Asymmetrical Information

Amen, sister.
The genius of America is forbidding the goverment from certain actions. Relying on 'men of good will' creates France at best and some truly distasteful people (and systems) at worst.

I absolutely agree that all wiretaps should be executed in a fully legal way.

That said, hyperventilating (as some are) about the quite limited range of these wiretaps seems to me to be entirely excessive. Jane, of course, is not doing that, but many people are including, as was mentioned in the post, countries that have no business lecturing the US on civil liberties (although we should heed the lesson anyway).

I see this as a relatively small problem in the greater scheme of civil rights abuses, but a) that still makes it a problem and b) that clearly doesn't jive with the way some people are making this issue out.

Jane, I may be incredibly dense this evening (even more so than usual), but I am truly mystified by this post. When you write, "As bad as terrorism is, there are worse things in the world, and governments that spy on their citizens, and torture them, and imprison them without trial, are among those things.", is your point to condemn what we are doing or laud us for getting the balance right? Because, as has been pointed out a lot in the blogosphere lately (in response to former Vice President Gore's latest speech), the US has had FAR WORSE records on civil liberties when facing past crises.

Despite the NYT's hysterics over Bush's "domestic spying", Bush has NOT been spying on US citizens. (The NSA program is focused on international spying. Even the NYT admits that any "domestic eavesdropping", where all parties to a call are inside the US has been inadvertent.) Our government does not torture non-citizens, let alone US citizens. (Let's assume the term "torture" should be given its historical meaning and not broadened to include anything that might inflict momentary discomfort.) Have prisoners under our control been abused? Yes to our shame and regret. It has also been our government at the forefront of the efforts to prosecute and punish those who abuse prisoners.

Have we attempted to detain US citizens without trial? Yes. There you may have a point. Two of our fellow citizens were held without trial until the courts intervened. Both were actively working for the other side when they were taken into custody. One was captured on the battlefield fighting against our military. The other was captured when he returned to the US to further a terrorist plot. We have a word for members of our society who actively work for our enemies in time of war. And a traditional punishment for those taken in such activities. Tell me, what do you think George Washington would have done with Benedict Arnold had Arnold been captured? By comparison to what we have traditionally done, our two fellow citizens have fared remarkably well.

Which, might be your point. By any historical measure, the Bush Administration's response to the threats from terrorists have been remarkably restrained. Returning to the NSA intelligence program, that the program has been vetted by the Dept. of Justice every 45 days, has been disclosed to key members of both parties in Congress, and was shut down for a period when when the Acting Attorney General raised questions about the programs legality, all demonstrate that the Administration has been making a great effort to conduct the program within in the law. Contrast this conduct with the immediate prior Administration which used military spy satellites to spy on Americans (Ruby Ridge and Waco), who conducted PHYSICAL searches of private residences INSIDE the US -- without bothering to get a warrant, sent its Deputy Attorney General to Congress to assert that the President has the authority to conduct searches without warrant if the search is for national security (as opposed to law enforcement) reasons, and created the ECHELON program to eavesdrop on BOTH domestic and international communications (and then sold the information to its political donors). Can anybody say we are now, by comparison with past reality as opposed to some utopia that we should always strive for but will never achieve, in some civil liberties dark age?

Isn't the hard question what to do with citizens who are waging war against the USA or are aiding people waging war against the USA. Are they just criminals or are they something else? This is the kind of issue the Bush administration has to contend with and I suspect that knowing they're responsible for national security influences their decision making. When attacks happen lots of people are going to look the them for answers and that's got to be tough.

I think Rod's right but I also think there's a legitimate question as to whether the Constitution or FISA prohibits the NSA program.

I was about to mention Ruby Ridge and Waco, but not in the context of "military spy satellites": I was thinking more of murder by agents of the Federal government. Perhaps I have an odd set of priorities.

I was really reacting to the idea that the Bush administration wants us to be more like France. I agree that we've behaved worse in the past; I'm not one of those libertarians who think that infringments of civil liberties are the inevitable harbinger of the Death of the Republic, as I said here. But I'm also not one of those warhawks who thinks that the war on terror is important enough to disregard niceties like American citizenship. Oh, I'd be perfectly happy to outlaw dual citizenship, so as to cut down on the number of ersatz "citizens" who clearly feel no allegiance to us, but as long as we do allow dual citizenship, I am vehemently against eroding the meaning of "citizen" in order to make it easier to prosecute a handful of hate-filled nutjobs, no matter how murderous their intent--just as I am against gutting the fourth amendment just even though doing so would undoubtedly make it easier to catch the ordinary murderers who kill thousands of Americans every year.

I'm in the middle of the libertarian road on teh Bush administration's current shenanigans; I don't think they've done much harm, but I also think they should be outlawed, in order to ensure that the government does not progress to doing things that will do a lot of harm.

It is in the nature of government officials to see all the worthy (at least in their minds) goals they could achieve with a touch more power, and seek to expand their power accordingly. I do not blame them for this, nor am I under the absurd illusion that this is some sort of uniquely Republican vice, as even a brief acquaintance with Janet Reno's tenure certainly proves otherwise. But I do think we've got to watch them closely, all the time, to make sure that they don't expand their power unreasonably--and when they do, to take that power back as quick as we can.

Jane:

Who is "disregarding American citizenship?" How?

As David Walser asked, what should we do with American citizens captured while bearing arms against us on a foreign battlefield? With citizens entering to carry out terrorist attacks? Should they be treated as criminals or as illegal combatants? County court or military court? Should the rules of evidence be any different? Can the proceedings be secret? Must an indictment by a grand jury upon probable cause be required? What about standards for granting bail?

Asking these questions is not "disregarding the niceties of American citizenship." It's struggling with the issue of security against liberty that has always been here.

What does it mean to "gut the fourth amendment?" The Fourth Amendment says nothing about wiretapping. How can wiretapping gut it? Whatever your interpretation of the Constitution, you must apply it to modern circumstances. Is recording a phone call between a U.S. person and a foreign person based upon evidence of activities against our national security an "unreasonable search and seizure," violating "the right of the people to be secure in their persons, houses, papers, and effects"? I don't know. I don't think so. I'm sure the Supreme Court has opinions. Do you agree with them?

Which "current shenanigans" should be outlawed? If they need to be outlawed, they're not now illegal. If they're not authorized by Congress, then they can only be within the inherent authority of the executive. Why do you want to reduce the inherent power of the executive when it's not currently doing much harm? What are you trying to prevent? Is the danger of overreaction greater than the danger of underreaction? Why, as they say, will this slope slip?

Who is the "we" who must "take that power back?" The truth is that if "we" is the people, we really can't ever take anything back. Unless we decide to take a more active role in government through frequent amendments to the Constitution or Revolutionary-style civil disobedience through the hue-and-cry, we can only try to have a voice in which part of the government has the power. Passing laws to limit executive power doesn't assert the power of the people, it asserts the power of Congress. Should we trust Congress or the courts more than the President to protect our interests? This isn't meant to be a leading question, but it is an important question.

I see a lot of invective, but I'm not sure what particular things you want done. For whatever reason, you think this current wiretapping business is a big deal, at least as a portent. I think it's minor and limited. And I'm sorry for your losses, but they don't give your policy prescriptions any more justification, or anyone else's any less.

Jane does not seem to understand either the nature, aim or end result of terrorism.

Which is to take away the "Civil Right" to feel secure as you go about your daily business.

And the right of those who might be actually part of a greater group (Muslims), a small fraction of which is involved in plotting to kill us randomly.

The planting of seeds of suspicion is the goal... keeping those who wish to do that on the defensive is the only solution.

To be sure, we seem to be between a 'rock and a hard place ' on this, BUT..

Which is worse... to think that someone is listening to a call you're making to someone who MIGHT BE in that narrower group?
Or being constantly on the lookout for suspicious characters when you go to an NFL game or get on a plane?

