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Comey Tried to Limit NSA Surveillance Program:
The New York Times has a fascinating article today about efforts by former Deputy Attorney General James Comey to limit or even block the NSA surveillance program back in 2004, when Comey was acting Attorney General:
  A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.
  The concerns prompted two of President Bush's most senior aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general - to make an emergency visit to a Washington hospital in March 2004 to discuss the program's future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.
  The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.
  . . .
  . . . [I]n early 2004, about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.
  The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program.
  I'm not surprised by this; I would imagine there was a great deal of internal disagreement among advisors as to the legality of the NSA program. I'm also not surprised that James Comey played an important role in objecting to the program. In October 2004, seven months after Comey's objection, a Legal Times story by Vanessa Blum disclosed the extent of the tension between Comey and the White House over the former's perceived "neutrality and independence." According to the Legal Times story, that independence took Comey out of the running for the Attorney General slot when Ashcroft stepped aside:
  There are a number of candidates who could be tapped to replace John Ashcroft as attorney general if President George W. Bush wins re-election. But perhaps the most obvious choice, Deputy AG James Comey, almost certainly will not be.
  Since his confirmation as the No. 2 Justice Department official in December 2003, sources close to the department say Comey has had a strained relationship with some of the president's top advisers . . . .
  . . .
  Earlier this year, after the disclosure of internal administration memos that seemed to condone the torture of suspected terrorists overseas, Comey pushed aggressively for the Justice Department's memos to be released to the media and for controversial legal analyses regarding the use of torture to be rewritten.
  In a deeply partisan administration that places a high premium on political loyalty, sources say Comey — a career prosecutor and a former U.S. Attorney for the Southern District of New York — is not viewed as a team player.
  "[Comey] has shown insufficient political savvy," says the former official. "The perception is that he has erred too much on the side of neutrality and independence."
  Instead of picking Comey to replace Ashcroft, the President selected Gonzales -- who as White House Counsel had already committed to the view that the NSA surveillance program was legal. (Of course, it's hard to say if the NSA program played an important role in the White House's thinking on the AG slot -- it may just be a reflection of broader dynamics and priorities rather than a cause of them. Still, it's interesting to speculate on how the pieces might fit together.)
Huck (mail):
(This is a main example of the kind of posts that make me come back to the VC again and again.)
1.1.2006 2:31pm
Joe Jackson:
" ... he has erred too much on the side of neutrality and independence."

This is a tragic commentary on the state of things in Washington.
1.1.2006 2:36pm
Defending the Indefensible:
I'm waiting to find out if Comey was the source for the original NY Times article. Frankly, I think he's above prosecution for it, he is in a position to say that he believed it was a major violation of law, and he was uniquely qualified to make such a determination.
1.1.2006 2:53pm
Marcus1:
Wow, interesting to see these two stories come together. Good catch!
1.1.2006 3:31pm
Marcus1:
I was just wondering, after reading through the press briefing where Gonzales set out the framework of the program, whether the original impetus for this program may have been a denial of a particular warrant by the FISA court.

General Hayden made a comment there, when he was being pressed for why the retroactive warrants weren't good enough, and whether he was certain that this program was necessary: "GENERAL HAYDEN: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available."

Unless he's just posturing, it seems the only way that could be true is if the program was used for one of those 4 or 5 cases where the FISA court denied a warrant. It almost seems as if that's what he's trying to say.
1.1.2006 3:43pm
Dave:
My understanding is that there were a lot of sources for the NYT article, not just one. Comey might be one of them, though.

Dave
1.1.2006 3:59pm
Dave from Woodstock:
As we face an intractable and insidious enemy, I am amazed that I seem to be the only one concerned about the NYT continuing to publish these articles. If the program is effective, shouldn't we be concerning ourselves with figuring out how to correct any potential constitutional issues in a bi-partisan and non-public manner.

I say this not in support of the Administration, but in recognition of the fact that we face an enemy who openly wants to use WMD against us. I am more concerned with stopping them then finding out who to blame for the program.

Let's stop the leaks and start dealing with the issues in a serious manner.
1.1.2006 4:31pm
minnie:
Great post, Orin Kerr. You're becoming completely indispensable.
1.1.2006 4:36pm
Pooh (www):
The simple response is 'let's start dealing with these issues in a serious manner, and the leaks will stop.' I don't say that to be flip, the appearance that loyalty trumps competence in this adminstration is very real, and sadly extends to areas that really matter.
1.1.2006 4:46pm
Apodaca:
It's also worth recalling that Comey was the official who appointed Pat Fitzgerald as special counsel for the investigation into the Novak/Plame leak. That December 2003 selection -- of a scrupulously independent prosecutor instead of a pliant party hack -- surely hurt Comey's chances for promotion even more.
1.1.2006 4:48pm
Dave from Woodstock:
The simple response is 'let's start dealing with these issues in a serious manner, and the leaks will stop.' I don't say that to be flip, the appearance that loyalty trumps competence in this adminstration is very real, and sadly extends to areas that really matter.

That may very well be, but it assumes that all of the critics are acting in good faith. I heard my Congressman this weekend speaking with an NPR correspondant. His statements were utter hyperbole ("President Bush has violated explicit provisions of the United States Constitution and should be impeached for it"). In the atmosphere created by irresponsible statements like that, people think leaking secrets is the noble way to proceed.

My point is that the politics here have to be eliminated, and the NYT is one of the prime players. I think that puts all of us at risk.

Like I said, I am not an apologist for the Administration, I do think the leaks are detrimental to our national security however.
1.1.2006 5:07pm
Apodaca:
Also, note the following brain twister in the Times article:
The [Justice Department] audit examined a selection of cases to see how the security agency was running the program. Among other things, it looked at how agency officials went about determining that they had probable cause to believe that people in the United States, including American citizens, had sufficient ties to Al Qaeda to justify eavesdropping on their phone calls and e-mail messages without a court warrant.
This makes no sense. Either the authors of the Times article have mangled the facts -- entirely possible -- or the intercepts would have passed muster under FISA.

Something is very wrong here.
1.1.2006 5:13pm
JosephSlater (mail):
Dave from Woodstock:

Meanwhile, others of us are concerned that the NYT sat on a story about the president taking secret actions that violated the FISA for over a year.
1.1.2006 5:15pm
Pooh (www):
Dave, I think we're at a classic chicken/egg place here. I can easily respond with 'he played politics with security first', and we'll never really get to the bottom of it...

That being said, I don't think your congress critters' quote is 'utter hyperbole'. A very reasonable case can be made for 4th ammendment violations, see Prof. Lederman and Balkin for example, (though I personally tend to agree with Prof. Kerr's 'constitutional but not legal' analysis).
1.1.2006 5:16pm
Smithy (mail):
I'm waiting to find out if Comey was the source for the original NY Times article. Frankly, I think he's above prosecution for it, he is in a position to say that he believed it was a major violation of law, and he was uniquely qualified to make such a determination.

I would say just the opposite: that if Comey was the source, he is guilty not only of disclosing classified info but possibly of outright treason. It's clear that Comey had it in for the Bush administration -- his opinions on NSA surveillance and his decision to appoint Fitzgerald are proof enough of that. He made a cold, calculated decision to get back at the Bush administration, national security be damned.

They used to hang people like James Comey. But I'd be perfectly happy if he just spent the rest of his life in jail.
1.1.2006 5:18pm
Apodaca:
Dave from Woodstock says:
I do think the leaks are detrimental to our national security however.
I think Jane Hamsher best summed up this claim:
We picture a cave somewhere in Pakistan. Osama picks rat meat off a stick when countless number twos rush in screaming "Good God man, no warrants! Shut it all down!"
1.1.2006 5:18pm
Leibowitz (mail) (www):
After all of us fighting the war on terror, the biggest losers of all will be the dozen or so "confidential sources" who a year ago, under the old rules, trusted The New York Times. They are toast, as you can see in a memo from Bill Keller describing the situation as it exists tomorrow.
1.1.2006 5:25pm
Dave from Woodstock:
Pooh: Point taken, but are there not USSC cases authorizing warrantless searches in various sets of factual circumstances? One of which is involving the agents of foreign powers?

So, barring facts we don't know yet (of which I am certain there are many) how is this plainly unconstitutional let alone "impeachable" in the words of a member of the House of Representatives?

Apodaca: I am not familiar with Jane Hamsher, but I am certain that if data mining of cell and satellite data is what this is about, al Qaeda will learn from what we disclose and adapt. Having lived through 9/11, I don't want to see any of my countrymen go through anything like that again. So, I say, one more time, if the program is effective and unconstitutional (for no lack of good faith on the part of the actors (in contrast to the Watergate situation)), let's figure out how to fix it and get on with it.
1.1.2006 5:31pm
subpatre (mail):
JosephSlater writes “...others of us are concerned that the NYT sat on a story about the president taking secret actions that violated the FISA for over a year.”

Since there’s not the slightest hint any violations of FISA ever happened, what motives are left? Partisanship's one good candidate.

Apodaca's so something that's never been in evidence that a straight-forward report is disbelieved: "...This makes no sense. Either the authors of the Times article have mangled the facts ... or the intercepts would have passed muster under FISA." "Something is very wrong here."

Something is wrong. Can anyone point out a single allegation of FISA violation?
1.1.2006 5:32pm
Mr. P:
Orin, you forgot to tell us whether or not Comey would have had access to the magic information that makes this program legal.
1.1.2006 5:34pm
Anderson (mail) (www):
I appreciate Prof. Kerr's posts and the thoughtful comments, but it's beginning to seem to me that we could find a tape of Bush saying, "yeah, it's illegal, but do it anyway," and his supporters would continue unfazed. We would hear that Bush was just badly advised and that the deeds were indeed legal.

There's an emotional investment in the President that doesn't seem terribly mature or politically wise. I suppose it's a reflex of the 9/11 attacks ... the need to believe that Daddy is taking care of us.
1.1.2006 5:48pm
JosephSlater (mail):
Subpartre:

So you read Orin Kerr's analysis that the activities probably violate the FISA and conclude that "there's not the slightest hint any violations of FISA ever happened"?
1.1.2006 5:49pm
Smithy (mail):
There's an emotional investment in the President that doesn't seem terribly mature or politically wise.

It's called patriotism, andersen. And it may not be "politically wise" but it's what has kept us going for the past 200 years.
1.1.2006 5:51pm
akiva eisenberg (mail):
Does anybody remember the long-ago SF short, "Day of Succession"?
1.1.2006 5:56pm
Dave:
How, exactly does the leak hurt security? People don't know when the FISA court authorizes monitoring of them. Before Bush changed the program, terrorists would already have to live with the expectation that they could be monitored without their knowledge. Asserting that this revelation hurt security requires a plausible scenario in which a terrorist would be more careful now than he would have been a month ago. I can't think of one.

Dave
1.1.2006 6:05pm
Anderson (mail) (www):
Smithy, "patriotism" is the love of one's country, not the idolization of one's President.

You seem to be thinking of the "cult of personality," which I'm sure right-thinking Soviets praised for helping them to defeat the Germans after WW2.
1.1.2006 6:19pm
Smithy (mail):
is the love of one's country, not the idolization of one's President.

When you're at war, there's not much of a difference. And hating your president certainly isn't patriotic, no matter the circumstances.
1.1.2006 6:20pm
Justice Fuller:
Smithy,

What did you think of Bill Clinton during 1992-2000? Did you "hate your president" back then, and if so, were you being unpatriotic? Or did you idolize him?
1.1.2006 6:23pm
Smithy (mail):
I didn't hate Clinton, but I hated what he did to the office of the presidency. It makes me laugh when you liberals compare "Plamegate" or whatever your scandal du jour is (what are you guys calling the surveillance story, BTW?) to some of Clinton's whoppers. Travelgate and Filegate were much, much worse than anything that has gone on under Bush. And for lying about Lewsinky, he should have gone to jail the same way any other serial perjurerer would have.
1.1.2006 6:27pm
subpatre (mail):
JosephSlater writes "So you read Orin Kerr's analysis that the activities probably violate the FISA and conclude that "there's not the slightest hint any violations of FISA ever happened"?

Absolutely. If Orin Kerr is one of the NY Times' sources, "officials familiar with the continuing operation", or a "current and former officials, who were granted anonymity because of the classified nature of the program" then that's a different situation. His representation to date is that he is not.

Orin's analysis is unfortunately made on an assumption, one not in evidence. To be charitable, perhaps he thought the NY Times articles were using legal terms. A normal reading shows that's not true; the Times uses legal and common usage terms intermixed.

Can anyone point out a single allegation of FISA violation?
1.1.2006 6:27pm
Robert Schwartz (mail):
Encapsulates the essence of Washington insiderism. Lawyer covers his @$$, rats out bosses to newspaper creatures. "It wasn't my fault, I was against it."

Comey is a weasel. Remind me not to hire him. Washington is full of them (oh yes, and grafters and blow-drys), which is why we red-staters hold the swamp in contempt.

The real investigation has to be of those who regard government office as being their personal property. It is high time that the leakers and their enablers in the MSM go to jail.
1.1.2006 6:43pm
Justice Fuller:
Smithy,

Bush opponents say exactly the same thing about Bush that you say about Clinton: they don't hate him personally, they just hate the things he has done to the Presidency.

Oh, and I'm not a liberal -- I am a conservative and a Republican, so the "you liberals" line doesn't really work. Nice try, though.

Subpatre,

Clever trick: By your own terms, the only people who can point out a single allegation of FISA are the people who are forbidden by law to mention any single violation of FISA. Everyone else is merely going on assumptions which cannot be trusted. Nice!
1.1.2006 6:45pm
Smithy (mail):
which is why we red-staters hold the swamp in contempt.

With Comey out, there's one less weasel at DOJ, at least. That's been one of the real successes of the past few years: kicking out the weasels and replacing them with team players.
1.1.2006 6:52pm
Defending the Indefensible:
Smithy,

Do you happen to work for DOJ?
1.1.2006 7:06pm
Justice Fuller:
For those trying to follow along at home, you might want to know that the Smithy Dictionary has the following entries:

WEASEL (WEE-zull) n. Principled public servant committed to the rule of law.

TEAM PLAYER (teem PLAY-er) n. Political hack who will do anything and say anthing Karl Rove wants. Generally aspiring to higher level government position and eventual career as high-paid lobbyist.
1.1.2006 7:09pm
Pooh (www):
Well, at least one team (Abramoff/Delay) appears to be receiving a game misconduct.
1.1.2006 7:11pm
Smithy (mail):
Well, at least one team (Abramoff/Delay) appears to be receiving a game misconduct.

If you think that kind of Inside Baseball stuff has much traction outside the Beltway, you're in for a big surprise in November.
1.1.2006 7:12pm
Frank Drackmann (mail):
I wonder how the disclosures of the NSA program would have affected the 2004 presidential election? I wouldn't have voted for Kerry even if there was video of both Bush daughters applying the electrodes to Saddams genitals.
1.1.2006 7:15pm
Greedy Clerk (mail):
On a tangential note, I find Michelle Malkin's attempt to say that this is not a "real story" to be rather funny: "Nice try at nefarious spin. Two words: Big deal. So, an underling filling in for his boss doesn't want to sign off on a major, national security decision. Where's the controversy?" Link here.

I also find her consistent claims that anyone concerned about NSA surveillance is just a "chicken little." I guess to a person who thinks rounding up tens of thousands of American citizens on the basis of their ethnicity alone, this really is no big deal though. The right-wing blogosphere ought to be proud of their superstar Michelle Malkin -- another in the long line of righties trying to outdo one another by saying the most outrageous thing possible and then being considered an "intellectual" for doing so. See also, e.g., John Yoo; Ann Coulter (i.e. constitutional scholar Ann Coulter per Fox News); John Derbyshire.
1.1.2006 7:19pm
Smithy (mail):
The disclosure would have helped Bush, obviously. The American people don't care about legal niceties, they care about security. Bush made the right call here. Kerry undoubtedly would have whined about the surveillance and gone along with the whole Michael Moore crowd paranoia about it, and looked ever more the wingnut.
1.1.2006 7:19pm
Defending the Indefensible:
Smithy,

I asked, "Do you happen to work for DOJ?"

Since you've gone ahead and replied to others since, but ignored my question, should we take that as affirmation?
1.1.2006 7:21pm
Polaris (mail):
Sorry guys, but from what has been revealed no violation of FISA occured. What you are seeing is the NYTimes deliberately conflating the legal and common definitions of "domestic".

I will help everyone out. A communication is NOT domestic unless it:

1. Occures with at least on "US Person" as defined by NSA Regs/Statute. [Generally that means a US Citizen and/or Perm Resident NOT under the pay or control of a foreign power.]

2. BOTH ends of the communication are within US boundaries.

What is alleged applies to OUTGOING *international* calls, and as I explained at length elsewhere, FISA doesn't apply here (because 1801(f)(2) is meaningless in today's telecommunications environment).

-Poalris
1.1.2006 7:21pm
subpatre (mail):
Justice Fuller writes "Clever trick: By your own terms, the only people who can point out a single allegation of FISA [sic] are the people who are forbidden by law to mention any single violation of FISA.

The question was asking for a single allegation of FISA violations, not allegation of a single (ie particular) violation. The Times' anonymous sources did have potentially legitimate legal concerns; not one concerning FISA. Your rewording's a strawman.

Justice Fuller writes Everyone else is merely going on assumptions which cannot be trusted. Nice!

Everyone else to you perhaps.(grin) Everyone else that alleges FISA violations is doing so without any support or evidence at all, in the face of coherent and logical contradictory evidence.

I could even see people assuming something (FISA violations) in the absence of any contradictory evidence, but that's not the case. Every inside source contradicts it. Claims of FISA violations are, in essense, calling the Times' sources, the President and the Justice department bald-faced liars; all of them.

The only warrantlessness is assuming FISA violations.
1.1.2006 7:24pm
Greedy Clerk (mail):
Smith is doing his best Ann Coulter impression: "They used to hang people like James Comey. But I'd be perfectly happy if he just spent the rest of his life in jail." Sure, a guy who would not "sign off" on anything the President did should be hung. Please explain what "crime" Comer is guilty of. Or is it a "crime" not to give in to all the wishes of the President? If so, Janet Reno is a criminal for permitting Ken Starr to continuously expand his probe above and beyond anything having to do with its original purpose.

As to your truly laughable statement that Clinton did such horrible things and Bush has done nothing compared to him, I suspect that you take this Onion articleseriously. It never ceases to amaze me how far the Republican apologists are willing to go. I do not doubt that if George W. Bush went on TV tomorrow and said that he was running for a third term, brandished a John Yoo memo saying that the two-term limit on the Presidency was not applicable if the executive declared it harmful to National Security, people like Smithy, Powerline and Malkin would be writing about the "treasonous" people who questioned his actions. And I am not being hyperbolic, these people would defend anything the President does as long as it does not involve a blow job or a cigar.
1.1.2006 7:29pm
OrinKerr:
Polaris,

I don't think I follow you. The definition of electronic surveillance from 50 U.S.C. 1801(f) includes:

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

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

If you have evidence that the communications were not wire communications covered by 1801(f)(2), I would be very interested to see it. But what's your argument that the monitoring falls outside 1801(f)(1)?
1.1.2006 7:30pm
Dave from Woodstock:
Whoa, I take an hour or so off to clean up the home office and the things get pretty hot here. I am not going to take any political bait, but someone posited a question about what possible national security harm could come from these disclosures?

Here's one: I have read (and like everyone else I don't KNOW the facts) that much of this operation was a data mining operation, looking for the equivalent of key words in a search, but from an algorithmic perspective. Let's just say there are word or number patterns involved that a computer finds, and there are associations that some patterns have with bad guys. From what I've read, there aren't even names associated with the communications at this point, but there are "handles", IP addresses for example, or MAC machine codes (it is probably vastly more intricate then this but time is limited and we don't really KNOW the facts anyway).

In order to demonstrate constitutionality, facts WILL have to be discussed and examined closely. If that is done publicly, it seems obvious that al Qaeda's computer and espionage experts (and they apparently have some very good ones) will adapt, and thank us very much for the free gift.

This is a war (whether some partisans of the left believe it or not) and our enemy is dangerous and sophisticated (cave imagery notwithstanding).

So I say again, if this program is effective AND unconstitutional (for reasons other then the bad faith of the actors to distinguish this from the Watergate analogy liberal partisans seem to love...in other words I assume Bush has not been spying on his political opponents) let's figure out how to fix those defects quietly and get on with protecting the homeland.
1.1.2006 7:33pm
Defending the Indefensible:
Prof. Kerr,

I think Polaris' argument is that he thinks the definition of "United States person" does not include a person suspected of being involved with foreign terrorists.

Of course, what happens if those suspicions turn out to be incorrect is a separate question.
1.1.2006 7:34pm
Greedy Clerk (mail):
Polaris, you must work for Faegre &Benson LLP with John Hinderaker. Your legal analysis is very impressive.

By the way, who cares about the plain meaning of statutes anymore? I give up. I am going to have to just go along with the right wing, it's much easier to just pretend you are one of them. I believe the President did not violate FISA because he just didn't. Anyone who says otherwise is part of the Michael Moore hates America tin-foil hate paranoid conspiracy chicken-little crowd. That includes Orin Kerr, by the way, along with many, many other Republicans. But obviously, Orin has been corrupted by the librul academy, and these other "RINOs" just want to kiss up to the librul media.
1.1.2006 7:36pm
OrinKerr:
Defending the Indefensible,

"United States person" is defined in 50 U.S.C. 1801(i) as

************
a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
************

What's the case that a person suspected of being involved with foreign terrorists falls outside that definition?
1.1.2006 7:38pm
Anderson (mail) (www):
I wouldn't have voted for Kerry even if there was video of both Bush daughters applying the electrodes to Saddams genitals.

Actually, I think this would have reaped MORE votes for Bush.
1.1.2006 7:38pm
subpatre (mail):
Orin - You can't call overseas on a wire. You probably can't even call another state by wire any more.
1.1.2006 7:42pm
Greedy Clerk (mail):
I think Polaris' argument is that he thinks the definition of "United States person" does not include a person suspected of being involved with foreign terrorists.

Well, I just read Article II of the Constitution and I have to say that I think Polaris is definitely right. You see it's pretty clear when you read Article II real closely that it give the President the unilateral power to revoke a person's citizenship -- and status as a "United States person" -- if he determines, in his sole discretion, that the person is suspected of terrorism. Further, Article II provides that the President does not need to tell anyone about it. All he has to do is determine it.

It's pretty clear, just read Article II very, very closely --- you will see it. Only activist liberal judges with their "living constitution" and "penumbras" would come up with some absurd interpretation of the Constitution that precludes the President from exercising one of his express Article II powers, such as the ones I just mentioned. I mean it is clearly in the Constitution -- just read it. Plain meaning, baby. It's there.

For those elitist lawyers reading this, don't bring up the the 14th Amendment and try to use your activist judgifying powers. That stuff only works on the Micheal Moore crowd. Those of us in the know who studied at the Federalist Society's John Yoo School of National Security law know that the 14th's citizenship clause did not affect this unilateral power because, you see, the Framers of the 14th would have said so if they meant to repeal such an important Presidential power. Anyone who would think that the 14th Amendment repealed such an express and fundamental power of the executive must be looking for penumbras and emanations in the living constitution.

1.1.2006 7:45pm
subpatre (mail):
Dave writes "Asserting that this revelation hurt security requires a plausible scenario in which a terrorist would be more careful now than he would have been a month ago. I can't think of one."

Here's one :
A phone call of type YY needs a warrant to be tapped. Reviews by attorneys, including the notable Professor Orin Kerr, conclude that it's illegal for the US to tap these type communications without a warrant.

AQ or another force establishes contact protocol for their US operatives that, among other procedures, makes sure they qualify as a "US person", and call from US territory. These are the statutory requirements that type YY calls can't be intercepted without a warrant.

This assures AQ et al that, along with their other procedures (rolling clones, etc) it's a practical impossibility for the US to legally intercept the calls. Although still suspicious and careful not to make too much contact, type YY calls are used to notify operatives of impending arrests or when time is critical.

As of Dec 16th 2005, anti-American forces' communications training prohibits type YY phone calls.
1.1.2006 7:48pm
Polaris (mail):
Orin Kerr,

Actually my point is even simplier than that. The communications in question don't fall under 1801(f).

1801(f)
***********
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

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

I emphasized the key loopholes that allow the NSA to function.

In 1801(f)(1), you must have a reasonable expectation of privacy. As you know that has a very specific set of criteria which are NOT met for foreign communications. As Tom Holsinger stated in an earler thread, because foreign governments do not protect communications crossing their boundries in any way (and in fact listen to them routinely), no reasonable expectation of privacy exists if either end is outside the US.

In 1801(f)(2), the subparagraph only applies to intercepts physically done INSIDE the US which is totally meaningless for the NSA and for modern telecommunications.

Thus the NYTimes has lied by deliberately obfuscating the term "domestic".

If one end of a communication is outside the US, it's NOT domestic surveillance, US Person or no.

-Polaris
1.1.2006 7:49pm
Polaris (mail):
Greedy Clerk,

Instead of trying to make me sound like a Nazi, why don't you try reading what I post...and read some of Bamford's books on the NSA (which I can not comment on). I make no reference to article 2 per se other than to say that the argument is academic because no violation of FISA occured.

For that matter, why don't you try reading FISA carefully.

-Polaris
1.1.2006 7:52pm
OrinKerr:
Subpatre writes:

"Orin - You can't call overseas on a wire. You probably can't even call another state by wire any more."

Yes, agreed. At the same time, the definition of wire communication in FISA is a little bit more particular. "Wire communication" is definited in 50 U.S.C. 1801(l) as "any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications." That means that if the tapping is happening over any kind of wire or like connection, the communication is a wire communication even if the rest of the communication is sent without a wire. I read the latest NYT stories as suggesting that there was some kind of tapping into the actual wires at the providers, at least in some contexts. Of course, as I've said from the beginning, it depends a lot on details we don't know, so all of these perspectives have to be a bit tentative.
1.1.2006 7:53pm
Wendy:
MR. SAFIRE: Right. But the very fact that the FBI has to do a little paperwork beforehand slows them down and makes them think for a minute. It doesn't slow them down as much as the president has made out to believe, because there's a wrinkle in it saying that if it's a real emergency and you have to get this information, then you can get it and get the approval within 72 hours afterwards. So there's always this struggle in a war between liberty and security. Doris, you go into that in your book, and Lincoln did, indeed, suspend habeas corpus, but there it is in the Constitution, "It shall not be suspended except in invasion or a rebellion," so he had the right to. He didn't have the right, I think, to close the Brooklyn Eagle or see the arrest of the leading dissident, Vanlandingham, and he made some mistakes.

But just as FDR later made a mistake with the eight saboteurs and hanged them all, and just as we made a terrible mistake with the Japanese-Americans in World War II and have apologized for that. During wartime, we have this excess of security and afterwards we apologize. And that's why I offended a lot of my conservative and hard-line friends right after September 11th when they started putting these captured combatants in jail, and said the president can't seize dictatorial power. And a lot of my friends looked at me like I was going batty. But now we see this argument over excessive security, and I'm with the critics on that.

--William Safire on MTP today

http://www.msnbc.msn.com/id/10558586/
1.1.2006 7:56pm
Polaris (mail):
OrinKerr,

I can't comment on this more fully of course, but almost all international oceanic (trasatlantic/transpacific) cables are NOT common carriers per the wording of the statute. That hasn't been true since the 1950s. It's another big fat loophole.

-Polaris
1.1.2006 7:56pm
Polaris (mail):
Wendy,

When if comes to electronic intelligence/security, Mr. Safire doesn't know what he is talking about. When it comes to electronic intelligence, you have to make critical decisions in SECONDS not hours.

-Polaris
1.1.2006 7:58pm
Pooh (www):
subpatre,

WHAT? Make a showing that these are AQ phone calls and then get a warrant. Or start now and wait 3 days, and, wait for it, get a warrant.
1.1.2006 7:58pm
jrose:
subparte,

Aren't undersea fiber-optic connections wired?

Orin,

As far as I can tell, Polaris argues that the evidence to support his 1802(f)(2) claim would compromise national security.
1.1.2006 8:00pm
Polaris (mail):
Pooh,

How? In order to make that determination, you have to be listening in in the first place, and if you insist on excluding calls in such a way that YY is always excluded, then the volume is too great to do this selectively.

You seem to think this is a single operator with a headset listening into Grandma Kent.

That's not the way it works at all. [At least not for the NSA.]

-Polaris
1.1.2006 8:01pm
Willard:
I must say, OrinKerr, I think they have you. Clearly modern communications don't travel by wire, so (f)(2) doesn't apply. As to (f)(1), I don't believe that any of the 9/11 terrorists were lawful permanent residents (they were here under various statuses, some of them illegally). Is there any allegation that any communications with lawful permanent residents were intercepted?
1.1.2006 8:01pm
OrinKerr:
Polaris writes:
In 1801(f)(1), you must have a reasonable expectation of privacy. As you know that has a very specific set of criteria which are NOT met for foreign communications. As Tom Holsinger stated in an earler thread, because foreign governments do not protect communications crossing their boundries in any way (and in fact listen to them routinely), no reasonable expectation of privacy exists if either end is outside the US.

In 1801(f)(2), the subparagraph only applies to intercepts physically done INSIDE the US which is totally meaningless for the NSA and for modern telecommunications.
Whether foreign governments listen in on calls is probably not relevant to the question of a reasonable expectation of privacy in international calls. That's because a reasonable expectation of privacy for Fourth Amendment purposes is not the same as an expectation of privacy that a reasonable person would have. The few courts that have touched on this have suggested that U.S. citizens retain Fourth Amendment protection outside the U.S., and have not looked to the actual practices of foreign countries to determine this. (Foreign law has been held to be relevant, but not, as far as I know, foreign practices.) Of course, there are arguments (see my initial post last week) that there is no Fourth Amendment protection anyway under the border search exception, or special needs, or other types of exceptions. But I don't think your analysis works.

As for your second point, regarding 1801(f)(2), what is your evidence that the monitoring is happening overseas? What overseas providers are letting the NSA tap into their communications lines?
1.1.2006 8:02pm
Polaris (mail):
jrose,

Yep. I realize to some of you it sounds like I am weasling out, but I am not. There are very specific things that are and are not classified....and proving that 1801(f)(2) is a dead issue would involve explaining methodes and means for the NSA that are classified. Point in fact while I have stayed within bounds, I still probably have said too much as it is.

You can rest assured that in the Intelligence Committee, they WILL see the full story....and the problem will pass legal muster. This of course makes it easier whenever the next wartime executive really *does* want to abuse his power.

-Polaris
1.1.2006 8:04pm
Apodaca:
A Shorter Freeper Apologia:
Everything was perfectly legal, and didn't violate FISA or the Fourth Amendment -- in fact, there was no legal restraint at all on intercepting these communications. That's why the President went out of his way to personally review and approve the program every 45 days. He was being extra solicitous of the privacy interests -- legally baseless though they were -- of all the 100%-proven-beyond-a-reasonable-doubt Al-Qaeda operatives inside the US.

1.1.2006 8:09pm
Polaris (mail):
Orin Kerr,

I suggest you read Bamford's "The Puzzle Palace". I think you will find there and elsewhere that foreign practice must be considered when talking about INTERNATIONAL communication. You have already admitted that there is no 4th amendment issue. I point to Tom Holsinger's posts in a prior thread on this. "Reasonable Expecatation of Privacy" is very precisely defined and as long as one end of a communication is not in the US, it does't apply. In fact in that prior (and long) thread, we've all pretty much come to that conclusion.

As for the second part, you know I can't go into the specifics. Suffice it to say that almost all NSA personelle work outside the US and the US has agreements with more than two dozen other nations that permit the NSA to act as agents of that nation for the purposes of gathering electronic intelligence. That means that FISA certainly doesn't apply to them. What's more, using TS/SCI (TK) systems, even an operator in...say...Kansas can technically do intercepts outside the US. That's all I can say on a non-secure system.

-Polaris
1.1.2006 8:09pm
OrinKerr:
Polaris,

Nope, it doesn't sound like you're weasling out. One of the interesting questions about this story from the beginning has been whether the surveillance is being done in a way that exploits a loophole in FISA. You're giving us food for thought. It would be nice to know whether you are an NSA insider or a 19-year-old college student having fun with us, but hey, that's the blogosphere for ya.
1.1.2006 8:11pm
subpatre (mail):
FISA was passed in another age, when the Cold War was at its height and 'conventional' (James Bond type) espionage was the yardstick. Even in ‘78 immigration was regulated, and any individual foreign national could, if needed, be located within a day or two.

By the time FISA was proposed, the Vietnam War was over, and there was no significant threat left from domestic radical groups that earlier declared war on the US. The Rockefeller (Presidential) and Church (Congressional) Committees revealed gross abuses of intelligence in the CIA and FBI, most in the 60’s and 70’s.

Congress was faced with outraged constituents demanding citizen protections, and on the other hand, America’s counter-espionage agencies steadily uncovered damage with the observation “most offenders are trusted insiders (citizens), not foreign agents”.

Congress had to reconcile the clamor for citizenship protections with the need to counter very real foreign threats. The result is a law that has many protections of all sorts and all ways; shot through with enough exceptions that any likely foreign influence can be monitored. Modern technology's created more loopholes yet.

Only wholly domestic communication by ‘US persons’ has any protection at all, and even that’s incomplete.


Has anyone come up with an allegation of FISA violations, even indirect, from the Times' sources yet?
1.1.2006 8:12pm
Polaris (mail):
Orin,

If you review the case law brought up by Tom and others, you will find that the courts have found the 4th amendment applies even in foreign countries if and only if that country had laws such that a reasonable expectation of privacy existed. For example, if I call from Vancouver B.C. to someone in Toronto, then the 4th amendment applies because Canadian Telecom laws protect that communication and provide me with an expectation of privacy. OTOH if I make a call from Seattle to Vancouver B.C., no Canadien law protects me and thus there is no reasonable expecation of privacy. Earlier Tom Holsinger explained this very well.

-Polaris
1.1.2006 8:12pm
Polaris (mail):
Orin Kerr,

I will say this much (it's UNCLAS EFTO....but I can reveal my own personal information). I was a Communications-Computer Operator (with some Analyst training) permanently stationed at the 381st at Elmendorf. I have told all of you things (which is why they are EFFIs) that only ex-NSA people would know but technically aren't classified.

-Polaris
1.1.2006 8:16pm
jrose:
Polaris,

What are the precedents that support your Seattle-to-Vancouver, no-expectation-of-privacy claim?
1.1.2006 8:18pm
Polaris (mail):
Orin,

It's the best I can do to show my bonafides. Either believe me or not. Regardless the Congressional Intell committees will get the full scoop and it will pass full legal muster (which is why the Intell chair is insisting that HE run the hearings...and I agree...it's too sensitive for open hearings).

-Polaris
1.1.2006 8:18pm
Polaris (mail):
jrose,

It's in the US code (chapter 50 I think). If you don't have an expectation of privacy under foreign law, then a reasonable person is supposed to know that (or learn of it). I believe they teach that in law school (but I am sure that the legal eagles here can be more explicit).

Think of it this way. If you SHOUT that you killed someone, then the police don't need a warrent to use that as evidence against you. Likewise, if you invite an officer of the government into your home, then anything he sees is admissable without a warrent.

Why? Because you are giving up your right to privacy.

A reasonable person is supposed to know that foreign governments can (and for that matter do) listen into communications (physical and electronic) that crosses their national bounderies. Because a reasonable person knows this, a reasonable person that does it anyway is giving up their right to privacy and thus their 4th amendment rights.

That's ALWAYS been the case and the litgation in 1978 against the NSA was settled in favor of the NSA on this basis.

-Polaris
1.1.2006 8:26pm
jrose:
Polaris,

Orin took issue with your privacy analysis by claiming "a reasonable expectation of privacy for Fourth Amendment purposes is not the same as an expectation of privacy that a reasonable person would have." A review of the precedents on both sides would be helpful (or a more specific citation of the applicable statutes).
1.1.2006 8:32pm
subpatre (mail):
rjose writes "Aren't undersea fiber-optic connections wired?"

No. Wire is wire (metal) and optical fiber is optical fiber (glass-like) not wire. Not a great defense, but more than enough in other cases of defined substances, such as drugs.

Polaris gives other, better defenses to surveilling the trans-oceanic cables

In addition, "...if such acquisition occurs in the United States..." is another easily exploited loophole.

Microwave links are used for tons of short-to-medium distance trunk communications. Especially in the NE or California, these could be 'heard' in Canada or Mexico. [I know this could also be used for domestic-domestic acquisitions, but that's not been alleged] These links may also be exploitable by other means that aren't technically in the US.

FISA's full of holes on purpose. Now, has anyone found the NY Times' sources alleging that FISA was violated?
1.1.2006 8:35pm
Polaris (mail):
jrose,

I am not a lawyer so don't expect a full legal analysis from me. I do know that Tom Holsinger who is a lawyer has explained earlier and at length why REP doesn't apply to international communications.

Let me make this as simple as possible.

If I make a phonecall from Seattle to Vancouver B.C., is the RCMP (Royal Canadian Mounted Police) allowed to tap my phone call without a warrent?

YES. This is legal under Canadian Law.

Because it's legal under Candian Law, the Canadian Government can then give that information to the FBI whereupon the FBI can use it as evidence against me.

A REASONABLE person (as legally defined) is supposed to know this and so there is no expectation of privacy as defined in Chapter 50 US Code (if I recall the chapter correctly).

I happen to know for a fact not only can the RCMP do this, THEY HAVE and it's been upheld in US courts every time.

-Polaris
1.1.2006 8:40pm
Smithy (mail):
Everything was perfectly legal, and didn't violate FISA or the Fourth Amendment -- in fact, there was no legal restraint at all on intercepting these communications.

You call it an apologia -- most scholars seem to call it the truth. The fact that you don't like president Bush doesn't make his actions illegal.
1.1.2006 8:41pm
Apodaca:
"Aren't undersea fiber-optic connections wired?"

No. Wire is wire (metal) and optical fiber is optical fiber (glass-like) not wire.
50 USC 1801(l): "a wire, cable, or other like connection"
1.1.2006 8:51pm
minnie:
It would be nice to know whether you are an NSA insider or a 19-year-old college student having fun with us, but hey, that's the blogosphere for ya.

Orin, my own take, after having masochistically forced myself to read all of his Walter Mitty ramblings, an endeavor I do not recommend, is he is more like a sixteen year old who read a few books by Bamford and Tom Holsinger and enjoys passing himself off as someone "in the know". Thank goodness you popped up to address him before he had driven away even the most loyal of your readers. I agree that's the blogosphere, but I worry about its future as a vehicle of exchange between serious people. Only a moderator of your extraordinarily unique qualifications could hold me here if the price of admission is wading through such repetitive teenage malarky.
1.1.2006 8:54pm
moonfall:
subpatre, polaris, rjose: As Orin says,
"Wire communication" is definited in 50 U.S.C. 1801(l) as "any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier

If we're going to nitpick about wires and common carriers, lets do so:
1) If you have a landline phone, you have a "wire", at the very least from the base of your phone to the wall.
2) Even if you don't, and you want to argue that a fiber optic cable isn't an "other like connection", it will go through the switching station at some point, and a wire will be involved.
3) And regardless of the status of the transatlantic cables, every phone co in the US is a common carrier, so a common carrier will be involved.

Oh, and polaris: "almost all NSA personelle work outside the US". Bull.
1.1.2006 8:57pm
jrose:
Polaris,

All you have done is re-state your belief in "the reasonable person" standard without any supporting citations. In particular, you did not address Orin's claim that "a reasonable expectation of privacy for Fourth Amendment purposes is not the same as an expectation of privacy that a reasonable person would have."
1.1.2006 8:59pm
Perseus:
Since top officials of the Justice Department serve at the pleasure of the president--and should do so to promote executive energy and accountability--I don't consider Comey's alleged "neutrality and independence" to be a virtue regardless of whether his views are correct.
1.1.2006 9:00pm
Polaris (mail):
Jrose and others,

Orin is simply incorrect about REP as are you. I am reposted this post written by Tom Holsinger who IS a lawyer with direct experience with the case law here and this post is taken from a prior threat on Article 2 and the NSA.


Attacks on electronic surveillance of foreign communications are flat out laughable. NONE of the people doing so have at all considered the applicability of foreign law here, or the intelligence agreements we have with foreign governments.

Foreign commmunications - those to and from the U.S. - have two ends, here and in some foreign country. 50 USC 1801(f) requires a "reasonable expectation of privacy" for there to be any warrant requirement, so it is necessary to consider the law of the foreign countries involved, not ours alone, in determining whether there is a privacy expectation.

And there isn't. Foreign governments can SECRETLY monitor phone calls and email to their countries from other countries. I am not aware of ANY foreign country whose government is subject to any check whatever on secret monitoring of phone and email traffic involving other countries. Some have laws creating, for purposes of 50 USC 1801(f), reasonable expectations of privacy for phone calls which take place entirely within their national boundaries, but none have any restrictions on monitoring of foreign (for them) communications.

Furthermore foreign governments can grant other governments the right to monitor the same communications, and many have. With us. The United States government has intelligence agreements with lots and lots of countries which expressly allow the U.S. government to monitor all their foreign communications, and in many instances their domestic traffic as well.

The neat thing about 50 USC 1801(f) is that it defines "electronic surveillance" as only that surveillance of communications in which there is a reasonable expectation of privacy (provided the surveillance takes place outside the U.S., which is almost always the case). If there is no privacy expectation, listening to 'em is NOT "electronic surveillance" and so not at all subject to FISA.

FISA has a great big built-in loophole for foreign communications - those between the U.S. and other countries. It does not in any way limit the government from monitoring those communications. It does not apply at all to foreign communications.

Those here who continue to contend that FISA applies to foreign communications are wasting their time, and ours.

Phone calls and emails which originate and terminate in the U.S. are domestic communications and so subject to FISA's warrant requirement for surveillance, albeit with many exceptions.



It's very cut-and-dried. If one end of a communication is outside the US, then you don't have a reasonable expectation of privacy in the LEGAL sense and 1801(f)(1)(3,4) simply do not apply.

It's always been that way, ant FISA was written this way deliberately to allow the NSA to do just this.

-Polaris
1.1.2006 9:02pm
Smithy (mail):
Since top officials of the Justice Department serve at the pleasure of the president--and should do so to promote executive energy and accountability--I don't consider Comey's alleged "neutrality and independence" to be a virtue regardless of whether his views are correct.

Well said. Comey wasn't a team player. He put his own personal liberal ideas about governance ahead of the tasks the president asked him to do. He deserved to be passed over. And now -- he deserve to go to jail.
1.1.2006 9:03pm
Polaris (mail):
Moonfall,

BULL right back out you. Most NSA personelle are uniformed members of the military and most work overseas.

Look it up.

As for carriers, once the US boundary is crossed, the communication is fair game because no REP exists. That's always been true...and AC-2 cables are non-common cables.

-Polaris
1.1.2006 9:05pm
subpatre (mail):
jrose - I withdraw the "wire-v-optic" defense, as it's just plain wrong.
§1801(l) "Wire communication" means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
The bolded portion would undoubtedly include fiber-optics. It's the common carrier requirement that eliminates protection of oceanic cables; perhaps some interstate cables too.
1.1.2006 9:06pm
Polaris (mail):
Moonfall,

In addition, vitually all data collection occures outside the US (almost all NSA stations are outside the US) and even those in the US can within seconds technically collect outside US boundaries using the correct (and classified) techniques.

-Polaris
1.1.2006 9:06pm
Polaris (mail):
Smithy,

If he was involved with the leak, the punishment under Title 18 US Code is 10 years hard labour.

