal for outing Plame (seriously, John Gibson of Fox wrote an editorial saying exactly that)"

Rove was merely setting the record straight about Wilson. I'm not saying Rove "deserved a medal" (nor did any "righties" say that), but somebody had to point out that Wilson was, in fact, lying. Repeatedly lying. There was no damage done by the revelation that Ms. Plame worked for the CIA.

Compare that to the Times leak, which caused irreparable damage to a valuable operation, and you'll see why Bill Keller belongs in jail and Scooter Libby does not.

[Rick Ballard]

AL,

Based upon your previous comment on probable cause I looked up this Report on the Amendment of FISA which pretty much answers Tom's original question of Why Not Just Get FISA Warrants?

Currently the FISA court is issuing about 6 warrants per work day. Six whole warrants. At some point a law simply ceases to serve its intended purpose through impracticality. I would suggest reform of the law but I've seen very little evidence that the legislative branch has a clue concerning how to accomplish that task.

Bad TypeKey - no soup for you!

[Anonymous Liberal]

Cecil, Kathy, glad to know I'm not just talking into the void.

As for your point about probable cause, Kathy, I'm not sure I follow. The standard under FISA is significantly LESS rigorous than under the 4th amendment. And FISA makes it clear that you don't have to know specifically who the person being surveilled is. You can get a warrant for "John Doe." And I'm almost positive that the mere fact that someone is being called by a terrorist is enough to constitute probable cause under FISA to intercept the communication. The government shouldn't have any trouble getting a warrrant in that situation. My guess is that problems arise when you start getting out a few degrees of seperation away from the original call, i.e., intercepting the call of someone who talked to someone who talked to another person who talked to a terrorist. If the Bush administration wanted to listen to those calls, they may well have trouble securing a warrant under the current law.

But again, all this is beside the point. No one has ever questioned that Congress has the authority to regulate surveillance of U.S. citizens within the U.S. You can argue that somehow the president has exclusive authority over this subject and FISA is therefore unconstitutional, but that is a breathtakingly bold argument which has virtually no support in the case law.

[Davebo]

Interestingly, I think that you have pointed out the strongest argument that FISA is unconstitutional.

I'm no legal scholar and you may well be right that FISA was indeed unconstitutional.

However, even if it is blatantly unconstitutional we still have a very serious problem.

It is not the duty of the Executive branch of government, including the justice department, to determine whether or not a statute is unconstitutional.

Does the term "Boland Ammendment" ring a bell?

So the question becomes this. Who will be the next president and will he be willing, like Bush Sr was, to pardon people "for all the things they didn't do that I didn't know about"?

[marianna]

"I would suggest reform of the law but I've seen very little evidence that the legislative branch has a clue concerning how to accomplish that task."

The legislative branch has bean AWOL on WOT from the get go. Perhaps a filibuster-proof majority would change that, though I'm not sure even of that. It would certainly help not having Kennedy and Reid able to fillibuster common sense reforms.

The framers of the constitution meant for the executive to have extremely broad powers during a time of war. This is a time of war -- one of the most dangerous, if not the most dangerous, war this nation has ever fought. If there was ever a time for a strong executive, it is now.

Though part of me shudders at the thought that someone like Hillary would have powers this broad. That is why it is important to revisit some things when the war is over.

[Anonymous Liberal]

Davebo,

Another good point. FISA has been on the books since 1978 without anyone arguing that it's unconstitutional. And as you point it, even if it is, the President needs to have a court declare it to be such or have Congress repeal it. He can't just defy it. The president isn't the legislative, the executive, and the judicial all wrapped into one.

[Davebo]

Currently the FISA court is issuing about 6 warrants per work day. Six whole warrants. At some point a law simply ceases to serve its intended purpose through impracticality.

Where did you get this information? I would assume such information would be extremely classified, as is all information regarding the operation of the FISC.

Regardleses, could the reason for this figure be that DOJ only requested 6 warrants per day?

Actually, given what we know about the approval rate for FISA warrants, could there possibly be any other reason?

I might have been convinced to "look the other way" while the administration got legislation enacted to solve any issues new technology brought about with FISA. It would still be wrong, but that whole ticking bomb scenario and all....

But obviously the administration decided, for reasons I can't fathom given Patriots expedited passing, that it couldn't get congress to make the changes.