Ms. Galt,

I agree with the fact that European countries with primarily socialist governments and wildly different legal traditions that the US have a completely different take on liberty than we do. They are well along the road to police state status.

I also heartily agree that I do NOT want the US going down that road.

What I am having a problem with is that all the reports/charges/ speeches “revealing” the President’s secret plan to turn the US into France (God help us) are coming from highly partisan sources. In some cases, from people that have gone completely around the bend into outright paranoia, in some cases from obvious political operators (who routinely use slander and libel) and an awful lot from media sources that can hardly be considered objective. The NYT is so blatantly anti-Bush, it’s ridiculous.

And that leaves me in a position where, while I do NOT want to become French, I am willing to wait for the outcome of now pending court cases and/or some potentially worthless Congressional hearings* before making my mind up.

In other words, I am adhering to the presumption of innocence.

I’ll be among the first torch and pitchfork wavers if and when it is proven that purely “domestic spying” was performed in violation of US law. But I cannot make that judgment based on the slime oozing from under the media rock at present. Frankly, there have been so many entries in the scandal of the day club that I have a hard time believing any of them without eyeball verification.

*Gratuitous hit on Congressional hearings based on particularly inane performances at the Alito hearings.

Gaius

"Gratuitous hit", Gaius? Hardly. It's easy to tell the exact moment when a "potentially worthless Congressional hearing" becomes an "actually worthless Congressional hearing": when you hear the sound of the opening gavel. :-(

Forbidding everyone to drive would do a dandy job of eliminating car accidents, but the cure is worse than the disease.

Likewise, building up the apparatus of a police state in order to catch a few crazies would kill the very thing that makes America (if I may say so) the best damn country in history.

The above comments confirm my desire to post the following comment re. Jane's last paragraph; it is not a bad thing for a state to spy on its citizens.

It's a bad thing for a state to spy on them en-masse, or for no good reason and without oversight.

Spying on specific citizens for good reason, with due process approved by the courts and legislature, is not only not hostile to liberty, it may be actively required for its maintenance.

(To be extra-double-fair, of course, Jane wasn't saying, at least not directly, that the latest NSA kerfuffle counted as "spying" in her context and that of the French use, though the comments seem with equal reasonability to infer that. My own position is that based on what we currently know I'd place that under my "targeted, overseen, and permissible or even laudable" category, not the "incipient police surveillance state" one.)

I, for one, would say that electronic communication (voice, text, or data), is not private communication, as it passes through a public sphere. If what you have to say is truly private, say it in person. The fact is that all we are objecting to is the inconvenience of keeping things private. We want convenience and privacy, too. This is a luxury.

And what, exactly, are you all trying to keep private? Are you saying things that would subject you to blackmail or extortion? Are you confessing to illegalities? What, exactly, is the big deal? I suppose you are discussing major financial deals which could be derailed if they became known....

And what, exactly, are you all trying to keep private?

If I'm not doing anything wrong I've got nothing to worry about, right? I'm tempted to quote your pal Cheney here.

Does mailing a letter put its contents into the "public sphere"?

Jane - Thanks for the clarification and for the civil response. If Daniel Drezner were right and the Bush Administration were really trying to impose the French legal system on us, I would be very worried. Besides Daniel's assertion (and the assertion's of Bush's critics), I see no evidence that Bush has any such goal. Instead, given what we know of the NSA program, I see evidence of the exact opposite. The review of the program by the DOJ every 45 days and the extensive procedures they've put in place are evidence of an intent to PREVENT abuse of civil liberties.

I agree that we need to be ever vigilant. Can't we be vigilant without worrying about things without reason? At some point vigilance becomes paranoia and it ceases to be a virtue.

Perhaps I'm misreading some posts, including Megan's original post, but it doesn't appear to me that she is saying that the current legal setup is a problem, but that moving more towards a France-like state of intrusiveness would be a problem. I agree. Of course, the devil is in the details, and a "little" movement, accompanied by proper checks and balances, could possibly be a good thing, but I can't think of what I want added to the Patriot Act. My personal check on analyzing government power is to say to myself, although I am comfortable with the present administration having these powers, would I be comfortable if the opposite party is in control of these powers? If I can't be comfortable with that, then I don't want it.

Although I understand why Bush didn't immediately initiate investigations into the Clinton Administration's abuse of powers, I remain dissapointed that he didn't. It sure seemed to me that there were just too many odd and questionable events that occurred on Clinton's watch, whether he was personally involved or not. The Rose Law Firm billing records? The travel office scandal? The IRS investigations into the opposition? The FBI files on the opposition? Janet Reno's odd behavior with Waco, Ruby Ridge, and Elian? I wanted answers, and I still do, but I don't think we will ever know.

So, before you wish for more powers for the executive branch, remember that the other party could be in charge, and they tend to believe that the end justifies the means, rather than that the rule of law, not of men, (even if it leads to "unfair" consequences) is truly what sets this country apart from most of the rest of the world.

Hello All,

I don't see the NSA spying thing, as handled by the Bush Administration, as some trivial matter. It is one more example, like we needed one, of the Adminstration's utter disregard for law and legal process.

A procedure was in place for obtaining secret warrants. It has operated for more than twenty years. It is itself so loose as to leave very little in the way of fourth amendment protections in place in the face of an assertion of national security concerns. Yet even the tiny hurdle of needing to show show a scintilla of probable cause was apparently too high a hurdle for this Administration. The idea of seeking Congressional approval for an expanded search power--even in the panic atmosphere of fall 2001--was also seen as something they needn't bother with. Contempt for law and legal process doesn't begin to describe this Administration's modus operandi.

Yet the Administration's defenders here on this board seem to uniformly assume that (a) The phone taps were limited in number (2) There was some reasonable basis for suspicion of a link to terrorism (3) The information collected will be used only for lawful and honorable purposes.

Oh yeah? How do you know that?

It strikes me as more likely than not that in fact the NSA program was a gigantic fishing expedition--that calls were intercepted en masse, and voice recognition equipment used to look for certain key words before keeping a permanent record of the conversation. The problem faced by the security folks is that there's obviously no probable cause when you cast the net that widely--indeed, you're looking for probable cause when you cast the net. That's why they didn't want to tell the national security court what they were up to--much less seek their permission.

Since you have a three-day grace period to seek warrants retroactively, however, it seems to me that the law could have been followed, at least in theory.
Once they had something interesting on tape, they could then go to the court and regularize the activity.

But they didn't even try to follow the law. They just pretended the law and constitution didn't exist, like any guttersnipe dictator. They even threaten to prosecute the concerned employees -- security professionals all -- who revealed that this "emergency" program had become an s.o.p. of several years' longevity.

It also seems to be assumed by the Bush-is-Infallible crowd that (a) Only non-citizens are impacted (b) Only "suspicious" people have their conversations tapped. How could you possibly know--the whole program, by defintion, is secret and, if the Administration has its way, beyond anyone's right to investigate.

When you think about it, how can the intercept equipment possibly discern the citizenship of parties to international phone calls? And what is the defintion of "suspicious"? Suspicious to whom? On what basis?

And what happens to really juicy information that turns up but which has no connection with terrorist plots? Like drug deals? Or tax evasion? Or really useful commercial secrets of competitors to international companies like Halliburton? Are you sure that none of it gets passed around? How do you know, since there's no legal review, no judicial oversight--not even a frank acknowledgement that it is even going on?

Notwithstanding all of the above, I am not really bugged (pardon me) by the idea of even a large domestic spying program. (I live here too.) Nor do I understand how one's citizenship status should bear on the question of whether you are, or are not, plotting violence against your fellow man. Why should Abdul Abdul, an alien working at a gas station in Jersey, who sends $10 to the PLO, be in any worse position than a Tim McVey wannabe, trying to kill hundreds for the crime of working for our government? As Yossarian said in Catch-22, the enemy is whoever is shooting at you.

