The Devil Made Them Do It

Yesterday EJ Dionne wrote on the manner in which Evil George Bush forced Nancy Pelosi and the House Dems under her "leadership" to mimic cheap suitcases with the NSA/FISA bill.

Captain Ed was cryptic; K Drum was interesting but full of excuses.

Comments

[PeterUK]

Mimic?

[Cecil Turner]

There's an interesting comment over at Drum's that concludes:

Isn't that the only way Kevin's example can happen? About as likely as the ticking bomb scenario!

It's a perfect reductio ad absurdum argument. But instead of coming to the logical conclusion (one or more of the premises are wrong), it's used as an illustration of how spineless the Dem Congress must be (not that there isn't other empirical evidence of that).

The idea that the Administration might be telling the truth about the actual problem never seems to cross their minds. Here's what the LA Times got from unnamed sources:

But other officials said the ruling's reach was broader, affecting cases "where one end is foreign and you don't know where the other is" - meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States. [emphasis added]

Here's DNI McConnell :

FISA, based on the technology of 1978, specifically excluded from its scope certain types of international communications carried by radio and satellite. Today, many of those same communications are now transmitted by different means. This change in technology resulted in requiring, in a significant number of cases, that the Government seek court orders to monitor the communications of foreign persons physically located in foreign countries. To be clear -- the Intelligence Community was diverting scarce counterterrorism analysts who speak the languages and understand the cultures of adversaries to compiling lengthy court submissions to support probable cause findings on an individualized basis by the FISA Court in order to gather foreign intelligence from foreign terrorists located overseas. This is an unacceptable and irresponsible use of Intelligence Community resources. [emphasis added]

And here's the White House fact sheet:

However, as a result of revolutions in telecommunications technology since FISA was passed, FISA now often requires the Government to get a court order to collect information on terrorists and other foreign intelligence targets located overseas. [emphasis added]

Here's a possibility for you: suppose FISA was actually interpreted recently to mean the government must not intercept overseas communications unless it knew where both ends were . . . or got a warrant (which would be infeasible if they didn't know the particulars of the communications). Now how unlikely is such a scenario? And if an attack just happens to occur during recess? Is it possible that Congress was responding to a very real fear of a perfectly plausible attack, and moving to amend FISA to eliminate a requirement for warrants for overseas calls?

Nah, because that'd mean the Administration was telling the truth (and worse, that they were right). Must be spinelessness.

[Gmax]

Why read E J Dionne, hell the punchline is always the Republicans did it. Why not get some real pleasure from watching a lefty grind his teeth, wailing and rending about the Democrats and their failure to live up to expectations. If I am linking to the Nation and Andrew Cockburn, you know this is beyond kinda good or even lip smackin' good, this one is ecstacy!

Enjoy!

http://www.thenation.com/docprint.mhtml?i=20070827&s=cockburn>The Nation

[kim]

Alexander Cockburn is madly thrilling about global warming, too.
==================================

[hit and run]

TM:
K Drum was interesting but full of excuses.

I've heard a lot of euphamisms for that particular four letter word, but this was the first time I've seen "excuses" used for the job.

But thanks for keeping this a family friendly blog!

[Charlie (Colorado)]

Cheap suitcase?

[windansea]

I love the smell of burning nutroots in the morning.

[Semanticleo]

“When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director McConnell, including THE IMPORTANT ISSUE OF PROVIDING MEANINGFUL LIABILITY PROTECTION TO THOSE WHO ARE ALLEGED TO HAVE ASSISTED our Nation following the attacks of September 11, 2001.
http://www.whitehouse.gov/news/releases/2007/08/20070805.html

I love it. 'Alleged to have assisted' persons needing a get-out-of-jail card, and cans of anti-tort spray. Anything else, Mr President?

[kim]

Who knew the old gray mare was whoring it out with the Arab stud?
==========================================

[kim]

Now wait, The Captain's manner of nailing the logical inconsistency of the Democrats' stance on security is more reminiscent of Ahab's golden coin than it is Tales from the Crypt.
==============================

[clarice]

More parody-- Molletts' Ass on How the Kosniks won the mainstream:

http://search.live.com/results.aspx?FORM=MOCA10&q=the%20Washington%20Post&adlt=strict>Well they beat Lieberman, didn't they?

[kim]

Right, the feking Damaras!
=================

[Semanticleo]

Ahab's monomania and the 'gold coin'

http://www.cbo.gov/ftpdoc.cfm?index=8497&type=0

$602 billion would hire a hell of a lot of data-miners.

[kim]

You yield willfully to your merchants to rob you what you deny your soldiers to save your life.
==================

[Semanticleo]

"Nah, because that'd mean the Administration was telling the truth"

Not that there is other empirical evidence for that.

[kim]

Find a victim, Silly Semi.
================

[kim]

Dear Pussycat; why did I never think of this before over my semi hemi demitasse du cafe?
============================

[kim]

A plethora of nouvelle ridicule, I quiver; my cup overfloweth.
====================================

[Rick Ballard]

How am I supposed to react to evidence being provided that:

Vote Dem = Vote Dummb
?

"Ha, ha, sucker, told ya so!" seems rather cruel, given the limitations of the suckers party faithful. Let's see, "You fool, what did you expect?". No, still too cruel. Hmmm...

