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August 11, 2007

Comments

clarice

You may be right, ranger. I have always believed that Bush is a rope a dope master. He gave Pelosi and Reid enough rope to sink their party and may well have decided to do the same thing to the FISAniks.

Semanticleo

Is this the POV we need to swallow in order to justify our survival, or do we need to justify our survival as the only good outcome? Is that the chasm between Left and Right? Is survival of a culture the highest good, even when the Foundation of the culture has been compromised. If so, what is it that has survived?


"We look upon authority too often and focus over and over again, for 30 or 40 or 50 years, as if there is something wrong with authority. We see only the oppressive side of authority. Maybe it comes out of our history and our background. What we don't see is that freedom is not a concept in which people can do anything they want, be anything they can be. FREEDOM IS ABOUT AUTHORITY. FREEDOM IS ABOUT THE WILLINGNESS OF EVERY SINGLE HUMAN BEING TO CEDE TO LAWFUL AUTHORITY A GREAT DEAL OF DISCRETION ABOUT WHAT YOU DO." (EMPHASIS MINE)

---RUDY G.-----

http://query.nytimes.com/gst/fullpage.html?res=9A01E2D9173CF933A15750C0A962958260

Sara

OT - Clarice: Some time after midnight last night, my missing Navy retirement checks got deposited to my bank account. These were the checks that should have been deposited on July 1st and August 1st. They never did respond to all my calls and letters, but apparently they are now convinced that I still exist and I'm not dead. Per your suggestion, I contacted Congressman Issa's office and copied to Defense Secy. Gates (figured if I was going to drop names, might as well go to the top). All I know is after 2 1/2 months on this go-round and previously 2 months on the last one to get the May and June checks, twice having to prove I'm alive and kicking, I got my money one week after very firmly threatening to contact my Congressman. Whether Issa's office made a call, I don't know, but thanks for the suggestion. It is very scary to try to tough it out without your main source of income.

Cecil Turner

Well, shoulda read this one earlier:

Officials say one judge issued a ruling in January that allowed the administration to continue the program under the court’s supervision.

A ruling a month or two later — the judge who made it and its exact timing are not clear — restricted the government’s ability to intercept foreign-to-foreign communications passing through telecommunication “switches” on American soil. [emphasis added]

Read the whole thing. As far as I'm concerned, that disproves cboldt's contention above about submitting the program in January expecting it to be rejected . . . and points up the peril in putting critical national security decisions in front of a pool of judges. This ain't no way to run a railroad, and IMO the problems are a direct result of Congressional (and related Judicial) meddling.

clarice

Sara, that is the one thing more congressional office are very good at--acting as ombudsmen for their constituents with respect to govt agencis. G;ad things worked out.

clarice

***thing moST congressional officeS

PeterUK

"Is this the POV we need to swallow in order to justify our survival, or do we need to justify our survival as the only good outcome? Is that the chasm between Left and Right? Is survival of a culture the highest good, even when the Foundation of the culture has been compromised. If so, what is it that has survived?"

Without survival there is nothing,the particular foe you have now wants to destroy your culture root and branch.
It would appear that the "chasm between right and left" is the latter is trying to commit suicide.Feel free, but do FO and do it somewhere else.

Patrick R. Sullivan

OT-There's something rotten in the State of Denmark, when a respected historian, using Danish Intelligence (PET) archives, identifies the Soviet Union's #1 Agent of Influence--journalist Jørgen Dragsdahl.

And finds himself the one in disgrace:

When the Danish daily Jyllands-Posten...repeated the PET's assessment of Dragsdahl in a lengthy article published on January 14, 2007, all hell broke loose. The author was Denmark's preeminent specialist on Soviet and Cold War history, Professor Bent Jensen from Odense University.

....Nobody accuses Dragsdahl of having been a spy. As Danish intelligence saw it, the KGB considered him a far more useful asset as an agent of influence--someone who was well placed to disseminate Soviet propaganda and influence public as well as elite opinion. Not only was he an exceptionally well-informed journalist with unique access to Soviet sources, he was even appointed a member of the official Commission on Security and Disarmament (SNU).

As former KGB general Oleg Kalugin explained to Jyllands-Posten's then-correspondent Flemming Rose some years ago: During the latter phase of the Cold War in the 1970s and '80s, Soviet intelligence was well aware that it could not defeat the West by means of war. For that reason agents of influence assumed an important role in the continued conflict. "Disinformation, mendacious propaganda and ideological undermining of the West . . . [became] the decisive front in the struggle for communism's global victory."

Given this background one would have assumed that Jensen's exposé of the KGB's "No. 1" in Denmark would have led to condemnation of Dragsdahl. But the opposite happened. Instead, it was Jensen who was roundly condemned by large parts of the press for having leveled unfounded accusations against such a man as Dragsdahl. Several well-known historians, who had not seen the documents Bent Jensen had had access to, denounced him for blackening the reputation of Jørgen Dragsdahl, who quickly established himself as a victim of Bent Jensen's evil machinations. The leading opposition daily Politiken went so far as to accuse Jensen of harming state security merely by quoting the KGB's and PET's own characterization of Dragsdahl.

A few days after the publication of Jensen's article in Jyllands-Posten, the PET announced that it would investigate whether Jensen had violated the confidentiality rules governing his access to the archives. This despite the fact that the professor had sent his article to PET four months before it was published and asked if the intelligence service thought he had violated his terms of access. Despite two reminders, he got no answer until a couple of days before the article was to go to print. The PET asked him to remove a number of observations from the manuscript, and Jensen obliged. This did not mollify the service, however. On the contrary, it let it be known that Bent Jensen's case might be handed over to the police for criminal prosecution.