What I want to see is a serious, practical discussion of how the information collected will
will be protected from improper disclosure. I want to see procedures. I want to see accountability. I don't want to depend on the self-serving say-so of incompetent miscreants, which is what we have right now.

American judicial system was not created with efficiency maximization as a goal in the first place. Quite the opposite, founding fathers basically assumed that strong judges were more dangerous than criminals (maybe true at that time). I don't know whether this is still true now and whether the system should be changed accordingly.

Publius - Since your going in position is that the Administration is staffed with "incompetent miscreants", I doubt there much area you and I could call common ground upon which we could build a fruitful discussion. Still, here's my attempt:

* The Administration did not obtain FISA warrants because they are not required to do so. In the case you describe (which may or may not be part of the NSA program), FISA does not require a warrant because no US person is the target of the surveillance. (FISA only requires warrants if a known US person is a target. Since all NSA was doing was listening into conversations until some magic word or phrase was used, no KNOWN person, US or otherwise, could be the target and FISA does NOT cover the activity.) A second case, which you did not address is what to do if we know (or think we do) a non-US person is a terrorist. Can NSA listen in on that non-US person's calls, even if a US person might be on the other end of the line? Yes, FISA permits us to do so UNTIL the US person becomes a target of the surveillance. Is this warrantless surveillance? Yes. Does it violate FISA (or any other US law)? No.

* Why not get warrants, in an abundance of caution and to avoid the current controversy? Because, as you pointed out, in the case of a wide net of listening into all the conversations passing through a particular communications switch, there is no probable cause upon which to base a warrant. THE ADMINISTRATION SIMPLY COULD NOT DO WHAT SO MANY CLAIM IT SHOULD HAVE DONE TO HAVE AVOIDED THIS CONTROVERSY. That's true even for administrations that are not staffed by incompetent miscreants.

* The 72 hour period does not allow what you seem to think it does. If the Attorney General makes the proper certification, NSA can begin a wire tap up to 72 hours before a warrant is issued. However, the data collected during the 72 hour period cannot be used to justify the warrant. Why? The AG has to certify that, as of the time the certification is made, all that is lacking is the judge's signature on the warrant. All the other requisites, including probable cause, have to exist as of the time the certification is made. (This, by the way, makes sense. What good is requiring a warrant if the police can search your home and then use what they find to establish the probable cause for the warrant? Forcing the police to obtain a warrant would provide no protection at all.)

* You parade out a litany of horrors, and then ask "How do you know [these horrors aren't happening], since there's no legal review...?" Well, there is a legal review every 45 days by the Department of Justice. In addition, the Administration has briefed regularly the Congressional leaders of both parties on the program. Is this as open a process as you would like? Obviously not. The Administration is staffed by miscreants who would steal the silver from the White House if they weren't too incompetent to do so. But, the DOJ reviews and the Congressional briefings are not the actions of a someone who thinks he has something to hide. Rather, they're the actions of someone who thinks he has something that needs to be kept secret from our enemies.

One last point: Your fear that the Administration might use what it learns to benefit its friends at Halliburton, isn't this exactly what the Clinton Administration did with Echelon -- sell commercial secrets to its campaign donors? Yes it is. There is no evidence that Bush is doing what Clinton did. My point is not that abuses are not possible. It's that we cannot conduct a war without granting someone the authority to spy on our enemies. Clinton abused that authority. The world still goes on. When, and if, it becomes clear that Bush is doing what Clinton did, I'll be outraged. Now, I've got other things to worry about.

Well your real position on the spying really boils down to whether or not you trust the administration or not. Publius doesn't trust the administration, David Walser does.

David while I am familar with Echelon, I was not familar with the fact that Clinton was selling the information. I also suspect that particular bit of information isn't true, anymore than Clinton had Vince Foster killed. For a claim like that you need more factual backup.

Even if this is true, the "He did so I can too defense." doesn't wash. You mention that Congress was briefed - except of course they were sworn to secrecy and resorted to hand-written letter to the President and the AG about the program. What could they have done? If they had publically announced the program, you would be pilloring them for violating national security. What recourse did they have exactly to declare, "I believe this program violates the law?"

Why none unless they broke secrecy. Should have the members of Congress that had been briefed and yet had misgivings gone public? What should they have done?

Publius,

You are conflating two different programs. The NSA program of monitoring ALL overseas communications has been going on for at least 40 years. And this has not been kept a secret. Yes, indeed, key words are used by computers searching text. This takes a lot of computing power--the story goes that when Cray invented the first supercomputer, they actually made three of them. One was kept for internal research, one went to the National Weather Service, and the third went to the NSA.

This is not the program that is at issue here.

The program at issue is one of identifying and pinpointing definite phones, within the US, which are used to communicate with known intelligence targets outside the US. We are told that the number of such taps is less than 500. We are also told that the president has to reauthorize these taps every 45 days, and that reports are made to the leaders in Congress.

There appear to be two legal routes to take with respect to authorize these taps. One is to go through the FISA and obtain warrants. The other is to rely on the inherent powers (implied in the words of the Constitution) of the presidency to (1) protect the country and (2) exercise the powers implied in the authorization passed by Congress after 9/11. You may not agree with the non-FISA route, but that is not to say that it hasn't been thoroughly researched by the administration's lawyers and doesn't rely on the most pertinent court decisions.

In other words, it is not a blatant, patently illegal power grab by the president. The non-FISA Constitutional route also has been endorsed by the legal teams working for Carter, Reagan, Bush, Clinton, and now Bush.

None of the taps are on domestic to domestic calls. It is certainly legal to tap a call originating overseas made to a phone in the US. Why, as a matter of national security and not crime-fighting, should it be illegal to tap a call originating from a specific point (which distinguishes these taps from the generic NSA eavesdropping which has been going on for so many years) in the US which is going overseas to a known intelligence target?

I approve of the power for this residing at the highest level, i.e., the president, with appropriate notification to the leaders of Congress. I would be uncomfortable if the director of the NSA or the Director of Homeland Security had the power to initiate these taps on their own. I think that this is probably the best check on abuse of this power that I can think of.

And if you are uncomfortable with the idea of one person having the power to do this, might I remind you that this same one person has the power to launch nuclear missles? With no other checks and balances? (We have two-man control of nuclear weapons all the way from the president down to the pilot (or launch officer), but there is no two-man control at the presidental level.)

"The other is to rely on the inherent powers (implied in the words of the Constitution) of the presidency to (1) protect the country and (2) exercise the powers implied in the authorization passed by Congress after 9/11. You may not agree with the non-FISA route, but that is not to say that it hasn't been thoroughly researched by the administration's lawyers and doesn't rely on the most pertinent court decisions."

Sorry but the inherent power argument is yet untested and your argument relies on the program being limited in scope. And we know that the authorization after 9/11 doesn't cover this because Gonzalez was going ask for it to be included and then decided not as Congress probably wouldn't approve it. So that means

The problem is that people defending the program always describe the program as though it were a tiny little program just focused on terrorists.

"(Why, as a matter of national security and not crime-fighting, should it be illegal to tap a call originating from a specific point (which distinguishes these taps from the generic NSA eavesdropping which has been going on for so many years) in the US which is going overseas to a known intelligence target?"

If that were the program, there wouldn't be a debate on it. That's not what the program was doing. It's not taping a specific call to known targets, it's not that focused - Here's a hint you can get a FISA warrant for that. This particular program is a wholesale processing of information such as voice, email and fax that are international in nature.

I am sure my emails have been swept up with the program as I work with programmers in Pakistan. To say this program is limited in scope and nature simply conflicts with the evidence presented thus far by th FBI running down THOUSANDS of leads generated by it. A program that is narrow in scope doesn't generate THOUSANDS of leads.

