I'll Take The Fourth

Orrin Kerr defends General Hayden's interpretation of the Fourth Amendment, as does Adam White at NRO.  If you do not know Adam White, we see that:

Adam J. White was recently a clerk on the U.S. Court of Appeals for the D.C. Circuit. His article on Justice Robert Jackson’s draft opinions in the Korean War-era Steel Seizure Cases will appear in the Albany Law Review later this year.

As additional background - here is the transcript of Gen. Hayden's remarks from Jan 23, 2006.  And here is a Congressional Research Service memo from Jan 30, 2006 to the SSCI, and addressed as follows:

Probable Cause, Reasonable Suspicion, and Reasonableness Standards in the
Context of the Fourth Amendment and the Foreign Intelligence Surveillance Act.

I will not tell you that the memo fully vindicates Gen. Hayden, but feel free to tell me that.

Comments

[kim]

It is probably prudent to datamine.
======================

[windansea]

Like Clarice said in another thread, if Amazon can datamine to determine patterns in book buying, shouldn't our Government be aqblle to do the same to prevent terrorists?

[kim]

You might as well blindfold 3,000 people and put 'em up in a skyscraper. Maybe that'll pacify those rebels. Give 'em a little infidel sacrifice. Bread and circuses.
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[kim]

Ha! Ha! Ha! Is one side forgetting that the overriding duty of the prosecutor is to see that justice is done? Mr. Prosecutor, would you please report?
====================================

[Sue]

Bush making statement now...about the NSA phone records.

[kim]

Folks, this is just a new field of battle upon which we must prevail in order to survive. It's that simple.
=================================

[clarice]

You could opt for this--but I prefer if you do you move to the UK and live with the consequences of that choice. http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1147341617547&call_pageid=968332188854&col=968350060724

[Jor]

Not all data-mining is created equal. If you can't tell the difference between what Amazon is doing and what the NSA is proposing, I highly recommend you keep your mouth shut. Please take a god damn stat 101 class before you say something so god damn stupid.

[Jor]

or in layman's term -- amazon is not going to have a signal-to-noise problem. The NSA is looking for needle in a farm full of haystacks. This is a very different problem. I'm not sure this is at all "reasonable", because it doesn't seem plausible at all. Ulterior uses of this database though are extremely plausible. Before jumping on board, you should at least try to get some expert testiomony that what the NSA is saying it is trying to do is realistically feasible. (which I strongly doubt).

[boris]

Please take a god damn stat 101 class before you say something so god damn stupid.

If anything the Amazon datamining is more intrusive since it targets individual reading habits.

Anonymous traffic baseline collection for national security purposes shouldn't be a problem. Unless you're a god damn moonbat anyway.

[Jor]

Boris, re-read my s/n post. Actually on second thought, forget it. No one here believes in checks-and-balances at all. So I guess, its all fine-and-dandy.

[Syl]

Jor

Get a grip.

You can't figure out how the program could work, yet you're so sure you know how it works that you claim it can be used for nefarious purposes.

Well, I guess national defense is considered a nefarious purpose in some circles.

[The Unbeliever]

If you can't tell the difference between what Amazon is doing and what the NSA is proposing, I highly recommend you keep your mouth shut. Please take a god damn stat 101 class before you say something so god damn stupid.

If they already have a few "positive" test cases, i.e. the phone patterns of known, established terrorists or sleepers, then it's not a needle in a haystack; it's just a simple pattern matching exercise. Amazon's matching and referral system did not spring up ex nihilo; someone had to buy Book A and Book B first, creating a positive correlation, before Amazon knew to recommend Book B to you.

amazon is not going to have a signal-to-noise problem. The NSA is looking for needle in a farm full of haystacks

Actually, Amazon had plenty of noise problems before they started filtering out gift purchases and one-off large items from the normal "for me" purchases. And thing is, you can't speculate on the NSA's signal/noise ratio until you know the particulars of the known positives. Amazon will have signifcant noise problems doing referrals based on books 1 million people buy, as opposed to "niche" books only 100 people buy. It may be the case that terrorist positive matches are so unique that data mining turns up relatively little noise. (For example, what if all known US terrorist cells called in to Pakistan twice a week? How many average Americans--i.e. false positives--do you think would fit that criteria?)