In the event, the PET had to admit there wasn't much to pin its case on. Nevertheless, to this day it maintains that Jensen had no right to quote its own evaluation of Dragsdahl from a declassified document, and issued a warning: If the professor were to persist in exposing persons and facts it did not want exposed, the PET would come down hard on him.

kim

I'd give a nickel to know the name of the judge who issued the adverse ruling. Couldn't a been W, could it?
===============

cboldt

-- that disproves cboldt's contention above about submitting the program in January expecting it to be rejected . . . and points up the peril in putting critical national security decisions in front of a pool of judges. --

Everybody can see the administration saying, in 2006, that under FISA, a warrant is required to acquire certain communications. If a program with the same quality of surveillance (meaning gathering information from a US location) is submitted to the FISA Court, what ruling do you figure these same people thought the Court would make?

The reason the government wasn't restricted by the Court (on TSP) before January 2007, is that the government hadn't put the TSP in front of the FISA court before then. So yeah, a court order on the TSP (or similar) wouldn't come before then.

The ruling isn't "more restrictive" in the sense that it's imposing a new requirement. It might be "more restrictive" in the sense that it's being applied to the TSP, where it hadn't been applied before.

At any rate, regardless of imputing "expectation" to anybody in the administration (about a ruling, or about provoking Congress to amend FISA), the NSA noted in 2006, that certain foreign-to-foreign intercepts, if put before the FISA court, required a warrant -- hence it isn't news to the administration in April of this year that certain foreign-to-foreign intercepts, when put before the FISA court, were held to require a warrant.

Rick Ballard

Kim,

The FISC judges are appointed by the Chief Justice. Here's the current list. It would take a little work to play 'name that judge'.

Sara

Couldn't a been W, could it?

If by W, you mean Reggie Walton, that was my question too.

clarice

No. I don't believe he'd been appointed yet. Robertson would have been my guess, but I don't remember when he resigned.

boris

it isn't news to the administration in April of this year that certain foreign-to-foreign intercepts, when put before the FISA court, were held to require a warrant

It is if the administration had a more favorable court earlier. "Officials say one judge issued a ruling in January that allowed the administration to continue the program under the court’s supervision."

Submitting to FISA under even a favorable ruling has an obvious risk, but it does not look like the turnabout was certain or planned. OTOH unlikely anybody was shocked, shocked that it went down this way.

clarice

Not Robertson either. He resigned in Dec 2005.

boris

From Cecil's NYT link ...

For months, Democrats had refused to give the administration new wiretapping powers until the White House agreed to turn over documents about the National Security Agency program to eavesdrop on some Americans’ international communications without warrants.

I doubt the administration was just cruising along when somebody said "lets submit to FISA just to see what happens, could be fun". A dangerous game was being played using BDS rules and it doesn't take that much imagination to suspect there's more to the story than political jujitsu by W.

boris

If Cecil is right that FISA shortcomings (obvious now) were apparent to any serious analysis (except Greeny and Anon apparently) then the document dump game played by the dimcong looks a lot like:

"We'll give you what you need to protect national security in return for what we need to administer a right and proper public whipping for your crimes!"
TexasToast

Everyone here seems to think that he will be on the observer side of the camera/microphone/listening device. Are you folks really suggesting that the 4th Amendment is not, um, rather important? Or is the threat so great that we can dispense with the troublesome stuff?

BTW Tom is correct - profiles in courage does not come to mind - the representatives of my party have, to quote Professor McGonagall, done a bunk.

Cecil Turner

At any rate, regardless of imputing "expectation" to anybody in the administration (about a ruling, or about provoking Congress to amend FISA), the NSA noted in 2006, that certain foreign-to-foreign intercepts, if put before the FISA court, required a warrant -- hence it isn't news to the administration in April of this year that certain foreign-to-foreign intercepts, when put before the FISA court, were held to require a warrant.

In the first place, LTG Alexander never specified "foreign-to-foreign" and there was apparently one favorable ruling followed by a second unfavorable one, so the expectations game is hard to handicap. In the second, the LA Times piece claimed it was some sort of "basket" warrant application that was disallowed, so the "require a warrant" holding you are assuming (and claiming is the same point the NSA Director cited earlier) is dubious. Possibly it was something along the lines of the certification required for a warrant, like those relaxed under the new 105.B (b)

A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.
Everybody can see the administration saying, in 2006, that under FISA, a warrant is required to acquire certain communications.

Except that a clear reading of the statute specifically excludes foreign-to-foreign communications, so the problem is apparently something in the implementation (or in the way the rules are construed to mean something else).

Cecil Turner

Are you folks really suggesting that the 4th Amendment is not, um, rather important?

Sorry, but this is a crock. The contention that we need a bunch of lawyers to micromanage wartime intercept procedures frankly doesn't resonate with me. And if the choice on who to trust is between the guys in operational billets (who've also taken oaths to uphold the Constitution, thank-you-very-much), or a bunch of jurists looking for a way to torpedo the ship of state (because the gangplank happens to slope and hasn't had the OSHA-recommended traction treads installed), I don't think the choice is a particularly hard one.

The bottom line here is that listening in on enemy communications is a requirement, and it's reasonable to do that, even if the stray domestic conversation is overheard. If the civil libertarians can figure out a way to do it without inadvertently snagging some privileged (US Persons') communications into the mix, great. But if the choice is between letting people die or preserving perfect privacy, and your only solution is to scrap the program, then your objection is noted. Get out of the way, please.

boris

Besides FISA is a bit newer than the 4th and the problem is with FISA not the 4th.

