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Warrantless Domestic Wiretaps
Posted by: Jon Henke on Tuesday, January 17, 2006

Remember, the Bush Administration was only conducting surveillance of US Citizens talking to terrorists. You can trust them. Or not.
In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. But virtually all of them, current and former officials say, led to dead ends or innocent Americans.
[...]
The spy agency was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of phone and Internet traffic.
[...]
The N.S.A., whose mission is to spy overseas, began monitoring the international e-mail messages and phone calls of people inside the United States who were linked, even indirectly, to suspected Qaeda figures.

Under a presidential order, the agency conducted the domestic eavesdropping without seeking the warrants ordinarily required from the secret Foreign Intelligence Surveillance Court, which handles national security matters.
Apparently, we were just sweeping up numbers even tangentially related to "suspected terrorists" — if you received a call from a pay phone once used by a terrorist, your communications were probably monitored; if you got take-out from the same restaraunt as a "suspected terrorist", you might be on The List — and monitoring them. Justification — "probable cause" — was neglected entirely.

The NYTimes story notes that the NSA was criticized by the Sept. 11th Commission for its "avoidance of anything domestic" prior to 9/11. Post-9/11, they seem to have swung too far in the opposite direction. Recall this passage from pgs 104-105 of the 9/11 Commission Report:
The law requires the NSA to not deliberately collect data on U.S. citizens or on persons in the United States without a warrant based on foreign intelligence requirements. Also, the NSA was supposed to let the FBI know of any indication of crime, espionage, or "terrorist enterprise" so that the FBI could obtain the appropriate warrant. Later in this story, we will learn that while the NSA had the technical capability to report on communications with suspected terrorist facilities in the Middle East, the NSA did not seek FISA Court warrants to collect communications between individuals in the United States and foreign countries, because it believed that this was an FBI role. It also did not want to be viewed as targeting persons in the United States and possibly violating laws that governed NSA's collection of foreign intelligence.

The NSA has corrected the surveillance problem cited by the 9/11 Commission. Unfortunately, they have yet to correct the warrant problem.

Yes, we ought to have an investigation. Contrary to demagoguery, the legality — indeed, the basic facts — of this is uncertain. An investigation is the only way to decide the case on its merits.

And if you're convinced that the program is legal, then you really ought to support an investigation. What better for your argument than independent exoneration?

NOTE: Readers should not conflate my opposition to warrantless domestic surveillance—the lack of oversight—with a general opposition to surveillance. They are separate matters.
 
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And it would seem contrary to many fears, those people who were tangentally connected to a terror suspect, weren’t just thrown in jail, never to be seen again.

I support a reasoned debate about the issue of domestic intelligence gathering for foreign intelligence purposes. And it would seem to me a court would be the proper forum for such a debate, not the politically motivated Legislative branch.

Let the courts decide if the actions were legal or not. That is it’s purpose.

And let the Congress decide if it wants to make the actions illegal or not. That is it’s purpose.
 
Written By: Keith, Indy
URL: http://
NOTE: Readers should not conflate my opposition to warrantless domestic surveillance—the lack of oversight—with a general opposition to surveillance. They are separate matters.
That this disclaimer is even neccesary show how quick and willing many are to twist and distort a persons position in order to satisfy some sort of agenda.

Keith:

Oversight is one of primary and most important roles of the legislative branch. I see no reason why it should not be allowed to exercise that oversight.

I would also mention "let the courts decide" is a bit of a problem, given that the administration has decided that it has the authority to bypass that very system.
 
Written By: Rosensteel
URL: http://
And if you’re convinced that the program is legal, then you really ought to support an investigation. What better for your argument than independent exoneration

Clarify please. Because if you’re talking about a 911-commission style CYA-fest/partisian shooting gallery, then no, I really don’t support that.

But I love the idea...Jon, you’re not guilty of kid touching, but since you’re innocent you really ought to support an investigation!
 
