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January 04, 2006

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clarice
clarice
danking

I've got a pretty good feeling that we'll soon be hearing Democrats and MSM pushing Tice's case in an attempt to supplant the NSA intercept one.

Bait and switch....

I wonder which Dems will be falling all over themselves demanding a committee meeting to hear this whistleblowers case.

Schumer definetely.

clarice

Does anyone recall any story of Gertz' which was solid? I am afraid I can't.

topsecretk9

dust this off and re-read --the anti-political ambassador! (the eeirie is in the tone and vernacular ---TM should notice!!!!!!! Sometimes he is quizzed by it)

Brent Scowcroft called me after it appeared and asked if he could take it over to the White House and share it with officials there.

The whole thing is an interesting re-read (and raises questions too!) but this one has been nagging ....um WHY did Scowcroft need to call and ask permission to SHARE A ARTICLE PUBLISHED IN A NEWSPAPER????

Just asking. No one else will though.

topsecretk9

Clarice...CHINA SPIES, Clinton...recent

clarice

How long, dear God, will we have to listen to the same gang of kooks, telling the same pack of lies to credulous blow dried journos..GOOGLE DAMNIT..I'm sick of this!

topsecretk9

NO ONE CARED Calrice...no one then and no one recently, when it was revealed.

See, Dems aren't vexed by any foreign security threats, emptywheels and hamsterwheels only CARE and HATE Rove, Cheney, Bush and the Neo-Con Cabal. Thats it. IT.

Now I am interested in knowing if their are or have been any FBI Counter-Espionage investigations going and they get wiretaps (somewhat) easily....

Bonus tinfoil- What would be a good way to "politicize" and "thwart" legal wiretap intelligence?

clarice

ts--gertz wrote a piece some time ago on discharges of people with security clearance, including Tice, and probably got the tip from him as a result of his sympathetic treatment of these people.

larwyn

Compare this at Powerline to my
comment here at 9:44PM that included excepts from her letter to
GW and DOJ from AP:

Rep. Jane Harman, ranking Democrat on the House Intelligence Committee, Dec. 21:

"As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities."

topsecretk9

and contrast my translation, pretty on, no?

larwyn

Yes, topsecretk9. But also responding to Danking's
"I wonder which Dems will be falling all over themselves demanding a committee meeting to hear this whistleblowers case."

He guessed Schummer in lead - but
Harman would have more cred and has more respect. So perhaps the move is to get the Pelosi,Reid,Kennedy,Schummer who talked GW's poll numbers up, out of
the floodlights. Harman would be good front for them - much better than Boxer.

topsecretk9

oh goodness, Boxer would be a ditzzaster ( I hope her ego gets in the way!)

Clarice,

Boy, July 17th was "prophetic" letter writing day!

MayBee

Ah yes, good job TS and clarice.

I knew I had heard Tice's name before and it was in Vanity Fair's article about Sibel Edmunds.
---
As I talked to whistle-blowers, I had the impression that those treated the worst were among the brightest and best. There could be no clearer example than Russ Tice, and 18-year intelligence veteran who has worked for the Pentagon’s Defense Intelligence Agency (D.I.A.) and American’s eavesdroppers, the National Security Agency. “I dealt with super-sensitive stuff,” he says. “I obviously can’t talk about it, but I had operational roles in both Afghanistan and Iraq.”

It was at D.I.A. in the spring of 2001 that he wrote a report setting down his suspicions about a junior collage, a Chinese-American who Tice says was living a lavish lifestyle beyond her apparent means. Although she was supposed to be working on a doctorate, he noticed her repeatedly in the office, late at night, reading classified material on an agency computer. “It’s not like I obsessed over the issue,” Tice says. “I did my job, and then 9/11 happened, and I was a very busy boy.”

----
Follow Graydon Carter! He probably has a bead on the Risen's whistleblower, too.

Cecil Turner

Clarice, any of those connections to the others that MacsMind is always mentioning like the VIPS and Rand Beers or the others that left the NSA - Richard Clarke's buddy????

Funny you should ask. Remember the Fox News story in 2003 asking for current CIA members to leak? Their aim:

VIPS say their appeals to CIA staff are an attempt to evoke another Daniel Ellsberg, who leaked the Pentagon Papers, a top-secret study on U.S. involvement in Vietnam.
One of VIPS's more recent letters (they apparently helped run Cindy Sheehan's Camp Casey) is signed by the VIPS steering group members: Gene Betit, Sibel Edmonds, Larry Johnson, David MacMichael, Ray McGovern, Coleen Rowley, and Ann Wright. Checking the NS Whistleblowers' membership list, I note entries for 4 of the 7:
Edmonds, Sibel, Former Language Specialist, FBI
Johnson, Larry, Deputy Director- Counterterrorism, Department of State; Analyst,CIA
MacMichael, David, Former Senior Estimates Officer, CIA
McGovern, Raymond L., Former Analyst, CIA
Also on the list, (file under the heading: "isn't that special?"):
Ellsberg, Dan, Former Special Assistant to the Assistant Secretary of Defense (ISA), DOD

Dwilkers

"Anyway, I hereby promise not to whine if the NSA leakers are prosecuted.

