Slugging It Out On The NSA

Here we go on the "Bush Spied, Then Bush Lied" story:

On the media-bashing front, Gabriel Sherman of the NY Observer has the backstory on how the Times came to publish their scoop when they did.  Yes, it was originally slated to be a pre-election October Surprise, although Dick Morris implies that it might have been Kerry and the Times that were surprised.

E&P has more on Times editor Bill Keller's explanation for their publication decision.  E&P also goes behind the scenes at the Times, getting this from a harried staffer:

"It's one more thing. When are we going to get out from under this or is this a permanent state now?"

Answer - it's one more thing!  And when Nick Kristof finally admits that he has been sitting on an early Woodward style leak about Valerie Plame, well, that will be one more thing, too.

On the legal front, Richard Posner defends Bush in the WaPo; John Schmidt, an associate attorney general under Bill Clinton, defends Bush's expression of Presidential prerogatives in the Chicago Tribune.

The argument offered by Mr. Schmidt is similar to that put up by AG Gonzalez in a press briefing on Dec 19:

Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. We view these authorities as authorities to confront the enemy in which the United States is at war with -- and that is al Qaeda and those who are supporting or affiliated with al Qaeda.

...we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress.  And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.

I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity.  Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, obviously, during the world wars, as we intercepted telegrams in and out of the United States.  Signals intelligence is very important for the United States government to know what the enemy is doing, to know what the enemy is about to do. It is a fundamental incident of war, as Justice O'Connor talked about in the Hamdi decision.  We believe that -- and those two authorities exist to allow, permit the United States government to engage in this kind of surveillance.

Now, let's award "Cryptic Comment du Jour" to this:

Q    If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES:  That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program.  And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Emphasis added.  That seems as if it ought to be a clue,but I have no idea what if means.

Now, for a flavor of the legal subtleties, let's excerpt the part of the FISA statute that defines "electronic surveillance".  It is pretty obvious that all sorts of technical issues may prevent the law from applying:

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

Points (2) and (4) would exempt intelligence collected overseas.  Point (3) is the requirement that at least of of the parties be a non-US citizen.  The Administration claims it tries to observe this requirement, although the Times notes rare glitches.

Point (1) may be a puzzle.  I would think that if the NSA is specifically targeting a presumed AL Qaeda operative in, for example, Germany, then intercepted calls to the US would be incidental and would not be considered to represent "targeting" of the US citizen.

However, once a contact in the US starts making calls back overseas, are we "targeting" his calls by tracking them? 

On the political side, the Washington Times highlights the spanking administered to Sen. Rockefeller of the Intelligence Committee buy the Chairman, Sen. Roberts.:

Sen. Pat Roberts, Kansas Republican and chairman of the normally apolitical committee, said he was "puzzled" by a letter that Mr. Rockefeller, West Virginia Democrat and vice chairman of the committee, said he sent to Vice President Dick Cheney in 2003 after one such briefing.

"In his letter ... Senator Rockefeller asserts that he had lingering concerns about the program designed to protect the American people from another attack, but was prohibited from doing anything about it," Mr. Roberts said in a statement yesterday. "A United States Senator has significant tools with which to wield power and influence over the executive branch. Feigning helplessness is not one of those tools."

Douglas Jehl of the Times provides a roster of lawmakers who have been briefed on this program:

All told, no more than 14 members of Congress have been briefed about the program since it took effect in 2001, the Congressional officials said.

...Senator Harry Reid, Democrat of Nevada, said this week that he had received only a "single, very short briefing" on the subject this year, after taking over as his party's leader.

...

"When I was briefed on it, you couldn't help but conclude that it would have an impact on Americans," said Representative Peter Hoekstra, Republican of Michigan, the chairman of the House Intelligence Committee.

Mr. Hoekstra said that he was first summoned to one of the sessions in August 2004, after taking over as panel chairman, and that he had attended two others since, with the other leaders of the House and Senate Intelligence Committees.

But Bob Graham, a former Democratic senator from Florida who was chairman of the Intelligence Committee, said his recollection from an initial briefing in late 2001 or early 2002 was that there had been no specific discussion that the program would involve eavesdropping on American citizens.

...Among Democrats, both Senator John D. Rockefeller IV of West Virginia, the senior Democrat on the Senate Intelligence Committee, and Representative Nancy Pelosi of California, the House Democratic leader, have said in recent days that they raised objections to the program in classified letters after first hearing about it.

...

But neither lawmaker sought to block the program legislatively, an option that Republicans who have sought to rebut the Democrats' complaints have said might well have been pursued.

"A United States senator has significant tools with which to wield power and influence over the executive branch," Senator Pat Roberts, the Kansas Republican who heads the Senate Intelligence Committee, said on Tuesday. "Feigning helplessness is not one of those tools."

...

Among other Democrats said by Congressional officials to have received at least one briefing  were Tom Daschle of South Dakota, the former Senate Democratic leader; Richard A. Gephardt of Missouri, the former House Democratic leader; and Representative Jane Harman of California, the senior Democrat on the House Intelligence Committee.

Among Republicans, the group included Senator Bill Frist, the Republican leader; Senator Trent Lott of Mississippi, the former Republican leader; Senator Richard C. Shelby of Alabama, the former chairman of the Senate Intelligence Committee; and Porter J. Goss, the current director of the Central Intelligence Agency and a former chairman of the House Intelligence Committee.

