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Interesting Comment Thread:
Comment threads here at the VC have taken on a life of their own recently -- a great thing, I think, as lots of them are really interesting -- and in that spririt I wanted to point out that the comment thread for my latest post has a very interesting discussion of the legality of the NSA surveillance program (including a bunch of comments of my own), starting around the 7:30 mark.
Wintermute (www):
I started getting sick in my stomach at the authoritarian military intelligence types discussing the law and the "I'm right but it's classified why" stuff. It's gotten to the point where you're getting used as a credible source for reportage, and I suspect the trolls drop in to make sure the meetings come out the way the Fuhrer would want. Sorry, my eyes glaze over. I ran across some smart remarks from ole TJ relevant to today's division, such as:

The Tories are for strengthening the Executive and General Government; the Whigs cherish the representative branch and the rights reserved by the States as the bulwark against consolidation, which must immediately generate monarchy.

--Thomas Jefferson to Lafayette, 1823.
1.2.2006 1:25am
Defending the Indefensible:
Wintermute:

What really was annoying about the whole thing is that the "military intelligence" credentials were simply fraudulent. The whole thread became a mess from there because people were accepting the absurd "secret information" premise as if it could possibly be admitted in a public forum like this.
1.2.2006 1:50am
Defending the Indefensible:
It is kind of amusing to browse through old Net News postings by polaris@physics.utexas.edu (Ian Chapman). He's been making the same sort of "I'm NSA" claims (publicly!) since at least 2001, purely in order to tell others that he knows more about subject "X" than they do.

Very silly stuff.
1.2.2006 2:05am
Polaris (mail):
DtI,

Nope. I did in fact work for the NSA and if you have my name (which I know you do), you can easily verify it. I never said *when* I worked for the NSA so stop defaming other people's character.

-Polaris
1.2.2006 3:14am
Diversity Hire (mail):
Defending the Indefensible, I agree that arguments from authority or special knowledge aren't persuasive. But neither is your attempt to discredit Polaris by association with computer gaming.

After reading the New York Times' article, I went to volokh.com for an honest, reliable interpretation of the legal issues involved. Prof. Kerr's postings framed the legal issues for me and were immensely helpful (the comments sections somewhat less so, but still fascinating). In reading FISA, some of the cited precedents, and parts of the DMCA, I could not reconcile the language used there, the technical aspects of monitoring and interception, and the legal interpretation offered by Prof. Kerr, Judge Posner, Judge/AG Gonzalez, et al.

Technical forums have been of little use since most of the "legal argumentation" is from conclusion (clearly legal/illegal) backed by authority.

I found the comments section at Volokh immensely useful because it brings together folks who can ring the right technical bells (yet are reading legal blogs?!?) with those who know enough about the law to know what "in the US" means.

Polaris and Charlie (Colorado) post with enough technical detail to establish some credibility and move the discussion to reconciling the NSA's known operations, the NSA program as described by the NYT, FISA, and Attorney General Gonzales' public argument, away from the far less interesting "how soon can we impeach President Bush?", "is HilterBush more of an authoritarian or totalitarian?", "are web cookies and image bugs covered by FISA?", "who doesn't think everything they think is recorded by the NSA", and so forth found elsewhere.

What might be really useful is to have the whole thing blogged-out in a volokh.com mock-trial.
1.2.2006 3:33am
subpatre (mail):
Thanks to Orin for recognizing that there are other viewpoints; and that narratives can be shaded to draw us into preconceptions without actually telling us what happened.

It's a shame the first couple comments are tired, partisan invective and personal attacks.
1.2.2006 3:39am
Defending the Indefensible:
Diversity Hire:

Defending the Indefensible, I agree that arguments from authority or special knowledge aren't persuasive. But neither is your attempt to discredit Polaris by association with computer gaming.

I didn't associate Polaris with computer gaming, it was someone else who did that. I only pointed out that his assertion of being NSA was not credible, that if it were he wouldn't be talking about it, and as you yourself agree, arguments from special knowledge aren't persuasive.

What might be really useful is to have the whole thing blogged-out in a volokh.com mock-trial.

We'd have to identify the sockpuppets first, I suppose.
1.2.2006 3:39am
Polaris (mail):
Diversity and DfI,

My NSA background is very relevant to the discussion. The reason why should be obvious, but I will say that it brings a *practical* side (along with Charlie Colorado) that I think is overlooked by the legal mandarins (no offense guys).

It's unfortunate that my NDA gets in the way and I have to say, "the reason is classified" but that's the way it is. I understand that it sometimes appears like an argument from authority. Rather it should be taken as an argument from practical experience from someone that had to deal with FISA and the NSA regs on a daily basis.

FISA simply doesn't say what most Americans think it does and it doesn't protect what most would assume. I understand that is upsetting to some, but there it is.

-Polaris
1.2.2006 4:01am
Diversity Hire (mail):
Defending the Indefensible:I didn't associate Polaris with computer gaming, it was someone else who did that. I only pointed out that his assertion of being NSA was not credible, that if it were he wouldn't be talking about it, and as you yourself agree, arguments from special knowledge aren't persuasive.

Yeah, you're right. Sorry. I took your link to Polaris' posts as support of Justin's "he's just a gamer" claim. I think you're right about people with clearance generally shying from acknowledging that clearance, much less talking about the underlying knowledge. Polaris addressed this somewhat by arguing that he's offended and that he's careful.

It would be more satisfying if the systems architects in charge of the NSA's operation got together with an attorney and briefed us all as to how their system is integrated into global communications infrastructure, when it reads whole packets vs. just headers, if and how the contents are decrypted, if and how voice data is transcribed/translated/stored, at which point human beings are exposed to detected/monitored/captured data and meta-data, and so forth.
1.2.2006 4:07am
Defending the Indefensible:
Ian:

What purpose do your repeated recitations of secret understanding serve? Who do you hope to convince that the warrantless espionage activity was legal? What interest is served by your claim of being formerly NSA?
1.2.2006 4:10am
minnie:
Defending the Indefensible and Wintermute:

Don't feed the monkey. If we starve him and his hydra like appurtances (Charlie, Diversity Hire, etc.), they'll need to go look for banannas somewhere else. Hopefully :)
1.2.2006 5:50am
enthymeme (mail) (www):
I suggest to read the whole thread, make up your own mind.

One thing you'll notice is that those eager to impugn 'Polaris's credibility throw everything and the kitchen sink at him in the hope that something sticks: first he's a paintball player (disproven), then he's a teenager (how could he be, if he had a utexas address five years ago?), and then he's a computer gaming fantasist (unproven).

Desperate stuff.

'minnie' is not very credible herself. She doesn't even appear to have read the thread (if she did she would have known that 'Polaris' is at least in his twenties, and not the teenager that she claims he "obviously" is).
1.2.2006 6:46am
Diversity Hire:
Please, I need my "banannas [sic]". Professor Kerr's statement ("the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don't yet know.") is peanut butter that demands bananas.

Perhaps there are loopholes in FISA that make the NSA surveillance program technically legal? Do they depend on the location or nature of the "tap" or "intercept"? Do they depend on what parts of the communication are extracted? How do I apply the definitions in §3127, §2510, and §1801 to devices that when used as intended always function as "intercepts", "pen registers", and "trap and trace devices" (and seem to me legally required to do so under title 47)?

Perhaps the NSA surveillance program is an extension to or technical improvement of the UKUSA anglosphere listening program? Is that program legal under FISA? Is it outside FISA?

I don't know the answer to these questions, but the Volokh conspiracy—because of posts from people ranging from Polaris to Defending the Indefensible—seems like as good a place as any to sort them out.
1.2.2006 6:50am
Kajagoogoo:
That was an interesting thread, Orin.

And it falls nicely within my theory that no post or comment using the "al Queada" spelling of AQ has ever made sense.
1.2.2006 8:29am
Frank Drackmann (mail):
Maybe Polaris can take us under The Cone of Silence for the really good stuff.
1.2.2006 8:58am
John Lederer (mail):
I have found the discussion very interesting and helpful. It made the penny drop for me.

I think that many of us with a legal background fail to appreciate the degree to which FISA is an operative fact determined law, and any conclusion about legality or illegality under FISA is without understanding in detail the operative facts is just vapor based, consciously or unconsciously on predilection. We are assuming facts to reach the conclusion we think "right".

Unfortunately, because this is a very poltical issue, and quite an important one, the willingness of many attorneys to issue legal conclusions without knowing the facts is likely to mislead the public, the politicians, and the decision making process when it matters.