Just so you know where I stand, though, I'll say this: If the leakers are honest and forthright with investigators (unlike Libby) and the prosecutors are convinced that the leakers were motivated by genuine concern about government wrongdoing, I think they should exercise their prosecutorial discretion and decline to prosecute.

I suppose you don't see the conflict in this post AL?

In a post saying you promise not to whine, you pre-emptively begin whining. The law about whistleblowers doesn't qualify their prosecution based on how they feel. Somehow I doubt you feel like the Plame leak was ok depending on how the leakers "genuinely feel".

The law is the law. These people don't have a right to reveal highly classified government actions based on how they feel. One way you can tell how these people "feel", and what their motives are, is that they haven't gone public. That would be because they broke the law, a law that now subjects them to somewhere between 20 years and a firing sguad.

And they did this despite their being a mechanism in law for them to process their genuine concern if they feel such a thing. Instead they went to the NYTimes.

People with access to highly classified information do not have the right to reveal it to an adversarial press during wartime no matter what their genuine concerns may be as you interpret them.

I have a genuine concern Howard Dean is a lunatic. So what?

Good grief.

Syl

Another point to ponder and hypothetical.

Say someone in one of the services has suspicions that someone else is a spy for another nation and they decide they have to let the higher ups know. The higher ups rebuff them. What to do. What to do.

One of the problems these people have is that they do not know everything!

It's could be that who he thinks is a spy is really a counter-spy and higher ups are protecting that.

What do higher ups do about the lower guy who doesn't have the clearance to know that miss chan is really a counter-spy? They, well, blow him off.

Or maybe she is really a spy.

The thing is, the potential whistleblower who goes out to the public because his concerns were blown off may very well jeopardize more than he knows. Because he doesn't know everything.

All I'm saying, and I don't mean to imply that it's the case in the current discussion about anything, is that we cannot jump to conclusions and assume that a 'whistleblower' himself even has a clue.

kim

Very true, Syl, and presumably why the correct route is written into law.
===================================

r flanagan

Did scooter follow the correct route?

Cecil Turner

People with access to highly classified information do not have the right to reveal it to an adversarial press during wartime no matter what their genuine concerns may be as you interpret them.

Yes. If the leaks damage national security, and fail to comply with the law, they should be prosecuted. Further, if the leaks are mendacious (or political) and illegal, they should be prosecuted. The only prosecutorial discretion break that makes sense is for a leak that doesn't damage national security and results from pure motives. (And at first glance, this one doesn't appear to qualify on either count.)

kim

rf, don't you know, he wasn't whistleblowing.
==============================================

Sue

RF,

It would seem he didn't. Did you hear he is under indictment?

fred lapides

It would be useful if some of the people commenting read up a bit before making rash statements. Do we have congressional checks? Not any more since Bush, without consultation with Congress bypassed FISA. Did Clinton do the same thing with Eschelon? NO. All indiations are that that program did not spy on internal communications and used the FISA route.
Yes: it is helpful to discover how the Times got the story but then perhaps a whistleblower decided that one man deciding what is good for the entire nation (Bush) is not the best way to run a democracy. Now go after the leak, fine, but do not disregard what has been done, e3sp. in light of what we are learning today about spying on CNN!

maryrose

Dwilkers,
Very well stated and right on target. People need to understand how serious this is and stop PERSONALLY putting their own agenda first.

Bill Arnold

Seven Machos,
Are you sure Congress didn't know what was happening. A lot happens behind closed doors in the intelligence subcommittees.
Briefing intelligence (sub)committees about programs is not the same as drafting or adjusting legislation to make the programs letter-of-the-law legal.
[Of course I don't know whether Congress was adequately briefed or not.]

maryrose

fred lapides:
Are you sure CNN is the best source for truth, justice and the American Way?

Harry Arthur

fred, Do we have congressional checks? Not any more since Bush, without consultation with Congress bypassed FISA. And you know this how?

Actually, the preponderance of the facts to date are that the opposite is true. The most recent example being Pelosi's letter to the NSA.