OK, I keep counting 13:

Senator Harry Reid D
Bob Graham, a former D
Senator John D. Rockefeller IV
Representative Nancy Pelosi
Tom Daschle
Richard A. Gephardt
Representative Jane Harman

Representative Peter Hoekstra, R
Senator Pat Roberts, R
Senator Bill Frist
Senator Trent Lott
Senator Richard C. Shelby
Porter J. Goss

Oh, we are missing a House Majority leader...

STILL GOING: Mickey Kaus is cogent and concise on the legal issues.  And he links to a Times editorial which is the opposite.  Here is the Times with a classic example of applying a law-enforcement model in wartime:

In a democracy ruled by laws, investigators identify suspects and prosecutors obtain warrants for searches by showing reasonable cause to a judge, who decides if legal tests were met.

Colleen Rowley, are you getting this?  Patiently follow procedures and the law, and if the buildings come down, well, at least our civil liberties remained standing.

As an aside, to which democracies does the Times refer?  I am not familiar with legal procedures through all the world's democracies, but I bet there are some that would not meet the Times standard.

Here is the ARS Technica guess at the sort of technology we might be talking about.

Comments

[J. Rockheadfella]

And Jamie Gorelick (of the Gorelick wall fiasco that helped the terrorist 8/11 planning) was for presidential powers in regards to warrantless searches (Clinton)...before she was against it (Bush):

"THAT WAS THEN, THIS IS NOW [Cliff May]
“The issue here is this: If you’re John McCain and you just got Congress to agree to limits on interrogation techniques, why would you think that limits anything if the executive branch can ignore can ignore it by asserting its inherent authority?”- Jamie Gorelick, former deputy attorney general under President Clinton, in today’s [12/20/05] Washington Post, p. A10.

"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General. "It is important to understand, that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities." - Jamie Gorelick testifying before the Senate Intelligence Committee on July 14, 1994, as quoted by Byron today elsewhere on NRO.

Gorelick is making a simple point: The rules are different when there is a Democrat in the White House. What about that don’t you understand? "

http://corner.nationalreview.com/05_12_18_corner-archive.asp#085176

[Davis]

Conservatives should think twice when arguing that the President should have special powers outside the Constitution during wartime. What would stop a future President (maybe a Democrat) from ignoring the 2nd Amendment? Or putting surveillance on groups opposing abortion or same-sex marriage, or supporting the right to display the Ten Commandments in public places? Once the door is open .....

[BurkettHead]

The power to conduct a search without a warrant is not outside the Bill of Rights, it's in the Constitution & the Bill of Rights.

The 4th Amendment prohibits unreasonable search & seizure - it does not prohibit a search without a warrant, though there is a preference for a warrant, Katz v. US, 389 US 347 (1967). The "preference" for a warrant is already so riddled with exceptions that, outside a search of the home, the question might well be whether the search is "reasonable," not whether there is a warrant, Kyllo v. US, 533 US 27 (2001).

[Specter]

Davis,

Note that the Clinton and Carter administrations argued for warrantless searches too....It's been around for a long time.

[kim]

The Democrats are suffering from the same amnesia they've always ascribed to hoi polloi. They used to be right, but the memory hole belongs to hoi polloi, now.
=======================

[Davis]

"Those who would give up essential liberty for temporary safety deserve neither liberty nor safety." - Benjamin Franklin

[SaveFarris]

"The Constitution is not a suicide pact." - Abraham Lincoln

[BlaBlaBla]

I can't help but believe that all of the leagal rambling over FISA regualtions is moot. Does FISA clearly outline how to detect and monitor two terrorisr suspects, say one in Pakistan and one in Iran, communicating via the comments section of a website based in Cleveland? Not to mention the technology that would be able to detect and monitor such activity (if it exists), for example searching the backbone of the internet for keywords and IP addresses and trying to match them with know data collected from the battlefield. The democrat/MSM is trying to push the idea that NSA has gone around the FISA court to perform traditional analog wiretaps jusr for the fun of it. I believe there is something going on here at the intersection of new technology and surveilance that clearly falls into a legal grey area (not necessarily illegal, but undefined). The process needed to go about obtianing absolute legal clarity perhaps would compromise the technology being implemented (perhaps it's owned by the private sector?)or would give clues to the individuals/data packets being detected and monitored as to cause them to change behavior. Maybe I'm totally off and just babbling after a few single malts.

Politically speaking, this is a no brianer for Bush. If the democrat/MSM on a moonbat crusade push so far as to compromise a sophisticated terrorist nabbing program, it would ensure a Republican majority in the White House and both Houses for years to come.

[kim]

I'd say that was a pretty good solution you found there in your glass.
============================================

[J. Rockheadfella]

"One fish, two fish, red fish, blue fish"
- Dr. Seuss.

[Davis]

President Bush is absolutely committed to our security, and deserves credit for this from all Americans. But it is difficult to agree with him that disclosure of the new NSA eavesdropping program will help the terrorists. A special court has been known to be approving domestic eavesdropping since FISA was passed in '78. Terrorists have never known whether or not they've been the targets of court-approved eavedropping. The fact that there has been some eavesdropping that was not court-approved would make no difference to a terrorist.

