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Another NSA Program?:
The United Press International reports that former NSA employee Russell Tice, who has been in the news recently as one of the leakers of the NSA surveillance program, is now saying that there is another "more wide-ranging program" beyond the one disclosed by the New York Times in December:
  A former NSA employee said Tuesday there is another ongoing top-secret surveillance program that might have violated millions of Americans' Constitutional rights.
  Russell D. Tice told the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations he has concerns about a "special access" electronic surveillance program that he characterized as far more wide-ranging than the warrentless [sic] wiretapping recently exposed by the New York Times but he is forbidden from discussing the program with Congress.
  Tice said he believes it violates the Constitution's protection against unlawful search and seizures but has no way of sharing the information without breaking classification laws. He is not even allowed to tell the congressional intelligence committees - members or their staff - because they lack high enough clearance.
  This disclosure is consistent with Attorney General Gonzales's strong hint before the Senate Judiciary Committee that there are other telecommunications surveillance programs beyond the one disclosed by the Times.

  UPDATE: I edited this after posting.
Humble Law Student:
Well, that's just dandy. Why don't we just put every single secret intelligence gathering operation up on wiki?!?!

I realized that there can be legitimate concerns, but seriously, at what point are these people just damaging our national security by using such public forums to express their disagreement?

Seriously, why not just list everything along with a handy manual for Al-Qaeda on how to NOT get caught.
2.15.2006 1:32pm
volokh watcher (mail):
Orin:

You should read Newsweek's 9/8/75 article, called "No Place to Hide," about the NSA's domestic and foreign surveillance activities. It sounds like a redux of the current controversy -- technology outrunning the law, etc. -- if you substitute "terrorists" for "Soviet Union".

Here's the link:
www.bugsweeps.com/info/newswk9-8-75.html

The more things change . . . .
2.15.2006 1:37pm
John Lederer (mail):
"Russell D. Tice told...but he is forbidden from discussing.."

What's wrong with this picture?
2.15.2006 1:48pm
moonfall (www):
I guess I just don't really understand how the Senate can lack security clearance. Can't they pass a bill giving themselves top clearance?
2.15.2006 1:50pm
Humble Law Student:
Why'd you delete the other 2/3rds of your post?

[OK: Eric Muller's comment made me realize I was probably wrong, so I just deleted that section (along with Eric's comment, which I hope is okay with Eric).]
2.15.2006 1:52pm
Cheburashka (mail):

Well, that's just dandy. Why don't we just put every single secret intelligence gathering operation up on wiki?!?!

I realized that there can be legitimate concerns, but seriously, at what point are these people just damaging our national security by using such public forums to express their disagreement?

Seriously, why not just list everything along with a handy manual for Al-Qaeda on how to NOT get caught.


I agree -- whatever the details of the program are, they don't need to be publicized.

I think its our culture rather than our rigorous adherence to warrants and probable cause the protects us against fascism.
2.15.2006 1:55pm
JosephSlater (mail):
So someone in a position to know claims there is a program that violates the Constitutional rights of "millions of Americans" and the initial response is that even raising this as a concern in public is the equivalent of telling Al-Qaeda how not to get caught? This site is getting more depressing every day.
2.15.2006 2:02pm
Justin (mail):
"Well, that's just dandy. Why don't we just put every single secret intelligence gathering operation up on wiki?!?! "

Errr...how about we ask the government, instead, to, ya know, STOP BREAKING THE LAW
2.15.2006 2:07pm
Eric Muller (www):
Doesn't Tice's revealing the existence of such a program, even without supplying any details, violate the classification rules? (I'm not arguing here for anything; I'm just saying that I don't understand how the laws on classification could permit a person to reveal even the existence of a super-duper ultra-top-secret program.)
2.15.2006 2:16pm
Mr Diablo:
So, the Administration can talk about programs to say that they exist and are necessary and are working and are wonderful and so on. But they cannot give any details to anyone at all, ever, as to what evidence there is that they work, except once in a while to hyperactively scream, "Ummm, well we foiled an attack on Los Angeles...." and then the details can be told, at least all the ones that make the program and the administration look great.

Enough, I think I've finally got it figured out.

How does admitting we have a program tell the enemy anything? We've admitted to having a CIA, does that tell us anything about how it works? Of course not. The rantings of conservatives about how any or all of this disrupts national security by admitting we have secret programs for spying are logically specious and just another partisan attack line to call anyone who is critical unpatriotic.

The obvious point that the phony-outraged defenders of these programs will never admit is this: Al-Qaida knows we are after them and trying to infiltrate them. They're not so stupid as to make the following phone call:

"Ahmed, how are you? How is America? Don't you love being a citizen?"
"Abdul, being a citizen is great! Haven't heard from you in so long, death to America, death to America.... so can you e-mail me a copy of your plan to destroy Coit Tower? Bill O'Reilly said it was OK by him!"
"Ahmed, sure, let me FAX it over, what's the country code for the U.S. again? It's so hard to dial on Osama's antiquated Fax machine here at 125 Evildoer Lane, Cave #23, Pakistan."
"Abdul, oh, I totally know, he just won't upgrade that thing! By the way, did you *67 this call? Wouldn't want that U.S. government listening in!"

It doesn't go like that and they aren't that stupid, people. It's not an excuse to break a very specific law granting and both limiting power to the president to yell "we need this" and then act like Congress, even in closed session, is owed no explanation.
2.15.2006 2:27pm
JunkYardLawDog (mail):
Justin, I think Humble is right on. The word of a disgruntled ex-employee fired for being psychotic is a source good enough for the NYT, but is hardly credible in the real world. So maybe you want to take the word and legal analysis regarding authority and constitutionality of an unqualified psychotic ex-employee, who likely never worked in the program about which he is seeking notoriety, just like he never worked in the NSA program about which he violated the law but never actually worked in, but for me I'd rather protect the country at a time of war.

Nothing will please me more than the day the editor and publisher and author at the NYT regarding the NSA story are all frog marched out of their Manhattan office building and into a waiting paddy wagon for their treasonous and criminal disclosures of national security matters. Same goes for Mr. Tice.

I will tape that video and save it for the rest of my life. I just hope the Bush administration has the guts and will to do this which so richly needs to be done.

Says the "Dog"
2.15.2006 2:31pm
Bart (mail):
I sure hope that the house did not give Tice any sort of waiver from prosecution in order to get him to testify. I don't want this dirtbag to miss his 20 years in Supermax for violating the Espionage Act by pulling an Ollie North at his criminal trial...
2.15.2006 2:34pm
JunkYardLawDog (mail):
Diablo,

Criminals and terrorists are pretty stupid and behave so quite often. Look at organized crime. Your excusing treasonous and criminal disclosures of national security secrets because there was no harm (according to you) is a fallacy. Harm is not a requirement of the law. There was no harm in the Valerie Plame thing either, but Scotter Libby still had his life and career ruined for having a less than perfect memory of every conversation he ever had 2 years earlier.