Having said that, I'm much more worried about the legality of this reported effort than I was about the last NSA wire tapping bit. The latter was for targetted international calls, which I wholeheartedly support; this latest case seems to be too broad a search criteria to be justified. Of course, I want more data and a few days to think it over before passing judgement.

[windansea]

With the telecom companies' compliance, the NSA can today tap into those international communications far more easily than in the past, and in real time (or close to it). With access to much of the world's telecom traffic, the NSA's supercomputers can digitally vacuum up every call placed on a network and apply an arsenal of data-mining tools. Traffic analysis, together with social network theory, can reveal patterns indiscernible to human analysts, possibly suggesting terrorist activity. Content filtering, applying highly sophisticated search algorithms and powerful statistical methods like Bayesian analysis in tandem with machine learning, can search for particular words or language combinations that may indicate terrorist communications.

In an essay published next month in the New York University Review of Law and Security, titled "Whispering Wires and Warrantless Wiretaps: Data Mining and Foreign Intelligence Surveillance," K. Taipale, executive director of the Center for Advanced Studies in Science and Technology Policy, points out that in 1978, when FISA was drafted, it made sense to speak exclusively about intercepting a targeted communication, where there were usually two known ends and a dedicated communication channel that could be wiretapped.

With today's networks, however, data and increasingly voice communications are broken into discrete packets. Intercepting such communications requires that filters be deployed at various communication nodes to scan all passing traffic with the hope of finding and extracting the packets of interest and reassembling them. Thus, even targeting a specific message from a known sender today generally requires scanning and filtering the entire communication flow in which it's embedded. Given that situation, FISA is clearly inadequate because, Taipale argues, were it to be "applied strictly according to its terms prior to any 'electronic surveillance' of foreign communication flows passing through the U.S. or where there is a substantial likelihood of intercepting U.S. persons, then no automated monitoring of any kind could occur."

Taipale proposes not that FISA should be discarded, but that it should be modified to allow for the electronic surveillance equivalent of a Terry stop -- under U.S. law, the brief "stop and frisk" of a person by a law enforcement officer based on the legal standard of reasonable suspicion. In the context of automated data mining, it would mean that if suspicion turned out to be unjustified, after further monitoring, it would be discontinued. If, on the other hand, continued suspicion was reasonable, then it would continue, and at a certain point be escalated so that human agents would be called in to decide whether a suspicious individual's identity should be determined and a FISA warrant issued.

http://www.technologyreview.com/read_article.aspx?ch=,infotech&sc=&id=16741&pg=3

[JM Hanes]

Jor

"No one here believes in checks-and-balances at all."

Not so. I suspect, however, most of us would agree that somebody who shows up calling people "god damn stupid" and telling them to "keep their mouths shut" probably isn't looking for an actual conversation.

[clarice]

Thank goodness for the program, because I think that Persian nutcase is up to something here. http://americanthinker.com/comments.php?comments_id=5119

[Sue]

I'm not sure this is at all "reasonable", because it doesn't seem plausible at all. Ulterior uses of this database though are extremely plausible. Before jumping on board, you should at least try to get some expert testiomony that what the NSA is saying it is trying to do is realistically feasible. (which I strongly doubt).

And you don't see the irony in what you post...

[Jor]

Sue, I've done quite a bit of network-analysis stuff in other areas (gene regulation). Also, spent a bit of time looking at network-analysis for early-detection of bio-terror attacks. I'm not an expert, but my intuition says its not going to work. If you want me to jump on board for a program with no oversight, I'd want to see someone I can trust (i.e. someone with a 1st rate technical background) tell me this is feasible / can produce some type of reasonable ROC curve.

[windansea]

Jor needs to read the article I posted above

[Jake - but not the one]

Well, Sue, we aren't going to get any testimony, are we? or investigations or anything else - at least until the Republican majority is so much historical backwash. I mean, look at it, the admin refused security clearances for the Justice Departments investigation, did they not? Hard to investigate if the admin won't let you read the docs.