The only fallout from the news of this program is political; from Democrats who oppose anything related to President Bush, but also from a substantial number of Conservatives and Libertarians. The latter is the group that the President must reach out to.

[Geek, Esq.]

Zzzzzzzzz. Boring story complete with hysterical rhetoric on both sides.

Wake me up when Jack Abramoff's plea deal is announced.

[Syl]

Davis

That revealing the existence of this program helps terrorists is only misdirection. It helps China.

[SteveMG]

Zzzzzzzzz. Boring story complete with hysterical rhetoric on both sides.

That's shorthand from Geek meaning "Damned, court rulings and the law do show that Bush has the power, so we can't get the bastard on this one."

Wake me up when Jack Abramoff's plea deal is announced.

Shorthand from Geek meaning, "Please, please, please, let us get them with this one."

I do like that "both sides" bit though. Nice little Dick Morris triangulation move, Geek.

SMG

[Gary Maxwell]

Steve

Reading between the lines again?

[Davis]

Syl, Sorry, but I don't get the China connection. Could you briefly elaborate? Thanks.

[Bill Arnold]

This story is forcing me to read Bamford's 2001/2002 "Body of Secrets" (a recent big, small print book on the NSA) So far (10 percent in) it's excellent. Body of Secrets

I disagree with Geek, this is a fascinating story, but primarily because of the bizarre legal reasoning by (and actions of) the GWBush administration and because of the bleeding-edge technological aspects of it. Very high performance systems technology in the very large is hard, and the continuous technology shifts mean that many of the technological possibilities are in legal grey areas.

[r flanagan]

Last week's conspiracy theory about the
Times , Rand Beers et al orchestrating release of the NSA story to help Kerry seems to have expired . R.I.P.

It's almost enough to make you believe that when the Times said it delayed publication at the request of the government what really happened was that the Times delayed publication at the request of the government.

[Cecil Turner]

The fact that there has been some eavesdropping that was not court-approved would make no difference to a terrorist.

Oh nonsense. Why do you think we have "OpSec" posters in military units' working spaces? It's to remind personnel to use appropriate communications security. How much more effective do you think that'd be to read in the enemy's newspaper? Even the densest terrorist would be more careful with his telephone procedures after this story.

Further, even if there isn't a qualitative difference, there is a substantial quantitative one. Instead of using secret wiretaps, requested through the AG and approved through a court, the NSA is apparently approving them at the shift supervisor level. What does that tell you about scale? Again, this provides significant incentive for terrorists to use non-electronic means of communication, or to tighten up on OpSec. And whoever leaked it ought to go to prison.

[danking]

Thanks for the translation SMG.

[Syl]

How does the man who drives the snowplow get to the snowplow?

Snowplow driver==warrants and judicial process

This NSA program is the little VW the driver uses to reach the snowplow.

There is a starting point where we have zero information. Zero. Nada.

280 million people on US soil and some of them are terrorists. How do we discover them?

Wait for informants?
Wait for attacks?
Wait for a known terrorist to rat out another?

How can a warrant be issued if we don't know who to issue it for? FISA depends on our suspicion that a specific person is a terrorist or has terrorist connections.

A wiretap depends on that specificity as well.

That's why labeling this NSA program as wiretapping/tracking Americans is incorrect.

AFAIK, a call to or from a specific number, abroad, known to be used by terrorists, triggers capture of some portion of the conversation. The specific identities of people involved are not actually known.

Analysis results leads to identification of specific persons. At THAT point it seems to me that surveillance duties would be turned over to a different agency, the FBI, to go through the warrant process for further surveillance.

Which is what seems to have happened in the case of the guy who was plotting to bring down NY bridges in 2002.

When analysis turns up nothing suspicious, the specific identity of the individual on US soil may not even be sought. In which case how could a warrant be issued even after the fact?

To me, this just boils down to a 'privacy' issue. And if individuals aren't necessarily even identified how can it be even that?

Especially when this is conducted by machines, not humans.

[Tulsan]

Cecil Turner - Are you saying that before last Friday the terrorists didn't know their communications could be intercepted, but now they do? What a crock. You can't possibly expect anyone to take you seriously.

[SteveMG]

Bill:
bizarre legal reasoning by (and actions of) the GWBush administration

What bizarre legal reasoning?

The claim of inherent powers by presidents has a rather substantial pedigree or lineage. It's not something that sprung full blown from Bush's forehead.

As to Bamford. Okay, be sure to check out those sources he gives (and good luck with that exercise).

SMG

[Syl]

Davis

There's obviously a lot you don't get.

[boris]

You can't possibly expect anyone to take you seriously.

Let me guess ... zero military experience ... right ?

[Cecil Turner]

Are you saying that before last Friday the terrorists didn't know their communications could be intercepted, but now they do?

Before last Friday terrorists could expect perhaps 1% of their communications would be intercepted. Now they know that's more like 10% (numbers are obviously WAGs). If you don't think that makes a difference as to how they conduct operations, you are an idiot. (And let me second Boris's guess as to your practical experience level.)

[topsecretk9]

I am on the edge of my seat waiting for Cecil to respond to Tulsan's comment.

[topsecretk9]

OP there it is.