Democrat Jane Harmon from the House Intelligence committee has stated and continues to state that the NSA program disclosure did GREAT HARM to the security of the country. I suspect she knows how it works better than you or I.

Says the "Dog"
2.15.2006 2:36pm
Charlie (Colorado) (mail):

"So someone in a position to know ..."



Uh, who would that be? Tice was in ELINT (see the wikipedia article), not COMINT, and this was certainly a "special compartmented intelligence" program. The likelihood that he would have been read on to either program if the programs were doing content (making them COMINT) was pretty small; the likelihood that he was read onto BOTH programs is damn near zero (the whole point of compartmentation is to limit access, as a regular analyst would be very UNLIKELY to know a lot about sources); and so far it doesn't sound like there's much evidence that anyone talking about the various programs has many of the details right.

(On the other hand, if the REAL NSA program was concerned with traffic analysis or network analysis, that would be ELINT --- but that would mean no one was "wiretapping" or listening to content. That would be pretty consistent with what's been said, with what Tice has been making public about his access ... and with the diagnosis that lost Tice his clearance.)
2.15.2006 2:41pm
Charlie (Colorado) (mail):
Oh, by the way, orin:

This disclosure is consistent with Attorney General Gonzales's strong hint before the Senate Judiciary Committee that there are other telecommunications surveillance programs beyond the one disclosed by the Times.

I'm not sure that anyone has pointed this out, but ... well, duh! CIA has something around 20,000 people, NSA has, erm, lots... of course there are other programs. And of course the AG would neither want to talk about them, nor say anything that could be interpreted as saying there were no other programs.
2.15.2006 2:45pm
cathyf:
Wait a minute... Isn't there a law which is specifically designed to allow a person in Tice's position multiple legitimate places to take his concerns, and even makes it illegal to retaliate against him? And that law makes specific provision for these folks to go directly to the Intelligence Committees in Congress?

If I understand this correctly, he is asserting that he can't tell the Intel committees in secret what he can tell the House Government Reform Subcommittee in public? I'm really beginning to think that the government shrinks who ruled this guy crazy were right on the nose.

cathy :-)
2.15.2006 2:52pm
Mr Diablo:
You're barking up the wrong tree, Dawg.

And not needing to disclose to the public is not the same as making sure that it is a power that is constitutionally available. Congress manages to appropriate for CIA without disclosing or publicly discussing numbers on the floor. Someone in the Congress can certainly be informed of a program that might violate clearly written law but might also be necessary and important.

This administration feels no one should be able to check it and that the constitution does not apply because they say it doesn't apply.

And let's stop pretending that these guys thought it was OK in the first place. FISA was rejecting some of their applications, implying that the Executive thought it needed permission. They only invented secret program A beacuse they did not like the answer they got. The defense of this was crafted out of the only card they have, "war power of the president," when called out over such a ridiculous lie.
2.15.2006 3:02pm
Justin (mail):
Junkyard,

"Each of us is entitled to his own opinion, but not to his own facts." - Senator Daniel Patrick Moynahan

I will respond to your post when you stop asserting bald faced lies as known facts.
2.15.2006 3:17pm
Anderson (mail) (www):
Tice may be off-base, but I would want to see some case authority before adopting Eric Muller's hypo.

Merely saying "there's a super-broad surveillance program" surely can't be disclosing classified data.

And if it were, then there's got to be some sort of whistleblower provision, as observed upthread.
2.15.2006 3:49pm
Bernie (mail):
We know from the 9/11 commission reports that AQ used third grade style code words or catch phrases for its operations. Lets say we hear some of these types of code words or phrases from communications between AQ operatives. If we could look at all communications and track these phrases, where they were said and follow or mark every instance it was used. It wouldn't take very many instances to eliminate the innocent people who happened to use the "code" phrase in innocent conversation. Once a clear pattern develops you could establish whom the real message was going to. This would take a tremendous amount of computing power but it seems possible with today's technology.

This would involve scanning content of messages and phone calls by a computer but the only output would be the communications path, or the list of people who consistently received the know "code" phrase. Would this be legal? You obviously cannot get a warrant to listen to every communication?

If the computing and translating technology were advanced enough, would this cause civil liberty or legal issues?

Thanks.
2.15.2006 3:51pm
OrinKerr:
Justi,

Your last post was out of bounds. If you think someone is presenting facts inaccurately, you can say so in in a civil way.
2.15.2006 3:56pm
Justin (mail):
Okay Professor Kerr,

Junkyard Dog,

Please back up your assertions that

1) Tice is psychotic

2) That Tice was unfamiliar with the NSA wiretapping plan he did disclose, and turned out have accurate information.

3) That Tice is unfamiliar with the NSA wiretapping program he is now disclosing, whose accuracy seems to be in accordance with AG Gonzales's testimony.

Since your entire post relies on these three factual assertions that I find absolutely incredible, I'd like to hear a basis for each of them.
2.15.2006 4:18pm
JunkYardLawDog (mail):
Cathyf,

Yes I believe there is such a procedure for NSA employees to follow, and if they follow it then both the country's secrets and the person with the concerns are all protected. Tice and the others claimed to be making these leaks of national security programs and intel operations aren't following the procedures, and are just plain scum, imho.

In Tice's case, likely psychotic scum, which makes him a perfect source for the NYT and WaPo, etc.

Says the "Dog"
2.15.2006 4:32pm
OrinKerr:
Junkyard,

That was out of bounds, too. I think I need to just make a broadcast announcement: Keep in civil, EVERYONE.

My next step is to just start banning commenters left and right, and I don't want to do that. But if that's what I need to do to keep the discussion civil, that's what I'll do.
2.15.2006 4:41pm
Tom Holsinger (mail):
This looks like complaints about large-scale monitoring of non-confidential information, notably which phone numbers called which phone numbers when. The phone companies involved know this just for billing. There are cases holding that law enforcement agencies can obtain this information secretly from phone companies, and then use it as evidence in prosecuting the persons whose phones those were.

If true, this is more hype by anti-American lefties, of the sort that was used in a classic 1940's or early 1950's Florida election by George Smathers against Claude Pepper. Smathers spread rumors that Pepper's wife was a "thespian" and "matriculated".
2.15.2006 4:45pm
Legat:
Just a word about classification rules:

There are only three levels of classification: confidential, secret, and top secret.

At the secret and top secret levels there are Special Access Programs (SAP's) as Tice describes. SAP's in essence require that someone get a clearance for that particular program. SAP's can be "acknowledged" (meaning the existence of the program is not classified at the level of the program) , "unacknowledged" (meaning the program "does not exist" to those who do not have access to the compartment), and "waived," meaning that the program is waived from the normal (congressional and executive) review process. Waived programs are also automatically unacknowledged and are generally reviewed personally by agency heads, the relevant inspector general, and the heads of the relevant congressional committees. The number of waived programs is severly limited.