BSD

Here's the relevant article -
http://www.nytimes.com/2006/01/17/politics/17spy.html?adxnnl=1&pagewanted=print&adxnnlx=1137486340-B5sKTiHb2WySe+1HapnIsw

If the program is so narrow constructed and so narrow in scope why did it lead to

"The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month."

I seriously doubt that Al Queda has more than 30,000 members world wide, yet the program was generating thousands of leads tying up (hundreds of FBI agents) chasing dead ends.

Here's potentially the worse thing about the program - Because of the signal to noise ratio, it actually may have made us less safe. The big success story was the plan to topple the Brooklyn bridge with a blowtorch which intelligence officials already know about through other sources.

As a total aside that has got to be the DUMBEST fucking idea for a terror attack. My dad was a pipefitter (lots of welding) and to do that would literally take DAYS. Had they decided to use thermite on the Brooklyn Bridge, on the other hand, it could have worked.

I guess I can expect a visit from the FBI now ;-)

Brian,

Are you seriously taking the NYT as a legitimate source of factual information? Really?

Wow.

I have some absolutely fabulous real estate in Florida. I'll run an ad in the NYT. I anxiously wait your purchase offer.

On a more serious note - can we please, please stop accusing the administration of what amounts to treasonous, capital crime-level behavior WITH NO FRICKING PROOF whatsoever. Other than what the NYT parrot cage liner prints? Please? How many of their SUPER-stupendous, hysterical charges in the past few years have been proven true?

*crickets*

So why do you believe them now?

Gaius

Ben: "hyperventilating (as some are) about the quite limited range of these wiretaps seems to me to be entirely excessive"

You know the range, Ben? What are you? NSA? GOP?

So David Walser trusts the administration. Does he also trust the next administration? Because anything Bush gets away with now will be routine by 2009...

Unless you have lost the ten or so people that I bid farewell when the towers collapsed . . . unless you have done all those things, then please do not lecture me on terrorism. I get it.

You're threatening to slide into Cindy Sheehan territory here, Jane. I knew people who died in the towers, too, but that fact doesn't give me any extra insight or moral authority.

As bad as terrorism is, there are worse things in the world, and governments that spy on their citizens, and torture them, and imprison them without trial, are among those things.

Which is why America booted the Taliban out of Afghanistan, tossed Saddam in jail, and put Libya, Syria, Iran and North Korea on notice. You're welcome.

No offense Gaius but your post is entirely a troll. You may not like the NYT but attacking the veracity of the NYT without evidence is somewhat silly. Jane's website isn't the Free Republic. Your assumption the at NYT is lying isn't fact or even supportable. As far as their claims, show where they are false.

"On a more serious note - can we please, please stop accusing the administration of what amounts to treasonous, capital crime-level behavior WITH NO FRICKING PROOF whatsoever. Other than what the NYT parrot cage liner prints? Please? How many of their SUPER-stupendous, hysterical charges in the past few years have been proven true?"

What's the problem? The fact that you think the program is legal. That's a fine viewpoint but we know the program exists. The legality of the program is still up in the air as demonstrated by the fact program was halted by our own AG John Ashcroft when he doubted the legality of the program.

Brian,

Please read my post again. You are arguing against the NSA monitoring program that has been in operation for over 40 years. It's the OTHER program that is causing concern.

And in yesterday's WSJ (1/19/06) there's a good article from one of the Reagan lawyers detailing just how onerous and time-consuming the FISA warrant program is.

And although I agree that the exact implementation of the OTHER program hasn't been directly tested in court, the court cases that touch on the issue tangentially all lead to the valid legal conclusion that the OTHER program is very likely a constitutional exercise of the president's powers.

David Wasler:

The immediately prior administration did not use spy satellites on Ruby Ridge. That was the Bush 41 Admin.

Rex wrote

"It sure seemed to me that there were just too many odd and questionable events that occurred on Clinton's watch, whether he was personally involved or not. The Rose Law Firm billing records? The travel office scandal? The IRS investigations into the opposition? The FBI files on the opposition?"

Um, these things WERE investigated by independent counsel(s) and no charges were brought against anyone. If you want answers, read the reports that were issued. Was 8 years and 40 million dollars not enough?

Rex,

Thanks for the clarification (viz. NSA comprehensive monitoring vs. selective wire taps of "known intelligence targets").

I'd like to know, however, the basis of your confident assertion that (a) The targets were of "known" intelligence value and (b) The number was on the order of 500 or less.

If this much was "known," why would there be no basis for obtaining warrants? If there was a basis for warrants, why weren't warrants sought?

As to the 500 number, I am not aware that the government has publicly disclosed this information. THE NYT cited multiple confidential sources for its story, but I don't recall any specific description of scope. So is this limited-scope figure coming from counter-leakers in the Administration? Are they violating secrecy requirements? Should they be prosecuted, or is it only program critics who face the brunt of the law nowadays? Is this another example of "selective" law enforcement?

Alternatively, if Administration counter-leakers are not in possession of highly classified information--and thus not violating any pledges by revealing secrets--what is the basis for their assertions? Anything more than that they can get the willingly misled to parrot the line and mislead others?

I don't think I am being a troll, Brian. Nor am I in any way shape or form defending or attacking the program(s) in question. The reporters who broke this big story are selling a book. The timing of the story is so suspicious that the NYTs ombudsman even questioned it. His questions were not answered by the NYT editors.

As for the NYT's factual challenges, I won't waste Ms. Galt's bandwidth. There are so many instances of the NYT being caught in lies, twisted truths and outright fabrications in the past few years, you have to have been blind not to have seen them.

Apparently, you believe the NYT. I do not. Fine, let's agree to disagree. But you did not answer the question: how many of their hysterical pronouncements have proven to be true?

I will reiterate what I posted before. Our system provides something almost unheard of in legal systems around the world. The presumption of innocence. You are blandly charging, trying and convicting the administration based on reports from a newspaper.

The issue is before the courts, let them do their job. I will keep an open mind until they rule.

Publius,

I saw the number of four hudred odd cited in an article somewhere over the last 10 days, but there has been so much on this story that I don't recall where it was.

As to "If this much was "known," why would there be no basis for obtaining warrants? If there was a basis for warrants, why weren't warrants sought?", the known intelligence targets were outside the US with, as I undersand it, intercepted links to phones, not necessarily specific people, inside the US. If all you have is a cell phone number within the US, how do you obtain a warrant to tap it? You are lacking the specificity and detail necessary for a judge to rule favorably on it. And you certainly don't meet the probable cause standard required for a warrant.

There's also the matter of purpose. Intel gathering is different from investigating a crime with the goal of criminal prosecution.

When I was on active duty, some of my investigations were by the book, because we wanted to be able to prosecute (via Article 15 of the UCMJ or by court-martial) the target should criminal activity come to light. Other investigations were simply to get to the bottom of the matter, with no thought of criminal prosecution. Similar to our warrantless searches of the troops' hooches, where we just confiscated and burned the 2-kilo bags of MJ we found. We didn't care who they belonged to, and proving it would have been too much of a hassle. And we certainly didn't have articulable probable cause; we just searched on a random basis and never went away empty handed.

Intel gathering is not intended to lead to criminal prosecution, but to identification of the bad guys and how they operate. Thus the rules are looser. Probale cause is not and should not be a consideration. At one point in our history, the government (notably J. Edgar Hoover) gathered intel on American citizens within the US, and not with the intent to prosecute. Fortunately, we have moved beyond that and such actions are now illegal.

The narrow issue we are faced with today is, should the fact that one end of an international link is within the US prevent us from intel gathering, or should we be limited to only criminal case-making for the US side? What about the terrorist, making cell phone calls that we are intercepting, flying to New York to plan an event, who is in the US for only a couple of hours and then flys away? Do we have to stop monitoring him (because we don't have a warrant) for the short period he is in the US? That's what complying with FISA would lead to.