"It has ever been thus" That's better, especially when the appended "you moron" is subvocalized. A kinder, gentler (if much less honest) evocation which redirects the simpleton's wrath to its source. I suppose that adding "a clear mark of insanity is repeating identical actions with expectations of different outcomes" wouldn't hurt. It isn't as if it would be understood.

[Semanticleo]

Rubber-stamp Congress II is the problem here.

It's almost like the abused spouse who, while contemplating shit-canning the offender, decides to stay because the alternative might be worse.

They need an intervention.

[boris]

Cecil:

suppose FISA was actually interpreted recently to mean the government must not intercept overseas communications unless it knew where both ends were . . . or got a warrant (which would be infeasible if they didn't know the particulars of the communications). Now how unlikely is such a scenario?

Given apparent privacy concerns of the libs and dims on this issue, it is a likely scenario. I propose a Summary List of surveillance situations:

1. US to US ..... warrant required
   
2. US to Unknown .... warrant required
   
3. US to Foreign .... warrant required
   
4. Foreign to US ....no warrant required
   
5. Foreign to Unknown ....no warrant required
   
6. Foreign to Foreign ....no warrant required

Where the format “A to B” indicates A is the target, not necessarily the initiator. There seems to be some disagreement about whether (3) and (4) both should be "warrent required" or "no warrent required".

Technology has apparently moved most communication of interest into Summary List categories (2) and (5), US to unknown, and Foreign to unknown. Warrant requirement would depend on the identity (location) of the target (or packet search parameter if you prefer). Any restriction on (5), no matter how well intentioned, would be unacceptable and inconsistent with executive constitutional role wrt national security.

IMO Summary List categories (3) and (4) are used as red herrings. Even if a reasonable case could be made that (4) should require a warrant, the impact on (5) takes precedence. Practical concerns regarding effective national security argue against excessive concern on that point. It has repeatedly been pointed out that domestic surveillance of a crime boss or drug kingpin puts non target contacts in exactly the same privacy compromise. A principled consistent objection would apply to both situations. Instead, the domestic analogy is dismissed mechanically with no regrets for non target contacts.

My speculation is that the surveillance technology operates similar to a NSA version of communication google. In that situation the Summary List provides a simple and effective distinction. The NSA operative simply "spoogles" their target, a foreign terror suspect, and all of their communications are intercepted for analysis with no warrant required.

[Semanticleo]

1. US to US ..... warrant required
2. US to Unknown .... warrant required
3. US to Foreign .... warrant required
4. Foreign to US ....no warrant required
5. Foreign to Unknown ....no warrant required
6. Foreign to Foreign ....no warrant required

You really think guidelines are actually being followed? There is no evidence that they aren't, but that is part of the game, isn't it?

[boris]

You really think guidelines are actually being followed?

Everything appears to indicate that warrant based on target is the desired result. Blurring and obfuscation has been primarily from admin opposition on categories 3 and 4. There is more than a little public disclosures to suggest that 5 was put at risk, if not prohibited outright.

[clarice]

Projecting, Semantic--It's Hillary who eavesdrops and McDermott. It's Schumer whose staff illegally obtained the credit record of Steele. It's Bill who got everyone's FBI files unlawfully.

Now that your son is in the military, think like a sensible person--you really want the broadest net on the evildoers.

[Sue]

There is no evidence that they aren't, but that is part of the game, isn't it?

I swear, you get sillier and sillier. Ask for a rewrite.

[bubarooni]

I think one of the odder things that I read somewhere on this topic, was that some of the traffic they were trying to intercept was originating outside of the US and it's final destination was outside of the US, but passing thru facilities in the US or it's possesions.

Though the endpoint of the traffic was non-US, since it passed thru the US and scrutinized in the US, the same standards of US to Foreign were being applied.

Darn legal types.

When the revolution comes, first up against the wall...

(i extend my apologies to all legal types)

[PeterUK]

Septic Dear,
It is a kind of a rule that one does not piss pall about playing games with one's own side when there is an enemy trying, quite successfully to kill you.Yes, I know,that to you,Bush is the devil incarnate and when he is gone all will be well,unfortunately the Iranian,al Qaeda and assorted fanatics will still be trying ,quite successfully to kill Americans.
Now why don't all you good little liberals close your eyes,put your hands over your ears and let the grownups handle this,they will let you know when the unpleasantness has passed.

[Gmax]

Bub you paraphrase Shakespeare and apologize? It would not hurt for a few thousand attorneys to be a little nervous about the outcome in a revolution ( present company for the most part excepted of course ).

[bubarooni]

Gmax:

can we include j-schoolers too?

[RichatUF]

cleo squawks-

$602 billion would hire a hell of a lot of data-miners.

from his link...

Since September 2001, the Congress has appropriated $602 billion for military operations and other activities related to Iraq, Afghanistan, and the war on terrorism.

Your 2 cute by half cleo, and a little back of the envelope math, it breaks down to 8.5 billion a month. Data miners (and supercomputers) would be a line item in "other activities" and "war on terror".

[boris]

My suggestion to counter cleo's trust issue is technology based. It would not be possible (for example) to request "All communication with unknown foreign target who communicate with Nancy Pelosi".

The programming equivalent of that would be the "COME FROM" command. Computers provide a "GO TO" command but no "COME FROM" command.