My thanks to Polaris and others for hammering this home to me. Interestingly, for that purpose, it really doesn't matter what Polaris' background is.
1.2.2006 8:58am
Medis:
I also agree that it really doesn't matter what Polaris's actual background might be (actual former NSA employee or just someone reading public information about the NSA from that time period). In any case, his argument depends on the premise that the President's Executive Orders did not in fact change any substantive policies or procedures at the NSA, and thus that the Administration must be lying when it claims that it did. Since I see no reason to accept the premise, I don't see any reason to accept the conclusion.

John L.,

But the DOJ, including Gonzales, has outlined the Administration's legal arguments. And an important, and consistent, aspect of their legal arguments is that FISA would have required warrants for some of this surveillance if not for the 2001 AUMF. So I really don't see why that remains an issue--as far as I can tell, it is only speculation by outsiders--those who have no actual knowledge of the program--that is keeping this issue alive.
1.2.2006 10:00am
John Lederer (mail):
Medis.

Reread the AG's letter. He explains the AUMF as a reason why the program is consistent with FISA. He does not say it is the only reason. Moreover, he has refused to reveal the original memos justifying the program because they contain secret information.

If you think about it, I think you will see that fact centered arguments about legality would both reveal too much and make the program vulnerable to defensive action.
1.2.2006 10:27am
David Sucher (mail) (www):
"Polaris and Charlie (Colorado) post with enough technical detail to establish some credibility..."

I see it just the opposite way and I see the danger in people beeing "snowed" by what might be just glib technical talk i.e. if you don't have the technical knowledge onself, how can you judge that someone else has?

What limited the credibility of Polaris and Charlie Colorado for me was their anonymity, (though I guess Polaris is not all that hidden so I don't know why the point of a "handle.") I immediately distrust sources whom are not willing to come forward publicly. (That's a whole different issue, btw, than a known, named reporter using anonymous sources. Such is not desirable but at least there is some real person involved.)

I might find Polaris and Charlie far more credible if they didn't hide their identity and could provide us with something of their bona fides. If they truly had "Top Secret" clearance, they should be able to tell us generally how they got it, though of course I would respect their pledge to keep specifics confidential.

Let's not assume credibility because someone might have read a bunch of Tom Clancy novels.
1.2.2006 10:27am
Medis:
John L.,

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 -- 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."

That is not just refusing to answer what FISA requires with respect to this program--it is a positive statement that FISA would have required warrants if not for the 2001 AUMF.

In any event, I'm not saying the Administration would have to claim FISA did not require warrants, and then back up that claim with all necessary FACTUAL details of the program. Indeed, as you note, they have been making several general claims but refusing to supply the underlying factual details.

Rather, I'm just saying that since they have never even made that LEGAL claim, and in fact have stated the exact opposite (as I note above), I just don't see this being a live issue.
1.2.2006 10:40am
Anderson (mail) (www):
Medis, we may also have to consider whether very much weight can be attached to AG's words, simply because he may not understand FISA and its loopholes very well himself. The man is not a great legal mind, to put it mildly.

I can well imagine that this administration would simply either find FISA too tedious to bother with, or actually choose to ignore FISA based on some David Addington brainstorm about executive prerogative.
1.2.2006 10:47am
Wikstrom (mail):
...well, the American legal-orthodoxy is quite interesting in its contortions here; Kepler & Copernicus must have shared the same wonder as they viewed the Ptolemaic orthodoxy.

- Do we now have an objective American rule of law system that can be applied to the legality of government-agent intercept of private American communications ? (no, IMHO)

- Even professional lawyers can only offer hestitant 'opinions' as to the law & legality... and there is nothing even near consensus on the simple issues of that law, much less the facts of the case.

- It's very improbable the issue would ever reach an objective court for ajudication... and even in that event, the judicial remedies available would be insignificant.

- As a practical matter, this NSA issue distills down to simple power-politics. The President is quite powerful and will prevail, as the legal issues flutter about as academic triva — he's quite right to take such a strong 'political' stand against the American
'legal' orthodoxy... because it's much too confused to restrain or act against him.
1.2.2006 10:47am
Medis:
John L.,

I also just went back and reread the Moschella Letter. I think it is actually perfectly clear that the argument in the letter is premised on the proposition that this program contained electronic surveillance within the meaning of FISA.

The relevant text begins with the sentence, "The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ('FISA')." I note as an aside that if Moschella did not actually mean to use the phrase "electronic surveillance" within the meaning of FISA in this sentence, he has probably committed malpractice, because "electronic surveillance" is an important term of art in FISA.

Of course, this is a fact of which Moschella is well aware, because the remainder of that paragraph explains the requirements of 50 USC 1809 and 18 USC 2511 with respect to electronic surveillance as defined in FISA. So, it is actually impossible for me to believe that Moschella described the President as authorizing electronic surveillance without understanding exactly what that means in the context of FISA.

And that is in fact how the rest of the argument works. The letter's key claim in this section is, "The AUMF satisfies [FISA] section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hamdi concluded that it satisfies the requirement in 18 U.S.C. 4001(a) that no U.S. citizen be detained by the United States 'except pursuant to an Act of Congress.'" So again, this argument is clearly premised on the proposition that the President did in fact order "electronic surveillance" within the meaning of FISA, but that the 2001 AUMF provided statutory authorization for such orders, and thus FISA was satisfied.

And I don't see the slightest hint here that Moschella is arguing in the alternative. There are no "even ifs" or "assuming thats". Moschella is just flat out stating that the President authorized electronic surveillance, but arguing that the 2001 AUMF authorized him to do so without following the FISA procedures. And seriously, I just don't understand why outsiders with no apparent knowledge of the program continue to speculate about how the program need not have involved electronic surveillance within the meaning of FISA, when the Administration itself keeps saying that the President actually did authorize such surveillance.
1.2.2006 11:03am
Polaris (mail):
David Sucher,

Neither Charlie Colorado or I did hide our identities. We didn't advertise them for public consumption, but that's different. What's more Charlie linked his public ID with academic papers relevant to the topic. Unfortunately my association with NSA while more mundane in some ways was also more sensitive merely because of the access I had to multiple systems (and the nature of my position vice Charlie's).

-Polaris
1.2.2006 11:18am
George Gregg (mail):
I believe it would be best if folks stop being so dogmatic about whether Polaris' identity claims. I, for one, am willing to take his claim to being former NSA at face value, though with a significant degree of tentativeness, of course. Being tentative in accepting something (i.e., showing a healthy skepicism) is quite different from being dogmatically incredulous.

As I've stated in other threads, Polaris has made some good, relevant points regarding FISA. And he does have what appears to be a degree of familiarity with the technology involved. And I appreciate asking him questions and hearing his thought-provoking responses.

Yes, it is passing strange that he would be so vocal and open about his role at NSA. When I had a lower security clearance than Polaris claims to have had, I was extremely unwilling to skirt the "razor's edge" as he has on his NDA. But perhaps he is, indeed, genuinely compelled to refute certain views such that he feels he must push the envelope on his NDA.

Without being dogmatic about accepting or denying Polaris' identity, we can still gain from him some insight into NSA wiretaps (what he's shared with us already).

When he was ostensibly with the NSA, it is quite possible that he was not completely aware of absolutely everything that was going on in the agency. So that's a factor to consider. Inasmuch as he is no longer with the NSA, and I gues has not been for some time, he probably cannot state with certainty exactly what the NSA wiretap program(s) involve(s) currently. So that's a factor to consider, too.

It seems reasonable to weigh and consider what he has to say, consider that he might indeed have insider information (though it is perhaps incomplete), and place that into the context of the overall argument, safeguarding a healthy skepticism of who anyone claims to be on the Internet absent firm corroboration.
1.2.2006 11:25am
Diversity Hire:
David Sucher, Charlie is hardly anonymous.


I see it just the opposite way and I see the danger in people beeing "snowed" by what might be just glib technical talk i.e. if you don't have the technical knowledge onself, how can you judge that someone else has?


That's what I'm stuck with as far as legal interpretation and government secrecy protocols go, it's hard for me to judge since I'm not a lawyer or a spook. I know that, given access to a switch, "tapping" a digital communications channel is trivial and commonplace; installing a "pen register" is a no-op since the switch is, effectively, a "pen register" for the packets that go through it. Under what circumstances it's legal for the federal government to use the built-in "tapping" and "pen register" capabilities of satellite or submarine-cable switches without a warrant is beyond me. I'm curious how ECHELON/UKUSA can/could proceed if it (and programs like it) are illegal under FISA.