They're hiding the goods. Sue, Clarice, Tom - eveyone - they are hiding what they are doing, and they are hiding it from US. Or at least from our elected representatives and the admin's OWN people who were charged with looking into the taps.

I'm not cool with that, and you shouldn't be either.

Jake

[Sue]

Jor,

Sometimes it helps to get the right information first. You don't even know what they are doing, just as you didn't know when the Times first ran the story.

[Sue]

Jake,

Thanks but I'm a big girl. I'll decide what concerns me. I would hope they are hiding it from US, because if US knows so does AQ.

[Syl]

AQ and Iran.

[Sue]

Syl,

There's a difference?

[Syl]

We know there's no underlying difference, Sue. But we have to remind those folks who think this war is just about bin laden and a few of his goons.

[clarice]

Jor--want to know why the OPR security clearances were denied? Because if you had paid attention the leaks came from INSIDE the DOJ, Congress and the FISA court itself...and I believe all will be revealed in a short time.

[Sid]

On legality, it seems to me that if it is legal for the phone providers to collect and keep this data, it is legal for it to provide it to the Government. If the Government was out extracting these bits of data I still don’t see anything that is not legal, but, as I understand, the phone companies are actually providing data that they already have. Clarice????

[JM Hanes]

Shoot, Sid, until a couple of weeks ago, it was legal for anybody to buy all the intel they could afford from service providers directly.

[Sid]

JMH

Did a new law go into effect recently regarding sale of this kind of info?

[clarice]

Jake, "no supervision"? From what I can see to take any action on anyone in the US based on the program, the FBI has to observe the recipient of the call or otherwise develop information sufficient to seek a FISA warrant. If they haven't enough, no warrant. (Isn't that an interesting contrast with the CIA referral letter in Plame.)

[Anderson]

"No difference b/t Iraq and AQ." Great. Just in case I was about to respect anyone's intellectual acuity hereabouts.

[Patton]

The only probably cause for the CIA referral was Novaks piece.....thus, UGO should be being frogmarched as we speak.

As for the NSA issue, the Supreme Court and Congress determined long ago that information on phone numbers calling other phone numbers is not protected by the Constitution.

It doesn't even require a warrant for that information to be turned over to law enforcement.

YOU HAVE NO EXPECTATION OF PRIVACY THAT THE FACT YOUR PHONE NYUMBER DIALED ANOTHER PHONE NUMBER. YOUR ONLY EXPECTATION IS THAT
YOUR CONVERSATION WILL BE PRIVATE.

[Patton]

Anderson your right, Saddam was a much bigger terrorist then Al Queda..and killed far more innocent people.

[maryrose]

Jor:
Already took Stat 101- it was required for my masters degree.
Jake:
I'm cool with the system as is,you on the other hand want leaks everywhere and all info out in the open so the terrorists know all of our tactics. That's short-sighted thinking and as stated before I like and take the long view. If people have something to hide -they might object-it's an anti-terrorism tool, nothing more than that.

[azredneck]

I don't know what the NSA program does after re-reading Hayden's testimony. I took
Stat 101, 201, 301,---605 and passed them all with As or Bs and still have no clue as to how they apply to my ability to discuss the program(s).
All I CAN say is, that if my unsolicited emails from my favorite porn site are really from AlQueda, I would consider it a personal favor for NSA to call me!

[Bush Sucks]

Bush sucks. Impeach now.

[Gary Maxwell]

Gosh why do I have to take time to download software to clear my PC of spyware that tracks my every movement. Why thats an invasion of my privacy. I am sure I can count of Sen Leahy to lead the charge against this terrible situation. After all it is about invasion of individual's privacy, right? This isn't one more in a very tiring and seemingly endless political critism is it? /sarcasm /sarcasm just like when we need to turn off an open tag ).

[Marianne]

There isn't enough known about the telephone records collection program to determine how extensive it is, and whether it is productive, necessary, even legal.

[Sid]

How does the new NSA ddiffer from ECHELON that was ongoing in slick Willie's watch??

[Fresh Air]

Clarice makes the quite pertinent point that to pursue any of the leads from the datamining requires an FISA warrant.

So what's all the huffing and puffing about? If I'm a cop and sit on the freeway watching traffic and some starts weaving erratically, I have probable cause to stop him and find out if he's drunk or being chased by mobsters.