If the 4th were actually involved, wouldn't even need a FISA would we?

PeterUK

I can understand the worry,after all,which do the evesdroppers choose out of all those millions of telephone calls,Texas Toast ordering a pizza,Senator Snagglesprocket calling his er, niece the cheerleader or the one to a satellite phone in Waziristan?
There aren't the resources to process all the information gathered,the whole privacy argument is phony.

Cecil Turner

Just up today, the WaPo has another version, which suggests the issue was warrants for anything going through a US switch:

But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved.
Interestingly, it goes on to suggest it was a surprise to the Intelligence Community:
The rulings -- which were not disclosed publicly until the congressional debate this month -- represented an unusual rift between the court and the U.S. intelligence community. They led top intelligence officials to conclude, a senior official said, that "you can't tell what this court is going to do" and helped provoke the White House to insist that Congress essentially strip the court of any jurisdiction over U.S. surveillance of communications between foreigners.
Not sure which to credit most, but I find this a bit more plausible than the "basket" warrant discussion. But in any event, AFAICT, no version yet supports the "predictable" ruling contention.

glasater

This is a bit lengthy--Robert Bork on the fourth amendment.

Rick Ballard

"In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved."

Hmmm.. now that does sound like an act of Reggiecide. He was appointed on May 19th - perhaps he went right to work? Access to the memorandum of opinion would tip us off. Rambling incoherence backed with 100% certitude is difficult to fake.

cboldt

-- In the first place, LTG Alexander never specified "foreign-to-foreign" --

This is what he wrote:

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 [a foreign person overseas] communications are with another foreign person overseas.

The reads like "foreign-to-foreign" to me.

-- the "require a warrant" holding you are assuming (and claiming is the same point the NSA Director cited earlier) is dubious. Possibly it was something along the lines of the certification required for a warrant, like those relaxed under the new 105.B (b) --

Do we agree that the government says the FISA court recently changed it's mind about the TSP-like program, and said that the FISA court recently said the law requires a court order?

What difference does it make if NSA needs to recite location (or not) or "probable cause" (or not)? I thought the issue at this point is whether or not the NSA is required to apply for a court order, period; not what the contents of the application will be if the law requires a court order.

-- a clear reading of the statute specifically excludes foreign-to-foreign communications --

Are you saying Alexander and/or the government are mistaken when they say they need a warrant to obtain foreign-to-foreign communications?

-- AFAICT, no version yet supports the "predictable" ruling contention. --

AFAICT, you don't agree that Alexander's comment is about needing to apply for a court order for foreign-to-foreign surveillance, and that even if you were to concede that's what he was referring to, his 2006 complaint about needing a warrant from the FISA court for (some) foreign-to-foreign surveillance doesn't presage the administration's 2007 complaint about needing a warrant from the FISA court for (some) foreign-to-foreign surveillance.

boris

Alexander's comment refers to Foreign to Unknown which he says frequently turns out to be Foreign to Foreign. Since I draw that distinction, I don't consider them the same in terms of spec.

boris

If the scope of the restriction is as presented, it makes foreign intel surveillance virtually impossible given modern technology.

Would sorta fly in the face of those who claim(ed) that FISA was perfectly okay and "breaking" the law was uncalled for.

cboldt

If Alexander said, in 2006, that the FISA court ruled that a court order was required for some surveillance that impacted acquisition of some foreign-to-foreign communications, why would it be unpredictable as of sometime in 2007 that the FISA court would rule that a court order was required for some surveillance that impacted acquisition of some foreign-to-foreign communications?

boris

why would it be unpredictable as of sometime in 2007 that the FISA court would rule that a court order was required for some surveillance that impacted acquisition of some foreign-to-foreign communications?

Because a deal on that issue had been reached in Jan. This new restriction could go considerably further than Foreign to Unknown (which frequently turns out to be Foreign to Foreign) and shut down everything.

Explicitly restricting Foreign to Foreign if it goes through a domestic switch really is a different ball game than Alexander's.

boris

The explanation for the "A to B" terminology I am using is here.

Cecil has som related comments here.

cboldt

-- Explicitly restricting Foreign to Foreign if it goes through a domestic switch really is a different ball game than Alexander's. --

It would be. But I don't buy the allegation that foreign-to-foreign was expressly restricted.

The below is true if a court order is required to view foreign-to-unknown on a switch located in the US.

... restricted the government’s ability to intercept foreign-to-foreign communications passing through telecommunication “switches” on American soil

IOW, there needn't be (and I'm quite sure there wasn't, because it's legally WAY out in left field) a ruling that said "you need a warrant for foreign-to-foreign surveillance."

If our disagreement hinges on one side harboring a belief that there has recently been an express ruling like that, then I understand the root of the disagreement.

boris

My use of explicitly was in the sense that "any domestic switch requires a warrant" applies directly to Foreign to Foreign by applying directly to all possible cases.

Cecil Turner

The reads like "foreign-to-foreign" to me.

It reads like "foreign-to-unknown" to me.

What difference does it make if NSA needs to recite location (or not) or "probable cause" (or not)?

If it's "unknown," the answer should be obvious. (Alexander: "in some cases prevents altogether . . .")

Are you saying Alexander and/or the government are mistaken when they say they need a warrant to obtain foreign-to-foreign communications?