Written By: shark
URL: http://
Clarify please. Because if you’re talking about a 911-commission style CYA-fest/partisian shooting gallery, then no, I eally don’t support that.
I’m talking about an independent, non-partisan investigation. I’d also be satisfied with a hearing before the Supreme Court to determine the legality of the actions, provided the evidence was all laid out.

If your objection to an investigation is that you’re afraid the investigators might be partisan and reach the wrong conclusion, I’ve no sympathy for your position whatsoever. The Right wanted to investigate everything under the sun during the 90s. I’m not about to sympathize with your newfound protestations at the prospect of an independent investigation over something as genuinely serious as this.

"I don’t trust Congress to exercise their Constitutional authority" is not an argument. It’s an abdication of our Constitution.
 
Written By: Jon Henke
URL: http://www.QandO.net
I would also mention "let the courts decide" is a bit of a problem, given that the administration has decided that it has the authority to bypass that very system.

Then why do you think that Congressional oversight will fare any better?


 
Written By: Mark A. Flacy
URL: http://
From the article:
The N.S.A., whose mission is to spy overseas, began monitoring the international e-mail messages and phone calls of people inside the United States who were linked, even indirectly, to suspected Qaeda figures.
Then you said:
Apparently, we were just sweeping up numbers even tangentially related to "suspected terrorists" — if you received a call from a pay phone once used by a terrorist, your communications were probably monitored; if you got take-out from the same restaraunt as a "suspected terrorist", you might be on The List
This is an apparent non sequitur. The article says overseas calls were monitored, not completely domestic ones. While it’s possible that you might receive an international call from a payphone somewhere outside the US that a terrorist once used, I doubt very much that calling a restaurant in the U.S. would put you on some list.

It’s a fine line: is monitoring an international call the same thing as domestic surveillance?
 
Written By: Steverino
URL: http://steverino.journalspace.com
"...you’re afraid the investigators might be partisan..."
"I’ve no sympathy for your position whatsoever..."
Following your own line of reasoning, Jon, this is the wrong answer. You should have the sympathy and then attempt to overcome the very logical objection, given the egregious example of the Alito confirmation hearings we all just witnessed (dare I say "Congressional investigation" in action?).
"I don’t trust Congress to exercise their Constitutional authority"
This statement is nothing more than common sense in the real world. Jon’s abdication of common sense in his ivory tower call to the Constitution is ridiculous. A good portion of the objections being raised to having this investigation would disappear [mine certainly would] if such investigations were not the political circuses we all know they are. Common sense calls a this spade a spade - except when we are motivated by BDS to call for it.
 
Written By: Notherbob2
URL: http://
Steverino, don’t bother him with the details, he wants to hitch a ride on the syphilitic horse called Gore—and pretend it’s a Triple Crown moment for constitutional free inquiry.

"The article says overseas calls were monitored, not completely domestic ones."

While it’s clear from this article, that the FBI was quite put out being given pointed after red herrings—that this is a self correcting problem in all respects.

It still isn’t clear to me whether entirely domestic calls were being monitored, but I am certain the partisan political atmosphere prevailing would cause that truth to out if it were the case—without any unrealistically implausible "bipartisan, nonpolitical" hearings.

Jon Henke wrote:
""I don’t trust Congress to exercise their Constitutional authority" is not an argument. It’s an abdication of our Constitution. "
They’ve been baldly ignoring the Constitution for longer than you and me together have been alive, what do you expect?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Jon, are you at all worried about what operational secrets might be revealed in a public investigation?

Or the cost? How many millions of dollars should your fellow citizens fork out for an investigation they aren’t convinced they need? Note that the only folks calling for an investigation are the out-of-power Democratic partisans (and a few others) - let them pay for it.

And lastly, isn’t an "investigation" a reward of sorts to the proliferators of the NSA "Domestic Wire tap" media myth? That is, if the story was a prop designed to sell Risen’s book and to provide credibility to progressives’ anti-GOP ’06 talking points (see Al Gore’s recent speech), wouldn’t awarding the issue an "investigation" give these political players an unnecessary political and financial boost?