-Polaris
1.1.2006 9:08pm
Smithy (mail):
If he was involved with the leak, the punishment under Title 18 US Code is 10 years hard labour.


That seems about right. I think he should do a little more, though, in light of extenuating circumstances, such as the fact we're at war.
1.1.2006 9:09pm
Polaris (mail):
Minnie,

The joke is on you. I worked at the 381st in Elmendorf.

-Polaris
1.1.2006 9:12pm
Polaris (mail):
Minnie,

Of course you should be ashamed of yourself for buttering up to the moderator and demanding that I give bonafides (at least more specific ones) that you know are classified.

That makes you a really swell person.

-Polaris
1.1.2006 9:14pm
jrose:
Polaris,

Holsinger's post also states the "reasonable person" standard without supporting citations. He may very well be correct, but I would like to see his - and Orin's - citations.
1.1.2006 9:22pm
jrose:
subparte,

Why does the "common carrier" requirement eliminate oceanic cables from the purview of FISA?
1.1.2006 9:27pm
Polaris (mail):
JRose,

Look up "Reasonable Expectation of Privacy" in a Law Dictionary. "reasonable" as defined by statute is quite different from the common meaning. A "reasonable" person is supposed to be aware of the protections that foreign law may or may not provide. As Holsinger said much earlier, that is taught under "Jurisdiction" (it's another way of saying that ignorance of a foreign law is no excuse). I am not a lawyer, but even I know that much.

Well, it's cut-and-dried. If you give up your right to privacy (which you do when you cross international bounderies), then no Reasonable Right to Privacy Exists. The FISA w/r/t the NSA has always been interpreted that way.

-Polaris
1.1.2006 9:29pm
Polaris (mail):
jrose,

Transoceanic cables are type AC-2 which are explicitly non-common cables.

-Polaris
1.1.2006 9:30pm
OrinKerr:
I was thinking primarily of United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987), United States v. Barona, 56 F.3d 1087, 1093-95 (9th Cir. 1995), and United States v. Bin Laden, 126 F.Supp.2d 264 (S.D.N.Y 2000).
1.1.2006 9:32pm
Polaris (mail):
JRose,

Let's put it another way. Let's say that a criminal runs a smuggling ring from Seattle to Vancouver B.C. Can the FBI tap his phone without a warrent? Not in the US.

However, the RCMP in Vancouver BC CAN tap his international calls from Seattle. What's more the RCMP can (and often does) give the FBI matching authority in Canada (and vice versa of course) which means the FBI can act in Vancouver BC under Canadian law and tap his international calls without a warrent.

Is such evidence admissiable?

YES it is. Not only is it, but it always has been.

The point is that a reasonable person (as defined legally) knows that there is no expectation of privacy for phone calls that cross the US/Can border. Thus 1801(f)(1,3,4) do not apply.

The same applies to the NSA but more so.

-Polaris
1.1.2006 9:36pm
Polaris (mail):
Orin,

Both those are 9th CT cases and I believe you will find that they deal with cases INSIDE a foriegn govt where there was REP based on foreign law.

-Polaris
1.1.2006 9:37pm
jrose:
Polaris,

What is an AC-2 cable and why are they "non-common" cables (citations, please).
1.1.2006 9:39pm
Apodaca:
Smithy:
Comey wasn't a team player. He put his own personal liberal ideas about governance ahead of the tasks the president asked him to do. He deserved to be passed over.
Edmund Burke:
Your representative owes you, not his industry only, but judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.
[Speech to the electors of Bristol, Nov. 3, 1774]
1.1.2006 9:39pm
Just an Observer:
Orin,

As I recall from the previous thread, Tom Holsinger and Polaris said there has been a longstanding. twofold loophole in FISA's definitions that allowed interception of international traffic:

* 1801(f)(1), 1801(f)(3) and 1801(f)(4) did not apply because there was no "reasonable expectation of privacy" in international communitions

* 1801(f)(2) -- which omits that language, did not apply because NSA intercepts typically occurred outside the United States.

That sounded interesting, and may well have been the case historically. But then I pointed out that the 12/24 NYT story reported one of the novel things about the NSA program Bush authorized was that it began capturing the information at communications switches inside the United States.

Polaris' rebuttal, IIRC, was that the NYT was biased so the facts it reported were probably falsified.

At that point, I withdrew from the dialogue. (I also do not argue with anyone who insists their religion is right and everyone else's is wrong. Theoretically they may be right, but their assumptions are beyond reasonable debate.)

The historical points Polaris and Tom make remain interesting, I think.
1.1.2006 9:39pm
Polaris (mail):
However, as I said before, I am not a lawyer so I might be mistaken.

However, I would be astonished if you *seriously* are trying to claim now (as you did not in the Article 2 discussion earlier when Tom Holsinger who is an expert in this area brought this up) that somehow the US constitution and US law somehow applies outside the US. Frankly, no insult intended, I find the notion laughable.

-Polaris
1.1.2006 9:40pm
Polaris (mail):
Just An Observer,

That was not my rebuttal and I invite those to go read it for themselves. I do think the NYTimes is biased and I DO think they are deliberably obfuscating the distinction between international and domestic communication for political gain.

However, the operative rebuttal was that switching even for US switches *technically* does not occure in the US. It is this that voids 1801(f)(2).

-Polaris
1.1.2006 9:42pm
OrinKerr:
One more thought -- I assume the precedent Polaris is thinking of is Stowe v. Devoy, 588 F.2d 336
(2d. Cir. 1978), in which a U.S. citizen in the U.S. called Canada, and the Canadian authorities tapped the call in Canada pursuant to Canadian law. They then turned over the tapes of the calls to U.S. authorities. The Second Circuit held that this didn't violate the Fourth Amendment:

******************
As a starting point, the Fourth Amendment exclusionary rule does not apply to arrests and searches made by foreign authorities on their home territory and in the enforcement of foreign law, even if the persons arrested and from whom the evidence is seized are American citizens.[FN12] United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976); Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1968), Cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969). The rationale underlying this limitation is the doubtful deterrent effect on foreign policy practices that will follow from a punitive exclusion of the evidence in question by an American court.[FN13] However, if the circumstances of the foreign search and seizure are so extreme that they “shock the judicial conscience”, a federal court in the exercise of its supervisory powers can require exclusion of the evidence so seized. United States v. Morrow, supra, 537 F.2d at 139; United States v. Cotroni, supra, 527 F.2d at 712 n.10; Birdsell v. United States, 346 F.2d 775, 782 n.10 (5th Cir.), Cert. denied, 382 U.S. 963, 86 S.Ct. 449, 15 L.Ed.2d 366 (1965); See United States v. Nagelberg, 434 F.2d 585, 587 n.1 (2d Cir. 1970), Cert. denied, *342 401 U.S. 939, 91 S.Ct. 935, 28 L.Ed.2d 219 (1971). The circumstances in the instant case do not fall within this exception.


FN12. That Stowe was in the United States when his calls were intercepted does not change the result here. The law of the locality in which the tap exists (and where the interception takes place) governs its validity, even though the intercepted phone conversations traveled in part over the United States communication system. United States v. Cotroni, supra, 527 F.2d at 711.


FN13. United States v. Morrow, supra, 537 F.2d at 139. Stowe argues that exclusion would deter further Canadian intrusions upon the privacy of American citizens. However, the exclusionary rule, as a deterrent sanction, is not applicable where a private party or a foreign government commits the offending act. United States v. Janis, 428 U.S. 433, 455-56 n.31, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). Rather, the exclusionary rule is intended to inculcate a respect for the police of our own nation. United States v. Cotroni, supra, 527 F.2d at 713. Since it has little if any deterrent effect upon foreign police, See United States v. Welch, 455 F.2d 211, 213 (2d Cir. 1972), it is seldom used to bar their work product. United States v. Cotroni, supra, 527 F.2d 713.



There could be no contention here that the Canadian authorities did not scrupulously follow their own prescribed procedures, or that their conduct could in any way shock the conscience of the court. There exists no case, so far as we are aware, which suppresses evidence obtained in a foreign country under such conditions, regardless of whether the foreign officers failed to follow American constitutional procedures or of the extent to which American agents may have been involved in their activities. The courts can hardly be said to have spoken with one voice in articulating the reasons for their decisions, but as a statistical matter they have apparently been unanimous in rejecting attempts to suppress the challenged foreign evidence.

************************
1.1.2006 9:43pm
Polaris (mail):
Just An Observer,

The switches aren't in the US. They are above it.

-Polaris
1.1.2006 9:44pm
Polaris (mail):
Orin,

I did say that I wasn't a lawyer, but that is indeed the precendent I was thinking of. Note that the possible exclusion depends on a consideration of FOREIGN LAW just as Tom Holsinger stated.

It seems to bear out what I have said all along at least on this issue.

-Polaris
1.1.2006 9:48pm
Just an Observer:
Polaris,

Do you have personal knowledge of the special NSA program Bush authorized and how it has been operated recently? Or are you drawing on your general experience with that large agency?
1.1.2006 9:49pm
Justin (mail):
The United States constitution does apply extraterritorial to the degree it restricts the efforts of the United States government on United States citizens. Of course, the effect of this extraterritorial application varies based on the circumstances, but it definitely exists.
1.1.2006 9:49pm
OrinKerr:
Polaris,

Not quite, actually. As I read Stowe, the key was that the monitoring was undertaken by a foreign government to investigate a violation of foreign law. That is quite different from a rule that there is no REP in any foreign communication against monitoring by the U.S. (Granted, I say that with the caveat that there are lots of arguments that reach the same result, as explained in my 1st post on all of this stuff.)
1.1.2006 9:52pm
Apodaca:
The FCC seems to think that some transoceanic cables are used for common carriage:
The Filing Manual defines international facilities-based circuits as “international circuits in which a carrier has an ownership interest. For this purpose, the term ownership interest includes outright ownership, indefeasible right of use (IRU) interests, or leasehold interests in bare capacity in an international facility, regardless of whether the underlying facility is a common or non-common carrier submarine cable ...
But I'm sure they don't really have any expertise on the subject.
1.1.2006 9:57pm
Polaris (mail):
Justin,

Not quite. It doesn't apply when US personelle by treaty agreement are empowered to act as agents of a foreign government. That is the usual case with the NSA.

Orin,

I am not a lawyer, but a plain language reading of the precedent makes it clear that:

1. Any REP depends on FOREIGN law (just as we contended).
2. If the Foreign law doesn't offer an REP (which is always the case with international communications), then one doesn't exist even for a US person.

Now, there *are* cases (and I have never said otherwise) where an REP exists even in foreign countries. The example I gave was a phonecall from Vancouver BC to Toronto. That is protected as a Canadian Domestic call and thus an REP exists.

Canadian law doesn't protect international calls at *all* and so no REP exists for such. BTW, I know of no country that does protect international calls.....the US is the only country I know of that has even toothless restrictions on it.

-Polaris
1.1.2006 9:58pm
Polaris (mail):
Apodoca,

That doesn't say what you think it does. The FCC is acknowledging that some trans-Oceanic cables are in fact non-common cables. Point in fact all AC-2 cables are non-common.

-Polaris
1.1.2006 10:00pm
Polaris (mail):
Apodoca,

Hint: Trans-Oceanic cables USED to be common and the FCC had to cover all possible cases. There are still regulations covering leaded gasoline in most US states even though you can't find it and it's illegal in most places now.

-Polaris
1.1.2006 10:02pm
Perseus:
Apodaca: Note that what Burke says is: "Your representative owes you, not his industry only, but judgment..." An appointed subordinate of the executive is not a representative of the people, but rather, one of the president's "servants," and as Mr. Conservative, Burke certainly expected servants to know their place in society.
1.1.2006 10:02pm
jrose:
Polaris,

What does "the switches aren't in the US. They are above it" mean?
1.1.2006 10:03pm
Polaris (mail):
Just An Observer,

I do not have direct experience with the program Bush is said to have started. I left the NSA before then.

However, I DO know (rather intimately) how the NSA intercepts communications.

I can also read (minus the political angnst) what the NYTimes alleges the NSA has done.

To make it very clear, this is what is alleged:

The the NSA moniter calls from the US sometimes by "US Persons" to a destination ouside the US.

If you read the original article, the only thing new is that the intercepts are being done for communications that started in the US. The original article admits that the NSA has always intercepted communications that originated overseas even if they ended in the US, US Person or no. The original article also stated that warrents were still sought for "purely domestic" communications (i.e. both ends in the US).

*Legally* there is no distinction between international calls the originate in the US and originate overseas as long as one end is outside the USA. Certainly FISA doesn't make any such distinction....and the NYTimes never alleged that any FISA violation existed (from sources that were intimately familiar with it at that!)

Thus the only thing Bush is alleged to have done is "step up the pace" and use powers the NSA already had but weren't currently using to the fullest.

-Polaris
1.1.2006 10:11pm
Polaris (mail):
jrose,

The answer to your question is classifed TS/SCI (TK).

-Polaris
1.1.2006 10:12pm
Just an Observer:
Polaris: "I do not have direct experience with the program Bush is said to have started. I left the NSA before then."

Then you have no evidence, only your own speculation, that the facts reported in the NYT stories about this new program are wrong. The Times specifically reported that the new intercepts occurred at communications switches located inside the country.
1.1.2006 10:14pm
Polaris (mail):
Just An Observer,

Not true. I have direct relevant experience and that IS evidence. Ask any lawyer here and they will agree (testimony is evidence).

What's more, I happen to know where the switches are located and I can assure you that even US switches are *techncially* not in the US.

-Polaris
1.1.2006 10:25pm
Polaris (mail):
I note that even the NYTimes didn't allege any FISA violations nor did they say that intercepts occured physically in the US. They just said they occured at US Switches.

There is a difference.

-Polaris
1.1.2006 10:26pm
Kazinski:
This whole arguement seems more and more line arguing about angels on the head of a pin. Bush defended the NSA program again today:

Bush stressed that the surveillance involved telephone calls from "a few numbers" outside the United States by people associated with al-Qaida, the terrorist organization that plotted the Sept. 11 attacks. The White House later clarified Bush's remarks, saying he meant to say calls going to and originating from the U.S. were being monitored.


So accorgding to the President what he ordered was only monitoring of communications from and to Al Qaeda or associates, with one end of the communication on foreign soil. Even Jackson in his Youngstown framework concurrance said:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.


Now I'll admit that statement isn't any more controlling than anything else in Jackson's unjoined concurrance, but those who have been quoting Jackson trying to say that FISA can impede the president from ordering warrantless wiretaps on that very group that Congress has declared war against is more a farce than serious debate.
1.1.2006 10:28pm
jrose:
Polaris,

I don't see how Stowe supports your claim that "If the Foreign law doesn't offer an REP (which is always the case with international communications), then one doesn't exist even for a US person."

On the other hand, I'm not certain if Orin's citations were cases in which the searches were prohibited under foreign law.
1.1.2006 10:29pm
John Lederer (mail):
Apodoca,

In researching something that I know virtually nothing about, I plowed through a bunch of FCC orders and notices. I think Polris is likely quite correct -- almost all the later submarine cables seem to be not operated as common carriers.

Without knowing for sure, I suspect this is a result of the increased participation of companies like Global Crossing that are in the "fiber optic cable" business rather than the telephone business.
1.1.2006 10:29pm
subpatre (mail):
The NY Times reported that surveillance policy changed, and some surveillance officials had privacy concerns with it. Violations of FISA aren't mentioned.

A follow-up article stated that US monitoring agencies had access to enormous volumes of data. Today’s article is about the legal oversight of the program, with no hint of misconduct. Violations of FISA aren't mentioned.

The President says a post-911 classified interception program is "consistent with U.S. law and the Constitution".

Every month or two the program's reviewed by the AG and Counsel to the President. NSA action's are reviewed, monitored, and secretly audited by Justice and NSA counsel. Verified by anonymous leakers.

Congress was briefed many times on this program; four times since Rockefeller wrote his note, due to increased reporting requirements of a Senate resolution. Uncontested.

Why allegations of FISA violations? Why are the President, A.G. and Justice liars; with two Congressional Committees silent co-conspirators? Just who murdered William of Occam?
1.1.2006 10:29pm
jrose:
Kazinski,

If all Bush has done is the "monitoring of communications from and to Al Qaeda or associates, with one end of the communication on foreign soil," then why didn't he get warrants from the FISA court?
1.1.2006 10:32pm
Justin (mail):
So I did some research on Ian Polaris, and it turns out that Ian Polaris is the infamous handle of a teenage "Axis and Allies" internet gamer. So congrads, we've all been had for a laugh.

Clever kid, tho.
1.1.2006 10:34pm
Justice Fuller:
Subpatre,

Why is the AG, the President and DOJ relying on Article II and the AUMF when, at least according to you, they didn't need to? When asked why the surveillance program doesn't violate FISA, they're relying on the AUMF and Article II....
1.1.2006 10:35pm
Polaris (mail):
Justin,

I am in fact an Axis and Allies gamer.

So what? If you bothered to search further, you would find I was also SrA I.A. Chapman at the 6981st (now the 381st).

Look it up Justin before you make defamatory claims. [If you did a simple Zabasearch, you would also find I haven't been a teenager for years.]

-Polaris
1.1.2006 10:37pm
Polaris (mail):
Justin,

You are a swell guy to attempt to assassinate my character because you could not argue my points. Nice.

As for why POTUS is using the AUMF, the reason is simple. EXPLAINING in detail why FISA isn't violated would require revealing information that would have a catastrophic impact on our national security.

-Polaris
1.1.2006 10:39pm
M. Lederman (mail):
Polaris (and subpatre): Boy, I wish you were right that this program doesn't involve "electronic surveillance" covered by FISA in the first instance. It would mean, of course, that Orin and I and many others have wasted a whole lot of time and effort on the AUMF and FISA and Article II and the Fourth Amendment; but that would be a small price to pay if this whole thing were legally kosher on such a basic ground.

But the Administration hasn't so much as suggested that NSA isn't engaged in electronic surveillance. To the contrary, the DOJ letter indicates that it does involve electronic surveillance, at least in part, and that such ES would be prohibited by FISA, and covered by the "exclusive means" provision of 2511(2)(f), were it not for the AUMF. If this didn't involve ES in the first place, it would be extremely odd behavior to bother writing up the preposterous AUMF defense, which has won them no friends on Capitol Hill.

Moreover, as we know, there are plenty of folks within the Administration, apparently including Comey, who had very serious concerns about FISA violations -- this was a knock-down, drag-out fight within the Administration that left the losers (several of them) so discomforted that they leaked classified info to the press. None of this makes any sense unless NSA is engaged -- at least in part -- in electronic surveillance as defined in 1801.
1.1.2006 10:40pm
George Gregg (mail):
Good grief! Nearly 400 comments in the other thread weren't enough for you folks? :)

Seriously, though, I'm glad to see Orin stepping into this one. Two questions:

1. Even if the switches are in satellites (outside of the US territory) and submarine cables are no common carrier, as has been stated before, if I phone out on my land line, I'm using a common carrier at the source. So it seems that there's a common carrier involved at some point. Is this rendered moot by the fact that the actual tap may take place in space?

2. Would FISA be violated if BOTH speakers (at either end) were US persons, both within the US? I ask, because this looks pretty "domestic" to me, and would appear to be a clear violation of FISA, if true.
1.1.2006 10:41pm
Justin (mail):
It wasn't us who put your character ahead of your arguments by claiming "inside information" to defend your (often weakly argued) positions, Polaris.
1.1.2006 10:46pm
Polaris (mail):
M. Lederman,

If you have been following the bruhaha, then you'd know that both parties of the Intelligence oversight committee don't want Spectre anywhere near this.

Why? Because they know what I know (and unfortunately can't say here). Yes, Bush is taking a lot of unnecessary heat from one perspective. OTOH, I know *exactly* (or at least I think I do) what POTUS and DIRNSA are hiding and revealing it in public to the likes of AQ would have catastrophic consequences.

Can I prove that's the reason? No. I am not a telepath. However the desire to protect extremely sensitive information strikes me at least as reasonable as the scenario you presented...and the deputy AG may not have the clearence to know what is involved....or the technical background to understand it. A lot of high govt officials have shockingly low security clearences. Seriously. My clearence when I was a mere enlistee was probably higher than most people in the Bush 41 or Clinton Admins. Seriously.

George,

You asked:


1. Even if the switches are in satellites (outside of the US territory) and submarine cables are no common carrier, as has been stated before, if I phone out on my land line, I'm using a common carrier at the source. So it seems that there's a common carrier involved at some point. Is this rendered moot by the fact that the actual tap may take place in space?


Yes provided that it's an international call.


2. Would FISA be violated if BOTH speakers (at either end) were US persons, both within the US? I ask, because this looks pretty "domestic" to me, and would appear to be a clear violation of FISA, if true.


FISA would indeed be violated in such a case which is why the NSA does not deliberately target Domestic to Domestic (i.e. US at both ends) communications....and even the NYTimes admitted that warrents are still sought in such cases.

-Polaris
1.1.2006 10:51pm
Polaris (mail):
Justin,

Yes it was. What you tried to do was vile. It's called character assassination. However, you will find that I did indeed work for the NSA.

-Polaris
1.1.2006 10:52pm
Kazinski:
Jrose:
First of all the president doesn't have to waste time and effort doing what is not legally required of him.

Second of all if he didn't think the program was legal why did he brief the key congressional leaders AND the prsiding FISA judge repeatedly since thebeginning of the program.

Thirdly when a key DOJ official expressed doubts about the program, what was the administrations reaction?
the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.
1.1.2006 10:55pm
OrinKerr:
Marty,

You may be right, but there is an alternative explanation: It's at least possible that the concerns voiced by Comey et. al. were based on constitutional concerns, not statutory ones. Let's assume for a minute that the key constitutional argument within the govt was in fact the "special needs" argument that DOJ relied on in its letter. If you imagine that this is the only constitutional argument out there, then whether the program was constitutional hinged on whether it was narrowly tailored to the national security interest -- in the lingo of the special needs cases, the monitoring needed to be "justified at its inception," and "permissible in its scope." It's possible that the concerns of Comey et. al. were that the monitoring was not sufficiently tailored and specific; the thinking might be that tightly tailored monitroing was constitutional, but loose and sloppy monitoring was not. That might explain why the DOJ reaction to the program was to tighten control and audit for errors, rather than to shut it down entirely.

Anyway, this assumes a lot, obviously, but it's at least a possibility.
1.1.2006 11:00pm
jrose:
Kazinski,

Your second and third points do not address why Bush didn't go to the FISA court for warrants. The first (waste of time and effort) does - and strikes me as lame.
1.1.2006 11:02pm
M. Lederman (mail):
"The deputy AG may not have the clearence to know what is involved," writes Polaris.

Okay, now we've definitely jumped the shark.

Anyone who did not have the codeword clearance to know about these things would not have been tasked with approving the wiretaps -- and would not, for that matter, have been Deputy Attorney General.

Just think about what Polaris is suggesting: This program is so heavily classified that not even the DAG knows about it. But they ask the DAG to sign off on its legality anyway. And then when the DAG and others create a huge blow-up in the Administration about the possible violation of FISA, those in the know, instead of simply telling the dissidents "Don't worry; it's not electronic surveillance," decide to concoct a completely off-the-wall explanation of how the AUMF trumped FISA; and then, when the story goes public, they continue on with the charade, explaining to the public and Congress that this was electronic surveillance but that Congress unknowingly had authorized it in passing the AUMF . . . when, all the while, they could have simply done what Polaris him- or herself has done right here at the ol' VC -- namely, explain that it's not in fact electronic surveillance, because of technical reasons that we can't publicly disclose.

Yeah, that's the ticket.
1.1.2006 11:03pm
subpatre (mail):
George Gregg writes "Would FISA be violated if BOTH speakers (at either end) were US persons, both within the US? I ask, because this looks pretty "domestic" to me, and would appear to be a clear violation of FISA, if true."
NYT: "But in at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country."
Electronic surveillance” means—
(1) ... by intentionally targeting that United States person... ;
(2) the acquisition ... of any wire communication ... ;
(3) the intentional acquisition ...; or
(4) the installation or use of ... in the United States ...

Also see USSID 18, 5.4 Nonforeign Communications on inadvertent interceptions. Not-a-law, but in force since 1993 with Congressional assent the entire time.


Nothing personal (not ad hominem), but this really, truly is stretching to find a 'violation', any violation.
1.1.2006 11:04pm
Polaris (mail):
M. Lederman,

You think I've jumped the shark? Think again. I never said definatively that the Deputy AG did not have the clearence, but it would not suprise me in the slightest.

What you have to understand is that TS/SCI clearences are extremely tightly restricted to those with a STRICT need to know. The fact is that most FBI agents lack this kind of clearence and for good reason. They don't need it.

I was raising a hypothetical. Even if the Deputy AG did have the appropriate clearence (which is by no means certain), he might not understand some of the nature of the technology involved (does it suprise anyone here that a lot of people even very high in govt are techno-illiterates?)

There is of course another possibility (which is one reason I left the NSA). The Deputy AG may dislike the nature of the program enough where he thinks it OUGHT to be illegal. That wouldn't be a first either....and all this is assuming that the incident is being reported without distortion or bias (which is not a given since it's the NYTimes).

-Polaris
1.1.2006 11:11pm
Master Shake:
Polaris-

People who have (or formally had) top secret clearance do not go online, reveal their identity, and discuss anything even close to the subject matter that they had access to. EVER. Or did you forget that from your big top-secret training?

Oh, and the word is "personnel".
1.1.2006 11:14pm
subpatre (mail):
M. Lederman writes "Anyone who did not have the codeword clearance to know about these things would not have been tasked with approving the wiretaps -- and would not, for that matter, have been Deputy Attorney General."

Not true at all, this was a closely held secret:

NY Times, January 1, 2006 "At its outset in 2002, the surveillance operation was so highly classified that even Larry Thompson, the deputy attorney general to Mr. Ashcroft, who was active in most of the government's most classified counterterrorism operations, was not given access to the program."

" Mr. Thompson's successor, Mr. Comey, was eventually authorized to take part in the program and to review intelligence material that grew out of it, and officials said he played a part in overseeing the reforms that were put in place in 2004."
Methinks you owe Polaris an apology.
1.1.2006 11:14pm
Charlie (Colorado) (mail):

I'm waiting to find out if Comey was the source for the original NY Times article. Frankly, I think he's above prosecution for it, he is in a position to say that he believed it was a major violation of law, and he was uniquely qualified to make such a determination.


I'm not at all convinced that this is a defense for violation of the Espionage Act.
1.1.2006 11:14pm
Polaris (mail):
M. Lederman,

I just thought of another possibility. It might be that the Deputy AG didn't want to make a call about the legality because he wasn't sure...and so waited for the AG to make a final determination. I note that when the concern was raised, the program was halted for legal review. That's hardly the action of an administration that thinks the program is illegal (and the review showed that it was not).

As for the classified nature of the exculpatory evidence, I am truly sorry about that. Unfortunately that's the way it is and my NDA is very much in force. This will go before the Congressional Intelligence committee and it will be given a full bill of legal health. They know the information that I simply can not go into.

-Polaris
1.1.2006 11:16pm
OrinKerr:
Polaris,

TS/SCI clearance is not that rare at DOJ, at least in my experience. The Deputy Attorney General most assuredly had it.
1.1.2006 11:16pm
Polaris (mail):
Master Shake,

I. KNOW. THAT.

However, I have NOT violated my NDA. There is a politcal lyching going on and some are depending on what you have just said. I won't let that stand. I will NOT violate my oath or my agreement and I haven't. I have been very careful.

-Polaris
1.1.2006 11:18pm
Charlie (Colorado) (mail):

As for your second point, regarding 1801(f)(2), what is your evidence that the monitoring is happening overseas? What overseas providers are letting the NSA tap into their communications lines?


Orin, that's what the Times reported, and what the Administration has said. What evidence do you have that they weren't?

As to the second point, if Polaris knew, he couldn't tell you. Nor is it obvious that there's any "permission" involved.
1.1.2006 11:19pm
Polaris (mail):
OrinKerr,

Um, I was not just talking about TS/SCI. That covers several clearences and as was just pointed out, the Deputy AG did NOT have the right compartment. 'nuff said.

-Polaris
1.1.2006 11:20pm
OrinKerr:
Charlie,

I don't follow you. As I understand it, the NYT is reporting, and the White House is saying, that the monitoring is occuring from inside the United States.
1.1.2006 11:22pm
Polaris (mail):
OrinKerr,

No. That is not what the NYTimes is reporting. They are saying that the NSA is using US Switches. That's different.

-Polaris
1.1.2006 11:23pm
Polaris (mail):
Charlie,

If the former Deputy AG was the leak, then he is not protected from Title 18 US Code at least not as I read it.

If he was the leak, then he is looking at ten very miserable years.

-Polaris
1.1.2006 11:26pm
Smithy (mail):
If he was the leak, then he is looking at ten very miserable years.

Let's hope he's not the only one. I think Wilson and Clarke may have their hands dirty here as well.
1.1.2006 11:30pm
KMAJ (mail):
Orin,

Thanks for pointing out this string. It has been quite informative. Polaris has raised some very relevant points about REP as well as the modes of communication that are being intercepted. I think one thing we are missing in this debate is a clear definition of 'surveillance' and what can or cannot be surveilled without a warrant. Is data mining surveillance covered under FISA ? What about Echelon ? Clearly data mining was occurring under the previous administration with Able Danger. How are satelite communications dealt with under FISA ?

With the advances in technology, there is now a very clear and relevant blurring of border definitions. It was pointed out to me that you can buy a pre-paid phone card or cell phone in the US, fly to Iran and use that phone card or cell phone and call the US and it will be recorded as a domestic call if the 800 access number is within the US. It is in these areas that I find FISA falls short.

It is my opinion, the NY Times is engaging in CYA journalism. The heat has been turned up since they reported the initial story. If one notices, every story they print is an attempt to prop up or legitimize the original, with no stories that refute them, except for an op ed or two. On a story with the scope of this one, if a media source is legitimately interested in presenting a full story, they will present both sides of an issue. That has been sorely lacking in the NY Times reporting.

Just an Observer:

Though Polaris may not have evidence of this new program, he brings a level of expertise that neither you nor I can add to this discussion, and he apparently has more expertise than the NY Times or their reporters.

The NY Times bias has become so blatant that I take much of their reporting with a grain of salt and do my own research. The integrity and credibility of the field of journalism, The Fifth Estate, is declining. I wish I could say it has reached its low ebb, but it appears to be still declining. But I digress, that would be another topic, it is only relevant in so far as what role the bias plays in this issue.
1.1.2006 11:37pm
ficus:
Polaris:

<i>However, the operative rebuttal was that switching even for US switches *technically* does not occure in the US. It is this that voids 1801(f)(2).
</i>
<i>The switches aren't in the US. They are above it. </i>

I find these comments of yours perplexing. If you are talking about the switches that switch domestic U.S. telephone calls, they are in buildings in places in the U.S. They are connected to the network by physical lines (microwave, fiber) that go across the land. There may be some satellite connections but the great bulk of traffic is carried close to the surface of the earth. That is just the way the telephone network works, and it isn't a secret.

An international call to/from the U.S. goes through the U.S. domestic network, through an international switch, and through other networks outside the U.S. You may be right that the said international switch is outside the U.S.
1.1.2006 11:43pm
Polaris (mail):
ficus,

Domestic US phone calls aren't the issue here and I wasn't talking about those switches....and neither was the NYTimes. What you are describing are Domestic/CONUS switches and you are right they are physically in the US.

However, the international switching is a whole 'nother animal.

-Polaris
1.1.2006 11:47pm
Justin (mail):
Though Polaris may not have evidence of this new program, he brings a level of expertise that neither you nor I can add to this discussion, and he apparently has more
expertise than the NY Times or their reporters.

Hah, I didn't know Axis and Allies was such a complicated game :).
1.1.2006 11:49pm
Marcus1:
Question:

Though much of this is over my head, I'm intrigued by the expectation of privacy issue. Am I correct, the issue is under FISA , whether there is a reasonable expectation? Which, being statutory, would not follow the Constitutional analysis?

Based on the Canadian case discussed above, I'm simply wondering if the analysis changes when the U.S. is working together with a foreign government in a concerted program to conduct surveillance. It would seem that if the U.S. is taking part in or promoting the surveillance, it can't fit such an exception to the reasonable expectation of privacy as discussed above based in the idea that it wouldn't be a disincentive to foreign governments anyway.

Prof Kerr? Polaris? Anyone else?
1.1.2006 11:51pm
subpatre (mail):
Polaris, the NY Times article Vast Data Trove makes two claims; they may or may not intersect.

The first is that US agencies 'have access to US switches' and are using that access. Big whoop-de-doo, CALEA requires it and the service providers get compensated.

The second is that some amount of foreign calls are routed through "switches on American soil" and those calls are judged by the administration to be exempt from warrant requirements. That part's probably new.

The Times steers a fine line, but never crosses into claiming what they try to implicate: Warrantless access to domestic content using American located switches.
1.1.2006 11:51pm
Polaris (mail):
Everyone,

I just had another thought. If you want to use the reasonableness standard, the idea that FISA is being violated is unreasonable.

Why? There is no need for the NSA to do what the NYTimes as described and violate FISA simply from a technical standpoint. It is trivial to insure that 1801(f)(2) doesn't apply even going through US switches. Given that, there is no reason to violate FISA because it doesn't gain you anything.

What's more, the NYTimes has never alleged a FISA violation (read the articles). There is NO legal distinction between incepting a communication that originates in the US and it international and one that originates outside the US and ends in it. Certainly FISA doesn't make that distinction.

Given that, it's unreasonable to think that this program would be done in such a way to violate FISA when it is trivial in insure that it does not (even on the barest technicality).

This is just an additional thought of mine and nothing more. As I said earlier, I don't know how this particular program is being run, but I would be astounded if it violated FISA given what I do know. [Which doesn't mean I approve of it necessarily but that's another issue.]

-Polaris
1.1.2006 11:54pm
Medis:
So has anyone come up with a citation yet for the proposition that if a foreign government could, under its own laws, surveil some US-person-to-foreign-destination communication without a warrant, then that US person has no reasonable expectation of privacy with respect to whether the United States government itself can surveil the communications, and therefore FISA is inapplicable?

I ask because it is in fact well-known that for a long time, the US has asked foreign governments to do surveillance on their end of US-to-foreign communications, and pass the results back to the US. So, that is something of a "loophole" in FISA. But the existence of that loophole does not necessarily mean the US government itself can directly conduct such surveillance (without going through either the foreign intermediary or the FISA process), and so far I think I have only seen people making such a claim without any supporting citations.
1.1.2006 11:57pm
Polaris (mail):
Marcus1,

Yes they can. It depends on the exact treaty arrangement (which I can not discuss) that we might have with that foreign government. Generally (Bamford discusses this), US personelle are allowed by treaty to act as agents of the foreign government in this case. In such a case, US law simply does not apply....including FISA.

subpatre,

That is a very good catch. Intercepted calls are being routed through US switches. As long as the interception itself is done outside the US no matter how technically, it doesn't matter how it's routed. Naturally the NSA would want to route through US switches for greater security. That is not a violation of FISA.

-Polaris
1.1.2006 11:58pm
Polaris (mail):
Medis,

US personelle can do what you suggest as long as said personelle act as agents of the Foreign Govt on Foreign soil. That loophole is well known and has been used since 1947 at least.

-Polaris
1.2.2006 12:01am
Master Shake:
Polaris-

Seriously, the word is "personnel".
1.2.2006 12:02am
Marcus1:
Polaris,

In the original press conference where Gonzales explained the program, he and the General there stated that they had gone to members of Congress in the hope of changing FISA, but had been told it wasn't likely to happen.

They also said, as I quoted at the top of this thread: "GENERAL HAYDEN: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available."

How do you square that?
1.2.2006 12:03am
Polaris (mail):
Marcus,

That's simple. The NSA was tasked to intercept communications that they previously left alone, i.e. those calls starting in the US but terminating in a foreign country. That doesn't make it illegal. Anytime you increase your data set, you will get information that previously was unavailable. Nothing sinister about it.

-Polaris
1.2.2006 12:06am
Medis:
Polaris,

But even in that case the intermediate foreign government is involved. I'm asking about the view that the US government can do this without any involvement by a foreign government at all.
1.2.2006 12:08am
Marcus1:
Polaris,

>It depends on the exact treaty arrangement (which I can not discuss) that we might have with that foreign government.<

Can you discuss the legal standard, if not our actual arrangement? Is there a law?

The legal analysis above was based on the idea that you can't change what foreign governments do anyway, so you might as well use the evidence, if I read it correctly. But that obviously doesn't apply if we're telling the foreign government what to do. So is there a statute that makes this legal fiction work or what?
1.2.2006 12:12am
Medis:
Incidentally, Gonzales said this:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

I still find it somewhat baffling in light of such discussions that people think FISA was simply inapplicable to the entire program. Gonzales is clearly stating that FISA is in fact applicable to the kind of surveillance conducted in the program, but that the 2001 AUMF provides an out via 50 USC 1809.
1.2.2006 12:12am
Polaris (mail):
Medis,

Communication isn't protected in international airspace (or waters). It just isn't and FISA doesn't protect it either (unless it's US en route to US)....or during the cold war did you really think those Russian Fishing boats were really catching many fish off our coasts?

-Polaris
1.2.2006 12:12am
Marcus1:
Polaris,

So why did they try to get FISA changed if they knew as certainly as you that FISA supports the program?
1.2.2006 12:15am
Polaris (mail):
Medis,

Has it occured to you that Gonzales is lying (for good cause I might add) through his teeth? There is a good reason for him to lie about this.

As for the foreign powers, that would *hypothetically* depend on what treaty arrangement we had. If US personelle were given powers by the foreign govt, then they would be treated as the same for the purposes of FISA.

-Polaris
1.2.2006 12:16am
KMAJ (mail):
Polaris,

If I understand the NSA program correctly, it is a multi-phased program. The first phase is data mining, where certain codes/code words are red flagged. It then proceeds through an undetermined number of weeding out phases, where only the hits deemed credible are passed on for further scrutiny until they reach the phase of actual monitoring.

Also, from what I have researched, and there is still much we do not know and probably will not know because it is classified, Constitutionality charges are waylaid by the the oversights and reviews that are documented, including the 45 day DOJ reviews, the numerous meetings (at least 12) with the heads of the Intelligence committees and with the lead judge on FISC. Bush stated in Jan 2004 that any domestic wiretapping had gone through the warrant process with FISA. I have not seen any allegations of warrantless wiretapping of purely domestic calls, though I have seen no specifics of how this might apply to pre-paid cell phones and phone cards.
1.2.2006 12:19am
Polaris (mail):
Marcus1,

To stop discussions like this one. FISA is a very clunky statute with so many holes it resembles swiss cheese and frankly the law itself is woefully inadequate both for national security AND to protect civil liberties given the reality of modern telecommunications.

After 9/11 in particular and the problems that came out that preceeded it, I would be STUNNED if *any* administration (Dem or GOP) would not want FISA changed to reflect current realities.

-Polaris
1.2.2006 12:19am
Anderson (mail) (www):
Seriously, the word is "personnel".

I also noted "Spectre" for "Specter," leading me to wonder if Polaris is "north" of the border. Tho my Shorter OED doesn't give "personelle" even as a variant. (I think a "personelle" would be a homunculus of some sort.)
1.2.2006 12:20am
Medis:
Polaris,

I'm sorry, but that doesn't answer my question. And as I noted in my other post, Gonzales seemed to believe FISA WOULD require warrants for the surveillance in this program if not for the 2001 AUMF.

So, I really don't see any grounds yet for your assertion that FISA would NEVER cover international communications under any circumstances. Rather, I think it is true there are some ways around FISA in some circumstances, but other ways of conducting such surveillance--apparently including the ways we conducted the surveillance in this case--are in fact within the scope of FISA.
1.2.2006 12:21am
Marcus1:
Polaris,

So you're saying FISA has a clause stating that under certain treaty arrangements a reasonable expectation of privacy doesn't exist?
1.2.2006 12:21am
Polaris (mail):
KMAJ,

Your point about phone cards is well taken. To take it one step further, with almost trivial effort I could make my computer say in Texas look like it's in Kazakhstan (or vice versa). I can't really comment about the rest accept that it seems to be a reasonable understanding.

You point out, however, just how badly out of date and broken FISA is. If ANY good comes out of this (other than some well deserved jail time), I hope that FISA gets a complete overhaul.

-Polaris
1.2.2006 12:22am
Charlie (Colorado) (mail):
JaN:


Do you have personal knowledge of the special NSA program Bush authorized and how it has been operated recently? Or are you drawing on your general experience with that large agency?



Nice try.
1.2.2006 12:24am
Polaris (mail):
Marcus,

FISA doesn't have to say it. If you aren't protected by that country's laws, then that country and it's agents can intercept communications in accordance with local law. Those agents may be US Personel. There is no REP for international calls because no other country protects them. That is not necessarily true for communications within other countries.

Medi,

No. All you know is what Gonzales *claimed* to believe for public consumption. Gonzales knows perfectly well that Al-Quaeda is listening to everything he says.

-Polaris
1.2.2006 12:26am
Marcus1:
Polaris,

Gonzales said, "We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

I mean, he could be lying, but it doesn't really seem consistent with what you're saying, does it?
1.2.2006 12:28am
Charlie (Colorado) (mail):
Orin, TS/SCI clearance isn't all that rare. However, "SCI" is "special compartmented intelligence." What Polaris is talking about is how many people would be included in a particular compartment. If you want I can give you a fully rigorous description (I have done a lot of work with mathematical security modeling) but the short version is that full knowledge of this program might very well be very limited --- certainly fewer than 50 people, and possibly fewer than 20.
1.2.2006 12:30am
Medis:
Polaris,

Sure, Gonzales might be lying. And you might be lying. And we all might be living in the Matrix.

But "Gonzales might be lying" really isn't an argument of any sort, nor does it show anything in particular (eg, he could also be lying about the program only involving international communications). So I'm not sure what you think we should take away from that possibility.
1.2.2006 12:32am
Charlie (Colorado) (mail):

People who have (or formally had) top secret clearance do not go online, reveal their identity, and discuss anything even close to the subject matter that they had access to. EVER. Or did you forget that from your big top-secret training?


Hmmm. Tell that to Jim Bamford or any of the dozens of people who comment on the news channels as "former CIA agents".
1.2.2006 12:36am
KMAJ (mail):
Marcus,

I would guess that Gonzales is engaging in Beltway doublespeak, partial revelation and semantic parsing. If you really look at what he said, he only addressed 'changing FISA', what else did they discuss ? Whether FISA was necessary to carry out the NSA program ? I would think that may have been part of their conversation, but he says nothing about it. Which Congress people did he talk to ? The Intelligence Committee heads ? What did they say other than advising against trying to change FISA ? When dealing with clandestine operations, I would think we should expect officials to only give as much information as they deem necessary.
1.2.2006 12:37am
Charlie (Colorado) (mail):

If he was the leak, then he is looking at ten very miserable years.


Or more: how many counts? Pollard is still in the can.

On the other hand, Sandy Berger isn't.
1.2.2006 12:39am
Marcus1:
>FISA doesn't have to say it. If you aren't protected by that country's laws, then that country and it's agents can intercept communications in accordance with local law. Those agents may be US Personel. There is no REP for international calls because no other country protects them. That is not necessarily true for communications within other countries.<

Well, with all due respect, you may be limited here by a lack of legal background. You're describing a blatant legal fiction -- the idea that if we operate under the color of a foreign country, we can pretend that it's the foreign country doing it, and thereby say, presto, there's no expectation of privacy.

But unless there's a specific statute declaring that, a court would never apply precedent in that way.