I have a hard time telling if you're stuck on a certain interpretation, or are playing games. Are you saying FISA requires a warrant for foreign-to-foreign communications?

AFAICT, you don't agree that Alexander's comment is about needing to apply for a court order for foreign-to-foreign surveillance, and that even if you were to concede that's what he was referring to, his 2006 complaint about needing a warrant from the FISA court for (some) foreign-to-foreign surveillance doesn't presage the administration's 2007 complaint about needing a warrant from the FISA court for (some) foreign-to-foreign surveillance.

LTG Alexander's comment is about warrant requirements, but it is hardly dispositive . . . it certainly doesn't admit to a warrant requirement for any intercept at a US switch. By all reports the FISC gave at least two rulings, by the latter, three. The idea that the Administration foresaw each is difficult to credit. The idea that it was somehow foreordained--in the face of three different rulings--is risible. I found the last quote directly on point and precisely opposite your contention: "you can't tell what this court is going to do" . . . and that is exactly the worst case from an operator's perspective. The idea that wasn't what kicked off the current round of negotiations, but rather it was a predetermined ploy by the Executive to screw themselves to get a new statute, is hard to credit. Further, it attributes Byzantine motives to an Administration I judge to be almost painfully straightforward, runs afoul of Occam's Razor, is directly contradictory to their stated (boring) explanation, and is an inference based on little or no evidence. Other than that . . .

boris

Even assuming that non domestic switch intercepts are unaffected it is still a different can of worms than Alexander's.

cboldt

IOW, to paraphrase what I think might be your point of view, using your parlance, Alexander's 2006 comments was about needing a warrant for foreign-to-unknown, but the FISA court's 2007 order was on foreign-to-foreign. Therefore, Alexander's 2006 foreign-to-unknown comment couldn't predict the FISA court's 2007 foreign-to-foreign order.

The other argument is that nobody could predict the FISA court would be an indian-giver.

Pofarmer

IOW, there needn't be (and I'm quite sure there wasn't, because it's legally WAY out in left field) a ruling that said "you need a warrant for foreign-to-foreign surveillance."

Wow, and there's never been a history of left field rulings from certain judges. That totally makes your case.

boris

but the FISA court's 2007 order was on foreign-to-foreign

Quibble ... the 2007 order went further than accidently (unintentionally) applying to foreign-to-foreign by deliberately and explicitly applying to all cases including foreign-to-foreign.

boris

Arguendo

cboldt

The contention that the NSA didn't, in 2006, say the FISA court imposed warrant requirements that impacted some foreign-to-foreign acquisitions is, well, in my mind, just plain goofy.

In bold for emphasis, without regard to whether there was a plan or expectation to get an adverse ruling from the FISA court, it's goofy to credit "the FISA court imposed warrant requirements that impacted some foreign-to-foreign acquisitions" as a spanking brand new revelation in 2007.

boris

Unless there was an earlier assurance on that concern from a judicial authority unlikely to be reversed by another on the same circuit.

Cecil Turner

. . . it's goofy to credit "the FISA court imposed warrant requirements that impacted some foreign-to-foreign acquisitions" as a spanking brand new revelation in 2007.

Assuming they'd throw out the entire program because it might possibly impact a person in the US is goofier.

My understanding of the state of the technology (admittedly not my strong suit, and my related experience is dated) is that it may be difficult to determine the termini of a communication, and that such are not impossible to mask. Thus many of the communications may be "foreign-to-foreign" but be read as "foreign-to-unknown" or "unknown-to-unknown." And if such are forbidden from interception unless a warrant is obtained in advance, it's an unacceptable constraint to place on the wireheads.

As Boris put it, "'any domestic switch requires a warrant' applies directly to Foreign to Foreign." The problem is not the law, it's the interpretation. And again, I don't see that as predictable. My sense is that folks with an operational mindset would assume the application of common sense. Because that's what they'd do in a similar situation. (And again, why I think this sort of thing is better left to those who do it for a living.)

boris

My personal opinion is that the administration was well aware that FISA would prove unworkable but also that they made a good faith effort to make it work. If this latest speculation is accurate or close it was probably NOT forseen.

Pofarmer

In bold for emphasis, without regard to whether there was a plan or expectation to get an adverse ruling from the FISA court, it's goofy to credit "the FISA court imposed warrant requirements that impacted some foreign-to-foreign acquisitions" as a spanking brand new revelation in 2007.

Considering that this is a bunch of rotating judges, and not a static set, then I'd say that that's exactly the threat present here. How likely are you to get consistent rulings from different sets of judges over a timespan of multiple years?

Rick Ballard

"How likely are you to get consistent rulings from different sets of judges over a timespan of multiple years?"

Reading through this interview with former chief FISC judge Lamberth, it seems that there is a meeting in May:

The new presiding judge is Judge Colleen Kollar-Kotelly of the District of Columbia, who replaced me when my term expired on May 18. The presiding judge presides over the annual conference of the court held at the Supreme Court, which is attended by the Chief Justice, the Attorney General and the directors of the FBI, CIA and NSA, and the members of the court. We have an annual conference on or about the anniversary date of when the court actually got started on May 18, 1979. Our conference this year was May 14. The presiding judge also runs the court, sets the schedule—the normal administrative duties of any chief judge.

Lamberth makes it sound very collegial. Perhaps a gauntlet was flung at this years meeting, signifying a change.

cboldt

-- The problem is not the law, it's the interpretation. And again, I don't see that as predictable. --

It's easier to see (and predict) if you use the statutory framework instead of the framework that employs "foreign-to-unknown" and other terms that don't align one-for-one with the statute.

