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December 10, 2007


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FISA certainly didn't slow the forged Niger diplomatic letter.

Hi. I'm sorry, but McConnell is lying.

There is nothing faster than a retroactive warrant.

By definition. It simply isn't possible to authorize surveillance faster than doing it retroactively, which FISA accommodated perfectly well before the Protect America Act, and will continue to accommodate should the new Act expire.

It's literally physically impossible to authorize the surveillance he says he needed faster than was already allowed.

Obviously, I agree. And while that's true in the real world, it's not entirely fair to his argument, which is largely about efficiency. One has to admit that even retroactive warrants take time and personpower to obtain, and a large part of his argument is that those resources should be better spent elsewhere.

My point here is that even on its own terms, his argument doesn't hold -- if FISA only protects the rights of terrorists, then he must only be wiretapping terrorists, ergo he already knows who they are and there is no need for wiretapping. To resolve this catch-22, we have to say either (1) he doesn't know in advance who the terrorists are (in which case, FISA is protecting innocents' rights, and his argument falls apart), or (2) he does know who they are (in which case, he's just watching them as they roam free). I'm wondering which way he sees it.

OT, but thought you'd be interested:

AP Matt Apuzzo is reporting Libby to drop appeal, and that "Fitzgerald has said the leak investigation is closed."

Yes, they do take time and personpower to obtain. So what he's asking for isn't really so much efficiency, as the abandonment of the hard work of maintaining a constitutional democracy.

It's a position, I guess.

Perhaps, taking him at his word, the logical conclusion to draw is that having terrorists roaming free to use a bogeymen to scare the witless is better for the government than actually protecting us from them.

Kagro, I suppose his response would be that the additional paperwork involved in FISA is not required for constitutional democracy, since we got along for about 200 years without it.

Interestingly, from this perspective, McConnell's argument relies strongly on invoking the advancement of new telecommunications technology -- he says that bypassing FISA is required because communications technology has changed the way routine surveillance must be done. In reality, I suppose it was largely that new technology that separated those first 200 years from the post-FISA years, as telecommunications allowed the monitoring of overseas targets by domestic agencies. [I may not understand the history of FISA properly here, since overseas telecommunications was around for decades before FISA was needed. Why wasn't it needed earlier?]

To me, the biggest problem with his argument remains his premise that only criminals are put under surveillance. Once you admit that you listen first, and draw conclusions later, the whole thing falls apart.

emptypockets, I'm glad you haven't transcended irony.


Oops, I'll have take back my previous comment. I clicked on the link and read McConnell's op-ed. I regret to inform you that you really can't take him at his word. I'll highlight just one sentence to explain why:

First, the intelligence community needs a law that does not require a court order for surveillance directed at a foreign intelligence target reasonably believed to be outside the United States, regardless of where the communications are found.

Let's break this down:

"does not require a court order" - means that all the facts of everything that follows will be determined by executive branch assertion and nothing more. Remember that.

"surveillance" - includes wiretapping, searching of financial and business transactions, searching of stored communications, physical searchs (i.e. black bag jobs) and real-time monitoring (visual, video, audio, etc.)

"directed at" - means that the target is at least peripherally involved in the transaction being surveilled.

"foreign intelligence target" - anyone with a real or imagined link to foreign intelligence. They don't have to be a terrorist or spy. As long as the government thinks they might know something related to "foreign intelligence", they can be targetted.

"reasonably believed to be outside the United States" - completely content-free. This "reasonable belief" can, by definition, never be challenged or reviewed. Look closely at the rest of what he says and it will be clear that he doesn't intend to document the basis for this "reasonable belief".

"regardless of where the communications are found" - this is the "tell". This, of course, means inside the United States.

To sum up, all the man is asking for is the freedom to show up at any phone company, email provider, bookseller, library, church, business, or residence and secretly compel anyone to provide any information he requests. This is not about technology. This is a simple choice between tyranny and freedom.

If you think I'm being extreme in my interpretation of the law, I encourage you to look closely at the PAA, the definitions it uses, and the differences between it and FISA.