If some schmuck named Mohammed places a lot of calls into a Qatar line identified as having terrorist connections, well then I would like to find out more. Datamining merely establishes probable cause.

And, as for nefarious intent..you have got to be kidding me. The NSA doesn't have time to track down cheating spouses and crooked politicians. They have billions of calls to sort through and prevent the next 9/11.

The left is truly the home of the ignorant and paranoid.

[JM Hanes]

Sid:

Wish I could remember which blogger to credit, but he wasn't getting much traction on this issue so he decided to buy Wesley Clark's records instead of his own. Wow! went Congress (or more likely: It Could'a Been Me!), and brought forth a bill pretty quickly. I believe they passed it pretty fast too, although I couldn't absolutely swear to it.

[maryrose]

Sid:
good point but remember the left has amnesia of all things Clintonian.
Feinstein in a SHuster interview after hosting Hayden in Congress probably got some dem heat-because today she says new USA TODAY revelations will hobble his confirmation. Personally I think USA TODAY is hard up to sell newspapers and decided to print this noise.

[Syl]

I bet Rove was behind the leak.

All the caterwaling from the usual suspects is only going to hurt them in November.

[Paul Zrimsek]

Before jumping on board, you should at least try to get some expert testiomony that what the NSA is saying it is trying to do is realistically feasible.

Very puzzled here. Isn't expert testimony what you just finished giving us? Or is your ironclad certainty based on something other than expertise?

[JM Hanes]

Looks like this is where the NSA discussion has ended up, so I'm taking the liberty of moving a couple of comments over here.

I don't think it's fair to dismiss concerns about privacy and potential abuses as paranoid or delusional. You'd have thought the FBI was too busy with real crimes back in J.Edgar's days too, and we've just got too many more recent examples of folks -- from both sides of the aisle -- abusing their access to information whether for political purposes or political gain.

Normally, sunshine is the preferred disinfectant, but not when it comes to national security. We do have to develop some form of either oversight or accountability. Conservatives who tout strict construction of the Constitution should be the first to recall that the idea of protecting the people from government was a generative founding principle.

Unfortunately, datamining and intrusions of that ilk & others, are the inescapable consequence of tasking the government with the preventing future attacks. Intel gathering in multiple venues is also absolutely key to the kind of military operations we're most likely to be engaged in for the foreseeable future. The information landscape has changed dramatically in the last decade alone, and it is just as trans-national as terrorist, or any other kind of, networks.

The traditional distinctions between domestic and international endeavors have become artificial demarcation lines if not outright obstructions. On the previous thread, I quasiquoted the head of Cisco who said early on that you have no privacy, you just don't realize it yet. As some here have already noted, we must be careful that we do not deny protectors the use of the tools being wielded by our assailants.

Folks on both sides of this info gathering divide had better figure out how to work together on solutions to what are legitimate quandries and logical concerns.

[JM Hanes]

***Sorry, make that: "political purposes or personal gain" in the above***

[Fresh Air]

JM--

Excellent post. The trouble is that the usual suspects have already freaked out and assumed that peoples' civil liberties (however they define them) are endangered from this very useful, powerful and necessary datamining operation without even a dim understanding as to what the program does and how the data is used.

George Orwell is responsible for this. But people have got to get over their "Big Brother" paranoia. You either maintain and open society and use programs like this, or you seal the damn thing off.

Choose your poison, liberals.

[clarice]

JMH, here's where I see oversight:Critical members of Congress have been fully informed and no legal action can be taken domestically without a warrant. I do not know under the circumstances that more can be done. The Dem demand that all of Congress--including Moran McKinney and Conyers--get the details is not a serious move by a serious party. They chose their leaders, If they cannot trust them,change them.

[Soylent Red]

Maybe someone can clear some GD things up for me (sorry– that was just gratuitous)...

Everything I've read says that this NSA database is capturing the to and from in phone numbers, not in content.

If that's the case, how is it different from what I see every month on my phone bill? Nobody seems to mind the telcoms keeping track for purposes of extracting wealth from me.