The operational guys saw an issue with 1801(f)(2) in 2006. Tapping a US-located switch that exclusively handles international communications results in meeting the criteria of 1801(f)(2). Tapping a switch that is NOT in the US does NOT result in meeting the criteria of 1802(f)(2).

In 2006 and 2007 alike, if a warrant is required to tap a US-located switch that exclusively handles international communications, that warrant requirement will impact some communications that are between parties, none of which are in the US.

Statutory language can be helpful to analysis. Here's a piece of 1802(f)(2)

... if such acquisition occurs in the United States ...

I see the January decision of the FISA court as the outlier. Any speculation on how a judge might find the surveillance on a switch in the US may proceed without a warrant, based on concluding that the acquisitions did not occur in the US? If the data is sent from the switch to the UK embassy (technically, not US soil), and the government did not see it until it arrived at that location, did the acquisition occur in the US? Or, what if the data is sent from the switch in NYC to an NSA London location? Or what if the switch itself is put in a location that is, as a legal matter, foreign soil?

boris

A reason for abandoning switch location is that commercial technology no longer controls that.

What was the "understanding" reached in January? I am skeptical that the administration would accept foreign-to-unknown requiring warrant for domestic switches. I am skeptical that another judge on the FISC would reverse that particular understanding.

Cecil Turner

Lamberth makes it sound very collegial. Perhaps a gauntlet was flung at this years meeting, signifying a change.

Reading AG Gonzales's January letter (assuming the previous ruling was as described), and allowing the drift of the subsequent rulings, one could make as plausible a case that the Administration was suckered by activist judges into submitting to rulings that could then be used to terminate a program that might raise the hackles of jurists. A similary argument could be made for Congressional machinations, especially considering the reported demands for documents and oversight. None of these are compelling, however, and detract from an objective evaluation of whether the program is performing adequately, and what steps are indicated to ensure it does.

It's easier to see (and predict) if you use the statutory framework instead of the framework that employs "foreign-to-unknown" and other terms that don't align one-for-one with the statute.

If you're intercepting communications, you're stuck with a framework that reflects what the technology allows, not words in a statute.

Tapping a US-located switch that exclusively handles international communications results in meeting the criteria of 1801(f)(2).

Huh?

the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States . . . [emphasis added]
The issue appears to be that it is impossible to perfectly assure any communication will not go to a person in the US . . . and hence foreign-to-foreign interceptions at a US switch are subject to a warrant requirement that clearly is not envisioned by the statute.

boris

Huh?

Perhaps he means US-to-foreign and foreign-to-US.

cboldt

More thoughts on 1801(f)(2).

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States [note absence of any notion of targeting, interest, etc.], without the consent of any party thereto, if such acquisition occurs in the United States

The whole point of the TSP is to obtain communications that are either to or from a person in the United States. Communications that are wholly foreign content are incidental -- and aren't part of the TSP as the administration has defined it.

So, in order to proceed with TSP, under FISA, the only way I can see to "get around" 1801(f)(2) [and at least one judge saw a way around it, because the statute was there, and the program allegedly continued under the FISA regime without a mass of warrants] is to work with the "acquisition occurs in the United States" aspect.

Pure speculation on may part, but at least it's phrased in the same framework the court would use, instead of a framework invented by anonymous bloggers.

narciso

Colleen Kotlar-Kelly, what a 9th Circuit judge wasn't available?. She was taken in
by amicus briefs which argued AQ detainees at Gitmo were entitled to legal rights
based on case involving US Navy personnel.
in the Hamdi case. They have a legal unders
tanding only slightly better than Marcos Kos Moulitsas. Did you see the mauling by Kos of poor Harold Fords. It was like sharks attacking seal lions. Can Harold say
anything more 'Youve said some inappropriate
things" How about Screw Um, with the Fallujah 4, or wishing Cheney had been killed at Bagram, or endorsing antisemitism
worthy of Ahmadinejad or 10 million other
examples.

cboldt

-- If you're intercepting communications, you're stuck with a framework that reflects what the technology allows, not words in a statute. --

I can see the judges rushing to your "foreign-to-foreign / foreign-to-unknown" framework already, and abandoning the words of the statute. LOL.

You may notice (maybe not) that I'm not arguing the statute represents a good balance. I'm just trying to figure out what really happened, and the legal justifications behind it, by reading a mess of media reports by boneheaded reporters and politicians who avoid the legal arguments and tend to resort to hyperbole.

Cecil Turner

The whole point of the TSP is to obtain communications that are either to or from a person in the United States.

This stuff is complex enough that changing the subject completely makes the thread difficult to follow. And from a national security perspective, purely foreign-to-US communications aren't terribly interesting.

You may notice (maybe not) that I'm not arguing the statute represents a good balance.

I think you're reverting to your game-playing silliness. The last time, I pinged you several times to ascertain if that was it, and you got snippy. This time, I don't think I'll bother. Cheers.

Pofarmer

I'm just trying to figure out what really happened, and the legal justifications behind it, by reading a mess of media reports by boneheaded reporters and politicians who avoid the legal arguments and tend to resort to hyperbole.

I think what you're doing is ignoring the fact that a minimum of one left wing activist judge tried to torpedo the program. Is this an extension of the Comey Brew-ha-ha that landed administration officials at Ashcrofts hospital bedside?

boris

note absence of any notion of targeting, interest

The move to a target based warrant requirement seems pretty obvious to me. From your heather Wilson link.