These questions need to be answered before this American can support an "investigation."
-Steve
 
Written By: Steve
URL: http://
Let me put it this way. I don’t care how it’s done, as long as it’s carefull, considerate, and reasoned.

In the end, what is needed are clear directives to the Executive Branch about what is or is not premissible. I’m all for that.

And for a reason to do this for partisan political purposes (if you need one,) now is precisely the time to start defining what is permissible and legal, and what isn’t, just in case we do not get a Republican President in 2008...
 
Written By: Keith, Indy
URL: http://
Re an investigation - aren’t there sources and methods issues, and reasons to keep some of this secret?

Or are we assuming that the Times is (basically) right and Bush wrong - that full disclosure at this point won’t give anything useful to the Chinese, the Iranians, the No Koreans, AL Qaeda, or anyone else?

My official editorial position has been that this would be a lovely opportunity for the Congressinal Intel committees, which are designed for this sort of thing, to actually do their jobs of providing oversight, sort out the legality of this, and either pass the appropriate laws or terminate the program (by de-funding them, if necessary). *Without* putting every detail on public display.

That seems at least as plausible as a non-partisan investigation,
 
Written By: Tom Maguire
URL: http://justoneminute.typepad.com
Tom, Tom, Tom. What would your suggested approach add to fund-raising for the Democrats? Where is the campaign issue if Congress works as it should? All your suggestion does is solve the problem and no one really cares about that, other than theoretically and in principle. We are not solving pressing problems here, we are trying to mount a Democratic political campaign. Please stay on topic!
 
Written By: Notherbob2
URL: http://
Sorry. [sarcasm/humor alert]
 
Written By: Notherbob2
URL: http://
I would also mention "let the courts decide" is a bit of a problem, given that the administration has decided that it has the authority to bypass that very system.

Written By: Mark A. Flacy
Then why do you think that Congressional oversight will fare any better?
Because the legislative branch still exercises authority, if it wishes to do so. If that seems to fail, congress ultimately holds the power of impeachment. Not that I expect it to come to that, but the point is that congress certainly holds authority in this matter.

I suppose your question would still stand, though. Congressional oversight and legislative mandate could be ignored. Impeachment could be ignored. If we get to that point, though, investigations over domestic surveillance will have been the absolute least of our concerns. The rule of law is only as good as the willingness of those to abide by and enforce it.

Unlikely scenarios aside, congress still has its constitutional mandate, and that power should be exercised.


 
Written By: Rosensteel
URL: http://
This should be interesting to watch...

http://hosted.ap.org/dynamic/stories/D/DOMESTIC_SPYING_LAWSUIT?SITE=ININS&SECTION=HOME
Federal lawsuits were filed Tuesday seeking to halt President Bush’s domestic eavesdropping program, calling it an "illegal and unconstitutional program" of electronic eavesdropping on American citizens.

The lawsuits accusing Bush of exceeding his constitutional powers were filed in federal court in New York by the Center for Constitutional Rights and in Detroit by the American Civil Liberties Union.

The New York suit, filed on behalf of the center and individuals, names Bush, the head of the National Security Agency, and the heads of the other major security agencies, challenging the NSA’s surveillance of persons within the United States without judicial approval or statutory authorization.

It asked a judge to stop Bush and government agencies from conducting warrantless surveillance of communications in the United States.

The Detroit suit, which also names the NSA, was filed by the ACLU, the Council on American-Islamic Relations, Greenpeace and several individuals.
 
Written By: Keith, Indy
URL: http://
I wonder if a case based mostly on press reports of alleged wrongdoing, and plaintiffs feelings of persecution is going to gain traction.

Please note, this is only my characterization of how the above article describes the cases. I would hope there is more to this case then what was presented.

I’m sure the blogsphere will pick it up and add some color to the what’s been reported.
 
Written By: Keith, Indy
URL: http://
Al Qaeda will, no doubt, file an amicus curae brief.
 