The NYTimes program was a waived special access program (or, more properly, a waived SCI program, but its effectively the same thing), which is the highest level of secrecy possible according to existing classification rules. Tice's assertion that the program he would like to describe exists at a level of classifcaiton beyond what he can disclose to the intelligence committee could be: 1) grandstanding, 2) the fact that he could only disclose the information to the chair and ranking memeber of the committee (if it is a waived program), or 3) for some jurisdication related reason the program falls under the purview of the armed services committees and not the intelligence committees.

Tice's assertion that the Inspector General of NSA is not cleared for the program is difficult to take seriously. The only possible explanations (unless their is some secret exectuvie order on classification that contravenes existing law) are: 1) the ELINT program he was working on is actually conducted by a foreign intelligence service (or an organization of expatriot intelligence officers) for the NSA and therefore may not be a US government program as such; 2) the program in question is considered a battlespace preparation activity, in which case it is roled into a larger military operation. Clearly, there can be no battlespace preparation operations on US soil.

Not sure exactly how to take Tice's comments, especially given the fact he is talking to papers first and Congress second.
2.15.2006 4:47pm
Charlie (Colorado) (mail):
Justin, see my post, in which I make a rather more detailed case for much the same points JYD did.

"Psychotic" is a mistake --- Tice lost his clearance after having been diagnosed with a "paraniod personality disorder," which is not in itself technically considered a psychosis. The wikipedia article on Tice (at least as of this writing) details both his ELINT background and the psychiatric diagnosis.
2.15.2006 4:49pm
Justin (mail):
After examining Charlie's information, I personally find the argument that Tice has a "personality disorder" unpersuasive - the better argument is that Defense and NSA/CIA whistleblowers have routinely gone "psychological review" in the past.

As far as the "superduper secret" classified information argument, please remember that Senator Rockefeller wasn't able to tell either his staffers or fellow members of the Senate Intelligence Committee about the NSA Wiretapping program - in that light, to the degree we have experts telling me that Tice's statement is laughable on its face seems wrong, though I admit not having their detailed knowledge.
2.15.2006 5:13pm
KMAJ (mail):
The intelligence whistleblower protection act gives only two options to maintain that protection, and neither involves public revelation. He can file his complaint with the inspector general of his agency or he can go to the heads of the congressional intelligence committees, in private. Once he goes public, he is no longer covered by whistleblower protection. There is no avenue for classified information to be leaked publicly and not be exposed to possible criminal prosecution. Whistleblower protection for intelligence related matters is vastly different than other categories of Whistleblowers, the same holds true for publishing intelligence.

Tice seems to be a sour grapes case. He accused a co-worker of being a communist Chinese spy, and filed papers to try to get her dismissed. When he could not prove his allegation, he was ordered to undergo psychiatric evaluation that led to his diagnosis of having a 'paranoid personality disorder'. Upon that evaluation, his clearance was removed and he was moved to a position that was not sensitive, even though making unfounded charges against a co-worker would be grounds for dismissal. I think the reason for not firing him was, prior to his mental problems, he had been a good employee and so they were exhibiting some compassion or a sense of loyalty. He was let go when his mental condition persisted and created problems, even in the lower stress position. That is my take on the scenario that probably evolved for Tice. It is not a matter of shame for someone to eventually crack under the high-level stress of such an intelligence position. Tice has a checkered history since his employment was discontinued, which would suggest that this is simply an extension of the very problem that caused his release.
2.15.2006 5:22pm
Robert Schwartz (mail):
"another ongoing top-secret surveillance program that might have violated millions of Americans' Constitutional rights."

OK. So What?

There is a war on.

Loose Lips Sink Ships.

When they think that it is important for you to know about it, they will tell you. Until then, anyone who leaks information about this should be prosecuted.
2.15.2006 5:34pm
Kovarsky (mail):
Yeah, because Tice sure was way off on the last one! He probably made up the existence of that one too.

O, and don't let al qaeda know that we enforce our constitution, they may change their tactics.

What I find ironic about this whole thing is that everybody in the administration acts as though it's as if it's the media's fault that these programs are on the front page. if these programs were done through the legislative process, nobody would have noticed.

unless you think osama bin laden reads teh congressional record to try to discern the legislative history behind enabling statutes.
2.15.2006 5:45pm
colts41 (mail):
If you saw one person shoot another person, shouldn't the local citizenry expect you to come forward and tell what you saw -- rightly or wrongly you think you may have seen a crime.

Now if a government employee (no. 1) witnesses what he believes to be criminal act committed by another government employee (no. 2) -- even a high-level official-- should it matter that no. 2's potential criminal conduct was deemed classified?

Why shouldn't the 1st Amendment protect any person from reporting what may have been criminal conduct?

Either as "free speech" or as "petitioning the government" for redress.
2.15.2006 5:49pm
Kovarsky (mail):
Legat,

Will explain thithese things to me:

(1) if this is a "waived program," then he could or could not go to the intel committee member?

(2) if he couldn't go to the intel member, then the only other option is the head of the NSA?
2.15.2006 5:52pm
Legat:
Kovarsky,

If this is a waived program, he could go to the chair and rankng member of the intel committee and still receive whistleblower protection.

Even if he felt that was not enough, he could tell the whole committee. Depending upon the nature of the program, this may forfeit any sort of legal protection, but it is still more responsible than going public. And if there were a real problem, the committee would probably fight for his protection in whatever way they could.
2.15.2006 6:01pm
Kovarsky (mail):
Legat,

After he goes to the committee, are the committee members prohibited from disclosing it?
2.15.2006 6:16pm
Mary Katherine Day-Petrano (mail):
THIS is THE NEWS on the NSA/AUMF

<rel="nofollow" href="http://balkin.blogspot.com/"></a>
2.15.2006 6:21pm
Mary Katherine Day-Petrano (mail):
Sorry, it didn't link. Here it is:

<a rel="nofollow" href="http://balkin.blogspot.com">
2.15.2006 6:25pm
Mary Katherine Day-Petrano (mail):
Ok, I give up on the link stuff. It is over at Balkinization.
2.15.2006 6:28pm
Kovarsky (mail):
the best line:

If the President is constitutionally authorized to execute "laws," a fortiori he is clearly authorized to execute "persons" by shooting them at his discretion.
2.15.2006 6:30pm
JunkYardLawDog (mail):
Orin,

Sorry if I got a little overheated for your tastes. I respect your desire to keep comments on a higher intellectual level. That is in fact one of the attractions of this blog.

Says the "Dog"
2.15.2006 6:45pm
Anderson (mail) (www):
If the President is constitutionally authorized to execute "laws," a fortiori he is clearly authorized to execute "persons" by shooting them at his discretion.

Right. As we know, the laws are no respecters of persons.
2.15.2006 6:47pm
Legat:
Korvarsky,

I don't know the specific procedures in that case, but I suspect members of congress are treated like any one else. If that is true, no individual member of the committee could go public, nor could the whole committee without following strict procedures -- at least, in principle. They might be able to disclose a violation, but certainly not reveal the nature of the program.