Ockham, no, I agree with your interpretation. (And I'd make special note how his use of "foreign intelligence target" suggests a parsing -- that the target is foreign -- which is not the case, since as I understand it he wants to continue to monitor US citizens on US soil.)

I'm not sure tyranny is the right word for it, though, since McConnell is not overtly trying to go around the law (though the administration has elsewhere expressed its ambition to do so). And, to be fair, I'm not even sure that privacy is as much a cornerstone of democracy as we think it is -- isn't democracy (and freedom) more about equality under the law and self-governance than about controlling private information?

Just as a thought exercise, could one have a free democratic state where no civilian information was kept private?

Ok, I'll outsource my response to Aristotle, the original definer of the term (h/t to Scott Horton for pulling these quotes together):

and further, it is part [of the nature of tyranny] to strive to see that all the affairs of the tyrant are secret, but that nothing is kept hidden of what any subject says or does, rather everywhere he will be spied upon . . . . Also it is part of these tyrannical measures to impoverish the nation so as to bolster the funds available for military defense, and so that the common citizens will be occupied with earning their livelihood and will have neither leisure nor opportunity to engage in conspiratorial acts . . . . Thus, the tyrant is inclined constantly to foment wars in order to preserve his own monopoly of power... A tyrant must put on the appearance of uncommon devotion to religion. Subjects are less apprehensive of illegal treatment from a ruler whom they consider god-fearing and pious. On the other hand, they do less easily move against him, believing that he has the gods on his side.

Why terrorists go free:


Why terrorists attack:

There is also Obama and Opraphrenia: Clinton and Hillary II.

The last week is Bill II: Obama and Opraphrenia trading.

Why terrorists go free:

It wasn't FISA that imposed the requirement of paperwork and expenditure of personhours to conduct surveillance. It was the fourth amendment's requirement that no warrants issue but upon probable cause, supported by oath or affirmation, and particularly describing the nature of the search.

If anything, FISA made it easier, by allowing 72 hours to complete all that nasty work retroactively.

We've never gotten along without it, because we've always had it.

Ockham, I defer to Aristotle..! but, just to push back gently (because that's why I find TNH fun), your argument is that depriving citizens of privacy is one of the hallmarks of a tyrant -- and I have no illusions that Bush aspires to be anything less. But, to be rigorous, it doesn't address the question of whether privacy is required to prevent tyranny. That is, tyrants take away privacy; but does abandoning privacy -- assuming all other checks remain intact -- automatically create tyrants?

I think privacy may act more as a childproof lock on the cookie jar of our freedoms -- if they can't get to them, they can't steal them. But if the children were to obey the rules and not try to steal the cookies then perhaps we wouldn't need privacy protection (ie., privacy is not essential to freedom or democracy). Unfortunately we have some very undisciplined kiddies running the show these days.

Kagro, I see what you're saying, but the obvious rebuttal is, "if the necessary protections are already in the fourth amendment, then we don't need FISA." (Except, as you say, to expedite searches; without FISA, warrants would be required before, not after, a search was executed.) I guess the question is, did something really change (for example, technologically) in the 1970s that led to FISA, or was it just that we hadn't had a President that bent on breaking the law before and (as I say above) FISA is a pair of suspenders added to the belt of the 4th Amendment? (To continue the metaphor, the Protect America Act leaves us all with our pants down.)

Sometimes your suspicions alone are enough to watch certain people. They may be Street Gangs, Motorcycle Gangs, Drug Gangs, Organized Crime, etc.

To arrest these people and hold them, you have to have more than suspicions.

So they just watch them, see who they talk to, find out if there is a connection that the authorities can use to get more info.

Terrorists are not much different in that single respect. You want to be able to make a case when you pick them up, because their buddies will go to ground quickly.

As I read some of what was said above, it seemed that you thought no one should be ever looked at unless the authorities were ready arrest them on a definite charge.

The system doesn't work that way even if Terrorism isn't involved.