Written By: Notherbob2
URL: http://
I’m talking about an independent, non-partisan investigation. I’d also be satisfied with a hearing before the Supreme Court to determine the legality of the actions, provided the evidence was all laid out.
Doubtless, so will Al Qaeda.
Quit pounding on the high chair, Jon. Your rights are not being violated. They’re being protected. How do I know? Simple deduction; No further attacks on American soil.


 
Written By: Bithead
URL: http://bitheads.blogspot.com
That is a poor measure.

So, if there are futher attacks on American soil, would that be evidence that we need to erode our rights, relax accountability, or remove checks and balances on the Executive Branch?
 
Written By: Keith, Indy
URL: http://
If your objection to an investigation is that you’re afraid the investigators might be partisan and reach the wrong conclusion, I’ve no sympathy for your position whatsoever. The Right wanted to investigate everything under the sun during the 90s. I’m not about to sympathize with your newfound protestations at the prospect of an independent investigation over something as genuinely serious as this

That’just about on the level of some of MK’s "nyahh, nyahh gotcha!" postings...



 
Written By: shark
URL: http://
Not at all the same shark...

Partisans of any stripe should be called to the carpet when they commit rank hypocracy...
 
Written By: Keith, Indy
URL: http://
Well, Gee, Keith... It may interest you to know I suggested what Clinton did with Ames was within his rights as President too, back when he was arrested, based on a warrentless wiretap.

So, let’s for a moment take the situation hypothetically that the NSA had not been listening in on these phone calls, had not been collecting information and another attack occurs. Would you be now saying that the president and company did not do their job? I sure as hell would.

That said, perhaps you can explain to me were partisanship enters into this.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
Before Jon proclaims Hillary’s speech The. Second. Sermon. On. The. Mount. Let me jump in here and state:

Hillary says:
"It has been run in a way so that nobody with a contrary point of view has had a chance to present legislation, to make an argument."
Well, we have been wondering how the Democrats will cover up the fact that they have been useless up to now. Now we know. It’s all the nasty Republicans fault. Geez. If this crock of shit flies then we deserve whatever we get as a result.
Well, they had to say SOMETHNG! Loyal stalwarts will acclaim this obvious consultant-generated bullshit as revealed truth. Wiser heads will evaluate it on a different scale and find it wanting. Of course, this will take some time. Most people are so anxious for a new hope that they will show interest in this tripe until it falls of its own weight.
OK, first the Gore speech, then Hillary. Hopefully, the Democratic campaigners have saved the best for last.
 
Written By: Notherbob2
URL: http://
So, let’s put a good face on things. The Democrats really do intend to win, rather than just to raise money and “fight the good fight” ala their dancing for dollars during the Alto hearings. Hillary’s speech today was intended to shore up the black base, so maybe it didn’t resonate with the independents. Hopefully, all the black spokespersons waited until they had seen a copy of it to endorse it. Next, they can offer the independents some reason to vote for them. I am sympathetic to their problems with their base. What I am interested in, is can they run a campaign and then govern as other than the representative of their special interests. Is America in there someplace? I believe that America is in there someplace with Bush. He is treating my vote like the Democrats have treated the black vote. Well, I care about America and I will curse while voting if I must, but I am going to vote for people who can get the job done. And losers saying that the winners dominated them to the point they could not do their thing makes them losers as far as I am concerned. Double that when it is an obvious, contrived lie. So let’s see what else they have.
 
Written By: Notherbob2
URL: http://
BitMap said,
It may interest you to know I suggested what Clinton did with Ames was within his rights as President too, back when he was arrested, based on a warrentless wiretap.
That’s incorrect.

There were two types of surveillance in the Ames case, wiretaps and physical searches.

The wiretaps in the Ames case were done with warrants.

The physical searches were conducted without a warrant but with the Attorney General’s approval. That was all that was required in 1993. FISA was updated, with support of the Clinton administration, in 1995 to include physical searches.

See brainshrub.com for more details.
 