It seems like here you just have a very weak legal argument, regardless of what clever arrangements we may have with foreign governments. I can't imagine why the cleverness of the arrangement would even matter. A court would see through it, as it obviously should.
1.2.2006 12:41am
Anderson (mail) (www):
No. All you know is what Gonzales *claimed* to believe for public consumption. Gonzales knows perfectly well that Al-Quaeda is listening to everything he says.

This is what we're left with? The WH *seems* to be criminal, dishonest, and/or incompetent, but it's just a clever disguise?

Oh brother. Good night, all.
1.2.2006 12:41am
Justin (mail):
BTW if George Bush goes on a cocaine binge and kills a hooker and then classifies it, would it be legal to tell the cops?
1.2.2006 12:42am
Charlie (Colorado) (mail):

Hah, I didn't know Axis and Allies was such a complicated game :).


Justin, don't bury yourself with this one. I'm not catching him out on anything, and unlike Polaris, I've got a certain number of public associations with the NSA and secure comms world. Not as many as I might, as a lot of stuff I did is still classified, but a bibiolgraphic search would find some.
1.2.2006 12:43am
Polaris (mail):
Medis,

I think that Charlie has the right of it. FISA does need to be changed badly. I would hope that everyone here agrees at least on that. It doesn't protect us either vis a vis national security nor civil liberties mainly because the technological assumptions behind it are hopelessly outdated.

I should have said that I think Gonzales was being deliberately misleading....and frankly he should be.

-Polaris
1.2.2006 12:43am
Charlie (Colorado) (mail):

But even in that case the intermediate foreign government is involved. I'm asking about the view that the US government can do this without any involvement by a foreign government at all.


Medis, you're making an assumption that's not in evidence here. You don't know how the intercepts occurred. I've got some of the same problems Polaris does, but it's open knowledge that intercepts are made outside the US both by US assets and through third party assets.
1.2.2006 12:46am
Polaris (mail):
Marcus,

That's what you think. All the US personel would have to do as agents of that hypothetical other country is hand it over to them. Since it was gathered legally under their laws, it would be admissable as such.

Nice try though.

-Polaris
1.2.2006 12:46am
Justin (mail):
Justin,

I'm not catching him out on anything, and unlike Polaris, I've got a certain number of public associations with the NSA and secure comms world.

Strange - several law students, a couple lawyers, and 2 law professors have already caught him out several times.
1.2.2006 12:46am
Justin (mail):
And Mr. Martin, a google of your full name and "NSA" turns up a lot of blog hits, but nothing biographical. Perhaps you'd like to back up your own assertion with a link?
1.2.2006 12:49am
Polaris (mail):
Justin,

Really? You should no sign of it. If you really did have connections with secure comm (and that's an EEFI btw), you would know that I am completely correct. The NSA does moniter international communications and always has...FISA is a dead letter.

-Polaris
1.2.2006 12:49am
Justin (mail):
Polaris, I think you got ur posts confuse. I have no more foreign policy cred than you.
1.2.2006 12:50am
Polaris (mail):
Justin,

If you need have the connections you claim, then you'd know that a google search with +NSA will miss most NSA personel.

-Polaris
1.2.2006 12:51am
Justin (mail):
Ian Ritz! Hahahaha.

Okay, I go now.
1.2.2006 12:53am
Charlie (Colorado) (mail):

If I understand the NSA program correctly, it is a multi-phased program. The first phase is data mining, where certain codes/code words are red flagged. It then proceeds through an undetermined number of weeding out phases, where only the hits deemed credible are passed on for further scrutiny until they reach the phase of actual monitoring.


I've been thinking a good bit about this recently, and I think it may be something else. I spent a good bit of time last year thinking about traffic analysis for TCP/IP on a Navy contract, and I suspect this may be primarily a traffic analysis program, not a content analysis program. (In other words, they don't care as much about what is said, just about what connections are made.) Add to that social network analysis and I can imagine some very interesting things might be made of it.
1.2.2006 12:53am
Justin (mail):
To anyone else whose interested in proof that Polaris is indeed NOT former NSA, this should suffice.

Polaris's paintball team
1.2.2006 12:56am
Polaris (mail):
Charlie,

That makes sense to me (and one of my duties was T.A. clerk so I know from experience that you can learn a lot without ever looking at the actual messages). However, I don't think it changes the nature of the debate.

As I said, I am not familiar with this *specific* program.

-Polaris
1.2.2006 12:56am
Polaris (mail):
Justin,

I have never done paintball. You might want to consider that "Polaris" is a fairly common pseudonym on the internet (especially by older computer literate people) and there might be more than one person that is being dredged up in your search.

-Polaris
1.2.2006 12:58am
Polaris (mail):
Justin,

Besides, how does "paintball" (which I have never done) have anything to do with my professional background?

Try being a bit more careful, hmmmm?

-Polaris
1.2.2006 1:00am
Marcus1:
Polaris,

>That's what you think. All the US personel would have to do as agents of that hypothetical other country is hand it over to them. Since it was gathered legally under their laws, it would be admissable as such.<

Hand it over to them meaning to the Americans? The thing is, without a statute for you to point to, it simply doesn't matter how little the U.S. agent does. The U.S. is obviously involved in this surveillance. You're saying that they can get away with this on a technicality, but the technicality doesn't seem to exist.

It seems you should at least admit that you're not quite sure about this one.
1.2.2006 1:01am
Polaris (mail):
Marcus,

Actually I am absolutely sure on this one because I have first hand experience with it. The problem is that I can't talk about it.

Suffice it to say, it falls under treaty law which supercedes the FISA statute. 'nuff said. [Particularly when the information is being used for intelligence rather than for legal purposes.]

It works and I have seen it work.

-Polaris
1.2.2006 1:04am
Medis:
Charlie,

In that post I was just asking about a legal claim, not necessarily assuming it applied to this program. As I implied in a later post (and have explained in more detail before), my general view is that whether surveillance of international communications requires a FISA warrant is a complex, multi-factor issue.

So, I wouldn't just assume that any surveillance program involving international communications was electronic surveillance within the meaning of FISA. But since people in an actual position to know about the program, like Gonzales, seem to think it falls within the scope of FISA, I see no real reason to believe otherwise.

But Polaris' argument seems to be that surveillance of international communications could NEVER be electronic surveillance within the scope of FISA because legally there is no expectation of privacy in such calls. So, the argument goes, no matter what Gonzales said, this program just couldn't be within the scope of FISA.

So, I want to know if there is any legal support for the premise of that argument.
1.2.2006 1:08am
Charlie (Colorado) (mail):
Justin —-

First of all, for God's sake, learn enough HTML to distinguish what you're saying from what other people are saying. See those little rectangles up there with, like "block quote"?

Second, I'm sorry, I meant "I haven't caught him out on the security stuff." he doesn't claim to be an attorney. On the other hand, Orin was mistaken, or showed some little ignorance, of how a TS/SCI works and thought he'd caught Polaris on something but was mistaken.

On the third point, "Charles Martin" isn't the most uncommon of names. But here are a few things from my CV:

I'm an author of two chapters of The Book on how secure systems were certified under the NSA's supervision.


John McHugh. and C. Martin ``Covert Channel Analysis'' chapter in the Handbook for the Computer Security
Certification of Trusted Systems. Naval Research Laboratory, November 1994.

John McHugh, C.N. Payne and C. Martin ``Assurance Mappings'', ibid.


I was the original architect of the only secure computing windowing system that was ever capacble of certification at a top level.

Jeremy Epstein, John McHugh, Hillary Orman, Rita Pascale, Ann Marmor-Squires, Bonnie Danner, Charles R. Martin, Martha Branstad, Glenn Benson, Doug Rothnie , "A High Assurance Window System Prototype," Journal of
Computer Security 2, 159-190, 1993.


Yes, I was the original architect but only fourth author. Such is academic politics.

I was co-author of one of the original studies on building highly secure systems in an industrial environment.

John McHugh and Charles R. Martin.” A Trust Analysis Tool," ``Requirements for a Trust Analysis Tool Based on Configuration Management.'' TRW Systems Division, Fairfax, VA, August 1989. (Appendix B and C to ``A
Process Model For High Performance Trusted Systems in Ada''.)


Any questions?
1.2.2006 1:09am
Polaris (mail):
Marcus,

Let me explain the hypothetical like this (with the caveat that this doesn't cover all cases and I make no specific claim that it necessarily covers any).

Suppose the USA has a Treaty agreement (approved by the Senate no less) with Gondwanaland. Suppose as part of that agreement, selected US Personelle were empowered by the Gondwanaland Ministry of Justice to perform electronic surveillance. These personelle acting as agents of Gandwanaland then hand over some pertinant information to the Ministry of Justice...and lo and behold the Minister of Justice determines that the US FBI should be informed of it as well.

Under precedent already covered in this thread, this evidence is admissible. Because of this no expectation of privacy existed (because the original agents could well have been Gondawanaland citizens), FISA doesn't apply....and the treaty agreement is what governs here.

Mind I am not a lawyer, but it seems clear enough to me at least in this hypothetical.

-Polaris
1.2.2006 1:09am
subpatre (mail):
Justin - actually what's happened here is the "§ 180xx (x)(x)" talk has almost stopped because there aren't any violations alleged.

Correction. Nobody in a position to know has alleged FISA was violated. Quite a number of comments here have, and some are stretching to any length to make that case.

BTW - I have no problem calling something that's stupid "stupid", or receiving in kind. Your comments are way over the line, they are the very definition of ad hominem.
1.2.2006 1:11am
Polaris (mail):
I note that it is open information that the FBI and CIA use exactly the same end-run around some US laws.

-Polaris
1.2.2006 1:12am
Charlie (Colorado) (mail):

Hand it over to them meaning to the Americans? The thing is, without a statute for you to point to, it simply doesn't matter how little the U.S. agent does. The U.S. is obviously involved in this surveillance. You're saying that they can get away with this on a technicality, but the technicality doesn't seem to exist.


Marcus, get a copy of The Puzzle Palace. That this is done, and has been done for many years, is open knowledge.
1.2.2006 1:13am
Marcus1:
Polaris,

Well, for one thing, you're saying that Gonzales has a duty to lie about this, which somewhat diminishes your credibility.

For another thing, it seems rather far fetched that you could be sure about the legality when you're not a lawyer.

I've seen the notion that an expectation of privacy only relates to criminal evidence rules, and I've seen it pretty well debunked. Since you've already advocated lying to promote your cause, though, I guess further discussion is kind of pointless.
1.2.2006 1:14am
Defending the Indefensible:
Polaris (aka Ian A. Chapman) is not part of NSA, and if he were he would not be talking about the surveillance program at issue publicly.
1.2.2006 1:15am
Polaris (mail):
Medis,

I don't blame you for thinking it falls under FISA because a lot of the noise certainly seems to imply it and Gonzales certainly allowed you to think this without quite saying so.

The problem is that the exculpatory information in full would cause more damage than it's worth to reveal for any political gain. That at least is my take given what I know and given my background in this area.

-Polaris
1.2.2006 1:16am
Medis:
Polaris,

But I haven't seen any legal support for the proposition that because the US might be able to use this path to bypass FISA if all the right conditions are met, there is no reasonable expectation of privacy.
1.2.2006 1:17am
Polaris (mail):
Defending the Indefensible,

Nope. Most personel in the NSA are not officially listed in the NSA. Most are military members. Point in fact I did indeed work for the NSA.

-Polaris
1.2.2006 1:18am
Polaris (mail):
Medis,

In such a path FISA is meaningless because the treaty law controlls.

Defending,

If you have my name, you can easily confirm that I served in an intelligence capacity. I expect an apology.

-Polaris
1.2.2006 1:20am
Defending the Indefensible:
Polaris (Ian Chapman):

Nope. Most personel in the NSA are not officially listed in the NSA. Most are military members. Point in fact I did indeed work for the NSA.

If you did work for the NSA but were not officially listed as doing so, you would not talk about it. Uncited (and uncitable) "points in fact" notwithstanding.
1.2.2006 1:21am
Medis:
Polaris,

Sorry, that was a cross-post--I was referring to your prior hypo.

But on Gonzales--actually, he straight out said that FISA would have required a warrant for this kind of surveillance if not for the 2001 AUMF. And since you are not claiming to actually know the details of this program, I think your personal take is outdated. So I seriously don't understand why you think anyone should believe that Gonzales was lying.
1.2.2006 1:21am
Polaris (mail):
Oh...one more thing. I never said I was *currently* part of the NSA. I said just the opposite multiple times in fact. But I was.

-Polaris
1.2.2006 1:22am
subpatre (mail):
Defending the Indefensible - How is this "Ian A Chapman" a violation of FISA? Or can't you defend the substance of the thread?

Please see Eugene Volokh's below admonition on personal attacks and invective. Whether true or not, your post is a personal attack, and adds nothing to the discussion.

If you have substance to refute or modify another comment, please do so.
1.2.2006 1:23am
Defending the Indefensible:
To all who are continuing to converse with "Polaris" on the presumption that he is or ever has been a member of NSA, or otherwise connected in any way with any "intelligence" community of the United States government:

YHBT. YHL. HAND.
1.2.2006 1:25am
Marcus1:
>Under precedent already covered in this thread, this evidence is admissible. Because of this no expectation of privacy existed (because the original agents could well have been Gondawanaland citizens), FISA doesn't apply....and the treaty agreement is what governs here.<

The question isn't whether they "could have been" Gondawanaland citizens, but whether this was surveillance actually insigated by Gondawanaland by their initiative and for their purposes, indendent of any U.S. influence whatsoever. If there was any U.S. influence whatsoever, whether hidden through tricky schemes or not, then the exception described above would not apply, because the whole argument justifying it -- "Hey, it's a foreign government, so we can't help what they do anyway" -- would not be applicable.

When courts apply precedent, they don't do it as a technicality. They apply principles. Of course, courts can be corrupted, or they can do things for false reasons if they have some hidden agenda, but that's no support for your position here. I mean, if your argument is that the Supreme Court could find some ridiculous reason for upholding this program, I'd have to agree with you completely. That doesn't appear to be what you're saying though. You're saying that because of some secret treaty that you can't tell me about, the U.S. can manipulate standard precedent regarding what is a reasonable expectation of privacy. That simply doesn't work, based on what you have said.
1.2.2006 1:25am
Charlie (Colorado) (mail):

So, I wouldn't just assume that any surveillance program involving international communications was electronic surveillance within the meaning of FISA. But since people in an actual position to know about the program, like Gonzales, seem to think it falls within the scope of FISA, I see no real reason to believe otherwise.

But Polaris' argument seems to be that surveillance of international communications could NEVER be electronic surveillance within the scope of FISA because legally there is no expectation of privacy in such calls. So, the argument goes, no matter what Gonzales said, this program just couldn't be within the scope of FISA.


Medis, as I've said, I'm a logician/mathmatician/computer geek, and not a lawyer, but isn't that a common kind of legal argument? Htat is, "in the alternative"?

Now, as I read §1801 et seq, it would seem like it's set up that way anyway. You can't intercept "US persons" (§1801(a)) unless the person is an "agent of a foreign power" (§1801(a) and (b)). It looks to me like Judge Sands felt alQ was a "foreign power" under §1801(a)(1-3), and so §1801(b) would apply, but he didnt' say that exactly, he just noted §1801(a); however, if you intercept some person and you conclude later they are "US persons", then you've got a prescribed minimization procedure which, if followed, immunizes you from prosecution. (Otherwise what's the point of establishing a minimization procedure?) And Judge Sands seemed to go along with that too, as he excluded some evidence but didn't find the government as having exceeded its authority on collecting it.

But then, if that doesn't apply, there's the issue of foreign comms, which apparently has been asserted and upheld on many occasions, although not by the SCOTUS.

But then if that doesn't work, there's the AUMF argument, and if that one falls there's the Article II argument.

I'm not sure you can infer anything from which potential alternative Gonzales picked except that he's smart enough to know he's only got a 3 second soundbite anyway.
1.2.2006 1:25am
Medis:
Polaris,

It would depend on what the treaty said, but I doubt it would actually waive FISA. What you are describing is just a way for the US to use a foreign intermediary to bypass FISA, not an actual waiver of FISA.

And again, I see no legal support yet for the claim that the mere possibility of getting around FISA by using a foreign intermediary in this fashion means that FISA does not apply in other circumstances (eg, when the US is not using this scheme).
1.2.2006 1:25am
subpatre (mail):
Medis wrote "Gonzales--actually, he straight out said that FISA would have required a warrant for this kind of surveillance if not for the 2001 AUMF"

Do you have a cite?
1.2.2006 1:26am
Polaris (mail):
Defending,

I can talk about it if it's become open information and it has. If you look at my military record (unit and station is enough), you will find that I am telling the truth. ENOUGH SAID.

Medis,

I will admit that it's not impossible that this program would have required a warrent, but I find it incredibly unlikely in the extreme given the information that we all have (I am talking getting hit by lightning twice unlikely). Remember that I am a semi-anonymous poster on a chat room. Gonzales is the AG. What that means is Gonzales has to be much more careful about EXACTLY what he says.

Why? Because in the end I can clam up (and I have several times). However the media/political pressure takes that option away from a public official like Gonzales. He is misleading you. I am virtually certain of it.

-Polaris
1.2.2006 1:28am
Charlie (Colorado) (mail):

Well, for one thing, you're saying that Gonzales has a duty to lie about this, which somewhat diminishes your credibility.


Medis, you're asserting that Gonzales doesn't have an obligation to lie about it, which pretty well demolishes yours.
1.2.2006 1:29am
Charlie (Colorado) (mail):

To all who are continuing to converse with "Polaris" on the presumption that he is or ever has been a member of NSA, or otherwise connected in any way with any "intelligence" community of the United States government:


DtI, as you've seen citations of some of my professional publications, I think I've got more reason to assert some expertise than you do. And I can tell you, Polaris is saying the right things. I don't know him personally but I know the topic, and he's got me sold.

I suggest you're just trying the good old ad hominem.
1.2.2006 1:33am
Marcus1:
Polaris,

I was hoping you'd explain why you think Gonzales has a duty to lie, but you would only tell the truth.
1.2.2006 1:34am
Polaris (mail):
Marcus,

I've said as much as I can. I do know FOR A FACT that interception of international communication originating in another country coming to the US has been done since 1978 (and before) and has ALWAYS been upheld as legal even if it involved US Persons (as defined by NSA regs) as long as the interception was done outside the US.

I also know that FISA makes no distinction between communictions coming into the US and communications going out of the US and I *know* that there is no technical barrier that would preclude either kind of interception.

That's why given what I have learned about this program, I find it impossible to believe it's illegal. Either the ENTIRE NSA mission is illegal, or this program is. There simply isn't a middle ground.

-Polaris
1.2.2006 1:34am
Medis:
Charlie,

I'm not sure I follow your FISA argument. But my point is just that Gonzales not only did not make an argument that FISA was inapplicable, he actually said it WAS applicable and WOULD HAVE required a court order if not for the 2001 AUMF.

So all this speculation about how they could have avoided FISA seems pretty pointless to me. Gonzales is not making that argument, not even in the alternative. Rather, what he is saying flatly contradicts that suggestion--which, I might note, I have never seen someone with actual knowledge of the program make.
1.2.2006 1:34am
Medis:
Charlie,

Also, I believe you quoted another poster and attributed it to me (the duty to lie post).
1.2.2006 1:37am
Medis:
subpatre,

Marcus1 linked the relevant press briefing in his 12:03 post above. I subsequently quoted the relevant language, which was:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."
1.2.2006 1:39am
Charlie (Colorado) (mail):
Medis, I think you're just trying to make too much stew from one oyster. I don't think there's any question that there could be effects of this that do require FISA authorization; for example, if they found a "US person" who was involved, they might then want a FISA warrant to get admissible evidence.

But as far as what the argument they might brief would be, I don't think it is quite reasonable to expact they would lay out a whole brief in a 5 second sound bite.
1.2.2006 1:39am
Polaris (mail):
Marcus1,

Technically my participation in this thread is a huge EEFI and I may well get into hot water over it. I have tried to be careful and honor my NDA, but I would not be at all suprised if I got a stern warning from DIA.

However, I am just a private citizen these days and a very minor one at that in the grand scheme of things (and this is deliberate) and I now live a very quiet life. That de facto gives me the freedom to smash some falsehoods that public officials like the AG, POTUS, and DIRNSA can not. You see, A-Q can't be sure that I am not pulling their leg...and that's not the case for a public official like the former. Does that clarify things.

-Polaris
1.2.2006 1:39am
Charlie (Colorado) (mail):

I've said as much as I can. I do know FOR A FACT that interception of international communication originating in another country coming to the US has been done since 1978 (and before) and has ALWAYS been upheld as legal even if it involved US Persons (as defined by NSA regs) as long as the interception was done outside the US.



Along those lines, i really recommend The puzzle palace or Bamford's new book.
1.2.2006 1:40am
Charlie (Colorado) (mail):

Also, I believe you quoted another poster and attributed it to me (the duty to lie post).


Sorry, the handles blur together after a while. (One reason I gave up and just post under my real name.)
1.2.2006 1:42am
Medis:
Charlie,

First, the passage I have been quoting is from Gonzales' extended prepared remarks at the beginning of the press briefing. Second, this is NOT just Gonzales omitting an argument. It is Gonzales saying the EXACT OPPOSITE of what some people are arguing (that FISA would not have required warrants for this surveillance).

And seriously--do you know of anyone in a position to know who has ever argued that no part of this program would have fallen within the scope of FISA? And if no such person has ever made that argument, and Gonzales is saying the exact opposite, I just don't see why I should believe Gonzales is lying.
1.2.2006 1:44am
Polaris (mail):
Also to add to "Charlie's" point (I feel more comfortable using handles and I hope you appreciate why), it is not at all unheard of in a legal case to get a FISA warrent even if a narrow reading of FISA may not require one.

After all, why borrow trouble? [Or to put it another way, why give the defendant a reason to appeal even if you have him dead to rights?]

I am not in law enforcement, but it is my understanding that even the local police will often take the same approach. Even if the officer has probable cause, many will still (if at all possible) get a warrent anyway....just to be SURE they are covered.

As I see it, same, same.

-Polaris
1.2.2006 1:47am
Medis:
Incidentally, I'd also recommend Bamford's 1999 article in the Washington Post, Loud and Clear.
1.2.2006 1:48am
Polaris (mail):
I can easily believe Gonzales is lying or at least not telling what he knows. Once more, in order to fully explain why FISA would not be required, he would have to publically disclose TS/SCI (TK) information.

I would lie through my teeth under those conditions. I hope you would as well.

-Polaris
1.2.2006 1:50am
Medis:
Polaris,

That is mostly a red herring. He need not "fully explain" why FISA is not applicable. For that matter, he need not take any stand whatsoever about whether FISA is applicable. But he actually took a stand and claimed FISA would have been applicable if not for the 2001 AUMF ... and you can't explain that just on the basis of Gonzales wanting to keep the details of the program secret.

Instead, it would have to be some sort of disinformation campaign ... but you really aren't in any position to know.
1.2.2006 1:57am
subpatre (mail):
United States Signals Directive [USSID] 18, "Legal Compliance and Minimization Procedures" July 27, 1993
9.8 FOREIGN COMMUNICATIONS means a communication that has at least one COMMUNICANT outside the UNITED STATES, or that is entirely among FOREIGN POWERS or between a FOREIGN POWER and officials of a FOREIGN POWER, but does not include communications intercepted by ELECTRONIC SURVEILLANCE directed at premises in the UNITED STATES used predominately for residential purposes.
It would appear from the date, that this is accepted procedure, post-FISA, and subject to many opportunities for review by Congress.
1.2.2006 2:00am
ficus:
Medis,


Instead, it would have to be some sort of disinformation campaign ... but you really aren't in any position to know.


You have hit on the most plausible explanation, if what Polaris has been saying is correct. Naturally, Polaris would not know why the AG said what he said; the most he knows, if he knows anything, is that FISA has not been treated by the NSA as though it covered the things the AG says it covers. If you believe Polaris, then the AG's statement remains unexplained, or, rather, one can only speculate about it.
1.2.2006 2:06am
Polaris (mail):
Medis,

I am sorry you think so, but the definition of Foreign Communications cited by subpatre backs everything I have been saying.

Suppose for a moment I am correct. Just suppose.

How does AG Gonzales address the legality of the program? He can not simply assert that FISA doesn't apply as I have. He would be forced to explain why in public and in detail.

That would require him to reveal information that is classified TS/SCI (TK).

I find it highly believable that he is lying (or at least shading the truth). Don't you? Seriously, what would you do?

-Polaris
1.2.2006 2:08am
Defending the Indefensible:
1.2.2006 2:10am
Polaris (mail):
ficus,

You don't believe that the AG might be involved in disinformation on this issue. We now know that POTUS himself deliberately used misinformation about this program (and this isn't the first POTUS to use misinformation about NSA programs). Sometimes it has to be done.

-Polaris
1.2.2006 2:12am
Polaris (mail):
DtI,

Funny how you attack my character when you can't counter what I am saying. Yes I attended UTAustin. What of it? Just because I am an avid gamer doesn't diminish my credentials whatsoever. If you really DID have my name, you could find out very easily that I am telling the truth.

Why don't you check the USAF personel records in Elmendorf AFB. You will find my name in an intelligence capacity (at one time). That's all the help you get from me.

-Polaris
1.2.2006 2:16am
Polaris (mail):
Oh, DtI, when I was in NSA (and I feel confident Charlie can attest to it as well), gaming was a very popular recreational activity.

BTW, that is a stale email address.

-Polaris
1.2.2006 2:18am
Medis:
Polaris,

As an aside, I'm not sure what subpatre thinks that definition shows. That definition of "foreign communications" contains no "procedures", and it doesn't say that all foreign communications are not subject to FISA procedures. And FISA does not say it only applies to "domestic" communications, so merely identifying something as a "foreign communication" does not show it is outside of FISA.

Anyway, if you are correct, Gonzales could just say nothing about whether FISA applied. He could also say FISA doesn't apply but say nothing about why (I frankly have no idea why you think he could be forced to give details). So the only reason he would need to tell the opposite of the true (aka lie) is if he was spreading disinformation.

Finally, I don't know what you mean by "believable". I have said before he could be lying about this. He could also be lying about anything else. Again, the mere possibility that he would lie in the name of national security doesn't actually show he has anything to lie about in this particular instance.

I'm sorry, but I really don't see your point. Yes, there are possible NSA programs which would bypass FISA. But you don't know if this particular NSA program is one of those possible programs. And so even if Gonzales would actually lie IF you were right (a dubious proposition), you have given us no real reason to believe your speculation IS right in the first place, so you have given us no real reason to believe Gonzales actually IS lying.
1.2.2006 2:21am
Polaris (mail):
Medis,

*sigh* I am right about this. Assuming the information that has been made public is the scope of the program, then either the program is legal or the entire NSA mission is illegal. There simply is no middle ground.

I note that the very same communications now in question going the other way have been intercepted without legal question or qualm for almost thirty years....and FISA does not make the distinction.

Given that, I either believe that the NSA deliberately violated the law when there was no technical reason to do so and NO technical advantage in doing so.

OR

I believe that the AG, DIRNSA and POTUS are misleading the people about the applicability of FISA.

The second is a far more reasonable proposition.

What's more in order to explain how FISA doesn't apply, you MUST reveal TS/SCI (TK) material. You will have to take my word on it, but it is accurate.

-Polaris
1.2.2006 2:27am
subpatre (mail):
United States Signals Directive [USSID] 18, “Legal Compliance and Minimization Procedures” July 27, 1993
3.1 The policy of the USSS is to TARGET or COLLECT only FOREIGN COMMUNICATIONS. The USSS will not intentionally COLLECT communications to, from or about U. S. PERSONS or persons or entities in the U.S. except as set forth in this USSID. If the USSS inadvertently COLLECTS such communications, it will process, retain and disseminate them only in accordance with this USSID.
Capitalized words are defined in Section 9. It's almost a shame to quote this stuff when the link's given and not used. Maybe someone should try 'disinformationing' to see if the Bush-bashers fall for it like they have for the Times' insinuations.
1.2.2006 2:41am
Wendy:
This makes it sound like this NSA program is unusual and legally questionable:

Some Fear Eavesdropping Could Undermine Work of Spy Agency

SNIP

But the former top officials said the recently revealed program, which sidestepped a secret court, violated longtime agency practices. Those were established after the revelation of the NSA's earlier abuses in operations code-named Minaret and Shamrock.

After the 1978 law was passed, the NSA issued an internal directive known as US Signals Intelligence Directive 18, barring agency employees from eavesdropping on Americans in the United States, with few exceptions.

NSA employees are required to re-read the document every six months and sign a form stating that they've done so.

"As a Signals Intelligence (SIGINT) officer, it is continually drilled into us that the very first law chiseled in the SIGINT equivalent of the Ten Commandments is that 'Thou shall not spy on American persons without a court order from FISA,'" said former NSA analyst Russell Tice.

If the NSA inadvertently intercepts the communications of a US citizen or communications that mention a US citizen, they are supposed to be destroyed. There are a handful of exceptions.

Intercepts of US citizens that aren't destroyed go into a special database - code-named "Body Surf" - and the real names are masked, available only to a handful of people.

http://www.truthout.org/docs_2005/printer_122505F.shtml
1.2.2006 2:42am
Polaris (mail):
Medis,

One more thing. While it is true that FISA doesn't explicitly apply only to domestic communications, de facto it does. That's because the restrictions on intercepting international communications are totally meaningless (and this has been the precedent for almost thirty years).

I add that in the case where domestic communications are (generally by accident) intercepted, there are specific procedures that protect the operators in question and the privacy of the US Persons either by destroying (i.e. minimizing) the information in a verifiable way (the usual case) or by forwarding (in certain very select cases determined by regs) to the appropriate legal authority (presumably to get a FISA warrent). There is NOTHING that has been alleged to date that tells me that this policy has been changed in any way since I left.

-Polaris
1.2.2006 2:47am
Diversity Hire (mail):
Defending the Indefensible, evidence of participation in computer gaming activities does not impugn Polaris' technical credibility; if anything, I'd say it lends credibility to his claim to have spent long hours outside Anchorage...
1.2.2006 2:48am
Polaris (mail):
Wendy,

That is both true and untrue. What you say is completely true for NSA stations in the United States. It is not true otherwise. What's more, USSID 18 backs me on this.....and US Persons is a very tightly defined set according to NSA regs.

Mr. Tice is required to say what she said, but it isn't completely accurate as I can attest to from personal experience. It *is* a serious offense to spy on US Persons without specific orders to do so, but the procedure she mentions only applies in the US...and there are procedures (that are classified TS/SCI (TK)) that bypass even this.

BTW, Mr. Tice has earned himself 10 years in jail.

-Polaris
1.2.2006 2:54am
Polaris (mail):
Ack. PIMF. Replace she with he in the above post. Sorry.

-Polaris
1.2.2006 2:57am
Defending the Indefensible:
Polaris:

Suppose for a moment I am correct. Just suppose.

How does AG Gonzales address the legality of the program? He can not simply assert that FISA doesn't apply as I have. He would be forced to explain why in public and in detail.

That would require him to reveal information that is classified TS/SCI (TK).

I find it highly believable that he is lying (or at least shading the truth). Don't you? Seriously, what would you do?

The correct response would be, "No comment."

Making up an elaborate lie that won't withstand legal scrutiny doesn't make sense.

The other problem with lying is, once you're caught, it's awfully hard to persuade people that this time you're really telling the truth.

I'd say that if I gave your statements credibility, and agreed that the administration did not actually break the law in the course of their surveillance activities, then they are still in a heap of a lot of trouble for lying about them. Probably worse trouble than they would be in for the activities themselves if they were illegal.

Of course, the President has lied about warrantless wiretaps in the past, so maybe he is lying now. Probably a modified limited hangout.
1.2.2006 3:01am
Defending the Indefensible:
Polaris:

BTW, that is a stale email address.

Sorry, I didn't find anything interesting on Google groups with your polaris@aol.com.
1.2.2006 3:10am
Polaris (mail):
DtI,

That's because I don't use that address and I never have. Indeed I don't even own that address.

Why don't you STOP attacking other people's character and start addressing other people's arguments?

As for the correct response, "No Comment" under these circumstances is the WORST thing the AG (or POTUS or DIRNSA) could do. Frankly it was the one response the NYTimes was hoping for because it lets the MSM control the tempo of the debate.

That's not going to happen know especially not with people going to jail.

The AG can (and I am sure) will tell the truth to the appropriate congressional body in closed session. That would be the congressional intelligence comittee who is cleared for this and has a need to know.

I will tell you right now that the program will be completely exonerated.

-Polaris
1.2.2006 3:20am
KMAJ (mail):
Polaris,

You are wasting your time trying to reason with a few from the far left. I cannot attest to your credentials any more than anyone else here can. They try to demean you because they disagree with what you say.

I would find it incredible for the AG to out and out lie, what I would expect is words that are very carefully phrased so they may seem to say something they don't. A word left out here, a comma there. No comment is leaving the field wide open for the media to speculate on anything. Anyone can use common sense to understand if there is a clandestine classified operation going on, you are going to want to direct attention away from certain aspects of it. There is no doubt what they NY Times and those leakers did hurt this country. What I find so disingenuous was all the screaming about the fraudulent Plame leak, yet they are silent or defend this leak.

It is dangerous when people who are in highly sensitive areas decide to play politics with the security of this country. So far, there has not been even one specific allegation of any wrongdoing. This program has been reviewed, Congress intelligence committees were aware of it. This is partisan politics at its worst.
1.2.2006 4:16am
minnie:
Re: Ian A. Chapman aka Polaris
Minister of the Assembly

It has been crystal clear from about his third post that Polaris is a somewhat facile teenager out to have a little fun at the expense of the serious posters on this site. Neither his rather dramatic inability to spell (as bad as things may be at NSA, one would hope that literacy is still a requirement for being given "top clearance")nor the fact that he continually and childishly made his "appeals to outside authority", a tip off as to his juevenile status, seemed enough for some to pull the plug.

Now, his friends (Charlie et al) have joined him on this site and soon the inmates will have taken over the asylum.

I bring this up to make a point. My own belief is that blogs represent an enormous, exciting, real time opportunity to flesh out topical issues in a way that has never been available before. And if there is a better blog than the VC, I haven't seen it yet.

Why has an obvious prankster been allowed to run rampant on this site without being called on it from the get go?

I think there are two reasons. First, people who are professors like Orin Kerr are in daily contact with young adults, and treat them seriously as part of the process of educating them. In the classroom, even an insipid student's thoughts must be dealt with patiently and treated respectfully.

Secondly, because of all the prohibitions against attacking other posters on this and all serious blogs, we are made to bite our tongues when beseiged by obvious poseurs and pranksters and give them the benefit of the doubt, even when there really is no real doubt.

My suggestion would be, rather than ruining the high level of discourse that goes on between people like Just An Observer, M. Lederman, Professor Kerr, Evelyn Blaine, Medis, Anderson, DTI, others, and the organizers of this site, that we take off the gloves, identify the clowns, and give them the Amish treatment. If nobody takes them seriously or responds to them, perhaps they will get bored and go elsewhere. Barring that, I don't know.... Crush their testicles?
1.2.2006 5:38am
enthymeme (mail) (www):
Minnie,

"It has been crystal clear from about his third post that Polaris is a somewhat facile teenager out to have a little fun at the expense of the serious posters on this site. Neither his rather dramatic inability to spell (as bad as things may be at NSA, one would hope that literacy is still a requirement for being given "top clearance")nor the fact that he continually and childishly made his "appeals to outside authority", a tip off as to his juevenile status, seemed enough for some to pull the plug."

Reading the whole thread, this is not clear to me at all. In fact, if pressed, I would say he sounds quite believable, though of course, I can't know for sure. But the one thing that sinks your ad hominem is that he held a utexas.edu account in 2001.

Whatever else he is, he isn't a "teenager".

If you can prove that he is a troll - by all means. But you don't help yourself or your own credibility when your circumstantial ad hominems are so easily disproven.

Same goes for Defending the Indefensible et al. - assertions to the effect that Polaris is a 'proven' troll are thus far unfounded. Again, if - arguments from incredulity aside - you have evidence that he is not who he claims he is, please provide it. Otherwise, latching onto weak circumstantial evidence and ad hominem just makes you look . . . desperate.
1.2.2006 6:22am
KMAJ (mail):
For those looking for a pretty inclusive resource for trying to define The Powers of the Executive Branch, I recommend the gpo cite, which the analysis below was lifted from:

Executive Power: Theory of the Presidential Office

The most obvious meaning of the language of Article II, § 1, is to confirm that the executive power is vested in a single person, but almost from the beginning it has been contended that the words mean much more than this simple designation of locus. Indeed, contention with regard to this language reflects the much larger debate about the nature of the Presidency. With Justice Jackson, we ‘‘may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.’’ (14) At the least, it is no doubt true that the ‘‘loose and general expressions’’ by which the powers and duties of the executive branch are denominated (15) place the President in a position in which he, as Professor Woodrow Wilson noted, ‘‘has the right, in law and conscience, to be as big a man as he can’’ and in which ‘‘only his capacity will set the limit.’’ (16)

14 Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579, 634-635 (1952) (concurring
opinion).
15 A. UPSHUR, A BRIEF ENQUIRY INTO THE TRUE NATURE AND CHARACTER OF
OUR FEDERAL GOVERNMENT 116 (1840).
16W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 202, 205
(1908).


EXECUTIVE DEPARTMENT

It will take you through the views of Madison and Hamilton, the Limited View, the Prize Cases, the primary inherent powers cases of Myers v. United States and United States v. Curtiss-Wright, and Youngstown, which we keep hearing cited often, but I find its interpretation being claimed as if it provided clarity to be contradictory because it produced multiple opinions. The one sited most often, by Justice Jackson, is only a concurring opinion which no other justice joined. Why does this carry any weight other than for its persuasiveness ? I would think his opinion cannot be cited as precedent because the opinion of the court in Youngstown was written by Hugo Black and contained none of Jacksons observances.

I have to wonder if the cases of INS v. Chadha and Bowsher v. Synar can be cited to bolster the separation argument and target the legislative branch for overreaching. How will the current court, especially when Alito is confirmed, view these cases ? How will they look upon FISC ?
1.2.2006 7:17am
moonfall:
legal questions:

The above seems to me to bring up two legal questions that a lawyer/professor should be able to answer.

1) Yes (or lets assume yes), for years the Brits/Aussies/etc have aquired the communications of US Persons and passed them back to us, thus bypassing FISA. Has this ever been challenged in any court? Has anyone ever even had standing to challenge it? And (I'd really only like to hear from Prof Kerr or other lawyers on this next issue) -> is it legal? I would assume that anyone doing such would be an "agent" of the US gov't, but I will defer to the lawyers on this.

2) Polaris seems to be arguing that this has all been aranged via secret treaty. Are there such things? I thought they were forbidden by the constitution.
1.2.2006 8:05am
Medis:
Polaris,

To summarize: you admit you don't know the details of this program, and you draw legal conclusions based on what the NSA was doing in the past, based on the assumption that they are not doing anything substantively different from what you knew about. Meanwhile, those who actually know the details of the program claim that a major change in policy was made, and that FISA would have required warrants if not for the 2001 AUMF. But you say they must be lying, and ask us to accept that your outdated speculation is still accurate.

Sorry, but I don't find any of that particularly convincing.

subpatre,

I still don't see your point. Nothing in what you quoted so far has suggested that all "foreign communications" as defined in that document are outside the scope of FISA.

For what it is worth, I have in fact read through that document. As you know, it is extensively redacted, and I could not tell exactly what procedures were supposed to be followed when the "foreign communications" in question might have fallen within the scope of FISA.
1.2.2006 9:25am
Buck Turgidson (mail):
As we face an intractable and insidious enemy, I am amazed that I seem to be the only one concerned about the NYT continuing to publish these articles.

You got it, man! The Bush White House is the greatest domestic enemy this country has ever faced. The firing squad would be too good for the lot.

To Polaris: which part of "warrantless" don't you understand?
1.2.2006 9:33am
Medis:
subpatre,

I double-checked, and I actually think (not so ironically) the relevant portions of Section 4 (relating to collection of international communications involving a US person in the United States) may have been specifically redacted.
1.2.2006 9:35am
Smithy (mail):
As we face an intractable and insidious enemy, I am amazed that I seem to be the only one concerned about the NYT continuing to publish these articles.

I would like to say that I am amazed, but in fact the lack of concern is typical of the left. They like to talk about civil rights, but they forget that if we lose this war we won't have any civil rights. They like to complain about a "police state" and yet they were perfectly happy to let Saddam have a police state.

The NYT should be shut down ASAP. They care not one whit about national security. They care only about feeding their left-wing readership red meat in the form of anti-Bush articles, classified or not. Bill Keller is every bit the traitor that Tokyo Rose was.
1.2.2006 9:53am
John Lederer (mail):
One of the more interesting questions is "What capabilities do we want NSA to have?".

I suspect that NSA has, legally, exploited technology to avoid some of the policy implict in FISA.

I also suspect that technological change is on the verge of making that exploited technology no longer effective.

Do we want NSA able to interceptcommunications, filter them, and listen to the resultant few? If so, a much better approach might be to focus on the dictionary and other devices used for the filtering than messing around with restrictions on what transport medium is being used and how and where it is tapped into.

FISA just is an anachronism to me -- it is like saying "no computing device shall operate at more than 225 pounds of steam pressure" and then applying it by analogy to a jet turbine. The tip offs of FISA's failure are the treatment of digital communications as being the same as analog, the failure to grasp that data paths are virtual and probabilistic and not determined by geography or media, and the total failure to realize that routers/switches are the brains of the packetized communications system. Reflect for instance on a FISA that treats radio and "wire" communications differently in a world where AT&T literally cannot determine whether a call will be, or has been, routed by fiber or by microwave.

I want NSA to have the capability to hear everything, and then I want pretty tight controls on what it can choose to hear.
1.2.2006 10:11am
Medis:
John L.,

I agree that FISA may require additional overhauls, and that is a large part of what is so distressing about the Administration apparently terminating the process of working with Congress on amending FISA.

But I also think FISA contains at least one distinction worth preserving: the difference between conducting surveillance where an unknown US person might be involved, and actually targeting a known, particular US person.
1.2.2006 10:33am
Apodaca:
John Lederer says:
Reflect for instance on a FISA that treats radio and "wire" communications differently in a world where AT&T literally cannot determine whether a call will be, or has been, routed by fiber or by microwave.
AT&T's ability to predict the routing ex ante is irrelevant. What matters is that the intel community knows perfectly well whether a given method is collecting against wire (think "Sea of Okhotsk undersea cable") or radio (say, via antenna array).
1.2.2006 10:52am
jukeboxgrad (mail):
Charlie (Colorado), you said this: "You can't intercept 'US persons' (§1801(a)) unless the person is an 'agent of a foreign power' (§1801(a) and (b))"

You seem to be suggesting that according to FISA, the president can do warrantless surveillance of US persons as long as he believes the person is an "agent of a foreign power." Really? My copy of FISA doesn't say that. What FISA says is that you can conduct surveillance of a US person if you think the person is an 'agent of a foreign power,' provided you get a FISA warrant.

Either I'm misunderstanding you, or you're misunderstanding FISA. Please let us know which it is.
1.2.2006 11:10am
Medis:
Apodaca,

But as I read FISA, I think what it was trying to get at with this distinction between wire and radio communications is actually a difference between private and broadcast communications. And I think the precise problem is that since 1978, it is much more likely that wired communications could be intended as broadcast (eg, posts heading for public areas of the internet), and radio communications could be intended as private (eg, cell phone signals).