Also, how is this different than what various law enforcement agencies can subpeona to build cases?

Finally, if this is simply cross-referencing phone numbers hither and thither (and I don't know that's what it is, but it sure sounds like it to me), it's really not such rocket science. NSA has discovered MS Access. Whoopee. Alert the media.

For the life of me, I cannot see the big deal.

[Soylent Red]

Also, as follow up to Sid...

Was Echelon instituted pre- or post-9/11?

Nefarious purposes indeed.

[Oversight God]

No one needs no warrants. It's DIA and it's okay, we all trust Plames' access.'

[sid]

Sol

My understanding is that it was stated in the 90's. (sometimes It is like I just heard it new again) Anybody have any better info

[JM Hanes]

Fresh Air & Clarice:

Nothwithstanding some of the obvious rhetorical grandstanding, I think a certain amount of freaking out is completely understandable. The Bush Adminstration has been unusually, if not inordinately, secretive across the board, and has demonstrated its willingness to circumvent Congress, as with implementing faith based initiatives via Executive Order, for instance. When they first introduced the idea of military tribunals and associated constraints on civil rights, they swore up and down that it should not concern, and would not affect US citizens. Even Ashcroft's assertion that the DOJ hadn't demanded anyone's library records disingenuously ignored the fact that they could have done so at will. The routine issuing of National Security Letters at the bureaucratic level has increased astronomically, and most of the tools specifically OK'd for fighting terrorism by the Patriot Act have made their way into the standard law enforcement kit.

Critical members of Congress may have been fully -- or not so fully -- informed, but as long as the Administration insists that they are doing so as a courtesy, not an obligation, I for one, think real concern is justified. In addition, I believe it's just as important for the Executive Branch to avoid the appearance of impropriety as it is for the judiciary (although I think it's pretty hopeless to demand the same standard of Congress!) if they expect to retain the people's trust. Hayden has apparently indicated, according to Dick Durbin for what that's worth, that he might, at this point, be amenable to some form of codification in this regard. I think that it is important to push things in that direction, not just to assure the public that appropriate, understandable, controls are in place, but to address changes in the intelligence landscape, to approve adjusting our methods to the threats we face, to introduce clarity about what constitutes both crimminal leaking and legitimate national security secrets, and to mandate both strict enforcement of secrecy provisions & real, not optional, penalties for infractions.

[clarice]

You may be right. My views are colored by the perfidious behavior of the Minority leader of the Senate Intel Committee who I believe played a large part in (a) the Wilson Gambit(b) the politicizing of that Committee--a new first and a new low in recent American history(c) the NSA leak and (d) tipping off Saddam about out war plans in his unprecedented trip to Syria just before the invasion.

With political opponents like that and dangers like we face, they are getting what they deserve and the claims they need more information seems to me to be cant.

Congressional leaders of both parties have been fully informed all along. If Dems don't feel they can trust their designated leaders they should replace them.

[Tollhouse]

This "new" thing is no different then the current pen register.

http://en.wikipedia.org/wiki/Pen_register

[Other Tom]

I have seen no basis for any assertion that this program is in any way unlawful. In fact, I'm not sure that anyone has even made such an assertion. As to the feasibility of using the information, I have seen it suggested that any time a known terrorist's current phone number is learned, this data base can instantaneously disclose the numbers that terrorist has been calling in the U.S. I think this is an awfully useful tool. I note that no Democratic member of congress who has been briefed on this program has complained about it at all.

[boris]

unusually, if not inordinately, secretive across the board

A non chatty wartime administration. So what's wrong with it? Reagan could intimidate Congress by swaying the public, and Clinton was pubicly overexposed. W's different.

just as important for the Executive Branch to avoid the appearance of impropriety as it is for the judiciary (although I think it's pretty hopeless to demand the same standard of Congress!)

Judiciary is not elected. Executive and Congress are. It's apporpriate for them to establish boundaries in the court of public opinion and the ballot box. The issues that concern you tend to favor the executive for the moment. Invoking propriety and the judiciary just looks like a way of handicapping an executive you prefer to restrain.

[JM Hanes]

I couldn't agree more with regard to Rockefeller & others, Clarice, and that's a big part of why I believe we should be thinking about a legislative package here.