Written By: Saanvik
URL: http://fugacious.org
"It has been run in a way so that nobody with a contrary point of view has had a chance to present legislation, to make an argument

Try winning elections....

 
Written By: shark
URL: http://
"It has been run in a way so that nobody with a contrary point of view has had a chance to present legislation, to make an argument"

Try winning elections....
As pleasing as it may be to you to make this issue one of partisan politics, there is no insignifigant number of Republicans who are displeased with the current state of things and are demanding more information and oversight as well.

Unfortunately, attacking the Democratic party on this issue simply isnt going to stick.
 
Written By: Rosensteel
URL: http://
Unfortunately, attacking the Democratic party on this issue simply isnt going to stick

Seen the polls on this? Not only is it going to "stick" but it’s going to bite the Dems on the ass...
 
Written By: shark
URL: http://
What is to be investigated? Please describe the precise actions you intend to investigate. I am unable to find an accurate and comprehensive description in the public record.

The NY Times has used a number of characterizations, but I have yet to see an actual description. Are they looking for key words and phrases and discarding everything else? Are there thousands of people with earphones?

Any person entering (and sometimes leaving) the US may be searched without benefit of warrant. Why is phone call or email more priveleged than an actual person? Of course a phone call or email between the US and unspecified foreign locations containing one or more unspecified words or phrases monitored in an unspecified manner may involve a US citizen. Given the number of arrests, citizenship is not a barrier to terrorism.

Congressional Democrats and Republicans in the appropriate positions were informed on a current basis. They said nought until the Times published, and most of them have said little since.

A headlong rush to dismantle and destroy the effectiveness of a program under the guise of "oversight" sacrifices any gain in secuity to any concern with rights. Tom McGuire is closer to the mark in couseling caution. The Constitution is not a suicide pact.
 
Written By: Tee Jay
URL: http://
Bithead - you are merging my two statements and taking them as a single position on the whole subject.

My point to you was, results aren’t a good measure of the legality or Constitutionality of a particular law enforcement or intelligence gathering activity.

Just because we get good results, doesn’t mean an activity is currently legal.

My comment to shark is about Jons discounting of dismissive arguments against some type of investigation and/or legislation to either curb the power, or make it clearly legal.

Someone saying that we shouldn’t investigate now something that is troubling, when that same person might have called for an investigations during Clintons tenure, can be hypocritical.

So is saying that we shouldn’t investigate because Clinton did it too. Well, that doesn’t argue legality or Constitutionality. It does go to commonality of practice.
 
Written By: Keith, Indy
URL: http://
This is an apparent non sequitur. The article says overseas calls were monitored, not completely domestic ones. While it’s possible that you might receive an international call from a payphone somewhere outside the US that a terrorist once used, I doubt very much that calling a restaurant in the U.S. would put you on some list.
I didn’t say anything about entirely domestic calls. Granted, my examples were not very clear about that or very illustrative of likely international calls, though. Apologies.
It’s a fine line: is monitoring an international call the same thing as domestic surveillance?
I believe it clearl is. Persons in the US are entitled to the protections that persons overseas are not.
A good portion of the objections being raised to having this investigation would disappear [mine certainly would] if such investigations were not the political circuses we all know they are
Well, great. Republicans don’t trust Democrats and democrats don’t trust Republicans. So, why should we ever have investigations at all? You’re arguing that the only people who can be trusted to investigate wrongdoing is the Party doing it. That’s a recipe for unending corruption.