(1) the installation or use of a surveillance device for the intentional collection of information relating to a person who is reasonably believed to be in the United States by intentionally targeting that person, under circumstances in which the person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
IMO technology is no longer compatible with the original approach.

cboldt

-- This stuff is complex enough that changing the subject completely makes the thread difficult to follow. --

The FISA court rulings on the TSP are at the heart of the urge to modify FISA. I can't help it that you fell for the line that the issue is foreign-to-foreign surveillance.

And cripes, as if the statute isn't complex enough on it's own, you decide to make up some alternative framework that maybe can, maybe can't be translated into what the statute says -- but a different framework just the same, which introduces the complexity of "translation" between the statute and your alternative framework just to satisfy your view of how the analysis ought to proceed.

Heck, I managed to put out an effort to grok your preferred framework -- and I'm happy to let you and boris have it your way, while I go mine.

Ta ta.

boris

maybe can, maybe can't be translated into what the statute says

The "new" framework seemed to clarify the move to a target based warrant requirement and away from tehcnology incompatible with existing statute that has failed so spectacularly that W was able to bully a hostile congress to his will or face the prospect of blame for dead voters.

boris

Not that dimcongs have any real problem with dead voters, it's the blame that they're afraid of.

Cecil Turner

The FISA court rulings on the TSP are at the heart of the urge to modify FISA.

Argument by assertion. And you argued earlier the foreign-to-foreign ramifications were predictable (and fell under 1801.f.2).

And cripes, as if the statute isn't complex enough on it's own, you decide to make up some alternative framework that maybe can, maybe can't be translated into what the statute says . . .

Oh, please. Introducing the perfectly salient point that sometimes the folks doing the acquisitions dont know which category something falls under . . . and thus require an interpretation to determine which provisions of a statute applies. (And apparently got two or three contradictory rulings on it.) It's not an "alternative framework" . . . it's trying to map a statute onto reality.

Heck, I managed to put out an effort to grok your preferred framework . . .

Right. I still can't tell for sure if you're playing games . . . but you've used up my presumption of good will.

Neo

The real problem here is VoIP.

When the call is initiated, only the IP and country of the orginator can be clearly determined. Many of the IP addresses can be pinned down to country, but many are spread out and redirected via other service providers routers.
In many cases, the users on both/either end don't even know that their call is being routed through the IP network.

Also, an inordinate amount of IP, w/wo VoIP, travels through switches in the US.

Even though IP esxisted, when FISA was written, VoIP was just a dream, at best.

boris

Cellular traffic may have similar architecture.

cathyf
Communications that are wholly foreign content are incidental -- and aren't part of the TSP as the administration has defined it.
Whoa! Where did you get that canard?!?? I will certainly agree that the enemies of the TSP have attempted to claim that this is what the TSP is, but they do so by the trivially transparent sophism of claiming that because the technology does not allow the guarantee that the surveillance will never stumble across foreign--domestic communications, then the surveillance is always being conducted on foreign--domestic communications. I can't believe that someone who recognizes the spin involved in calling the activities the "Terrorist Surveillance Program" cannot also recognize the mad spinning involved in calling it "warrantless wiretapping of domestic calls".
cboldt
Communications that are wholly foreign content are incidental -- and aren't part of the TSP as the administration has defined it.

-- Where did you get that canard?! --

"The NSA's terrorist surveillance program is targeted at al Qaeda communications coming into or going out of the United States." January 22, 2006

"the terrorist surveillance program described by the President is focused solely on international communications where professional intelligence experts have reason to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist group." January 25, 2006

"So to prevent another attack, I authorized the National Security Agency -- consistent with the Constitution and laws -- to intercept international communications in which one party has known links to al Qaeda and related terrorist groups." May 13, 2006

"The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist." Aug 17, 2006

Capturing foreign-to-foreign isn't a contentious issue in principle, and the descriptions of the TSP that I've seen from the administration (and there are more than the four I cited above) involves one end in the US, and one end NOT in the US. I'm not saying that the TSP is in some way violated if the surveillance captures some foreign-to-foreign traffic as well. In fact, I said foreign-to-foreign capture was incidental to the activity the administration described as the TSP.

I haven't seen any evidence that the administration described the TSP as a program aimed at capturing only foreign-to-foreign communications, where capturing foreign--domestic was incidental.

MayBee

cboldt-
in those speeches, he is defending the portion that may have been foreign-to-domestic, because they had been described by others as domestic wiretapping. He is not describing the entire program, he is defending the portion that drew political fire.

He has charged NSA to intercept AlQaeda communications. Some of them are communications going in or out of the US. Those are the communications being criticized, but they are not the totality of the program.

cboldt

"This is not about intercepting communications between people in America, it's about the "hot pursuit" of international communications involving someone we reasonably believe is associated with al Qaeda, where one of the parties to the communication is already in the United States." Jan 25, 2006 (same discussion as the one cited above, where my selection didn't imply "US to foreign," this one does imply "US to foreign")

And a little more context for President Bush's remarks on May 13, 2006 ...

We now know that two of the hijackers in the United States made phone calls to al Qaeda operatives overseas, but we did not know about their plans until it was too late.

So to prevent another attack, I authorized the National Security Agency -- consistent with the Constitution and laws -- to intercept international communications in which one party has known links to al Qaeda and related terrorist groups. This terrorist surveillance program makes it more likely that killers like the 9/11 hijackers will be identified and located in time.