[Davis]

Only 4 years military experience. Was frequently reminded by a succession of officers to expect attempts to be made to intercept any communications. And I expect that the terrorists are similarly trained.

[Cecil Turner]

Are you and Tulsan the same guy, or are these two separate conversations?

[boris]

So giving the enemy information because you expect they already know it is how you were trained. I'm aghast!

I guess you wouldn't want to survive if they just slipped up. Keep it cricket old chap !!!

LOL

[Tulsan]

You are right - I have no military experience. As a civilian I have been aware of NSA intercepts for years. But I yield to your opinion that the bad guys weren't aware that they could be watched.

[boris]

I would rather encourage them to make stupid mistakes instead of helping to keep them on their toes.

I guess you don't want unfair advantage by exploiting their misunderestimation.

[clarice]

It's not that we believe that before this leak they didn't know they could be watched; it's that they may not have understood our methods and capabilities to do so.

[Bill Arnold]

Cecil, if they make changes to their communications methods that make the communications significantly less efficient, then their operations are degraded. One can hope...

SteveMG, re Bamford, thanks for the buyer-beware warning. I saw a similar warning in the amazon reviews. However, Bamford's works are a public service IMO.

[Syl]

It's ridiculous to think that this doesn't harm national security.

just because the terrorists think their communications CAN be monitored doesn't mean they think they ARE all the time.

Now they know that EVERY call into the US is monitored--no exceptions.

That's serious.

They'll stop calling. We'll lose an effective means of discovering what they are up to.

The cells within the US will then start acting autonomously. And THAT will be seriously harder to monitor. The result of which WILL be more monitoring of Americans on our soil.

Bringing this out into the open will have unintended consequences that NONE of us want.

[boris]

then their operations are degraded

I prefer their operations get blown, in every sense of the word.

[boris]

Bringing this out into the open will have unintended consequences that NONE of us want.

One would cdertainly hope so. I have my doubts about some factions of the loyal(?) opposition.

[danking]

Clarice I would only add

"highly sophisticated and technologically advanced to "methods and capabilities".

I guess any spy now is laying low waiting for the NY Times to give them more information on what's looking for them.

[Davis]

Clarice, how does the NYT article change the terrorists' understanding of our methods and capabilities? This seems to be a case of "court-approved" or "not court-approved", not technical capabilities.

[boris]

This seems to be a case of "court-approved" or "not court-approved"

The new technology at the root of the NSA wiretap scandal

[Syl]

Davis

Are you THICK? They now know that ANY call made into the US is monitored.

[Syl]

boris

I read that arstechnica piece last night. He's making some assumptions, then the commenters (BDS sufferers most) are basing their criticisms of the administration on those assumptions.

I think ars is missing something. Like the ability to detect networks. Commenters are missing that too. They mostly think we're not learning anything anyway so what's the point.

I was going to post something. Well I actually did--just at the moment my internet connection died. Co-incidence? yes.

[Cecil Turner]

Cecil, if they make changes to their communications methods that make the communications significantly less efficient, then their operations are degraded. One can hope...

Sure they are; it's all a tradeoff.

Silly analogy for those who like that sort of thing: imagine a wartime convoy system that delivers 99% of its materiel (1% sunk by enemy submarines). Does it make sense to implement a zigzagging system that results in 2% less materiel delivery (due to collisions, fuel usage, etc.)? Now imagine enemy subs suddenly get better torpedoes and sink 10% of your materiel enroute. Would you implement the zig zag system? (And possibly spend time and effort looking for another one?) I think the answers are obvious.

[Davis]

Syl, since when is ANY call made into the U.S. monitored? That was not mentioned in the NYT article. If true, this eavedropping program must be a lot more widespread than previously revealed.

[Syl]

ANY call they make.

[boris]

Syl, if during war some new surveilance technology is developed should it be exposed by amending FISA to account for it or be used for the duration to protect America if there is any plausible interpretation that allows it?

Hello ???

[Gary Maxwell]

Davis:

I believe I have spotted the problem. You read the NYT (and only the NYT ) and believed they were telling you the truth. Powerline has a multiple e-mail exchange with one of the reporters from the NYT article and one of the Powerline attorneys. Might open your eyes a bit, if not you only wasted less time than it takes to post here.

[Bill Arnold]

Cecil,
Sure they are; it's all a tradeoff.
I'm simply suggesting that our opponents in the WoT/SAEV are ... limited ... in their ability to do these sorts of tradeoff computations. We know what happens when a competent government communications intelligence agency realizes its communications are being read. Terrorist organizations we can hope don't have the same level of competence in their reactions. They are not fully rational players, not even close.

[clarice]

Nits and stupid aren't the same thing. They do have access to western technology and haave some very skillful kooks working with them--not to mention the likely assistance of some state intel experts.

[Cecil Turner]

I'm simply suggesting that our opponents in the WoT/SAEV are ... limited ... in their ability to do these sorts of tradeoff computations.

In the first place, I think you underestimate their sophistication (at least amongst their few comm/computer experts). In the second, taking precautions ain't rocket science . . . there are very simple measures that vastly complicate interception. We also keep teaching them this lesson (e.g., divulging the fact we'd been intercepting Osama prior to 9/11). Sooner or later they're going to buy a clue.

if during war some new surveilance technology is developed should it be exposed by amending FISA to account for it or be used for the duration [?]