In practice, however, members of congressional committees have unilaterally disclosed very sensitive things in the past. The 2004 disclosure about the supposed follow on to the MISTY stealth satellite was made unilaterally by a member of a committee, breaching the law in the process. The disclosure was made because there was a deabte about the cost of the program; some members wanted to kill it but didn't have the votes; they resorted to embarassment tactics. There were a few (I believe three) congressman involved and none of them were prosecuted.

I suspect if a committee wanted to reveal something they could.
2.15.2006 7:00pm
Kovarsky (mail):
Legat,

I do not know the specifics of the story, but the reason i ask are that only members of the subcommittee seem to be quoted in the article, which i admittedly skimmed.

so a further question - under a "waived" program where you are exercising whistleblower protection, are you allowed to disclosed the fact that you may have gone to the head of the agency?
2.15.2006 7:05pm
Charlie (Colorado) (mail):
Justin, I don't of course have access to Tice's psychiatric records, but just working from the public information, it appears that, after hearing that there had been a Chinese "Mata Hari" double agent, Tice reported a female Chinese co-worker as a security risk. That person was investigated, found to be clean --- at which p[oint Tice made a fuss and went to the IG saying that there was a conspiracy.

Sure sounds consistent with a PPD to me.

The difficulty is that it can be a little difficult to tell the difference between a person with good instincts and a PPD in this business. (Cf, COL Flagg in MASH.)

On the other hand, I'm pretty well expert in the way classifications work --- I have done a lot of the basic work on it for secure systems evaluation for NSA. The discussion above about special access is quite complete and appears to me to be correct with two caveats:

(1) We know that Rockefeller, Pelosi, and Harman had access because they were briefed into the program. So the suggestion that Tice couldn't talk about the program to Congress because it's "too classified" seems pretty ludicrous.

(2) From my reading of the new intelligence whistleblower's act, the NSA IG is more or less automatically considered to have need to know. In any case, Tice hasn't gone to the IG or to Congress; he went to the New York Times. I think we can pretty well discount the notion that he wouldn't talk to the IG because the programs were too sensitive.
2.15.2006 7:15pm
Charlie (Colorado) (mail):
Tom says:

This looks like complaints about large-scale monitoring of non-confidential information, notably which phone numbers called which phone numbers when. The phone companies involved know this just for billing. There are cases holding that law enforcement agencies can obtain this information secretly from phone companies, and then use it as evidence in prosecuting the persons whose phones those were.


... and the interesting point about this is that this is pretty specifically what we mean when we talk about ELINT vs COMINT. It's entirely possible for there to be programs which intercept signals that can't be decrypted, but in which the existence of the signals themselves are of interest. What I've seen makes me very suspicious that there are "social network" programs in action using just the public connection information Tom talks about. Given Tice's ELINT background, ths would explain how he had any applicable access at all.
2.15.2006 7:22pm
Charlie (Colorado) (mail):
As far as what members of Congress can disclose, I'd note that they have general immunity for anything done on the floor at least. The usual punishment (CF Leahy) is to remove their security clearance, forcing them to take other committee appointments.
2.15.2006 7:24pm
Neal Lang (mail):
So someone in a position to know claims there is a program that violates the Constitutional rights of "millions of Americans" and the initial response is that even raising this as a concern in public is the equivalent of telling Al-Qaeda how not to get caught? This site is getting more depressing every day.

Of course, there is a "intelligence agency whistleblower's procedure" (Intelligence Community Whistleblower Protection Act of 1998) this clown could have used if there really were criminal violations ("urgent concern": (1) a serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information; (2) a false statement to the Congress on, or willful withholding from the Congress of, an issue of material fact relating to the funding, administration, or operation of an intelligence activity; or (3) an action constituting reprisal in response to an employee's reporting of an urgent concern) taking place.
2.15.2006 7:50pm
Neal Lang (mail):
Amends the Inspector General Act of 1978 to allow employees or contractors of the following agencies who intend to report to the Congress a complaint or information with respect to an urgent concern to report such to the IG of DOD: the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Reconnaissance Office, and the National Security Agency. From: Intelligence Community Whistleblower Protection Act of 1998 Summary
2.15.2006 8:13pm
Neal Lang (mail):
Errr...how about we ask the government, instead, to, ya know, STOP BREAKING THE LAW

Funny, unlike Bill Clinton's Rogues Gallery, the Bush Administration is guilty until proved innocent. Go figure!
2.15.2006 8:16pm
Neal Lang (mail):
Yeah, because Tice sure was way off on the last one! He probably made up the existence of that one too.

Wasn't the "buzz" "on the last one": 1. a DOMESTIC surveillance; that 2. violated the rights of millions of innocent Americans? Yep! Tice hit that one right out of the park.
In early 2001, Tice first reported his suspicions about a young woman he worked with at the DIA whom he believed to be a Chinese spy. He claimed that the woman voiced sympathies for China, traveled extensively abroad and displayed affluence beyond her means. Tice said he "basically got blown off by the counterintelligence office at D.I.A.", but he continued to push the issue until he was transferred to the NSA in 2002.

In April 2003, while Tice was still working at the NSA, an FBI investigation into a Chinese double agent in Los Angeles named Katrina Leung had become international news. She had been receiving classified information from two FBI agents. These revelations of Chinese spying prompted Tice to raise his concerns again.

In a 'secure' e-mail message to the DIA counterintelligence office, he demanded to know what had happened as a result of the 2001 report he had filed outlining his suspicions about his former co-worker (not to be confused with Leung.) "At the time, I sent an e-mail to Mr. James (the DIA official handling his complaint) questioning the competence of counterintelligence at FBI," Tice wrote to the Inspector General of the Pentagon's Civil Reprisal Investigation unit, which investigated his 2003 complaint. In the e-mail, he mentioned that he suspected that he was the subject of electronic monitoring.

In April, 2003, shortly after the e-mail message, Tice was ordered to undertake a psychological evaluation, which he believed was retaliatory. The Defense Department psychologist concluded that Tice suffered from psychotic paranoia. "He did this even though he admitted that I did not show any of the normal indications of someone suffering from paranoia," Tice said in a statement to the Inspector General.

Two months later, in June, 2003, the NSA suspended his security clearances and ordered him to tasks such as maintaining the agency's vehicles, pumping gas, and driving officials around. By April of 2005, after 14 months of paid leave, Tice was relegated to unloading furniture at the NSA's warehouses and cleaning them. From: Russ Tice
2.15.2006 8:27pm
Kovarsky (mail):
Neal,

I know you have a predilection for sarcastic responses that often miss the thrust of another person's remark. While Tice certainly did not go through the appropriate channels, it is quite clear that his leak referred to an extant program. And I think it is strange that you seem to find yourself vindicated on all aspects of the program, when its constitutionality has not been adjudicated by any other coordinate branch.