Like self-interest in a free market, partisanship is precisely the tool that helps keep government honest.
They’ve been baldly ignoring the Constitution for longer than you and me together have been alive, what do you expect?
I expect libertarians to try to change that whenever possible.
Jon, are you at all worried about what operational secrets might be revealed in a public investigation?
No. We have procedures to deal with that. Congress is perfectly capable of doing an investigation into secretive programs.
Re an investigation - aren’t there sources and methods issues, and reasons to keep some of this secret?
Indeed. From you, me and Joe Blow perhaps. But the Legislative and Judicial branch are Constitutionally tasked with oversight.
Or are we assuming that the Times is (basically) right and Bush wrong - that full disclosure at this point won’t give anything useful to the Chinese, the Iranians, the No Koreans, AL Qaeda, or anyone else?
Presumably, they won’t be asked to participate in the investigation.
Quit pounding on the high chair, Jon. Your rights are not being violated. They’re being protected. How do I know? Simple deduction; No further attacks on American soil.
This is the same deductive process that informs us that the Japanese Americans rights weren’t violated because there were no attacks on US soil after their detention during WWII. Brilliant. I’m sure they’ll be relieved to hear that.
Well, Gee, Keith... It may interest you to know I suggested what Clinton did with Ames was within his rights as President too, back when he was arrested, based on a warrentless wiretap.
He was arrested after a warrantless physical search, which was not then covered and prohibited by FISA.
 
Written By: Jon Henke
URL: http://www.QandO.net
It’s a fine line: is monitoring an international call the same thing as domestic surveillance?
I believe it clearl is. Persons in the US are entitled to the protections that persons overseas are not.
I can’t see it so clearly, Jon. If the NSA is monitoring someone from overseas who happens to call a person in the US, I don’t see anything wrong with it. It all depends on who the subject of the surveillance is.

To give you a somewhat parallel situation, let’s suppose your local police are staking out the apartment of someone suspected of a crime. Further, let’s say you go visit this suspect (maybe he’s your brother-in-law). Is it right for you to claim the the police are following you without any reason? They aren’t really following you, after all, they’re following the suspect.
 
Written By: Steverino
URL: http://steverino.journalspace.com
Reading comprehension, Jon. I am arguing that just because the Democrats need a political circus for the purpose of kicking off their 2006 campaign is not sufficient reason to provide it.
 
Written By: Notherbob2
URL: http://
Reading comprehension, Jon. I am arguing that just because the Democrats need a political circus for the purpose of kicking off their 2006 campaign is not sufficient reason to provide it.
I’m not calling for "a political circus for the purpose of kicking off their 2006 campaign", nor is anybody else. You might infer that this is their intention, but that’s as partisan a judgement as the alleged Democratic interest in a campaign season circus.

I want an investigation because the situation warrants it. I don’t care where the chips fall or who the truth hurts.
I can’t see it so clearly, Jon. If the NSA is monitoring someone from overseas who happens to call a person in the US, I don’t see anything wrong with it. It all depends on who the subject of the surveillance is.
First of all, the story indicates that they were "monitoring the international e-mail messages and phone calls of people inside the United States", and not that they happened to momentarily chance across them while they were monitoring a foreigner. Second, the 9/11 Commission report on the NSAs view of this pre-9/11 seems to differ on that point.
 
Written By: Jon Henke
URL: http://www.QandO.net
Perhaps not so big. Following your IP address back gains you nothing, Book.
I’m not calling for "a political circus for the purpose of kicking off their 2006 campaign", nor is anybody else. You might infer that this is their intention, but that’s as partisan a judgement as the alleged Democratic interest in a campaign season circus.
It’s also a realistic judgment.
I don’t care where the chips fall or who the truth hurts.
Does that disregard include the average citizen who will end up on other victim Isdlamic Holy Warriors? Or, had you forgotten them?

 
Written By: Bithead
URL: http://bitheads.blogspot.com
My point to you was, results aren’t a good measure of the legality or Constitutionality of a particular law enforcement or intelligence gathering activity.
I agree, but would suggest that that issue was dealt with at the time the law that bush was following was written.... back in the Forties.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
This is the same deductive process that informs us that the Japanese Americans rights weren’t violated because there were no attacks on US soil after their detention during WWII. Brilliant. I’m sure they’ll be relieved to hear that.


Apples and bannanas, Jon.
You know better, or you should.

 
Written By: Bithead
URL: http://bitheads.blogspot.com

 
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