Prof. Kerr suggested that the switches/routers were on US soil, as though, if they were not this would change the the legal status of warrantless access to the data flowing through them. I would guess that the "taps" are present at satellite downlinks and submarine-cable landings on foreign soil. I would guess that collecting all international voice and data traffic is too time and space consumptive and not all that useful. I would guess that the NSA tracks all network traffic by source and destination address; filters on addresses; decodes headers sufficiently to identify interesting or useful payloads; further analyzes those payloads where possible/appropriate; stores some of that data; stores and decrypts encrypted messages where possible; aggregates the analyses; and gets a human involved at some point...

Judge Posner said there's no 4th amendment problem if there's not a sentient being involved, which is what piqued my interest; if the human's not involved until after your sniffer's established probable cause (in it's non-mind), did an unreasonable search take place?
1.2.2006 11:26am
Marcus1:
For my two cents, I think Polaris and Charlie confirm Prof. Kerr's original caveat that the legality of the program could depend on technical details that we don't know.

Of course, we can't simply accept his factual assertions, and we certainly can't accept his legal conclusions, but it seems he's at least got some interesting hypotheticals.
1.2.2006 12:43pm
Frank Drackmann (mail):
Polaris, please use the Cone of Silence or your Shoe Phone. You never know who is listening. Loose lips make buildings fall down and all that rot.
1.2.2006 12:59pm
Bull:
All,
Perhaps there is another solution to the problem that Polaris leaves purposely vague. Since he/she was in the Air Force, but serving with the NSA, perhaps there are other positions with similar characteristics. For example, look at the job description for AFSC 1A8X1: Airborne Cryptologic Linguist.

here

It would appear that this position would involve monitoring communications while aboard an aircraft. It would not be a satellite, nor would it be ground based. But notice on page 2 of the job desciption that the job has locations in Nebraska and Arizona. I can't follow much of the legal analysis presented here, but what would be the legal implications of such a scheme to monitor domestic and international communications?

Sorry If this is a very obvious or easily dismissed question. I am not a lawyer, nor am I intelligence material. I am a mere economist-in-training.

Thanks.

Bull
1.2.2006 12:59pm
Polaris (mail):
Bull,

Offut AFB is located in Nebraska, but I can assure you that the bombers stationed there spend most of their time outside of US Airspace (at least when on missions). The physical location means next to nothing.

-Polaris
1.2.2006 1:04pm
Medis:
Incidentally, I also think it is useful to consider all the things the NSA could do to bypass FISA, for at least two reasons. One is that if we are considering reworking FISA, we might actually want to regulate some of these loopholes a little bit better (not necessarily close them entirely, but provide for better oversight). The other is that it helps us narrow down what this program might be like, since it apparently is not exploiting one of these loopholes.

Personally, I think the most obvious conclusion is that the Administration is likely targeting the international communications of known, particular US persons without getting a warrant first or retroactively, in any way they deem expedient. That would explain why FISA clearly applies (and thus why they have consistently said so).
1.2.2006 1:19pm
Bull:
Polaris,
Sure. But I thought one of the main points of argument was how the intelligence was collected. I don't think an RC-135 is a bomber, is it? You were purposely vague about the method of intelligence collection, cited your NDA, and then said something about it (the method) being above the US. I was merely offering an alternative hypothesis, and asked about the legal ramifications IF that were true. Since (I am assuming) nobody here knows all the facts, I just thought it would be a nice academic exercise. No harm there, right?

Bull
1.2.2006 1:19pm
Polaris (mail):
Bull,

I have to be very careful so I hope you understand. However, it is my understanding that if the aircraft was outside of US Airspace, then 1801(f)(2) does not apply. That all I can really say.

-Polaris
1.2.2006 1:45pm
Polaris (mail):
Bull,

Oh...one more thing (and this I can talk about openly because it is open USAF practice). It is very often the case, especially with flying slots, that your permanant station has little to do with where you do most of your work. Flying jobs do a lot of what is called "TDY" (short for temporary duty) so a person that is techically stationed in AZ may spend almost no time there.

This is true for most flying positions really, classified or not.

-Polaris
1.2.2006 1:47pm
John Lederer (mail):
Medis,

I think your summation of the AG's defense as assuming that FISA applies is probably more correct than mine.

Assume a double dark secret program. Say that we have taps on submarine cables at sea placed there by divers operating at 6000' that could easily be shut down (Post Glomar Explorer I am willing to beleive any technological feat), or suppose we have surreptitous taps at foreign cable landing stations that could easily be shut down by the host government if they knew of their existence. What would you, were you AG, say?

Don't forget that ths program was described as being at the very top of US secrets. That implies a technological legerdemain, or something of value that is very vulnerable if known. I don't think a simple extension of "we used to just do foreign calls to US persons, now we also do foreign calls from US persons" by Executive Order rings right for the level of secrecy.

One other possible explanation is that the FISC court was compromised. If one'e enemy thought that one knew all the taps in operation, it would be very valuble to be using taps not on the FISA list.
1.2.2006 2:16pm
Bull:
Thanks Polaris.

I would be interested in the opinion of some of the legal folks here on these airborne intercepts. What relationship would they have to FISA and the AUMF? Would they require a warrant? Even if listening from outside US airspace?

Again, I apologize if these concepts have been discussed or are very simple. Some of these comment threads are very difficult to wade through.

Bull
1.2.2006 2:31pm
Frank Drackmann (mail):
I spent a few of my grade school years in Offut AFB base housing(Capehart sxn). The only bombers there were in the SAC museum. I admit various jets did come through including Air Force 1 and an RAF Vulcan. I think Polaris has spent too much time with Goose and Maverick.
1.2.2006 2:55pm
Polaris (mail):
Frank,

Or I might have been using a deliberate mis-example. It is a fact (look it up on the USAF site, it's publically available UNCLAS info) that USAF Personel in flight status often spend very little time at their permanent stations AND that their missions often take them thousands of miles away from same station.

-Polaris
1.2.2006 3:19pm
Justin (mail):
Or I might have been using a deliberate mis-example.


BWAHAHAHAHAHHAHHAHAHHAA
1.2.2006 3:22pm
Frank Drackmann (mail):
Polaris, I know, I saw "Top Gun"
1.2.2006 3:33pm
Anderson (mail) (www):
Or I might have been using a deliberate mis-example.

Or Polaris might even be an "enemy power" under FISA, in which case the feds are monitoring this blog right now. Viva Bush!
1.2.2006 3:33pm
Defending the Indefensible:
Polaris:

Or I might have been using a deliberate mis-example.

So you admit you cannot be trusted. Thank you.
1.2.2006 4:03pm
Medis:
John L.,

I'm not sure I understand your first hypo--why would I say anything about the technical details of those programs, no matter what I was saying about the legality of the program? Or are you saying a simple statement about whether or not we complied with FISA would let someone suss out those details? And what does getting warrants, or not, have to do with any of those technical details? Frankly, I just don't get this line of reasoning--as they are doing now, they can discuss the legality of the program without any discussion of the technical details.

But I think your FISC compromise scenario is a little more realistic, in that I can see why I as AG might lie about our legal reasoning in such a case. However, we have no reason to believe that the FISC has been compromised, so that seems like a purely hypothetical possibility at this point.

In general, I'm not saying AG wouldn't lie under any possible circumstance. But that mere possibility doesn't really help the legal argument (indeed, if he is lying, then all bets on the boundaries of this program are off). And in any event, we have a simpler explanation for why he would say this--that it is the truth, and that since it is a truth that they can no longer keep secret, they might as well admit it.
1.2.2006 4:04pm
Polaris (mail):
Frank,

Is what I said about the USAF flight status personel wrong?

[It's not]

In that case, I suggest you might want to watch the adhominems. That applies to a couple of others as well.

-Polaris
1.2.2006 4:13pm
Polaris (mail):
Medis,

In the prior thread I gave at least an equally plausible reason why the AG might dissemble (or more accurately Charlie and I did). If the program is of the nature that Charlie mentioned, then hiding the fact that the AUMF was not needed for the program's legality is in our national security interest.

That's at least as reasonable as your explaination.

-Polaris
1.2.2006 4:15pm
Frank Drackmann (mail):
No, what you said about USAF flight status was correct, just a little, DUH, common knowledge. Most of the thousands of Marines in Iraq are from Camp Lejeune or Camp Pendleton, Soldiers from their various home bases etc. You remind me of the kid at school who used to brag that his dad was a secret agent when he was really a clerk at NCIS typing up reports about guys cheating on their TAD expense reports.
1.2.2006 5:00pm
George Gregg (mail):
Or I might have been using a deliberate mis-example.


AKA deliberate disinformation...?
1.2.2006 6:38pm
Tom Holsinger (mail):
enthymeme,

Tell me more more Polaris being a "computer gaming fantasist". AFAIK, they might have him confused with me. Besides being a California attorney, I have game credits as recently as Master of Orion III (computer space strategy game), and in games as diverse as Advanced Dungeons &Dragons (1st edition), Highway to the Reich (2nd edition), Swords &Sorcery (SPI), 1914, etc., over the past 37 years.