As for whether domestic versus international surveillance issues, we have discussed this extensively before. And the suggestion that you or I have any idea of how many people's rights have been violated.
2.15.2006 8:42pm
CTD (mail):
The "initial buzz"? Not millions of domestic wiretaps, as you suggest (source?). Rather:

"Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years."

This seems to have been correct, whether Tice is crazy or not. I do not hope to convince you that he is not, but unless he has grown markedly crazi<i>er</i>, it seems that this allegation should be given as much weight as the previous one.
2.15.2006 9:11pm
Neal Lang (mail):
And the suggestion that you or I have any idea of how many people's rights have been violated.

Which doesn't seem to keep you from charging the President with "high crimes and misdemeanors", now does it? Of course, "I know you have a predilection for" accusation without evidence, so I suppose I should simply consider the source.
2.15.2006 10:06pm
Neal Lang (mail):
The "initial buzz"? Not millions of domestic wiretaps, as you suggest (source?).

Buzzzzzz!
The Bush administration has swept aside nearly thirty years of rules and regulations and has secretly brought the NSA back into the business of domestic espionage. The NSA is now eavesdropping on as many as five hundred people in the United States at any given time and it potentially has access to the phone calls and e-mails of millions more. It does this without court-approved search warrants and with little independent oversight.

President Bush has secretly authorized the NSA to monitor and eavesdrop on large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States to search for potential evidence of terrorist activity, without search warrants or any new laws that would permit such domestic intelligence collection. Under a secret presidential order signed in early 2002, only months after the September 11 attacks, President Bush has given the NSA the ability to conduct surveillance on communications inside the United States. The secret decision by the president has opened up America's domestic telecommunications network to the NSA in unprecedented and deeply troubling new ways, and represents a radical shift in the accepted policies and practices of the modern U.S. intelligence community. From: From: State of War: the Secret History of the CIA and the Bush Administration, James Risen, published 3 January 2006, pp. 42-60.

Buzzzzzzzzzzzzz!
2.15.2006 10:45pm
CTD (mail):
"Wasn't the "buzz" "on the last one": 1. a DOMESTIC surveillance; that 2. violated the rights of millions of innocent Americans?" (source: you)

"as many as five hundred people in the United States at any given time and it potentially has access to the phone calls and e-mails of millions more." (source: State of War, as cited by you)

Glad you're coming round!
2.15.2006 11:04pm
Constant (www):
There's a way to force Congress to investigate, even if they don't want to: [ How: Click ]
2.15.2006 11:06pm
Neal Lang (mail):
potentially has access to the phone calls and e-mails of millions more." (source: State of War, as cited by you)

Glad you're coming round!

I am glad you graciously accept your mistake!
2.15.2006 11:52pm
Neal Lang (mail):
There's a way to force Congress to investigate, even if they don't want to:

Where can I get my tinfoil hat?
2.15.2006 11:55pm
Charlie (Colorado) (mail):
CTD, I don't know how much confidence I place even in the notion that Tice is a reliable source on what was being done in the original program. The sort of thing described is a COMINT program, not ELINT --- on the other hand, those aren't so distinct that one never crosses over from one to the other, or even that the distinction is not to some extent artificial. ("Traffic analysis" is an example.) But there are lots of sources on both sides politically telling us that the actual descriptions of the programs in the NYT are inaccurate, so if Tice is the major source, that doesn't speak well for his reliabillity.

But let's assume he is reliable on one program. Then, for all the reasons I laid out above, it becomes in my mind extremely improbable that he, as Joe Career Analyst, would have been read into a whole bunch of other extremely sensitive programs with different missions and collection characteristics. He'd have a full workload on his own stuff, so compartmentalization would preclude it. ("Compartmentalization", by the way, is quite literal: he would not have been able to enter the work areas for other programs.) He wouldn't have Need to Know sources and methods for those other programs even if he used their work product.

Is this certain? No, it's a probability thing, one of those Bayes Theorem calculations: A|B|C|D|E where each of A..E is << 1.0. By the time you get to E, E is very improbable, but still E > 0.
2.16.2006 1:40am
Mary Katherine Day-Petrano (mail):
Junk Yard Dog -- "Justin, I think Humble is right on. The word of a disgruntled ex-employee fired for being psychotic is a source good enough for the NYT, but is hardly credible in the real world. So maybe you want to take the word and legal analysis regarding authority and constitutionality of an unqualified psychotic ex-employee..."

Three peas in a pod. You three must be in the same class. Justin and HLS have already had their go 'rounds with me (grew on me a little I must admit), but hey, JYD, I think you got the diagnosis wrong. I believe the office of dis-information of the dis-crediting agency at issue labeled Tice paranoid, not psychotic. And, hey, there's nothing wrong with dramatics and embellishment .... when someone has sonething significant to say.
2.16.2006 2:18am
Mary Katherine Day-Petrano (mail):
"I'm really beginning to think that the government shrinks who ruled this guy crazy were right on the nose."

Four peas in a pod.
2.16.2006 2:41am
minnie:
This site is getting more depressing every day.

Yup. It sure is. As a matter of fact, because of the level of the majority of comments made here, it's become unreadable.

Anyone who cares about issues like the Constitution and civil liberties and is concerned that our country is heading toward Dictatorship should go over to glenngreenwald.blogspot.com and read some brilliant posts having to do with those issues. Debating arcane legal issues has, sadly, become very much beside the point at such a critical juncture in our nation's history.

I am sure there were people in Germany in the 30's who concerned themselves with local zoning ordinances. Their time, imo, was misspent.
2.16.2006 2:54am
Mary Katherine Day-Petrano (mail):
"If the computing and translating technology were advanced enough, would this cause civil liberty or legal issues?"

Yes. Exactly the main point of my Supreme Court issue. (Dockets 05-7771 &05-7287). Speech recognition is a disability reasonable accommodations device with First Amendment protection. NSA and DoD use speech recognition as a "fundamental incident of war," in surveillance, to remotely operate machinery, aircraft, and soon robotics, and more.
2.16.2006 2:57am
Mary Katherine Day-Petrano (mail):
"Okay Professor Kerr,

Junkyard Dog,

Please back up your assertions that

1) Tice is psychotic"


Thanks Justin for setting JYD straight. You turned out ok after all.
2.16.2006 3:05am
Mary Katherine Day-Petrano (mail):
"Yes I believe there is such a procedure for NSA employees to follow, and if they follow it then both the country's secrets and the person with the concerns are all protected."

I thought I ran across a CIA case not long ago (maybe I'm wrong, or maybe I remember the wrong agency, I read so many cases), but it seems like a very compelling case of discrimination occurred within the CIA and the internal procedures you mention completely failed due to self-interest of the agency. But, as I recall, it was a sad result because the case was dismissed on state secrets grounds.
2.16.2006 3:10am
Kovarsky (mail):
Neal,

Which doesn't seem to keep you from charging the President with "high crimes and misdemeanors", now does it?

Of course, "I know you have a predilection for" accusation without evidence, so I suppose I should simply consider the source.