It reads (to me) as though the TS Program was specifically designed to seek out certain communications with one end being in the US.

boris

W: "only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist"

My claim is that can be read as "we only target Al Qaeda communications, therefore the only US calls that get targeted are THOSE coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist".

MayBee

He is giving examples of why intercepting the foreign-to-US communications is not what was being hyped as domestic eavesdropping, and certainly to counter the allegations (still raised) that this was all a canard to eavesdrop on political opponents.

In the question prior to the one you highlight, Gonzales says:

the terrorist surveillance program described by the President is focused solely on international communications where professional intelligence experts have reason to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist group.

In the answer you highlight, he is being asked specifically about US communciations, so that is how he answers. It was the political focus.

boris

AG: "have reason to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist group"

That statement is in conflict with cboldt's reading and in harmony with my reading of the W quote.

cboldt
"The NSA's terrorist surveillance program is targeted at al Qaeda communications coming into or going out of the United States." January 22, 2006

-- He is not describing the entire program --

I won't be the only one to say politicians play word games with labels, but the administration has been remarkably consistent with its definition of the TSP:

MR. SNOW: Well, number one, what's described as an eavesdropping program was a surveillance program that was narrowly targeted on al Qaeda or affiliated members overseas having conversations with individuals that one had reason to expect might be involved in such activities here in the United States. Press Briefing by Tony Snow - January 4, 2007

Here's another ...

It's also one that means that this is not -- this is surveillance in which -- well, I'll read you from part of the letter that went to Senators Leahy and Specter today. It says, "Where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associate terrorist organization." That's one of the most important things. One person on American soil, one person on foreign soil. One probable cause to be suspected as a member of al Qaeda. Press Briefing by Tony Snow - January 17, 2007

And another ...

MR. SNOW: Okay, let me try again. The terrorist surveillance program, as it has been labeled -- it was not so labeled at the time -- was a program of doing surveillance on communications of al Qaeda or suspected al Qaeda members internationally -- internationally into the United States. Press Briefing by Tony Snow - July 27, 2007
cboldt

Crap. I had four recent quotes.

cboldt

Listen, if you all want to adopt the position that my saying that the TSP was a program aimed at getting US--foreign communications is a canard, feel free.

Obviously, I'm not smart enough to run with this crowd.

boris

Still don't see AQ Pakistan to Iraq calls ruled out by any of your quotes. In common English that can be reasonably inferred but could also simply be a part of the topic that does not get discussed.

boris

not smart enough to run with this crowd

Horsefeathers. Does your boolean extend to "don't cares" and prime implicants? Foreign-to-foreign may just be a "don't care" for purpose of the controversy. It is 2nd nature for me to include it because it "minimizes" the logic function. That's just my bias when reading the subject.

cathyf
It reads (to me) as though the TS Program was specifically designed to seek out certain communications with one end being in the US.
It reads to me as if the critics of the program have not objected to surveillance of calls where neither end is in the US, and since

1) this administration is particularly bad at communicating anything; and

2) all of the administration's communications are being filtered through allies of the critics of the administration; and

3) since the defense of the program is fundamentally, well, defensive, it has consisted of responding to issues brought up by critics; and

4) since virtually everything about the program is either classified or grudgingly declassified in order to defend the program, idle chitchat about parts of the program not currently under attack are risking a firing offense for no good purpose; so

Conclusion: it is completely logical that most of the discussion about the program would be about intercepting foreign-to-domestic calls, even though the program is about monitoring all of the communications of a person that they think is or might be a terrorist, and they have no way to predict in advance how often, if ever, any particular terrorist will make or receive a call from the US.

cboldt

Listen, if you all want to adopt the position that my saying that the administration defined the TSP as a program aimed at getting US--foreign communications; and that communications that are wholly foreign in content are not noted in the administration's definitions of the TSP (but could be obtained as incidents to the program aimed at getting US--foreign communications) is a canard, feel free.

I can't hold a candle to cathyf's logic. I'm outta here.

MayBee

I don't think they've made an attempt to define TSP. Instead, they have realeased as much information as they think is necessary to dispute the idea that there was unwarranted domestic wiretapping going on.
Thus the focus on the domestic to foreign in the discussions. An emphasis that domestic survellience took place under limited conditions, not that only that type of survellience was being done.

Sue

I can't hold a candle to cathyf's logic. I'm outta here.

Oh good lord. How many times have we heard this before? And usually when everyone isn't bowing to his superior wisdom. How freakin' old are you anyway?

And you're right. You can't hold a candle to Cathy's logic.

MayBee

cboldt-
I said, certainly to counter the allegations (still raised) that this was all a canard to eavesdrop on political opponents.

The canard in this case is on the part of the administration, supposedly using the NSA to spy on political opponents in the name of terrorist survellience. It has been an continues to be alleged. The admin has/had an interest in describing who they were actually looking at.

I don't know who "all" you thought were adopting a position that what you said was a canard.

cboldt

-- You can't hold a candle to Cathy's logic. --

To cop a line from Mr. Turner, "you've used up my presumption of good will."

I called you stupid some time ago, and later, vindictive. And I'll stick with an impression of you being stupid and vindictive. Wanna have a flame war, bitch?

Sue

::grin::

We already have. And I won. See ya', bambino.

cboldt

-- I don't know who "all" you thought were adopting a position that what you said was a canard. --

You and boris supported cathyf's position that my comment represents a canard.

Sue just jumped in to deliver a slam, because she has nothing substantive to say.

Sue

I can't hold a candle to cathyf's logic. I'm outta here.