I certainly used my D&D credentials to put down someone who contended John Yoo was demonic, as I know for a fact Mr. Yoo did not appear on the approved list of D&D demons.

OTOH, I also referred people to James Bamford's books about the National Security Agency in the NSA surveillance thread as Mr. Bamford explains in those how its foreign surveillance is not at all affected by FISA. No one showed any interest in those, which Polaris and I took to mean that many posters didn't want their preconceptions injured by the facts and law.

Worse, I was familiar with the public debate over FISA at the time it was enacted, and the explanations of how it would not interfere with the NSA's foreign surveillance. My father was the then administrative assistant of somone on on of the congressional Intelligence Committees at that time, and I was in private practice.

Such details are dreadfully inconvenient for people who really, really, treasure their partisan fantasies.

I suggest you say the word "Bamford" at them if you want to see a "vampire to garlic" reaction. "Unclean, unclean, unclean!"

Suggesting that they read something which contradicts their fantasies invokes a gloriously funny defensive reaction.

All puns are intentional.
1.2.2006 7:09pm
Medis:
Tom,

Actually, I also recommend Bamford, including his 1999 article for the Washington Post called "Loud and Clear". In that article he suggests that the NSA had been staying within its post-FISA limits, but he worried about that changing in the future.

Polaris,

One problem is that your argument for why Gonzales might lie starts with the premise that your (or Charlie's)speculation about the program is correct. But you have given us no real reason to assume that your speculation is correct.

Moreover, even in that case your argument makes no sense. What you have been describing is in fact already public knowledge, via Bamford and others. So if that is all the program entailed, then Gonzales' "cover story" would be pretty pointless.
1.2.2006 7:40pm
jrose:
Bull,

If intercepts are made over the air then FISA applies if:

1) a U.S. Person in the U.S. is intentionally targeted and they do not have a reasonable expectation of privacy (a concept that is a matter of controversy) or 2) both sides of the communication are in the U.S and they do not have a reasonable expectation of privacy. The location of the intercept makes no difference.

The intercept location makes a difference if it is taken off a wire or cable. In that case, no expectation of privacy is required, but the intercept must be in the U.S. for FISA to apply.
1.2.2006 7:44pm
Michael B (mail):
"BWAHAHAHAHAHHAHHAHAHHAA" Justin

The ad hominem snipes and slights continue to flow, virtually from a single direction only and not inoften in lieu of any argument whatsoever. Impressive stuff. And yet, people fail to be impressed with all this ad hominem vapidity. Harrumph!
1.2.2006 7:46pm
John Lederer (mail):
Medis,

In my made up example, an official explanation that the intercepts are legal because not done in the US would allow someone to figure out,what is going on or at least very substantially narrow the field. There are very limited ways to intercept a submarine cable outside the US. Were I a foreign government for instance, I would immediately have guys out to my landing station and the backhaul with flashlights and the plans.


As to FISC being compromised, there is one anomaly. Judge Robertson's resignation doesn't seem right to me. If he resigned in protest, wouldn't he say so? He didn't. His friends implied it. On the other hand it might be the way something like "I left the file in the cab by mistake" might be handled. I stress that is purest supposition on the thinnest of foundations-- but I also think the resignation just doesn't quite seem right.
1.2.2006 7:58pm
Justin (mail):
An ad hominen attack, Michael, would be saying that you are too dumb to realize what the words ad hominen even mean.

Pointing out, however disparagingly, that Polaris's comment does not pass straight face test is not an ad hominen attack. Pointing out equally that Minnie's argument that charity has no value to the recepient of the charity, only to the donor (and thus Jesus and Adam Smith were best of friends) is a selfish position in what was a debate about ethics and morality is ALSO not an ad hominen attack. Now Polaris has put his own credibility on the line in lieu of arguments at times, putting ad hominen attacks on such credibility "in play", but that's neither here nor there.

BTW, your attack on me, however incorrect, was that ad hominen? Because it didn't seem to be addressed to my positions.
1.2.2006 8:49pm
Medis:
John L.,

Why am I explaining even that much (that some particular surveillance is legal because it was done outside the United States)? Why am I not just saying what we were saying before, which is basically, "When we do surveillance inside the scope of FISA, we get a warrant as required by FISA"? That is what is so puzzling to me about this entire line of reasoning--it is already well known that we sometimes do surveillance outside the scope of FISA, so we aren't exactly tricking anyone into thinking all our surveillance falls within the scope of FISA simply by stating that we are now doing surveillance within the scope of FISA without getting warrants.

By the way, I think suggesting that Judge Robertson may have leaked classified information without a better foundation than his resignation is pretty irresponsible.
1.2.2006 9:34pm
Michael B (mail):
Combine some comprehension skills (a dictionary would be a first step) with those reading skills of yours Justin, then toss in some self-critical skills as well. I understand fully what was indicated, but if you wish to communicate on this level or if you do need a further, detailed explanation of what you're complaining about, I've left an email address but am not continuing this tedium herein. (One hint, re, your comprehension problem, the phrase "ad hominem slight" is somewhat different, is at least more specific, than "ad hominem attack". I chose my words carefully, both herein and in the other thread as well.) Admittedly I've read no more than a couple dozen of your posts at the very most, but have not read a single one which fails to rely on at least an ad hominem inference or slight.
1.2.2006 9:53pm
Justin (mail):
By your stretched logic, Michael, any time someone states a disagreement with another person, it is a reflection on that person, and thus is an "ad hominem slight" (the third word rendering the first two redundant). Since I actually didn't assume you an idiot, and was just constructing that example as a hypothetical of what an ad hominen attack actually is, I assumed you meant something useful. Apparently you did not.

Yes, to the degree that

a) I think Polaris's defense of his comment that he was intentionally making a mistake in order to prove a point that he does not feel like making is absurd, and not worthy of a serious response

and

b) that I find, in a debate about religious ethics, the concept that redistributive policies are bad because there is no benefit to the portion of charity that actually HELPS the poor is a selfish way of viewing the theology of redistribtutive charitiy

are "ad hominen slights" (as circularly self defined by you), then I am guilty as charged . . . I just don't care. I don't know why you seem to think I'm going to care enough to deal with this in private (I'm fully able to evaluate my own morality and intellect - as are my superiors and my colleagues who actually know me), so I hope you're not breathlessly waiting an email.

And if you take this as an "ad hominen slight" on yourself - well, good.
1.2.2006 10:42pm
Michael B (mail):
Justin, no, not in the least, there's no circularity whatsoever (again, comprehension and the ability to self-critique). A solitary example: your presumptive, reductionist view of the other person's ethical considerations was precisely that - reductionist and conveniently so from - your pov. You presume much, and think little of doing so. Bye.
1.2.2006 11:17pm
Wince and Nod (mail) (www):
Justin, Frank Drackmann, minnie, Defending the Indefensible and Wintermute:

If you can't stop breaking the forum rules then please be silent. I am disgusted by your collective behavior, Justin's in particular.

Yours,
Wince
1.2.2006 11:35pm
Polaris (mail):
Everyone,

Let me explain something hopefully only once. I was asked about a specific sort of (highly classified) AFSC. While I never had flight status in the USAF, I was somewhat familiar with what he was talking about, i.e. airborne intelligence gathering.

The problem is that any specifics regarding airborne intelligence gathering are so classified...even with my care...that I am scared to still think about them much less talk about them. I said what I could and then put a clumsy bit of misdirection.

I should not have done the latter, but the substanative practical information regarding airborne intelligence was accurate as much as I was able to make it. Airborne intelligence exists, and it does bypass FISA as long as the aircraft is outside the US AND the communication intercepted is an international one as defined by USSID 18.

-Polaris
1.2.2006 11:48pm
Polaris (mail):
Everyone,

I will not say that Judge Robertson violated his clearence in any way. That would be irresponsible. However, I do think that his behavior since this story blew up is suspicious and it wouldn't suprise me in the least if his actions were part of the DOJ investigation.

-Poalris
1.2.2006 11:51pm
Medis:
Polaris,

I don't think suggesting Judge Robertson is under investigation without any actual reason to believe so is much more responsible.
1.3.2006 12:11am
Polaris (mail):
Medis,

I didn't suggest that he was. I advanced speculation that he should be given his actions. Last I checked, speculation was not irresponsible.

-Polaris
1.3.2006 12:28am
Polaris (mail):
Medis,

Allow me to modify...last I checked, reasonable and informed speculation was not irresponsible as long as it is clearly labled as such (i.e. speculation) and no actual accusations of guilt are made (which I bent over backwards to avoid).