In order to intercept foreign communication involving Nancy Pelosi it would be necessary to TARGET all Nancy Pelosi communications and after examination discard the domestic ones. Clearly that is not provided for in the new FISA modifications.

The clear intent appears to be TARGET a foreign suspect and everything that intercepts is fair game. Trying to read more into nailing down that capability may be understandable (given BDS) but unwarranted.

[cboldt]

First, we kill all the java-based captcha checks.

Judge: The way I read 1801(f)(2), the activity of acquiring wire communications from a switch located in the US, where the acquisition may include material to or from an untargeted person in the US, is electronic surveillance. In order for that electronic surveillance to proceed without a warrant, the electronic surveillance must fit the
criterion set forth in 1802. If you want to tap that switch for al Qaeda-to-US purposes, you need a warrant (see exclusion of 1801(a)(4) from 1802 warrantless).

Administration: We think you are wrong, judge. But we don't want to argue with you. We'll take it up
with the public and with Congress. If we don't acquire the wire communications from that switch located in the US, we will miss not only some communications where al Qaeda is contacting untargeted people in the US, we will also miss some foreign to foreign communications.

Listen up, people. The judge made a ruling that results in a need to obtain a warrant for foreign-to-foreign communications. That is nuts, you must act promptly to remedy this.

[Cecil Turner]

I propose a Summary List of surveillance situations:

1. US to US ..... warrant required
2. US to Unknown .... warrant required
3. US to Foreign .... warrant required
4. Foreign to US ....no warrant required
   
5. Foreign to Unknown ....no warrant required
6. Foreign to Foreign ....no warrant required

I suspect under the old regs (per the ruling a couple months ago) the law was construed to require a warrant in cases 1-5. Under the new "clarification" a warrant is required for 1-4, but not 5 and 6.

IMO Summary List categories (3) and (4) are used as red herrings. Even if a reasonable case could be made that (4) should require a warrant, the impact on (5) takes precedence.

Concur. 5 is the one that has an impact on national security, and none of the others are remotely comparable. Unintended snooping on US Persons can be handled through minimization procedures. I'd also add a "7. Unknown to Unknown" which would have required a warrant under a strict interpretation . . . but wouldn't under the current update.

Judge: The way I read 1801(f)(2), the activity of acquiring wire communications from a switch located in the US, where the acquisition may include material to or from an untargeted person in the US, is electronic surveillance.

Exactly. Therefore, if you don't know both ends of the surveillance, it required a warrant. (Until the clarification.)

[RichatUF]

boris-

Blurring and obfuscation has been primarily from admin opposition on categories 3 and 4.

Your 3 and 4 sum up the situation quite well in the investigation of the East Africa cell and the removal of the surveillance in mid-to-late 1997. (I think both Wadith el-Hage and Ali Mohamad would have been caught up: US citizens, living/traveling abroad (except Mohamad he live in the US/traveled abroad), communicating with identified surveillance targets overseas and in the US)

The book "The Cell" has a decent write up (a bit thin) about some of the back story on the East Africa bombings.

[boris]

Cecil, agree about (7) Unknown to Unknown, but it doesn't derive from my technology speculation. You can't google unknown.

I think the new FISA allows (4) Foreign to US without warrant but subjects innocent content to minimization. I don't quite trust my legal reading enough to register a disagreement though.

[RichatUF]

cboldt-

This is a bit off topic, but on a thread a couple days back you had mentioned there was a case in the 9th Circuit that was to be ruled on (I think Thursday), re: warrantless (I think it was between a charity and the charity's US based lawyers) and one of the documents that was released for discovery (and shouldn't have been) was a surveillance call log of the charity.

Anyway was wondering if you have heard anything further?

[cboldt]

I think you are conflating two separate cases.

Judge Walker in the The ND of CA has a consolidated set of cases where various parties are arguing on both, the TSP and on the call-log or data-mining aspect of NSA activities. In that consolidated case, there was to have been a hearing on Thursday - that has been postponed. There is recent action in that case, the radical left-wing CCR filed (yesterday) for leave to file an amended complaint that attacks the constitutionality of S.1927.

The case where a charity obtained hard evidence of being under surveillance by the NSA is a different case, and I don't off the top of my head, have a handle on the procedural stance on that. I do recall that the charity is going to lose the underlying case regardless -- they and their sister agencies have been on UN and Treasury Department lists for reasons independent of evidence obtained in the call monitoring.

[TerryeL]

Cleo:

Oh come on, if Bush had a D behind his name none of this would even be an issue. I remember there was a little squaking when Clinton ok'd the Echelon program, but that lasted for all of about 15 minutes.

This is just something for people to bitch about and when push came to shove they folded because they knew they were full of it.

As for what things costs, look at Medicare and Medicaid. I work in health care and I know providers who charge the system thousands of dollars for a wheelchair because they know they can. That is waste and far from being upset about it the Democrats want to spend even more. So much for crime not paying.

[PeterUK]

Terrye,
On the subject of waste in health services generally,the NHS throws away thousands of walking aids, that typically only need a new rubber foot costing no more than $2 or so.Government institutions are notorious for being an easy touch for suppliers.

[maryerose]

cleo:
We need the best possible offense{this program} and defense in our wonderful soldiers. If you have nothing to hide why worry about surveillance?