The big problem is that Terrorism is a bit more involved because it is international, and some of the normal clues aren't available. The Terrorism unit may be very self contained, may not be easily infiltrated like a Street Gang, or even Organized Crime. They may be very unlikely to talk to women in a bar. There is no "old buddies" down on the block to question, not even any extended family. The Terrorists may almost always be in a group of 2 or more. They do however communicate back totheir home base, or to home contacts, so intercepting these communications is the best way to scrutinize them.

We have to revise our laws signicantly in order to get a handle on Terrorism.

And I have said before many of the present barriers to this kind of extended surveilance put up by many so called Privacy Advocates will be swept away in a tidal wave when we have the next significant event of Terrorism in America.

Jodi, I agree that cause for suspicion is enough to warrant surveillance. That's what warrants are for.

But McConnell's argument seems to be that they are only doing surveillance on people they know are terrorists. But I agree with you, that he should be doing surveillance on suspects well before he is ready to make an arrest, and of course for someone like that (where you're not sure yet), you need to have cause for suspicion. And you're right that they should have that cause for suspicion before beginning surveillance.

No number of law revisions of whatever degree will guarantee complete security. We can't expect laws to make us completely secure; the Constitution's framers certainly didn't, and they knew that government fear-mongering and promises of security had been and could be used to tamp down expectations of personal liberty. They led more perilous lives than most of us do, and among the risks they faced and were aware of was the possibility of being attacked without sufficient warning.

Many of our elected officials in the USA, along with many of their appointees, greatly underestimate the distress felt by many in the public over losing control of our government agencies and their contractors. The claim that they're only protecting us is not convincing and not reassuring. More and more, I hope, it will become evident that we are being misled as to extent and purposes of government surveillance and personal-information collection.

I'd like to propose an obvious high-value functionality of the vague FISA update wording, that would allow NSA to eavesdrop on American Citizens overseas while "targeting terrorists".
It is particularly relevant to what may have happened in May 2007, when the 12 hour delay in getting a FISA warrant "endangered the lives of kidnapped soldiers" (Per McConnell Testimony).

Soldier had been kidnapped.
Terrorists are no doubt calling Al Jazeera and freelance press in Iraq to claim responsibility. These freelancers might float their leads by US press digging into the story.

NSA has an obvious desire to monitor calls to known journalists to develop intel. They probably did this freely under TSP until they started submitting their targets to the FISA court.

Just speculation, but seems reasonable.

drational, how does that scenario (12 hour delay endangering lives) reckon with the FISA requirement that a warrant be sought within 72 hours after beginning surveillance?

EP: The change in technology is not one that benefits the terrorists, but rather the surveilleurs. By definition, acts of terrorism require very little organization or planning to be effective. The Al Quaeda demagoguery is mostly propaganda to make people think their enemy is a state-like entity. One person with explosives can create a hell of a lot of terror without communicating anything to anyone.

When the archives of the former East Germany were opened up, it turned out that 40% of the population were snitching on their fellow citizens. That's what it takes to do massive surveillance using low technology. New technology allows it to be done with maybe 1 person for every 100,000 (ballpark). It's doable, so McConnell wants to do it. But if they have to get warrants, it's going to take a lot of clerks to fill out those 100,000 forms.

The technology angle is strictly a Rovian up-is-down feint. Sadly it is also the surest way to victory with the current US congress.

Ken, I can see your point. I'm still curious though what led to FISA in the first place. I mean, I understand it was prompted by Watergate, but what enabled Watergate? Was it that the country had just never had such corrupt leadership before, or have we always had the occasional Bush-Nixon president but before the 1970s they didn't have the technology to do as much harm (or we didn't have the technology to catch them at it)?