So, I actually don't see much of a problem with rewriting FISA so that it is based on differences in kinds of communication as defined by the intentions of the participants, in contrast to kinds of communication as defined by the underlying architecture, since the former no longer maps neatly onto the latter, and yet it is the former that really concerns us.
1.2.2006 11:12am
jukeboxgrad (mail):
Polaris said "Gonzales was being deliberately misleading....and frankly he should be"

I think what you're saying boils down to this: When the NYT tells us Bush is violating FISA, this amounts to assisting the enemy. But when Gonzales confirms that Bush is violating FISA, this is a clever ruse designed to trick the enemy.

Sorry, that doesn't add up.

And if the truth is that FISA was not violated, Gonzales could have said that without endangering national security. He could have simply said this: "FISA was not violated. I cannot explain this in further detail without revealing classified information. However, we will be glad to review the details with the FISA court and/or Congressional Intel committees."

Also, if the program was within FISA, there would have been no need for EOs, repeated presidential reauthorizations, and repeated Congressional briefings. Or an urgent visit to the gall-bladder ward.
1.2.2006 11:31am
Charlie (Colorado) (mail):

And seriously--do you know of anyone in a position to know who has ever argued that no part of this program would have fallen within the scope of FISA? And if no such person has ever made that argument, and Gonzales is saying the exact opposite, I just don't see why I should believe Gonzales is lying.



Medis, I thinnk you're having a little trouble with your quantifiers. I don't think anyone has argued that no part of this program falls under FISA; that is, theat there exists no part of this program where FISA applies. Bush has certainly said that where FISA applies, FISA is being followed.

Gonzales appears to be arguing that there is a part of the program to which FISA doesn't apply, and thus it isn't being applied.
1.2.2006 11:35am
Medis:
jukeboxgrad,

I also see no reason to believe that Gonzales and Co are actually lying about this issue. So, what interests me is why some ardent defenders of the Administration seem to insist on keeping this issue alive even when the Administration itself is taking the opposite position. And the only conclusion I can draw is that these defenders of the Administration understand that the Administration's actual argument is quite weak, so they are trying to come up with an alternative.
1.2.2006 11:37am
Charlie (Colorado) (mail):

Oh, DtI, when I was in NSA (and I feel confident Charlie can attest to it as well), gaming was a very popular recreational activity.


You bet. Analysts are big on it too, I've noticed.

But active duty Air Force is particularly notable; I think it fulfills their fantasies of being in a military organization.
1.2.2006 11:39am
Medis:
Charlie,

You say: "Gonzales appears to be arguing that there is a part of the program to which FISA doesn't apply, and thus it isn't being applied."

What Gonzales actually says: "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

So, your claim simply does not match what Gonzales actually said. What he actually said is that FISA in fact DOES apply to this surveillance, but that the 2001 AUMF satisfies FISA.
1.2.2006 11:41am
Charlie (Colorado) (mail):
jukeboxgrad:


You seem to be suggesting that according to FISA, the president can do warrantless surveillance of US persons as long as he believes the person is an "agent of a foreign power." Really? My copy of FISA doesn't say that. What FISA says is that you can conduct surveillance of a US person if you think the person is an 'agent of a foreign power,' provided you get a FISA warrant.



Sounds like your copy is missing §1802(a)(1): "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order ...."
1.2.2006 11:43am
Polaris (mail):
Medis,

The AG has steadfastly refused to reveal the original justification for the legality of the program in question. Why? Because it contained extremely sensitive information.

You should also note that I am merely talking about that portion of the program as revealed by the NYTimes that involves INTERNATIONAL communications. As Charlie notes, that is a subset of what is involved here.

Even the NYTimes has admitted that the NSA has always had the authority to intercept communications from outside the US to inside (read the original article) and I can tell you that the always have.

Given the realities of modern telecommunications and the built in loopholes in FISA, there would be NO advantage to the US ignoring FISA and thus NO need to. Thus given what I know, the very suggestion that intercepting communications from the US to outside of it is illegal is a notion I find preposterous.

Unfortunately the full details are very sensitive. Bush will be completely exonerated by the Intelligence Committee of Congress. Bank on it.

-Polaris
1.2.2006 11:44am
Charlie (Colorado) (mail):
Medis, what's the context? Is Gonzales talking about all surveillance anywhere, or is he referring to a subset. As I noted, Bush has certainly talked about the existence of situations that require a warrant. I don't know that anyone I've seen suggests that "domestic communications" in the sense of Directive 18, ie no foreign endpoints, is covered.

By the way, are you actually under the impression that remarks to the press, even "prepared remarks" are written and supported as a brief would be?
1.2.2006 11:48am
Polaris (mail):
jukeboxgrad,

You assert that the NYTimes is claiming that the Bush administration has violated FISA. Please cite for me just once where the NYTimes actually makes that claim.

They imply it to be sure, but they never actually make that claim. That is particularly notable since their supposed sources (assuming the Times is accurate about their professional qualifications) would be *intimately* familiar with FISA.

-Polaris
1.2.2006 11:50am
John Lederer (mail):
So can anybody say exactly what it was that Bush approved that had not been previously approved?
1.2.2006 11:54am
subpatre (mail):
jukeboxgrad wrote "...if the program was within FISA, there would have been no need for EOs, repeated presidential reauthorizations, and repeated Congressional briefings. Or an urgent visit to the gall-bladder ward."

Since nobody else can, perhaps you can point out some allegation of FISA violations? Any original source --someone with actual knowlege of the process-- will do, including the NY Times' anonymous ones.

Of course your speculation could be completely off-base: EO's, reviews, secret Justice audits are there to maintain citizen's rights in light of the Patriot Act changes. It speaks well that a program is reviewed often, and that the President meets regularly scheduled Congressional briefings cooperatively.
1.2.2006 11:58am
Polaris (mail):
John,

It is my understanding that all Bush did was expand what had already been approved to cover more communications in a more aggressive way than had previously been done.

Intercepting communications FROM the US to a foreign destination is extremely novel. I was never involved in anything like it in my day nor did I hear of anything like it. However, that doesn't change the fact that *legally* FISA (and for that matter USSID 18) doesn't draw that distinction.

-Polaris
1.2.2006 12:04pm
subpatre (mail):
Medis wrote "As noted in the other thread, Gonzales said this in prepared remarks: "
"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow ...."
Just which kind of surveillance, out of the varieties he discussed?
- the highly classified program
- what has been disclosed by the President
- intercepts where one party is outside the United States
- spying on American citizens calling their neighbors
- learn of communications from the US to al Qaeda
- what the FISA provides... [for]
- what the FISA requires
The meaning can vary depending on the deconstruction. I don't think Gonzales is lying, but 'dissembling' might be an apt description; he's still leaving defensible loopholes wide open.
1.2.2006 12:07pm
Just an Observer:
Charlie (Colorado):

You truncated that quotation from §1802(a)(1). Here is the full subsection:


(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.


The law doesn't say what you claim.
1.2.2006 12:11pm
Polaris (mail):
jukeboxgrad,

I happen to know that even when no violations of FISA (or other applicable law/statute) are alleged, NSA activities are subject to regular congressional oversight much like any other department or agency within the executive branch. In fact ever since 1998, there has existed specific statutes that strengthen that oversight.

I happen to think that the congressional oversight has been *pathetic*, but don't say that it doesn't exist and the NSA's actions aren't reviewed absent allegations of violation....because they are.

-Polaris
1.2.2006 12:14pm
Polaris (mail):
Just An Observer,

Actually it does and as I understand it THAT is where the AUMF comes in. If you accept AQ as a foriegn power in the largest sense that we are at war with (and while I am not a lawyer, that seems to be the obvious conclusion from the AUMF), then POTUS is covered under the very regulation you cite.

-Polaris
1.2.2006 12:19pm
elliottg (mail):
I didn't have the time to wade through everything, but I'll just observe that it is entirely possible to make a complete electronic copy of all information passing through the foreign connected gateways (whether they be Internet or traditional POTS) and ship it overseas for analysis. At this point, you have acquired squat - just a bunch of ones and zeros. Until you decode the ones and zeros then you have not acquired the content. This is strained, but it could be an argument used to bypass f2 clause. This methodology could be used for all communication except for the protection (if any) of f1, it could be used for domestic communication. Since telecommunications routing is not constrained by a desire to avoid foreign gateways except for reasons of efficiency, there could have been accidental interception of domestic calls.
1.2.2006 12:20pm
subpatre (mail):
Just an Observer - What if it's not "electronic surveillance", a term of art? Are you claiming the President or his AG can't order an intelligence agency to obtain the email or recorded phone call that is not
(1) ... sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person... ;
(2) ... wire communication to or from a person in the United States ... if such acquisition occurs in the United States... ;
(3) the intentional acquisition ... of the contents of any radio communication... reasonable expectation of privacy ... sender and all intended recipients are located within the United States ; or
(4) the installation or use of ... device in the United States ... .
FISA is Swiss cheese. On purpose too. This has been hashed and re-hashed above; now appearing in it's re-re-hashing!
1.2.2006 12:28pm
Polaris (mail):
elliottg,

Indeed there can (and even in my day sometimes were) inadvertant intercepts of domestic calls (US to US). That's what USSID 18 covers and in my experience, it is taken dead seriously. I have heard no evidence that this has changed even with this new program.

-Polaris
1.2.2006 12:29pm
Just an Observer:
Polaris,

Read the conditions in the subsection! Among them, the AG must certify that the surveillance will not pick up communications by U.S. persons.

No one disputes that Al Queda is a foreign power. FISA is all about surveillance of foreign powers and their agents; it defines procedures for doing so, which generally require FISC court orders.

The NSA program in question targets U.S. persons, which the admininstration acknowledges. The exeption of this subsection simply does not apply.
1.2.2006 12:30pm
jukeboxgrad (mail):
Charlie:

"Gonzales appears to be arguing that there is a part of the program to which FISA doesn't apply, and thus it isn't being applied."

(Medis did a fine job of responding. I'll say it slightly differently.)

If that is what Gonzales had meant, this would have been a good way to say it: "there is a part of the program to which FISA doesn't apply, and thus it isn't being applied." But that's not what he said. This is what he said: "the Foreign Intelligence Surveillance Act ... requires a court order before engaging in this kind of surveillance that I've just discussed."

In other words, he's admitting that Bush violated FISA. Gonzales goes on to claim that AUMF gives Bush the authority to violate FISA. This is quite different than saying "there is a part of the program to which FISA doesn't apply."

"what's the context? Is Gonzales talking about all surveillance anywhere, or is he referring to a subset."

The context is clear. Gonzales said that FISA requires a warrant for the kind of surveillance that Bush is doing. Gonzales also says that AUMF and Article 2 give Bush the authority to violate FISA.

"I don't know that anyone I've seen suggests that 'domestic communications' in the sense of Directive 18, ie no foreign endpoints, is covered. "

You raise an interesting point. It's true that no one is explicitly making that claim. But the arguments Bush is using (AUMF/Article 2) could just as well be used to make that claim. Why not? Why are the AUMF and Article 2 arguments considered a blank check for one kind of surveillance but not also other kinds of surveillance?

Charlie also quoted this: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order"

The section you quoted is followed by this stipulation: "if ... there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." Why would you omit that?

I see that JaO has pointed this out.

Polaris:

"The AG has steadfastly refused to reveal the original justification for the legality of the program in question"

That's true, provided you ignore this (pdf), which is a detailed, official, multi-page declaration of "the legality of the program in question."

The interesting thing about this document is that it makes a great effort to prove that Bush has the right to violate FISA, but it does not suggest that Bush's program is not a violation of FISA.

"You assert that the NYTimes is claiming that the Bush administration has violated FISA"

I'm well-aware that the NYT doesn't say so explicitly, but they make it easy enough to infer the conclusion. Anyway, at this point it doesn't matter much that they didn't say it explicitly, because Gonzales has admitted it.

"Actually it does and as I understand it THAT is where the AUMF comes in"

You might claim that AUMF gives POTUS the right to do warrantless surveillance of US persons, if POTUS thinks that person is AQ. But FISA does not give POTUS that right. On the contrary. The point of FISA is to make POTUS get a warrant in that exact situation. (I see that JaO has pointed this out.)

It seems that Charlie did a highly selective quoting of FISA in an attempt to deny this.

subpatre:

"perhaps you can point out some allegation of FISA violations"

The admission by Gonzales is sufficient to conclude that FISA was violated.

"EO's, reviews, secret Justice audits are there to maintain citizen's rights in light of the Patriot Act changes"

I think some are making the claim that the NSA is doing nothing fundamentally new, and nothing that violates FISA. If that's so, then "Patriot Act changes" are not relevant, and "EO's, reviews, [and] secret Justice audits" are not necessary.

"The meaning can vary depending on the deconstruction"

The meaning can vary only if you're willing to ignore what Gonzales plainly said.
1.2.2006 12:40pm
Jay Louis (mail):
Amidst all this sturm und drang, I still am wondering about an issue:

Doesn't the NSA domestic surveillance program seem unlikely to ever be litigated? It would seem unlikely because it is difficult to think of a party that simultaneously has standing and KNOW he/she has standing. It would seem that the only actor that could address the permissibility of the surveillance program would be Congress through its oversight function. But perhaps there is a role for the courts to play in reviewing the constitutional and statutory permissibility of the surveillance program. Only time will tell. But from this vantage point, it seems like examining the permissibility of the President's program will be entirely up to Congress. Are there counterarguments for this viewpoint? Thank you.
1.2.2006 12:43pm
Medis:
Charlie and subpatre,

Here is the quote from Gonzales in context. As you will see, he was referring to what we have been discussing (communications involving at least one party outside the United States):

"The President confirmed the existence of a highly classified program on Saturday. The program remains highly classified; there are many operational aspects of the program that have still not been disclosed and we want to protect that because those aspects of the program are very, very important to protect the national security of this country. So I'm only going to be talking about the legal underpinnings for what has been disclosed by the President.

The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States. And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States.

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

What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that's what this program is about.

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

And Charlie, I do believe that when the Attorney General of the United States provides prepared remarks on a legal subject of great importance, he is going to be pretty careful about what he says. And this was not some slip of the tongue: this is a calculated and clear statement.
1.2.2006 12:43pm
Medis:
Jay Louis,

A party with standing could get enough information to at least raise the issue in court in a number of ways--FOIA, Congressional hearings, voluntary disclosure by the government, and so on. What would likely then happen is that the court would review the relevant information in camera, and determine whether or not it was covered by some privilege, most notably the "states secret privilege". And although the government usually wins when it asserts that privilege, it does not always win ... and that would ultimately be up to the courts.
1.2.2006 12:53pm
subpatre (mail):
Just an Observer writes "The NSA program in question targets U.S. persons, which the admininstration acknowledges. The exeption of this subsection simply does not apply."

USSID 18
9.16. TARGET, OR TARGETING; see COLLECTION

9.2. COLLECTION means intentional tasking or SELECTION of identified nonpublic communications for subsequent processing aimed at reporting or retention as a file record.
Are they targeting U.S. PERSONS or did you mean 'intercepting'? Maybe 'monitoring'?
1.2.2006 12:53pm
Just an Observer:
subparte,

Intercepting would be a better term.
1.2.2006 12:56pm
Jay Louis (mail):
Thanks for your response Medis.

I have a feeling, however, that FOIA being effective, or "voluntary disclosure by the government" even occurring, are both highly unlikely. Your mentioning of Congressional hearings reinforces the thrust of my original question; viz., that it appears that it will be through the Congressional oversight function that the permissibility of the NSA surveillance program will be evaluated.
1.2.2006 12:59pm
Medis:
Jay Louis,

I'm not sure your feeling is correct. Keep in mind that to get to discovery, the party would not need to KNOW they were surveilled in this program. So even general details that plausibly would include this person within the scope of the program might be enough to trigger discovery--again, the real issue would be whether the government could successfully resist discovery with a privilege. And, of course, voluntary disclosures could occur in the context of the government actually trying to use information gained through this program in something like a criminal prosecution. Of course, they may be reluctant to do that now--but it may already have occurred.

And incidentally, there is precedent for all this: a series of legal suits were filed in the 1970s based on allegations of illegal surveillance pre-FISA. Many of them got to the stage I described, but then were dismissed when the government successfully asserted the state secrets privilege.
1.2.2006 1:09pm
Polaris (mail):
Just An Observer,

Read up what constitutes a "US Person". Just because you are a US Citizen or legal permanent US resident does not automatically make you a US Person although the presumption is always that it does. Specifically even if you are a US Citizen, if you are working for a foreign power, then you are NOT a US Person.

-Polaris
1.2.2006 1:10pm
jukeboxgrad (mail):
subpatre:

"Are they targeting U.S. PERSONS or did you mean 'intercepting'? Maybe 'monitoring'?"

Hayden used the word "target" four times. Maybe you should ask him if he meant to use a different word (as if it matters).
1.2.2006 1:12pm
elliottg (mail):
So the way you thread the needle of f1 and f2 is this.

1. Copy everything going into or out of this country via electronic communication. Do not decode any content until you get the product overseas.

2. Key the content decoding on the foreign address. You have not targetted any US person this way.

3. If the US person shows up multiple times based on your part 2 analysis then apply to FISA Court.

4. FISA Court issues a warrant based on the information. You don't reveal that the source of your information
(multiple contacts between foreign persons of interest) is this program.

Now if I were a foreign spy, I might assume that one time email drops were ok for communicating. They can easily be created on yahoo or hotmail or wherever. Free, anonymous email is easy and cheap, but if the IP address of the web browser accessing the email is more fixed, then it can be keyed. Even encrypted messages (email or voice codec) will eventually succumb to NSA decryption.
1.2.2006 1:15pm
Polaris (mail):
Jay Louis,

You will find that the NSA is exempt from the FOIA when it comes to information of this classification. The very precedent that Medis cited supports this. Thus this will never come up in a court of law (at least I can't see how it would). This is what congressional oversight is supposed to cover.

-Polaris
1.2.2006 1:16pm
Just an Observer:
Polaris,

I believe you are quite incorrect.


50 USC 1801 (i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.


Nothing says someone ceases to be a U.S. person if they become an agent of a foreign power.
1.2.2006 1:18pm
Polaris (mail):
Medis,

We've been down this path. The courts won't touch this with a ten foot pole. Jay is entirely right. It's up to congressional oversight. The courts have always (to my knowledge) denied discovery when faced with information classified under Title 18 and USSID 3.

-Polaris
1.2.2006 1:19pm
Jay Louis (mail):
Thank you for your response Medis. Two points:

1) You raise an interesting issue: You write that "even general details that plausibly would include this person within the scope of the program might be enough to trigger discovery." I wonder how specific and how "plausible" those details would have to be. Also, would someone bring a suit in court because he/she thinks he may have been wiretapped? If that person really has something to hide, bringing the lawsuit may just encourage law enforcement to further investigate this person.

2) Another interesting point you raise: You write that "again, the real issue would be whether the government could successfully resist discovery with a privilege." You imply that there are pre-FISA precedents for ruling that the state secrets privilege protects the information. A lot has happened since then (only one example: FISA itself) that might mitigate the value of those precedents, but otherwise, once again it would seem that potential lawsuits wouldn't get past discovery. It appears that the branch of government most able to play the referee role in this dispute is Congress through its oversight function.

Thank you Medis for elaborating and clarifying answers to this important question.
1.2.2006 1:19pm
Polaris (mail):
Medis,


50 USC 1801 (i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section


Read the statute completely. Spies are not US Persons.

-Polaris
1.2.2006 1:22pm
Jay Louis (mail):
Thanks for your statements Polaris. I agree with you that the only actor that apparently could address the permissibility of the NSA surveillance program would be Congress through its oversight function. This therefore would become a political question, driven by the salience of the debate as well as party control of the House and the Senate. The nature of the Congressional oversight would indubitably be strongly influenced by what legal scholars have to say as to the permissibility of the program. Therefore, legal and constitutional opinion on this matter is important. But as far as I can tell, it will be a matter driven by Congressional oversight, not judicial proceedings. Thank you Polaris for your comments.
1.2.2006 1:25pm
jukeboxgrad (mail):
Polaris:

"Specifically even if you are a US Citizen, if you are working for a foreign power, then you are NOT a US Person."

Specifically FISA indicates that if you are a "US person" (and one way to be a "US person" is to be a US citizen), then you are protected from warrantless surveillance, even if the POTUS thinks you are "working for a foreign power." In fact that is precisely the kind of situation FISA is designed to deal with. This is what FISA says about that situation: go to the FISA court and get a warrant.

The FISA definition of "US person" can be found here. (I see JaO has also offered this.)

Speaking of explicit confessions, Gonzales admitted that US citizens have been targeted.
1.2.2006 1:26pm
Polaris (mail):
What I said above notwithstanding, it has always been practice that if a person even remotely looks to be a US Citizen or US legal resident, that person has always been assumed to be a US Person. In short, as a practical matter, one errs on the side that someone is a US Person vice is not. However, FISA still doesn't protect them from foreign intercepts. I have already explained that at length.

-Polaris
1.2.2006 1:27pm
Just an Observer:
Polaris,

No, your reading is simply wrong. That language at the end does not say that spies are not U.S. persons. It says that foreign powers are not U.S. persons.
1.2.2006 1:29pm
Polaris (mail):
jukeboxgrad,

So? Under FISA US Persons can be targeted if the intercept occures outside the US and it's an international communication. In addition, it wasn't specified if the US Persons were targed with the warrented or unwarrented aspects of this program.

-Polaris
1.2.2006 1:31pm
Polaris (mail):
Just An Observer,

If you work for a foreign power, then you fall under that category. Just for example, if you join the military of a foreign government (I believe there is a specific treaty exemption for Israel), then you VOID your citizenship. Same, same.

-Polaris
1.2.2006 1:33pm
Medis:
Jay Louis,

(1) Ordinarily, the answer would be "not very specific" and "just barely plausible". Again, the real check would be the assertion of a privilege.

And someone might bring a law suit if they thought that they had been surveilled but actually had done nothing wrong. Which happens even when the government does have "probable" cause, let alone when they don't impose that requirement.

(2) Personally, I would also not bet on any particular plaintiff surviving the asserting of such a privilege (as I recall, one study claimed this privilege had been asserted over 60 times, and had been refused in something like 5 of those cases). But ultimately, this is in fact a court-made doctrine, and it depends on the court's own review of the material. So, if it appeared to the court that the government was actually abusing the privilege, it might fail in some case.

So I'm making no predictions about whether anyone would in fact succeed at that stage, because that really does depend on the facts of each case. I'm just sketching out how that might occur.

By the way, on the FOIA issue--in general, there is an exception for classified information. But that exception has a caveat--the information must have been properly classified. So, this is another situation in which the government usually would win, but not necessarily just by making the claim.
1.2.2006 1:36pm
Just an Observer:
Polaris,

You are confusing agent of a foreign power with a foreign power itself.

Under the FISA definitions, a U.S. person can be an agent of a foreign power. That does not make him a foreign power. He remains a U.S. person.
1.2.2006 1:38pm
Polaris (mail):
Medis,

What you say has a big fat loophole. It's called OADR (Originating Agency's Discretion Required).

For all pracitical purposes, NSA can classify anything for ever on their say so and the courts basically have no say in the matter because of the way the law is set up.

-Polaris
1.2.2006 1:39pm
Polaris (mail):
Medis,

You don't remain a US Person if you act with a foreign power in such a way that it voids your citizenship. The details are sadely still classified, but this is one way that Ames was caught.

-Polaris
1.2.2006 1:41pm
Jay Louis (mail):
Thank you for your comments Medis. I appreciate your exploration of the issues surrounding what role the courts could play in examining the permissibility of the NSA surveillance program. Ultimately, it is a role that depends on the existence of a party with standing and on the issue of denial of discovery because of privilege. Both of the aforementioned factors are evaluated by the courts themselves, which means that courts ultimately get to decide for themselves how far they wish to take their inquiries. However, it would appear that courts have enough precedents, and ample legal room, to decide to stay out of the fray (and not be the branch of first resort to investigate the legality of the NSA surveillance program). As a result, it is most likely that the actor most able to play the role of referee will be Congress through its oversight function. Thank you.
1.2.2006 1:45pm
Justin (mail):
We're all forgetting our Felix Frankfurter warnings.

Polaris,

but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

What word is missing from your all-important exception?

I'll give you a hint..while a coroporation can be a person, a human being is not a corporation. Nor is he an association.
1.2.2006 1:48pm
Medis:
Polaris,

I'd be interested in seeing any legal authorities you have to support your claim that a person "voids" his or her citizenship if he or she is suspected of being an agent of a foreign power.
1.2.2006 1:48pm
Polaris (mail):
Medis,

If you join a foreign military organization you void your citizenship. There are many other ways you can as well.

You should know this.

Besides, it's a moot point. As long as interception occures outside the US, then it's legal, US Person or not.

-Polaris
1.2.2006 1:52pm
Medis:
Jay Louis,

I'd put my money on the same outcome, unless some aspects of the program get blown open by Congress first, and soundly condemned as illegal by Congress, in which case lawsuits could follow and the courts may not be so reluctant to take the lead of Congress. But otherwise, I agree--it is unlikely the courts would want to get too far out ahead of Congress on this issue.
1.2.2006 1:53pm
Just an Observer:
Polaris,

There is nothing to indicate that any persons surveilled by this program have forfeited their citizenship. No one in the administration has made that claim.
1.2.2006 1:53pm
Medis:
Polaris,

Again, if you have any legal authorities in mind, I'd be interested in seeing them (on both of those issues, in fact).
1.2.2006 1:55pm
Polaris (mail):
Justin,

Um, no. A person can be a member of said corporation or organization, and would fall under the exception I mentioned. Otherwise the exception is meaningless.

-Polaris
1.2.2006 1:55pm
Polaris (mail):
Medis,

Review the Ames case (at least what is unclas and available for the public record).

-Polaris
1.2.2006 1:58pm
Medis:
Polaris,

No, a corporation or association can be a legal person, which is why one can distinguish US "persons" who are corporations or associations from US persons who are actual natural people.

In general, FISA itself is quite clear about this: it repeatedly refers to the surveillance of US persons who are suspected of being agents of foreign powers. So your view that suspected agents of foreign powers cannot be US persons makes little sense, and indeed is unsupported by anything in FISA.
1.2.2006 2:01pm
subpatre (mail):
Just an Observer writes "Nothing says someone ceases to be a U.S. person if they become an agent of a foreign power."

Nothing says you remain a US PERSON, a term of art requiring greater privacy protections, if you are an AGENT OF A FOREIGN POWER, another term of art indicating the lowest privacy protection and preferential targeting when agent of an enemy.

Why would a person retain the highest privacy protection when they're working to kill us? What rationale is there for that?
1.2.2006 2:03pm
Medis:
Polaris,

On Ames, you will have to be more specific. I've seen some general material on that case, but I don't have any recollection of a citizenship issue. That doesn't mean it didn't come up, but you need to point me to the specific source you have in mind.
1.2.2006 2:04pm
Just an Observer:
Polaris,

The exception is not meaningless. It simply distinguishes when an entity is defined to be a foreign power. If it is a foreign power, it is not a U.S. person.

Nothing in these definitions says what you want to believe it says -- "A person can be a member of said corporation or organization, and would fall under the exception."

The language of the exception applies to foreign powers, not to agents of foreign powers.
1.2.2006 2:08pm
Medis:
subpatre,

You are being a bit careless with your language. The precise problem is that the government will want to surveil US persons without proof beyond a reasonable doubt that those people are actually agents of foreign powers. So, FISA allows them to surveil US persons SUSPECTED of being agents of foreign powers, but requires probable cause and a warrant for certain forms of surveillance.

Indeed, if the government actually had proof beyond a reasonable doubt that the person was an agent of a foreign power, then getting a FISA warrant would not be a problem.
1.2.2006 2:09pm
Just an Observer:
subparte: "Why would a person retain the highest privacy protection when they're working to kill us? What rationale is there for that?"

I can't answer that rhetorical question. I am simply stating what the law's definition says.
1.2.2006 2:11pm
jukeboxgrad (mail):
Polaris:

"does not include a corporation or an association which is a foreign power ... Spies are not US Persons."

A person is not a "corporation or an association." The text you cite applies to certain kinds of corporations or associations. It does not change the meaning of the first part of the sentence, which plainly says that a US person is "a citizen of the United States." FISA does not say "a US person is a citizen of the United States, unless that person is an agent of a foreign power."

If that's what FISA meant to say, it would have said it. Also, if that's what FISA meant to say, there would be no need for FISA. If a POTUS has the power to declare, with no judicial oversight, that a US citizen in the US is a spy, and therefore is subject to warrantless surveillance, then there would never be a need to get a FISA warrant.

Also, if that's what FISA meant to say, then this other language in FISA is completely pointless: "a judge to whom an application is made may ... grant an order ... approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information."

There would be no need for such an order, or such a judge, or such a court, or such a law as FISA, if the idea was to let the POTUS have the unilateral power to to declare that an American is a spy and therefore not entitled to their citizenship rights.

"Um, no. A person can be a member of said corporation or organization, and would fall under the exception I mentioned"

Um, no, because FISA doesn't refer to "a member of said corporation or organization." FISA refers to "a corporation or an association."

"Otherwise the exception is meaningless"

Um, no, because the exception is a reference to certain kinds of organizations, which may or may not be protected by FISA.

"Under FISA US Persons can be targeted if the intercept occures outside the US and it's an international communication ... As long as interception occures outside the US, then it's legal, US Person or not"

Only if one also accepts your premise regarding reasonable expectation of privacy (because FISA's definition 1 doesn't care about where the "intercept occures").

Regarding REP, Orin raised an issue which has not been addressed, in my opinion.

"it wasn't specified if the US Persons were targed with the warrented or unwarrented aspects of this program."

Gonzales mentioned "communication involving an American citizen." He did this in the context of a press conference primarily discussing warrantless surveillance. If he meant to say that US citizens were not subjected to warrantless surveillance, this would have been a good way to say that: "US citizens were not subjected to warrantless surveillance."

Gonzales admitted the existence of a program of warrantless surveillance, and he discussed surveillance of US citizens. He said nothing to suggest that the former did not apply to the latter. He said nothing to indicate the program made any distinction between US citizens and non-citizens.

"If you work for a foreign power, then you fall under that category. ... you VOID your citizenship ... You don't remain a US Person if you act with a foreign power in such a way that it voids your citizenship ... if you join a foreign military organization you void your citizenship"

The SCOTUS Hamdi decision (pdf) contains this peculiar sentence: "Petitioner Hamdi, an American citizen whom the Government has classified as an 'enemy combatant' for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan."

The entire decision is about whether it was proper to imprison him (without normal due process), given the fact that he's a citizen. Why not simply state that his citizenship was automatically voided when Bush declared him an "enemy combatant?" For some strange reason even the government didn't make that argument. Why do you?

subpatre:

"Why would a person retain the highest privacy protection when they're working to kill us?"

You should lobby your Congressperson to pass a law which declares that if POTUS suspects someone supports terrorism, then that person's US citizenship is automatically voided.

As it is, there is no such law.

"What rationale is there for that?"

Folks like you apparently think it's quaint, but there's a rationale which says we do not trust a king to have unrestricted power over anyone he declares to be an enemy of the state.

All the arguments (AUMF/Article 2) which are being used to defend warrantless surveillance of overseas calls could be used just as easily to justify all sorts of other things (including warrantless surveillance of purely domestic communications, by US persons in the US).
1.2.2006 2:44pm
Evelyn Blaine:
Polaris:

You don't remain a US Person if you act with a foreign power in such a way that it voids your citizenship.

If you join a foreign military organization you void your citizenship. There are many other ways you can as well.

A natural born US citizen can lose his or her citizenship only by a voluntary and intentional act of renunciation. This was established in Afroyim v. Rusk, 387 U.S. 253 (1967). Acts such as serving in a foreign military may be used as evidence of intent to renounce, but they do not in and of themselves cause loss of citizenship.

The rules are somewhat stricter for naturalized citizens and those with statutory (jus sanguinis) citizenship; see Rogers v. Bellei, 401 U.S. 815 (1971).
1.2.2006 2:57pm
Charlie (Colorado) (mail):
jukebox: You're right, I didn't copy in the ENTIRE STATUTE section that has been references and linked to at least a dozen times already.

However, the law does say what I claim (§1802(b)) if the court considers al Qaeda a "foreign power" under §1801(a)(1-3) --- which I also said, I believe.

This is also consistent with the Sands decision, which says categorically that "al Qaeda" is a foreign power.
1.2.2006 3:02pm
Charlie (Colorado) (mail):

So can anybody say exactly what it was that Bush approved that had not been previously approved?


Probably not.

As Polaris says, the exact details are probably TS/SCI, Special Channels Only, numbered copy 1 of 5, further reproduction unauthorized, eyes only.

My guess, which I'm becoming quite fond of, is that it's a social network analysis scheme in which the phone numbers associated with a particular number found by other sources are quickly analized for cliques before the numbers can be checked to see if they are related to "particular US persons", and in which numbers that don't look to be of interest are discarded rather than applying for retroactive FISA warrants on the (extremely numerous) uninteresting cases.

But that's just a guess, based on my technical knowledge of traffic and SN analysis, both things about which I have had no classified contacts.
1.2.2006 3:09pm
Just an Observer:
Charlie (Colorado):

No one disputes that Al Queda is considered a foreign power within the FISA definition. That doesn't mean that surveillance of Al Queda it is exempt from FISA, but rather the reverse. The basic purpose of FISA is to regulate surveillance of foreign powers and their agents.
1.2.2006 3:11pm
Charlie (Colorado) (mail):
Jukebox: As I read it §1801(b) contradicts you on the face, as it specifically defines "Any person" as an "agent of a foreign power" when engaged in espionage, sabotage, entering the US under false pretenses to do the same, or conspiring with someone else to do the same; the other paragraphs talk about "non-US persons". Since §1801(i) excludes foreign powers, which would imply it also excludes "agents of foreign powers", it follows that agents of foreign powers are not, in this context "US persons".

1.2.2006 3:23pm
Polaris (mail):
Just An Observer,

However as Charlie showed, the *fact* that AQ is a foreign power under FISA means that it and it's agents have no protection under FISA providing the intercepts are done on international communications only.

Again, please cite ANY source by qualified people (including the anonymous ones cited by the NYTimes), that claims an actual FISA violation.

You can't.

Hmmmm......

Given what I know (which is no doubt very incomplete), I think Charlie might be on the right track, but that's a WAG at best on my part.

-Polaris
1.2.2006 3:26pm
Polaris (mail):
jukeboxgrad,

The statement by Gonzales is not evidence FISA was violated one way or the other. It's already been pointed out that that he could very easily be dissembling (and should be). There are holes in that so-called admission big enough to drive a truck through.

If what Charlie has suggested is correct, it is in our national security interest to let the public believe that the AUMF gives POTUS the authority under FISA even if it turns out that the AUMF was not needed at all.

Why is this so difficult to comprehend? People (of both parties) can and have dissembled before regarding sensitive information and for good reason.

Instead of accepting what Charlie and I are saying and admitting that there is a good deal of doubt that FISA applies at all given classified details, some of you are insisting on making far more from the AGs public prepared statement than is there?

I don't get it.

-Polaris
1.2.2006 3:31pm
Just an Observer:
Charlie (Colorado): " Since §1801(i) excludes foreign powers, which would imply it also excludes "agents of foreign powers", it follows that agents of foreign powers are not, in this context 'US persons'."

No. It implies no such thing. You are making the same mistake Polaris makes -- confusing a "foreign power" with "agents of foreign powers."

As the discussion above shows, this does not mean that U.S. persons cannot be agents of foreign powers. When a U.S. person becomes such an agent, he is still a U.S. person.

The exception of 1802 simply does not apply to the NSA program in question. The attorney general has made no certification such as the section requires. He could not, because the communications of U.S. persons have been intercepted.
1.2.2006 3:33pm
Medis:
Polaris,

You haven't specified any "holes" in what Gonzales said--and indeed, it seems pretty holeless to me.

Rather, you have claimed that Gonzales must be lying, given your assumption that despite what everyone in the Administration has said, there is in fact nothing different about this new program.

And frankly, I don't find your assumption, which is based on no knowledge of this particular program, very compelling.
1.2.2006 3:48pm
Michael B (mail):
"It's already been pointed out that that he could very easily be dissembling (and should be). There are holes in that so-called admission big enough to drive a truck through.

"If what Charlie has suggested is correct, it is in our national security interest to let the public believe that the AUMF gives POTUS the authority under FISA even if it turns out that the AUMF was not needed at all."

Am reading and accepting all this in a speculative/tentative sense only, but that seems reasonable, or at least is not an unreasonable interpretation. I do think "dissembling" is a far better and far more apt term than "lieing" (again, within a speculatively/tentatively accepting framework) though the latter serves an obvious political/rhetorical purpose.
1.2.2006 3:50pm
Polaris (mail):
Just an Observer,

That statute Charlie quoted looks cut-and-dried to me. Agents of Foreign powers are not considered US Persons. Period.

-Polaris
1.2.2006 3:52pm
Polaris (mail):
Michael,

That is all I am asking everyone to do...give the administration the benefit of the doubt until the Congressional Intelligence Committee has it's say. I am virtually certain that the program is legal given what has been revealed and what I personally know, but a full explaination would be classified and it would be unreasonble to expect the same certainty from those that lack the clearence.

HOWEVER, the Intelligence committee does have the clearence. I will tell you here and now, that the program will be cleared of any legal wrongdoing because they have the exculpatory information.

It makes me sick to see that this is being used as a political football. FISA is badly in need of a total overhaul and THAT (and who leaked the information) should be the topic of concern for everyone.

-Polaris
1.2.2006 3:59pm
Wendy:
Just read SHAMROCK on another blog. What's the difference between this and the current NSA program? Isn't this why FISA was created?

Project SHAMROCK, considered to be the sister project for Project MINARET, was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States. The Armed Forces Security Agency (AFSA) and its successor NSA were given direct access to daily microfilm copies of all incoming, outgoing, and transiting telegraphs via the Western Union and its associates RCA and ITT. Operation Shamrock lasted well into the 1960s when computerized operations (HARVEST) made it possible to search for keywords rather than read through all communications.
Project SHAMROCK became so successful that in 1966 the NSA and CIA set up a front company in lower Manhattan (where the offices of the telegraph companies were located) under the codename LPMEDLEY. At the height of Project SHAMROCK, 150,000 messages a month were printed and analyzed by NSA agents. In May 1975 however, congressional critics began to investigate and expose the program. As a result, NSA director Lew Allen terminated it. The testimony of both the representatives from the cable companies and of director Allen at the hearings prompted Senate Intelligence Committee chairman Sen. Frank Church to conclude that Project SHAMROCK was “probably the largest government interception program affecting Americans ever undertaken." (via wikipedia)
1.2.2006 4:01pm
Polaris (mail):
Wendy,

FISA was written in such a way so NOT to interfere with Shamrock and other such programs, but done in such a way that the public wouldn't notice.

Why? Simple. The biggest threats to national security come from those that are suborned rather than explicit foreign nationals themselves. I note that even the 9/11 terrorists lived as *apparent* US Persons for quite some time prior.

-Polaris
1.2.2006 4:05pm
Just an Observer:
Polaris,

Sorry, but your perception of cut-and-dried is simply wrong. Repetition of this error does not make it correct.

Under the statute, "foreign power" has one distinct definition and "agent of a foreign power" has a different distinct definition. You would like to believe they are the same, but they are not.

Besides, the whole section 1802 is not a blanket exception to the applicability of FISA, but rather a specific procedure under which the attorney general makes certain certifications. He has made no such certification in this case, and has made no argument whatsoever that Section 1802 should apply.
1.2.2006 4:08pm
Justin (mail):
Is Polaris reduced to arguing that FISA doesn't mean anything, and was designed just to create the false impression that Congress was creating a bill that regulated foreign intelligence surveillance? And that the text as well as the legislative history should be ignored as simply Congress "lying" to the American people?

How quaintly 1984ish.
1.2.2006 4:19pm
Polaris (mail):
Just An Observer,

I hate to break it to you, but the entire program was cleared by the AG. That certainly seems to meet the statutary requirement.

One. More. Time.

Can you cite ANY knowledgable source (by that I mean with access to the appropriate clearence and information...and I include the NYTimes anonymous sources), that states that FISA was in fact violated.

Just one will do.

-Polaris
1.2.2006 4:19pm
Polaris (mail):
Justin,

It is 1984ish. It's one reason I no longer work for the NSA. That doesn't make me wrong.

-Polaris
1.2.2006 4:21pm
Michael B (mail):
Polaris,

Yes, I've read the last three threads here on this topic and it does sound as if FISA needs an overhaul. On the other hand, given the evolving nature of the asymmetrical warfare, the technology (communications, weaponry, etc.) and other factors, the law will always have a tendency to lag the realities to at least some degree. That's a very general statement, obviously, and is not intended as any type of blanket exculpatory defense of the executive, this president or any other, but I do think the point is fully warranted at that general level; the existential threats coupled with the various evolving technologies will tend to outstrip the law. Even in prior eras, where the rate of change was far less rapid and the potential existential threat far less formidable, this factor could not be discounted, but it's more of a pressing factor in our era and the current situation.

An executive, by definition, needs to act and needs to do so responsibly. The law (and correspondingly legislatures), by its very nature, is static, at least in relative terms. Again, that's not intended in an exculpatory sense, but it serves to frame the overall dynamics.
1.2.2006 4:24pm
Just an Observer:
Polaris: "I hate to break it to you, but the entire program was cleared by the AG. That certainly seems to meet the statutary requirement."

Wrong. The certification requirements within the section are quite detailed. Notably, they include certifying that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

The attorney general has made no such certification. He could not, because U.S. persons were surveilled.
1.2.2006 4:31pm
Polaris (mail):
Michael,

I completely agree with the notion that FISA needs an overhaul both to protect our civil liberties, but also to protect this country AND to protect those that gather necessary electonic intelligence in good faith (and I hope you'd agree that such intelligence is vital).

Whatever my concerns about the scope of NSA (and they are considerable as I alluded to earlier), I would hope that any reasonable person would accept that it's difficult to find fault with a POTUS (of any party) that uses his or her authority under the law to the maximum extent possible....even to the point of testing boundaries of the law in question....in order to protect this country. Mind I am not suggesting lawlessness or it be done without oversight, but I note that even the NYTimes has admitted that there was a considerable amount of oversight both officially and unofficially.

I think that the very antiquated nature of FISA has made this a very bad situation for everyone and if *ANY* good comes from this, it's a complete overhaul of FISA (with periodic reviews in the future). I note in passing that after 9/11 POTUS asked for just this and congress turned him down flat.

-Polaris
1.2.2006 4:31pm
subpatre (mail):
Just an Observer - You're waaaay off base. Who in the NSA cares about US PERSONS or AGENTS OF A FOREIGN POWER, when several people here suborne the law to claim extra protection for those who'd destroy the nation? The result is NSA just won't do "electronic surveillance" on whoever needs monitoring.

That's why FISA is like Swiss cheese. After the clamor from the Church Commission, FISA was the only way to make a law that protected the country and 'protected citizens'.

Polaris may be dead wrong on some points, but his political sight is perfect. With a big partisan stink like this, Congress will cave in and make a show of more law to 'protect citizens'. Just remember who ran forward with equipment on 9/11, and who scurried like rats through DC. That's the kind of law you'll get under pressure.


Nobody's claimed the President has switched to a warrantless system; FISA warrants are still obtained when they're needed. The reporting is about a major shift in practices, not law.

Nobody who would know alleges any FISA violations, not even the NYT leakers.
1.2.2006 4:34pm
Polaris (mail):
Just An Observer,

WRONG. That's just one condition that qualifies. There are two others and as Charlie explained, the statute seems to pretty much rule out an Agent of a Foreign Power as a "US Person" for the puposes of this statute.