It would be useful if some of the people commenting read up a bit before making rash statements. Good advice.

kim

Just out of curiosity, what is the correct procedure for lying to a Grand Jury? Is it encoded in law, like whistleblowing is?
================================

BurkettHead

If Professor Kerr's reading of Risen's book is accurate, it seems to me that the "technical details" disclosed in Risen's book should actually calm the fuss the NYT started by omitting "technical details."

Unless Tice - who wasn't involved with the program - provides other "technical details."

topsecretk9

Also on the list, (file under the heading: "isn't that special?"):
Ellsberg, Dan, Former Special Assistant to the Assistant Secretary of Defense (ISA), DOD

YUCK. YUCK. YUCK.

Cecil Turner

Briefing intelligence (sub)committees about programs is not the same as drafting or adjusting legislation to make the programs letter-of-the-law legal.

Let's see . . . The object of the exercise is to implement secret wartime communications intercepts. And you're suggesting the first step is to draft/adjust legislation. Does that really make sense to you? What do you think the debate will do to the odds of success?

Add in the fact that Rasmussen reports only ~1/3 of the electorate think the President's acts were illegal, or that civil liberties are taking a beating, and I'd suggest this issue, along with the Patriot Act, is going to come back to haunt Democrats in the mid-term election. As Dick Morris puts it:

Democrats drove voters back to his camp with their attacks on the Patriot Act and the administration's wiretapping policies.
Morris attributes it to isolationism, and points up the disparity between Iraq and domestic security issues. Jack Kelly suggests the Iraq issue depends on framing:
While a majority of Americans now think it was a mistake to have gone into Iraq in the first place, a larger majority thinks it would be a bigger mistake to cut and run. Rep. Murtha took the spotlight off the president and focused it on the Democrats, who have no "plan" for Iraq other than preemptive surrender.

Obs

Note that columnist Novak never "outed" Plame as a "covert" agent -- that's a media myth.

Here's Novak's orginal article, where he first mentioned Wilson's wife:

http://www.townhall.com/opinion/columns/robertnovak/2003/07/14/160881.html

The hysterics in the "mainstream" media over Wilson's wife are laughable...

Immolate

"His job at NSA was so top secret that he could not even reveal his title."

Russ Tice, Senior Intelligence Analyst & Action Officer, NSA

Guess he'll have to kill me now...

or not http://www.911citizenswatch.org/print.php?sid=530

b

Some points:

- The hypocrisy of this good leak/bad leak equiovcation is astounding. The NSA leak is prima facie illegal, has done everlasting damage to US intelligence and national security, and these shadow lurkers should be punished to the fullest extent of the law.

Let's have everyone at the Times get on record right now and terminate this nonsense of 'may have been illegal' and 'seems questionable':

Should a law be passed explicitly outlawing this program? YES/NO (circle one choice only)


- The nature of secrecy entails that the process of explicitly legislating the specific parameters of intelligence operations necessarily compromises their effectiveness. Therefore those who are calling for explicit delimiting of the authority and scope of the President in re intelligence are making a strategic mistake. That notwithstanding, the fundamental logic of Article II, Section 1 is that the executive authority is not enumerated and broad.

- This disclosure has undoubtedly damaged national security. That the Bush Administration has properly not made the damage worse by revealing further details does not equate to them being unable to demonstrate such, if they were morons like the NYT editors. Just because the idiots at the NYT are not aware, do not understand, or cannot glean strategic insight based on the lineaments of the program that have already been revealed does not mean that foreign intelligence services are just as helplessly ignorant and naive.

- The 72 hour refrain is a canard. Warrants issue through demonstration of probable cause. The technical nature of this program simply does not fit in the FISA framework.

clarice

Yes, b. And if the warrants could be issued without probable cause, the FISA court would be nothing but a rubberstamp formality or no consequence.

But this down as another lefty baseless "gotcha".

Specter

AL,

Had to speak up. You tried to pull a NYT on us a while back. You said:

They [my note: the NYT] did additional reporting and found evidence (12 sources in total) that many people within the administration were not convinced it was legal.

I assume you were speaking about the orginal December 16 article. But, that is not what they - the NYT - said. The actual quote is:

Nearly a dozen current and former officials...

No mention of "administration" there. Hmmmm...maybe they would hire you....

JohnH

During the McCarthy investigations in the 1950s abuses of Americans' civil rights included accusing innocent people of being enemies of America and dragging them through hearings that damaged their reputations so severely that many lost their jobs and endured financial hardships.

Today there has not been a single instance that I have seen in the press of an innocent individual who has suffered through the operation of this secret program. Yet many liberals I have talked with who appear to be normal, high-functioning adults who can operate a motor vehicle, purchase their own groceries and tie their shoe laces, are hysterical to the point of lunacy with regard to these issues. They say, and believe, that "our civil rights have been destroyed" and "Bush has assumed dictatorial powers" etc.