[TerryeL]

Peter:

I have a client who has a $7,000 shower chair. I have seen the government spend $80 on a sliding board for a quad or hundreds for a seat cushion. It is just ridiculous, but by God when it comes to the military there are no end to people ready to bitch about Halliburton. Now if Cheney had run a chain of nursing homes who ripped off Medicaid, that would have been ok fine.

[PeterUK]

The al Qaeda camps in the badlands of Pakistan have emptied,to where no one know.Perhaps one will phone home,privacy guaranteed.

[PeterUK]

A large number of websites supporting Jihad and Terror are hosted in the US or other Western countries. "You never call,you never write".

[RichatUF]

Thanks cboldt-

I'm take a look this evening when I've got more time to get myself straightened out.

PeterUK-

There was also this bombing in Iraq today. If you recall, Massoud was killed about 2 days before 9/11.

It could be an Iranian countersurge operation in which the Iranian backed Shiite elements in the south and an al Qeada lead expeditionary force (which would transit through Iran), force the quick retreat of British forces in the South (on the Hezebollah-Lebanon 1980's model used against the US and French). This would relieve pressure on Baghdad based assets and probably force US assets from the north to the south.

[cboldt]

-- I'm take a look this evening ... --

If it's not much bother, please leave a post if you find where I commented about the charity case. I've been leaving droppings all over the place (e.g., TNH, Volokh, Balkin, here, there), and can't find the post where I cited specifics about the charity case and opined "it's not a good one for knocking down NSA surveillance." Most people will agree that the defendant charity should have been under surveillance.

[Rick Ballard]

If you read between the lines in this article you can come up with the idea that a FISC judge dragging both his left feet might have wound up with a little blood on his hands. The Copperheads only kill Americans in the general sense - they know better than to kill 'specific' Americans and there are pictures of Fouty and Jimenez. They won't chance "Wanted for the Murder of" posters with victim's pictures.

I'm amazed that Dionne would ever question the cowardice of Copperhead convictions.

[windansea]

Lol

Feinstein defected and sent the Southwick confirmation forward/

The Homosexual Rights Foundation is upset.

[PeterUK]

Mr Ballard,
Don't be unreasonable,how are you going to lose to schedule if you keep nit picking at the majesty of the law?
This isn't about people,it's about making sure Jimmy Carter's IED is in place.

[boris]

they know better than to kill 'specific' Americans and there are pictures of Fouty and Jimenez

Would it be vile and insensitive to suggest this incident would make an excellent campaign ad for somebody?

[centralcal]

Completely OT: But....

It seems the Army has responded to inquiries from Weekly Standard. Little Scotty (no longer 24 years old, per TNR, but mysteriously now 23 years old - geez can't they get anything right?) has full communication rights just like the other soldiers. However, it seems he does not want to talk to the media (traditional or non-traditional). This is the best laugh I have had over this sad, sorry affair.

What fairytales will TNR concoct now, pray tell? Talk about looking worse than foolish!

[cboldt]

RichatUF: Nevermind. I found it (bless Google). Here's "me" on July 31, 2007.

The fact pattern / timeline of the al-Haramain charities investigations make it so NSA intercepts, even purely domestic ones, are apt to be found to be reasonable and based on probable cause other than bootstrapping suspicion from information obtained during a fishing expedition.

[Rick Ballard]

Centralcal,

Latrine Specialist (E1) Beauchamp will be presented by TNR as "being under tremendous pressure" which prevents him from Blah, blah, blah, etc. I'm still betting on Foer getting the ax - he really does deserve it, no matter how red his diapers were.

Peter,

FISA has to be understood in tandem with the Church committee's gutting of the CIA. The excuse was laying the shade of J. Edgar but the intent was the protection of seditionists and traitors. To understand the Dems true level of concern for "privacy" issues one need only look at Schumer's dumpster diving team's abuse of Steele's finance records or The Beast's connivance with the IRS in going after political enemies via audit.

Those are "real" instances, not the imaginings of delusional fools suffering from advanced BDS. Debate over how best to "refine" the Seditionist Protection Act might be better spent on discussing increasing the penalties for actual abuse of existing laws outside of an act that should either be repealed in toto or challenged on a constitutional basis as an unwarranted intrusion on Article II powers of the Executive.

[centralcal]

Rick:

You know, at first I didn't really see why Foer should resign and I kinda felt sorry for him. Well, that truly was "at first..."

Now, however, I am convinced that it is deeper than Franklin Foer. "The Editors" who keep pumping out the crappy statements indicate more than merely Foer. I think Foer, Zengerle and who knows else all should get the ax. As for poor Elspeth - if she has a Mom, they need to have a heart to hear talk. They can't fire Elspeth right away (will have to wait a bit, otherwise it would seem too unseemly). Good grief! The New Republic sure has shown what they are made of, have they not?

[PeterUK]

Rich,
It certainly smells like something is going down,as long as nobodies rights and privacy if violated.I'm sure your judges would uphold Sharia just a impartially.

[PeterUK]

Rick,
The whole of the Church Reports are available on DVD.