Why did Watergate and FISA happen in the 1970s, and not earlier?

per the mcconnell letter http://www.talkingpointsmemo.com/docs/fisa-timeline/?resultpage=3&

detailing the events leading to the delay, they had been wiretapping since 5/12 after kidnapping, and they note this was done with FISA approval. They wanted to add specific targets to the surveillance, and felt they needed AG to sign off to get FISA approval for whatever target it was they needed. The "12 hour delay" happened on 5/15.
I can only surmise that they had been "emergently" tapping the identified target for 72hours already, but then figured out they had better get a warrant for continued tapping to conform to FISA.

drational, thanks -- that's a very helpful document.

They say they began surveillance "immediately upon learning of the attack" on May 12, so the 72-hour window would be closing on May 15 as you said. The obvious question is, why didn't they begin applying for the FISA-mandated court order immediately instead of waiting until the last minute?

They say they began to compile the request "as soon as specific leads had been identified," suggesting to me that whatever motivation they had to begin the surveillance was not enough to warrant a FISA court order. That's a problem right there, since as I understand it they should be using the 72 hours as time to do surveillance that is ALREADY justified but where there just hasn't been time to file the paperwork yet. In this case, it appears that they were using the 72 hours as a "free peek" time to collect whatever they felt like without need of justifying it, planning to continue past the 72 hours with only the legitimate surveillance.

I'm going to ignore for the moment that they are therefore doing unjustified surveillance and just think about the practical issues of why FISA would impede an investigation, as in this 12-hour delay. It appears that the problem in this case was that they didn't file the request when surveillance began, but had to wait for the results of the surveillance before they could argue that it was justified -- and that wait time put them too close to the end of the 72-hour window. It seems that the problem here is they got themselves into a catch-22 in which they couldn't justify the surveillance without first doing the surveillance... is that your understanding too?

(The obvious solution, then, is to only do justifiable surveillance and to begin the court order request as soon as surveillance begins.)

EP: "Why did Watergate and FISA happen in the 1970s, and not earlier?"

I guess it was just the first time a president got caught using govt. coercion to force the telecoms to assist with surveillance that was strictly aimed at subverting democracy under the guise of "national security". Having a president publicly exposed for acting like a cheap thug was embarrassing to Americans of the period. Especially so, given the overwhelming majority that they gave him in '72.

Technology-wise, I suppose it correlates with the time that solid state switching networks were finally extended all the way to individual residences (even in the 60s I can remember neighborhoods with individual lines going to every house). That made it easier for the telecoms to cooperate while retaining plausible deniability as to their knowledge of who was being spied upon.

But mostly I think Nixon was outed because his paranoia had overtaken him and made him too unpredictable. The congress had to do something to make it look like the country was learning from its mistakes, so the result was FISA. As Kagro says, though, it didn't add anything that wasn't already implied by the 4th amendment.

they note they started surveillance by amending an existing order, but then needed further approval.
The big mystery is why they felt they needed FISA approval. there have been so few FISA requests over past 8 years (numbering in hundreds), yet NSA is obviously surveilling more than this batch.
FISA did not require warrants for foreigners.
They allege that the problem is signals are routed thru US soil, but I cannot see this to be an important distinction.
looking at sheldon whitehouses speech, it seems pretty clear that they discarded fisa and EO12333, and in so doing had no limitations on tapping US persons abroad. Whitehouse makes this point using US soldiers as example, but I think Press is an obvious high value target owing to proximity to insurgents via tips.

If they were targeting foreigners in Iraq, then FISA seems non-applicable.

I suspect they were targeting US persons, but just speculating.

ken & drational, agree with each of you -- excellent points.


Abandoning privacy will lead to tyranny every time. When the government has, um, total information awareness they have total control. The hallmark of tyranny is to exchange the public and the private. That which should be public, the administration of government, becomes private, and that which should be private, our personal conduct, becomes public.

Also, the whole business about the kidnapped soldiers was not about wiretapping in the traditional sense. It was about access to either stored email or stored call data records (or more likely both). There's been a whole of bait and switch going on in the public discussions. What the NSA wants is the right to get to your email and your past calling data so that they can analyze it and then decide whether or not it's worth wiretapping you. The whole foreign to foreign business is basically a dodge so that they don't have admit this.

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