BTW, the latest compilation of legal arguments (42 page argument) put together by DOJ in support of the administration's position is available through the volokh.com webiste.

Rex,

I heartily concur that it woiuld be absurb to not gather intelligence just because the call terminates in the United States. As you may recall from my first post, I would support a very large-scope domestic spying program as long as there are appropriate limitations on the kind of information sought and the way the information would be disseminated (or not). (Nor do I see citizenship as providing any kind of a shield--if there is right not to be spied on in some manner, I see it as human right, not just a citizenship right.)

By the same token, I do want to see appropriate methods and means of limitation and accountability, even in the intelligence context.
Gaius' assertion that all the protection we need is embodied in the evident good will of the president is almost too silly to answer.

While you argue that the standard for granting a warrant in the intelligence context should be different (lower) from what it is in a criminal investigation, you imply that the FISA court -- which deals almost wholly with intelligence concerns -- uses only a criminal law standard of review. Are you sure that's true? I was quite unaware that these intelligence wiretaps were limited to cases in which criminal prosecution was immediately foreseen, as you imply. I presumed, perhaps incorrectly, quite the opposite.

Also, I'm not sure the analogy to searching solderirs' duffels is entirely apt. Soldiers have to give up a lot of freedom just to be soldiers and few expectations of privacy would be well-placed. More to the point, while your authority to search for contraband may have been broad, there were surely some limits. Moreover, as an officer, you were accountable in a hierarchy not staffed by your appointees and cronies. That's rather different from the "just trust me" Bush Administration.

Best,

P.

Publius,

"Gaius' assertion that all the protection we need is embodied in the evident good will of the president is almost too silly to answer."

Where exactly did I assert anything of the sort?

My exact statement was:

"The issue is before the courts, let them do their job. I will keep an open mind until they rule."

I think that statement is pretty hard to reinterpret as creatively as you have done.

And if you are uncomfortable with the idea of one person having the power to do this, might I remind you that this same one person has the power to launch nuclear missles? With no other checks and balances? (We have two-man control of nuclear weapons all the way from the president down to the pilot (or launch officer), but there is no two-man control at the presidental level.)

Actually, there is. The only entity empowered to authorize the use of nuclear weapons is what the military calls "National Command Authority". National Command Authority means the President of the United States and the Secretary of Defense acting in concert. Neither individual can order the use of nuclear weapons by him- or herself. http://en.wikipedia.org/wiki/National_Command_Authority

Purple,

That's not what I was taught at Nuclear Weapons Courier School. You've heard of the "football"? Carried by an officer always near the president? That contains the authorization codes to use nukes? I've never heard that SecDef has a role in this, other than purely advisory.

Publius,

I didn't mean to imply that FISA is used for criminal prosecutions; just that the level of proof required for a warrant is the same-- probable cause. And I would be totally against domestic spying without a warrant, where domestic spying is defined as caller and callee both in the US, unless you could define some sort of emergency situation which would have to be announced to someone afterwards, whether Congress or a court. Gotta keep those checks and balances in play.

Gaius you are the one making the assertion that the NYT is lying on every single issue. You are bringing the charge that they are an untrustory source so you need to support the assertion. Asking me to prove your point for you is silly. You mean Jayson Blair? I don't think he works at the Times anymore. You mean Judith Miller printing the Administrations WMD talking points? She no longer works there.

Don't assert that the NY Times is full of shit and then say, "Disprove me" If you think the Times is full of shit - you need to prove the case. You need to say I don't believe the Times for these reason. You aren't "wasting Jane's bandwidth" as you just need to type a paragraph of text. What you are saying is,"I am too fucking lazy to prove my assertion. Please prove it for me."

BSD

Gaius - Exactly how have I tried the administration? I have no assertions about the legality of the program other than to note that the arguments have yet to be proven in a court of law. Here's another hint about legal arguments, adding more of them doesn't strengthen any of them.

First the assertion that this authority was contained in the 9/11 autorization. Gonzalez has already gone on record stating that they thought about asking Congress for the authority but decided against it as Congress probably wouldn't approve. Clearly when Gonzalez was White House counsel, he didn't believe that the authority. So this is less a legal reason and more a short bullshitting to see what would stick.

Second the strongest argument is the Constitutional one. If this interpretation is deemed accurate by the courts, no further legal arguments are needed. Here's the problem, this interpretation while the current one in the administration, has had it doubters. I am speaking specifically about the period where Ashcroft wouldn't sign off on it and it was stopped. Much to the administration's credit they took the AG seriously. Later (perhaps after further thought or discussion with the President) the program was restarted. However it's clear that there it wasn't instantly clear that this program was legal and constitutional. If Ashcroft can be conflicted about it, other people might as well.

Thirdly the assertion that 500 or so individuals were the only ones targeted is on it's face false. Targeting 500 individuals would not produce "thousands of leads" a month. I am going to take the FBI agents quoted in the article at their word. A program that would produce those sorts of results is more akin to a massive datamining effort of international phone calls (for this definition I am calling international any communication as having a international origin or endpoint, thus including international communication with a domestic origin) turning Echelon on this problem was quite trivial.

I am quite willing to let the process of determing the legality of this program play itself out in the courts. I am not willing to take the president's assertion of legality at face value. Under this theory of the executive, nothing is out of reach of the president, he only need to assert his war powers in a war which is not likely to end . I don't see us magically making a certain sect of Muslims any less fundamental. This sort of fundamentalism has existed through out Islam existence.

Brian,

Well, I tried. Whenever I insert links (even as pain text) my comment gets shunted into a hold queue. So, not to put the burden on you, but I can't get the links in for whatever reason. Try searching Instapundit for New York Times. There's a lot rounded up there.

But While I explicitly assert that I believe the NYT is untrustworthy, your implicit assertion that it is trustworthy does not need any proof?

Even their own ombudsman questioned quite a lot about timing of the publication of the original article. Surely you could not have missed that.

Lost in all of this is that the standard for granting a warrant under FISA or indeed the procedure is not relevant if the goal is to prevent terrorism. Under FISA, the eavesdropping can be done first, then the govt' can seek a warrant within 72 hours. Even if this is rejected, the government still gains the info it sought. The only thing the warrant matters is for the admissibility of the evidence in a criminal trial, if any. While it isn't a good thing if this evidence is excluded on a motion to suppress, the government still has info that it supposedly needs to foil a terrorist plot.

"Even their own ombudsman questioned quite a lot about timing of the publication of the original article. Surely you could not have missed that."

Except of course my quote wasn't from the original article, it was a follow up piece. I seem to have no problems posting links. Maybe ping the admin to see the problem.

Notice something, the ombudsman questioned the timing of the article, not the veracity. That's fine. The NYT has reporters, a level of editors and an ombudsmen. This tends to make for more accurate journalism. I am sorry but it does. Very few bloggers do original reporting. It's hard work. Additionally you can bet post Jayson Blair, that the Times reporters have more than 2 sources for their statistics on the number of leads generated by the NSA program.

If the NYT kept printing falsehoods, the libel lawsuits would put them out of business.

Rex - You may be right but I suspect that the 500 targets is a LEAKED red herring. Why? Because 500 people wouldn't generate thousands of leads a month. Here's another hint sucking up every overseas communication of a US citizens (voice, fax email)and running through a set of search parameters doesn't smell legal to me. It might well be. We will see however.

Sucking up every overseas communication and running through a set of search parameters has been done by the NSA for over 40 years, and it has notbeen a secret. Your objections to the legality might be a little bit late. Besides, under what theory would it be illegal?

Rex - Sucking up the communications of Americans would be illegal. Either I am not communicating well or you deliberating missing the point. I will assume the former.

Sucking up the information of AMERICANS making international phone calls would be to my mind against the 4th Admendment.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Notice the term "papers and effects."