Actually, bambino, I was enjoying the debate until you got your widdle feelings hurt and started your usual "I'm outta here". Sorry if it gets a little old watching you act like a bambino.

Now, why are you still here? So you can flame me? ::grin::

cboldt

Here's the canard again, word for word as I stated it.

Communications that are wholly foreign content are incidental -- and aren't part of the TSP as the administration has defined it.

and here's cathyf's description of WHY it is a canard

enemies of the TSP have attempted to claim that this is what the TSP is, but they do so by the trivially transparent sophism of claiming that because the technology does not allow the guarantee that the surveillance will never stumble across foreign--domestic communications, then the surveillance is always being conducted on foreign--domestic communications.

To which I posted a series of WH statements that apparently I've completely misconstrued as to what the WH REALLY said.

cboldt

-- So you can flame me? --

Patience, you ignorant slut.

Sue

Wow. From bitch to slut. You really are a child, aren't you?

For what it's worth, bambino, I don't take internet insults to heart. You may continue if it makes you feel better, but be aware, I'll still be here when you leave to hold your breath until you get your way.

boris

boris supported cathyf's position

Actually I supported her point (my point too as you recall) but admitted yours was a reasonable inference based on common English.

Don't include me in this one, it's too warm here to type wearing an asbestos suit.

MayBee

cboldt- I disagreed with you and explained why. As far as I can tell, boris did the same. That isn't the same as agreeing with cathy that your position is a canard.

You (I think) think Scooter Libby was correctly prosecuted.
Many think the prosecution of LIbby was correct because he an architect of the war and he deserves punishment.
You do not, I presume, support the position that Libby's prosecution was correct because he was an architect of the war.

cboldt

-- I'll still be here when you leave to hold your breath until you get your way. --

So?

Do you have anything substantive to add to the debate while you're here? Or do intend to just continue to fling invective and insult? Except for responding to your pissy remarks, I've been pretty good about stifling my activity here. All the better right?

Sue

Do you have anything substantive to add to the debate while you're here?

No. Which is why I was enjoying reading the debate in silence. I didn't feel like doing the research to interject my thoughts on the subject. Until you started getting pissy...again. Grow up. Not everyone will agree with you in life. Is this how you act in the courtroom when someone disagrees with you? Grab your file and leave? It may not bother others, but it drives me to comment when you start acting the child. If you think you are correct, argue your point and let it go, or stomp out of the blog in a huff because some dared to question you.

cboldt

-- I disagreed with you and explained why. As far as I can tell, boris did the same. That isn't the same as agreeing with cathy that your position is a canard. --

As far as I can tell, you, cathyf and boris all hold that the administration defined the TSP as targeting foreign--foreign communications. Canard or not, I read the administration's words otherwise.

Now some of the administration's words are on the thread, so lurkers can read and make up their own mind as to whether, and if they did, what the administration defined the TSP as.

cboldt

-- It may not bother others, but it drives me to comment when you start acting the child. --

I noticed that. The only time you've ever directed a comment to me, it was of that nature. Now I know how to get your goat. Bwahahahahahaha.

I am arguing my point. At some point I stop arguing. Sometimes I say, "I'm not going to argue about this anymore." Sometimes that comes out in shorthand, "I'm outta here."

You've got an axe to grind with me, and I'm going to help you grind it to a sharp edge. Bitch.

All you are to me is frickin' flame bait.

Sue

You've got an axe to grind with me, and I'm going to help you grind it to a sharp edge. Bitch.

Yes, you know how to "get my goat", as you say. Act like a child.

boris

hold that the administration defined the TSP as targeting foreign--foreign

Quibble, all communication by known foreign terrorist suspects without warrant required, whether between other foreign parties, domestic parties or unknown parties.

Quibble, not so much "defined" as incompletely described.

Sue

Sometimes I say, "I'm not going to argue about this anymore." Sometimes that comes out in shorthand, "I'm outta here."

Sometimes you say you aren't as smart as others here. Shorthand for what, bambino?

MayBee

that apparently I've completely misconstrued as to what the WH REALLY said.

The White House obviously said what they said, but their opponents also said what they said. The public concern, outcry, and the majority of the questions were about foreign to domestic. Actually, they were mainly about domestic! only, without any qualifications.

The White House did not sit down and explain or define their entire program. The White House explained the parts of the program that were being misconstrued by their political opponents.
Foreign to foriegn raised few hackles and got few questions, thus few answers from the White House.

Perhaps you are right, but I don't think the admin has ever been specific enough about the program to declare a winner on this argument.

cboldt
I meant disrespect and really don't care if he feels insulted by it or not. My gauntlet for his posting here has crossed my tolerance threshold she said with a regal sneer in her voice.

Way to go Welcome wagon! You make JOM a veritable pleasure palace with your charm.

MayBee

Boris:

hold that the administration defined the TSP as targeting foreign--foreign

Quibble, all communication by known foreign terrorist suspects without warrant required, whether between other foreign parties, domestic parties or unknown parties.

Quibble, not so much "defined" as incompletely described.

Yes, that is my interpretation as well, said better.

cboldt

-- Shorthand for what, bambino? --

Shorthand for "I'm not going to argue about this anymore." Are you really that dense?

Sue

Way to go Welcome wagon! You make JOM a veritable pleasure palace with your charm.

Thankfully, that isn't my position here. And there you go again, bambino, taking conversations out of context.

Sue

Okay, sorry for the interruption to the regulars. I'll bow out so the flame war will die down and you may continue your debate.

The comments to this entry are closed.

Wilson/Plame