Yep, that's the issue. Those interested should probably review cryptoanalysis in wartime, especially Enigma and Magic. (And less well-known examples like the interception of Japanese codes before the Washington Naval Treaty conference.) All yielded decisive operational advantages (e.g., Battle for the Atlantic and Midway), and the extent to which we'd successfully penetrated their communications was a jealously guarded secret. (Enough, for example, that the bombing of Coventry was preferable to defending it and risking the Germans' twigging to the fact that Enigma was compromised.) I doubt the current leak is comparable, but it certainly doesn't belong in the Times.

[clarice]

Urgh--nUts,not nits..

Cecil's right..they have lots of technically proficient people..And are getting more from the UK and elsewhere.

[Bill Arnold]

clarice,
Cecil's right..they have lots of technically proficient people..And are getting more from the UK and elsewhere.
Fair enough. All I'm saying is that that the odds are good that our NSA will continue to have plenty of material to work with.

[Cecil Turner]

Another point probably worth making. In any large/military organization, the geeks figure out the comm procedures, but then they're implemented by operators. And while your smartest nerds might dictate the procedures, most of the intercepts are of your sloppiest, laziest, and dumbest communicators. How effective the comm procedures are is determined by many factors, including how easy they are to understand and implement, training, and how much command emphasis there is on them. And even the best organizations tend to get lackadaisical in the absence of feedback. The captured [alleged] Al Qaeda training manual had sections on communications and codes, and though it's clearly dated, it's just as obvious they spent some time and effort on it. We ought not to be helping.

[Syl]

boris

if during war some new surveilance technology is developed should it be exposed by amending FISA to account for it or be used for the duration [?]

What CT said. Plus from what we know of this new technology it would take a paradigm shift in FISA to be able to handle it, I think.

And while it's being hashed out there will be tons and tons of leaks.

Far better for the President to use his authority. Especially since then the expectation of creating/changing law to cover any new technology before it can be used would limit presidential powers.

[Syl]

Bill

All I'm saying is that that the odds are good that our NSA will continue to have plenty of material to work with.

Well, the odds would be far better if this hadn't been leaked at all.

If it does too much damage and dries up too much, think back to unintended consequences and the higher necessity to actually do this surveillance on American-to-American communications.

The NSA, by law cannot do that. I wonder if the FBI is allowed to outsource. ;)

[JM Hanes]

"In a democracy ruled by laws, investigators identify suspects and prosecutors obtain warrants for searches by showing reasonable cause to a judge, who decides if legal tests were met."

Fine and dandy process when you're investigating a crime which has already been committed.

The other half of the big picture equation we're dealing with here is a legal framework and a law enforcement system which was designed to solve & punish crimes, not prevent them. The fundamental differences between those objectives, and the (sometimes mutally exclusive) processes required to achieve them has yet to be clearly confronted in the public discourse.

[Clash]

No, the terrorists haven't just learned that ALL their communications (assuming our gov't KNOWS where these people are yet allows them to remain free, which is in itself shocking) can be intercepted...They've just learned it can be done without warrants, which I'm sure they don't give a damn about. Their conversations into the US could ALWAYS be monitored. It just had to be done lawfully.

I am loving this new terrified baby version of the Republican party. Goes like this - the terrorists are going to kill us ALL!!!!!!!!! Let the President make all the laws from now on!

Who woulda thunk it? The big bad party of the NRA and gay bashers are really just a bunch of king size namby pambies who could care less about the foundations of their country. All they want is to be protected by their all knowing daddy from a threat that that same daddy will be sure they are never allowed to stop being terrified of. This is the way of fascism, folks, and it doesn't surprise me that it's the rightwing radicals in power that are driving us there. But it should you, unless your lack of self awareness matches your degree of abject cowardice.

[kim]

Did you read Godwin's Law and kim's corollary? I'm thankful you are powerless over me.
==============================================

[Extraneus]

Most of the comments coming from the left seem to reinforce the fact that the basic disagreement, the real debate, is over whether or not we're actually at war. If you think yes, then this leak, and the knowledge it provides the enemy, leads logically to the presumption that those responsible should be prosecuted and punished. If you don't, then it's all just politics.

[kim]

Yes that and the notion, gradually dawning on them, that this is a war forever, and they want to deny that but also must sustain it to make valid their objections to this 'extraordinary' surveillance.

It just helps illustrate the unseriousness with which they approach this whole conflict. I can't imagine why they think this is a proper or prudent course. The next big terrorist strike could wipe out the Democratic Party as collateral damage.
=====================================
======================================

[kim]

In fact, if I were Rove, I'd plan one for pre-election.

Just stirrin' up them bats a little. It's a sight to see all of 'em comin' outa the chimney at oncet.
================================================

[Clash]

Kim has just acknowledged this is a "war forever", a concept inconceivable to the framers of the Constitution, and has given her approval then to an infinite extension of executive power. Will this country still be called the United States of America, or should we rename it, as its essential nature has been completely changed?