-Polaris
1.2.2006 4:35pm
Justin (mail):
"Justin,

It is 1984ish. It's one reason I no longer work for the NSA. That doesn't make me wrong.

-Polaris"

It's trolls like this that make me miss the many faces of Jack John.
1.2.2006 4:35pm
Polaris (mail):
Justin,

Pot meet Kettle; Kettle meet Pot. Enough said.

-Polaris
1.2.2006 4:38pm
John Lederer (mail):
I must say that initially I thought Polaris was wrong on the "U.S. person" definition. Now, I am not so sure.

We cannot intercept the communications of an association. Associations don't communicate. People communicate. Associations operate only through their members.

If you look at the whole framework, the law possibly contemplates surveillance of an association that is a foreign power even if some of its members are U.S. persons. Wouldn't surveillance of an association necessarily involve surveillance of members?
1.2.2006 4:44pm
Just an Observer:
Polaris,

Your shrill repetition of incompetent statutory interpretation by yourself and Charlie does not make it correct. It is a matter black-letter law, not opinion.

I will no longer engage in a battle of wits with an unarmed man.
1.2.2006 4:49pm
Michael B (mail):
"Whatever my concerns about the scope of NSA (and they are considerable as I alluded to earlier), I would hope that any reasonable person would accept that it's difficult to find fault with a POTUS (of any party) that uses his or her authority under the law to the maximum extent possible....even to the point of testing boundaries of the law in question..." Polaris

Yes, that's a solid framing and it touches in large part on what I was alluding to. Broadly conceived (rather than legally in a strict sense), the current situation needs to be framed within 1) the Constitutional and statutory frameworks, 2) the real-world historical evolutions (e.g., legal precedent and rationales vis-a-vis technology) and 3) within the various current existential frameworks and contingencies (threats, technology, weaponry).
1.2.2006 4:57pm
Just an Observer:
John Lederer,

The specific exception to the definition of U.S. person is "a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section."

Those definitions, in turn, are:


(1) a foreign government or any component thereof, whether or not recognized by the United States;

(2) a faction of a foreign nation or nations, not substantially composed of United States persons;

(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;


Problematically, the U.S.-person exception and the references in section 1802 (a)1(A) do not include the type of foreign power of which Al Queda is a species:

(4) a group engaged in international terrorism or activities in preparation therefor;

(5) a foreign-based political organization, not substantially composed of United States persons; or

(6) an entity that is directed and controlled by a foreign government or governments.


In any case, the U.S.-person definition is stating which natural persons, associations or corporations are considered U.S. persons. The exception deals with a subset of associations or corporations, those that are "foreign powers" under the definition in 1801 (a)(1), (2), or (3).

Even if a natural U.S. person is a considered a "member" of such an association, he still retains his own citizenship, and thus is a U.S. person in his own right. Hence, the attorney general could not certify that no U.S. persons were being surveilled.

If the provisions of 1802 and its definitions could have been made to apply, I am sure the attorney general would have done so and made the appropriate certifications rather than risk violating FISA. The fact is, he did not.

It seems clear from which type of "foreign power" are included and which are excluded above that 1802 was meant to apply to communications between governments.
1.2.2006 5:35pm
jahoulih:
Polaris said, "Bush will be completely exonerated by the Intelligence Committee of Congress. Bank on it."

I would not be surprised if Bush were exonerated by the hacktacular Pat Roberts and the mediocre John Rockefeller. That is why it is imperative that this program be examined by Specter and Biden, who, unlike their counterparts on the Intelligence Committee, possess a modicum of intelligence.

As for Polaris, it has been demonstrated that he is legally clueless, semiliterate, and heavy into fantasy. Given what we now know about the practices of the NSA, I would say that his NSA credentials are practically certain. That is a frightening thought.
1.2.2006 6:05pm
subpatre (mail):
jahoulih -
Can you lay off the invective? To date nobody who would or could know alleges any FISA violations, not even the NYT leakers.


Just an Observer -
Where are you trying to go with this? Make a case that the AG or President must have done this or that action? If so, post some examples so we can moot it, and assist you in seeing the gaping holes. FISA is the Federal Intelligence Swisscheese Act.
1.2.2006 6:34pm
jahoulih:
Subpatre and the others who cite the absence of allegations of FISA violations in the NYT stories apparently do not understand the practice of journalism. It is not a reporter's function to render a legal opinion. The reporter reports the facts, and leaves it to others to draw the appropriate legal conclusion.

Prof. Kerr, inter alios, has drawn the appropriate legal conclusion: Given the facts as reported, FISA was violated. Multiple times. Each violation is punishable by many years in the federal penitentiary. Pardon my invective.
1.2.2006 6:43pm
Just an Observer:
subparte; "Where are you trying to go with this? Make a case that the AG or President must have done this or that action?"

I was not "trying to go" anywhere, but rather was responding to speculation here that Section 1802 of FISA somehow provides a blanket loophole to the law's other general provisions.

What 1802 does is establish specific procedures and certifications for the attorney general to invoke in a narrowly defined set of circumstances that allow surveillance without a court order. I pointed out the the attorney general never has invoked those procedures in the matter in question, and has never claimed that the provisions of 1802 apply.
1.2.2006 6:48pm
Charlie (Colorado) (mail):

No. It implies no such thing. You are making the same mistake Polaris makes -- confusing a "foreign power" with "agents of foreign powers."


Then I'm doing so explicitly: I don't buy your argument, I buy mine.


As the discussion above shows, this does not mean that U.S. persons cannot be agents of foreign powers. When a U.S. person becomes such an agent, he is still a U.S. person.

The exception of 1802 simply does not apply to the NSA program in question. The attorney general has made no certification such as the section requires. He could not, because the communications of U.S. persons have been intercepted.


I'm sorry, but do you have some actual reason to believe this? Considering, eg, that the whole thread was started because of a story reporting that there was a dispute over the AG's certification and that the dispute was resolved?

Son, my granddad used to tell me "if the bird book and the bird disagree, believe the bird." In this case, since we're discussing a story talking about what was done to eventually obtain the Attorney General's certification, it's probably pointless, even kind of silly, to argue that no such certification exists.
1.2.2006 7:00pm
Just an Observer:
Charlie (Colorado):

As I read the NYT story you reference, Comey's signoff (or lack thereof)involved internal DOJ procedures having to do with Bush's executive order for this NSA program.

This had nothing to do with Section 1802, which is a specialized, statutorily defined procedure for a different set of circumstances.

Section 1802 is not relevant to the NSA program is question, and the attorney general has not claimed that it is. The only mention of 1802 in this context has been in your own inept reading of the law.
1.2.2006 7:14pm
Charlie (Colorado) (mail):
JaO:


Problematically, the U.S.-person exception and the references in section 1802 (a)1(A) do not include the type of foreign power of which Al Queda is a species: ....


Uh, it's not absolutely cut-and-dried, but the Sands decision (USA v bin Laden) appears to find that al Qaeda is a foreign power in that sense. Personally, I think §1801(a)(2) --- the "faction" graf --- seems particularly apposite to me.


If the provisions of 1802 and its definitions could have been made to apply, I am sure the attorney general would have done so and made the appropriate certifications rather than risk violating FISA. The fact is, he did not.


Look, if you're going to keep saying that, could you supply some support for the assertion? Your argument for it so far is pure petitio principii --- you know the AG didn't (even though the story we're talking about seems to say he eventually did) because he couldn't possibly have done it, becuase your interpretation of the statute says he couldn't; therefore he didn't, which you use as evidence for your interpretation of the statute.

John Lederer:


We cannot intercept the communications of an association. Associations don't communicate. People communicate. Associations operate only through their members.

If you look at the whole framework, the law possibly contemplates surveillance of an association that is a foreign power even if some of its members are U.S. persons. Wouldn't surveillance of an association necessarily involve surveillance of members?


Exactly my point. This seems especially strong since there's the whole notion of "minimization" in §1801(h) that describes what to do if you accidentally get some "US person" information.
1.2.2006 7:16pm
Just an Observer:
Charlie (Colorado):

If the attorney general had justified this program under 1802, and made the appropriate certifications at the time the surveillance was executed, I am sure that he simply would have said so in his Dec. 19 briefing or in the Dec. 22 letter his assistant sent to congressional leaders making the administration legal case.

Section 1802 was not mentioned at all. Your strained attempt to construe it to be applicable is based only on your own mistaken reading of the law, and is not shared by the DOJ. If you have any evidence that the attorney general invoked 1802, please provide it.
1.2.2006 7:25pm
Charlie (Colorado) (mail):

As I read the NYT story you reference, Comey's signoff (or lack thereof)involved internal DOJ procedures having to do with Bush's executive order for this NSA program.


Exactly: as you read the story. There is no evidence in the story that this was an "interal DoJ" procedure, as opposed to the procedure for notification of Congress we we know has been reported to have been followed.

(Just what would be the difference between the DoJ's procedure under the notification sections of §1801 et seq an an "internal DoJ procedure" anyway? Its not like the statute establishes an extra-Executive Office of Following 1801 Procedures.)

Knowing that a statutory procedure exists, and that Congress was notified, and that no one has suggested the procedure wasn't followed (except, of course, you) it would seem that we would need some positive evidence that such an alternative procedure existed.


This had nothing to do with Section 1802, which is a specialized, statutorily defined procedure for a different set of circumstances.


If you have some actual evidence of this, some particular factual knowledge that this is true, this would be the time to bring it out. I'm challenging that conclusion: it appears to me to come about through "begging the question", as I've said. I don't accept your authority to just tell me I'm wrong: you're going to need to argue it.

(Oh, and you might, by the way, want to look up "ad hominem (abusive)". It doesn't work on me anyway, as I was teaching philosophy students the problems with it, I suspect, before you were born. (At least I hope so; I'd hate to think you're making arguments like this after a lengthy careeer in such things.) But I suspect you'd find that your arguments are more convincing, and you yourself more respected, if you broke the habit of using it.
1.2.2006 7:30pm
Just an Observer:
Charlie (Colorado);

I do not say the attorney general did not invoke 1802 just because I can see that the section did not apply. I say so because of total lack of mention of 1802 by Gonzalez or any other spokesman for the Bush administration.

That is a matter of fact. They cite other sections of FISA as justification, but not 1802. If, as a matter of fact, the attorney general had invoked the procedures of 1802 at the time the surveillance was ordered, all they would have had to say now is that they followed that process and made the appropriate certifications. They made no such statements, as a matter of fact.

The only reason the subject even came up was your own effort on this thread to construe 1802 as applicable.
1.2.2006 7:41pm
Charlie (Colorado) (mail):

If the attorney general had justified this program under 1802, and made the appropriate certifications at the time the surveillance was executed, I am sure that he simply would have said so in his Dec. 19 briefing or in the Dec. 22 letter his assistant sent to congressional leaders making the administration legal case.


No, that's a false inference; it would only be true if you could show that there exists no other motivation for picking the argument he picked. Since it's easy to exhibit other possibilities, eg, a desire to restore the line of balance of powers to something more like what it was pre-Nixon, you're conclusion does not follow.


Section 1802 was not mentioned at all.


Agreed.


Your strained attempt to construe it to be applicable is based only on your own mistaken reading of the law, ....


Ad hominem abusive and begging the question, not bad for one sentence fragment.


... and is not shared by the DOJ.


And you know this how?


If you have any evidence that the attorney general invoked 1802, please provide it.


A little bit more sophisticated, but still fallacious. I'm arguing the position that I think the "agent of a foreign power" interpretation is a sufficient reason to believe --- in conjunction with the fact that Congress has been notified, and some kind of procedure was clearly followed in the DoJ to determine the legal standing of the program, apparently fulfilling the other aspects of 1801 et seq --- to believe that there is no FISA law violation. You disagree, and I suppose if you can find someone with standing to proceed, you could try your interpretation and see what happens. But simply from the standpoint of logical argument, whether or not the AG asserted a privilege under 1802 is not germane to whether the argument is valid.

On the other hand, you're making the positive assertion that the AG and DoJ never made the certification contemplated in 1801 et seq. That positive assertion requires proof; your fallacious argument that they couldn't have done so because they knew they were violating the statute is begging the question.
1.2.2006 7:48pm
Charlie (Colorado) (mail):

I do not say the attorney general did not invoke 1802 just because I can see that the section did not apply. I say so because of total lack of mention of 1802 by Gonzalez or any other spokesman for the Bush administration.


Still fallacious, but now an appeal to ignorance instead of petitio principii. Try the wikipedia article on fallacies, it might help you get these right.
1.2.2006 7:53pm
jahoulih:
If the AG thinks he provided a certification under FISA that would render this program permissible under FISA, why doesn't he say so instead of spouting nonsense about AUMF and Article II?

(I know, because it's double secret probation classified.)
1.2.2006 8:02pm
Medis:
I still find it fascinating that the defenders of the Administration seem to think there must be some sort of silver bullet statutory argument out there that the Administration hasn't bothered to mention yet.

Oh well--there is probably no use arguing with that belief. But since people are laying down bets, I'm willing to bet that the statutory argument the Administration has actually made is the one they will end up depending on.
1.2.2006 8:06pm
Just an Observer:
charlie (Colorado):

There is no evidence in the story that this was an "interal DoJ" procedure, as opposed to the procedure for notification of Congress we we know has been reported to have been followed.


The NYT story about Comey:

The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.


The White House set the procedure for this program, according to the NYT story. In Section 1802, the procedure is spelled out in the act.

The main thing the two procedures have in common is that both require the attorney general's approval.

If 1802 had been invoked, it is nonsensical for the DOJ not to just say so. That is my common-sense reason for believing that 1802 was not invoked, butressed by my own reading of the law explaining why 1802 was not applicable.

Charlie (Colorado):


I'm arguing the position that I think the "agent of a foreign power" interpretation is a sufficient reason to believe --- in conjunction with the fact that Congress has been notified, and some kind of procedure was clearly followed in the DoJ to determine the legal standing of the program, apparently fulfilling the other aspects of 1801 et seq --- to believe that there is no FISA law violation. ... But simply from the standpoint of logical argument, whether or not the AG asserted a privilege under 1802 is not germane to whether the argument is valid.


Then I have misunderstood your argument. I thought you were asserting directly that 1802 was the justification for the NSA program. Invoking 1802 would have required specific certification at the time, as a matter of fact.

I certainly don't endorse your newly stated argument above. I confess that I really don't understand it. But it is not the same as I understood it before.
1.2.2006 8:19pm
Wince and Nod (mail) (www):
Justin, minnie, and others,

By implying that Polaris does not possess the credentials he claims, but rather that he is a teenager, you are breaking the rules of this forum. The language, reasoning and thought behind his posts have been exemplary, and they surpass yours because they also have followed the rules of the forum. I also make spelling mistakes, sometimes repeatedly, even though I am forty-five, and well educated. I won't mention the pronunciation errors I get from being a reader, not a talker.

I am very disappointed in your collective behavior. I hope you will refrain from it in the future, or go elsewhere to comment.

jahoulih,

Stop it with the insults. See below: "try to be as calm, reasoned, and substantive as possible".

Charlie and Polaris,

I agree the S in FISA should stand for Swiss cheese, but, having read it's various sections repeatedly lately, I believe the law does make a clear distinction between agents of a foreign power and a foreign power.

One hole in the Swiss we haven't talked about here is that you must intentionally target a U.S. person. But neither phone numbers nor email addresses are U.S. persons.

Medis,

If one is trying to keep national security secrets, one does not reveal them, even if they show you have been following the law. It isn't that hard to follow.

What is hard to follow is that paragraph from Gonzales you keep quoting. It's chopped up mishmash with the darnedest punctuation, especially compared to the rest of the statement. It almost sounds like someone trying very hard not to reveal a secret, messing up, getting confused, and trying hard to return to his prepared remarks.

And if you don't think public figures make that kind of mistake all the time, I've got a bridge you might want to consider purchasing. ;)

Remember, incompetence is usually a better explanation than malice. Including, sad to say, mine.

Yours,
Wince
1.2.2006 8:35pm
jrose:
Charlie,

Since §1801(i) excludes foreign powers, which would imply it also excludes "agents of foreign powers", it follows that agents of foreign powers are not, in this context "US persons".
Do you have a precedent to support the part that starts, "it follows that ..."
1.2.2006 8:45pm
Wendy:
I thought readers might be interested in Geoffrey R. Stone 's post at the Huffingtonpost.com:

Bush's Spy Program and the Fourth Amendment

SNIP

The most relevant precedent is United States v. United States District Court (Keith). Decided in 1972, Kieth involved a prosecution for conspiracy to blow-up a CIA office. The Executive argued that in order “to gather intelligence information” that was “necessary to protect the nation from attempts . . . to attack and subvert the existing structure of the Government,” it was constitutionally entitled to engage in electronic surveillance of American citizens without complying with the requirements of the Fourth Amendment. In Kieth, the Supreme Court unanimously and unequivocally held that, even in national security investigations, the President had no constitutional authority to conduct electronic surveillance of American citizens on American soil without a judicially issued search warrant based on a finding of probable cause.

Bio:
Geoffrey R. Stone is the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago. From 1987 to 1994 he served as Dean of the University of Chicago Law School and from 1994 to 2002 he served as Provost of the University of Chicago. His most recent book, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W.W. Norton 2004), has received both the Robert F. Kennedy Book Award and the Los Angeles Times Book Prize for the Best Book of the Year in History.
1.2.2006 9:02pm
Wendy:
1.2.2006 9:05pm
jukeboxgrad (mail):
Polaris,

More on your sweeping statements regarding citizenship, such as this: "if you join a foreign military organization you void your citizenship"

Not exactly. It's not that simple (as Evelyn has explained). The State Dept says this: "Military service in foreign countries usually does not cause loss of citizenship since an intention to relinquish citizenship normally is lacking."

The law say this: "A person who is a national of the United States ... shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality ... (3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; ... or (7) committing any act of treason against, ... or bearing arms against, the United States, ... or ... engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction."

One immigration lawyer says this: "service in an insurgent or revolutionary military group ... is not considered a renunciating act."

This is consistent with the law, which refers to "the armed forces of a foreign state." We are frequently told AQ is stateless. Here's a typical statement, from Rice: we often capture people "who are effectively stateless, owing allegiance only to the extremist cause of transnational terrorism." In other words, AQ is not "the armed forces of a foreign state." Indeed, this very statelessness is often used to argue that GC doesn't apply.

Speaking of torture, John Yoo (of all people) wrote an interesting essay on the subject of expatriation. Like you, he seems interested in the idea of automatic expatriation of accused terrorists, but he has to admit (by omission) that it's never happened (and if your logic was correct, it should certainly have happened with Hamdi and with Lindh, but it didn't).

"it is in our national security interest to let the public believe that the AUMF gives POTUS the authority under FISA even if it turns out that the AUMF was not needed at all"

When you say "the AUMF gives POTUS the authority under FISA," I think what you're really trying to say is "the AUMF gives POTUS the authority to violate FISA." (I also realize you're claiming that FISA is not being violated, but that Gonzales has some mysterious reason to lie about this.) Which brings us back to a question you haven't answered.

When the NYT suggests that Bush is violating FISA, that supposedly helps our enemies. But when Gonzales asserts (falsely, in your opinion) that Bush is violating FISA (albeit on the basis of authority supposedly granted by AUMF), that's a clever ruse which enhances our security. Please explain how that makes sense.

Here's another question you've ignored. If your theory is correct, why didn't Gonzales simply say this: "FISA is not being violated; the details explaining this are classified, and I will elaborate in the proper setting."

"Why is this so difficult to comprehend?"

Because it's ludicrous.

By the way, if Bush is only doing what other presidents have done, then what the NYT reported is, by definition, not news. Therefore what is the basis for any claim that they harmed national security?

"the *fact* that AQ is a foreign power under FISA means that it and it's agents have no protection under FISA"

Except for the fact that FISA requires a warrant, even if you're an agent of a foreign power, if you are a US citizen in the US. So "it's agents have no protection under FISA" except when its agents have protection under FISA.

"please cite ANY source by qualified people ... that claims an actual FISA violation"

I did cite exactly such a source (Gonzales). You dismiss this by claiming he lied. If you reserve the right to claim that any statement incongruent with your bizarre theories is a lie, then there isn't much point looking for other such statements.

"some of you are insisting on making far more from the AGs public prepared statement than is there"

I am accepting Gonzales's words at face value. It is you who is "making far more," by claiming his words mean the opposite of what they seem to mean, because they are supposedly part of an incomprehensible ruse designed to deceive the enemy.

"the entire program was cleared by the AG"

JaO was specifically referring to section 1802, which stipulates a situation where the AG certifies that (among other things) "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

It's true that "the entire program was cleared by the AG," but it's not true that Gonzales invoked Section 1802. It's clear he didn't, because he admitted himself that the program snooped on US citizens.

Section 1802 is being mentioned because Charlie quoted from it in connection with generating confusion about the meaning of "foreign power." What JaO is pointing out is that Section 1802 isn't particularly relevant.

"That's just one condition that qualifies. There are two others"

Section 1802 connects the relevant conditions (A, B and C) with the word "and," not the word "or." Somewhere in your NSA training presumably they told you what those words mean.

"the statute seems to pretty much rule out an Agent of a Foreign Power as a 'US Person' "

Yes, the statute "pretty much" says what you claim it says, provided you're willing to completely ignore the definitions section, which is clear as day in differentiating between "foreign power" and "agent of a foreign power."

"even to the point of testing boundaries of the law in question"

English translation: "since it's easier than changing a law we don't like, let's just break the law and hope no one finds out."
1.2.2006 9:12pm
jukeboxgrad (mail):
Charlie,

"the law does say what I claim (§1802(b)) if the court considers al Qaeda a 'foreign power'"

You have suggested (here) that according to FISA, the president can do warrantless surveillance of US persons as long as he believes the person is an "agent of a foreign power." That's not what FISA says. FISA says that if the president thinks someone is an agent of a foreign power, then the president needs to ask the FISA court for a warrant. And if the FISA court agrees that there is probable cause to believe the person is an "agent of a foreign power," then the warrant will be granted.

Even if one agrees (via Sands or for any other reason) that AQ ia a "foreign power," that doesn't mean FISA grants the president the right to do warrantless surveillance of a US citizen in the US, simply because he asserts that person is a member of AQ.

You can't find this authority in FISA, unless you quote selectively.

JoA has also explained this (more concisely than I just did).

"Since §1801(i) excludes foreign powers, which would imply it also excludes 'agents of foreign powers' "

As others have explained, "foreign powers" and "agents of foreign powers" are not interchangeable phrases. You need to deal with what FISA actually says, not what you claim it implies. FISA uses both phrases, and it does not do so indiscriminately.

In particular, FISA explicitly defines the terms, here. A "foreign power" is defined as some kind of a group. "Agent of a foreign power" is explicitly defined as a person.

Your claim is based on the preposterous idea that the law was careful enough to define these terms separately, and then nevertheless carelessly proceeded to use one term when it intended to imply the other term.

"do you have some actual reason to believe this [that the AG never provided a Section 1802 certification]"

Yes. The AG himself told us that US citizens were surveilled, and Section 1802 can not apply in such an instance.

Here's another clue that Section 1802 was never invoked. It stipulates that the AG can provides a certification which is good for a year. If this was done, Bush would not have needed to be reauthorizing the program so frequently.

"it's probably pointless, even kind of silly, to argue that no such certification exists."

No one is claiming that the AG never provided any sort of certification. What is sufficiently clear, however, is that he did not provide the particular certification stipulated in Section 1802.

JaO summed this up aptly: "The only mention of 1802 in this context has been in your own inept reading of the law."

"the Sands decision (USA v bin Laden) appears to find that al Qaeda is a foreign power in that sense"

Sands (pdf) does provide a basis for claiming AQ is a "foreign power." Sands does not provide a basis for claiming that AQ is a foreign power in the narrow terms specified by Section 1802. Specifically, Section 1802 excludes "a group engaged in international terrorism" (§1801(a)(4)).

"Personally, I think §1801(a)(2) --- the "faction" graf --- seems particularly apposite to me."

You're claiming that "a faction of a foreign nation or nations, not substantially composed of United States persons" is better description of AQ than "a group engaged in international terrorism." Rice has said we're fighting people "who are effectively stateless, owing allegiance only to the extremist cause of transnational terrorism."

"Transnational terrorism" (Rice's term) seems to be a pretty good synonym for "international terrorism" (a term which Section 1802 specifically excludes).

You should let Rice know you understand AQ better than she does. Also, since you're claiming that AQ is "a faction of a foreign nation or nations," rather than "a group engaged in international terrorism," then I hope you'll let us know which nations AQ is a faction of. We've been told AQ has cells in many, many countries. Is AQ a "faction" of many, many nations? For example, AQ presumably has cells in the UK. Is AQ a "faction" of the UK?

"If you have some actual evidence of this"

The "actual evidence" of what Section 1802 says can be found, oddly enough, in Section 1802. Among other things, it stipulates a procedure that only applies if no US persons are being surveilled. Gonzales admitted that US citizens were subjected to warrantless surveillance. Therefore it's reasonable to conclude that Section 1802 was not invoked.
1.2.2006 9:13pm
jukeboxgrad (mail):
subpatre,

"Nobody's claimed the President has switched to a warrantless system; FISA warrants are still obtained when they're needed."

Nobody's claimed the President has switched to an entirely warrantless system; FISA warrants are apparently still obtained under certain circumstances. But FISA warrants are mostly definitely not always being obtained when they're needed as required by FISA. Gonzales told us this: "the Foreign Intelligence Surveillance Act ... requires a court order before engaging in this kind of surveillance that I've just discussed." What kind of surveillance was "just discussed?" Warrantless surveillance.

"Nobody who would know alleges any FISA violations"

Nobody who would know except Gonzales.
1.2.2006 9:14pm
jukeboxgrad (mail):
John,

"Wouldn't surveillance of an association necessarily involve surveillance of members?"

No. An organization can (and typically does) have it's own email and phone addresses. Authority to tap those channels is not the same as authority to tap someone's home phone. It's perfectly reasonable for the statute to recognize such a distinction. The fact is that the statute does recognize that distinction.

One more time, here's what the law says: " 'United States person' means a citizen of the United States ... or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power."

Certain people are pretending the law said this: "... but does not include a person who is an agent of a foreign power." Trouble is, that's not what it says.

The terms "foreign power" and "agent of a foreign power" are explicitly defined at the top of the same page. The former term refers to some kind of group. The latter term refers to an individual. The phrase "does not include a corporation or an association which is a foreign power" is clearly referring to a group, not an individual.

Aside from all that, as JaO explained, "foreign power" as mentioned in 1802 would in any case not apply to AQ, since it is not a government or nation, or a faction of a nation (or nations). It is a stateless group that supports international terrorism, as Rice has indicated.

wince,

"neither phone numbers nor email addresses are U.S. persons."

I think that most of the time, especially given the information resources at the disposal of the US, that phone/email are a reasonable proxy for someone's name. I think it's pointless to suggest a huge distinction (in much the same way that it's pointless to suggest there's a meaningful difference between "Valerie Plame" and "Wilson's wife").

Aside from that, the original NYT article spoke of a list of names.
1.2.2006 9:14pm
Wince and Nod (mail) (www):
jukeboxgrad,

Have you ever heard of cloning? It's the technological fraud where a thief copies cell phone characteristics from a cell phone which is in use. The thief is than able to use the phone with all calls charged to the rightful owner. The most common way to make money is to sell international minutes to foreign nationals living here. Since selling your cell phone minutes is a common practice in many foreign countries, I doubt most of these people even realize they are engaging in fraudulent behavior.

Would you, as an Al Qaeda operative buy such cloned minutes? Would you clone phones yourself?

Do multiple people in an office ever share phones or email addresses? Do multiple people within a house? What about in immigrant households, which are more likely to have larger groups of people? Have you ever, as a bachelor, shared an apartment, or room? I have, with up to four people.

"Nice smokes. No tax stamp, huh? Bet that saved some serious cash."

"It's even better! My new next door neighbor, Ham, you know, the one who says the apartment reminds him of one he shared in Hamburg, traded them to me for some of my international minutes at below his normal rate. Misses his mom I guess."

And what about the practice where Al Qaeda members have shared a web-mail account and sent messages by saving them as drafts but never sending them?

No, phone numbers and email addresses are not a reasonable proxy for someones name. Neither are car license plate numbers, house addresses, office addresses, or web site URLs, or other shared resource identifiers.

Aside from that, IIRC, the original NYT article spoke of a list of phone numbers and email addresses obtained from an Al Qaeda laptop. So has the President. I didn't remember the list of names, myself.

Medis,

And one more comment. The President, Vice President and the Attorney General have all said that they are using FISA when appropriate. Me, I've always considered legality to be an important component of appropriateness. To twist a very confused paragraph into the idea that the AG said they were in violation of FISA is quite the opposite of what the Administration has been maintaining all along.

Yours,
Wince
1.2.2006 9:52pm
Medis:
Wince,

I don't think there is anything confusing or ambiguous about what Gonzales said. Nor is it particularly fumbling--if you transcribe what people say orally, the punctuation is usually a little off, and this is not unusually bad by those standards. Most importantly, that paragraph makes perfect sense in context, and is completely consistent with Moschella's letter.

Of course, none of this means Gonzales admitted the program is illegal. Indeed, he is explaining exactly why the Administration is claiming the program is legal despite FISA--he claims the 2001 AUMF authorized them to bypass FISA procedures even when conducting electronic surveillance within the meaning of FISA.

Again, this is what I find interesting--you seem to be assuming that the 2001 AUMF argument is so transparently bad that Gonzales would essentially be admitting the program was illegal if he admits it involved surveillance within the scope of FISA. But I don't think they see the issue quite that way.
1.2.2006 10:08pm
subpatre (mail):
jukeboxgrad writes "... But FISA warrants are mostly definitely not always being obtained when they're needed as required by FISA. Gonzales told us this: "the Foreign Intelligence Surveillance Act ... requires a court order before engaging in this kind of surveillance that I've just discussed." What kind of surveillance was "just discussed?" Warrantless surveillance."

Gonzales used a number of descriptions:
- the highly classified program
- what has been disclosed by the President
- intercepts where one party is outside the United States
- spying on American citizens calling their neighbors
- learn of communications from the US to al Qaeda
- what the FISA provides... [for]
- what the FISA requires, etc etc
The meaning changes depending on deconstruction. I don't think Gonzales is lying; 'dissembling' is closer. He's leaving himself lots of loopholes open.

In case you didn't notice (bet you didn't) many circumstances Gonzales described may not need warrants, even under your adversarial position.
1.2.2006 10:10pm
Medis:
Wince,

Sorry, I forgot one point--although I must admit I am losing a little patience with this obvious straw man. Once more, I am NOT saying Gonzales should provide any details of the program in order to "show" that the program was outside the scope of FISA. For that matter, I'm not even saying he should tell us whether the program was inside or outside the scope of FISA. I'm just saying he has no reason to actually lie about the program being within the scope of FISA. In other words, he could say nothing, or speak just in generalities--as, in fact, he already is--without providing any operational or technical details.
1.2.2006 10:12pm
Medis:
subpatre,

Right, Gonzales only said that what the President authorized through this special program would have required warrants through FISA if not for the 2001 AUMF.

Which, of course, makes perfect sense--if the surveillance in question did not require a warrant under FISA, then the 2001 AUMF would be irrelevant, and so would any special Presidential authorization that depended on the 2001 AUMF.

What I find baffling is your insistence that the President did not do exactly what Gonzales said he did--or do you think their 2001 AUMF argument is so bad that they couldn't possible believe it themselves?
1.2.2006 10:19pm
Master Shake:
Jukeboxgrad-

Thank you, thank you, thank you.

/Stands up and applauds.
1.2.2006 10:32pm
Noah Klein (mail):
subparte:

No matter how many times you state that what Gonzales said is not clear, it is clear. Let me try to use what you say to refute it.

Gonzales used a number of descriptions:
- the highly classified program
- what has been disclosed by the President
- intercepts where one party is outside the United States
- spying on American citizens calling their neighbors
- learn of communications from the US to al Qaeda
- what the FISA provides... [for]
- what the FISA requires, etc etc

The first three quotes you use from Gonzales are the same thing. The all involve the program where the NSA surveils the contents of the communications between U.S. Citizens and a party outside the U.S. The fourth quote from Gonzales is what he says the NSA is not doing. The fifth quote from Gonzales has to do with the reason for the surveilance. Finally the sixth and seventh quote from Gonzales has to do with the FISA procedures that this program violated. Gonzales later defends the violation of FISA by stating that 2001 AUMF made the provisions of FISA moot. Whether the 2001 AUMF did or did not make FISA moot for the program that the NSA is conducting is the issue. There is no confusion.

Finally, I have been reading through this entire thread and I would like to advise certain people without naming names that they should read what the post before they post it, because there are elements in those posts that contradict the claims made by those posters.
1.2.2006 10:50pm
subpatre (mail):
My take: Gonzales spoke after the blogsphere had latched onto this. So he knew how the majority were looking at the NY Times articles. Therefore his job was to incorporate that as a defense, fulfilling people's expectations.

Gonzales' first AQ example (para 2 &3) doesn't require a warrant --and never did under any circumstances-- when both callers are not US PERSONs. Don't give me crap about 'context', it isn't there except for many listeners' preconceptions.

Gonzales also didn't say the AQ example was the "highly classified program" the President had confirmed the existence of.

The kicker is just after Gonzales AQ example, a completely distinct paragraph:
"What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that's what this program is about".
This program? The AQ example was boilerplate listening to phones and capturing email. Learning of communications doesn't come from 'taps', but it perfectly describes pattern analysis and network diagramming. Paragraph 4 has no connection to the preceding two paragraphs.

Paragraph 5 is where Gonzales says "...Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed..."

Which "this" is this? It's a masterful speech. If you want to hear Gonzales 'confess', it's right there; exactly what the left was praying for. If you want to hear 'This is war, we're charging ahead, it's right there; exactly what the right's been praying for.

I hear Gonzales dodge the media firing firing squad like Neo in the Matrix; masterful. And if you wanted to hear what NSA's actually doing, well, the only items that weren't in Gonzales speech is what's actually going on.
1.2.2006 11:03pm
Medis:
subpatre,

Or he could just be telling the truth in plain terms. It happens sometimes.
1.2.2006 11:20pm
Wince and Nod (mail) (www):
Medis,

It is not a lie to fail to give all the possible justifications under FISA that any given Administration practice is legal, yet the possibility, as others, not me, have suggested that he was engaged in disinformation is not out of the question, merely because it isn't credible to you. Lots of people have a "Not Invented Here" mentality which prevents them from finding other opinions credible.

You have repeatedly resorted to the logical fallacy that Gonzales was admitting to a violation of FISA by failing to justify the policy using it, but instead using another justification. Multiple examples have been advanced to explain this logical fallacy to you, yet you repeat it.

And it is not a straw man to suggest that Gonzales may be avoiding particular legal arguments in order to avoid a discussion of classified material. I have never suggested that you were calling for classified material to be revealed to you or the public, but merely that a prudent Administration official would consider that when making statements and tailor them accordingly. Frankly, you seem too careful a thinker to want the government to spill it's guts while the terrorists were listening, and I would not accuse you of such.

Noah Klein,

Clarity is in the eye of the beholder. I've just reread it. Gonzales was stumbling at that point. It sounds very much like a don't mention the pink elephant moment - where something he knew he didn't want to say started to slip out. And there are many possible things that could have slipped, such as a realization that if he claimed the limited powers under FISA he would weaken the broader war fighting claim he intended to make, or that he was trying to avoid a national security revelation, or even that he was appearing to admit the Administration had violated FISA when he knew darn well they had not.

You don't have to name names, but you might as well quote posts and spell out the contradictions. You may discover that the commenter is not using his words the way you are. Or the commenter may be giving several mutually exclusive but still possible explanations for an unexplained phenomena. Or the commenter may discover an unrealized contradiction. That sort of thing happens to mortals like me far more often than we wish to admit.

Yours,
Wince
1.2.2006 11:29pm
Polaris (mail):
Medis,

I suggest you read that statement again by Gonzales. It sounds very much like the person who prepared it tried very hard to step carefully around revealing something. It is clear that you are *meant* to draw the implication that you have, but he doesn't quite say it.

I also note AGAIN that NO informed source (not even those that leaked anonymously to the NYTimes have alledged FISA violations or even possible FISA violations. Indeed in the original article FISA was not even mentioned. The scope and nature of the program as reported is revolutionary. However, I can tell you from personal experience that it DOES meet practical legal muster.

If you disagree with me, then you are forced to conclude that all NSA operations have been illegal for 30 years.

-Polaris
1.2.2006 11:40pm
Michael B (mail):
Since the AG has in fact only spoken in generalities, "dissembling" at this level is (almost) an inherent aspect of such generalities, i.e., as is noted in a post above, dependent upon the specific deconstruction or evaluation of the AG's response.

Too, for emphasis, the entirety of this set of issues needs to be proportionately and adequately framed, to wit: the complex and detailed sets of facts (which we still are not privy to), the Constitutional and statutory interests, the historical framings (e.g., legal, technological) and certainly the current and full set of existential valuations and threats. Within that encompassing, relevant scope and that full apperception, Polaris's speculations are not at all inappropriate, as speculative and tentative views, to the contrary, they've been well reasoned and I've yet to see anything which discounts them, though admittedly and certainly, only as reasoned and speculative views to this point.

Further, they don't simply or merely amount to partisan defenses "of the administration," but instead are first and foremost concerned with the boldened language above. If the President is eventually shown to be in a Nixonian mode here (e.g., spying for domestic political purposes) then I and others would leave him in droves in a NY minute. By contrast, it very much is, certainly in large part, a partisan/sectarian and usurping interest which is driving many (not all) of the presumptions and interests which seek to close down or dismiss speculations supportive of that boldened language above, precisely because it coincides with support for this current President's position. If this weren't the case (and it was simply Constitutional interests, minus the partisan/sectarian interests in "impeachment" and similar attempts to undercut the administration) then, once again, that boldened language above (in one form or another) would much more often be used to frame the general set of discussions and debate (certainly not in each and every specific case, but in general).
1.2.2006 11:42pm
John Lederer (mail):
Just a caution to those of you that attach considerable importance to the constitutional phrase "'to make rules for the government and regulation of the Army and navy"

"Regulation" in the 18th century in regard to the military had a slightly different meaning than we ascribe to it today. It has a stronger connotation of "organized", "disciplined", or "orderly". The phrase "well regulated militia" in the 2nd Amendment, for instance, was something of a stock phrase meaning "well drilled" or "well trained".

I think a linguist might well tell you that the "government and regulation" clause is really addressing the military establishment -- the pay grades, ranks, court martial offenses, units, etc. rather than the broader meaning of "regulation" in our normal discourse today.

We still have a slight embodiment of this military meaning when we speak of the "regular army" or "irregular forces" to mean those in or out of a condition of state established organization.

I have not troubled myself to do research on this, and I am not expressing an opinion whether SIGINT is more of the operational end or the establishment end of the military spectrum. I just draw the caution.

If my high school latin is up to snuff, I think a not dissimilar ambiguity was in the latin root "regula" which meant both "rule" as in "to command" and as a standardization of measurement (our "rule" or "ruler" for what you use to measure distances and draw straight lines).

Perhaps the ancients had greater respect for government bringing order out of chaos than we have when we watch our Congress at work?
1.2.2006 11:43pm
Medis:
Wince,

But he didn't just fail to discuss whether the surveillance would have required a FISA warrant if not for the 2001 AUMF. He actually said FISA would have required a warrant if not for the 2001 AUMF. That isn't Gonzales omitting an argument--that is Gonzales saying the opposite of what others are trying to claim.

And as I have also said frequently before, I don't find it incredible that Gonzales would lie in some circumstances. But I haven't been given any real reason to believe he is actually lying in these circumstances.

So, unless I am supposed to assume he is lying until proven otherwise, I'm inclined to believe he was just telling the truth. And that is why I'm not inclined to believe all those people (with no knowledge of the program) arguing the opposite--not because I prefer my own opinion, but because I am not willing to assume that the Attorney General of the United States is actually lying merely on the basis of their speculation.

And honestly--don't you think this whole Freudian slip analysis you are giving now is approaching tinfoil hat territory? Gonzales put together a perfectly coherent argument, and this was a step in that argument. Trying to read his pauses as a clue to the deep contradictions in his mind is just, well, a little bit nutty.

Or perhaps all these attempts to divine the hidden "truth" is understandable, if one really wants to believe the Administration did nothing wrong, and yet one finds the Administration's actual arguments unconvincing.
1.2.2006 11:44pm
Michael B (mail):
1.2.2006 11:48pm
subpatre (mail):
Noah Klein writes The first three quotes you use from Gonzales are the same thing. The all involve the program where the NSA surveils the contents of the communications between U.S. Citizens and a party outside the U.S. (the highly classified program; what has been disclosed by the President; and intercepts where one party is outside the United States)

You assume they're the same --even I assume it-- but Gonzales doesn't say that and I'm not depending on it. You are assuming (which I'm not) that there's only one 'highly classified program' at any time in the NSA.

Proving you're not paying attention is the fact that the AQ example never mentioned "U.S. Citizens", your quote. It's not there, Gonzales didn't say it, didn't say or even imply US persons. You did.

NK: The fourth quote from Gonzales is what he says the NSA is not doing. (spying on American citizens calling their neighbors)

No he doesn't. Gonzales makes no such claim.

NK: The fifth quote from Gonzales has to do with the reason for the surveilance. (learn of communications from the US to al Qaeda)

See my previous post, that's hogwash. Wasting time listening to calls or reading email to "learn of communications"? Please. It's refering to something very different, like network diagramming.

NK: Finally the sixth and seventh quote from Gonzales has to do with the FISA procedures that this program violated.

What procedures are those? The surveillance of calls from illegal aliens in the US to AQ overseas? Those traditionally have been FISC'd, but only as precaution; it's not a legal requirement.

Face it. You heard exactly what you wanted to, facts be damned. I was never a fan of Gonzales, but have to marvel at what he pulled off, it was superb.
1.2.2006 11:51pm
Medis:
John L.,

I'm actually familiar with the Articles of War, the predecessor to the UCMJ, which the Continental Congress adopted (and amended) during the Revolutionary War and which the First Congress readopted for the United States under the Constitution. Those Articles contained provisions for protecting the public from crimes committed by the military. For example, Section X, Article 1, provided:

"Whenever any officer or soldier shall be accused of a capital crime, or of having used violence, or committed any offense against the persons or property of the good people of any of the United American States, such as is punishable by the known laws of the land, the commanding officer and officers of every regiment, troop, or party, to which the person or persons so accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use his utmost endeavors to deliver over such accused person or persons to the civil magistrate; and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring them to a trial. If any commanding officer or officers shall wilfully neglect or shall refuse, upon the application aforesaid, to deliver over such accused person or persons to the civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers so offending shall be cashiered."

Over time, of course, the UCMJ has evolved to contain a much more specific codification of crimes (part of the general codification of crimes during that time). But the idea that Congress can require that those in the military obey the law has always been part of the "government and regulation" of the armed forces.
1.2.2006 11:58pm
Polaris (mail):
Medis, et al.

If we just look at what AG Gonzales said, it could be interpreted just the way you have. However, it was rather clumsisy worded and other interpretations exist.

I can not know for a fact that AG Gonzales dissembled. I think it is extremely likely (virtually 100%) given what I know and the fact that there was no need for the NSA to actually violate FISA to authorize the program as described by FISA....but I can't be certain because I can not read minds. [Would mind reading fall under FISA? Inquiring minds want to know?]

