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More Info on NSA Warrantless Wiretapping Program:
According to Paul Kiel, Eric Lichtblau's new book sheds new light on the program.
AntonK (mail):
Funny, that little book by Lichtblau. Bush's Law, eh? Well, it seems that the courts have been upholding the legality of NSA wiretapping of terrorist pretty consistently. I'm not going to do your research for you, but see here, here and here as examples.

Bye-bye to Lichtblau -- Leftist and polemicist.
3.19.2008 5:41pm
fnook (mail):
Well, it seems that the courts have been upholding the legality of NSA wiretapping of terrorist pretty consistently.

Wrong. The only federal judge to rule on the merits of the program ruled it was unconstitutional. All the other court decisions declined to rule on state secrets or standing grounds. Guess that makes you an ignorant Rightist, or something.
3.19.2008 5:58pm
kelvin mccabe:
From the article "While that program was ongoing, the FISA court was still approving warrants submitted by the Justice Department like normal. But sometimes the two processes crossed. Sometimes the Justice Department would want a wiretap for someone who had already been wiretapped without a warrant. Lichtblau reports that "some 10 to 20 percent of all court warrants fell into this area of 'double coverage."

Assuming many of these people were u.s. citizens - - any idea of the 4th amendment ramifications? And no, i dont think the results of unregulated data mining by the NSA to start the warrantless wiretapping before finding something better to apply for a warrant = reasonableness.

It equals the largest f-in fishing expedition in the history of the united states. Not surprisingly, many of the leads led nowheres.

What i dont get, is while the FBI complains about the pizza hut leads, they themselves are apparantly issuing all kinds of NSL's etc... to perpetuate it. This whole situation is so pathetic.

And i wouldnt be so quick to believe the author that this all happened post 9-11 as the Qwest case demonstrates (even if the defendant himself cannot demonstrate it in Court) that some of these requests (or some form of them) happened up to 6months before 9-11, but after Bush and Co. came into office. Something to keep in mind.
3.19.2008 6:03pm
OrinKerr:
AntonK,

Your comments keep undermining your credibility; a ruling on a procedural ground like standing is not a ruling on the merits.
3.19.2008 6:08pm
AnonNerd:
That book sounds depressing. And you say that the author sheds new light on the issues? Sounds like Lichtblau sheds blau licht on them.
3.19.2008 6:51pm
Anderson (mail):
Leaving aside that "wiretapping of terrorists" isn't an issue. If we know someone's a terrorist, then probable cause should be pretty easy. If we don't know that, then why are we wiretapping?

The cia.gov review of a recent study of interrogation methods included this quote from a Nixon-era spook testifying to the Church Committee:

The risk was that you would get people who would be susceptible to political considerations as opposed to national security considerations, or would construe political considerations as opposed to national security considerations--to move from the kid with a bomb to the kid with a picket sign, and from the kid with the picket sign to the kid with the bumper sticker of the opposing candidate. And you just keep going down the line.

Are we smarter, better people now than we were in Nixon's time? Not drawn into any Vietnam-like quagmires, for instance? ... well there you go, then.
3.19.2008 6:53pm
Randy R. (mail):
Time and again, we learn that gov't programs like these always seem to expand rapidly to include just about everyone. there is always an incentive to cast a bigger net, and none to restrict it.
3.19.2008 7:01pm
Kazinski:
Orin,
I hope you are not saying the Judge Taylor's ruling reached the merits of the case and, but for some niggling technicality, would be the law of the land.

There is plenty of law out there that does indicate the NSA program is legal, Kieth, Truong, Re-sealed case, all indicate the President has broad powers for warrantless foreign intelligence surveillance.
3.19.2008 7:37pm
Anderson (mail):
Kazinski, we've all been over this so many times -- why do you keep repeating the same poor stuff?

The Keith case predates FISA; the Truong case dealt with a pre-FISA situation -- "plenty of law"?
3.19.2008 8:50pm
cboldt (mail):
-- There is plenty of law out there that does indicate the NSA program is legal --

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There's case law that describes fact patterns that represent constitutional surveillance that lies outside of court preview; as you noted, Keith and Truong. But there is no way to come to an authoritative conclusion about the "contested" surveillance without a fact pattern to apply the case law to.

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OTOH, the fact that the fact pattern isn't forthcoming is a darn good hint that the program isn't within the ambit of Keith and/or Truong.

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All Keith and Truong stand for is the proposition that SOME surveillance (that undertaken for foreign intelligence purposes) can be undertaken without a warrant. My hunch is that we'd find, in the warrantless TSP, SOME surveillance is constitutional, and some isn't.