To see people who appear normal go bonkers when someone speaks the code word "Iraq" suggests to me that one of the subterranean caverns under New York City is being used by the Bush SS to brainwash NYT editors and other liberals so that they will bring down ridicule on their own cause. This is truly reprehensible.

Wilson's a liar

What galls me the most is that the self-appointed arbiters of my "right to know" at the NYT have decided that I have a right to know about a secret, government-approved, government-supervised surveillance program targeted at known and suspected terrorists, but I did not have a right to know that Joe Wilson was a lying blowhard set up by his CIA wife to take a boondoggle business trip to Niger at government expense.

I can certainly sympathize with the NYT editors and reporters and readers who agree that the public had the right to know about the NSA's warrantless surveillance program. But I have zero sympathy for anyone who says we did not also have a right to know about Valerie Wilson in order to make proper judgments about her husband's statements and his motivations in making the trip to Niger. And it makes no difference how Bob Novak or any other reporter got the information, it was and still is important information to the story, which is what newspapers USED to care about.

I wonder if these dopes at the NYT have any clue how much of a laughingstock their paper has become.

Bill Arnold

Cecil,
Let's see . . . The object of the exercise is to implement secret wartime communications intercepts. And you're suggesting the first step is to draft/adjust legislation. Does that really make sense to you? What do you think the debate will do to the odds of success?
The program has been in place what, 3 years? There has been time to delicately adjust legislation. Debate would likely be bipartisan, and concerned with civil liberties. Would the odds of success be reduced? I don't know. There are aspects of the debate, notably discussions of how to attack such a system, that would not be in our interest to have in public, and it might be hard to avoid such discussions. Democracy is messy.

Add in the fact that Rasmussen reports only ~1/3 of the electorate think the President's acts were illegal
You're probably aware that even the current Rasmussen poll's specific question about the president's actions ducks mentioning lack of judicial oversight/warrants, and in fact uses language different than the president's description of what he ordered. (Sure, "Two thirds of respondents said they were following the NSA story closely." Twenty/twenty-five percent of Americans believe the sun revolves around the Earth, or if you don't like that one for pedantic reasons, 50% believe humans and dinosaurs coexisted.).

You're right about framing. The administration seems to own the language about our involvement in Iraq. There have been reasonable democratic plans (at least as contentful as that document the administration put out last month) for benchmark-driven withdrawal from active combat in Iraq. They are ignored.


Sue

Geeze, Bill, tht is because 50% of us were raised watching Fred Flintstone. We know about co-existing with dinosaurs, okay?

::grin::

clarice

Frankly, Bill, I see this as yet another Dem attempt to mislead Americans by smooshing together half baked notions about privacy and Constitutional law to conjure up some Nixonian image. What's wrong Bushitler didn't work and now we move to plan (x) The King George version?

I put my faith in the good sense of the people especially now that all that bad info stovepiped from the DNC to the press has a counterweight, bloggers who care to dig for the truth.

Bill Arnold

Clarice,
What's wrong Bushitler didn't work and now we move to plan (x) The King George version? "Bushitler" is just stupid (and violates Godwin's law). "King George" is nearl y as silly (and the mad king george subtext makes it nearly as nasty).

Are you suggesting that the NYTimes story was "bad info stovepiped from the DNC to the press"? That's a serious allegation...

BurkettHead

I haven't read Risen's book, but, if Professor Kerr is correct in his interpretation, it seems that the "technical details" Risen supplies that the NYT omitted indicate that the NSA program is probably packet-sniffing, rather than data-mining or examining content in some other fashion.

Did the NYT fail to understand that these "technical details" indicate the NSA was examining information that is similar to the outside of an envelope, rather than the content sealed inside the envelope? Or did they understand that, but omit the "technical details" for other reasons? Like, for example, causing more of a furor by indicating that the NSA was steaming open all of those "envelopes" & poring over the content?

It may well be that publication of Risen's book will actually calm the situation as the "technical detaills" begin to emerge.

clarice

Yes, Bill, I am relatively certain that this story was cooked up on Capitol Hill and people like Tice are squid ink.

Truzenzuzex

Tom Maguire wrote, quoting from this debate:

In fact, an employee who discloses classified information to Congress without prior approval is specifically subject to sanctions which may include reprimand, termination of a security clearance, suspension without pay, or removal.
You do realize, of course, that the purpose of that law was to correct the percieved "problem" with intelligence agency "whistleblowers" being unable to disclose classified information to Congress.