Please describe to me the legal theory that allows the massive data mining of the communications of Americans. You mean to tell me that Americans physically located in the US, can have their communications siezed by the government just by making a international call?

Let's posit this as thought experiment. Let's say the program is as I described, rather than the limited scope that is being leaked out. Under what theory would it be constitional?

Please square that circle for me I am all ears.

Brian,

Can you read oneof my earlier posts in this thread? Where I distinguish between what you describe as the "suckitup" eavedropping |(which has been going on for over 40 years) and the targeted wiretapping that is the subject of the current kerfuffle?

The authority for the suckitup eavesdropping derivesfrom the inherent powers of the presidency, as contained in the Constitution, toprotect our national security. Any form of communications entering or leaving the country is theoretically subject to intercept. As a practical matter, only electronic media is intercepted and subjected to a keyword search. Because this does not target any specific person's communications, it does not violate the 4th Amendment, just as a roadblock that stops every driver for a license and registration check, or a sobriety checkpoint stopping everyone, doesn't violate the 4th Amendment.

Again, I want to emphasize that this program is not what the current contretemps is about.

Alandownunder asked me how I 'knew the range'. I think other people have done a much better job in clearing this up than I could, but I'll answer just to be polite:

I have been in Europe for the past 6 months (literally returned last night), so I suppose I could have missed some of my more leftist friends' complaints, but my understanding is that people object to the phone taps of US citizens on int'l phone calls. And specific phone calls at that.

Although I was abroad, I did read a lot about this in American publications. I am not familiar with a single accusation of this as a wide spread program. Quite contrary to what some posters have said, thousands of tips off of 500 phone calls sounds pretty conservative if these calls are targetted in any kind of effective way.

Consider the statement: "Everything's going alright. We are now alright for primer and the car's basically ready to go. I figure I'll be with you in the city in three weeks or so?"

In that statement there are SO many leads to check up on.

What kind of primer is he talking about? Is it something purchased? If so, which one? Is it something homemade? If so, have we noticed any purchases of materials you can make primers with in his geographic area recently (or within the rest of his suspected cell)? Or his he just talking about painting? Are we at NSA all idiots and this guy just wants to paint his house?

He's having car problems? Is he due for a trip or is he planning a car bomb? Does he have any future rentals planned for within 3 weeks? What about the guy on the other end? Any rentals for him? What about under aliases?

What city? Who's traveling? Do they have any reservations? Who might they stay with?

This took me 3 minutes to construct. Take all these questions you have from my 3 sentences and think of your own. Then multiply it out for a full conversation bearing in mind that you think they are terrorists. Then remember that actions could be done under aliases and by other people within the suspected cell and that should multiply your questions even further.

Even if you are defining 'leads' tightly you can still come up with, at the most draconian, 3 things in the phrase : 'primer', 'car', 'travel in 3 weeks'.

I grant you that the above is speculation (if informed speculation), but the point is simply that many leads can come from one conversation. The assumption that thousands of leads indicates this is some East Germany thing seems to me to be unduly paranoid.

That said, however, I suppose that "just because you're paranoid doesn't mean they're not watching". Ultimately, I guess I'll just wait and see what the courts say as well. I have no way of independently verifying any of this information.

So according to you the massive interception of communication of Americans is perfectly legal? No it's not. You must keep in mind that the program you are descibing didn't target American communications previously. I suggest you give a read to what James Bamford has written on the subject. The 40 year program of intercepts didn't intercept American communications. It has always been illegal to intercept the private communications of Americans. Other foreign nationals have no such proctection. The program you are mentioning NEVER targeted Americans.

The analogy to a sobriety checkpoint is a flawed one for several reasons. Driving is a privilege of the state not a right guaranteed by the Constition and can be taken away for numerous reasons (DUI, failure to carry insurance etc). To be safe from unreasonable search is a Constitional right as guaranteed by the 4th Amendment. The right to drive is not guaranteed by the Constition.

"The authority for the suckitup eavesdropping derives from the inherent powers of the presidency, as contained in the Constitution, toprotect our national security."

Sorry but this program wasn't launched with that justification in mind 40 years ago. And any case you are misquoting the Adminstrations current rationale - the president's war time powers MIGHT give him this ability. Please show where in the Constition, the presidents powers as commander in chief allow him to set aside the 4th Amendent of the Constition.

Here's anothe problem - you keep stating I am conflating two programs, ie limited wire-tapping of roughly 500 individuals and the massive data mining of international communication. The problem is you are assuming that the program for data mining has always been allowed to intercept the communications of Americans. I don't believe this is the case (certainly in Body of Secrets, Bamford highlights that people in the NSA have it drilled into them not to listen of interecept the communications of Americans. Trust me I understand the scope of Echelon internationally. I even pulled out Body of Secrets to review it for this post.)

Here's why I believe the leak (it's only 500 people). First off the program is generating thousands of leads for the FBI to run down. You can see the link to the NY Times article, give it a read and let me know what you think.

Secondly if these are 500 known terrorist/Al queda members WHY AREN"T THEY DEAD OR CAPTURED? I mean we invaded a nation in our war on terror, why can't we pick up 500 people for questioning even if they are in other countries. The answer is the program must not be limited. I mean where could you get better intel from?

1. An interrogation under controlled conditions.

2. An intercepted phone call where you hope the terrorist screws up?

I suspect the 500 number was floated out there as a counter leak to say see isn't so bad. But if it was 500 people, I would expect them to be captured.

Rex, I know it's just and me at this point. But I want to you to carefully re-read what you wrote.

" Because this does not target any specific person's communications"

So according to you the government is perfectly free to intercept every single email, fax and voice communication as long as it doesn't single anyone out. That's to my mind the very definition of unreasonable. Searching everyone cannot be deemed a reasonable action in the War on Terror. At least not to men and women who love liberty.

BSD

Sorry Ben I missed your post when answering. Yes 500 people can generate thousands of leads but not thousands of leads a month for years (as is the case with this program). Additionally my point about these 500 people is the following.

Why not pick them up? As they are certainly not US citizens so effectively no rights under the Constitution - you can hold them for years. Hell the administration has held Americans for years with no recourse to the courts. You are treating the War on Terror like a criminal investigation, it's not.

"What kind of primer is he talking about? Is it something purchased? If so, which one? Is it something homemade? If so, have we noticed any purchases of materials you can make primers with in his geographic area recently (or within the rest of his suspected cell)? Or his he just talking about painting? Are we at NSA all idiots and this guy just wants to paint his house?

He's having car problems? Is he due for a trip or is he planning a car bomb? Does he have any future rentals planned for within 3 weeks? What about the guy on the other end? Any rentals for him? What about under aliases?

What city? Who's traveling? Do they have any reservations? Who might they stay with? "

Dude here's the simple thing to do. You pick the guy up interrogate him and the other guy on the phone and you move on. You aren't running a detective show - it's a war. You don't intercept phone calls and try to piece it together while they are actively plotting. That's why this argument "we are only listening to the communications of terrorists" rings hollow. If they are terrorists, pick them up.

Once again these people have been portayed by the people supporting the program as terrorists/Al Queda members. So why not pick them up for a interrogation? Better yet, if they are members of Al Queda - KILL THEM. Al Queda declared war on us.

That's why I suspect the 500 number to be a total red herring. Let's be clear about this program - it's Echelon turned on Americans who happen to have communications that have an international component. That's what's going on and what the uproar is about. That's also why the Administration didn't get a FISA warrant. No judge is going to sign off on a huge fishing expedition like Echelon turned inward.

Just a short word about FISA - If the process of getting a FISA warrant is too difficult/laborious - what you should do is REVISE THE PROCESS. You could have easly modified the FISA act in the Patriot Act and look back on it perhaps they should have. But instead of going back to Congress they simply chose to skirt FISA and rely on an inherent powers argument. That displays a huge amount of hubris and disdain for Congress.