I have repeatedly expressed my opinion here that I do not nor have I ever advocated impeaching the president. It is therefore peculiar that you accuse me of failing to check my facts. I have repeatedly remarked that I think impeachment, while guided by the "high crimes and misdemeanors" standard, requires more than the president doing something arguably illegal in what he admittedly thought was in the country's best interest. So my question to you is, "um, what on earth are you talking about?"

as an example of why your sarcasm relentlessly distorts the comments made that are at your very fingertips on the thread, I made the point on my first and second posts today:

Yeah, because Tice sure was way off on the last one! He probably made up the existence of that one too.

While Tice certainly did not go through the appropriate channels, it is quite clear that his leak referred to an extant program. And I think it is strange that you seem to find yourself vindicated on all aspects of the program, when its constitutionality has not been adjudicated by any other coordinate branch.

In both passages any rational reader would understand that I was referring to the existence of the program, not an assessment about how many american's rights were violated. You did not respond to that.

I also pointed out that YOU also have no idea how many Americans rights were violated, so your grandstanding on the subject is curious. You did not respond to that.

I conceded that Tice's contacts with the times seem actionable under the Espionage Act. You did not acknowledge that.

I have no problem with sarcasm, as my original post indicated:

I know you have a predilection for sarcastic responses that often miss the thrust of another person's remark.

I do, however, have a problem with sarcasm that is not in service of any particular position, but merely an invariably pithy and contrived reflex that regurgitates the morning's more prominent powerline posts. And in light of your constant reference to the cliche, if you considered the source of the information you present in these discussion nearly as much as you seem to dismiss the source of the discussion's comments, we might have a more productive discussion.

Instead we get responses from you like "where's my tin hat?" Nice point.
2.16.2006 3:25am
ADB:
"If the computing and translating technology were advanced enough, would this cause civil liberty or legal issues?"

First, wiretapping phone calls in and of itself constitutes a search under Katz v. US, 389 US 347 (1967), which must meet 4th Amendment constitutional standards. Second, if computing and translating technology were advanced enough such that calls or emails are monitored without the use of wiretaps, the technology would constitute as a search if the Court rules that it is an intrusion on an individual's expectancy of privacy. See Kyllo v US, 533 US 27 (2001). (holding that police use of thermal imaging technology on a home constituted a search).

Commenters, feel free to correct me if I'm wrong.
2.16.2006 4:16am
Bruce Hayden (mail) (www):
Charlie (Colorado)

What does it mean to be read onto a program? I have run into the term before a couple of times, and got some idea of what was going on. But you appear to have a bit more expertise here than most, if not all, of the rest of us.

Also, the program that has been discussed so much of late seems to be a bit big for this sort of security. What are the numbers handled by this level of security? Tens? Hundreds? Thousands?
2.16.2006 8:26am
JunkYardLawDog (mail):
Mary Katherine,

Somebody quoted upstream that on Tice's web site or released info, Tice admits the government psychiatrist diagnosed him as a "psychotic paranoid".

Consider it backed up. BTW, it should be obvious I'm not an MD or Psychiatrist, and my use of medical terms are not intended to be taken as an official diagnosis.

Calling someone a Psycho or Psychotic is common language used by the public as a descriptive adjective and not a certification of a particular medical diagnosis.

However, in this case it appears there is a medical diagnosis of Tice being a "Psychotic Paranoid", per Tice himself.

Says the "Dog"
2.16.2006 10:05am
Wrigley:

"I know you have a predilection for" accusation without evidence, so I suppose I should simply consider the source.


Neal Lang, didn't you make a series of comments on this site "discussing" the movie Munich without ever seeing it? I'm glad you take the "accusation without evidence" creed so seriously.
2.16.2006 11:09am
Some Guy (mail):
All appropriate Senate staff on the oversight committees have top secret clearance, and most can even be trusted with secrets affecting national security (unlike Tice himself). Mr. Tice is simply telling the left-wing what it wants to hear, namely that Bush is listening to their telephone calls because they are so dangerous, and that Ted Kennedy's folks are powerless to stop the NSA because of bureaucracy. There is no ultra-secret program.

At least none that a madman like Tice would have been trusted with knowledge of.
2.16.2006 11:10am
Tom Holsinger (mail):
ADB,

Pen registers are not searches. Tice seems to have been referring to the digital equivalent of pen registers. There is no expectation of privacy in the date, time and phone numbers/email addresses of phone and email communications.
2.16.2006 11:12am
Neal Lang (mail):
Neal Lang, didn't you make a series of comments on this site "discussing" the movie Munich without ever seeing it? I'm glad you take the "accusation without evidence" creed so seriously.

Not seeing the movie is NOT the lack of "evidence". I had multiple "eye-witness" accounts to rely on, unlike those here who have already convicted the President on basis partisan "hearsay"! Where's your angst for the "lynch mob" in the NSA Terrorist Surveillance case?
2.16.2006 11:45am
Anderson (mail) (www):
Pynchon's Proverbs for Paranoids, # 3:

If they can get you asking the wrong questions, they don't have to worry about the answers.

(Some days, I really love Google.)
2.16.2006 11:47am
Neal Lang (mail):
as an example of why your sarcasm relentlessly distorts the comments made that are at your very fingertips on the thread, I made the point on my first and second posts today:

Is the chip that you carry on your shoulder, or perhaps your delusion of grandeur that makes you think I am even addressing your comments. Of course, you seem to want to play the "White Knight" role and defend all that I might challenge as long as they concur with particular vision of reality. What can I say, except perhaps you should seek some professional help before your condition gets any worse.
So someone in a position to know claims there is a program that violates the Constitutional rights of "millions of Americans" and the initial response is that even raising this as a concern in public is the equivalent of telling Al-Qaeda how not to get caught? This site is getting more depressing every day.
JosephSlater and not Kovarsky
Errr...how about we ask the government, instead, to, ya know, STOP BREAKING THE LAW
Justin and not Kovarsky
Finally:
Yeah, because Tice sure was way off on the last one! He probably made up the existence of that one too.

O, and don't let al qaeda know that we enforce our constitution, they may change their tactics.

What I find ironic about this whole thing is that everybody in the administration acts as though it's as if it's the media's fault that these programs are on the front page. if these programs were done through the legislative process, nobody would have noticed.

unless you think osama bin laden reads teh congressional record to try to discern the legislative history behind enabling statutes.
Kovarsky
No sarcasm here, is there? To which I replied:
Wasn't the "buzz" "on the last one": 1. a DOMESTIC surveillance; that 2. violated the rights of millions of innocent Americans? Yep! Tice hit that one right out of the park.

As I documented in James Risen's commentary piece, the "Buzz" in January was that:
1.) The Bush administration has swept aside nearly thirty years of rules and regulations and has secretly brought the NSA back into the business of domestic espionage
2.) potentially has access to the phone calls and e-mails of millions more

Of course, you totally ignored documentation and instead challenge me thus:
Neal,

I know you have a predilection for sarcastic responses that often miss the thrust of another person's remark. While Tice certainly did not go through the appropriate channels, it is quite clear that his leak referred to an extant program. And I think it is strange that you seem to find yourself vindicated on all aspects of the program, when its constitutionality has not been adjudicated by any other coordinate branch.