Don't you find Judge Robert's actions just a bit passing strange? He did not resign in protest, MSM speculation to the contrary which is what raised my eyebrows.

-Polaris
1.3.2006 12:31am
Medis:
Polaris,

I stand by my comment. A federal judge who served on the FISC being under investigation by the DOJ would be a very serious matter. So, suggesting as much, even if your suggestion falls short of an accusation of guilt, without more than such "speculation" is irresponsible.
1.3.2006 12:42am
Polaris (mail):
Medis,

Last I checked this was a free country and while this blog is private property, I am not violating any of the rules here either. I am advancing a speculative thought that I would not be suprised if Judge Robertson might not become involved in the DOJ investigation given that his actions seem odd.

It might seem strange to you, but *odd* behavior tends to insure that you get at least several visits from investigators.

Again, what's irresponsible about what I have said? I have said absolutely nothing partisan....just applied common sense (which isn't common).

-Polaris
1.3.2006 12:49am
Mary Katherine Day-Petrano (mail):
Polaris, disabled people are *odd," too. And their ADA civil rights suits are unpopular, Presidentially speaking. Does that justify the reckless tie up of a Vessel surveillance platform and "tends to insure that you get at least several visits from investigators?"

Tom Holsinger, no one showed interest? I took the info to heart.
1.3.2006 2:03am
Polaris (mail):
Mary,

That is disengenous and you know it. Whenever you investigate a crime, you look for people that might be close to the crime/investigation. If they behave in ways that are inconsistant or in a way that doesn't seem to make sense, then you need to find out why.

You know (or you should know) perfectly well that I used "odd" in this context.

-Polaris
1.3.2006 2:38am
John Lederer (mail):
Medis,
Re Robertson, I thought for a while before posting that. The resignation bothered me at the time, and I anticipated we would hear more.

Judge Robertson does not have a reputation as a shrinking violet. Instead we have flat silence from the judge, and no follow up by the supposed "associates" who claim it was in protest. We just have silence.

I am old school, and regard resigning as the proper way to handle a policy disagreement of ethical dimensions. But a part of that is that one does not allow a resignation for other reasons to be read as a non-existent policy disagreement. There are, as in so many things, customs that pass the signals.

Right now we have a resignation from public office at a difficult time for the institution, with a refusal to allow anyone to see the resignation letter, without the customary "It is with regret and appreciation for his service that I accept the resignation of..." , and without any of the customary signals "..for personal reasons.." from the resignee, and with others claiming that the resignation was in protest.
1.3.2006 9:58am
Medis:
John L.,

I'm not saying I know what happened with Judge Robertson or why he resigned from the FISC. I just think it is irresponsible to suggest that he leaked information or is under investigation until we have some evidence to support such suggestions (and odd behavior is not evidence of bad behavior).

And Polaris, I am not trying to use the law or the rules of this forum to deprive you of the right to speak freely. Nor, for that matter, am I against all speculation. But I am in fact trying to persuade you to be more responsible about your speculation in this particular instance, because speculation of this particular kind (speculating that a federal judge might be under investigation by the DOJ) is potentially harmful in a number of ways.
1.3.2006 11:00am
Tom Holsinger (mail):
Medis,

The speculation about Judge Robertson's resignation seem to have first surfaced at A.J. Strata's blog. He has paid a fair amount of attention to the issue.
1.3.2006 2:02pm
Medis:
Tom,

And having now read those posts, I don't see any foundation for Strata's speculation either.
1.3.2006 2:13pm
Tom Holsinger (mail):
Medis,

It is fun watching you complain about unfounded speculation given the denunciations of the NSA's foreign surveillance in these related threads, not to mention the New York Times stories themselves.

"I'm shocked, shocked to find that gambling is going on in here!" - Captain Renault.
1.3.2006 2:35pm
Medis:
Tom,

Of course, "unfounded" is an important qualifier. For example, the President, Gonzales, and others speaking for the Administration have described the program, and those descriptions provide a foundation for our discussions.
1.3.2006 3:35pm
Polaris (mail):
Medis,

The problem is the details of the program remained highly classified. That means relying on public statements to make inferences into classified details is problematic at best....which is what I have been trying to hammer home time and again. Govt Officials can, do, and have dissembled in such public statements under such conditions.

-Polaris
1.3.2006 3:42pm
Tom Holsinger (mail):
From National Review's Corner blog:

"WELL SAID [ Rich Lowry ]
Krauthammer on Fox News Sunday on all the "scandals" involving the War on Terror:
There's a great irony here. Everybody has been asking of themselves for the last four years why haven't we had a second attack, which everybody expected within weeks or months, certainly years. It didn't happen.

And we knew about the external story. The war in Afghanistan obviously had an effect on Al Qaida. The war in Iraq has diverted terrorists and jihadists into Iraq as opposed to attacking America.

But what we've heard over the last six months with these revelations, these so-called scandals, of the secret prisons where high-level Al Qaida have been held, the coercive interrogation which is under attack in the McCain amendment, and now the NSA eavesdropping -- we have the untold story which the administration could not tell. It knew why we had been protected.

All these defensive measures of gathering intelligence -- we were always weak on human intelligence, and that's why we had 9/11. And we don't have good spies inside Al Qaida. But we had a means, technological, in the NSA eavesdropping, and also other means in capturing these terrorists, of getting information.

It's worked. It's held us safe. And that's why I think in the end the president's going to win the whole argument on presidential power."

Posted at 02:16 PM"
1.3.2006 4:44pm
AJStrata (mail) (www):
Tom Holsinger beat me to the punch on the Lowry article. But I have something to say in defense of Polaris. He is obviously what he says he is, someone detailed at NSA while in the AF. The fact is he has to be careful what he says (which is a lot more than can be said by the partisans who leak to the media all the time). The fact Polaris is trying to engage in the debate and share is insights and NOT expose classified details is a good thing. It shows a desire to engage the discussion and protect secrets he swore to protect. Ankle biting him does nothing but demean the ankle biters.

Everyone is missing the point to what is going on here. Fact, NSA Intel gathering is legal. Especially on our enemies because some intel gathering is just broad sweeps to detect something, not even targetted to specific groups. So intel gathering directed at our enemies specifically is legal and warranted. This is even more so when we are at war.

While some may get confused regarding the AUMF by Congress, no one should be confused by the two declarations of war by Al Qaeda in the late 1990's.

So let's all just stipulate we can monitor our enemies communications (since many, including Lowry, have pointed out we can kill them so what is to say we cannot eavesdrop on them).

Next fact, intel can lead to enemies in our country. Fact of life. If we are doing our job right, and Al Qaeda is infiltrating our country to attack us, intel will lead to those enemies on our shore. God I at least hope so.

Next fact, the problem the FISA process had was not warrants to authorize the NSA to do what it does. The FISA has no such power - check your constitutions. Congress authorizes and funds things like the NSA, the executive branch implements. FISA can no more authorize NSA than Congress can select judges.

So what was the big deal? Well judges like Lamberth and Robertson were ideologues of a kind. They felt the FISA process was 'tainted' by intelligence data.

Here is the problem that is at the core of this mess. How do we use leads discovered with intel (e.g., NSA, CIA, DIA, special ops, etc) to begin monitoring suspected terrorists in the US?

Some prudish FISA judges were making the claim that NSA intel could not be used to form probable cause! That is what the revolt was about and why FISA was circumvented AGAIN (the first time was in 1999-2000 after Lamberth had his little temper tantrum about filings and the FBI avoided the FISC).

This what this is all about. Can we use intel to form the basis for warrants (FISA or otherwise)?

Of course we can. And we can develop guidelines as to how to sunset warrants, etc, if they do not lead to further indications of probable cause after some reasonable period (6 months). And we can use FISA to translate intel into the monitoring of US personel, which can then go to a normal warrant process for criminal investigation.

But be clear. The reason these leaks were made were not because NSA did anything out of the ordinary. Some prudish judges didn't like intel being used as probable cause to monitor likely Al Qaeda associates. If the NSA is doing the process to take random information mined from a mass of data, and then monitors calls on those leads to ensure they have probable cause to go to FISA, then we are talking about a totally different subject than is being debated right now.

And yes, this is reasoned speculation that is developed by the same process as scientific speculation (or theorems). Having a science background that is how I approach things. Given all the facts, what scenario fits all the facts best.

And that is Robertson resigned as a result of the investigation (which was later confirmed by sources from another blogger).