We really need an accurate, useful, definition of what qualifies as a legitimate national security secret, because I don't think anyone denies that a lot of material gets classified just to cover a host of assorted asses. We also need to make prosecution for leaking truly sensitive material non-discretionary and mandate serious crimminal penalties upon conviction.

[boris]

We really need an accurate, useful, definition of what qualifies as a legitimate national security secret

This is ID versus Evolution and you're on the ID side here. It shouldn't be what makes the most sense, it should be what works. Keep in mind the current situation is the result of long term sabotage.

[JM Hanes]

boris

"A non chatty wartime administration. So what's wrong with it?"

Well, just for starters I'd say continuously declining public support for the very war we're trying to fight, and disapproval numbers so high that you can't count on your own majority in Congress to support your agenda.

"Invoking propriety and the judiciary just looks like a way of handicapping an executive you prefer to restrain."

I prefer a functioning system of checks and balances on all three branches, and I think that underneath the alarmist rhetoric which proliferates on all sides, there's a legitimate, and conceivably even healthy, three-way tug of war going on right now. Invoking propriety is by way of a reminder that reputation matters -- especially in an Administration that isn't willing to give anybody much of anything else to work with.

[clarice]

I see it as an effort of Congress to invade the Executive's role.And under less than stellar facts as far as Congress is concerned.

[JM Hanes]

"This is ID versus Evolution and you're on the ID side here."

Huh?

[azredneck]

Amen, Clarice. And I'm getting madder than hell about it! People cannot continue to get away with the politization of every gov't action w/o consequences, or we're all in deep ka-ka.

[Lurker]

"I see it as an effort of Congress to invade the Executive's role.And under less than stellar facts as far as Congress is concerned."

B-I-N-G-O!!

Will Arlen Specter and Lincoln Chaffee ever get this fact that they are tipping the "checks and balances" to Congress's favor as opposed to what the Founding Fathers envisioned for our country?

[Pofarmer]

"I see it as an effort of Congress to invade the Executive's role.And under less than stellar facts as far as Congress is concerned."

It's the worst kind of micromanagement by those the least qualified to try to do it.

I also think it's at least partially envy driven. The minority party wishes they had the pretty toys and the important jobs, and want to take them away, and they don't care who's toes they step on.

[JM Hanes]

I think it's a lot easier to be sanguine about potential Executive overreach when you approve of what the executive in charge is trying to accomplish -- and I include myself in that observation. I certainly agree that there's been plenty of Congressional overreach on multiple fronts, though I'd include the Terrie Schiavo legislation on that score too, where I suspect some here might not. If you want to see greymailing in action, of course, you can just watch any recent appointment hearing on C-span. IMO, however, NSA type concerns are of a different order despite the angling for political advantage that (dis)colors the debate.

[boris]

Huh?

Really? You avocate intelligently designed secrecy, but evolved systems developed under survival of the fittest work better.

[boris]

I'd include the Terrie Schiavo legislation

Your religious about such issues. If Terrie was brain dead she was beyond suffering and indiginty. If she was still marginally aware then killing her might be wrong.

[boris]

I prefer not to have the executive branch so restrained that anybody can serve without concern for their integrity.

Why?

Because it reduces the importance of trust and integrity and makes it easier for the those without them to get in. Once in, the restraints are too easily broken by untrustworthy villians.

It's like the gun issue. Criminals don't obey gun laws so all they really do is disarm the lawful and render them helpless and dependent on protection by the state.

[boris]

In any reasonable historical sense, especially wartime, W has been a boy scout. (in the most complimentary sense) If all assertive past presidents are hearby declared way over the line, then we will simply have to agree to disagree.

[JM Hanes]

"You avocate intelligently designed secrecy, but evolved systems developed under survival of the fittest work better."

LOL! The subject here is intelligence, is it not? The current system has evolved Scooter Libby out of a job and into court while leaving Jay Rockefeller free to roam, planting seeds & propagating leaks wherever he goes.

[boris]

The current system ...