But to me, it's far more likely given the facts we currently have, that Congress might have had good reason (read bipartisan) to deny the change the Administration may have wanted.

[Davebo]

The legislative branch has bean AWOL on WOT from the get go.

Oh really? Can you think of a single war on terror related piece of legislation that has not been passed by congress?

Though part of me shudders at the thought that someone like Hillary would have powers this broad. That is why it is important to revisit some things when the war is over.

Huh? Hillary's grandchild could be president by the time this war is over. At least if you believe the Administrations goals in the global war on terror.

And again, exactly what terror related legislation was filibustered by Kennedy, Reid, or anyone else?

[marianna]

"Hillary's grandchild could be president by the time this war is over. At least if you believe the Administrations goals in the global war on terror."

We should be out of Iraq by early 2007. We may need one more invasion -- Syria or Iran -- and then, I predict within half a dozen years, the war on terror will be essentially won. So I think that by 2015 or thereabouts, we will have won this war. Maybe that's being too optimistic, but it's certainly preferable in my eyes to the defeatist rhetoric you are spouting.

[Rick Ballard]

"Where did you get this information? I would assume such information would be extremely classified, as is all information regarding the operation of the FISC."

There is this marvelous new invention called a "search engine" - when you learn its secrets it will take you to places like this where you can learn all sorts of mind numbingly boring things. I did use a trick to figure out the number per day though - it's called "long division". Too complicated to explain here.

If you read a bit of the previous link the reason for the lack of applications shines through like a supernova. FISA was designed to impede the collection of intelligence and is a remarkably good tool for the purpose. If there is any justice at all in the universe Frank Church is roasting for eternity for coming up with this (as well as other) abominations.

The reason the Executive did not pursue amendment rests with Russ Feingold and Tom Daschle. Tom has his reward and with a bit of patience Russ will receive the same.

[Cecil Turner]

And I'm almost positive that the mere fact that someone is being called by a terrorist is enough to constitute probable cause under FISA to intercept the communication.

If that's true, the protection is meaningless, and this whole argument is over the difficulty of complying with burdensome administrative requirements to a stupid law. But I think it isn't true, and the legal requirement is to show probable cause that the person answering or calling is in fact an agent. And I don't see how you could do that with an intercept that led you to the individual.

No one has ever questioned that Congress has the authority to regulate surveillance of U.S. citizens within the U.S.

The question becomes a bit more problematic when one of the people on the phone is overseas, especially in wartime. (Though I think Congress still has the authority to regulate it, as long as it doesn't make winning the war impossible.)

Oh really? Can you think of a single war on terror related piece of legislation that has not been passed by congress?

Oh great. What, is the Balloon Juice comment section shut down or something?

[TM]

Not that anyone here pays attention to what I say anyway, but I justed wanted to correct the record.

Not at all - I didn't think I was in a full dream state when I threw in the probable cause reference.

Read the statute again, Tom, because under 1801(n) the term "contents" is defined to include any information concerning even the "existence" of the intercepted communication.

"Again"? I'm not sure I made it down to (n) the first time.

Here we go:

(n) “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.

Ouch. "Substance, purport, or meaning" are easy to finesse.

"Existence"? Troubling. Perhaps NSA lawyers could get metephysical and point out that, until it is decrypted, we don't even know if it is just a dial tone.

Or maybe they could separate file headers from the body, so that, for computer purposes, the record only "exists" when they get the header info from, e.g., the phone company (in my example, the NSA asks the phone company in July for the call history of the Manhattan phone - this info lets them find the "non-existent" Manhattan-Washington recording, which has been hiding on the NSA servers.

Or let the Brits hold it - hah!

Pretty thin. But that said, I like my idea so much I sort of hope they *are* doing it. It is sort of like a time machine - why only listen to all calls *after* you take an interest in a particular number?

Bonus question - Bush talked about signing a 45 day finding to authorize this (we have had about 30 findings as part of the ongoing emergency).

Does anyone know what is up with that, and whether this gives him special short term powers? (And evidently, the long term is a series of short terms, as Keynes might have said).

As to why Congress did not push to regularize this? Troubling.

Why did Bush not push? Well, if his lawyers were arguing they were currently legal, how hard should they push to get more legal? And how much disclosure is risked?

I don't love that answer, BTW, but it looks as if I am stuck with it.