« Ensuring Quality | Main | Six Months »

October 15, 2007


Strange all these rantings against a free press.

Yah, you get what you pay for.

What's more, if I'm not mistaken, the bill that's gotten out of Conyers' and the Intel Committee in the House changes this aspect of the bill anyway. Unless I'm mistaken.

Curious what you think of the bill altogether, with full knowledge that what ends up going to Bush's desk for signature very well may not be the same as the bill working its way through the House.

wonder how much murdoch got for that story? clearly he is on the gop payroll..

**"You see, those soldiers died because "Paul Clement 'had left the building,'" not because of any laws on our books."

The laws on the books are the entire reason anyone had to try to find Paul Clement in the first place.

I know that this is top secret and if I were to be provided with the answer Americans will die and the blood of 100,000 Americans in the coming attack will be my responsibility, but what does an in progress military assault in Iraq have to do with monitoring telecom lines in the U.S.?

Were Al Qaeda in Iraq calling their handlers on Atlantic Avenue for instructions on what to do? Are internal telecom lines in Iraq routed through the U.S.? If so, why? Especially since that would supposedly represent a legal problem with monitoring. If there are handlers in the U.S. I find it impossible to believe that the FISA court would not give an OK to monitoring. There's also the existing right for a retroactive OK on monitoring.

None of this is believable on any level.

"what does an in progress military assault in Iraq have to do with monitoring telecom lines in the U.S.?"

I've wondered that, too. It just doesn't make sense.

The laws on the books are the entire reason anyone had to try to find Paul Clement in the first place.

The argument obviously is, were the DoJ not such a dysfunctional mess, there would have been no problem. If Ackerman's story is accurate, the Post story misrepresents the nature of the problem, making it sound - as you do - that there were problems intrinsic to the law itself, as distinct from the ability of Doj - this DoJ - to implement it as any reasonable organization would be able to do.

"...but what does an in progress military assault in Iraq have to do with monitoring telecom lines in the U.S.?"

Because almost every call made on the planet is routed through the US in today's digital age. That's the reason that FISA is outdated... it would require a warrant to intercept pretty much any communication anywhere on the planet, because it is routed through the US and is, according to FISA, a "domestic" communication.

This has all been well covered in the media, and anyone paying attention (rather than concerning themselves with lobbing partisan bombs) should know it.

1) We have been in Iraq as the conquering and occupying authority for five years and can't intercept terrorist cell phone calls there? WTF?

2) If we really knew they were using cell phones, then we would have specific enough information to insure no American's info would be intercepted and, being only foreign-foreign at that point, nothing else was needed.

3) Did someone forget about the 72 hour exigent circumstances provision?

4) Even if you make it past items 1-3, why didn't one of those tough guy, patriotic, do anything for the troops, Republican Daddies just do the right thing and have the balls to accept any consequences? They all jaw in reverence about Jack Bauer, but not a freaking one of them has the balls to be Jack Bauer; when its crunch time, they are always yellow backed cowards of the highest order, never willing to join the battle themselves. They must have all been drunk in a Texas gutter, had "other priorities", or been suffering from a pilonidal cyst that day.

"If Ackerman's story is accurate, the Post story misrepresents the nature of the problem, making it sound - as you do - that there were problems intrinsic to the law itself, as distinct from the ability of Doj - this DoJ - to implement it as any reasonable organization would be able to do."

Nonsense. It makes very clear the circumstances of the relevant officials, and it doesn't sound "disfunctional" at all, but, rather, about what you'd expect when dealing with such high level officials who are very busy.

The underlying point--and the problem with the law--is that it is patently absurd to require a FISA warrant or a AG approved emergency FISA exception to intercept a call between terrorists in Iraq. Part of the problem, also, is that so many people are willing to pretend that it is NOT absurd for purely political reasons.

1. Surveillance did start right away.

Per McConnell's timeline,
on May 12 when the kidnapping happened, "theatre-based and national sigint assets responded by dedicating all available resources to obtaining intelligence..."