As for whether domestic versus international surveillance issues, we have discussed this extensively before. And the suggestion that you or I have any idea of how many people's rights have been violated.

Coming from someone who just posted:
Yeah, because Tice sure was way off on the last one! He probably made up the existence of that one too.

O, and don't let al qaeda know that we enforce our constitution, they may change their tactics.

What I find ironic about this whole thing is that everybody in the administration acts as though it's as if it's the media's fault that these programs are on the front page. if these programs were done through the legislative process, nobody would have noticed.

unless you think osama bin laden reads teh congressional record to try to discern the legislative history behind enabling statutes.

I believe charge of making "sarcastic responses" is quite the "pot calling the kettle black". However, unlike you, I have no problem with attempts at humor.

Instead I responded to your "And the suggestion that you or I have any idea of how many people's rights have been violated." thus:
Which doesn't seem to keep you from charging the President with "high crimes and misdemeanors", now does it? Of course, "I know you have a predilection for" accusation without evidence, so I suppose I should simply consider the source.

Unless I miss my guess the "violation of people's rights" would (and should) be considered a "high crimes and misdemeanors". My final "pare" was my small attempt at sarcastic wit at the expense of your small attempt at sarcastic wit. Obviously it was "over your head". Sorry, I try to be a little less subtle next time.

In between your retort and my response we have:
The "initial buzz"? Not millions of domestic wiretaps, as you suggest (source?). Rather:
CTD and not Kovarsky
It was to CTD's statement that I documented the "Buzz" in early January with James Risen commentary demonstrating the "domestic surveillance" and effecting "millions of phone calls and e-mails".

Glad you're coming round!
CTD and not Kovarsky
This was CTD's reply to my "on point" documentation of the early "Buzz" related to the NSA Terrorist Surveillance Program. My, admittedly "sarcastic" rely highlighted the "millions of phone calls and e-mails" and added:
I am glad you graciously accept your mistake!

Next came:
There's a way to force Congress to investigate, even if they don't want to:

Constant and not Kovarsky

Obviously if you follow the link to Constant Website you will find a "conspiracy buff" in all his "tinfoil hat" glory, so I responded:
Where can I get my tinfoil hat?

Based on your reply to my response to Constant's post, you believ only you, and those who agree with you, are entitled to debate on this blog using "wit and sarcasm". Well that's just too bad - get over it!

Again, acting the part of the "champion of lost causes" you took it upon yourself to take dear Constant's part and retorted:
Instead we get responses from you like "where's my tin hat?" Nice point.


This brings us to your current critique on me which I truly appreciate, seeing how, unlike you, I accept my mortality and believe "every knocks a boost". Now, Kovarsky while do not have a problem with your "caped crusader" persona, or your "cheap shot, or your shallow attempts at "wit and sarcasm" - I have "pretty thick skin", you see, and can handle it. However, so your obviously delecate mental condition doesn't suffer any more trauma, I respectfully suggest that you "lighten up" just a little.

Have a nice day,

Your pal,

Neal
2.16.2006 1:08pm
Mary Katherine Day-Petrano (mail):
Legat -- "the program in question is considered a battlespace preparation activity, in which case it is roled into a larger military operation. Clearly, there can be no battlespace preparation operations on US soil."

Is this what speech recognition is (more specifically, I am referring to military efforts to operate surveillance mechanisms, battlefield military equipment, aircraft, robotics, and "virtual humans" remotely "hands free")? And if, so, how can you be so sure about your last statement?

Just curious. You yourself seem to have what appears to be classified inside info.
2.16.2006 1:30pm
Mary Katherine Day-Petrano (mail):
"The wikipedia article on Tice (at least as of this writing) details both his ELINT background and the psychiatric diagnosis."

I am wondering -- is it possible for wikipedia to violate HIPAA? Wow. Pretty soon EVERYONE's medical records are going to be publicly posted there.
2.16.2006 1:32pm
Mary Katherine Day-Petrano (mail):
"He was let go when his mental condition persisted and created problems, even in the lower stress position. That is my take on the scenario that probably evolved for Tice. It is not a matter of shame for someone to eventually crack under the high-level stress of such an intelligence position."

Uhhh ... did they reasonably accommodate him? Or is the NSA somehow claiming exemption from the Rehabilitation Act of 1973. The way I see it, this whole notion that people with certain types of disabilities cannot handle a stress position is very misplaced if the conclusion and demotion or termination is based on a failure of the agency to mitigate via provision of accommodations. In other words, some people with mental disabiltiies can, in fact, well perform such high level iintelligence agency stress jobs, and it is really an offensve proposition to disabled people who CAN perform such jobs to (1) create a label, and (2) blanket exclude people because of the assumption a person "with a mental disability" is "bad for national security.

I encountered this mindset personally with a CIA interviewer my last year of law school, except for the fact they were interested in me because I had taken Arabic and Russian languages. I was just blown away by the arrogance of the interviewer, frankly. This is probably why the CIA gets unqualified people sometimes, an inappropriate ability to separate the disabled wheat from the chaff.

Of course I do not personally know all the facts as to Tice, and whether HIS mental disability WAS disqualifying. Maybe it WAS. But other people's may not be.
2.16.2006 1:42pm
Some Guy (mail):
One would hope that a diagnosis of psychotic episodes, such as Mr. Tice's diagnosis, would be enough to automatically revoke someone's security clearance and access to secrets that could put Americans lives in jeopardy if they were to fall into the wrong hands.

As far as HIPPA goes, I can understand how it would bother you very much that the person screaming about government conspiracy is a raving lunatic diagnosed as a paranoid psychotic--but how is that NOT relevant to the rest of us trying to ascertain whether what he says has merit?
2.16.2006 2:04pm
Some Guy (mail):
Sorry, I didn't read between the lines on your comment, there. You yourself are insane and you were denied a security clearance because of your mental shortcomings.

My apologies, I hope you are feeling much better now.
2.16.2006 2:07pm
Mary Katherine Day-Petrano (mail):
"and the initial response is that even raising this as a concern in public is the equivalent of telling Al-Qaeda how not to get caught?"

I can't help but wondering if it is the characteristic of President Bush in his role as CIC being afraid of horses (unlike other CICs and great military generals like General Patton), together with the apparent possibility the NSA hires no horsemen or women, that has so hampered this Nation's ability to catch OBL. Any horseperson worth their salt probably could find and apprehend OBL, since he rides horses in the mountains, by simply realizing he has to purchase new tack (equipment for his horse) to replace broken tack, discovering where he purchases his tack, and then following the trail of the tack delivery to his and his horse's location.

If OBL were caught, much of this NSA brouhaha would greatly diminish. But this is an aside.
2.16.2006 2:07pm
Mary Katherine Day-Petrano (mail):
JYD -- "However, in this case it appears there is a medical diagnosis of Tice being a "Psychotic Paranoid", per Tice himself.