Check back upthread, I did say the current system was the result of long term sabotage.

continuously declining public support for the very war we're trying to fight

I recall similar complaint about the yellowcake/plame/NIE situation. Then one of the regulars pointed out the many administraion efforts to get out the facts that were ignored and drowned out by the anti-admin hysteria.

When public discorse is based on TANG memos, falsehoods and forged intel, there is a real problem. W certainly does not have a weapon up to the task. Reagan or Clinton were much better at spin, but W is actually better at winning fights.

Sometimes "better" is the enemy of "good enough". Look at it this way ... if W had it all covered, he wouldn't need us.

[Pofarmer]

Also, please remember, that one of the SAT phones Osama used in the 90's came from Columbia, MO, about an hour from where I live. To suggest that there are not terrorrists, or at least terrorist sympathizers among us is to have your head securely where the sun don't shine. To suggest that we should publicly vet all our intelligence gathering and security measures before they are employed is just plain stupid.

[boris]

The subject here is intelligence

Fine, you hammer out a good consensus with VIPS, Biden, McCain, Snow and Pelosi.

I'll assign Rumsfeld to put together a working group who still remember how it was done when it still worked.

[boris]

Uh oh ... that would be "secretive" huh.

[kim]

You two are both brilliantly insightful and rational. You are tangling around a difficult principle of governance. There is always the solution of Brutus to a Caesar, but where is the evidence of imperial arrogation, in the present instance?
========================================

[Soylent Red]

I'm gonna step out on a limb here...

There is not one rational person in this country who will see the secrecy of thisparticlar NSA operation as a problem.

There are, of course, lots of irrational ones, but the subjects of intelligence and conducting war are mostly lost on them anyway.

This will be fodder for lots of breathless chatter amongst the Kossacks, and may delay getting someone in charge at CIA. After that, it serves no useful purpose.

Among the rational it will drive home the point that Dems are more interested in counting political coup than national security, and more importantly, that they cannot be trusted on national security in the role of loyal opposition.

They are trying to subtly blackmail the public. If they can't be in power, they'll make it where any measure to keep us safe will be politically attacked. IOW, if they can't be in power, we can't be safe.

Those who haven't already caught on to this game, will. November will be a referendum on how much more of the crap the American people are willing to put up with. As dumb and short-term as we are, I still hold out hope that we didn't all fall off turnip wagons.

I'm going to start shopping for an umbrella that will withstand falling Democrats.

[Pofarmer]

Kim

That's what I was kind of thinking of. Can anyone come up with a single documented, prove, instance of abuse of either the Patriot Act or the NSA "spying"? "This might happen", need not apply.

[clarice]

I think that Soylent is right and I'd say that even if I weren't trying to inveigle him into doing a R/S/S comic books series with me.

[Soylent Red]

Oh and JM and Boris:

You're both right. Neither Legislative nor Executive have been very good at knowing their respective roles in conducting a war.

Executive needs to talk all day every day about the why, and maintain secrecy on the how.

Congress should, of course, base their votes on the former and butt out of the latter.

[boris]

IOW, if they can't be in power, we can't be safe.

Yes, this dymamic is infuriating.

The only way to get bipartisan support for national security is when they get to run it and take the credit.

Civil rights. Repubs did the right thing, busted the filibuster during a dem admin allowing the dem party to take full credit, even denouncing the Repubs for their own dem footdragging on the issue.

[boris]

You're both right.

Of course we are! Just sparring.

[Soylent Red]

Clarice:

I haven't been inveigled since the 80's, and I think there was a fair amount of gin involved.

[Marcel]

It would be interesting to learn which agencies and which individuals have access to the records of telephone calls. It is not inconcevable that the telephone records could be used for purposes other than identifying / tracking the activities of potential terrorists.

The Courts have no supervisory role through FISA. Congress has no oversight of the program. So we may be depending solely on the integrity of those who are administering the program, and those who have access to the data - likely many thousands of people in total.

[Soylent Red]

Marcel:

Why the gubmint would care about 99.9% of the calls made in this country, I'm sure I don't know. Just curious what you might speculate such other purposes to be. Not being snarky at all on this, just curious.

I work in marketing and I can tell you firsthand that this is just very sophisticated and integrated execution of what is already being done on a daily basis.