In summary, the FISA-NSA debate is about how to not just connect dots, but pass information to the proper authorities. Does anyone think NSA should not monitor AQ communications, and when confident they have a AQ contact in the US pass it on through FISA or some other mechanism?
1.3.2006 5:08pm
Justin (mail):
AJStrata, ignoring your blind assertion that Polaris is credible (which I find to the contrary) and that there's a scienta of evidence that Robertson is under investigation (ditto), you do realize that by stating that we can kill our enemies, so we can certainly spy on them, and some of our enemies may be in the United States, you lead to the inevitable conclusion (inevitable, because its the basis of your argument..not a slippery slope logical conclusion) that the President of the United States can kill a person in the United States (irregardless of citizenship) by labeling him an enemy.

And, given that there's no reason to believe that the unapproved wiretappings included prelabeled "enemies" within the United States, maybe that last sentence is superflous. I think all you're arguing is that the President of the United States can kill a person in the United States.

I disagree.
1.3.2006 5:36pm
Justin (mail):
Errr, scintella of evidence... :)
1.3.2006 6:03pm
Wince and Nod (mail) (www):
Justin,

Now that was a responsible comment! Thank you so much! I don't agree, since we could just as easily interpret AJStrata's argument the way I think he intended it. (Claims that my crystal ball are cloudy reveal that we are using the same brand - a large cube of NaCl - kudos to you!)

- We have enemies outside the U.S.
- The AUMF authorised the killing of enemies outside the U.S.
- The AUMF certainly also authorised the montoring of the communications of enemies outside the U.S.
- That monitoring will lead to enemies inside the U.S.

The question is, can the results of that monitoring be used as probable cause to obtain warrants to get the evidence that can be used in a court of law against those enemies inside the U.S.

Answer? I certainly hope so!

Yours,
Wince
1.3.2006 6:15pm
Justin (mail):
Wince, that doesn't seem to be the question at all. If what you're asking is simply whether AUMF declaration would make FISA constitutional, then...ummm....we're in agreement.

The problem is when external monitoring leads to internal targets, whether a warrant is then needed to monitor. Your reconstruction of Strata's argument is correct to the degree that it does not in itself monitor internally without a warrant (to the degree it does, its a non sequitor, and simply adds a layer to reach the logical conclusion of allowing us to kill internally by being circular), but that's not in violation of FISA, AUMF or no AUMF.
1.3.2006 6:23pm
Justin (mail):
Just to make sure we're not confused:

If becoming an internal enemy does not prevent you from being protected under FISA and thus your communications need a FISA warrant - then we're not in disagreement at all, but this proves nothing.

If becoming an internal enemy means you can be treated like an external enemy, covered under AUMF and not under the protections of the US Constitution and Statutes - then you can be killed by the Government without judicial review, even review as to status.
1.3.2006 6:33pm
Wince and Nod (mail) (www):
Justin,

Here is the new question AJStrata asked:
In summary, the FISA-NSA debate is about how to not just connect dots, but pass information to the proper authorities. Does anyone think NSA should not monitor AQ communications, and when confident they have a AQ contact in the US pass it on through FISA or some other mechanism?
I thought my restatement was basically accurate.

As regards your claim about what Gonzales meant was authorized under the AUMF, it is far more reasonable to claim he meant that any communication with an oversea enemy could be monitored, regardless of who was on the American End, rather than to claim Gonzales is arguing that any internal enemy can be killed on a whim.

Either way, I'd rather talk about the new question, which seems reasonable, rather than your AUMF contention, since I do not think logically follows, although it is a brave attempt to create a new reductio ad absurdum out of the original reductio ad absurdum, which was: "We can kill 'em but not listen to their phone calls? That's absurd."

Yours,
Wince
1.3.2006 7:39pm
davidgmills (mail):
The reason we are discussing this matter at this time in our history is that purportedly we are facing a constitutional crisis, not a statutory crisis.

Because I believe that where the constitution is involved we have to look to what the founding fathers thought, I researched the perplexing Law of Nations clause of the Constitution. I have made numerous posts to the effect now that it was a five book treatise written by a Swiss legal scholar in 1758. Other things I have read suggest to me that there may have been several other treatises, by other authors on the Laws of Nations, but the one by the Swiss legal scholar was by far the most prominent and authoritative of the time.

Reading many sections of The Law of Nations has clearly left me with two impressions. The first is that since the Constitution grants to the Congress the right to define and punish offenses under The Law of Nations, that the founders intended Congress to be the body that defined the laws of warfare.

Let me say that again. The founders intended Congress to be the body that defined the laws of warfare and the founders did not intend for this power to be in the hands of the executive. There is no comparable clause in the constitution for the executive. Thus, the founders intended the executive to prosecute warfare within the legal constraints that Congress enacted. If Congress passed a law which said our soldiers could not rape the women of the enemy, the President does not possess the prerogative to order the rape of the women of our enemies even if he believes that raping the women of the enemy will bring about a quicker end to the hostilities.

The second impression the Law of Nations has given me is that there are two distinct types of wars: wars against soverign nations and wars against organizations who are not soverign nations. The laws of warfare are decidedly different depending on which war one is fighting. When there is warfare against a soverign, the soldiers who are fighting for the soverign are doing so vicariously for the soverign, and have limited personal responsibility for their actions, so long as they are not engaging in personal acts outside the purposes of the soverign.

On the other hand, a war perpetrated by non-soverign fighters (called by the Law of Nations a war of degradation) is for personal gain, benefit or motive of the individual, and as such, the individuals are treated as having committed personal crimes.

It seems clear to me that the war against the Taliban and the War against Saddam's Iraq were wars against soverigns and their soldiers should have been treated like ordinary prisoners of war. When the fighting was over, they should have been released and returned home. It also seems clear to me that Al Qaeda and the Iraq insurgency are wars against non-soverigns, (wars of degradation), and that the individual fighters in this war should be treated as common criminals. That means letting them have a lawyer and a trial. To the extent that Hamdi does not permit "enemy combatants" with a a lawyer and a trial, it violates the Law of Nations.

The founders desparately wanted to be accepted as a nation and that meant complying with established rules of nations. No wonder many other nations are now considering us to be a pariah.

Looking at the FISA question then, FISA was clearly a law of warfare enacted by Congress. Congress intended the executive to prosecute wars with FISA's restrictions. It appears that the executive chose not to, citing another law of warfare enacted by Congress, one granting the executive all means necessary to prosecute the war on terror. Is the Administratrion's rationale for violating FISA valid?

I don't think so. Look at my rape analogy again. If Congress has specifically said we will not rape the women of our eneimies, is this restriction invalidated by another enactment that orders the executive to prosecute the war by all means necessary. I say no. If the two provisions are in conflict, the rule of statutory construction is that the specific always prevails over the general. War must be fought without raping the women of the enemies. Accordingly, the war on terror must also be fought without violating the FISA restrictions.

That is how I see it and I would welcome arguments to the contrary.
1.3.2006 8:04pm
Justin (mail):
In summary, the FISA-NSA debate is about how to not just connect dots, but pass information to the proper authorities. Does anyone think NSA should not monitor AQ communications, and when confident they have a AQ contact in the US pass it on through FISA or some other mechanism?

Okay, get a warrant. This isn't hard.
1.3.2006 8:10pm
Justin (mail):
PS - It strikes me as highly implausible that there is probable cause to believe that each of the "thousands" of people in America whose information was intercepted without a FISA warrant under the program were "enemies" to be defeated (by killing or elsehow) under the AUMF.
1.3.2006 8:39pm
AJStrata (mail) (www):
Justin,

That is such a simpleton argument it doesn't deserve comment. And my assertion to Polaris' backgrounds are based on the fact I too work for the government and can tell. You obviously have not, and can't.

there is plenty of evidence the contacts are with known or highly suspected AQ terrorists overseas.

Apparently if Justin doesn't know something it doesn't exist!

Don't confuse me with someone who cares what you think. You have demonstrated your only intent is to convince yourself of your superior intellect!

Later, much
1.3.2006 8:51pm
AJStrata (mail) (www):
Justin,

just to emphasize how silly your argument is (the one you claim I made!) - how do you tell an enemy in country from an innocent civilian?

Wince has it right - you should listen to your betters. The whole issues from the left is how to take an intel lead into the proper internal process when the lead points in country.

Robertson and Lamberth both presented views intel was unworthy evidence. Stop typing and learn something.
1.3.2006 8:55pm
AJStrata (mail) (www):
David G Mills,

You honestly think Congress defines the laws of warfare? That's pretty interesting. The law of warfare is: win.

Death is not an option.

Beyond that it is all theory from people who watch on the side lines.
1.3.2006 8:57pm
AJStrata (mail) (www):
Justin,

You are the king of making up straw man arguments for others which you gladly knock down with a vain sense of accomplishment.