The main conservative argument seems to be : Let's muddy the waters as much as possible, remind people they are supposed to be VERY VERY FRIGHTENED at all times and only Daddy George can save them, and rely on the institutional ignorance of the American people about their own system of government. Repeat endlessly that Dissent = Treason and blather about how Democrats, for some inexplicable reason, want to see all of you killed in your beds by those terrorists that are EVERYWHERE. Then smirk about those stupid, trivial "civil liberties" that are a luxury we don't need to bother with now that we're in this cool endless war.

It is an inescapable conclusion that the psychological types drawn to the modern Republican party are the same types that cheered for Joe Stalin and Saddam Hussein. By accident of birth they were born in this country, but they share the same strongman-worshipping lust of servile types of people throughout human history.

[kim]

Your mother hosts Kofi Klatches.
================================

[Dwilkers]

Clash...are you a parody poster, here to make lefties look unusually ridiculous?

If so, can it. They're doing fine without your help = and frankly your rhetoric is too over the top to be credible even coming from a middle school moonbat wanna-be.

[kim]

So if it is not a 'war forever', then these powers are temporary. Now do you still object to them?
===============================================

[Specter]

The deal is this. The US is monitoring communications based on numbers gathered through other intelligence operations. Example: we catch an Al Quaeda leader in Afghanistan and his computer has a lot of numbers in it - and he happens to have a cell phone on him that he has actively been using.

Learning from the NYT piece, if I was that guy over in Afghanistan that has not been caught, I would be switching phones on a daily, or maybe even hourly basis - using the nice new pre-paid minutes phones. Before the NYT leak of the program, I might have used the phone for quite a while.

[r flanagan]

Yes the leak has serious consequences which could have been avoided if:

1. the Times had agreed not to publish , or

2. Bush had complied with FISA including itS 72 hour rule .

[kim]

One of those two looks a lot easeir to do. Furthermore, the consequence of failing to publish is less dire than the consequence of complying with your desires about oversight.
===================================

[Specter]

RF,

You really should try reading the applicable law and case law decisions. As far back as Carter (as that is as far as I've gone in my research) Presidents have used warrantless searches in intelligence cases. The Supreme Court, four appellate courts, and even the FISCR (FISA's Court), agree with the President having power to do this.

[maryrose]

I think the most disturbing part of the posts cited by TM is that President Bush personally and recently asked the NYT not to run this story and that they IGNORED that request and went on to publish the story. Their own bash President Bush at all costs agenda is showing.

[Specter]

You should check out the e-mail trail between John Hinderaker of PowerLine and Eric Lichtblau from the NYT. A Colloquy With The Times. It is a very interesting exchange where Lichtblau never denies Mr. Hinderaker's assertions that Bush didn't do anything illegal. Instead Lichtblau keeps trying to point to a sentence or two in the original article that indicate that Bush did not do anything illegal. Pretty funny exchange.

[Rose Mary]

I agree with Maryrose that it is disgusting the way the press in this country prints things the government doesnt want them to print. I think the press should do what the president tells them to do, so we can be safe from all the evil in the world that he protects us from.

I also cant understand all this fuss about the Patriot Act. Since the president can just make all decisions with his war powers and do anything he decides is needed to keep us all safe from the islamofascists, why do we even need to deal with those liberal traitors in congress?

[Sue]

If what we suspect is happening, a way to pick up catch phrases, words, voice recognition, how in the world would you obtain a warrant on every phone call that was checked that alerted the system? You would overload the FISA court with useless warrants for a phone call that was discussing the latest headlines. If I understand what is happening, when a 'hit' turns out to be a 'hit', and the caller(s) need monitoring, a warrant is obtained. Are you saying that every time the system alerts, they need to go to FISA and obtain a warrant, within the 72 hours, even if they never listen in on that call again? It would crash the court system.

[Cecil Turner]

[serious consequences would've been avoided if] Bush had complied with FISA including itS 72 hour rule . . .

Although I've seen that argument more than a couple times, I don't think it's realistic. First check the basic requirement for a determination (by the AG only):

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that -

1. an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
2. the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

Next, check the list of required determinations and findings under section 1805. Now multiply that by 500, and tell me it's feasible for the AG to keep up with his paperwork requirement (I'd submit it obviously isn't . . . and in fact the intent of the law was to make it difficult for precisely that purpose). Also, how many times a day can you claim an "emergency situation exists"?

Further, the "probable cause" determination required for intercepts of US persons appears problematic, specifically the requirement to show (a.3.(a)):

• (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power

From reports, it appears to me that we're intercepting (at least in part) everyone who speaks to a particular suspicious overseas phone number; obviously any prior determination of who's on the domestic end would be impossible. In short, the argument for complying with FISA whilst intercepting calls to/from overseas locations is effectively an argument for not doing the intercepts.

[kim]

Rose Marie, who's home again, Rose?
=====================================

[BurkettHead]

I suspect that it's more difficult to obtain a warrant in the early stages than merely submitting 500 names or numbers. I get the impression that there might be some algoritmic searching & filtering so that they wouldn't even know what names & numbers to submit in the warrant, though they might know what number (or numbers - or voices) they're starting from. It does sound as though the initial filtering stages of this process just don't fit into the current warrant process. Unless you get something that amounts to a blanket warrant - if that even makes sense (I don't practice in this area, so I have no idea if such a warrant even exists).

Do you get a warrant for each algorithm? Each time you tweak the algorithm?
All electronic transmissions entering the US?
How can you get a warrant when you don't know who you're monitoring or what it is you're looking for?