[narciso]

One dead governor in Diwaniya province, even if he was Badr; does not equal
Massoud. A successful attack on Sistani
would be a closer parallel. Roggio's story
does beg the question; where are they and why haven't we hit them yet. The truth is
the Salafi/Wahhabi recruits don't follow
NCLB; they succeed or they get blown up
no half measures. This does point up the key difference between Iraq & Afghanistan;
all the real targets would be madrassas,
hawalas in bazaar that include internet cafes, etc; all the targets that are off
limits. That alert hit pretty close down here in South Florida; the former home of Jose Padi. . .Abdullah Muhajir,Adnan El Shukrijumah and 12 0f the 19 hijackers.On another note, Douthat of the Atlantic, is making a parallel between Libby and Beauchamp; who's the Armitage, you ask.
On the next sane link with Yglesias, he
argues that it's perfectly obvious that
retreat is the right position, nothing
can possibly go wrong, unless we stay. He also thinks Wesley Clark's treating terrorists like soldiers is a jim dandy
idea.
the

[anduril]

Rick, I read that article and was disgusted--at the Administration and its policies. When I first heard about the revision to FISA I thought this might be a big victory for Bush, but it now appears (read the WSJ article on Reason and Wiretaps) that in fact Bush has conceded much of the constitutional argument for the executive's war powers as commander in chief with regard to intel gathering. Very sad and frustrating.

[Gmax]

So the tremendous fact checking Franklin Foer lied to us about STB being restricted to base without phone access. Dont tell me that the spuperb fact checker forgot to call the Army and ask if he was on restriction before he reported that he was? This is getting funny in a very pathetic way. Do they check anything they report? Wow. The egg is running down their face onto their shirt. Quick better rip off a few rounds about the ideological bent of the people criticizing the blind man trying to make change for a $20.

[Gmax]

So the tremendous fact checking Franklin Foer lied to us about STB being restricted to base without phone access. Dont tell me that the spuperb fact checker forgot to call the Army and ask if he was on restriction before he reported that he was? This is getting funny in a very pathetic way. Do they check anything they report? Wow. The egg is running down their face onto their shirt. Quick better rip off a few rounds about the ideological bent of the people criticizing the blind man trying to make change for a $20.

[Cecil Turner]

If you read between the lines in this article you can come up with the idea that a FISC judge dragging both his left feet might have wound up with a little blood on his hands.

I think the bigger concern is that we're missing intel that will remain unknown until long after it bit us. Another in the list of data points suggesting foreign intercepts were the main issue (from the Senate discussions, Sen Bond, H/T cboldt):

We understand that the FISA court judges urgently support a more appropriate alignment of the court's caseload and jurisdiction away from the focus on non-U.S. persons operating outside of the United States. The judges have clearly expressed both frustration with the fact that so much of their docket is consumed by applications that focus on foreign targets and involve minimal privacy interests of Americans. [emphasis added]

Assuming that's accurate, the fact that such applications were prevalent is a good indicator of a broken system.

I admit coming to this from an operator's perspective, but I think the legal issues are overblown. In the first place, the encroachment on the Executive's wartime signals intercept authority by Congress, while arguably Constitutional, sets a very bad precedent. To the extent it hampers the Executive's ability to wage successful war, it's arguably unconsitutional. In the second, the insertion of the Judiciary into an area in which they have little expertise or authority represents an overreach by Congress to the detriment of the Executive. But more importantly, it doesn't appear to work. And for all the complaints about Executive overreach, the recent debates are rollbacks of authority previously exercised with little or no interference. And for all the carping, none but the Executive appear to be trying to reach a workable system . . . only obstructing.

[Beauchamp] has full communication rights just like the other soldiers.

Their previous story was oxymoronic anyway. They said he couldn't talk except to family members, but his next-of-kin works for 'em. At this point, TNR's version is presumed fiction until proven otherwise.

[Gmax]

The problem being that TNR is not very good fiction. No for fiction, you have to go to a place like Media Matters or even better Raw Story. Now that is usually served up steaming hot fiction. You want some more?

[Sideshow Joe]

Reasonable = no warrant.

I have nothing to hide, do you?

[Rick Ballard]

Cecil,

Politically, doesn't it still come down to fear of blood on the Dems hands as the actual rationale for folding? If Roggio is getting "great concern" comments out of US military and intelligence people, one might assume that the Select Intelligence Committees have been briefed.

The whole change in the political climate over the past month is rather curious.

[Sara]

Romney wins Iowa Straw Poll with 31% of the vote. Huckabee finishes 2nd with 18.1% and Brownback 3rd with 15.3%.

[Sue]

Rick,

Over at Hot Air they are discussing a report that the terrorists camps in Wazaristan have emptied out. And they don't know where they went. It could be the intelligence briefings scared the shit out of them. Or not. Who knows?

[Gmax]

Something about that terrorist camp story does not ring right. We knew about an AQ terrorist camp and everybody in it leave and we dont know to where? Come on the satellite and drones had to have been in the air noting every breath and fart. We must know, so why the report? A tip to Musharraf that he better check his castle guards?

[clarice]

Oh, gosh the WS blog is RICH:
"
His command's investigation is complete. At this time, there is no formal what we call Uniform Code of Military Justice (UCMJ) actions being taken. However, there are other Administrative actions or what we call Non-Judicial Punishment that can be taken if the command deems appropriate. These are again administrative in nature and as such are not releasable to the public by law.

We are not stonewalling anyone. There are official statements that are out there are on the record from several of us and nothing has changed.