"It strikes me as highly implausible that there is probable cause to believe that each of the "thousands" of people in America whose information was intercepted without a FISA warrant under the program were "enemies" to be defeated (by killing or elsehow) under the AUMF."

Well, since this your theory and no one elses, of course it is silly. First off, all communications overseas is 'mined' for potential content of interest. Not 'intercepted'. None if it without a warrant. Intel, by definition, is gathered without a warrant. Are we clear?

Try not to use words you do not understand. Second. The conversations were always with an Al Qaesa suspect on one end - not random people calling overseas. How many times will we have to explain this to you before you get it?

Anyone want to start a pool? I give Justin at least 10 shots before it sinks in.

So we are not randomly selecting liberal idiots to be deemed enemies and taken out and shot. What would be the point? They serve the conservatice cause best by talking.

So, you make up this argument in your head and pretend to smack it down.....

OK, I'm impressed. Should we leave to argue the rest of this with yourself? That way you are sure to win!
1.3.2006 9:05pm
davidgmills (mail):
AJStrata

The law of warfare is win? That is a constitutional argument? Just curious. Read the Law of Nations if you do not believe that there are universally accepted and non-accepted methods of warfare. Even in 1758 there were laws to warfare. This treatise was written during the age of enlightenement and your thinking suggests we have entered another Dark Age.

I really cannot believe that you advocate warfare without extablished rules. If raping helps winning, give the green light to rape. Seems fine to you.

I am sure the Beneva Convention and its predecesors were based on the Law of Nations. But I guess you, like Alberto Gonzales, think the Geneva Convention is quaint. It is a treaty after all, that we are signatories to, and have obligated ourselves to follow. I guess you think it is fine for the President to disregard them as well even though the constituion clearly states that when adopted they become our laws as well.

You have told me you think it is fine for the President to break the law during warfare, which of course the President has concluded we are in for eternity. All hail to the Furher.
1.4.2006 7:50am
Wince and Nod (mail) (www):
AJStrata,

Please review the rules below. Your comments about Justin are at the level of personal insult. I'm glad you appreciate my comments, but the concerns of Justin and davidgmills are legitimate concerns.

Just as the critics of the President would do well to extend him the benefit of the doubt, his defenders must remember to extend the critics the benefit of the doubt as well.

Even though that can be really hard.

This balance between liberty and security is tricky. No liberity, and we have no security from government officials. No security and we have no liberty from terrorists.

Everyone knows that sheep dogs are good for the sheep, and that wolves are not - until the sheep dog gets a taste of sheep.

One of the rules of sheep herding is that when the sheep dog begins to behave like a wolf, you kill the sheep dog. The rules of war are similar. We have rules of war, and we imprison or even kill soldiers who break them, including imprisoning the corporal in Vietnam who obeyed his sergeant and murdered several people. The sergeant was not imprisoned. He was institutionalized, because he was insane.

Personally, I think the UCMJ is a good thing.

davidgmills,

I've heard that the Law of Nations at the time of the founding was particularly hard on pirates, who were the terrorists of the day, giving the military the option to hang them on the spot, with nary a care for their civil liberties.

Yours,
Wince
1.4.2006 9:32am
davidgmills (mail):
Wince that is the perfect analogy. Pirates were the terorists of their day. And for a while I suppose they did hang them on the spot. But as some of my earlier posts on the previsous thread show, underthe crimes act of 1790 and the later pircay act of 1820, they wer treated as criminals and given a trial in the US Courts. The jury determined if they were in fact pirates and once that determination was made, the penalty was death. But if they wer captured and not killed, they were supposed to be tried as ordinary criminals. Not held in perpetuity without trial like "enemy combatants."
1.4.2006 10:16am
Medis:
davidgmills,

I just want to note again that I find your historical work on the Laws of Nations very interesting and helpful. I also have a question for you in light of your research.

In the early Articles of War (passed by the Continental Congress during the Revolutionary War and then readopted by the First Congress), there are provisions stating that the armed forces must obey the "law of the land" and should be held responsible for crimes against the citizens of the States. Since then, the Articles of War and its successor, the UCMJ, have evolved to contain more specific criminal provisions applicable to the armed forces.

As I see it, these provisions are not necessarily the same thing as laws regulating the conduct of our armed forces with respect to our enemies--although there may be some overlap. So, I was curious if the "Laws of Nations" included a discussion of these particular issues (heretofore, I have always thought of these provisions as falling under the regulation of the armed forces).
1.4.2006 11:35am
davidgmills (mail):
Medis:

Book III, Section 295 of the Laws of Nations says this:

But, when a nation becomes divided into two parties absolutely independent, and no longer acknowledging a common superior, the state is dissolved, and the war between the two parties stands on the same ground, in every respect, as a public war between two different nations. Whether a republic be split into two factions, each maintaining that it alone constitutes the body of the state, — or a kingdom be divided between two competitors for the crown, — the nation is severed into two parties, who will mutually term each other rebels. Thus there exist in the state two separate bodies, who pretend to absolute independence, and between whom there is no judge (§ 293). They decide their quarrel by arms, as two different nations would do. The obligation to observe the common laws of war towards each other is therefore absolute, — indispensably binding on both parties, and the same which the law of nature imposes on all nations in transactions between state and state.

.....................

I suppose that the American Revolution would have been classified as a civil war under the Law of Nations and both sides would be treated as soverigns and had to comply with the laws of war as they pertain to soverigns. So the American Revolution might not be a good example of how to treat our enemies vs. our own citizens. But I definitely think you are right that the under the Law of Nations the laws of war as to our own citizens is different from the law of war as to our enemies.

The Law of Nations really does not say much about how a soverign is to treat its own citizens during wartime. Interstingly, in Book III it does talk about how a soverign should raise an army, pay its soldiers, take care of its injured soldiers, its ability to hire mercenaries and its responsibilites to mercenaries. It also says this about Military law and discipline:

§ 17. Military laws.
Good order and subordination, so useful in all places, are nowhere so necessary as in the army. The sovereign should exactly specify and determine the functions, duties, and rights of military men, — of soldiers, officers, commanders of corps, and generals. He should regulate and fix the authority of commanders in all the gradations of rank, — the punishments to be inflicted on offenders, — the form of trials, &c. The laws and ordinances relative to these several particulars form the military code.

§ 18. Military discipline.
Those regulations, whose particular tendency is to maintain order among the troops, and to enable them to perform their military service with advantage to the state, constitute what is called military discipline. This is of the highest importance.

...............................

Section 17 goes back to my earlier point under Article I that it is Congress that is the body that makes the law of warfare. I guess what I would say is that Congress is the body that determines not only how soldiers will be treated but also how the soldiers and the military must treat the the citizens.

Would you read it differently?

Thanks for your interest by the way.
1.4.2006 12:24pm
Wince and Nod (mail) (www):
davidgmills,

Do you mean this Act of 1820, about piracy and the slave trade?

Yours,
Wince
1.4.2006 1:31pm
davidgmills (mail):
Wince: That's the one.
1.4.2006 1:35pm
Medis:
davidgmills,

Thank you--that is interesting. At first glance, at least, the sorts of provision I am thinking of may fall within the second clause of "military discipline"--"to enable them to perform their military service with advantage to the state." Of course, that clause may just be about military efficiency, but it could also be about ensuring that the state is not harmed by the military.

Incidentally, there is no doubt in my mind that the Founders considered this an issue for Congress, in light of the early Articles of War. I was more just wondering if they thought of this matter as falling under the government and regulation of the armed forces, or under the laws of nations, or perhaps both.

By the way, although this is not necessarily on point, here is another interesting provision from the early Articles of War:

"It is earnestly recommended to all officers and soldiers diligently to attend divine service: and all officers and soldiers who shall behave indecently, or irreverently, at any place of divine worship, shall, if commissioned officers, be brought before a general court-martial, there to be publicly and severely reprimanded by the president; if non-commissioned officers or soldiers, every person so offending shall, for his first of fence, forfeit 1/6th of a dollar, to be deducted out of his next pay; for the second offense, he shall not only forfeit a like sum, but be confined for twenty-four hours; and, for every like offense, shall suffer and pay in like manner; which money, so forfeited, shall be applied to the use of the sick soldiers of the troop or company to which the offender belongs."