.

beside Anna Diggs Taylor's opinion, we also have the FISC shooting down the program, probably as being outside of the statutory framework that FISC operates under.
3.19.2008 10:28pm
Jagermeister:
From the publisher's description on Amazon, and the quotes on TPM, it doesn't appear that Lichtblau's book is very impartial, or balanced. It especially appears as if he veers off into reading the motive and intent of his antagonists - never a good sign for anyone hoping to be taken seriously.

More importantly, I distinctly remember from Orin's discussion of FISA, back when the story first broke, that there four different areas to the legal foundations of FISA (appeals to AUMF, Article II powers, etc.), and Lichtblau's effort seems to address none of them in the depth which Orin did (judging from the review material). If true, that seems a pretty significant oversight. How can one be taken seriously without a sober consideration of the applicable laws? I remember Orin's explanation of the "border exception", for example, and its possible applicability to conversations with one leg outside the US. And I disagree with the ruling that conversations routed through the US, with both parties external to the US, require a warrant. That seems counter-intuitive. In any case, the point is that the case isn't as much a "slam-dunk" as the TMP article seems to imply.

The entire issue is more complicated than its opponents allow, and its hard to take seriously a work with a title such as "Bush's Law". It is obviously a polemic, targeted towards the same howling-at-the-moon partisans who use terms such as "Chimpmeister" and "Bushitler". Wait for a few more months and I bet you can pick up a copy for less than a dollar on the remainders table at any university bookstore.
3.20.2008 3:13am
srg:
Anderson,

As Justice Posner has said, the reason we wiretap (if that is the right term, since the new technology is pretty opaque to me) is to find out who is a terrorist, in order to prevent attacks.

Do you disagree, and if so, why?
3.20.2008 10:53am
cboldt (mail):
-- I disagree with the ruling that conversations routed through the US, with both parties external to the US, require a warrant --

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We don't know what the FISC ruling was, but if (and to the extent) it corresponds with the characterization above, my guess it that the ruling is a reflection of FISA and not of the constitution.

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It's fairly informed speculation that the adverse ruling you allude to is a reflection of the definition of "electronic surveillance" in 50 USC 1801(f)(2), but even THAT definition (which touches on acquisitions from US-based switches) doesn't sweep in conversations where both parties are external to the US.

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


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However, if the intention is to sweep in conversation of people in the US (which is what the TSP is described as doing), then the activity could get swept into that definition of "electronic surveillance."

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That gets away, a bit, from the general point I wanted to make, that being that a contention that a Court "required a warrant for foreign to foreign communications" is misleading at best, and is probably false.
3.20.2008 11:23am
cboldt (mail):
-- the reason we wiretap ... is to find out who is a terrorist, in order to prevent attacks. --

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IOW, every conversation represents a possible threat; and privacy itself creates a risk.

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Other than the stated rationale, I think all of the above are truisms. I see privacy and violence prevention as being in tension; so the policy issue becomes how to balance those competing values.

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While Lichtblau's treatment of legal analysis is stunted, I found the brief speculation as to the mechanics of the program (suspicion being created by patterns of calls, suspicion being used to justify "listening to" or "reading" the contents of communications) to be interesting.
3.20.2008 11:33am
srg:
"I see privacy and violence prevention as being in tension; so the policy issue becomes how to balance those competing values."

cboldt, that is exactly right; I thought Anderson seemed to be taking a much more extreme position.
3.20.2008 11:42am
Anderson (mail):
As Justice Posner has said

"Justice" in his own mind, perhaps.

Judge Posner is an avowed pragmatist, and I am not terribly interested in his eagerness to dispense with the law in order to get to what's practical.

The bottom line is what's it's always been: If the surveillance desired by the President is so terribly necessary, then let him go to the Congress and get a statute authorizing it.

If he's afraid to make a case for it -- a fear, n.b., that evidently prevailed through 6 years of a Republican Congress -- then I can't take his fearmongering very seriously.

(Of course, many have speculated that the Republicans think another 9/11 attack would be good politics for them; even some Republicans have been caught on the record wistfully wishing for more dead Americans.)
3.20.2008 11:44am
cboldt (mail):
-- I thought Anderson seemed to be taking a much more extreme position. --

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Tough to tell. I harbor a certain uneasiness, inasmuch as the policy that aims to describe the balancing between privacy and security is a secret policy, I get the feeling that the policy is not particularly respectful of privacy, and that random (or pseudo-random) snooping is being used to bootstrap a finding of probable cause to have suspicion of risk of violence.