I mean why take that route? why not revise FISA? Well the type of data mining going on will likely never pass Constitutional muster in it's present form. Could it in another form? Possibly. I need to think long and hard on that.

Actually, when it comes to wiretaps Ms. McArdle's case is even stronger than she makes out - because, in that case, we could have our cake and eat it too, if only the Bush Administration didn't insist on throwing it at us instead. There is no reason why a system can't be set up allowing huge flexibility in emergency wiretaps without giving the President (or the Director of the DIA, CIA or FBI) total carte blanche to secretly wiretap any goddamn person in the country, including his own poliitical enemies -- a road we've been down before ourselves, with disastrous results. In fact, the current FISA system allows precisely that, since it allows three straight days of wiretapping without even asking for a warrant, and since the FISA Court has turned down exactly four government requests out of 19,000. The only changes that might need to be made are fine-tuning the warrant system -- perhaps slightly extending the number of days of pre-warrant wiretapping allowed, or reducing the fraction of FISA court judges required to issue a warrant -- and setting up some new mechanisms to deal with the new technology of data mining without trampling civil liberties wholesale (some of which have already been suggested publicly by, so help me God, Adm. Poindexter. When one of the chief Iran-Contra defendants comes across as a civil libertarian by contrast with the current White House, you KNOW you've got trouble.)

What we all need to be asking ourselves at this point is WHY the Bush Administration is insisting unnecessarily on such semi-dictatorial wartime powers. Is it just that the Bush-Cheney-Rumsfeld triumvirate is irrationally obsessed with a supposed need for absolutely unrestricted presidential power (which may be particularly plausible in the case of Cheney, given some of his earlier comments on the subject)? Or is there something more rational and more sinister in their motivation? I can remember a time when those of us who thought this Administration just might grab for dictatorial power if it ever got a suitable opportunity to do so were regarded as paranoid, but the idea looks increasingly plausible -- especially given its current obsession with stuffing the courts with justices flexible toward that idea.

Dick Cheney believe in a more powerful executive and that Watergate undermined the power of the executive for a generation. He's seeking to restore what he sees as the natural balance of the executive and Congress.

That's his position. I doubt very much dictatorial powers are what's on his mind.

Brian,

I respect your concerns, but (with due respect) I think you're being somewhat simplistic about this. This is not to say you're a simple person, but merely that I think your dislike for the administration is making you jump to undue conclusions. I'll limit this to your comments directed at me.

First of all, the people may be suspected but not proven terrorists. Given that there's an elaborate series of code words involved in these conversations, there's surely some people being listened in on because there's good reason to suspect them but, in point of fact, they couldn't pick bin Laden out of a line-up. I would not overestimate the administration's willingness to scoop up people on a hunch so long after 9\11. If they're domestics, you have to present a case otherwise it's all wasted effort. If they're foreigners then you have to have someone else pick them up. That itself contains a whole world of probems.

Also, and in many ways more importantly, if you think these people are legit then there's some benefit in just letting them talk for a while assuming no clear and present danger. You get additional leads, more incriminating information, greater knowledge about inter- and intra-cell logistics, knowledge of future plots, supply chains and other vital pieces of information. You also have a better chance of nabbing people that are higher on the food chain. I strongly, strongly agree with you that this is a war, not a police action, but (like every war) there's an investigative element. Remember that in plenty of wars intelligence officers would let people gab away (unmolested) for years before taking action against them because they were more detrimental to the enemy alive than dead.

We in the general public don't get much of this information, nor should we (yet), but you're coming to conclusions on insufficient evidence when other conclusions (such as mine) are at least as likely. I grant you, however, that they are based on no more knowledge than what is in the public sphere.

- Ben

Thanks, Brian, for the name ECHELON. I've known about the electronic eavesdropping on international calls for close to 40 years now, but I never knew its name. Doing an Internet search confirmed that it is supposed to be limited to international calls, but that the definition of international includes the case when one of the ends of a link is in the US as long as the other is not. And I could not find (nor do I think, being a lawyer) that the program is unconstitutional or somehow violates the 4th amendment. Note that ECHELON is not authorized to eavesdrop on US to US phone calls. Also note that I am aware that the potential for abuse is there. But I can tell you from personal experience that listening in on phone calls (had to listen to 6 hours of wiretapped calls while assisting in the defense of our client) is one of the most boring things imaginable. The potential for abuse might be there, but I think whatever actual abuse might exist is very very microscopic.

Back to the car analogy for the moment. When driving a car, you have a 4th amendment right NOT to be stopped unless probable cause exists that you committed a traffic violation or crime. This is independent of the fact that having a driver's license is itself not guaranteed, but rather, as you say, a privilege granted by the state. Clear so far? Yet checkpoints where everyone is stopped do not violate the 4th amendment.

You also say, "So according to you the government is perfectly free to intercept every single email, fax and voice communication as long as it doesn't single anyone out. That's to my mind the very definition of unreasonable. Searching everyone cannot be deemed a reasonable action in the War on Terror. At least not to men and women who love liberty." Now you have changed the argument into one of reasonableness instead of unconstitutional. Which is the right argument to be having, because ECHELON is not unconstitutional.

So forget about ECHELON for the moment and concentrate on the specific targeted wiretapping that is the current reason to bash Bush.

Wow, what a bunch of power-worshipping "libertarians" and "conservatives." How sad for America.

Concur with JG's post. The issue, in case no one's noticed it, is that George W. Bush is running trial balloons on whether the "war on terror"---by DEFINITION a war which will never be over---allows him to disregard the rule of law. We don't need to be terribly concerned about the ostensible subjects of these test balloons (the secret prisons, the FISA bypass). We just need to be clear on what the answer is: the president is *always* bound by the rule of law.

Those of you who applaud the erosion of the rule of law in America, there are plenty of nice dictatorships in the world. Would you please move there, and quit trying to fuck up my country?

Ben I am not being deliberately simplistic. But I cannot allow people to use the rhetorical device of calling people terrorists to support an program and then backpedaling by saying their "suspected but not proven" terrorists.

Earlier in a set of posts people we saying such things as "these are proven Al Queda members." Indeed on Friday, Karl Rove used this very same rhetorical device addressing the RNC;

"President Bush believes if al-Qaida is calling somebody in America, it is in our national-security interest to know who they're calling and why. Some important Democrats clearly disagree. This is an issue worthy of a public debate."

See? It's now Al-Qaida calling, not suspected terrorists. I don't have a problem with intercepting phone calls of suspected terrorists. I have a problem with running Echelon on the American people. It's a entirely false rhetorical device to claim to be wiretapping Al-Qaida when its really a few suspected terrorists. So when you say I am being simplistic, I am not but rather I am pointing out that the Administration is being very sloppy with their language in order to confuse the issue. No American has problems wiretapping terrorists.

If I have problem with this administration it's because it's not very conservative nor very effectively. The president values loyalty OVER effectiveness. That's why Mike Brown was doing a "heck of a job" and Harriet Meirs was "the most qualified candidate for the Supreme Court." His latest set of recess appointments prove this - I suggest you see Michelle Malkin(sp?)for more on this problem of Bush's.

"If they're foreigners then you have to have someone else pick them up. That itself contains a whole world of probems(sic)."

Actually the Bush doctrine pre-emption states that you don't need to get someone else to pick them up. While it might be better to have our allies in Europe pick them up if they are in Europe. If they are in Pakistan, I really don't want to rely on the Pakistani intelligence to do the job. The Taliban were a client state of theirs.

At this point in the war on terror Al-Qaida should be done. We defeated the Axis powers in less time with a far less effective military. Quite frankly this halfassed war effort isn't working. The President wanted to win the war without disturbing the lives of Americans. "Hence the go shopping or the terrorist will win."