So many fascinating legal questions here.

[BurkettHead]

Is using a cell phone or sending e-mail something like operating a motor vehicle? Do you "consent" to electronic, algorithmic (i.e., not done by a human) merely by using electronic communications, the way that you consent to trafic & other laws by operating a motor vehicle on public roads?

[Gary Maxwell]

Folks just a morning reminder.

JayDee = Katrina = Bob Loblaw = Clash

Now the latest entry in this whole derby of "beards" is Rose Mary.

You can add Rose Mary to the list of beards above.

Ignor is the best option here.

[Anonymous Liberal]

I apologize if someone has already said this, but I don't have time at the moment to read through the whole comment thread.

Tom, I agree with you that the quote from Gonzalez may be the key to what is really going on here. I think it's pretty clear that whatever this program is, it violates FISA. The Bush administration isn't even arguing that it doesn't. So the real question is why didn't they go to Congress and get FISA amended. My hunch is that they wanted to, but they became convinced that there was no way of securing Congressional authorization without compromising the program, perhaps fatally. Congress can hold secret sessions, but I don't think they can pass secret laws. If they amended FISA, it might have telegraphed to anyone who was paying attention how the program worked (and thereby compromised the program). And even if Congress could amend FISA secretly or amend it in a vague enough way not to compromise the program, every Senator and every Congressman would have to have been fully briefed on the program in order to vote. There's no way you can tell something to 100 Senators and 500 congressman and not have it leak instantly. So the White House may have been faced with a Catch-22. They knew they needed to seek Congressional authorization for the plan, but they knew that doing so might render the program ineffective. So they decided to just implement the program via Executive order and cross their fingers that a constitutional crisis didn't ensue.

Assuming this is the case (and that's a BIG assumption), I'm not sure that I agree with their decision. But I concede that it would be a difficult decision, one about which reasonable people could disagree. Anyway, I lay out this theory in more detail at my blog. Just click on my name if you're interested.

[JM Hanes]

TM

"As an aside, to which democracies does the Times refer? I am not familiar with legal procedures through all the world's democracies, but I bet there are some that would not meet the Times standard."

I believe you would find that the U.S. is the exception in this regard. Indeed, where the rights & treatment of suspects is concerned, we could have probably have avoided the whole brouhaha over renditions and achieved the same ends by just packing them off to France instead of Eastern Europe.

[clarice]

Why is it that the same folks who don't mind random drug searches or random car stops to check for alcohol impaired drivers or AOL or Amazon data mining, find this methos of dealing with a successful new technological way to track terrorists,a major Constitutional problem?

Pretend these guys are emailing while stoned and get over it.

In any event, this new mediagenic scandal is unraveling like a cheap sweater:

[noah]

Merry (fill in blank) and a Happy New Year!

[TexasToast]

Patiently follow procedures and the law, and if the buildings come down, well, at least our civil liberties remained standing.

Now this is putting it succinctly. Funny, I always thought civil liberties were a higher value than buildings. You sound like a soviet beureaucrat.

BTW, if emergency wartime powers allow unrestricted wiretaps, why do we even need a FISA court (particularly in light of the neverending "War on Terror")?

[Bill Arnold]

[speaking as a left-libertarian]
Digby recently expressed pretty well what's really angering me about the "conservative" reaction to this (warrantless wiretapping) story. It's that U.S. citizens appear to be eager to cede unlimited wartime powers to a president, leaving what to do with those powers up to her discretion - for what is clearly not an existential threat to the US. The cold war and the accompanying Russian missile arsenal that was (and still is) pointed at us was (and still is) a threat to the existence of the US. Nazi Germany was an existential threat, or would have been if we had left them alone and they developed nuclear weapons. Al Qaeda is not such a threat. It's not even much of a threat to our safety, so long as we keep nuclear weapons (and Cecil might argue biologicals) out of their hands, relative to mundane threats to our safety like flu, drunk drivers, gun violence (not to mention medical threats like heart disease, cancer - remember the "war on cancer"?).

Sorry if this seems callous. The gap in the NYC skyline still causes deep anger (at the perpetrators, their organization, and related organizations) every time I see it.

[clarice]

GM, Perhaps we ought to ask Thom to post at the head of every page, "The posters at this site can recognize sock puppets when they see them. They do not respond to them. Therefore, when you rush back to your home base at Planet Moonbat, do not imply that by silence we have tacitly agreed with your ravings. We have a rule:Do not feed the animals in the zoo."

[Sue]

TT,

Do you really hear what you say? Buildings? What was inside those buildings?

I will be axious to hear from you guys if we are hit again. I'm sure, like last time, you will be saying there is only so much the President can legally do to keep us safe from terrorists. Right? There will be no hue and cry for another 9/11-type commission to determine who in the government was guilty of not doing their job. Right?

Wrong.

[boris]

cede unlimited wartime powers to a president

What is this ??? ... the energizer strawbunny ??? How many frakkin times does it have to be said ...

Intercepting enemy communications is not unlimited wartime powers.

[Sue]

Bill Arnold,

I remember the war on drugs. You would be amazed at the number of people who are sitting in our federal prisons for conspiracy charges. Can't get them on the drug charge? No problemo. Slap a conspiracy on them and lock 'em up.