Says the 'Dog.'

SG -- "One would hope that a diagnosis of psychotic episodes, such as Mr. Tice's diagnosis, would be enough to automatically revoke someone's security clearance and access to secrets that could put Americans lives in jeopardy if they were to fall into the wrong hands.

As far as HIPPA goes, I can understand how it would bother you very much that the person screaming about government conspiracy is a raving lunatic diagnosed as a paranoid psychotic--but how is that NOT relevant to the rest of us trying to ascertain whether what he says has merit?"

Ok, JYD and SG:

1. Post a link to the factual support for your positions that Tice was diagnosed "pyschotic" in additiona to "paranoid." There is a HUGE difference between a "paranoid psychotic" and a "paranoid personality disorder." If you have the proof, I cannot hardly dispute your facts, can I? So, "show me" Dog.

2. SG, the fact someone is psychotic does not necessarily mean the person is not credible. The causal link between the two fails in some instances. As far as HIPAA goes, there are very specific procedures written into the law as to who can obtain acess to medical information (assuming arguendo wikipedia has become a healthcare clearinghouse), regardless of the reason for "needing to know." I might well agree with you Tice is a danger if he is, as you say (but have not offered proof to support) a "raving lunatic diagnosed as a paranoid psychotic." But, first, I need to hear more analysis to support your conclusion Tice is a danger. The proper Rehabilitation analysis would be, is he a "direct threat?" To ascertain this, you have to analyze the "direct threat" facors -- See, Bragdon v. Abbott and Nassau County School Board v. Arline for details on teh required analysis, and then even if your analysis supports the conclusion Tice is a "direct threat," then you have to analyse whether any reasonable accommodation is possible that would remove the "direct threat."

Again, so, "show me." Obviously if your conclusion can be sustained, I would have to agree with the danger to Tice's continuing to hold such security clearances involving information over the lives of Americans.
2.16.2006 2:19pm
Mary Katherine Day-Petrano (mail):
ADB -- "Second, if computing and translating technology were advanced enough such that calls or emails are monitored without the use of wiretaps, the technology would constitute as a search if the Court rules that it is an intrusion on an individual's expectancy of privacy. See Kyllo v US, 533 US 27 (2001). (holding that police use of thermal imaging technology on a home constituted a search)."

You know, I have read everyone's opinions going both ways on this issue, and I am asking the same questions you are. I think this is important, because speech recognition is being used for some of these searches, and we all know it has a false positive error rate problem with teh recognition of words actually said. So, myself, I would tend to agree with your above-analysis, since I cannot imagine how a person would not have a privacy interest, as well as a First Amendment right, to the accurate search for words he or she actually spoke. In other words, I would not regard the intermediary machine between capture and human as breaking the search requirements.
2.16.2006 2:24pm
Mary Katherine Day-Petrano (mail):
"Pynchon's Proverbs for Paranoids, # 3:

If they can get you asking the wrong questions, they don't have to worry about the answers.

(Some days, I really love Google.)"

The aility to accomplish the proverbial litigation tactic you reference is not limited to the disabled.
2.16.2006 2:26pm
Mary Katherine Day-Petrano (mail):
SG -- "Sorry, I didn't read between the lines on your comment, there. You yourself are insane and you were denied a security clearance because of your mental shortcomings."

Was this ad hominen attack directed to ME, or to someone else? If you were directing it to me, please know I had a security clearance (never revoked) for US Attorneys' Office. Obviously, you again probably have made conclusions you cannot support.

I think the discussion on this thread is relevant and interesting, particularly Legat and Kovarsky who are very informative, but I just wish the people making unsupported (unsupportable?) conclusions would offer their suppor for the same. It would greatly advance the discussion.
2.16.2006 2:30pm
ADB:
Tom Holsinger: "Pen registers are not searches. Tice seems to have been referring to the digital equivalent of pen registers. There is no expectation of privacy in the date, time and phone numbers/email addresses of phone and email communications."

The inquiry here is pretty fact specific and I think we can all agree that there are not enough facts here to make a conclusion.

Translation: We just don't know enough details on the program(s) in use to make good arguments either way.
2.16.2006 3:07pm
JunkYardLawDog (mail):
Mary Katherine,

As I said in my reply to you the link to the backup you keep demanding was posted upstream. Meaning its in a post in this comments thread. You just needed to do an edit/find on this page search for the word Psychotic and there it is in Neal Lang's post. If that's too much trouble here it is again.

From Wikipedia as referenced upstream and linked therein by Neal Lang:

In April, 2003, shortly after the e-mail message, Tice was ordered to undertake a psychological evaluation, which he believed was retaliatory. The Defense Department psychologist concluded that Tice suffered from psychotic paranoia. Click Here

Says the "Dog"
2.16.2006 5:32pm
Mary Katherine Day-Petrano (mail):
JYD — "and there it is in Neal Lang's post...Wikipedia"

And Wikipedia IS .... ???? And Neal Lang is a lawyer?

See, below for a controverting diagnosis —

"MARIA HINOJOSA: Before firing him, the NSA sent Tice for a psychiatric evaluation. The diagnosis: paranoid ideation." NOW Transcript, PBS, available at Source

Paranoid ideation is usually just some of the features (but not all necessary diagnostic criteria) for a fiinding of paranoid personality disorder, but NOT paranoid psychotic.

Now we have a weighing the credibility of the evidence issue.

That calls for us to see the original expert psych report. Do you have a link for that? If so, please post.
2.16.2006 7:00pm
Bruce Hayden (mail) (www):
Probably the best reason that I have heard to question Tice is that it would be highly unlikely for him to have the details of two such highly classified programs as he is claiming. One, maybe, but not two. As several have posted, the security agencies are just a lot more compartmentalized than that. But, then, I think many of the details that he disclosed about the first program turned out to be inaccurate or guesses, and the country is just now actually figuring out what the first NSA program does.

I also note his apparent contention that he couldn't disclose the relevent classified information to his agency IG or the Congressional Intelligence committees (in conformity with the Whistleblower law) because they weren't cleared for it, but could to the NYT, which has no security clearance whatsoever.

So, he may or may not be a paranoid psychotic, but beyond that, his story doesn't seem to pass the reasonableness test.
2.16.2006 9:57pm
Mary Katherine Day-Petrano (mail):
Thanks, Bruce. A reasonable answer.
2.16.2006 11:53pm
Just an Observer:
Some things to remember about Tice:

Although he has said he talked to the NYT, James Risen has neither confirmed nor denied that Tice was a source. Additionally, Tice has insisted he never disclosed any classified material to the press, the the NYT stories obviously included classified material. What Tice has said in public forums has not revealed any secrets.

So it is not reasonable to assume that Tice was the source -- or even a source -- for the core of what the NYT has reported about warrantless NSA surveillance in this country.
2.17.2006 12:24pm