I can't expect those that don't have the information I have to be as certain as I am, but I do ask that you consider the strong possibility that I might be right. It is not at all unreasonable to think that a senior administration official might dissemble in order to protect national security even at some political cost. In fact they should.

-Polaris
1.3.2006 12:02am
Medis:
Polaris,

How am I supposed to quantify the probability that you might be right? You don't know any of the details of this program. You claim they could do the same things without violating FISA, but you don't even know what they are actually doing. Basically, you are assuming nothing has changed since you got your information, but they are saying that things have changed since your information was accurate.

So, how am I supposed to assign a high probability to your claims? By your own admission, you are really just guessing in the absence of any actual information about this program.
1.3.2006 12:08am
Polaris (mail):
subpatre,

I can tell you for a fact (at least in my very direct experience) that there are hundreds of "programs" done by the NSA all the time, and each has their own 'compartment'.

To suggest that this is the only program now is a suggestion that I don't find credible.

-Polaris
1.3.2006 12:09am
Medis:
Polaris and subpatre,

No one is claiming the NSA only has one program. But Gonzales clearly said that the President has authorized a program that would have required FISA warrants if not for the 2001 AUMF.

And again, I find it very interesting that some defenders of the Administration refuse to believe Gonzales. I guess such people really think the 2001 AUMF argument is a stinker.
1.3.2006 12:15am
Polaris (mail):
Medis,

You can be FAIR. You can give the administration the benefit of the doubt while supporting the right of the congressional intelligence committee to oversee the program.

All I am suggesting is (far from a carte blanche) that you hold your fire and allow the system to work. Your representatives that DO have access to all the pertinant information will then make the call. That's what oversight is all about.

What's more, I hope congress *finally* realizes that POTUS after 9/11 was correct all along and completely overhauls FISA. That should be something that we all agree on as a bare minimum....at least those of us genuinely concerned about both national security and civil liberties.

I think this is a very reasonable position to take other than to blindly assume that the president must of broken the law...which seems to be a rather extraordinary leap given the LACK of such claims by those who do have the relevant information....including POTUS' political enemies.

-Polaris
1.3.2006 12:17am
Polaris (mail):
Ack. PIMF! Tired.... replace "must of broken" in the above post with "must have broken"

-Polaris
1.3.2006 12:19am
minnie:
Dear wince,

Please do not feel alone in mourning your incompetence. The world is a friendlier place than you imagine, Horatio, and others support you in that enterprise. I would say more, but I don't want to violate my high level clearance. I've already had to have plastic surgery on my fingerprints once, and would be loathe to do so again, unless cleared by Gonzales providing he does not suddenly have to go in for gall bladder surgery. Even if he did, I imagine the AUMF would cover the procedure. Read Bambeck on this point for the full picture, as I fear I have overstepped the boundaries of discretion already.

Dear nod,

Ditto.
1.3.2006 12:21am
subpatre (mail):
Re: AG Gonzales sppech and "DISSEMBLE"
1 : to hide under a false appearance
2 : to put on the appearance of : SIMULATE
intransitive senses : to put on a false appearance : conceal facts, intentions, or feelings under some pretense

Etymology: Latin <i>dissimulare</i>, "to conceal; to disguise," from <i>dis</i>-, intensive prefix + <i>simulare</i>, "to simulate."

Synonyms: disguise, feign, cloak, mask, cover, conceal, camouflage.

Intelligence is a war of information. Freely giving reliable ammunition to the enemy isn't what good agencies do.
1.3.2006 12:21am
Polaris (mail):
Medis,

That's not quite what Gonzales actually said....you are drawing the obvious interpretation....and it's not obvious that the program in question is the one we are talking about. That's why you should hold your fire and wait for the congressional intelligence committee to have it's say.

-Polaris
1.3.2006 12:22am
subpatre (mail):
sppech? Arrg! Should be "speech".
1.3.2006 12:24am
Medis:
Polaris,

I think it is perfectly "fair" to assume Gonzales is telling the truth in the absence of an actual reason to believe otherwise.

Indeed, I find it interesting--and amusing--that it is somehow considered "unfair" to assume that Gonzales may actually have to rely on the legal reasoning that he offered, and that the Moschella letter offered. Again, the only plausible reason someone might consider that "unfair" is if they could not bring themselves to believe the 2001 AUMF argument was anything but a stinker, but they really wanted to believe the Administration nonetheless did nothing wrong.
1.3.2006 12:36am
Polaris (mail):
Medis,

No. You are not being fair. You are automatically assuming that POTUS broke the law even though no evidence to that effect has been presented.

You have been given a reasonable alternative theory to the one that you choose to cherish.

If you truly want to be FAIR, you'd hold your fire and let your representatives who DO have the complete information to make the appropriate call.

This is why I broke my silence in the first place. The political infighting and partisanship on this issue makes me sick to my stomache.

I am not suggesting that genuine threats to civil liberties don't exist: They do.

I am not suggesting that such a program could be abused: It can.

I am not suggesting that you give POTUS carte' blanche.

What I *am* suggesting is that when an administratin (ANY administration) in a time of war starts a new program that is probably legal IN GOOD FAITH, that good faith should be returned....or should we have impeached President Lincoln or President Rosevelt in times of war (and they committed constitutional offenses that make this even with the worst interpretation look like childsplay). Can you get past your partisanship (and you clearly are) enough to be fair?

-Polaris
1.3.2006 12:57am
Justin (mail):
Polaris, you keep using this word reasonable in ways that I'm pretty sure those that disagree with you would claim is inappropriate, to say the least. Your theory has been attacked not only as wrong but as "implausible" "far fetched" "a straw man" and "rediculous" - to claim some sort of universal agreement that it is plausible is incorrect.
1.3.2006 1:15am
jukeboxgrad (mail):
wince,

"Have you ever heard of cloning?"

Have you ever heard of someone using a phony name? Have you ever heard about how easy it is to get phony ID? Have you ever heard of identity theft? If you haven't, here's a short definition: it has to do with pretending to be someone else.

You're correct in pointing out that having someone's phone/email is a highly imperfect way of identifying them. But then again, having someone's name (or SS number, or mailing address, or DOB) is also (especially in isolation) an imperfect way of identifying them.

If a very powerful agency of the US government has your phone number and/or email address, that means that they are in a very good position to know (or find out) exactly who you are, even if (at first) they don't know your name.

Phone/email can arguably be more effective for this purpose, compared with (only) name. Consider someone with a common name (Charles Martin, for example). Imagine you don't have middle initial, or other information. Yahoo People Search returns 2285 results. Not very helpful.

I realize that one aspect of FISA (1801 (f)(1)) is regarding surveillance of "a particular, known" US person. I also think it's widely accepted that we're harvesting phone/email lists from devices (cell phones/laptops etc) we grab from people we capture. I think there's a very strong argument to be made that if we are targeting someone based on their email/phone, then we are indeed targeting a "particular, known" person (even if at first we don't know their name).

It should also be noted that 1801 (f)(2) limits certain kinds of surveillance, even if "a particular, known" person is not being targeted.

"the original NYT article spoke of a list of phone numbers and email addresses ... I didn't remember the list of names, myself."

So then let me refresh your memory: " ... the N.S.A. eavesdropped without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands over the past three years" (link).

" ... Attorney General have all said that they are using FISA when appropriate"

No one is claiming that Bush always goes around FISA. It is a big enough problem that Bush is circumventing FISA often (although not always). Gonzales has explicitly stated that Bush uses the authority of AUMF in order to bypass FISA, in certain circumstances where Bush feels FISA doesn't meet his needs. As Gonzales said: "FISA is very important in the war on terror, but it doesn't provide the speed and the agility that we need in all circumstances to deal with this new kind of threat." In other words, FISA is inadequate and must be circumvented, for security reasons (and indeed has been circumvented, ostensibly based on the authority of AUMF). This is absolutely at odds with the premise some still present, that the NSA program is doing nothing contrary to FISA.

He also said this: "I think that this electronic surveillance is within the law, has been authorized. I mean, that is our position. We're only required to achieve a court order through FISA if we don't have authorization otherwise by the Congress, and we think that that has occurred in this particular case [via AUMF]."

He also said this: "we continue to go to the FISA court and obtain orders. It is a very important tool that we continue to utilize. Our position is that we are not legally required to do, in this particular case, because the law requires that we -- FISA requires that we get a court order, unless authorized by a statute, and we believe that authorization has occurred [via AUMF]."

Gonzales is clearly saying, repeatedly, that this program is doing surveillance which would require a warrant under FISA (but the surveillance is nevertheless going ahead, at least in certain instances, without a warrant). Gonzales is clearly saying, repeatedly, that this program is legal because Bush has declared that AUMF amounts to a repeal of FISA.

"quite the opposite of what the Administration has been maintaining all along"

Please cite any statement by any official which amounts to the following: "everything we do is within the bounds of FISA." If everything they did was within the bounds of FISA, they would have no need to argue that AUMF allows them to push FISA aside. Yet this is their central argument.

"It is not a lie to fail to give all the possible justifications under FISA that any given Administration practice is legal"

No one is claiming that Gonzales was obliged to "give all the possible justifications under FISA." However, he was definitely not obliged to lie. No one has explained why he would. ("He did it to protect national security" is a complete English sentence, but it's not a credible explanation.)

"he was engaged in disinformation"

No one has explained why national security would have been harmed if Gonzales had made the following statement: "FISA is not being violated; the details explaining this are classified; I will elaborate in the proper setting."

No one has explained how it is that the NYT harmed national security by suggesting that Bush violated FISA, but that Gonzales enhanced national security by saying essentially the same thing (and security reasons obliged him to say this, even though it was allegedly misinformation).

It would be about as logical to make the following claim: the NYT is suggesting that Bush violated FISA, but this is intentional misinformation, and they are saying this to protect national security.

"Gonzales may be avoiding particular legal arguments in order to avoid a discussion of classified material"

No one has explained why national security would have been harmed if Gonzales had made the following statement: "FISA is not being violated; the details explaining this are classified; I will elaborate in the proper setting."

"a realization that if he claimed the limited powers under FISA he would weaken the broader war fighting claim he intended to make"

Please note that Gonzales could have made the following statement: "we did not violate FISA, although we could have if we wanted to, based on AUMF/Article 2." He didn't. Instead, he said essentially this: "we violated FISA because AUMF said we could."

"You have repeatedly resorted to the logical fallacy that Gonzales was admitting to a violation of FISA"

Gonzales repeatly indicated that surveillance is being done which would normally require a FISA warrant. He's indicating that (at least in certain circumstances) a decision is made to bypass FISA, based on authority claimed via AUMF ("authorization otherwise by the Congress").

Please explain why he would even raise the subject (repeatedly, in his speech, and also in the Moschella letter) of "authorization otherwise by the Congress" if FISA itself did not prohibit what he was doing.
1.3.2006 1:35am
jukeboxgrad (mail):
sub,

"many circumstances Gonzales described may not need warrants"

As I just explained, Gonzales admitted that warrantless surveillance is being done in circumstances where FISA (absent of alleged modification via AUMF) would require a warrant. There is no other way to interpret a statement such as this: "We're only required to achieve a court order through FISA if we don't have authorization otherwise by the Congress [via AUMF]."

Please explain why he would even raise the subject (repeatedly, in his speech, and also in the Moschella letter) of "authorization otherwise by the Congress" if FISA itself did not prohibit what he was doing.

"It's a masterful speech"

Please explain why he would even raise the subject (repeatedly, in his speech, and also in the Moschella letter) of "authorization otherwise by the Congress" if FISA itself did not prohibit what he was doing.

If your answer is that one of his top motivations was to provide "exactly what the left was praying for" (and this was more important to him than telling the truth), let me know when Bush instructed his guys to start providing "exactly what the left was praying for."

"Which 'this' is this?"

That reminds me of when someone asked us to consider the meaning of "is." You're tying yourself into knots trying to show that Gonzales meant something other than what he plainly said.

"if you wanted to hear what NSA's actually doing, well, the only items that weren't in Gonzales speech is what's actually going on"

Something else that wasn't in Gonzales's speach was a simple statement as follows: "FISA is not being violated; the details explaining this are classified; I will elaborate in the proper setting." If your claim is correct, that FISA is not being violated, why didn't he make such a statement?

"I hear Gonzales dodge the media firing firing squad"

The dodging that's going on is being done by you and your pals, who are repeatedly sidestepping that simple question.

"It's not there, Gonzales didn't say it, didn't say or even imply US persons. You did."

You might be saying that Gonzales "didn't say or even imply US persons" in a particular part of his presentation that you are focusing on at the moment. But just to be clear, Gonzales did indeed talk about US citizens, here: "To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda."

He also said this: "people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States."

He seems to be very interested in making sure we understand that one party is outside the country. He seems to have no interest in suggesting that the program makes any distinction whatsoever between US citizens inside the US as compared with other persons inside the US. In other words, the program spies on US citizens who are inside the US.
1.3.2006 1:38am
Polaris (mail):
Justin,

No. No one familiar with the program with the appropriate clearence (not even the NYTimes leakers) have alleged any FISA violations.

That's a simple fact you seem to be unwilling to face. I also discussed with Prof. Kerr at least one precedent that actually pretty darned explicitly backs what I have said about Reasonable Expectation of Privacy.

You are simply being too partisan to be fair. Seriously.

It makes me sick to my stomache that this has become a political football.

-Polaris
1.3.2006 1:41am
Polaris (mail):
Justin and Mendis,

Charlie already explained very well (without crossing the line) why AG Gonzales might have dissembled. It is a perfectly reasonble hypothesis given what was said....at least as reasonable as the notion that DIRNSA and POTUS actively broke the law when they had absolutely no reason or advantage in doing so (and we know that is true because I showed that in the modern telecommunications environment, FISA has more holes than swiss cheese and is easily circumventable with trivial effort).

-Polaris
1.3.2006 1:44am
jukeboxgrad (mail):
polaris,

"I can tell you from personal experience that it DOES meet practical legal muster."

Is your "personal experience" regarding the details of current NSA operations based on work you did for the NSA before or after 2001, when you announced on usenet that you "happen to know quite a bit about NSA"? Just wondering.

I also wonder if this emphatic statement on your part is any more credible than other sweeping (and incorrect) statements you've made, like this one: "if you join a foreign military organization you void your citizenship."

"This is why I broke my silence in the first place."

Since you've been publicly asserting NSA authority since at least 4/01, should we understand that you had your silence before you broke it, before you unbroke it, before you broke it again?

"when an administratin ... starts a new program that is probably legal IN GOOD FAITH"

I wonder if you think Bush was acting "IN GOOD FAITH" when he told us "a wiretap requires a court order; nothing has changed."

By the way, please spare us the usual answer: that he was allegedly just talking about the Patriot Act. That makes about as much sense as this: "we respect the wiretap laws, except for when we don't."

"there was no need for the NSA to actually violate FISA to authorize the program"

I think this is probably true. You're basically saying this: why would Bush violate FISA, since he probably had the technical capability to get what he wanted within FISA (by taking advantage of various FISA loopholes)? But that question is no better than this question: why would Bush violate FISA, since the highly compliant FISA court would most likely have given him all the warrants he wanted, within FISA?

Neither of these questions proves very much. Bush simply likes making up his own rules, even though the practice is ultimately self-destructive, one way or another. He's been proving that for a very long time.

"It is not at all unreasonable to think that a senior administration official might dissemble in order to protect national security even at some political cost."

No one has explained why national security would have been harmed if Gonzales had made the following statement: "FISA is not being violated; the details explaining this are classified; I will elaborate in the proper setting."

Number of times you've claimed a national security motivation for Gonzales to "dissemble:" several. Number of times you've explained why he couldn't simply say what I suggested: zero.

"I hope congress *finally* realizes that POTUS after 9/11 was correct all along and completely overhauls FISA."

Please cite what POTUS did to attempt to "overhaul[s] FISA." Aside from what we know from Gonzales: "We've had discussions with ... certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program ... so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program."

In other words: "we made a feeble attempt to get the law we wanted, and we were told we couldn't get it. So we came up with a rationale to simply ignore the existing law. This despite the fact that Congress has been in Republican hands for most of the time that we've been conducting this program. We apparently realized that even a Republican Congress would not be willing to go on record authorizing our shenanigans. Besides, why bother working hard to get the laws you need, since it's so much easier to simply and secretly ignore the ones you don't like?"

If it was really so clear all along that "the authorities were [already] there," then there would have been no reason to begin with an effort to "get an amendment to FISA."

master,

Thanks.
1.3.2006 1:50am
Master Shake:
No problem.

Well done again.
1.3.2006 1:54am
Polaris (mail):
jukeboxgrad,

I already stated that I left NSA some time ago. If you also followed the debate, and read the regulation, you DO lose your citizenship when you join a foreign army especially as a US Citizen. I never claimed to be a lawyer, so it turned out that it wasn't as universal as I believed, but it turns out that I was generally correct.

I notice that you base your entire post on a single premise, "Bush is an evil, power hungry man"

Pardon me if I find that premise unconvincing.

It is at least as reasonable to think that POTUS acted to the extent the law allowed as he understood it and was thus advised.

It is ALSO at least as reasonble to think that officials may well be dissembling to protect national security. I point out that Charlie DID point out at least one possible reason why national security would be harmed if AG Gonzales did not dissemble.

In short, I am asking you to put your Dem party button away and let congressional oversight do it's job.

Let me posit something else:

If the NYTimes and the leakers really believed that Bush was breaking the law (which is something that NO source familiar with the program and the law has alleged...not even the NYTimes sources), then why did they wait a full year to print the story?!?

Think *really* hard about that one because the NYTimes own ombudsman can't get a straight answer from the NYTimes senior editors or authors on this point either....even after repeated attempts.

-Polaris
1.3.2006 2:03am
Polaris (mail):
Actually FISA is completely inadequate in today's telecomm environment especially after 9/11. That would be reason enough to at the very least get an amendment if not a complete overhaul. If POTUS (of any party) had NOT sought a modification of FISA after 9/11, they would deserve to be impeached. It was congress that acted irresponsibly on that...not POTUS.

-Polaris
1.3.2006 2:06am
Polaris (mail):
Clarification to two posts above: I meant that it's particularly egregious if you join a foreign army as a commissioned officer (not a US citizen) if you are a US Citizen. It can be grounds (and this was shown earlier in this thread) for loss of citizenship, but I admit that it isn't as automatic as I thought (I never claimed to be a lawyer so I accept correction on this point).

-Polaris
1.3.2006 2:11am
minnie:
Polaris,

My question is this: You say that Gonzales said:

"People are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States."

First, would you agree that the fact that Gonzales alleges that people are "running around" would indicate that he has not only audio, but video tapes of them, many probably made without warrants? If they were just audio tapes, the usual type of warrantless electronic eavesdropping that you assure us is legal,then how would he know they were "running around"? If he listened to their conversations, or read about their statements in the MSM, he could not have known what physical activity they were doing when those statements were made, n'est ce pas?

I think we can all go along with a certain amount of warrantless eavesdropping. I mean, c'mon, Bush was in Skull and Bones and the frat boy mentality lingers on, like cheap perfume after a floozy has left the room.

But the fact that Bush and Gonzales have apparently upped the ante to visual spying as well introduces a very tawdry element into this whole complex situation.

Equally important, or maybe more important, or, actually, maybe only equally, I'm not sure, Gonazles seems to imply that the government is not spying on people calling their neighbors. It's kind of like a blanket implication. But what if those same neighbors happen to be Al Quaeda operatives, and are in fact outside the country, or on a cruise ship when the people who are running around call them?

See where I'm going? Wasn't it a tad ingenuous of Gonzales to imply no spying on people calling neighbors is being done, ACROSS THE BOARD, (a clear inference as he did not qualify that statment)and not limit it to people either calling neighbors who are terrorists but are within this country, or non terrorist neighbors who are outside the country?

I hope these issues come out during the hearings, as these points might be the significant ones when assessing Gonazles' credibility. We, as a nation, have hardly recovered from the "Hoover Escapades", and the thought of these warrentless videos making the rounds and maybe even landing up on the Internet is more than a little unsettling.

Thank you.

minnie
1.3.2006 2:58am
Diversity Hire:
jukeboxgrad:

No one has explained why national security would have been harmed if Gonzales had made the following statement: "FISA is not being violated; the details explaining this are classified; I will elaborate in the proper setting."


That's the question. I can't figure out why Gonzales thinks that the activity would violate FISA w/o AUMF while General Hayden maintains that "by the physics of the intercept...one end of these communications are always outside the United States of America.". Doesn't that mean that FISA (because of 1801 (f) (2)) doesn't apply?

My thought is that Gonzales is speaking more broadly than Hayden. Hayden is saying this particular program involves overseas wiretaps, so don't worry. Gonzales is saying even if that "taps" were in the US, FISA + AUMF covers our ass. Perhaps there are additional programs in operation that the New York Times has not revealed? Perhaps the administration does not want

Prof. Kerr asked for evidence that that the monitoring was happening overseas, I think Gen. Hayden's statement is evidence of that. As for mechanism, here's an interesting, alleged WSJ article about the expensive retrofit done to SSN-23 (the USS Jimmy Carter, heh) expressly for "tapping" submarine fibre-optic cables. The UKUSA comment at the bottom is interesting, too.
1.3.2006 3:14am
jukeboxgrad (mail):
polaris,

"I also discussed with Prof. Kerr at least one precedent that actually pretty darned explicitly backs what I have said about Reasonable Expectation of Privacy."

Orin has a different view of that precedent. Then again, he's just a law professor, whereas you have years of experience as a highly public NSA expert.

"you DO lose your citizenship when you join a foreign army especially as a US Citizen"

I see how you respond when it's shown that your sweeping statement is false: you repeat essentially the same incorrect sweeping statement.

As I demonstrated via several primary citations here, it's actually quite hard to lose your citizenship via joining a foreign army. This can only happen if you are an officer, or if that army is at war with the US. Even then, the procedure is not at all automatic, as you suggested ("if you join a foreign military organization you void your citizenship"). The US has to undertake measures to prove that you have intentionally renounced your US citizenship.

"I admit that it isn't as automatic as I thought"

Not only is it not "as automatic as [you] thought;" it's not "automatic" at all.

It doesn't help your credibility when you stay loyal to your own misinformation, even after it's been exposed as misinformation. Then again, it could be that being credible is not a high priority for you, given a statement like this: "I might have been using a deliberate mis-example."

"it turns out that I was generally correct."

Yes, your statement was "generally correct," except for the ways in which it wasn't correct at all. Sort of like Bush telling us he always respects the wiretap laws, except for when he doesn't.

"I notice that you base your entire post on a single premise, 'Bush is an evil, power hungry man' "

I think there are many reasons to reach such a conclusion, but I have not stated that conclusion, and I refer to many facts which are highly independent of that conclusion. So this isn't something you "notice." It's something you made up.

"was thus advised"

I'll grant you that much. Bush is indeed highly skilled at surrounding himself with hired hands who are highly skilled at telling Bush exactly what he wants to hear.

"dissembling to protect national security"

No one has explained why national security would have been harmed if Gonzales had made the following statement: "FISA is not being violated; the details explaining this are classified; I will elaborate in the proper setting."

Number of times you've claimed a national security motivation for Gonzales to "dissemble:" one more than it was before your latest post. Number of times you've explained why he couldn't simply say what I suggested: still exactly zero, notwithstanding your latest post.

"If POTUS (of any party) had NOT sought a modification of FISA after 9/11, they would deserve to be impeached."

Second time I'm asking this question: what did Bush do to seek "a modification of FISA after 9/11"? You suggested he did such a thing, when you said this: "I hope congress *finally* realizes that POTUS after 9/11 was correct all along and completely overhauls FISA."

"It was congress that acted irresponsibly on that...not POTUS"

Republicans have been in charge of Congress for about 3 years now. What's been preventing them from giving FISA a "complete overhaul?" Maybe it's all that hard work playing golf at St. Andrews, or reviewing the menu at Signatures.

"why did they wait a full year to print the story?!?"

Isn't it obvious? They are the liberal media, out to get Bush, at all costs. Everybody knows that this story is good for Bush, because it proves what a big strong Daddy he is. Therefore the NYT tried to bury the story for as long as possible.

When Bush dragged the NYT brass into his office and begged them to hold the story, he was just dissasembling (sic). Misinformation. What subpatre calls being "masterful."

I'm surprised I have to spell this out for you. Why are you so literal? Get with the program. You need to realize that things are the opposite of what they seem. War is peace. Freedom is slavery. Ignorance is strength.
1.3.2006 3:19am
jukeboxgrad (mail):
diversity,

"Doesn't that [one end of these communications are always outside the USA] mean that FISA (because of 1801 (f) (2)) doesn't apply?"

No, for multiple reasons.

1) FISA (1801 (f) (2)) doesn't care if "one end of these communications are always outside the United States of America." 1801 (f) (2) only cares "if such acquisition occurs in the United States." The question of where the "acquisition occurs" is a separate matter from the fact that "one end of these communications are always outside the United States of America."

It is possible that the "acquisition occurs" outside the US, but that is not a sure thing, despite sweeping proclamations by our friend Mr. NSA, and despite Hayden's statement (that "one end of these communications are always outside the United States of America").

2) Aside from all that, 1801 (f) (1) doesn't even care where the "acquisition occurs." Unlike 1801 (f) (2), 1801 (f) (1) pointedly makes no reference to the question of where the "acquisition occurs." In other words, 1801 (f) (1) can be violated even if the "acquisition occurs" outside the US.

Faux-mysterious claims ("I could tell you but then I would have to kill you") about offshore signal acquisition, or snoops in space, possibly allow one to sweep aside 1801 (f) (2), but they are no use whatsover with regard to attempting to sweep aside 1801 (f) (1).

In order to attempt to sweep aside 1801 (f) (1), a variety of other claims are being made. One bizarre claim is regarding "reasonable expectation of privacy." But Orin is not that impressed.

Another claim attempts to sweep aside 1801 (f) (1) by casting doubt on the idea that "a particular, known" person is being targeted. But above I've explained various indications that we have names, phone numbers and email addresses, which suggest that we are indeed dealing with "a particular, known" person. In my opinion, this reality is also implied in the way Hayden used the word "target" (four times). This also tells me that the FISA language "intentionally" (in (f)(1)) is satisfied.

Another claim attempts to sweep aside 1801 (f) (1) by casting doubt on the idea that US persons are being targeted. (1801 (f) (1) refers explicitly to a "US person who is in the US." 1801 (f) (2) is broader, referring to a "person in the US." Those two terms are not interchangeable.) Trouble is, Gonzales admitted we're snooping on US citizens, in the US.

In other words, one has to simultaneously accept several questionable premises in order to believe that Bush is violating neither 1801 (f) (1) nor 1801 (f) (2).

Aside from all that, Gonzales essentially confessed.

"Hayden is saying this particular program involves overseas wiretaps, so don't worry"

No. Both Hayden and Gonzales seemed highly motivated to tell us that the program excludes communications that are purely domestic (an aside: I see little reason to trust them on this point; note that the legal arguments, which refer to AUMF and Article 2, could be used just as easily to justify warrantless surveillance of purely domestic communications). Hayden did not tell us the signal is acquired overseas ("overseas wiretaps"). This would potentially be relevant in connection with (f)(2), but it's not what Hayden said. Like Gonzales, he only told us that one of the persons on the phone is overseas (this tells us essentially nothing about where the signal is acquired, which is what (f)(2) cares about).

It seems pretty obvious to me that the following political damage-control assessment was made: folks won't care much about this if they are repeatedly told it only involves overseas traffic, because most folks don't even make calls overseas. I think that's why Hayden and Gonzales repeated this point so many times.

"Prof. Kerr asked for evidence that that the monitoring was happening overseas, I think Gen. Hayden's statement is evidence of that"

Only if you assume things that Hayden didn't say. His statement about "the physics of the intercept" could easily mean this: "the taps that US com companies let us attach in NYC are connected directly to the transmitters aimed at the satellites which relay traffic to Europe. Therefore we know for sure we are only picking up traffic that is on its way outside of the US." Please note that in this scenario the monitoring is not "happening overseas."

The preceding sentences can easily be re-written to refer to the buildings in Manhattan that are essentially terminals for trans-Atlantic cables.

" 'tapping' submarine fibre-optic cables"

It's infinitely easier to let people like Abramoff help you make a cozy deal with the people who own the cables.
1.3.2006 4:22am
Diversity Hire:
It's infinitely easier to let people like Abramoff help you make a cozy deal with the people who own the cables.: apparently that's mostly what happens, Nuclear Jimmy is just for the edge cases where the cable-owner won't play ball.

So I'm taking the "Faux-mysterious claims...about offshore signal acquisition..." for granted and sweeping aside 1801(f)(2).

I believe (but can't say that I know) there are NSA programs for signal intelligence gathering (like UKUSA, Echelon) that are known to and approved by the President and Congress. For that to be so, I'm assuming they aren't in violation of FISA (else either our Presidents or Congress have been derelict).

So I'm guessing that the intercepts for cable-traffic are either at the end (in the cooperative case) or at a splice (in the Nuclear Jimmy case) near the overseas landing; that the intercepts for satellite traffic are similarly overseas (or over-tundra in the Canadian case). If that's the case (the data acquisition devices are not in the US), then 1801(f)(2) doesn't apply, right?

1801(f)(3) doesn't apply (if one end is not in the US, then both can't be in the US). And 1801(f)(4) doesn't apply (the device is assumed to be overseas, a wire or radio is being used).

But that leaves 1801(f)(1) which seems to have the least weasel room. I don't know anything about reasonable expectation of privacy, but I can't see how anyone could expect the routing information on their data to be private since the data can't be routed without reading it; ssh-ing to osamas-powerbook.al-qaeda.org is like asking FedEx to mail a letter to Osama.

Regardless, assume a REP wrt international data transmission. If you intercept traffic from the US to known AQ overseas telephone numbers, IP addresses, etc. you've acquired the data you want w/o targeting a "particular, known United States person who is in the United States". Right? You're not targeting that person you're targeting the other person via some characteristic of the data packet or stream. Even if the other (untargeted) end happens to be a particular, known US Person in the US, it doesn't matter because he's not targeted.

Even if you assume that everyone in the US is a US person in the US (which is what, I believe, the NSA surveillance guidelines intially assume); you can still capture their transmissions as long as your target is elsewhere, right? Or does acquisition of data in itself constitute targeting an individual?

Arguably, if you capture all overseas data, then you're targeting everyone and not anyone in particular.

Also, what does "content" mean in the case of digital data transfer? Is header/routing info content? In the case of a USPS letter, are the address and return address considered "content" (the postman reads those everyday, but he doesn't get to read your letters (yet!)). The machines that get your data from point to point need to read (and write) the equivalent of postal addresses and return addresses.

So maybe 1801 (f) (1) has enough wiggle room that the alleged activities of UKUSA, Echelon, and the BushSniffer are FISA-compatible, depending on the classified, operational details?
1.3.2006 6:33am
George Gregg (mail):
Excellent, jukeboxgrad. Thank you for your insights and analysis.

And Polaris, we've already debunked the idea that this is a strictly partisan issue. A lot of key Republicans (in elected office and in the media) are expressing serious concerns about this. A number of us similarly expressing concerns in this thread are Republicans, too. So that dog won't hunt.

But we do get the point about your being "sick to your stomach" about this discussion. Hopefully, when Congress gets a chance to review this and investigate the facts a bit more, we can have some clarity and understanding on whether AUMF really allows the NSA to circumvent FISA, which sounds like the Admin's position on al this.

Maybe then everyone's nausea on the subject will abate.
1.3.2006 8:52am
Justin (mail):
I specifically left my own views out of my last post and focused on the views that DtI and Medis have expressed (I agree with them, but did not want to get bogged down into this debate). All I pointed out is since you have not convinced them that your alternative theory is reasonable, you can't just tell them that having the alternative theory should make you accept such theory "because" it was reasonable.
1.3.2006 10:40am
scepticalrepub:
I lived in the Tampa Bay area for three years and watched Sami al Arian play the useful idiots of the west like a violin. Anyone who doesn't think AQ knows how to use our hypersensitive, hair-trigger civil liberties safeguards against us is just out of touch. Rather than all dying with our rights on I'd rather give the President some leeway on this issue.
1.3.2006 11:03am
Medis:
Polaris,

As an aside, I'm not a Democrat.

Anyway, I again find it odd that you think giving the Administration the benefit of the doubt means assuming that Gonzales (and the rest of the Administration) must be lying to us. I would think that giving them the benefit of the doubt would mean assuming that they are actually telling the truth.

I guess the problem is that in your view, their actual legal argument is weak, so if we actually take them to be telling the truth, then they might be in some legal jeopardy. But I know of no principle which says that if someone tells you something that puts them in legal jeopardy, you should assume they are lying about what they have done.

In other words, you aren't giving them the benefit of the doubt. Rather, you are manufacturing a "doubt" they have never raised themselves in order to be able to give them a "benefit" they have never claimed themselves. And I don't see any reason to follow you down that twisted path simply because it leads to a better place for the Administration in your view.
1.3.2006 11:17am
cathyf:
Ok, I've only read half the thread and somebody else might have already brought this up, but anyway...

Medis:
Anyway, if you are correct, Gonzales could just say nothing about whether FISA applied. He could also say FISA doesn't apply but say nothing about why (I frankly have no idea why you think he could be forced to give details). So the only reason he would need to tell the opposite of the true (aka lie) is if he was spreading disinformation.
Gonzales may be exploiting the NYT's campaign as an opportunity to build public support for fixing FISA. A statement that FISA made "this program" illegal without AUMF could be technically correct but misleading. His statements are not inconsistent with a program where 99.99% of the surveillance needs no FISA approval, and of the rest, some is covered under AUMF, while some requires FISA court approval, but FISA is such a mess that most of them you could argue about. It could even be that they got FISA warrents for all of "the rest" just like a policeman might get a warrent if practical because why borrow trouble?

If the goal is to change FISA now while people are paying attention to allow some future programs, then Gonzales could be being intentionally vague about the FISA implications on this program. So that people won't just say, "Oh, FISA isn't a problem, we can go back to ignoring it."

cathy :-)
1.3.2006 12:07pm
Medis:
Cathy,

It may well be that AG is trying to build support for changing FISA (although that raises the issue of why they weren't already trying to do that). But I don't see why he would have to lie about the nature of the program to drum up such support, and it would be a pretty short-sighted plan, since Congress, at least, would eventually discover the truth.

Moreover, that scenario makes no sense. For surveillance outside the scope of FISA, there is no need for special Executive Orders based on the 2001 AUMF. Similarly, there is no need for such orders for surveillance inside the scope of FISA for which they were getting FISA warrants. Rather, they only need such orders for sruveillance inside the scope of FISA for which they are not getting warrants.

So this would really have to be an elaborate lie--they would have to be making up the entire scenario of the President issuing new Orders based on the 2001 AUMF.

But, of course, there is the much simpler explanation--that the President actually did exactly what AG said he did.
1.3.2006 1:19pm
John Lederer (mail):
Jukeboxgrad,

I am pleased someone is trying to make a summary, but I think you have a couple of facts out of whack.

(1) Most foreign communications are by fiber optic cable not radio. I don't recall the figures, but I do recall the bar graph -- maybe 90-98% are by fiber optic cable. Any widespread program has to involve communications traveling over cable for the oceanic portion. This is a major chnage in the last 20 years.

(2) Most fiber optic cables are not common carriers. They are long term lessors of bandwidth. I do not have numbers, but the FCC does grant cable landing licenses and many mention the carrier status of the cables. This is particularly true for most of the more modern cables, and because of improvements in fiber optic technology the modern cables are most of the bandwidth.

(3) This being the case, depending on how you construe 1801(l) it is quite possible that fiber optic cable signals are neither wire nor radio communications under the act, and neither 1801(f)(1) or (2) is applicable. The inapplicability would be almost certain for a significant amount, of email which has no involvement of a common carrier at all.

(4) 1801(f)(3) would also not apply to a cable.

(5) 1801(f)(4) is thus the key statutory provision. One might note at the outset that (4) is likely in its legislative history to have been designed to cover a microphone or bug. There are at least three ways that (4) could be inapplicable -- the device is not in the US, no "device" is needed, or no warrant would be required for law enforcement.

(6)In that case, if none of the definitions in 1801 (f) apply, one comes back to 2511(2)(f) which seems to make legitimate a foreign intelligence intercept that is not "electronic surveillance" under FISA.

Medis' point that the AG seemed to concede FISA applicability is agood one, but so is the point that he might be constrained by protecting a secret. The reason given for avoiding FISA was "speed and agility" along with an explantion of why the AG's emergency powers did not meet those needs.

What sort of secret would cause the AG to mislead? It would need to be one whose exposure would hurt.

We do have an indication that it might involve tapping submarine cables because of the refitting of a submarine (and because we previously operated IVY BELLS in the cold war, tapping copper submarine cables until the operation was compromised by an intelligence leak). The trick in tapping a fiber optic cable, aside from being able to do it in deep water, is to do it so that there is no normally observed break in service. That means doing the actual cutover fast, and it means avoiding having the operator watch for very brief interruptions. Altogether very good reasons to mislead.

It could also be a new technology. Tapping submarine fiber optic cables is the holy grail of intelligence right now, because so much of the communication data is there. Another good reason to protect a secret.


This is a house of cards, supposition on supposition, and, save for one fact, I would think the AG's explanation and defense the likely one by virtue of Occam's razor.

That one fact is that we have every reason to think that Echelon and its associated programs have been going on for quite a while, certainly preceding the AUMF.What was the legal justification for those pre-9/11 and post FISA?
1.3.2006 1:37pm
Medis:
John L.,

What you seem to be sketching out is the idea that this whole story about changing legal policies is actually an elaborate cover for some new technology or capability. But is there any reason to believe this program is actually driven by some new technology or capability?

The basic story--as in fact told by Gonzales--is that the President simply authorized the NSA to conduct surveillance without warrants that would have required warrants under FISA. That surveillance need not involve any new technology or capability whatsoever--it could be new only in the sense that the NSA is doing things it was not ALLOWED to do before, not things it was INCAPABLE of doing before.

For example, suppose this is just ECHELON-based. As I understand it, the legal regime post-FISA(1978) and pre-2001 AUMF was likely instantiated (assuming it was instantiated) just by rules for programming the ECHELON "dictionaries". So, the legal regime governing the use of ECHELON could be changed just by changing those rules for programming the ECHELON dictionaries--eg, by allowing the NSA to track the international communications of a known, particular US person without getting a warrant. In such a case, what the NSA was actually doing would have changed without the underlying technology or capabilities of the system changing.

Indeed, I'm still not clear on how this "cover story" is supposed to help hide a change in technology or new capability. Whether or not we are getting warrants for electronic surveillance as defined by FISA does not tell someone anything in particular about what we can surveil or how we are surveilling it. So I just don't see how this "cover story" is relevant to your scenario, because the "cover story" contains no information about the limits, or lack thereof, on our capabilities.
1.3.2006 2:01pm
John Lederer (mail):
Medis said:

"What you seem to be sketching out is the idea that this whole story about changing legal policies is actually an elaborate cover for some new technology or capability. But is there any reason to believe this program is actually driven by some new technology or capability?"


It has to be, though the timelines are rough. In ECHELON days most transoceanic traffic was radio -- and it could be intercepted by putting ground stations abroad within the satellite footprints, each station tasked with a portion of the world.

The biggest single difference between say 1980 and 2005 is that almost all transoceanic traffic is by fiber optic cable.

Intercepting clandestinely a sea bottom fiber optic cable is a very tough proposition. If we are doing it, we are doing because of new technology.


Intercepting from the landing station is much easier -- if we either have the cooperation of the cable company or can intercept from a distance (requires new technology). We presumably cannot get cooperation in all the foreign cbale stations, so if we are doing it via cooperation we are doing it in the US .

If these are the only possibilities, and you tell me whether FISA applies or not and the legal reasoning behind that determination, then I can likely tell you whether you have a technology breakthrough, and take a good stab at what it is..
1.3.2006 2:48pm
Polaris (mail):
Medis,

How about admitting that given what we've talked about, you (and frankly no one here) is in a position to actually KNOW if FISA was violated or not. With all due respect I think that Charlie and I come the closest but even we don't have all the needed information or legal background.

Given that, it seems prudent to give POTUS the benefit of the doubt. I am not saying it has to be carte blanche. I fully support hearing as long as they are done within the congressional intelligence committee (so our secrets can be protected), but running off and calling "impeachment" like some are doing when the issue is NOT clear, and no *informed* source has actually alleged a violation of the law (not even the NYTimes...they do their utmost to imply it without saying it) during a time of war seems to be the height of irresponsibility.

Also, consider this: Why did the NYTimes sit on this story for a year if the law really was being broken?

Think *really* hard because even the NYTimes own ombudsman can't get a straight answer from his own paper.

Oh and Medis, you claim not to be a Dem, but frankly you have sounded a lot like one on this and other threads.

-Polaris
1.3.2006 2:54pm
John Lederer (mail):
I should stress that when I said that the timelines are rough, I don't mean that on 9/11 NSA started a "new technology program".

Let's say that the secret is that we can tap fiber optic cables and we developed this capability in 1998. If the AG were to say "FISA does not apply because we do not acquire the communications in the US" and I were, say China, I would immediately do three things: I would consider lead roofs for my landing stations and dark cells for the builders, I would start sending fault detection signals down my submarine cables searching for any anomalies in reflectivity, I would start a damage analysis of all my historical military and diplomatic traffic carried by cable on the assumption that it was intercepted (the modern day equivalent of what the Germans did after the publication of the Zimmerman telegram in WWI). Finally I would direct a significant part of my foreign intelligence to finding out the details of how, so that I could tap the cables from Taiwan and Japan.
1.3.2006 3:00pm
Medis:
John L.,

Why are you assuming we are intercepting these communications during their transoceanic cable phase? What if we are, for example, just tapping a phone line in the US, or monitoring a cell phone signal in the US?

And if I understand you correctly, your point is that if we are intercepting communications during the transoceanic cable phase, it likely either has to be at the US-side landing station, which might require a warrant under FISA, or it has to be on the sea bottom, which might not require a warrant under FISA. But as you note, it might also happen at the other end in some circumstances, although maybe not in all of them, in which case FISA might not require a warrant.

So, suppose I tell you we are getting warrants when FISA requires warrants, and not when FISA does not require warrants. Does that tell you whether or not we are tapping the transoceanic cables on the sea bottom? How so? Maybe I am just referring to cooperative landing stations on either end of the ocean, or maybe not.
1.3.2006 3:06pm
Medis:
Polaris,

As an aside, someone can say critical things about a Republican politician without being a Democrat. In fact, even Republicans do that sometimes. Incidentally, I don't know why the NYT sat on the story.

Anyway, you are right that neither of us is in a position to make an independent assessment of whether this surveillance was inside the scope of FISA, because we do not know any of the details. But I am not relying on my own assessment--I'm relying on what Gonzales said. And Gonzales, unlike the both of us, is in fact in a position to know.

And again, I don't see how giving the Administration the "benefit of the doubt" requires anything other than assuming they are telling the truth about what they have done and why they have done it.

But we have said the same things many times. Suffice it to say I am not going to assume your guesses are a reason to believe Gonzales is lying, and I am not going to assume the Administration is lying just because what they say they have done puts them in a weak legal position.
1.3.2006 3:21pm
Polaris (mail):
Medis,

Perhaps you should consider why. I can guarantee that the NYTimes attorney's ran through the story with a fine toothed comb. We gather that the administration asked the NyTimes not to run it.

While I can not know (since I don't work for the NYT), it seems reasonable to think that the NYTimes thought that the program did INDEED pass legal muster and figured they would be put into legal jeapordy if they ran with it.