Do you have a point? Besides being freaked over a republican president?

[Anonymous Liberal]

"Intercepting enemy communications is not unlimited wartime powers."

I think you missed Bill's point, Boris. The problem here is that the argument being invoked by the White House to justify ignoring FISA has no logical limit. They're basically saying that the President has the inherent authority to ignore Congressional mandates and bypass the Courts during times of war. If that's true, there are no checks on presidential power; it is, for all intents and purposes "unlimited." This is especially troublesome considering the war we're engaged is not likely to end for decades, if at all. I guess the question is this: if you think the Presdident's powers are limited, even in war time, then what are those limits? And who enforces them?

[Tom Maguire]

Clash...are you a parody poster, here to make lefties look unusually ridiculous?

Clash is sharing an IP address with Jaydee - the tiresome psychoanalysis of the entire conservative movement in each and every post is a pretty good giveaway.

And yes, JayDee, posting as Bob Loblaw, did say he was fed up and leaving in disgust, but evidently that was only good for one day.

Bonus - Mary Rose, an obvious spoof, also shares an IP with Bob, JayDee, and Katrina - quite a roommate scenario.

Or maybe they are a study group at the library.

[Sue]

Good grief. Does this mean Jay Dee is in an identity crisis? ::grin::

[windansea]

Now this is putting it succinctly. Funny, I always thought civil liberties were a higher value than buildings. You sound like a soviet beureaucrat.

and you Texas Toast sound like an asshole who could care less about the 3000 souls lost when those two "buildings" came down

BTW, if emergency wartime powers allow unrestricted wiretaps, why do we even need a FISA court (particularly in light of the neverending "War on Terror")?

TT...please explain where we have allowed "unrestricted wiretaps"

[Cecil Turner]

So the real question is why didn't they go to Congress and get FISA amended.

Let's see . . . we want to do secret intercepts of enemy communications without them knowing about it. A little congressional debate is just the thing, eh? As Boris points out above, there's a reasonable alternative. (BTW, that's apparently what Gonzalez is getting at above. If so, it's not very cryptic.)

BTW, if emergency wartime powers allow unrestricted wiretaps, why do we even need a FISA court (particularly in light of the neverending "War on Terror")?

Does FISA not apply in peacetime? (hint: yes, it does) Would FISA allow a warrant to tap purely domestic communications with probable cause? (again, yes) And with passage of the AUMF, the scare quotes need to come off the "War on Terror." It is, in a very real and legal sense, war. BTW, I see Mickey Kaus and the WaPo both beat me to the probable cause problem:

The difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a "U.S. person" -- a U.S. citizen or a legal alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence that someone is a problem before they seek a warrant.

It's that U.S. citizens appear to be eager to cede unlimited wartime powers to a president . . .

What annoys me is that liberals appear eager to deny standard wartime powers to the President, even when they're clearly needed. Can you imagine this nonsense over international phone calls during WWII? Further, it's obvious this is not an abuse FISA was designed to prevent. (What, is the government intercepting Dems' calls to their overseas affiliates? Or listening in to union bosses calling the world HQ of the International Brotherhood of Teamsters? Nonsense.)

[boris]

They're basically saying that the President has the inherent authority to ignore Congressional mandates and bypass the Courts during times of war

Define "basically" ...

Claiming that intercepting enemy communications is a fundamental incident of fighting war authorized by congress, and therefore overrides FISA where necessary, is not the SAME as saying ANYTHING they can IMAGINE overrides congress and judicial.

Your using "basically" to cover the leap into space from one relevant aspect of fighting war to EVERY FRAKKIN THING IN THE UNIVERSE.

Do you see the problem here ???

[clarice]

Can you imagine what would have happened in WWII if the NYT had broken the story about the Navaho codebreakers?

BTW when are Reid and Pelosi going to order all Dem Congresspersons and their staffs to sign waivers of confidentiality and cooperate fully with any investigation or be stripped of their committee assignments?

[topsecretk9]

It's that U.S. citizens appear to be eager to cede unlimited wartime powers to a president . . .

I don't even know of a way to explain the Clinton Admin. exercising the same practice in peace time before 9-11 then.

I am going to invest in cotton balls right now. Usage is up.

[Anonymous Liberal]

"Does FISA not apply in peacetime? (hint: yes, it does)"

If you're suggesting that FISA was only intended to apply in peacetime, you're just flat out wrong. The statute itself has provisions which specifically address what should happen in times of war.

If you're suggesting that the president has the inherent power to disregard a statute which is clearly intended to apply in times of war (something which only Congess can declare), then I ask again, doesn't that leave the president with unlimited power in times of war. If the President is free to ignore congressional mandates, what logical limits are there on his power?

Maybe there aren't any and that's the way it should be, but if that's what you believe, be honest about it.

[boris]

FISA is one congressional mandate ...

"all necessary and appropriate force against al Qaeda" is another.

If you have a problem with the openended unlimited infinite omnipotent wording, take it up with congress.

[topsecretk9]

What annoys me is that liberals appear eager to deny standard wartime powers to the President, even when they're clearly needed.

What annoys me is that Liberals appear eager to lay all responsibility of 9-11 this Presidents, yet eager to deny him the authority to prevent it from happening again.