The law you cite in this post made it legal for intelligence agency "whistleblowers" to inform certain Congress critters of classified information that may relate to:

50 USC 403q.d.5.G.i.(I) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning public policy matters.
(II) A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity.
(III) An action, including a personnel action described in section 2302 (a)(2)(A) of title 5, constituting reprisal or threat of reprisal prohibited under subsection (e)(3)(B) of this section in response to an employee’s reporting an urgent concern in accordance with this paragraph.
Before this act, such disclosure would have been illegal.

However, the important thing is to note that disclosure of classified information under the "Whistleblower statute" is confined to:

50 USC 403q.d.5.D.(i) If the Inspector General does not find credible under subparagraph (B) a complaint or information submitted under subparagraph (A), or does not transmit the complaint or information to the Director in accurate form under subparagraph (B), the employee (subject to clause (ii)) may submit the complaint or information to Congress by contacting either or both of the intelligence committees directly.

...

G.(ii) The term “intelligence committees” means the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.

You will note that "newspapers" or "New York Times" or "Washington Post" ect. do not appear above. Neither do "the American people", either individually or as an aggregate.

Which means, of course, that it's legal to blow the whistle if you disclose your classified data to Congress. But you can't blow your classified whistle to the New York Times and comply with the law.

boris

Democracy is messy

Since FISA is unworkable and strict observance would be flat out dangerous, what's the proper course of action?

(1) The president and majority party (via appropriate committees) in congress agree on a wartime course of action. Permission from minority party and judges is unnecessary. (That's both branches with war powers folks.)

(2) The president demands congressional revocation of FISA subject to open debate and filibuster.

Those claiming shoulda coulda woulda for option (2) need to understand there's no real difference between the two just as the AUMF is not constitutionally distinct from declaration of war. Therefore the obvious downsides to (2) make it the lesser option.

Cecil Turner

The program has been in place what, 3 years? There has been time to delicately adjust legislation. Debate would likely be bipartisan, and concerned with civil liberties. Would the odds of success be reduced?

How do you debate the law, and change it, without it becoming public knowledge? (Answer: you don't.) And once it becomes public knowledge, do you think Al Qaeda's communications procedures might possibly be modified a bit? (These guys may not be amongst the sharpest tools in the shed, but this is not a high standard.)

Rasmussen poll's specific question about the president's actions ducks mentioning lack of judicial oversight/warrants . . .

That argument was stupid when Rider made it, and it's still stupid. The issue is whether or not to require probable cause to believe the domestic end is an Al Qaeda agent before listening in to phone calls from Al Qaeda numbers. Rasmussen's verbiage is as fair as it can be and still ask a meaningful question. Judicial oversight--the FISA requirement to show probable cause to believe the receiver is also Al Qaeda--is impractical and effectively terminates the surveillance. Ditto for warrants. 2/3 of Americans thought it was a good idea, and I suspect listening to a bunch of lefties explaining how they're too stupid to understand why that's a bad idea isn't going to be very persuasive. But by all means . . .

BurkettHead

Isn't it marvelous that Tice is stepping forward right now? While Risen & the NYT prattle on & on about protecting whistleblowers, Tice can show them how to really follow the statute & take advantage of the protections that are already there.

Bill Arnold

Boris
(2) The president demands congressional revocation of FISA subject to open debate and filibuster.
No, that's choice (3).
(2) The president consults with intelligence committees in Congress and over the course of a year agrees on very slight language changes in the FISA act to be buried in all the rest of the text of the Patriot act. Nobody in the mainstream press gets worked up about it - a few libertarians (both right and left) try to muster up some outrage but it's hard to distinguish from Echelon.

Cecil,
That argument was stupid when Rider made it, and it's still stupid. The issue is whether or not to require probable cause to believe the domestic end is an Al Qaeda agent before listening in to phone calls from Al Qaeda numbers.
I respectfully disagree. The numbers are probably more like 50/50 if the question is properly posed. (I didn't say "stupid americans", I said "uninformed americans", but you're right it was cheap shot.) BTW, President Bush used the careful language "to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations." I take him at his word, but he doesn't define "known links" or "clear links".

And once it becomes public knowledge, do you think Al Qaeda's communications procedures might possibly be modified a bit?
The cheap response to this is "what exactly became public knowledge? That we were bypassing a secret court as opposed to not bypassing it?" The real issue IMO is that the whole program became broadly discussed worldwide. I continue to believe this could have been avoided.

maryrose

Tru:
Your comment " You can't blow your classified whistle at the NYT " was a hoot. Thanks for brightening my day.

Syl

Bill

very slight language changes in the FISA act to be buried in all the rest of the text of the Patriot act. Nobody in the mainstream press gets worked up about it

ROTF!