Databasing telephone connections several iterations deep, while I can't think of a specific marketing purpose for it, is technically not that difficult. Particularly with an NSA budget. There are already off the shelf types of programs that do the same type of query-to-output kinds of things, just with different data sets. Your bank uses them every day.

[Specter]

Just some points:

ECHELON grew out of surveillance programs started after WWII. As far as I have been able to find, it was the Clinton Admin that decided to do the data mining of all the communications they could get their hands on - faxes, email, phone, satellite, ground line transmission, and Internet. That happened in the 90s. Wasn't FISA passed in '78? So Clinton "broke the law?" LOL - Society of Subversion with another Scandal du Jour.

[Soylent Red]

Yeah Specter,

And ECHELON was set up in the days pre-9/11. So what was the ostensible purpose?

My personal guess is that Clinton saw some hot phone bank operator on a Jerry Lewis telethon and well...

[Tollhouse]

Echelon is a cold war system. The Clinton's hardly started it.

[SteveMG]

Congress has no oversight of the program.

The NSA (and its operations) doesn't exist without funding authorized by Congress.

As Justice Jackson pointed out in the Steel Mills case, the President as Commander in Chief is in charge of the army. But he has no army without the approval of Congress.

SMG

[maryrose]

Executive branch does have special powers. Keeping things classified is one of them. We need more statesmenlike men in our congress. Men of integrity and honor. I once heard Hillary say on MTP-well I have my partisan hat on! What is she talking about? As one of 2 democratic senators she represents a lot of New York State Republicans. Her main concern should be representing all the people of New York State. She doesn't need a partisan hat to do that she just needs to stop putting herself and her future ambition ahead of her constituents. If she intends to run for president then she should concentrate on that and let someone else represent her adopted state.

[maryrose]

Pofarmer and Soylent- Very good posts and I second the comic book idea-I love comics-especially super-hero ones.

[Specter]

Tollhouse,

Read the post - didn't say Clinton started it. Did say Clinton escalated it to the data mining status.

[topsecretk9]

Specter...you also didn't say The Clinton's either.

[Soylent Red]

Tollhouse:

ECHELON was expanded in 1993, at least two years after the fall of the Berlin Wall.

ECHELON was also used from '48-'93 as a mechanism for foreign intelligence gathering. That is, the individual listening stations focused on external populations.

And I still think it had something to do with Clinton trying to get a phone number.

[Marcel]

Examples of uses of phone call records not related to national security, should the information be "shared" outside the intelligence/law enforcement community:

COMPANIES/ORGANIZATIONS
- competitive information - customers, clients, suppliers
- records of employee contact with other prospective employers related to a possible job change
- evidence of employee activity in an organization that would be frowned upon by an employer (an activist group, or a non-traditional religious group)

INDIVIDUALS
- locating a person who does not wish to be located - such as an estranged spouse found through records of phone calls to someone close to them
- identifying/confirming personal "secrets" - medical, financial, sexual preferences - by identifying the other party on phone records

[clarice]

Well, in the hands of even the FBI or CIA I'd be concerned, but we can dream up scarey scenarios all night long of noremally unremarked upon data amassing operations that can be abused.

[Sue]

Drudge is running the headline "USA Today reprints old story from http://www.nytimes.com/2005/12/24/politics/24spy.html?ei=5090&en=016edb46b79bde83&ex=1293080400&pagewanted=print>NYTs?"

Take a peek and tell me what is new in the USA Today story? It is a hit job on Hayden.

[SteveMG]

Examples of uses of phone call records not related to national security,

According to the press accounts, the NSA records phone numbers or what is called "call-detail" records. Those are the numbers only.

Not the address of the person, or his or her name, or any other personal information.

Phone numbers. Just a large collection of numbers that by themselves, are meaningless.

SMG

[Soylent Red]

Marcel:

Some of that stuff can already be done without getting the NSA involved. Mostly all you need is a SSN or driver's license number.

Also, considering the relative spookiness of NSA, I'm sure they would be hesitant to reveal what they know, let alone means and methods.

Lot's of stuff to worry about, but I don't think that's one of them.

[Tollhouse]

Ah, see I still have this irrational tic when it comes to Clinton and his cronies.