We are not preventing him from speaking to TNR or anyone. He has full access to the Morale Welfare and Recreation phones that all the other members of the unit are free to use. It is my understanding that he has been informed of the requests to speak to various members of the media, both traditional and non-traditional and has declined. That is his right.

We will not nor can we force a Soldier to talk to the media or his family or anyone really for that matter in these types of issues.

We fully understand the issues on this. What everyone must understand is that we will not breach the rights of the Soldier and this is where this is at this point."

I have Foer out the door Monday morning.

[Gmax]

Factchecking Franky Foer Falls

Headline in the WaPO.

[Gmax]

Factcheckin' Franky Foer Falls FINALLY

amended headline

[Sara]

Clarice, I see da judge is trying to weasel out on paying atty's fees for the dry cleaners.

Also, I highlighted you separately and the women of JOM as a group in this post. I hope you and all the women here are okay with this.

[clarice]

Thnx , Sara, I'll go take a peek..I can't imagine being offended by anything you post.

[clarice]

Well, I peeked. and I am greatly flattered, Sara. Thnx for generously including me in your honor roll.

[Sara]

You are very welcome. You and all the women here deserve it. I am continually impressed by the free flow here at JOM and guys you are all pretty hot too.

[JM Hanes]

Here's a juxtaposition for your amusement.

First, via Jules Crittenden, I learned that:
Democrats Say Leaving Iraq May Take Years.

Via Hot Air, the NYTimes pivots on a dime:
How a ‘Good War’ in Afghanistan Went Bad

[PeterUK]

The Fabu;ous fact-checking Franklin Foer finally finished.
FFfffffffff!

[PeterUK]

Rick.
From Wiki,the usual caveats.
"A series of troubling revelations started to appear in the press concerning intelligence activities. First came the revelations of Christopher Pyle in January 1970 of the U.S. Army's spying on the civilian population [1] and Sam Ervin's Senate investigations that resulted. The dam broke on 22 December 1974, when The New York Times published a lengthy article by Seymour Hersh detailing operations engaged in by the CIA over the years that had been dubbed the "family jewels". Covert action programs involving assassination attempts against foreign leaders and covert attempts to subvert foreign governments were reported for the first time. In addition, the article discussed efforts by intelligence agencies to collect information on the political activities of US citizens.

These revelations convinced many Senators and Representatives that the Congress itself had been too lax, trusting, and naive in carrying out its oversight responsibilities."

Seems like the NYT and Mr Smersh were some of the impetus behind this.
Free speach was a boon to the KGB.

[Jane]

Sara,

Nice rebuttal. From my perspective people like Goodman who rue the lack of woman in any field are about 2 decades too late. That fight has long since been won, and if Goodman doesn't know it she needs spend some time looking in the mirror.

[cboldt]

The "foreign-to-foreign" issue was expressed over a year ago ...

Lt. Keith Alexander Prepared Statement before Senate Judiciary Committee July 26, 2006

I am pleased to be here today to provide testimony in support of the National Security Surveillance Act of 2006 (S. 2453), which would amend the Foreign Intelligence Surveillance Act of 1978 ...

Today, the U.S. Government is often required by the terms of the statute to make a constitutionally based showing of probable cause in order to target for surveillance the communications of a foreign person overseas. Frequently, though by no means always, that person's communications are with another foreign person overseas.

The government knew that a year ago. It was a stroke of genius to submit to a program that was known to have a "foreign-to-foreign warrant" issue embedded in it, in order to provoke a statutory change.

[boris]

Did the NSSA of 2006 intend to remove that restriction which was reimposed recently?

[Cecil Turner]

The government knew that a year ago.

What they couldn't have known a year ago was that there would be a new, more restrictive ruling. And the stories on that one are fairly consistent:

Sen. Kit Bond (R-Mo) declined to say if such a ruling had come down or -- if one had -- what it said. But Bond did say that some significant action -- which we believe most likely is a ruling by that court -- placed a new and severe limitation on US intelligence agencies’ gathering of electronic intelligence. The new burden -- whatever its source -- was severe enough to propel Adm. Mike McConnell, the Director of National Intelligence, to come to the Senate on April 27 and ask that FISA be amended quickly to remove it. [emphasis added]

The WaPo reported the decision was in January, 07, and gave a bit more detail:

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision. [emphasis added]

Looks to me like the principle hasn't changed: FISA requires a warrant (or the 1802 procedures) when intercepting overseas communications with a US Person. It also requires a warrant when intercepting communications to a party in the US if the intercept happens in the US. I have no way of knowing what the new ruling entails, but I suspect it's something like: "intercepts [in the US] are electronic surveillance if the communications could go to a person in the US" . . . which would essentially require one for every intercept at a US switch.

But in any event, an Administration red herring is hard to swallow [heh]. Besides the several stories all claiming a new burdensome restriction (and the several pleas from DNI), the discussion shows even the Dems acknowledge an actual problem. Something happened early this year to change the equation, and Occam's razor does not suggest a deep Administration master plan.

[cboldt]

-- Did the NSSA of 2006 intend to remove that restriction which was reimposed recently? --

Your question is ambiguous. Rather than attempt to answer it, I'll just make additional statements.