I continue to believe this [program broadly discussed worldwide] could have been avoided.

Yes, if (a)there was no leak or (b)the NYTimes hadn't printed it.

Cecil Turner

The numbers are probably more like 50/50 if the question is properly posed.

How could you possibly know that? And how would you suggest the question be posed? (Especially with the consideration that open Congressional oversight or individual warrants would not be feasible.)

The cheap response to this is "what exactly became public knowledge? That we were bypassing a secret court as opposed to not bypassing it?"

That we were listening in to communications with folks in the US without probable cause (i.e., all of them, instead of just those to suspicious US phone/e-mail addresses). That is a significant difference in scale and focus, which will likely prompt a corresponding shift in OpSec focus from our adversaries (assuming they have a measurable learning curve). I bet they do.

Bill Arnold

Syl, ROTF!. Well, if you prefer, you can have a 2B version where the mainstream press happens to get worked up about a three word change in FISA. It could happen.
(a)there was no leak I prefer this version, achieved by doing the surveillance letter-of-the-law legally so that people didn't feel the need to leak and/or the NYTimes decided there was no story.
There is also a
(4) - pass an Official Secrets Act.

Cecil
That we were listening in to communications with folks in the US without probable cause (i.e., all of them, instead of just those to suspicious US phone/e-mail addresses).
We were(are)? I've been assuming (this is completely serious) that the surveillance is limited to known terrorist-related networks of connectivity. Perhaps the program isn't as disclosed as we think?

Cecil Turner

We were(are)? I've been assuming (this is completely serious) that the surveillance is limited to known terrorist-related networks of connectivity.

On the other end. The warrant requirement is to show probable cause that the guy on the domestic end is an Al Qaeda agent. The way I understand it, the purpose of the new program is to tap all the overseas terrorists' calls to see who they're talking to over here. (As opposed to the FISA rule, which only allows them to tap the ones to known terrorists in the US, and a warrant scheme that limits practical usage due to onerous paperwork requirements.) This doesn't look like a hard call to me, nor does phrasing the question seem to be the issue.

boris

agrees on very slight language changes in the FISA act

No that's option (1). That's what happened, just without the back annotation.

That's all your side has ... the administration was too discreet on the back annotation. Transparent attempt at deception. Pathetic.

Bill Arnold

The way I understand it, the purpose of the new program is to tap all the overseas terrorists' calls to see who they're talking to over here.
That's not my understanding. Of course the traffic analysis is being done, that's a given, legal or not. The decisions about what communications to "listen" to are what don't map well to the 1978 FISA. [This is getting too close to discussing how to attack such systems.] Anyway, it's clear that reasonable people have radically understandings about what was disclosed.

The Troll

I stole a piece of your post the part about the 1998 bill to add to the piece I did on this thanks...

Credit was given of course...

Cecil Turner

The decisions about what communications to "listen" to are what don't map well to the 1978 FISA.

I disagree. FISA's pertinent provisions are quite clear. It allows warrantless monitoring to acquire foreign intelligence, provided:

[1802.a.(1)] (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.
It allows monitoring with a warrant, provided we have probable cause to believe:
[1805.a.(3)] (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power
So here's the legal issue in a nutshell: you've got Bin Laden's phone tapped, and he calls someone in the US. Do you listen in, or not? Under FISA, you have to hang up, because: 1) there is a substantial likelihood that a "US person" will answer the phone, and; 2) you don't have probable cause to believe the person answering is an "agent of a foreign power."

Now, does that make sense to you? If so, I suggest you have joined the 26% in Rasmussen's survey who are, in my opinion, overly concerned with nuances of civil liberties at the expense of common-sensical warfighting. And I don't believe the phrasing of the question is the problem for the 64% who think a strict interpretation of FISA is silly.

BurkettHead

Bill Arnold said: "Anyway, it's clear that reasonable people have radically understandings about what was disclosed."

I don't think we have an idea yet what's actually going on, so we have assumptions about what's going on, not understandings. Professor Kerr seems to think (based on his reading of Risen's book) that the program involves packet-sniffing, rather than data-mining. I'm not sure that explains the Brooklyn Bridge episode, though. That seems to involve picking up "Brooklyn Bridge" in some communications. Were those phone conversations, e-mail, text, or something else? Professor Kerr referred to 7,000 communications, most of which were international, & 500 communications involving US Persons. The NYT referred to an incident in which a US Person used a foreign cell phone in the US. I have no idea whether any of that's accurate or not.