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Unlike the mail censorship program of WWII, or privacy invasions that comprise the body of case law, the public is in the dark as to the general contours of snooping policy; on the argument that to know the policy would tip off the terrorists who would thereby evade detection.
3.20.2008 11:51am
cboldt (mail):
-- If the surveillance desired by the President is so terribly necessary, then let him go to the Congress and get a statute authorizing it. If he's afraid to make a case for it ... --

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IIRC, there were multiple rationales for aversion to going to Congress. One being a fear that Congress would disagree with the scope of surveillance to be admitted under statutory policy; and another being that making the snooping policy a matter of public record would tip off terrorists and thereby cause them to change their communications practices and evade detection.
3.20.2008 11:56am
srg:
Anderson wrote:
"Judge Posner is an avowed pragmatist, and I am not terribly interested in his eagerness to dispense with the law in order to get to what's practical."

I don't know whether Anderson or cboldt is right that Bush should have gone to Congress, though I tend to think he should have, but the above statement obviously begs the question by assuming that Bush dispensed with the law.
3.20.2008 11:59am
cboldt (mail):
-- by assuming that Bush dispensed with the law --

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Comparing the stated scope and methodology of the TSP (warrantless, involving suspected international terrorists and US people) with FISA leads inevitable to the conclusion that the TSP operated outside of statutory law. IOW, that's way beyond the realm of "assumption."

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But without knowing the contours of the surveillance, one can't undertake further analysis as to whether or not the surveillance was in fact limited to the acquisition of foreign intelligence information. If it is, then one can argue that the activity, while outside of statutory law, is within the boundary of constitutional law. Ergo, "it's lawful."
3.20.2008 12:09pm
Anderson (mail):
the above statement obviously begs the question by assuming that Bush dispensed with the law

I was referring to Posner, not Bush, though I am unaware of any serious argument (outside "spooky Article II powerz!!!") for Bush's NOT having broken the law.

cboldt, those are the rationales for evading Congress that I've seen, but I have never found them terribly plausible. The necessary statute would surely be written at a sufficient level of generality that it wouldn't be much of a tip-off.

Besides which, complete abandonment of the democratic process in favor of some hard-to-estimate tactical advantage does not strike me as a reasonable trade-off.
3.20.2008 2:10pm
cboldt (mail):
-- those are the rationales for evading Congress that I've seen, but I have never found them terribly plausible --

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Not only evading Congress, but also evading the public. I make note of that because there is a significant sentiment that resolution of the so-called "past" practices vis-a-vis FISA and the Constitution is proposed to take place out of public sight, either in FISC, or in chambers of another court, or in some sort of secret Congressional investigation.

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I don't find the rationales terribly plausible either. But, they are good enough to get over on a substantial fraction of the voting public.
3.20.2008 4:32pm
Anderson (mail):
But, they are good enough to get over on a substantial fraction of the voting public.

At least 27%, I'd guess.
3.20.2008 4:58pm
Sedgequill:
Does Lichtblau's book have much on surveillance and analysis of email, web search, and web site visits?
3.20.2008 6:04pm
PC:
As Justice Posner has said, the reason we wiretap (if that is the right term, since the new technology is pretty opaque to me) is to find out who is a terrorist, in order to prevent attacks.

Do you disagree, and if so, why?


Yes, I disagree. People in power have abused this type of surveillance and people in power will do so, if not right now, in the future. The super-secret FISA court is meant as a check on that power.

On one side you have people that trust Bushitler to wield this power, but that would shriek about that same power being given to Hitlery Clinton or Barack HUSSEIN Osama. Flip those and you have another side. Somewhere in the middle of the polemics exist people like me. We don't trust anyone in the government with this type of unchecked power.

Warrantless wiretaps, the wholesale data mining of emails and domestic phone calls, National Security Letters, and the rest are ripe for abuse. We already know that some of these instruments have been abused. What is required is oversight, and dare I say, transparency. Remember the idea of a government of laws and not men? Sounds like a pretty conservative idea to me.
3.20.2008 6:51pm
Anderson (mail):
people that trust Bushitler

I've never understood the Hitler comparison. Hitler had charisma and the occasional flash of military competence (having gone out of his way to serve in wartime as a young man). And those are just the positive qualities.

Bush seems more like a Nicholas II.
3.20.2008 7:17pm
Sedgequill:
As to their knowledge of surveillance and information programs operated by intelligence agencies, Members of Congress have not gotten nearly enough examination. Plainly most Members have individually kept themselves willfully ignorant, or have willfully misled the public as to how much they have known, or have done both.

We're not likely to learn on our own the full extent of illegal actions in surveillance and information programs operated by intelligence agencies; however, we've been able to learn some facts from news reports, opinion pieces, interviews, posts to web sites and blogs, books, papers, and lectures. We should expect Members of Congress to be as informed as anyone of published facts pertaining to government surveillance. We should also expect them to use their constitutional powers to educate themselves and then the public. Moreover, there are organizations and individuals who are willing and able to help Members gain understanding of technical and legal issues.
3.20.2008 8:08pm