What changed their minds? Again we can't know, but it seems HIGHLY suspicious that one of the authors of the piece came out with a book barely two weeks after the article is published. The NYTimes ombudsman is *not* amused and the NYTimes is clamming up.

I note *once* *more*, that *NO* person that does have the legal knowledge, inside informtation, and classification is stated that FISA was violated at any time (not even the NYTimes leakers). Gonzales didn't say it either.

All of this indicates that at the very least Bush should be given the benefit of the doubt at least for now.

-Polaris
1.3.2006 3:34pm
Medis:
Polaris,

Again, your guesses about what the editors of the NYT were thinking are not particularly compelling when you admit you do not actually know any details of what happened.

And you can toss in all the asterices you like--the fact is that Gonzales said the President authorized surveillance that would have required a warrant under FISA if not for the 2001 AUMF. And although you apparently think that is a terrible thing for the President to have done, your desire to believe the President did no wrong is not actually a reason to believe they are lying about what they did.

But again, this is all redundant. So unless you have something new to offer, I will stop responding.
1.3.2006 3:41pm
Polaris (mail):
Medis,

Once more, you are completely ignoring the possibility that AG Gonzelas might be dissembling and ignoring the fact that this was a very parsed and ambigious statement of his (and you are ignoring the fact that Gen. Hayden's statement contradicted the implication you are making).

It seems to me that you have your mind made up and nothing will convince you that POTUS was legally in the right.

-Polaris
1.3.2006 3:47pm
Noah Klein (mail):
Hi Everyone,

I tried yesterday to dispense with the argument made by many in this thread who are defending the administration that nobody admitted FISA has been violated. I think that many on both sides of this issue (maybe including me) have failed to adequately read what they write before they post. In a final effort to dispel the notion that FISA would not apply to the NSA program in question, I am going to go through Gonzales's statement sentence by sentence. If people still doubt what AG Gonzales has clearly said, then I can do no more to further this discussion and will move on. I hope that people will not be so intractable.

The President confirmed the existence of a highly classified program on Saturday.

I am sure we are all aware of the NSA program, which the NYTimes reported and the President confirmed on December 17. Just in case you do not know the details of the program: the program is run by the NSA, it targets US persons (including citizens), one party to the communications is outside the U.S. If people doubt what I said they can hear it from the president at this .

The program remains highly classified; there are many operational aspects of the program that have still not been disclosed and we want to protect that because those aspects of the program are very, very important to protect the national security of this country. So I'm only going to be talking about the legal underpinnings for what has been disclosed by the President.

AG Gonzales in this statement clearly states that the operational aspects of the program in question are classified but the legal aspects are not. Therefore a discussion of the legality of the NSA program in question is would not hurt national security. If the AG were planning on lying, dissembling or misinforming the public, he would lose his credibility, because someone with knowledge of the program (like Specter who will be investigating soon) would call him out on it. Finally, I think that it is obvious that he is talking about the same program, because he once again says it is the program that the president disclosed. Did the president disclose another top secret program that I am not aware of.

The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States.

AG Gonzales desires to give his listener an understanding of the NSA program in question, which was laid out before by the president and the NYTimes. The use of the word contents is very important. Some have suggested that the program involved merely tracking these international calls. This clearly is not the case since the AG says that they wanted to know the contents of the communications.
The suggestion that he is talking about a different program does not make logical sense. People who know how to speak English, like the AG of the U.S., generally indicate they are talking about something different when they begin to talk about something different. Furthermore, the press that is itching to catch the AG is some kind of mistake would clearly ask later in the question period why the AG began to talk about a different program than the one in question. They didn't.

And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States.

AG Gonzales here clearly is trying to reinforce that the program listens in on communications that have one end outside the U.S. I remember that just a few weeks ago, many assumed that these were purely domestic calls that were being surveiled. The AG clearly says that is not what they are doing with the program in question. He is pretty clearly not talking about a new program, but instead clarifying the aspects of the program in question. Also the fact that the AG says "spying on American citizens calling their neighbors," implies that the taps are on U.S. citizens and not somebody who would not be covered by FISA. But the AG will go into this further later.

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

The AG here says that the desire behind program is to surveil the activities of terrorists. Some have said this indicates a new program: since he is clearly talking about terrorists, he could not be talking about surveiling U.S. citizens because he is talking about terrorists. Unfortunately, we have learned in the past four years that some Americans like Hamdi, Lindh and Padilla have engaged in terrorism or been accused of terrorism. They are talking about U.S. citizens as one party to the call.

What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that's what this program is about.

Some have suggested the use of the phrase "learn of communications" by the AG indicates he is talking about a new program, which merely tracks the communication without listening into the call. This interpretation would require a person ignoring the sentence directly after this sentence, which clearly says that's what this
program is about. First, the AG uses the singular pronoun "this" rather than the plural pronoun "these." Second the sentence indicates a summing up of an explanation. If the AG was talking about more than one program, why didn't he use similar sentences several times in the past couple of paragraphs.

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.

Some have said that once again the AG is talking about a different program than the one from above and the one from above does not require a FISA court order. First, the AG says this the same program announced by the President on Saturday and that he just discussed. Second, why would the AG, whose job is to be the top law enforcement officer talk about program and then not describe the legality of it, especially when he just said he was going to discuss the "legal underpinnings" of the program.
Some have also asserted the Gonzales never says U.S. citizesn in the context of what the program in question is doing. That would be correct. Yet the use of the statement that a FISA court order would be required demonstrates that he is talking about U.S. citizens, because FISA says clearly that surveilance without a court order can only be conducted on non-U.S. persons. Here is a link that demonstrates that.

Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

This is where the AG provides their legal reasoning for why the program is constitutional follows statutory procedures. The AG after this goes on to cite the Hamdi case and their interpretation of that ruling.

There is no doubt about what the AG says. He could be lying, but as I indicated before any lying, dissembling or other misinformation would be exposed. He is that figure with knowledge of the program, which indicates this does violate FISA. He just says that FISA no longer applys because of the 2001 AUMF. If we want to continue this conversation, lets please speak about what is and the legality of it. Let's not talk about pie in the sky random theories about what could or could not be happening. I don't think it furthers our understanding of what is going on in this country to randomly assign motives to people or to base legal theories on facts that are not in evidence.

Thank you for reading,
Noah
1.3.2006 4:08pm
Medis:
Noah,

Of course, the problem is that Gonzales' legal argument might not be good enough, in which case this may have been a damaging admission. And the principle seems to be that if someone in the Administration makes a damaging admission, we should assume they are lying in the name of national security. Because, of course, we should be willing to believe absolutely anything else before we are willing to believe that the Administration has done anything at all wrong.
1.3.2006 4:15pm
Noah Klein (mail):
Medis:

This is a fair point, but if people keep on insisting that what is said was not actually said or a person is lying, then there is no longer a reason to talk to them. I am posting on this blog as a guest. I generally do not post, but I was directed to this blog by realclearpolitics.com and I felt that discussion was very interesting and I should engage in it. If it is going to descend to meaningless statements, then I might just as well not post or read this blog.

Noah
1.3.2006 4:25pm
Medis:
Noah,

Actually, there are a lot of very useful discussions here if you look past the noise. And actually, I apologize for my role in encouraging the noise (I can't seem to help myself).
1.3.2006 4:32pm
Noah Klein (mail):
Medis,

That's ok I fear that I do the same thing some times. Thank you for showing me that some here wish to have a serious discussion.

Noah
1.3.2006 4:37pm
Polaris (mail):
Noah,

Sorry, but you are completely overlooking the possibility that AG Gonzales may be dissembling. He may well be advancing one legal theory that the AUMF gives the president the discretion he needs, but he made it very clear that these were international communications as well.

Given what I know, he stated it the way he did for a reason. I am not saying your interpretation is wrong, but to take it completely at face value is unwarrented. I have a very good notion what is being hidden and it is completely exculpatory. That's why you should wait for congress to have it's say in classified hearings. That's what congressional oversight is all about.

You can not know that the AUMF arguement is the only one or even the primary one. I will say that POTUS will almost certainly be exonerated based on what I do know.

-Polaris
1.3.2006 5:05pm
Polaris (mail):
Noah and Medis,

You should both also know that MSNBC is now reproting that Comey did in fact eventually authorize this program and felt (after a review) that it was fully legal. It is claimed (again from MSNBC) that he was one of those that tried to convince the NYTimes not to run the story.

-Polaris
1.3.2006 5:08pm
Noah Klein (mail):
Polaris:

Your assertion that he is dissembling is just that. What he says must be taken at face value in a reasonable discussion of the legality of the NSA program. If he is dissembling or lying, wouldn't Congress who is going to investigate call him on it? To a politician, credibility is everything. If a person can't trust what you say they won't support you. Why would Gonzales risk his credibility like that. PLEASE point out where he is hiding, dissembling or otherwise misstating the facts of the case.
Also the fact that one end of these communications are international does not change the fact that if the target of the calls are domestic U.S. persons a court order is required under FISA as Gonzales said.

Noah
1.3.2006 5:11pm
Noah Klein (mail):
Polaris:

If you read my posts, you will never find me saying that Comey was enough of a check on the Executive to legitimize this program.

Noah
1.3.2006 5:14pm
jukeboxgrad (mail):
diversity,

"If that's the case (the data acquisition devices are not in the US), then 1801(f)(2) doesn't apply, right?"

I agree (in the absence of anyone showing me why I shouldn't).

"1801(f)(3) doesn't apply ... 1801(f)(4) doesn't apply"

I agree, basically.

With regard to (f)(3), I would add this: we've been told the program excludes communications that are purely domestic. Given the many other ways we've been misled, I find little reason to trust this claim. As I've mentioned, the arguments used to justify the program (AUMF/Article 2) could be used just as easily to justify warrantless surveillance of purely domestic communications (by US persons inside the US). In fact, those same arguments could be used to justify almost anything. That's the problem.

"the device is assumed to be overseas, a wire or radio is being used"

I agree that (4) does not apply, provided that one is willing to accept your premise, that "the device is assumed to be overseas." I think that premise is plausible, but far from certain.

Here are some further observations about (4). The heart of (4) seems to be this phrase: "other than from a wire or radio communication." Note that (1) mentions "wire or radio," (2) mentions "wire," (3) mentions "radio," and (4) mentions "other." This seems highly deliberate, but I'm not sure I understand what the underlying wisdom was.

It's interesting to note that an optical fiber is arguably neither "wire" nor "radio," and therefore falls under (4). And (4) is especially broad. It omits various qualifications that appear elsewhere (such as "particular, known," or "US person"). Therefore (4) is intriguing, but I'm willing to mostly ignore it, for now. (I notice John has also taken an interest in 4.)

"I can't see how anyone could expect the routing information on their data to be private since the data can't be routed without reading it"

This gets into some very interesting and challenging legal issues, such as the difference between a postal employee reading what you write on the outside of an envelope, as compared to reading what you wrote on a page sealed inside the envelope. There are also issues with regard to the difference between something being read by a human, as compared to it being "read" by a machine.

I have not seen much careful and detailed analysis of the "reasonable expectation of privacy" issue, as it relates to (f)(1).

"If you intercept traffic from the US to known AQ overseas telephone numbers, IP addresses, etc. you've acquired the data you want w/o targeting a 'particular, known United States person who is in the United States'. Right?"

True, if I really know nothing at all about the sender. However, I think it's not reasonable to assert that the program is limited to only that scenario. I think it's clear enough that the program (also, at least) focuses on traffic sent from point X in Brooklyn to point Y in Algeria. We know something about point X right from the start, because we got the data identifying point X from some (alleged) bad guy's cell phone. In my opinion, as soon as we take an interest in point X, we are targeting a "particular, known" person.

If X appears on lots of captured cell phones, we might take a very strong interest in X. It might be only after we snoop on X for a while that we discover that X is simply an outstanding place to order pizza, if you are a brown-skinned person who occasionally visits Brooklyn. Or someone who does a very nice job taking care of your pets when you're away on a trip. Or someone who runs a matchmaking service and regularly calls you about some fine dates he would like to arrange for you.

FISA is designed to give X's privacy a certain degree of protection. In a democracy, things like this are supposed to matter. It's true that maintaining national security in a dictatorship is easier than maintaining national security in a democracy (Bush was right when he said the job would be easier if he was a dictator). In other words, freedom isn't free. Committing to democracy inevitably means accepting a certain degree of danger that could be eliminated if one was willing to trust a king to make all our decisions for us. (I realize that was a bit of a tangent.)

"you can still capture their transmissions as long as your target is elsewhere, right?"

If I'm interested in X, in Brooklyn, because I found his phone number on a cell phone dropped on the ground in Baghdad by a tall, dark, shifty-eyed person who looked suspicious (maybe his car had a Kerry bumper-sticker), then X is being targeted.

"if you capture all overseas data, then you're targeting everyone and not anyone in particular"

This gets into the hard and relevant question of what it means to "capture." If recycled electrons are hopping from place to place, but no human ever notices, was something "captured?" Maybe.

"So maybe 1801 (f) (1) has enough wiggle room that the alleged activities of UKUSA, Echelon, and the BushSniffer are FISA-compatible, depending on the classified, operational details?"

I agree that the BushSniffer could probably have been constructed in such a way as to be FISA-compatible. My intuition, however (based on various facts which I've mentioned in other posts) is that he decided not to bother, just like he decided to not bother to get warrants from a highly-compliant secret court. I'm convinced he truly believes that rules and laws apply to other folks, but not to him. I have a feeling he learned this at a very early age. What's also remarkable is the way he gets caught doing bad things that he didn't really need to do. The Plame fiasco has a similar flavor.

He seems determined to push all sorts of limits until someone finally decides to tell him he's out of line. This is an Oedipal drama. In the next chapter we get to find out if Congress understands that Bad Boy Bush is begging Daddy to finally set a limit, and they are it.
1.3.2006 5:16pm
jukeboxgrad (mail):
sceptical,

"Rather than all dying with our rights on"

I've pointed out that democracy has a cost. If you don't like bearing that cost, there are some highly secure places you might want to live (Singapore, for example).

Also, you scare easily. It was not long ago that we faced an actual existential threat, which consisted of thousands of nukes pointed at us. These were real, not imagined. We managed to get through that without appointing a king to keep us safe. (Aside from that, we also managed to survive a revolution, a civil war, and two world wars. And a variety of other major crises, such as a Great Depression. All without appointing a king, although we certainly made some mistakes of leaning in that direction.)

We are a large, rich, powerful country. If we are lucky enough to remain that way, we will always have enemies. There is nothing new about that. Treating every threat as an emergency is a big mistake.

Terrorism is not an existential threat. It does not have the ability to destroy us (thousands of Russian ICBMs did, though). It only has the ability to scare us. Unfortunately (thanks to people like you), it has the ability to scare us so much that we destroy ourselves.

Israelis understand this. Israel faces existential threats (such as demographics, for example, or the way we have empowered Iran via the creation of a new Shiite state), but terrorism is not one of them.

"I'd rather give the President some leeway on this issue."

We have given him an enormous amount of leeway, essentially all the authority and resources he has requested (with no substantial resistance until fairly recently). What do we have to show for the blank check? Not even the capture of OBL, the person who did the deed. That's pathetic.

It's important to have enough judgment and perspective to recognize when more "leeway" is not translating into greater security. Bush is not doing "a heck of a job."
1.3.2006 5:19pm
jukeboxgrad (mail):
cathyf,

"Gonzales may be exploiting the NYT's campaign as an opportunity to build public support for fixing FISA."

(Medis's response is better than mine, but here are some additional thoughts.)

If there was any shred of a reason to believe that Bush had tried to fix FISA, and had failed on account of public resistance, then your bizarre theory might be worth considering.

What signs have you seen, along those lines?

Aside from that, an effort on Gonzales's part to promote "fixing" FISA could easily be conducted without requiring Gonzales to lie.

"His statements are not inconsistent with a program where 99.99% of the surveillance needs no FISA approval"

His statements are also not inconsistent with a program where thousands of Americans are being subjected to warrantless surveillance, in violation of FISA. This is what the NYT suggested, and Gonzales said nothing to dispute or deny this.

If Gonzales wanted us to understand that 99.99% of the surveillance needs no FISA approval, this would have been a good way for him to say that: "99.99% of the surveillance needs no FISA approval." I notice he didn't say that.

Let us know if you have any other theories based on nothing but pure speculation.
1.3.2006 5:20pm
jukeboxgrad (mail):
John,

"I think you have a couple of facts out of whack."

I missed the part of your post where you demonstrated that.

"he might be constrained by protecting a secret"

No one has explained why national security would have been harmed if Gonzales had made the following statement: "FISA is not being violated; the details explaining this are classified; I will elaborate in the proper setting."

It's time to add you to the long list of people who have avoided answering this very simple question.

"Intercepting clandestinely a sea bottom fiber optic cable is a very tough proposition."

I'm sure that's true. And among other things, you have to worry about the sailors who can't wait to get home and post on usenet using names such as "Polaris." It's profoundly easier to grab the signal at some point above sea level, where it's nice and dry. All that takes is knowing the right people and offering them the right incentives. Are you familiar with K St, or Delay Inc., or Jack Abramoff? Ever been to St. Andrews, or an HBS reunion? If you scratch my back, I'll scratch yours. Think big.

In recent decades progress has been made not only with regard to technology, but also with regard to the innovative manner in which business and government offer each other a helping hand. We're witnessing unprecedented breakthroughs in this regard. All in the best interests of Joe Public, of course.

"Intercepting from the landing station is much easier ... if we are doing it via cooperation we are doing it in the US"

Sounds about right.
1.3.2006 5:22pm
jukeboxgrad (mail):
Polaris,

"Once more, you are completely ignoring the possibility that AG Gonzelas might be dissembling"

Once more, you are completely ignoring the very simple question I've asked many times (including here, here, here, here and here).

George Gregg: thanks.
1.3.2006 5:23pm
Noah Klein (mail):
Jukeboxgrad:

I answered the question about the reasonable expectation of privacy in another post. Also Professor Kerr answered this question. I will provide you with a copy of that post:

Tom: Even though you are gone I would like to attempt in perhaps an oafish manner to refute the claim that a U.S. person has no reasonable expectation of privacy.

When you first brought up the issue you stated that there was no reasonable expectation of privacy because

(a) reasonable men know when they don't know the law, and

(b) reasonable men try to learn the law they don't know if it is pertinent to what they are doing, and

(c) reasonable men don't presume that foreign law is just like American law when they know they are ignorant of foreign law.

This seemed reasonable to me, because my father who is a lawyer told me throughout my childhood "that ignorance of the law is no defense for breaking it." Yet then I was watching TV today and I saw a Law &Order episode where the detectives were reading their rights. I thought according a reasonable man should know his rights, but the Court has said that a person must be made aware of his rights and if not any evidence collected invalid unless a good faith error was made.

Furthermore, when I asked my father about this he said that I was right ignorance of law, especially foreign law does not destroy the expectation of privacy. A person, even a reasonable person, is allowed to be ignorant of the law. The only thing is that ignorance of the law does not allow you to break it. Tom or anyone else if I am wrong please cite the relevant law

And finally, I was reading one of his old Gilbert Torts books, which demonstrated that the tapping of Ralph Nader's phone by GM was an invasion of privacy, because he had a reasonable expectation of privacy.

and

I am very sorry for the plethra of posts that I have made recently. I will attempt to not post for a while and just read what others post. I wanted to post this final time to put up a definition of "expectation of privacy" that I have retrieved from FindLaw:

a belief in the existence of freedom from unwanted esp. governmental intrusion in some thing or place
(compare zone of privacy)
Note: In order to successfully challenge a search or seizure as a violation of the Fourth Amendment to the U.S. Constitution, a plaintiff must show that he or she had manifested a subjective expectation of privacy in the area of the search or the object seized and that the expectation is one that society is willing to recognize as reasonable or legitimate.

I think that the word subjective in this definition is very telling. Now if a person is ignorant of a foreign law which allows that government to listen in on their communications than subjectively that person should still have a reasonable expectation of privacy from their own government.

Finally, I will leave you with a definition of "zone of privacy" which once again comes from FindLaw:

: an area or aspect of life that is held to be protected from intrusion by a specific constitutional guarantee (as of the right to be secure in one's person, house, papers, or effects against unreasonable searches or seizures) or is the object of an expectation of privacy
Example: allowed disclosure of medical records, records which were deemed to fall within a zone of privacy, upon a showing of proper government interest -- Stenger v. Lehigh Valley Hosp. Ctr., 609 A.2d 796 (1992).
1.3.2006 5:55pm
Wince and Nod (mail) (www):
Medis said:, "But is there any reason to believe this program is actually driven by some new technology or capability? Well, check out the Washington Post, where someone who really does know something says that new technology is involved:
"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."
Yours,
Wince
1.3.2006 6:56pm
John Lederer (mail):
Why are you assuming we are intercepting these communications during their transoceanic cable phase? What if we are, for example, just tapping a phone line in the US, or monitoring a cell phone signal in the US?

Either end or a point of concentration (landing station) would work.

You could do it at the system's routers/switches by doing the filtering at locations all over the country but that woudl require a lot of cooperation. Hmmm-- you could also do it with much less cooperation by corrupting the systems master routing tables/routing algorithms ("the least delay route to Afghanistan is Ft. Meade")

the FBI has something similar but much smaller scale to facilitate wiretaps, but they relied on statute and FCC reg to get cooperation.



And if I understand you correctly, your point is that if we are intercepting communications during the transoceanic cable phase, it likely either has to be at the US-side landing station, which might require a warrant under FISA, or it has to be on the sea bottom, which might not require a warrant under FISA. But as you note, it might also happen at the other end in some circumstances, although maybe not in all of them, in which case FISA might not require a warrant.
Yes. Although I would modify that having found a database of cables and landing points (983 in the world!). It is quite surprising (1)how much of the worlds traffic generally passes through the UK or US and (2) how many of the US landing points are paired with landing points in friendly countries. There are still routes we would be interested in that don't have an ally on them, but fewer than I thought. Highly dependent on whom one is willing to call an ally of course.

There is, however, an executive order which is supposed to prohibit asking an ally to do for NSA what NSA cannot legally do itself. But I seem to recall that executive orders can be promulgated secretly which I assume would also apply to revocation or modification.


So, suppose I tell you we are getting warrants when FISA requires warrants, and not when FISA does not require warrants. Does that tell you whether or not we are tapping the transoceanic cables on the sea bottom? How so? Maybe I am just referring to cooperative landing stations on either end of the ocean, or maybe not.

Nope that would not tell me much. But you will recall, for a short period of time, that was the administration's opinion and everyone howled for more info than that. As soon as you get into the why (where we already are) you start to give significant intelligence.
1.3.2006 7:02pm
Noah Klein (mail):
Wince:

Graham in that case stated clearly that he felt he was misinformed as to the operational aspects of the program. He thought when he was first informed of the program that what you quoted him saying was happening. After the NYT report, he was outraged and said he was misinformed of the full aspects of the program.

Noah
1.3.2006 7:03pm
Wince and Nod (mail) (www):
Noah,

Sure. But it is good evidence that new technology is involved.

Yours,
Wince
1.3.2006 7:42pm
John Lederer (mail):
Why are you assuming we are intercepting these communications during their transoceanic cable phase? What if we are, for example, just tapping a phone line in the US, or monitoring a cell phone signal in the US?

If you could get the traffic before it melded into the system, that would work. Once it is "into the system" you would have to look through all the traffic to find the international. That would require the cooperation of a lot of companies, location of some filtering equipment at points all over the country, or a NSA system with the bandwidth of the entire US telecommunications system. Or...hmm....you could do it by infiltrating the router tables or routing algorithms("the quickest route to Usama's computer is through NSA Ft. Meade, Md.') ")



And if I understand you correctly, your point is that if we are intercepting communications during the transoceanic cable phase, it likely either has to be at the US-side landing station, which might require a warrant under FISA, or it has to be on the sea bottom, which might not require a warrant under FISA. But as you note, it might also happen at the other end in some circumstances, although maybe not in all of them, in which case FISA might not require a warrant.

So, suppose I tell you we are getting warrants when FISA requires warrants, and not when FISA does not require warrants. Does that tell you whether or not we are tapping the transoceanic cables on the sea bottom? How so? Maybe I am just referring to cooperative landing stations on either end of the ocean, or maybe not.
1.3.2006 7:44pm
Valdis (mail) (www):
Charlie (Colorado),

Yes, social network analysis[SNA] can reveal quite a bit by following "who talks to whom" -- with enough data it even shows who in the clique/cell and who is not.

See this hypothetical about the 9/11 gang...

Following this bottom-up approach, using known a-Q connections, is more effective than searching for terrorist needles in the public data haystack. This is less likely to find "false positives" and infringe on many peoples' liberties.
1.3.2006 7:56pm
Tom Holsinger (mail):
Professor Kerr,

I have a few extra comments. First, I have personal knowledge of the 1978 debate over FISA which can be confirmed in James Bamford's books plus the congressional record.

FISA was written in 1978 so as to not affect the NSA's existing surveillance of foreign communication. Congress' principal objective in enacting FISA was to restrain and regularize the burgeoning electronic surveillance capabilities of the Executive branch concerning domestic communications.

I was engaged in the private practice of law then and familiar with these issues and the debate on them in Congress and the nation as a whole. My father was then the administrative assistant for a Congressman serving on the House Intelligence Committee at the time FISA was being enacted, and I discussed these subjects with my father at that time.

Congress did act on this subject. Congress approved of the foreign surveillance. I was there at the time and aware of what was happening.

I repeat, these matters can be easily confirmed by my cited sources. Many here do not want to go there lest nasty facts harm their treasured preconceptions.

Second, a repeat of something above whose importance cannot be overstated:
"The neat thing about 50 USC 1801(f) is that it defines "electronic surveillance" as only that surveillance of communications in which there is a reasonable expectation of privacy (provided the surveillance takes place outside the U.S., which is almost always the case). If there is no privacy expectation, listening to 'em is NOT "electronic surveillance" and so not at all subject to FISA."

or subject to any warrant requirement, period. It doesn't matter whether the surveillance is of a U.S. person, because FISA only restrains "electronic surveillance", and surveillance of any foreign communication, whether or not "U.S. persons" are involved, is defined as not being "electronic surveillance" subject to FISA.

Third, U.S. govt. employees who perform electronic surveillance under the delegated authority of foreign countries pursuant to intelligence agreements, formal treaties, etc., act as agents of those foreign countries such that U.S. law does not apply to the fruits of their surveillance. I.e., extend Stowe v. Devoy, 588 Fed.2d 336 (2nd Cir. 1978) from Canadian officers performing the "search" in Canada to U.S. officers acting as Canadian agents performing the "search" in Canada.

And, for those who like to play credentials games on those they don't like, here is some ammunition, of which the first is a fine law student story.

The California State Bar found my knowledge of ethics questionable. I passed the general bar exam the first time and failed the ethics exam. It was July 1975, and the second time the ethics exam had been offered.

On that occasion, and in February 1975 when the ethics exam was first required after the post-Watergate so-called reforms, the questions on the exam asked what an attorney could do, not what he should do, but the required answers were what an attorney should do.

Alas, I had spent my last year in law school clerking for the SEC's Enforcement Division trying to prosecute a crooked attorney, and I knew very well where the line was between "not quite unlawful" and "I Have You Now" conduct.

So I answered the ethics exam questions the way they were written and failed. Knowing what the ethical rules of the California State Bar really were was prima facie evidence of moral unsuitability to practice law. A similar argument could be made today.

My only other federal employment was earlier, for the Postal Service during summers and Christmas seasons while I was in college. I have no formal knowledge or experience concerning intelligence matters (sorry, Polaris), though I've had an interest in the subject since college.

And Polaris does not qualify as an avid gamer. I do. Google me.
1.3.2006 8:17pm
George Gregg (mail):
Polaris,

Having diligently processed through (good grief) hundreds of comments in this thread, let me see if I've got this straight:

1. Gonzales has clearly stated that the surveillance program would normally require a court order, per FISA. But, he says, because of AUMF, FISA is moot.

2. Your argument is that, despite what Gonzales said, the surveillance would probably NOT normally require a court order under FISA, essentially suggesting that Gonzales is possibly lying.

3. You offer no evidence for why Gonzales may be lying, but you simply surmise it may be to cover up important technical details of surveillance.

4. You therefore suggest that we all ought to give the Administration the benefit of the doubt by assuming that they are lying to us for our own good.


You know that partisan ad hominem you keep using? I wonder if you've ever considered that it's a double-edged sword. That is, you impute to others partisan motives because they will not bend over backwards to accept your tortuous reasoning, but they would rather tend to favor the more obvious explanation - that Gonzales told the truth but that he is likely to be mistaken about AUMF's dispensation.

Yet you, yourself, do not see anything remotely partisan about your own continued insistence that we give the POTUS the benefit of the doubt, in the face of clear, unequivocal admission by the AG that the warrantless surveillance in question would, normally, have required a court order under FISA.

If anyone is displaying a cognitive bias, it is you. To wit, as I recap your participation in this thread, a few things come to mind:

a. You have admitted that you might be deliberately mis-informing the rest of us about technical aspects of the wiretaps of which you are familiar.

b. You admit that you are not in the NSA currently and are not familiar with the actual, current surveillance program in question.

c. You continue to dismiss those who disagree with you as partisans when it is clearly demonstrated that some of the more vocal of us are not members of the opposition party.

d. You spent the first four hundred comments in the thread arguing that the surveillance in question isn't covered by FISA because of technical reason which are classified, but then when it's clearly shown that the AG's statements say just the opposite of what you have been arguing, you embellish your argument to suggest that the AG was probably deliberately lying.

e. In the face of your suggestion that the AG is possibly intentionally lying AND your other statements expressing concern with the threats on civil rights of which you are specifically aware, you STILL suggest that we should give the Administration the benefit of the doubt that our civil rights are not at risk of being violated!

This is simply byzantine argumentation. Your comments resemble more a bundle of highly charged opinions by a streetcorner snake-oil salesman, rather than a consistent, informed participant in the debate. Sure, you may know more about snake-oil than the rest of us, but at some point, the relevance of that fades when you are not able to offer legitimate evidence or argumentation to support what you're selling.

Again, I'm happy to wait for the hearings and investigations before I begin to draw any conclusions. I still think Orin had it right at the top of the thread: the issue is legally troubling, but we don't have enough factual info yet.

Of course, if the facts are that the AG is telling the truth, then it's pretty darn legally troubling, indeed.
1.3.2006 8:57pm
George Gregg (mail):
And good heavens, can it seriously be that this is the SECOND thread of 400+ comments we've hacked through on this topic in less than a week?

Frightening.
1.3.2006 9:03pm
jrose:
Tom Holsinger,

1) What if the surveillance is done in the USA?

2) What constitutes a reasonable expectation of privacy is not settled law.

3) If Bush's surveillance is not within the purbiew of FISA, why didn't Bush say so?
1.3.2006 9:34pm
Diversity Hire:
jukeboxgrad, thanks for the response. I guess we agree that the BushSniffer could be FISA-compatible—and you've helped me to see how that might be—but we can't ascertain whether it is so (without all the cool Tom Clancy and John Grisholm details coming-out).

It's interesting that your intuition is so different from my own about the President's motivation and goals.
1.3.2006 9:37pm
Charlie (Colorado) (mail):

The White House set the procedure for this program, according to the NYT story. In Section 1802, the procedure is spelled out in the act.


You know, I looked and looked, and I can't find the part of 1802 that says "The President applies by sending this text to the AG, who fills out form 92i 'Notification of Congress'...." Your claim that because the White House has procedures under which they proceeded, those procedures must ipso facto not be the procedures discussed in 1802 is just, well, silly. (It's a little hard to name the formal fallacy involved, because I can't tell if it's "begging the question" based on an assumption of wrongdoing, or merely a non sequitur.)



If 1802 had been invoked, it is nonsensical for the DOJ not to just say so. That is my common-sense reason for believing that 1802 was not invoked, butressed by my own reading of the law explaining why 1802 was not applicable.


Then your "common sense" has led you to making a fallacious argument.
1.3.2006 9:56pm
Charlie (Colorado) (mail):

And Charlie, I do believe that when the Attorney General of the United States provides prepared remarks on a legal subject of great importance, he is going to be pretty careful about what he says. And this was not some slip of the tongue: this is a calculated and clear statement.



All well and good, but that doesn't speak to it beiong the only justification; the fallacious inference is unchanged. As I noted above, he may have a tactical reason --- eg, the calculated desire to make an argument based on presidental powers rather than statutory interpretation, made doubly reasonable given that it's clear the statute is a little tough to interpret, and given that the Administration sems to have a more general philosophical desire to restore the understanding of presidential power to something more like it was for FDR --- for choosing that approach.

Look, it's entirely possible they don't buy the 1802 argument and aren't using it for that reason. As I've said before, i'm a logician, not a lawyer. But your assertion that this must be the reason still fails as a logical inference, because it still requires you to hypothesize soemthing we don't know. Whether or not the result is true, the inference is fallacious.
1.3.2006 10:02pm
Medis:
Charlie,

The proposition that FISA would have required a warrant for this surveillance if not for the 2001 AUMF is not my "inference". It is what Gonzales actually said.
1.3.2006 10:05pm
Charlie (Colorado) (mail):

We do have an indication that it might involve tapping submarine cables because of the refitting of a submarine (and because we previously operated IVY BELLS in the cold war, tapping copper submarine cables until the operation was compromised by an intelligence leak). The trick in tapping a fiber optic cable, aside from being able to do it in deep water, is to do it so that there is no normally observed break in service. That means doing the actual cutover fast, and it means avoiding having the operator watch for very brief interruptions. Altogether very good reasons to mislead.


Thank you for bringing that up, John. I presume you're quoting open sources, and I think it's an important point.
1.3.2006 10:05pm
Charlie (Colorado) (mail):

With regard to (f)(3), I would add this: we've been told the program excludes communications that are purely domestic. Given the many other ways we've been misled, I find little reason to trust this claim. As I've mentioned, the arguments used to justify the program (AUMF/Article 2) could be used just as easily to justify warrantless surveillance of purely domestic communications (by US persons inside the US). In fact, those same arguments could be used to justify almost anything. That's the problem.


Jukeboxgrad, the problem here is that you're once again basing your argument on assumptions. I might base my counter-argument on the assumption that you're misleading us, and are really an al Qaeda operative yourself.

Neither argument is productive.
1.3.2006 10:11pm
Just an Observer:
Charlie (Colorado): "Your claim that because the White House has procedures under which they proceeded, those procedures must ipso facto not be the procedures discussed in 1802 is just, well, silly."

The fact remains that if the attorney general was invoking 1802, under its plain language he would have had to certify at the time, not just now that the jig is up, in writing and under oath, that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

The fact also remains that at Attorney General Gonzales' Dec. 19 briefing, he referred to citizens (U.S. persons under the FISA definition) being surveilled under the NSA program:


ATTORNEY GENERAL GONZALES: I'm not -- I can't get into the specific numbers because that information remains classified. Again, this is not a situation where -- of domestic spying. To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda.
1.3.2006 10:18pm
Charlie (Colorado) (mail):

I should stress that when I said that the timelines are rough, I don't mean that on 9/11 NSA started a "new technology program".


John, I've just done some research in what's in open sources, and I think we can say entirely based on open sources that the dates in your timeline are way late.

Years late.
1.3.2006 10:23pm
George Gregg (mail):
As I've said before, i'm a logician, not a lawyer. But your assertion that this must be the reason still fails as a logical inference, because it still requires you to hypothesize soemthing we don't know. Whether or not the result is true, the inference is fallacious.

Maybe you're trying too hard, Charlie. We don't need to delve into advanced formal logic to demonstrate that the surveillance would fall under FISA regulation. We just have to listen to what Gonzales himself has clearly said.

But if logically is the way it needs to be assimilated, fine. The syllogism is as follows:

Given: Gonzales has said that the surveillance in question would normally fall under FISA regulation.

If P then Q. (If Gonzales is telling the truth, therefore the surveillance normally would have fallen under FISA.)

P. (Gonzales is telling the truth.)

Therefore Q. (His assertion that the surveillance normally would have fallen under FISA is also true.) Modus Ponens.

This is a valid argument.

You can argue that it is not sound, however, by calling into question the Given (which would be outrageous), or by questioning premise P (by suggesting Gonzales is lying, as Polaris has tried to do.)

Evidence, or at least formal logic, supporting your assertions would be appreciated.
1.3.2006 10:29pm
Charlie (Colorado) (mail):
Jrose:


Tom Holsinger,

1) What if the surveillance is done in the USA?


At least some of the court cases cited suggest that any foreign communication hasn't got the "reasonable expectation of privacy", in which case it wouldn't matter as long as either endpoint were outside the US.


2) What constitutes a reasonable expectation of privacy is not settled law.


Then it would seem any assertion the Administration 'clearly violated the law" is incorrect.


3) If Bush's surveillance is not within the purbiew of FISA, why didn't Bush say so?


Same old fallacy: it might be because they have other motives for choosing the particular tactics they chose; it might be because they feel that saying it was completely outside the FISA would give too many hints to the "sources and methods"; it may be that the direct program doesn't, but some consequential steps do, and they're emphasizing that they are using FISA where it clearly applies; or he might simply not have thought of it.
1.3.2006 10:34pm
Charlie (Colorado) (mail):
Just an Observer, is the phrase "non sequitur" familiar to you? At the very least, you might want to expand the reasoning between your first paragraph and your second.

In any case, what you're talking about falls apart if alQaeda is a "foreign power" under 1801(a)(1-3) because of 1801(b); I don't have a lot of trouble believing that a court would hold that al Qaeda is a "faction" under 1801(a)(3).
1.3.2006 10:43pm
jrose:
Charlie,

1801(f)(2) applies even if there isn't an expectation of privacy.

I agree an assertion that the administration clearly violated the law is not called for - but neither is an assertion that it didn't. I agree with Orin that subject to knowing the details of what the surveillance was, there was probably a violation of FISA.

I am not persuaded by any of your arguments as to why the administration doesn't simply say the surveillance isn;t covered by FISA.
1.3.2006 10:43pm
Just an Observer:
Charlie (Colorado):

I wasn't talking about Al Qaeda. I (and Gonzales) were talking about American citizens. Citizens are U.S. persons under the law.
1.3.2006 10:46pm
Charlie (Colorado) (mail):
George, your axiom: "Gonzales has said that the surveillance in question would normally fall under FISA regulation" assumes rather more than what's been said. Nothing I've seen quotes Gonzales as saying that the surveillance would normally fall under FISA; everything has said that warrantless collection was authorized by statute (AUMF) or under Article II. If you have something I'm not recalling I'd be happy to see it, but ... well, otherwise you're asserting that because Gonzales is asserting that they are justified under one interpretation, there must be no justification under another interpretation.

If you insist on symbology, then you're asserting ∃(x)P(x) implies ¬ ∀(x)Q(x) as a justification for including ¬∀(x)Q(x) as a given.

Which simply is a non sequitur.
1.3.2006 11:01pm
Charlie (Colorado) (mail):
JaO: look at §1801(b). You appear to me to be mistaken; more to the point, it would appear Judge Sands agreed with my interpretation in USA v UBL.
1.3.2006 11:03pm
Medis:
Charlie,

Gonzales said: "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires."

I really don't think he could be any clearer.
1.3.2006 11:07pm
George Gregg (mail):
Charlie,

To formulate your argument formally, it is a Modus Tollens syllogism. To wit:

Given: Gonzales has said that the surveillance in question would normally fall under FISA regulation.

If P then Q. (If Gonzales is telling the truth, therefore the surveillance normally would have fallen under FISA.)

NOT Q. (The surveillance would not normally fall under FISA.)

Therefore NOT Q. (Gonzales must not be telling the truth.) Modus Tollens.

This is a valid argument, too, via the contrapositive.

However, it's soundness relies on an assertion about technical details upon which you are not informed (NOT Q) and results in a conclusion that Gonzales must be lying (NOT P).

In my modus ponens, I have also made an assertion about details I do not know. I.e., I really don't know whether Gonzales is telling the truth (P).

Your argument is logically as valid as mine, but is just as unsound because we both rely upon unknowns to state premises. Hence, what many of us have been saying about needing to wait until we learn more before we can draw a sound conclusion.

But I would note that your argument requires Gonzales to be a liar...
1.3.2006 11:09pm
Charlie (Colorado) (mail):
jrose:


1801(f)(2) applies even if there isn't an expectation of privacy.


Tom Holsinger appears to disagree and cites a couple of authorities. I don't find your bald assertion convincing.


I agree an assertion that the administration clearly violated the law is not called for - but neither is an assertion that it didn't. I agree with Orin that subject to knowing the details of what the surveillance was, there was probably a violation of FISA.


Well, I can't take responsibility for everything anyone else has said, but I don't think I've asserted that. (I will note that with Cass Sunstein's, John Schmidt's, and others' counter-arguments, I don't think you'd be wise to bet serious money on it.) I do think it's a fair assertion to claim that the Administration could well have, in all good faith --- based on the legal questions, the differences we've seen in interpretations, and the clear history of previous precedent --- believed they were acting lawfully.

An awful lot of invective becomes pretty silly if we do so, though.


I am not persuaded by any of your arguments as to why the administration doesn't simply say the surveillance isn;t covered by FISA.


Then I suggest you need to examine what other (possibly hidden) bases are behind your inference.

Or, you could adopt a scheme I've found very useful: as a logician, I've long since become convinced that in this kind of inference, we need to drop the Law of Excluded Middle. Practice saying "I don't know enough to draw a conclusion". Follow that by saying "Since I don't know enough to draw a conclusion, I won't hold any particular conclusion too strongly."
1.3.2006 11:19pm
Charlie (Colorado) (mail):
Medis:


Gonzales said: "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires."


He's clearly asserting that they're not in violation of FISA, because this would be required unless otherwise authorized.

I agree: it couldn't be any clearer: he's saying quite clearly that FISA is not being violated.
1.3.2006 11:23pm
Medis:
Charlie,

1801(f)(1), (3), and (4) are all explicitly conditioned on a reasonable expectation of privacy. 1801(f)(2) is the only one of these provisions that is not.

So, that claim isn't a bare assertion--it is just reading the actual statute.
1.3.2006 11:27pm
Medis:
Charlie,

Right, but no one is claiming that Gonzales said that the Administration broke the law. We are just pointing out that Gonzales said that FISA would have required warrants for this kind of surveillance if not for the 2001 AUMF.
1.3.2006 11:34pm
Charlie (Colorado) (mail):
On the soundness point, you're right, and I'd give you a good score on your exam. It's also an example of why I think we've got to drop LEM in this kind of discussion. Sometimes we don't know. (But, as I say, there's also as I understand it a legal doctrine that if you could plausibly believe you were acting according to the law, you can't be held liable legally. My brother the tax geek runs into that one a lot.)


But I would note that your argument requires Gonzales to be a liar...


So? You mean you think that I'm suggesting that someone in a political position might possibly not tell the absolute truth, and what's more might not immediately, in a short statement to the press, completely and fully express every possible interpretation, alternative understanding, counter-argument, and every other possible tactical approach that they considered and discarded?

A little "war" story, Cold War anyway. I was living overseas, under non-official cover. (I just tried four of five different ways of being more definite what I was doing, and concluded I'm not comfortable with any of them. Suffice it to say that my NOC was both consistent with my technical background and with the overt mission of the organization I apparently worked for.)

(And before some damn fool says "See? You must be lying because you could never ever say something like that if you were really undercover", let me just point out the number of people who go on TV having just retired from CIA to talk as intelligence experts. This was 30 years ago, on another continent, and I'm not telling as much as is on my CV, which was cleared for publication in 1983.)