FISA 1801(f)(2) was the same in 2006 as it was in 2007, and indeed, as it was in 1978, and remains today (with one addition, being the carve-out for computer trespassers being added in 2001). It is this clause that results in inability to obtain foreign-to-foreign communications via facilities located in the US. The Director-NSA interpreted that clause, in 2006, the same way that some FISA judge is alleged to have "newly" and "wrongly" interpreted that clause in 2007.

Specter's S.2453 (and S.3931) would have redefined "electronic surveillance" in the same way that Heather Wilson's H.R.5825 would have.

[Poppy]

So what the Democrats are basically saying is, "Look, I represent a bunch of really stupid ignorant fools who are easily tricked by a very, very dumb President. Therefore I need to vote for something that I personally believe is unconstitutional and violate my oath to uphold the Constitution."

[boris]

does not suggest a deep Administration master plan

No doubt some consider it an amBush.

The claim would be that W could simply defy the judicial (like he always does anyway) and not publicly shift the consequences of congressional and judicial irresponsibility onto their own shoulders. Unfair unfair!

I welcome waging the battle on this turf. Even if the public doesn't get the picture yet, history will.

[Cecil Turner]

The Director-NSA interpreted that clause, in 2006, the same way that some FISA judge is alleged to have "newly" and "wrongly" interpreted that clause in 2007.

Sorry, but that doesn't follow. LTG Alexander said they were "often" required to show probable cause in cases where the target was overseas. Every report of the recent decision says it levies a new and more burdensome requirement. Either they're all wrong, or your claim that the interpretations are identical is.

[Poppy]

I think its time that the press and the Republicans ask the Democrats some really basic questions.

The left have told us on various occasions that we don't have enough troops in Afghanistan and in Iraq (In years past) and that we really need to go into Pakistan and attack people there.

At the same time they tell us using more force and killing more people and invading more countries just makes our enemies madder and creates MORE terrorists and terrorism and not less.

So which is it.

[boris]

FISA 1801(f)(2) was the same in 2006 as it was in 2007, and indeed, as it was in 1978, and remains today

Even if f(2) has consistently been the source of problems does not necessarily mean that all problems were predictible or anticipated. NSSA of 2006 may have addressed a problem with a workaround that some judge recently found less than persuasive.

Doesn't a new proviso address the issue?

nothing in this definition shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States [foreign target]

The effect should resolve to something like this:

1801 Definition (f) “Electronic surveillance” [requiring warrant] means

(1) Target is US person inside the US
(2) Target is inside the US (with exception)
(3) Both parties are in US (no exception)
(4) Inside US, public expectation of privacy, no specific target

IOW implement a target based requirement for warrants.

[cboldt]

Before S.1927, FISA and the TSP were incompatible.

When the TSP was outside of the ambit of the FISA court, the FISA court had no means to render an order one way or the other.

The administration decided, in January 2007, to bring something in the ambit of the FISA court. At which point it is pretty funny when it feigns surprise and outrage at the FISA court having exactly the same conclusion the administration reached half a year earlier, regarding the incompatibility between FISA and necessary and prudent surveillance.

"New?" Sure. It was new for the administration to submit the TSP or some variation to the FISA court.

So, if S.1927 or similar hadn't passed, the administration could have reverted to the pre-January 2007 status. Don't submit the activity to the court in the first place. Either that or fail to undertake prudent surveillance.

[Gmax]

Poppy

Stop trying to bring logic into this discussion. If an implement, any one will do, is available to bludgeon Bush, its fair game. Does not mean you can not be for something quite similar as long as the right Party is running the show.

[cboldt]

-- NSSA of 2006 may have addressed a problem with a workaround that some judge recently found less than persuasive. --

Indubitably. NSSA of 2006 was never brought up for consideration in Congress, let alone passed into law. Whatever "workaround" was contained in NSSA of 2006 was nothing more than a debate without the force of law.

The judge, OTOH, has to take the law as he finds it, not the law he wishes he had.

[boris]

When the TSP was outside of the ambit of the FISA court, the FISA court had no means to render an order one way or the other.

Rather than "disagree" I will propose an alternate interpretataion.

TSP was consistent with the FISC sealed case. The admin expected a sealed case consistency wrt FISA. They were proven wrong.

[boris]

I do recall debate hereabout that the administration should just submit to FISA because there was no "need" to break the law since FISA was eminently workable as it stood. Of course many of those same voices had a rahter negative POV regarding the FISC sealed case.

I do not claim the admin "had no idea" this would arise. A case can easily be made that addressing the issue properly had to be done sooner or later. The right venue for that is the political arena and timing is an important element of that arena.

Did the administration manipulate the timing to their advantage? I hope so.

[boris]

in fact Bush has conceded much of the constitutional argument for the executive's war powers as commander in chief with regard to intel gathering

Anduril, cboldt and I have expressed somewhat similar points regarding executive vs judicial & congressional.

ISTM there is a bigger picture where the constitution enables (arms) the executive to battle theses issues in a political arena. Instead of waving the constitution in their faces and saying "take off eh" the strategery is to challange and engage them in that arena.

That could subject national security to additional risk, but then how better to illustrate the risk congress and judical implemented with FISA? Let the dims squawk about the amBush. Keep it in the news by all means.

[Cecil Turner]

Did the administration manipulate the timing to their advantage? I hope so.