It seems to me that it's a multi-faceted, multi-part program that does, at some point, involve, inadvertently or otherwise, surveillance of US Persons that would require warrants under FISA. But I don't know how often that happens, at what point in the program & whether they obtain warrants (under FISA or otherwise) when it does happen. It also seems that most of the initial monitoring is some kind of software or algorithmic sifting, sniffing, mining or sorting. I don't know at what point humans become involved (other than tweaking the algorithms). It doesn't seem to be a herd of NSA operatives with headphones. Senator Rockefeller thought it was all new technology. For the most part, it seems like he's right (new to him, anyway).

Based on the assumptions you make, you can conjure up a program that runs completely afoul of the Fourth Amendment & FISA, or one that is nearly compliant. Based on what litle we do know, the program seems to be OK under the Fourth Amendment, yet run into problems under FISA. Yet most of Risen's sources seem concerned about the Fourth Amendment, but not concerned at all about FISA.

The pieces don't fit together yet.

(do we need more leaks?)
(would those be bad leaks? good leaks? better quality leaks? or more accurate leaks?)

Bill Arnold

BurketHead, believe it or not I'm very uncomfortable about seeing disclosure of the details of these programs - they seem to be at least in part directed at very bad people. I just want the civil liberties issues addressed.

Cecil,
WIRETAP STUDY
The relevant question:

Should the Bush administration be required to get a warrant from a judge before monitoring phone and internet communications between American citizens in the United States and suspected terrorists, or should
the government be allowed to monitor such communications without a warrant?

Should be required to get a warrant ... 56
Should be allowed to monitor without a warrant ... 42
Not sure .. 2

Interview dates: January 3-5, 2006
Interviews 1,001 adults, 856 registered voters
Margin of error: +3.1 for all adults, +3.4 for registered voters

I think it might be slightly skewed to Democrats.

Kate

Slightly? Like 12% more Democrats than Republicans. Plus the question is wrong.

Foreign terrorists should be included.

Other than that AP/IPSOS continues to build on its fine reputation as a pollster.

clarice

Risen apparently also includes in his book how the Clinton era CIA accidently rolled up their own Iran spies and turned over nuclear plans to Iran.

Wonder why that didn't get more coverage?

boris

Bill Arnold ...

Currently with a legal wiretap on the local crime boss the FBI can monitor a call to the out of state hitman, alias Lefty Icepick, without also having a warrant on Lefty. Unless you are willing to demonstrate equivalent sanctimonious concern for Lefty's constitutional right to privacy by demanding FISA type restrictions on criminal investigation ...

(1) No monitoring without warrants for all other parties

(2) 72 hour retro warrants allowed "in emergency"

(3) Probable cause for retro warrant needs to be independent of monitored content

... nobody should take you seriously on this issue.

boris

Kate, the poll was hopelessly blinkered. The type of call of MOST interest is between Al Qaeda and a terrorist like M.Atta in the US, WHO IS NOT A CITIZEN. Excluding that category of surveillance in their poll renders it meaningless.

clarice

After the last election I decided to use Zogby as a classy substitute for the word SHIT.For that same purpose IPSOS is now a synonym.

boris

Not that anybody should take me seriously on any subject, still popular opinion, informed or not aside, these are the basics;

(a) The NSA program is consistent with FISA or can be made so by fine tuning the accepted interpretation of FISA.

(b) The NSA program is not consistent with FISA but compliance with an accepted interpretation of FISA would keep the country just as safe.

(c) The NSA program is not consistent with FISA but was necessary to protect the country.

If (a) there's no problem.

If (c) the only debate is to select the argument for overriding FISA that provides the maximum amount of agreement.

Regarding (b) ... I dispute "just as safe". If the argument is actually that compliance would keep the country ALMOST as safe, then be considerate and start your rant with the following:

Give Me PRIVACY or Give Me DEATH!
So the rest of us can preemptively dismiss the rest of the moonbat ravings.

clarice

As usual, well put, Boris

boris


Thanks Clarise. Your post above made me smile and this one made me laugh ...

IPSOS is a French owned polling outfit linked to and supportive of the crooks presently running that country. It produces partisan results for outfits like AP who want to run editorials on their news pages.
That rings so true.

boris

Ooops, how did that 's' get in there ??? Sorry 'bout dat.

Cecil Turner

I'm very uncomfortable about seeing disclosure of the details of these programs . . . I just want the civil liberties issues addressed.

I'm fuzzy about this "comfortable" v. "uncomfortable" thing. I think the leakers should be prosecuted. If they get off, fine, but they deserve their day in court. And since the cat's out of the bag anyway, by all means Congress should look at the issue and determine if the laws need revision. However, this is one of those shared areas of responsibility (between the Executive's authority to wage successful war, and Congress's authority "To make Rules for the Government and Regulation of the land and naval Forces") . . . neither branch has a monopoly.