As a final post I have NO problems wiretapping terrorists or suspected terrorists. I do have a problem with turning Echelon on the American people.

Ok Rex - I just got this post.

You also say, "So according to you the government is perfectly free to intercept every single email, fax and voice communication as long as it doesn't single anyone out. That's to my mind the very definition of unreasonable. Searching everyone cannot be deemed a reasonable action in the War on Terror. At least not to men and women who love liberty." Now you have changed the argument into one of reasonableness instead of unconstitutional. Which is the right argument to be having, because ECHELON is not unconstitutional.

Echelon turned against the American people would indeed be unconstitutional and unreasonable. I chose the word unreasonable because that's the wording of the 4th Amendment;

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

See Echelon turned against the American people would indeed be an unreasonable search and seizure, thus unconstitutional.

"ECHELON for the moment and concentrate on the specific targeted wiretapping that is the current reason to bash Bush."

Except this program has only been defined as specific targeted wiretapping by people defending the administration. I pointed out in previous posts how a "limited" program of wire-tapping 500 people WOULD NOT generate thousands of leads a month for years on end. It simply isn't posssible. Additionally I have pointed out that if you are wire-tapping 500 people FISA warrants will do just fine. Jame Tice (a NSA whistle blower and yes I know the agency characterizes him as a nut but he managed to hold a clearance for 20 years, only having it revoked in 2001. Strangely every single previous NSA whistle blower has been characterized by the Agency as a nut as well) indicates that this sort of data mining is going on. If it's just 500 people well I believe that he should have gotten a FISA warrant. If the FISA warrant process was too onerous or time-consuming, he should have changed the process with Congress, not endrun around it and claimed,"I have these special powers". Keep in mind the FBI got the ability to find out what a suspect was reading at the library. An expedited FISA process would have been a no brainer.

"Doing an Internet search confirmed that it is supposed to be limited to international calls, but that the definition of international includes the case when one of the ends of a link is in the US as long as the other is not. And I could not find (nor do I think, being a lawyer) that the program is unconstitutional or somehow violates the 4th amendment."

Ok the internets are fine things but sometimes you need deep knowledge. Read Body Of Secrets by James Bamford - it's the most comprehensive look of the NSA. Echelon has it has been run for 40 years isn't unconstitutional. It's limited strictly to foreign signal intercepts. It is unconstitutional when turned to communications of American citizens even when they are communicating abroad. Your government doesn't get to spy on you just because you send an email to another country.

"Yet checkpoints where everyone is stopped do not violate the 4th amendment."

Quite right when driving a car. It's entirely another matter when the government when it's a private communication. I cannot believe that you think that datamining the private email, fax and voice of every American is constitutional. If it's that constitutional, then 4th amendment is completely meaningless. Under your particular constitutional interpretation, the state would be able conduct searches of apartments by claiming, "We searched every apartment in the building, therefore the search was reasonable. We didn't discriminate against the defendent." I would hold that's an unreasonable search and therefore unconstitutional.

If the President's program is limited to 500 people - I would hold that program is very likely (to the tune of 90%) constitutional. His powers as commander in chief certainly extend that far. Do I wish he had amended FISA so their was some form of judicial oversight? Yes. But I will concede a small wiretapping of even American citizens is very likely constitutional. I just don't think it was a limited as is currently being leaked.

Brian,

Look, I'm not an insider who knows exactly what is going on. I only read the Internet and several newspapers to get my news. As I understand it, the kerfuffle is over specific targeted wiretaps on the US end of international links, which is completely different from ECHELON. ECHELON intercepts all international traffic at the network or trunkline level and performs keyword searches on the intercepts. No one phone or individual is targeted. Specifically targeting one phone or person is beyond the scope of ECHELON's charter.

And where did you get the idea that phone conversations or other communications links were private or subject to constitutional protections? If that were the case, the feds and states would not have had to pass wiretapping laws to provide protection and privacy against wiretapping and recording. Note that the US severely restricts monitoring of US to US communications, but that's by law and not because it's a constitutional mandate.

Speaking of the constitution, there are checks and balances explicit and inherent in the constitutional powers as laid out. One constitutional power of the president is to provide for national security. Another part of the constitution provides against unreasonable searches. What happens when these two parts clash? What happens is that ultimately the Supreme Court decides, but until they make a decision, the constitutionality of certain actions is undetermined. That's the state we are in now. It doesn't further the discussion to state that the president is violating the constitution. What does further the discussion is to analyze why the president's actions might be considered unconstitutional or not, but that really is a discussion for the con law addicts. Volokh.com is a good site for this sort of thing. Perhaps what we should be focusing on is the question of, assuming that the president is properly exercising his constitutional powers, exactly what should the extent of his actions be, not from a "legal" point of view, but from a political or practical point of view.

Let's save that discussion for a different thread.

Quite right when driving a car. It's entirely another matter when the government when it's a private communication. I cannot believe that you think that datamining the private email, fax and voice of every American is constitutional. If it's that constitutional, then 4th amendment is completely meaningless.

Pure histrionics. Fact is, most "private" communications take place over some sort of pseudo-public infrastructure. Use of a cell phone, land-line, the Internet, etc. places your communications onto a shared infrastructure that may very well be privately owned and maintained in technicality, but has heavy regulatory fingerprints all over it to enable its existence in current form.

By comparison, try not stopping for the city/county/state's constablry while on a privately-owned, but publicly-accessible, tollroad. Try demanding that they not even point that radar gun at you. I got a hunch that won't turn out well, even if it so happens that the cop had no legitimate reason for signaling you and was just being a twit that day.

Now, if you really want to set up a two-way radio system in an unregulated spectrum band or run miles of cable across private property, encrypt the communication protocol sixteen ways from Sunday, and engage in perfectly legal data exchanges across that bandwidth, you might have a case for genuine privacy. Likewise if instead of picking up the phone, you fly to a destination, lock yourself in an opaque bubble, and whisper to the other person. These are equivalent to setting up an autocross course on your own private property and that insisting that the area police not set up speedtraps along it (and in fact stay off altogether without probable cause for entering).

It will cost you a pretty penny to do either of those, however, which is why most people don't, and use established public or pseduo-public services when driving or communicating. But you also take a chance of being watched by a governing authority when doing so.

Rex - My response is being held for approval. It's longish so I won't repeat it.

Anony-mouse - Your argument about pseudo public is completely non-sensical. My ISP and phone company while heavily regulated are in no way a public good. Furthermore the Electronic Communications Privacy Act forbids the very behavior you are saying is legal on my "pseudo-public" ISP.

From a rights perspective, the ECPA only protects individuals' communications against government surveillance conducted without a court order, from third parties with no legitmate access to the messages, and from the carriers of the messages, such as Internet service providers. However it appears to provide little privacy protection to employees with respect to their communications as conducted on the equipment owned by their employer.

Retrieved from "http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act"

My ISP and phone company while heavily regulated are in no way a public good.

Yes, but the network is a lot bigger than that (e.g. your typical email message might bounce across 5-15 major servers just to cross the continental US), and legislation is easily changed. There are wide-open avenues for implementing broad search of that and similar communiques without clearly violating the 4th.

I am aware of the size of the Internet and the fact you going to cross a number of networks. Most of these networks are not public goods. And you are right, laws do change but right now it's illegal.

Brian, you prove my point once again. There would be no need for the ECPA if what the ECPA makes illegal were already protected by the Constitution.

"If the President's program is limited to 500 people - I would hold that program is very likely (to the tune of 90%) constitutional." Brian, if it's only 500 people, then why in heck didn't Bush's people get warrants for the wiretaps?

Ok Rex - You have convinced me. Thanx for hanging in there Rex. So Echelon & widespread datamining turned inward to US communications is probably Constitional although it might be illegal.

And I might add, it's pretty distasteful to most Americans once you actually explain what's going on.

BSD

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