I doubt that, since the legal machinations are apparently impeding their acquisition attempts. I'm also having a hard time getting a good picture on what happened. Per the LA Times, the contentious ruling was the second, and not a programmatic one:

One official said the issue centered on a ruling in which a FISA court judge rejected a government application for a "basket warrant" — a term that refers to court approval for surveillance activity encompassing multiple targets, rather than warrants issued on a case-by-case basis for surveillance of specific terrorism suspects.

"One FISA judge approved this, and then a second FISA judge didn't," the official said, speaking on condition of anonymity because the activities of the FISA court are classified.

The precise effect of the ruling is unclear, but a second official said that it "reduced the amount of intelligence we were collecting" on overseas terrorism suspects. [emphasis added]

Add that in with AG Gonzales's letter, which claimed they had a favorable ruling on the program aspects on January 10th), and would submit all further requests through the FISA process. That doesn't seem to be the same thing, though it's impossible to tell if it's just garbled in transmission (and other sources claim or imply the Jan 10th ruling was the problem). But the "emergency" was apparently first asserted by DNI McConnell in April, and Rep Boehner claimed the ruling was more recent:

"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told Fox News anchor Neil Cavuto in a Tuesday interview. [emphasis added]

That's pretty thin, but overall seems to support the conclusion that the program was submitted to FISC in January and again (in early April?) and on the second occasion was rejected.

Regardless, I'm not sure the nefarious Administration motives, real or imagined, matters much in the overall analysis. Either the current FISA procedures are workable (meaning they allow for the reasonable interception of national security information) or they are not. If not, they need to be reformed. And there seems to be little substantive debate on that point.

No doubt some consider it an amBush.

Did I start this? I feel so dirty.

[boris]

I would not imply motive either. Manipulation for advantage in a situation forced upon them by political opposition perhaps. Two on this thread seem to suggest little or no force to submit to FISA in the first place, yet the political force applied in response is clearly apparent.

[Pofarmer]

The judge, OTOH, has to take the law as he finds it, not the law he wishes he had.

Yeah, right. Sure looks like the judge can read in or out whatever the judge wants on an awful lot of occasions.

[anduril]

cboldt, thanks for pointing out Heather Wilson's suggested language to cut through the FISA mess. I believe it would at least be workable, compared to the present "system," although it would remain to be seen how agents of powers within the US (whether permanently or in transit) would be treated--that might depend on the definition of an expectation of privacy. If that could be resolved you might find a FISA that even principled conservatives could support.

[clarice]

OT:"For those counting, this is at least the sixth confirmation of this. ABC News led the way with three reports from captured AQ and captured IIS guys immediately after the invasion. (h/t Amy Proctor)

The political rhetoric says that these camps were not in Saddam's Iraq but in the Kurdish north. What that ignores is that the camps were certainly not at all allied with the Kurds, but against them, and were acting with Saddam's help.

Politicians often try to point to Senate Intelligence Committee reports claiming there were no ties etc., but these reports are:

1. Political reports not intelligence reports.

2. The Senate Intelligence Committee is not an intelligence agency any more than Feith's Office of Special Plans was an intelligence agency

3. The claims of no ties in the Senate Intelligence Committee reports were based on a single interim DIA officer's testimony-not an intelligence investigation and subsequent conclusions

4. believe it or not....there has NEVER been a conclusive investigation done by ANY of the 16 intel agencies into whether or not there were AQ camps in Iraq prior to the invasion (read the political reports carefully, and you'll see this)

For a complete listing of the govt reports on AQ ties to Saddam's regime, please read this

My point here is that no one has really looked into this matter, but politicians have been happy to cherry pick it and push a false idea until it's accepted.

Every few months there's more and more evidence leaking out that Saddam's regime had closer ties with Al Queda than the Germans and Italians did with the Japanese (think about it, were there Japanese training camps in Bavaria and Tuscany? Were German and Italian troops in training camps in Japanese held Indochina?

By and large the news media let the world down by not adequately looking into either the Bush Administrations or the UN claims about WMD in Saddam's Iraq, and now they're doing it again by not (FIVE YEARS LATER) examining a question that's only been reported on by politicians and not by intelligence agents. So the American people and the world are left to look at the videos themselves as ABC, NBC, CBS, even Fox just won't report on the connection and adequately describe it. We're letting politicians, (professional lawyers; trained, professional liars and spinmeisters) tell us what is real and what is not depending more on their political needs than on what is fact. Why does the media parrot the political distortions rather than the truth?"

http://www.floppingaces.net/2007/08/12/yet-another-captured-alqaeda-m/

[PeterUK]

"I welcome waging the battle on this turf. Even if the public doesn't get the picture yet, history will."

First you have to make sure there is going to be a history.

[Ranger]

The judge, OTOH, has to take the law as he finds it, not the law he wishes he had.

The FISA Court of Review clearly shredded that cannard. They found that, in fact, the FISA judges had been ruling based on the law as they wish they had it, and deliberately ignoring the law as written by congress.

If there was any manipulation it was the White House agreeing to congressional demands for FISA oversite, knowing that the FISA judges wouldn't be able to contain themselves in the face of a chance at judicial over-reach and would at some point hand the administration a ruling that they could use to get the legilsation they wanted out of congress. Pretty sneeky relying on the FISA judges' bruised feelings to get the better of their judicial reasoning.