The relevant question:

Well, speaking of misleading questions, don't you think that one qualifies? In the hypothetical case as outlined above, with a tap on a known foreign terrorist calling an unknown person in the US, the question misses on at least three key points:

  • It isn't necessarily a "US citizen," merely someone in the US;
  • It isn't a "suspected" terrorist, it's a known one (moreover, "suspect" has no meaning in wartime intel intercepts);
  • A warrant is generally not feasible.
Perhaps a better way of posing it might've been:
Should the government be required to get a warrant from a judge before monitoring phone and internet communications between people in the United States and overseas terrorists, even if that means most terrorist calls won't be intercepted because it's usually not feasible to get a warrant?
If the answer to that was "yes," it'd mean something. The way it's asked, it doesn't, even if they'd managed a representative sample.

clarice

Maybe Tom can run a "make believe you're IPSOS contest" where we fashion a poll and a mix of people polled to get the result AP wants..

Bill Arnold

Cecil, your poll question is good, sans the italics (which would be hard to do over the phone anyway). I'd very much like to see the result.

Boris, with regards to this issue I'm completely arguing as a civil libertarian, not as a lefty, not as a Democrat.
I believe FISA should be/should have been modified to cover the technological changes since the 1978 FISA act, and that there was opportunity to do so consistent with the law.
So I'd pick
(d) The NSA program was not consistent with FISA, and the adminstration should have worked/should work with Congress to design a law or changes to FISA to allow for a program like the NSA program.

Give Me PRIVACY or Give Me DEATH!
is rather silly. First, it should be "give me PRIVACY and give me Death!". Second
we make tradeoffs between civil liberties and safety (freedom from danger) all the time in the country.

The first example that comes to mind: Until recently, drunk drivers in the U.S. were wrist slapped, even though they jeopardized the rest of us to the tune of 10 (extremely rough estimate) thousand deaths a year. Now they're punished, but there are countries with far more severe punishments (and/or restrictions on drinking), and there are still far to many people killed by drunk drivers. Jail all drunk drivers first offense, and this would be a safer country to live in.

Use electronic tracking devices to continuously monitor the speed and general compliance with traffic law of every car on the road (and automatically issue tickets), and this would be a much safer place to live.

kim

And BA, you know, the technology for that is already here.
==================================

Bill Arnold

kim, yes. The technology curve is breathtaking and once law enforcement has powers, taking those powers away is politically near impossible.

The drunk driving example is a little weak, but smoking analogies, or worse, a gun-control analogies (2nd vs 4th amendments), tend to be bad to attempt online.
Also, drunk drivers aren't active malevolent adversaries, and terrorists are.

cathyf

Given just who it is who has been the most enthusiastic creators of the government's huge regulatory machinery, it is kind of ironic that they are swooning over the idea of the NSA listening in on calls. Look, if you are a medicare beneficiary, the federal government is literally conducting surveillance up your ass with no warrant. (It's called your annual colonoscopy.)

Our government collects all sorts of information on us from medical records, detailed financial information, census records, etc., etc. We have passed laws that say that government employees who misuse the data are subjuct to disciplinary actions and/or criminal prosecution, delegated authority to enforce those laws, and gotten on with our lives.

Whether it's data mining, or foreign communications surveillance, why should we trust the NSA or DIA any less than we trust the IRS?

cathy :-)

boris

(d) The NSA program was not consistent with FISA, and the adminstration should have worked/should work with Congress to design a law or changes to FISA to allow for a program like the NSA program.

That falls under (c)

The NSA program is not consistent with FISA but was necessary to protect the country. The only debate is to select the argument for overriding FISA that provides the maximum amount of agreement.
Since we have no working time machines yet this can only be done going forward. So your (d) is just a bash cuz it wasn't done your way in the first place.

If it was necessary to protect the country it goes into effect immediatly. Congress committees were briefed and frankly any responsibility for fixing it up belongs with them. The president had other things to do and it was congress who created the FISA turkey in the first place. Where does the notion come from that if congress creates an unworkable turkey, constutionally doubtful, the president is responsible for getting it fixed?

Really now, you claim to be non BDS so why didn't your (d) read like this ???

The NSA program was not consistent with FISA, but was necessary to protect the country and Congress should have designed a law or changes to FISA to allow for the NSA program.

clarice

Here's a good piece on the subject:pettifogging nonsense

boris

Thanks, thats a good post from JPM. I really like this line ...

So far, however, nobody has adduced any evidence of abuse. Instead, what we see in the morning papers is rampant abuse of the evidence.
One for the scrapbook ...

No evidence of abuse but major abuse of evidence !

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