It was a pretty big organization, and it's hard to be so completely covert that no one even realizes there's something fishy about the organization. (Think about Area 51 at Nellis, or Fort Meade in the days before NSA could be named openly.) So, one of my acquaintances there says to me one day out of the blue "Charlie, do you work for NATO or for CIA?" And I said, flat out and with a completely straight face (I hope) "Are you kidding? I could never get cleared for something like that. A hippie like me?"

In other words, I lied my ass off.

I'd expect Gonzales to do the same.
1.3.2006 11:42pm
Medis:
Charlie,

Or Gonzales could have said that because he thought it was the truth. Stranger things have happened.
1.3.2006 11:46pm
George Gregg (mail):
This is bizarre.

Gonzales clearly said that: "requires a court order before engaging in this kind of surveillance that I've just discussed"

He then offered the qualifying phrase: "unless otherwise authorized by statute or by Congress."

Hence, he's clearly, bluntly saying that this kind of surveillance would normally require a warrant under FISA, but in this case, he believes that AUMF gives him specific permission to not be held by this law.

Gonzales says that the surveillance clearly falls into those technical categories which FISA covers but it's okay because OTHER statutes make it okay (namely, AUMF).

Thus, there are two putative statements that Gonzales is making:

1. Yes, the surveillance is the kind that FISA normally covers.
2. But AUMF trumps FISA, so it's legal.

Yes?

If so, then take a look at that first statement again, and see if it doesn't say what Medis and I and others have been saying. How is this is not blindingly clear to a trained logician?

On preview, what Medis said.
1.3.2006 11:52pm
Tom Holsinger (mail):
Trying to figure out exactly what is going on at the moment in intelligence work is like trying to follow the blow by blow of two cats fighting under a blanket.

It doesn't help that everyone is trying to score partisan points and the feds hate telling the truth.

The NSA's foreign surveillance has been legal for 37 years. Those who contend that is illegal now but wasn't before are silly.

If you want to go there anyway, there are lots of different possibilities to consider.

Among those are that previous NSA foreign surveillance was of both outgoing as well as incoming traffic, but more the latter for various reasons, and that for other reasons it was eventually deemed preferable by the Clinton administration to seek warrants for surveillance of incoming traffic, though that was not strictly necessary. This new practice quickly morphed into "it has always been this way".

Or the FISA judges themselves might have imposed such a change in practice during the late Clinton administration.

Under either of these theories, the Bush 41 administration at some point insisted on reverting to the 1978 intent and letter of FISA, with warrantless searches of outgoing as well as incoming foreign communications, met with the usual resistance ("We Have Always Lived In The Castle") and went ahead anyway.

And the Bushies are now being all mealy-mouthed about it because that's what Bushies do. President Reagan, Secretary of State Shultz, and NSA Director Bobby Inman would have said, "We're doing it. You wanna make somethin' of it?" and stared the Defeatocrats down.

Not our boys now. They have to look guilty and talk out of the corners of their mouths. Sigh.

Which may or may not be true, but does fit the facts.

There are lots of other possibilities.

By all means continue fussing over foreign surveillance. Just don't expect me to post here again if you do.

Domestic surveillance is important, but you guys don't want to talk about that.
1.3.2006 11:53pm
Charlie (Colorado) (mail):

Right, but no one is claiming that Gonzales said that the Administration broke the law. We are just pointing out that Gonzales said that FISA would have required warrants for this kind of surveillance if not for the 2001 AUMF.


Almost: he said FISA would have required the warrants except where otherwise authorized by statute or by Congress. Again, watch out for the quantification error here: he notes AUMF as a Congressional authorization or statute; he doesn't assert that there exist no other bases on which to believe it was authorized.

As I've said before (elsewhere? I'm no longer sure. Forgive me if i'm repeating myself) the whole collection of statements from the Administration seem to me to lay out an argument in the alternative:

(1) We did it and we are authorized by the Article II powers to do it. BUT IF that isn't dispositive, then
(2) We did it and we're authorized by the AUMF to do it. BUT IF that isn't dispositive,
(3) We did it, AND we notified Congress and maintained minimization procedures based on what the AG's office determined was required (after some argument, re-examination, and some modifications we now know) and thus complied with the law.
1.3.2006 11:57pm
Charlie (Colorado) (mail):

1801(f)(1), (3), and (4) are all explicitly conditioned on a reasonable expectation of privacy. 1801(f)(2) is the only one of these provisions that is not.

So, that claim isn't a bare assertion--it is just reading the actual statute.


Except that this interpretation would require us to believe that things that are known, from open sources, to have been common practice in the intervening 37 years, were then and are now illegal.

Until I see the US Marshalls shooting it out with the Marine Guards at Ft Meade, I'm going to find this implausible.
1.4.2006 12:02am
George Gregg (mail):
Charlie,

It looks like, you're vacillating between two positions, depending upon which commenter you're responding to:

A. That Gonzales lied because the consequence of him telling the truth is unacceptable to you, and

B. That Gonzales didn't lie because he never actually said that the surveillance would have normally been covered by FISA.

It seems you're putting your logic subordinate to your dogma. So, I appreciate your offering to "grade my exam" for me, but I think I'll decline the offer.

And given that it's now 6 a.m. here, I must decline further engagement on this interesting, if quite frustrating, discussion in favor of sleep. Where, I hope, the landscape is somewhat less prone to the surreal.

Thank you all and good night (morning).
1.4.2006 12:03am
Medis:
Charlie,

I think that is right--Gonzales did not rule out the possibility that some other statute besides the 2001 AUMF could provide authorization. Which makes sense, since the relevant FISA provision (50 USC 1809) plausibly just requires some statutory authorization.

So, my point is just that Gonzales said this kind of surveillance would require warrants under FISA unless it was otherwise authorized by some statute. But that is not an empty point, because FISA does not require warrants for many kinds of surveillance even when such surveillance is not otherwise authorized by statute.

Anyway, I'm interested in your third argument. Can you give me a pointer to where the Administration has made such an argument? (I'm not saying they didn't--I just want to make sure I know what you are talking about.)
1.4.2006 12:13am
Just an Observer:
Charlie (Colorado): "JaO: look at §1801(b). You appear to me to be mistaken; more to the point, it would appear Judge Sands agreed with my interpretation in USA v UBL."

I have looked closely at 1801(b), as well as the rest of that definitions section. So have many others on this blog who have substantial experience reading statutory definitions.

The court case you cite, if it has any relevance, speaks to the question of whether Al Qaeda can be considered a foreign power, which is not even disputed here. The case did not address the definitions contained directly within section 1801 of FISA, which is what is at issue in your "argument."

You are simply repeating mistatements of law by yourself and your fellow non-lawyer, Polaris, that were refuted here long ago. In doing so, you continue to confuse the definition of "foreign power" -- 1801(a), referring to groups -- with that of "agent of a foreign power" -- 1802(b), referring to people.

The language in 1802(i), defining U.S. persons, refers to the former -- a group can be defined as a "foreign power."

However, you continue to argue as if 1802(i) was nott written to exclude "a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3)," -- which is what it the plain text says -- but rather 1802(i) was written to exclude "a person who is an agent of a foreign power, as defined in subsection (b)" -- which is what you wish it said. (I am not the first here to point that out to you.)

And there is nothing that causes a citizen to lose his citizenship if he becomes such an agent. Thus, he would remain a U.S. person, and the attorney general could not have lawfully certified under oath that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." Given what we know now, including the benefit of statements by the current attorney general, to have done so and invoked 1802 likely would have constituted perjury. I do not believe the attorney general committed perjury.

Legal definitions such as these have precise meanings for a reasons. You use terms loosely and interchangeably, which were defined as distinct definitions.

Multiple participants here have called you on the above mistatement of black-letter law, but you ignore the rebuttals and continue to repeat the erroroneous statements.

In a court, this kind of behaviour is dealt with expeditiously by a judge who says, "That has been settled. Move on." Here on the Internet, where "no one knows you're a dog," we have no such defense against trolling behavior except to ignore it.

But I fully expect that you will persist in repeating the same rebutted falsehoods in thread after thread.

Sad.
1.4.2006 12:15am
Medis:
Charlie,

We cross-posted ... this is in reference to your 1801(f)(2) post.

Anyway, that is not necessarily the case. The full text of 1802(f)(2) is:

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

So, 1801(f)(2) only applies to wire communications acquired inside the United States. Other forms of communication acquired inside the United States, or wire communications acquired outside the United States, are not covered by this particular provision.
1.4.2006 12:19am
minnie:
Are you the same Tom Holsinger who wrote the article
The Invasion of Iraq Has Probably Begun?
1.4.2006 1:36am
Noah Klein (mail):
Tom, Charlie and Polaris:

I will once again try to show that despite what foreign governments do, U.S. citizens have a reasonable expectation of privacy when they make international calls.

Tom: Even though you are gone I would like to attempt in perhaps an oafish manner to refute the claim that a U.S. person has no reasonable expectation of privacy.

When you first brought up the issue you stated that there was no reasonable expectation of privacy because

(a) reasonable men know when they don't know the law, and

(b) reasonable men try to learn the law they don't know if it is pertinent to what they are doing, and

(c) reasonable men don't presume that foreign law is just like American law when they know they are ignorant of foreign law.

This seemed reasonable to me, because my father who is a lawyer told me throughout my childhood "that ignorance of the law is no defense for breaking it." Yet then I was watching TV today and I saw a Law &Order episode where the detectives were reading their rights. I thought according a reasonable man should know his rights, but the Court has said that a person must be made aware of his rights and if not any evidence collected invalid unless a good faith error was made.

Furthermore, when I asked my father about this he said that I was right ignorance of law, especially foreign law does not destroy the expectation of privacy. A person, even a reasonable person, is allowed to be ignorant of the law. The only thing is that ignorance of the law does not allow you to break it. Tom or anyone else if I am wrong please cite the relevant law

And finally, I was reading one of his old Gilbert Torts books, which demonstrated that the tapping of Ralph Nader's phone by GM was an invasion of privacy, because he had a reasonable expectation of privacy.

and

I am very sorry for the plethra of posts that I have made recently. I will attempt to not post for a while and just read what others post. I wanted to post this final time to put up a definition of "expectation of privacy" that I have retrieved from FindLaw:

a belief in the existence of freedom from unwanted esp. governmental intrusion in some thing or place
(compare zone of privacy)
Note: In order to successfully challenge a search or seizure as a violation of the Fourth Amendment to the U.S. Constitution, a plaintiff must show that he or she had manifested a subjective expectation of privacy in the area of the search or the object seized and that the expectation is one that society is willing to recognize as reasonable or legitimate.

I think that the word subjective in this definition is very telling. Now if a person is ignorant of a foreign law which allows that government to listen in on their communications than subjectively that person should still have a reasonable expectation of privacy from their own government.

Finally, I will leave you with a definition of "zone of privacy" which once again comes from FindLaw:

: an area or aspect of life that is held to be protected from intrusion by a specific constitutional guarantee (as of the right to be secure in one's person, house, papers, or effects against unreasonable searches or seizures) or is the object of an expectation of privacy
Example: allowed disclosure of medical records, records which were deemed to fall within a zone of privacy, upon a showing of proper government interest -- Stenger v. Lehigh Valley Hosp. Ctr., 609 A.2d 796 (1992).
1.4.2006 1:50am
Polaris (mail):
Noah,

If you look up USSID 18, you will find the relevant Executive Order (valid since 1981) that pretty explicitly debunks your point. It has been the legal position of the NSA and backed by both parties both in congress and the presidency since 1981 that FISA does not apply as long as the interception does not occure on US soil. The actual practice of NSA was more restrictive than this (esp during the Clinton years), but the legal right has always been there.

-Polaris
1.4.2006 2:33am
Polaris (mail):
Noah,

It's Executive Order 12,333 and it was signed by Ronald Reagan. It's been upheld by four administrations (of both parties) and congressional oversight (of both parties) and the FISA court knew all about it which implies at least implicit approval by the judiciary (since FISA Justices are directly appointed by the Chief Justice of Scotus) and this order is based directly on FISA and relevant case law.

-Polaris
1.4.2006 2:56am
Tom Holsinger (mail):
Noah,
"... that the expectation is one that society is willing to recognize as reasonable or legitimate."

Which society, ours or the one on the foreign end of the communication?

It makes a difference. AFAIK, America is the only country in the entire world where there is an expectation of privacy in foreign communications. Some other countries have privacy expectations in their domestic communications, but none, repeat, none in foreign communications.

Then add this part of 50 USC 1801(f): "... and a warrant would be required for law enforcement purposes."

How many countries besides ours require search warrants for foreign communications? And if the foreign government does not require a search warrant to examine an incoming or outgoing foreign communication, does our government need a search warrant to do the same examination in the same foreign country?

Does it make a material difference if we have the permission and cooperation of the government in that foreign country, i.e., if our personnel are acting as agents of, and using the authority of, that government?

I repeat, FISA was specifically written to allow the NSA to continue doing what it was already doing in 1978, which was electronic surveillance of foreign communications, including those with one end in this country. Read the two books by James Bamford.

Until someone shows me that the NSA's electronic surveillance of foreign communications today is done in a manner which would have been illegal in 1978, you guys are just spinning wind.

As for Attorney General Gonzales' comment about a need for warrants since 9/11, consider that he might have been referring to warrants for surveillance of domestic communications done as followups to surveillance of foreign communications.

If the Bush administration is engaged in edgy legal behavior concerning electronic surveillance, which IMO is entirely possible, it concerns domestic communications. And the game-playing is about the FISA definitions of "U.S. persons" for whom warrants are normally required.

FISA has lots of exemptions and loopholes permitting surveillance of domestic communications, so the government has some wiggle room as to whether warrants are required, but I am confident that if the Bush administration has stepped over the line, this is the line to look at. That is why I want to discuss domestic surveillance.

And a final note - "traffic analysis" does not entail examination of the contents of electronic communications, and there is no expectation of privacy in this regard. If your phone company knows the phone numbers you called and the ones which called you, the government can obtain that information from your phone company while keeping that fact a secret from you.

The same goes for most "data mining" of electronic commmunicaitons.

Almost all of what the NSA and other government entities do in electronic surveillance is traffic analyis and data mining, if only to sort out the tiny fraction of communications which the government might want to examine the contents of from the 99.9999999% of no interest. As a practical matter the government can obtain a suprisingly useful amount of information from electronic communications without examining their contents.

The capabilities of commercial search engines are getting frightening from a privacy perspective. And if those are frightening, what do you think secret government search engines can do?

Polaris personally used those for the NSA, and he has been griping about how useless FISA is in restraining federal invasions of our privacy. Consider that he might know what he is talking about.

NOW are you guys willing to discuss domestic electronic surveillance?
1.4.2006 4:16am
Medis:
Tom,

You ask: "And if the foreign government does not require a search warrant to examine an incoming or outgoing foreign communication, does our government need a search warrant to do the same examination in the same foreign country?

Does it make a material difference if we have the permission and cooperation of the government in that foreign country, i.e., if our personnel are acting as agents of, and using the authority of, that government?"

It seems entirely plausible, and indeed likely, to me that the answers to your questions are "yes" (provided a US person is a party to the communications). And that is because to my knowledge you have provided no support for your proposition that there is no reasonable expectation of privacy in international calls.

Rather, there is support for the much more limited proposition that if some OTHER government can under ITS laws conduct some surveillance, then they can legally pass that surveillance back to the United States government. But that does NOT imply that the United States government can ITSELF operate as if the laws it must obey are the laws of these foreign countries. Indeed, that makes no sense--of course OUR laws do not bind the governments of OTHER countries, but they do bind OUR government.
1.4.2006 10:24am
Tom Holsinger (mail):
Medis,

There is no expectation of privacy in information that is part of communications which you should know is available to third parties who did not participate in the communication. You have no expectation of privacy in the phone numbers you called or the ones which called you, the dates and times of the call. If you call (666) 666-6666, or that number calls you at 6:66 GMT today, you have no expectation of privacy in that information, because it is known to the phone companies, who did not participate in the conversation, and they can provide it to the FBI without telling you they've done it.

This is a key part of "traffic analysis" - a communications intelligence turn.

Likewise reasonable people know that the foreign governments of the countries you make international phone calls to, or receive international phone calls from, can listen in, and have no expectation of privacy in the call.

The governments of every country in the world can do this. Every bloody one. Including ours due to the careful wording of 50 USC 1801(f).
1.4.2006 12:03pm
Noah Klein (mail):
Tom:

Thank you for making my point for me.

You ask which society should we assume is meant by the definition I give. I think it is very clear that the society is the U.S. This is because foreign laws are not binding on our government as Medis pointed out.

Traffic analysis as you point out is different than data analysis. I have expressed no concern about the government analyzing where calls come from, go to, and the time the calls are made. As you showed phone companies and ISPs look at this all the time. So does the Post Office.

Furthermore, loopholes in FISA were demonstrated by that excellent article by Larry Sloan that Professor Kerr provided to us the other day. If the NSA were targeting foreign persons and a U.S. person happened to call that foreign person or that foreign person called the U.S., then the NSA legally can examine the contents of that call according to Larry Sloan, because it was found incidentally. Larry Sloan and I think this may be an issue for Congress when the look to correct FISA at some point in the future, but it is most certainly legal.

The problem with this NSA program is that its targets are U.S. persons. If its targets were foreign persons there would be no issue. Since its targets are U.S. persons, FISA requires a court order to make sure there is probable cause that the person targeted is an agent of a foreign power. This program ignores that provision of FISA and the administration justifies this circumvention of the law by saying the 2001 AUMF overrode the FISA requirement of a court order. It is these facts and the implications of the legal theory presented by the administration that so concerns people like myself.

Noah
1.4.2006 1:38pm
Medis:
Tom,

I understand your argument. What I am asking for is legal support for your argument--something like cases or statutes that supports the premises of your argument. Again, as yet, I have seen no such support for your proposition that if a foreign government, acting under its own laws, could lawfully intercept the contents of a communication, then there is no reasonable expectation of privacy and the United States government could conduct such surveillance on its own.

And I might note that the mere possibility that a foreign government could surveil the contents of my international phone conversations under their laws without a court order does not mean that they actually are doing so. Indeed, other countries could have their own rules about such surveillance, even if those rules are purely administrative (meaning internal to the government agency doing the surveilling). But administrative rules are laws as well, and often they are very important laws in other systems of governance (ours too, but less so than in many other places).

Anyway, what you seem to be suggesting is that the United States government can effectively adopt the legal system of another country whenever it is acting in that country. Accordingly, on your view if the government of that other country does not need warrants, than neither does the United States government.

Like I said, I would like to see some sort of legal support for this proposition.
1.4.2006 2:35pm
Polaris (mail):
Medis,

Tom's position is supported by EO 12,333 which has been upheld by both parties and all three branches of government since 1981.

-Polaris
1.4.2006 3:24pm
Medis:
Polaris,

I have read EO 12333, and I don't see what you are referring to. Maybe you can direct me to the provisions you have in mind.
1.4.2006 4:28pm
Charlie (Colorado) (mail):
It looks like, you're vacillating between two positions, depending upon which commenter you're responding to:

A. That Gonzales lied because the consequence of him telling the truth is unacceptable to you, and

B. That Gonzales didn't lie because he never actually said that the surveillance would have normally been covered by FISA.


George, I imagine it must be very pleasant to live in a world where, lacking full information, you can conclude with perfect certainty that one of two plausible explanations is true, the other is false, and uncertainty or alternatives can be excluded.

What color is the sky there?
1.4.2006 8:04pm
Charlie (Colorado) (mail):

I will once again try to show that despite what foreign governments do, U.S. citizens have a reasonable expectation of privacy when they make international calls.


Noah, it's not that your arguments are unconvincing, that I don't believe your scholarship, or even (abstractly) that I disagree with you. It's that the argument leads to an absurd result: that interception of foreign communications, as is known in the open literature to have been practiced for the whole 37 years since the 1978 act, and upheld over and over again in court, was obviously and apparently prima facie illegal and unconstitutional.
1.4.2006 8:14pm
Charlie (Colorado) (mail):
"6:66 GMT".

Whoo, cool. Decimal clock?
1.4.2006 8:15pm
Charlie (Colorado) (mail):
Anyway, I'm interested in your third argument. Can you give me a pointer to where the Administration has made such an argument? (I'm not saying they didn't--I just want to make sure I know what you are talking about.)

Medis, I don't think there's any point at which anyone has said in so many words "notified Congress as required by Chapter 36 etc." But there are several things we know (reported by NYT or others, not disputed, we "know" it about as clearly as we know anything in this mes) that ---

- the leadership in House and Senate, and the members of the Select Committees of both houses, have been briefed, repeatedly;

- the FISA Court has been notified and briefed;

- that a substantial review process took place within DoJ, one which was done to substantiate the Ag's certification, and that it was sufficiently stringent that at one point certification was withheld and the program was suspended until an audit was performed;

- and I'm vaguely recalling some talk about "minimization", although I can't put hands to a link right now.

Offhand, the only thing I can think of that they've missed is something explicitly stating that they've put in the sealed justification. Given that, my third point seems awfully plausible.
1.4.2006 8:28pm
Charlie (Colorado) (mail):

Charlie (Colorado): "JaO: look at §1801(b). You appear to me to be mistaken; more to the point, it would appear Judge Sands agreed with my interpretation in USA v UBL."

I have looked closely at 1801(b), as well as the rest of that definitions section. So have many others on this blog who have substantial experience reading statutory definitions.



JaO, you're still neglecting the point about the USA v bin Laden decision, and depending on the ad hominem circumstantial that I'm not an attorney.

Well, you're absolutely right; i'm not. I am assured, however, that Judge Sands is. So, don't tell me that I'm a dumb non-lawyer --- tell me why Judge Sands was mistaken.
1.4.2006 8:33pm
Medis:
Charlie,

Sorry--I had the impression from what you had said that the Administration had actually stated such an argument (as they did with your (1) and (2)).
1.4.2006 8:50pm
Just an Observer:
Charlie (Colorado): "[t]ell me why Judge Sands was mistaken."

I don't assert that Judge Sands was mistaken. I say the case you cite is irrelevant to your underlying argument. At most, the case implies that Al Qaeda may be considered a foreign power. I don't dispute that, as I have told you previously here. The case did not involve FISA in general, or the definitions of 50 USC 1801 in particular.

Several posters have explained here why those definitions do not say what you claim they say. You never have responded to those substantive rebuttals.

Please, you tell me why, even if Al Qaeda is considered a foreign power at all, that means U.S. citizens are not U.S. persons within the four corners of the statutory definitions.
1.4.2006 8:51pm
Medis:
JaO,

I doubt you will get a better answer than the assertion that agents of foreign powers are not US persons. That isn't what the statute says, of course. It also makes no sense given how the rest of the statute works (consider, for example, the proviso in 1805(a)(3)(A)--"Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States"--which makes no sense if a United States person cannot also be an agent of a foreign power).

But early on, someone in the blogosphere apparently introduced this idea, and some hardy souls refuse to give up on it.
1.4.2006 9:06pm
Just an Observer:
Charlie (Colorado):

You continue to conflate two discrete concepts defined in FISA:

1) foreign powers

2) agents of a foreign power

These concepts are not interchangeable in the statute.

These are not concepts dreamed up "somewhere in the blogosphere," as you suggest. Rather, they are defined explicitly and discretely within 50 USC 1801 itself.

The exeception you rely on in 1801(i) applies to "a corporation or an association which is a foreign power." A flesh-and-blood citizen is not a corporation or an association, and thus cannot fall under this exception. A citizen can be an "agent of a foreign power," which is a different thing entirely. Such an agent is not included in the 1801(i) exception.

The example your cite from 1805(a)(3)(A) is perfectly consistent with these definitions.
1.4.2006 9:24pm
jukeboxgrad (mail):
George:

"You therefore suggest that we all ought to give the Administration the benefit of the doubt by assuming that they are lying to us for our own good."

Thanks for that excellent summary of what Polaris said.
---
Diversity:

"I guess we agree that the BushSniffer could be FISA-compatible"

Yes.

"It's interesting that your intuition is so different from my own about the President's motivation and goals."

Post-Pat Tillman (and countless similar outrages) I find it impossible to view this administration's statements as anything other than a theatrical presentation that is only loosely connected to actual events. When Bush says a certain thing is true, or that he's doing something for a certain reason, I've learned from experience that it's a pretty safe bet to assume the truth is quite different.

Speaking of dishonesty, it's quite revealing to notice how many Bushists shamelessly admit their intentional lies, and also claim that Bush's people are quite justified in lying to us.
1.4.2006 9:30pm
jukeboxgrad (mail):
Charlie:

You seem to be be claiming that 1802 was invoked, or might have been invoked. I've pointed out that 1802 rules out snooping on US citizens. Gonzales has admitted snooping on US citizens. Therefore 1802 is not compatible with what Gonzales has admitted. You haven't addressed this problem. (I realize JaO has also pointed this out to you.)

"the problem here is that you're once again basing your argument on assumptions"

The problem here is that you're suggesting I've made unwarranted assumptions, but you haven't lifted a finger to say what those assumptions are and why you think they're unwarranted. If you have any kind of substantive challenge to anything I've said, I would be interested in hearing it.

And here's the essence of what I was asking, in a better form (thanks to Andrew J. Lazarus). Can the President, using his Article II (and/or AUMF) powers, order the manufacture, deployment, and use of chemical weapons, even if Congress passes laws and ratifies treaties prohibiting such manufacture and use?

As I've said, the arguments being used (Article II/AUMF) to defend the president could be used to justify just about anything.

"At least some of the court cases cited suggest that any foreign communication hasn't got the 'reasonable expectation of privacy', in which case it wouldn't matter as long as either endpoint were outside the US."

As jrose has pointed out, you're failing to notice that 1801 (f)(2) doesn't give a darn about "reasonable expectation of privacy" (unlike the other three definitions in 1801 (f)). However, 1801 (f)(2) only applies if the acquisition takes place in the US (unlike two of the other three definitions in 1801 (f)). When you add this all up you realize that your assertion ("it wouldn't matter as long as either endpoint were outside the US") is incorrect. Even if you toss REP out the window, and even assuming that "either endpoint were outside the US," if the signal acquisition is in the US, then 1801 (f)(2) has been violated.

"Then it would seem any assertion the Administration 'clearly violated the law" is incorrect."

No, because 1801 (f)(2) doesn't concern itself with REP. There you go, making unwarranted assumptions again.

"I don't find your bald assertion convincing."

English translation: "I'm going to pretend that 1801 (f)(2) makes any reference to REP, even though it plainly does not."

"I don't have a lot of trouble believing that a court would hold that al Qaeda is a "faction" under 1801(a)(3)."

I addressed this, here. You're simply repeating specious assertions and pretending they haven't been shown to be specious. This is a poor substitute for making a substantive response.

"Nothing I've seen quotes Gonzales as saying that the surveillance would normally fall under FISA"

Gonzales told us this: "the Foreign Intelligence Surveillance Act ... requires a court order before engaging in this kind of surveillance that I've just discussed."

Compare these two English sentences:

a) "The surveillance would normally fall under FISA."

b) "FISA requires a court order before engaging in this kind of surveillance."

You're claiming these are not essentially equivalent statements. Give us some more impressive symbols ("(x)P(x) ... ¬ (x)Q(x) ... ¬(x)Q(x)") and maybe we'll be able to grasp the higher reasoning behind such an assertion.

"He's clearly asserting that they're not in violation of FISA, because this would be required unless otherwise authorized."

"Otherwise authorized" is a reference to AUMF. He's clearly asserting that if not for AUMF, the program would be illegal, by virtue of violating FISA.

"in a short statement to the press"

Just for the record, Gonzales's opening statement was about 900 words. Answering questions he said another 1500 words. Is that "short?" How long would his statement have to be in order for him to be able to avoid lying to us?

By the way, did anyone notice how Scottie introduced Gonzales? "And with that, I'll turn it over to General Gonzales."

"it would appear Judge Sands agreed with my interpretation in USA v UBL"

There you again, repeating a specious assertion and pretending it hasn't already been discredited (here).

"you're still neglecting the point about the USA v bin Laden decision"

You're still neglecting to address the fact that I've already pointed out why "the USA v bin Laden decision" doesn't help you in the way that you claim it helps you.

"tell me why Judge Sands was mistaken."

I didn't claim he was mistaken. I proved that you are mistaken. Nice job ignoring that proof. As JaO said, "you never have responded to those substantive rebuttals."

"he notes AUMF as a Congressional authorization or statute"

Wrong again. Pay attention to his words, if you dare to: "the authorization to use force ... constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

He didn't say "constitutes an authorization" or "constitutes one possible authorization." He said "constitues that other authorization" ("other" meaning "other than FISA itself").

"watch out for the quantification error here"

Exactly. The "quantification error" is all yours.

"BUT IF that isn't dispositive ... BUT IF that isn't dispositive"

English translation: "let's throw a bunch of arguments against the wall and see if any of them stick." Anyway, what you're imagining the adminstration said isn't what the administration said.

"foreign communications"

You proliferate confusion in a variety of ways. One way is neglecting to define terms, such as this one. Some people think "foreign communications" means "communications where both endpoints, or all endpoints, are outside the US." Other people might think "foreign communications" means "communications to a foreign country."

"Except that this interpretation would require us to believe that things that are known, from open sources, to have been common practice in the intervening 37 years, were then and are now illegal. "

Please cite for us the "open sources" which prove that 1801 (f)(2) has been violated for 27 years (you said 37, but I know you mean 27).

If you start with CBS News interviewing Wayne Madsen, please don't be surprised if I laugh.

"in the open literature to have been practiced for the whole 37 years since the 1978 act"

Now that you've made that error twice, I have to wonder how careful you are with the rest of your facts. Maybe a problem handling numbers greater than 10 also accounts for the next oddity I noticed.

"This was 30 years ago, on another continent, and I'm not telling as much as is on my CV, which was cleared for publication in 1983."

At least one version of your resume (pdf) creates the distinct impression that your career started in 1979. I suppose it's not impossible that you were NOC in Europe four years before your career started, but I find that odd. The "not telling as much" part also seems a little peculiar. It's a bit of a mystery that your four-page resume would say less (nothing, actually) about your secret adventures in Europe than you're willing to announce to us, here. Especially since your "NOC was both consistent with [your] technical background and with the overt mission of the organization [you] apparently worked for."

Then again, I suppose I have no reason to think that you're the kind of person who might simply make things up.

"I lied my ass off."

Then again, maybe I do have some reason to think you're the kind of person who might simply make things up.

"I'd expect Gonzales to do the same."

Your standards are too low.
1.4.2006 9:33pm
jukeboxgrad (mail):
JaO said: "you [Charlie] continue to confuse the definition of 'foreign power' -- 1801(a), referring to groups -- with that of 'agent of a foreign power' -- 1802(b), referring to people."

That is one aspect of his confusion. But he is also confusing "foreign power" as in "faction of a foreign nation" as compared with "foreign power" as in "a group engaged in international terrorism." I explained this error of his in detail here.

I think you're well-aware of this, but I wanted others to notice this also, since he's so good at spreading confusion in so many ways.
---
Polaris,

"FISA does not apply as long as the interception does not occure on US soil"

2 of the 4 FISA definitions care about where the signal is acquired. The other two don't.

"If you look up USSID 18"

USSID 18 doesn't change this. Then again, maybe you have the unredacted version. Please tell us what it says.
---
Tom,

"Until someone shows me that the NSA's electronic surveillance of foreign communications today is done in a manner which would have been illegal in 1978, you guys are just spinning wind."

If we're only doing fundamentally what we've always done (which is what I think you're asserting, although I'm not sure), then what the NYT wrote is either false or old news. In either case, how did they help the enemy?

"NOW are you guys willing to discuss domestic electronic surveillance?"

I raised a concern about that, here (look at the last paragraph). And also here. And also here. Maybe you didn't notice.

NOW are you guys willing to discuss domestic electronic surveillance?
1.4.2006 9:36pm
Medis:
JaO,

I think you confused me with Charlie.
1.4.2006 9:47pm
Just an Observer:
Medis; "I think you confused me with Charlie."

My apology. I did misread that header.

I assume you agree with the bottom line of my post: "The example your [sic] cite from 1805(a)(3)(A) is perfectly consistent with these definitions" in 1801?

I regret that I attributed the opposite inference to you.
1.4.2006 10:16pm
Medis:
JaO,

Indeed--I was trying to point out how the entire statute assumes US persons can be agents of foreign powers. That is rather the point of FISA.
1.4.2006 10:51pm
Just an Observer:
Medis,

I think you are correct that the egregiously bogus reading of the law's definitions originated in the blogosphere. The administration's lawyers are, after all, lawyers, and they never mention this drivel.

I'm afraid that the source of the problem was right here in VC, in the legal "arguments" made by Polaris. Charlie, his tag-teammate, took up the chorus and repeats it without so much as acknowledging the frequent rebuttals.

My concern is that repeating a blatant falsehood is a very effective propaganda technique, and this blog is not without influence. If nothing else, it blows more smoke.

Given the high regard accorded to disinformation and dissembling in certain circles, one must be suspicious. Only the principles of Hanlon's Razor dissuade me from assuming the worst of motives.
1.4.2006 11:15pm
Medis:
JaO,

Since this is the thread for conspiracy theories, I have one of my own. Every once in a while, someone here links to some other blog post and/or ongoing discussion. When I have followed those links, I have often found what I would call an "echo chamber" environment--these other blogs and discussions are often dominated by like-minded people who are encouraging each other in their beliefs.

So, personally, I suspect that those echo-chamber discussions are often the original source for some of the more obviously fallacious and yet inexplicably stubborn arguments that we see around here.
1.4.2006 11:34pm
jukeboxgrad (mail):
Medis: "I doubt you will get a better answer than the assertion that agents of foreign powers are not US persons ... early on, someone in the blogosphere apparently introduced this idea, and some hardy souls refuse to give up on it."

This insightful statement of yours inspired me to look around. You're exactly right.

I think "someone in the blogosphere" was Robbins of NRO. And it was "early on" (12/19). And many, many of the mistakes/lies (you decide) that are popping up here and elsewhere seem to have been lifted almost verbatim from his column, which, to borrow JaO's apt phrase, embodied an "egregiously bogus reading" of FISA.

The next day Obsidian Wings took apart the Robbins column, and showed very clearly the mechanics of the deception. But the misinformation is still flying around.

"I suspect that those echo-chamber discussions are often the original source"

I think you're very correct about the echo-chamber character of many blogs. However, I find that there is a remarkably hierarchical character to the righty blogosphere, and I find that very, very often there are a small numbers of places (e. g., Instapundit, Powerline, NRO) where the crap is first planted (if you choose to look at it that way, and I do) and then carried forth by sundry semiliterate loyalists. In other words, you're giving the drones credit for originality, which they typically don't deserve, in my experience.

"Only the principles of Hanlon's Razor dissuade me from assuming the worst of motives."

What is charitably received as an innocent mistake should be reinterpreted as a deliberate deception when there's a failure to run a correction. Don't hold your breath waiting for Robbins to fix his "mistakes." Likewise for the likes of Polaris and Charlie. In other words, I think assuming the worst of motives is highly rational, under these circumstances.

Remember, lying is considered a proud, heroic act when it's part of your Duty to the Party.
---
A minor clarification: earlier I said I agreed with the following assertion of Diversity's: "the BushSniffer could be FISA-compatible."

I'm sure Diversity understands (but I want to make sure everyone else does, also) that what I am saying is this: the BushSniffer could probably have been constructed in a FISA-compatible manner. But it apparently wasn't.

I explained this here. Someone who didn't see that post could easily misinterpret a one-word sentence ("yes") that I wrote here.
1.5.2006 2:23am
jukeboxgrad (mail):
Medis said something which prompted me to look around (as I just mentioned). In the course of that looking around, I also found this, which I think is quite interesting: "We cannot monitor anyone today whom we could not have monitored at this time last year."

That's from the following DOJ document: "Statement of Associate Deputy Attorney General David S. Kris, Before the Senate Judiciary Committee, Concerning the Foreign Intelligence Surveillance Act, Presented on September 10, 2002."

This is the government telling Congress the same crap Bush was telling the public over the last few years: that wiretaps still required a warrant, because the Patriot Act didn't change anything in that regard. When Bush's obvious deception is highlighted, the canonical defense is that Bush was ostensibly talking only about the Patriot Act. Of course that defense is like something out of Lewis Carroll (it's sort of like suggesting Bush said "wiretaps still require a warrant, except when they don't"). Nevertheless the defense is attempted.

But Kris's statement has some interesting characteristics, compared with Bush's similar statements. First, of course Kris was speaking under oath. He is also a high-ranking government lawyer making a highly detailed, lengthy statement about law, obviously carefully prepared and edited.

Most importantly, he is making a simple, direct, categorical statement that flies in the face of what Gonzales has now told us: that AUMF authorized the president to do something new.

I'm sure all parties were highly aware that Kris was speaking exactly one day before the first anniversary of 9/11. When he used the phrase "at this time last year," he obviously meant "before 9/11." Of course this also means "before AUMF."

Kris swore before Congress that AUMF did not change the rules regarding who Bush was allowed to monitor. A few days ago Gonzales told us that AUMF did change the rules regarding who Bush was allowed to monitor.

Who's lying, Kris or Gonzales?
1.5.2006 2:29am
Noah Klein (mail):
Charlie:

I do not doubt that the NSA has been conducting surveilance on communications, which began in a foreign country to another foreign country, for as long as it has existed. I further do not doubt that at times this has picked up the communications of U.S. persons in the U.S. with foreign people in their country, when the foreign person was the target.

The issue here is that the U.S. person was the target. According to FISA, this is illegal if a court order from FISC is not aquired. If this was not the case in the current NSA program in question, then there would be no issue with it. Since it is the case, there is a big issue with it.

Noah
1.5.2006 3:36am
Medis:
jukeboxgrad,

What interests me is why some people are so susceptible to this kind of argument. In other words, the Administration has made a public case, but some people seem to think there must be some secret silver-bullet argument that the Administration has failed to mention. Why do these people find the idea of the secret silver-bullet argument so captivating?

Of course, one possibility is that these people understand the weakness of the public case, and therefore think the Administration is in desperate need of a helping hand.

But another, more cynical, possibility is that a natural human tendency to vanity is being used against these people. Basically, we all like to think that we know something a lot of other people don't know. So, if a lot of other people are acting under one belief, it makes us feel good to be told that only a select few of us understand what is REALLY going on.

Ineed, I have always thought that was a large part of the appeal of the "liberal mainstream media" concept. In other words, take the "mainstream" out of that concept, and you no longer appeal to the vanity of those who like to believe they are one of the select few who knows what is REALLY going on.

So, I think part of the appeal may be just what we are seeing here--the desire to come into a discussion like the one here and proclaim that we are all wrong about what is REALLY going on.
1.5.2006 8:04am
jukeboxgrad (mail):
Medis, I have great respect for your insight, and this post of yours is no exception. Here's what I would add to what you said.

I think I see the same pattern over and over again (i.e., I see similar dynamics in WMD, Plamegate, Katrina, NSA, TANG and other situations where Bush is caught with his pants down).

"one possibility is that these people understand the weakness of the public case, and therefore think the Administration is in desperate need of a helping hand."

I think you might be giving certain people too much credit. I agree that there is a desperate awareness of weakness, except in my opinion "these people" are not so much the drones, who we hear from in a place like this. There is a cadre of lieutenants, consisting of people like Reynolds and Hinderaker. These folks are getting direction from the generals, who are people like Rove, Mehlman and Gillespie. At these levels, yes, there is a highly conscious awareness that Bush "is in desperate need of a helping hand."

As I said, I think the righty blogosphere is very hierarchical, and disciplined (in much the same way that goose-stepping soldiers are disciplined).

Part of what the playbook calls for (aside from reflexively swiftboating every opponent, of course) is to quickly promulgate a dazzling panorama of arguments, attacking every aspect of the enemy's positions. Obviously the arguments don't need to be honest or rational. They need only the loosest connection with factual reality. It's perfectly fine if they're mutually contradictory and internally inconsistent. They only need to have the potential to look remotely plausible to a semiliterate, overworked, servile observer who is barely paying attention (that describes a very large chunk of the voting public).

It's sort of like this from Charlie: "BUT IF that isn't dispositive ... BUT IF that isn't dispositive." It's just important to have a lot of arguments, so each drone can latch on to whatever collection of arguments they find most appealing, and ignore the rest.

I want to again emphasize the role of columns such as what Robbins wrote. People like Reynolds and Malkin are dispatchers. When shit starts hitting the fan in a fresh scandal, the drones start at those major sites. They are then directed to places like NRO, WSJ and Powerline. There they pick up their detailed talking points du jour.

Then they fan out, inundating the blogosphere with the kind of drivel we've seen from people like Charlie and Polaris. Facts, logic and reason don't count. In the face of substantive responses, the playbook says feign deafness, repeat the mantra and carry on regardless. As in the behavior of a well-trained soldier, behavior is automatic and the upper cortex plays a minor role.

I want to emphasize that many, many times I've run into all sorts of bizarre, mutated ideas coming from righty posters in all sorts of places, where it's clear the poster has no comprehension of the words that are dribbling out of his mouth (which tends to indicate they picked it up somewhere else). Then I finally trace the meme back to an early post on Powerline or NRO.

"it makes us feel good to be told that only a select few of us understand what is REALLY going on."

I think you're hitting an important nail right on the head. I think part of what goes on is that MSM is almost structurally incapable of covering anything in depth, in a serious way. (Of course this is most true for TV and radio, but I think it's even true for most newspapers.)

So a typical scenario is as follows. MSM reports a fresh scandal. They report it in a manner that is both highly simplified and relatively fair. Then someone like Robbins or Hinderaker writes an analysis that is both highly detailed and extremely dishonest.

The next step is an insecure file clerk sitting in a cubicle reads Hinderaker, and then swaggers over to the water cooler, where he makes an announcement something like this: "you ignorant idiots believe what you saw last night on CNN, but I know the truth because I read Hinderaker; I bet you didn't know that Matt Cooper is married to a Dem; obviously this proves that Rove did no wrong outing Plame." Of course most of the other guys at the water cooler barely know what blog is and have never heard of Hinderaker, but they're impressed. The important thing is the prestige of conveying details that the other guy never heard (because MSM, almost by definition, avoids deep detail). Never mind that the details are falsified and/or irrelevant.

I think this connects with what you said about being one of a "select few." The shotgun approach to argumentation also fits in; there are so many pellets that each soldier can pick one to call his own, maximizing the chance that he'll be viewed as original when he addresses his water-cooler pals.

"What interests me is why some people are so susceptible to this kind of argument."

A lot of it starts with wanting a Daddy to protect me (maybe because I never really had one). Then I adopt a heroic duty to defend Daddy at all costs. Even though that entails telling lies to myself and others, that's a small price to pay for psychic survival. (Obviously by "I" I mean the kind of person I'm describing.)

I think a lot of this has to do with finding comfort in Manichean thinking, in response to a confusing world. The words of Goebbels come to mind: "Nothing is more foreign to dictatorial thinking than the bourgeois concept of objectivity. A dictatorship is by its very nature subjective. It takes sides by its nature. Since it is for one thing, it must be against another. If it does not do the latter, it runs the risk of having people doubt its honesty about the first. … Only those who lack the courage to join a party value being above party. When worlds collapse, when foundations shake, when revolutionary fevers spread through peoples and nations, one must join a party, one must be for or against. He who stands between will be torn apart by the contradictions, a victim of his own indecisiveness." Here's the highest insult: you're a flip-flopper.

I might as well mention Goering's famous words: "Naturally, the common people don't want war ... but after all it is the leaders of a country who determine the policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country."

Obviously I took liberties with your question and covered territory all over the map. If you got this far, thanks for being patient with the wandering. And even if you didn't, thanks for asking the question, which I obviously enjoyed.
1.5.2006 1:46pm