So, encouraging, but not requiring, attendance at religious services fit into their conception of military law, and misbehaving in church was a punishable offense. I note that really only to suggest that they probably had a pretty broad notion of what might contribute to military discipline, and what might undermine it.
1.4.2006 3:01pm
Michael B (mail):
"If raping helps winning, give the green light to rape." davidgmills, intended with spite and bitter irony

And yet, Saddam &Sons's all too real rape rooms, along with their terror programs in general, are at best given passing notice by those looking to undermine the Iraq effort or question the President's motives - in perpetuity (or to use davidgmills's term "for etermity"). The note concerning "All hail to the Furher," (directed, again with spite and irony, not at Saddam &Sons or their rape rooms and terror, but at the President) is similarly predictable and boorishly intoned. Saddam &Sons's reign actually was modeled on aspects of both Hitlerian and Stalinesque forms of totalitarian power - yet that goes unnoticed or is noticed only in passing. But if the NSA works at the very boundaries of Constitutional and statutory limits, then that, doncha know, is positively Hitlerian and Stalinesque.
1.4.2006 3:04pm
davidgmills (mail):
Medis:

Sec. 8. Powers of congress

[1.] The congress shall have power…[10.] To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; [11.] To declare war,… and make rules concerning captures on land and water; [12.] To raise and support armies… [13.] To provide and maintain a navy; [14.] To make rules for the government and regulation of the land and naval forces…..

Are you suggesting that rather than clause 10 applying it is clause 14? I am sure that sometimes they overlap. I guess my point though is that both clearly indicate that Congress is the body that makes the law of warfare both as to pertains to the behaviour of our forces and our citizens and as it pertains to our treatment of the enemy.

I have even considered the applicability of capture under clause 11 in that capture could include not only persons and property but the capture of information as well. The Law of Nations also has a number of sections on the capture of enemy property as well as the capture of enemy soldiers.

All of these clauses indicate to me that the law of warfare resides in the body of congress; there is nothing remotely similar in Article II.

I see the administration's Article II position as a power grab of either the Congress' warfare power or the the Judiciary's power of interpretation. Under the 4th, searches which are unreasonable are illegal. Does the President get to define what is reasonable? I say no in nearly every case. There may be situations where the circumstances are so teribly threatening that it is not unreasonable to search without a warrant, i.e. reports that a neuclear bomb is housed in a building. No one would suggest that if those were the facts the President was acting unreasonably if he searched without a warrant (probable cause would certainly exist here anyway). But for the vast majority of the time, I want the Judiciary determining whether searches are reasonable without a warrant. Moreover, FISA gives the executive an easy way to get a warrrant and with lower standards than are normal in criminal cases.
1.4.2006 3:26pm
davidgmills (mail):
Michael:

It has been often said that democracy must fight with one hand tied behind its back. Totalitarian governments don't have to fight that way. There is nothing wrong with a democracy fighting an the very boundaries of Congressional and statutory authority. But the legal question is whether the boundaries have been breached.
1.4.2006 3:31pm
Medis:
davigmills,

And as an aside, democracies have recently faired well against totalitarian regimes. So, perhaps what looks like a restraint in the short run is actually a source of strength in the long run.

Anyway, I wasn't trying to signal any disagreement with your general conclusion about the scope of Congress's Article I authority. I was just asking a very lawyerly question--I was trying to figure out which clause or clauses in Article I, Section 8 would apply to provisions in the Articles of War that I identified.

And it also seems to me this is probably an overlapping case--but I was curious about how much the Laws of Nation discussed the issue.
1.4.2006 4:11pm
Michael B (mail):
"It has been often said that democracy must fight with one hand tied behind its back. Totalitarian governments don't have to fight that way. There is nothing wrong with a democracy fighting an the very boundaries of Congressional and statutory authority. But the legal question is whether the boundaries have been breached." davidgmills

David,

Please. Yes, of course, that much is an innocuous and obvious framing of the issues involved. But that's a stark contrast indeed with the presumptive and even triumphalist tone you had previously used and which I commented upon.

Too, being concerned with the question about those boundaries and whether or not they have been breached needs to be balanced with at least one other concern. To wit, whether or not legislation by congress has kept pace with the various technologies, the existential threats, etc. For example, as is admitted in Nancy Pelosi's recently disclosed letter, written on 10/11, merely one month after 9/11, she reflects concern with the executive and with NSA, but she reflects literally zero interest in inquiring whether or not the NSA and other agencies have sufficiently legislated authority to perform all that they need to perform, within Constitutional and legislated boundaries. She is sworn to uphold all aspects of the Constitution, not merely those which coincide with her partisan/sectarian interests, contra this particular executive. This too reflects a stark and telling contrast.

Her one-sided or one-dimensional oversight interest coincides with her partisanship, while she reflects no interest in optimizing General Hayden's and the NSA's surveillance capabilities and additionally expresses no interest in updating legislation to that effect. A stark contrast and a telling one, both as pertains to this NSA issue specifically and as pertains to the set of debates encompassing this anti-totalitarian war in general.

Good day to you.
1.4.2006 4:37pm
davidgmills (mail):
Medis:

I knew you were asking a lawyerly question and it is a tough one as to which of the clauses apply or whether they all overlap. My feeling is that you are right and that as many as four or five may overlap. On the law of nations clause, I think it must primarily pertain as to how we engage our enemies and whether our enemies are soverigns or non-soverigns.
1.4.2006 4:50pm
davidgmills (mail):
Michael:

I didn't really want this to be a political debate. And whether the President needs more up to date legislation is a legitimate question but in my mind it is not a constitutional question. If the President feels he needs more up to date legislation he can propose it and ask congress to pass it.

I am more concerned about the separation of powers of our government and which body should be doing what. The Article II issue is the one which concerns me. Is the executive trying to usurp powers of the legislative branch or judical branch? I personally believe that has been the trend for a long time (not just this administration) but I am concerned that this administration has pushed the envelope moreso than any others in recent memory.

9/11 changed things. But al Qaeda is only a threat to the safety of our citizens, it is not a threat to our republic in the way the axis powers were or the Soviet Union was. In the cold war we faced total annhilation every day and our leaders did not seem compelled then to limit our freedoms in the name of security the way they do now.
1.4.2006 5:05pm
Michael B (mail):
"I didn't really want this to be a political debate." davidgmills

Oh. My. G-d. Such self-regard. Tisk, tisk, I've interrupted a lofty minded individual right in the middle of his most exalted deliberations. Of course you didn't David, that's why you didn't hesitate to use references to "Fuhrer" and similar probative and veridical comments. I could comment at some length, but why bother.
1.4.2006 7:49pm
davidgmills (mail):
Michael B: This is supposed to be a legal forum. I have looked on this site for anything you have posted that cites a case, a statute, the constitution, a treatise ... and I find nothing. Zip. Nada. If you have a case you want to argue, cite it and make your point. Statute. Constitution. Treatise. Cite and make your point. That is what I have tried to do in darn near every post I have made. Now maybe you don't like my arguments after I cite authority. That's fair. As they say reasonable people can differ. But cite your authorities and make your point. Or tell us facts that you think are germaine. Otherwise, as the moderator says.. this is a big internet.
1.4.2006 9:54pm
davidgmills (mail):
Oh, and my reference to the Fuhrer, it was mostly about 1000 years of the third reich, war without end.
1.4.2006 10:40pm
Michael B (mail):
David, we're not in middle school or high school here and you're not the hall monitor, nor do I have regard for your attempted bullying tactics or presumption. Categories involved in these discussions include legal, social, political, economic, military, technology, national security, the executive, legislative and judicial branches of govt., international relations and issues, diplomacy, rhetoric, etc., etc., etc. The "point" I made minimally pertained to political, legislative, national security, executive branch and surveillance issues, it also pertained to your own amusing rhetorical excesses. It's a big world out there, you're not the one to define its parameters, ad hoc, as you see fit from one comment to the next. If you don't like being responded to in kind and on topic, pertinent to some of those subjects and categores noted above, then take your own advice.
1.4.2006 11:29pm
davidgmills (mail):
Was that another of your legal arguments? Just asking. Do you do this in court?
1.5.2006 8:03am
davidgmills (mail):
This was supposed to be thread about the legality of the NSA surveillance program. Do you have any arguments to make about it's legality?
1.5.2006 8:07am
Michael B (mail):
Actually this thread itself is rather generic, at least so within the NSA topic as a whole, so telling me what it "was supposed to be" is indicative of that arrogating and insinuating quality, that presumption, I've already commented on. When I do choose to comment on some of the legal frameworks and specifics, it will be framed within the relevant set of contexts: The specific and detailed sets of facts (which we're still learning), the Constitutional and statutory interests, historical developments (e.g., legal, technology) and the full set of existential evaluations, threats, likely and foreseeable developments, etc.

It will also include an interest in Congressional and Senatorial oversight factors such as was already noted above vis-a-vis Pelosi's seeming omissions - and in addition to Title 50 interests, may well include an interest in 18 USC 798, 5 USC 1213, perhaps other still. The notion this is all accusative on one side of this set of issues and defensive on the other side may hold, or it may not.
1.5.2006 8:06pm