At that time, there was an existing order from the FISA court allowing surveillance techniques which could be used in such a situation. On "May 13 and 14" leads were developed using existing surveillance techniques. On May 14, per the timeline, they approached the FISA court "...for an amendment to a then current order with some bearing on the hostage situation. The amendment was granted that day."

2. As the issuance of the amendment shows, even an actual order (basically the 'warrant' they talk about) could be issued almost contemporaneously with the request - - much less the decision to institute emergency, warrantless, surveillance.

3. There is no actual proof or evidence that the FISA court has or does "require a warrant" for "agent of foreign power to agent of foreign power" communications, because the pass through a US switch and for spoken communications there would be no basis under FISA for that type of holding - I don't buy, don't believe it, and think that they are conflating phrases - like Iraq/9-11. Per Kate Martin via the Muckraker:

FISA expert Kate Martin of the Center for National Security Studies also finds McConnell's statement dubious.

"It's totally implausible, like the claim about the arrests in Germany. Doesn't NSA have collection capabilities in Iraq? If so, they are totally outside FISA," Martin says. "Even if they're taking the Iraqi insurgent calls off the wire in the U.S. talking to each other, they don't need a court order and no court is going to bar them. Or is it that the NSA is so incompetent that it doesn't know they are Iraqi insurgents talking to each other and they were just blindly searching all traffic, which the court said they weren't allowed to do?"

4. What FISA does not allow, and where things get interesting, is calls involving foreign persons who aren't agents of foreign powers and non-spoken communications like emails. Can NSA scoop up all foreign to foreign communications that go through US switches and/or can NSA scoop up or mine through all kinds of foreign to foreign emails where there is no probable cause to believe that those calls involve agents of foreign powers - just foreigners. That's the problem IMO and it works with some of the rhetoric they are spouting too. They pretty carefully tack on "foreign to foreign communications" when they talk about terrorist communications. Ross Feinstein, for McConnell, told/queried Spencer Ackerman: "Should we be spending time having to go through such a process to intercept foreign to foreign communications?" leaving off the "where there is no probable cause to believe that either party to the communication is the agent of a foreign power?"

5. Someone needs to flat out ask the direct question - was the problem with probable cause that you KNEW you would be seizing and searching through many communications that would not have anything to do with foreign insurgents at all, i.e., you were going fishing? Bc that is the only way they would have had that problem.

6. Someone also needs to flat out ask if FISA approved the emergency authorization at the end of the emergency period and if not - who is facing charges? If so, didn't they resolve the situation within FISA and without any changes to statute? So are the changes to insulate someone who should be facing charges for FISA violations?

7. Per the timeline, once they "tried" (after dutifully waiting until 5:30) to reach Clement, who was acting AG but who had stepped out of the building - presumably with Blackberry, why did they immediately swap over to AGAG and spend another couple of hours trying to get him instead of having Clement come back? Was it bc they wanted to do something that they knew would NOT be approved at the end of the 72 hours and so they didn't want to involve Clement, just someone who had already been willing to be signing off on FISA breaking warrantless surveillance for a few years anyway?

8. Notice that no one operated under the believe that they could forego warrants and use the Foreign power to Foreign power warrantless exception - only the emergency warrantless exception was attempted.

This is an 'emotions-first' piece - actually the whole fucking BushCo ploy here is an 'emotions-first' play - that seeks to give irrational 'rage' in the Base a target (other than Bush's ineptitude) for their 'frustrations' - this time it's the 'phony' FISA Law.

This is dangerous. It's throwing gas on a fire, rather than helping to put it out.

Murdoch is pressing out completely partisan, Ideological Propaganda, intended as 'Hate-bait.'

One last item - nowhere does the timeline mention the actual granting of the FISA order subsequent to the emergency request.

Maybe they stopped shy of that - or maybe it never happened.

@bmaz, you don't understand FISA. If the call is routed through the US, it requires a warrant under FISA, so that answers #1 and #2.

Re: #3, if I recall the 72 hour provision allows them to intercept the call, but they can't listen to it until they get the warrant.

Re #4, seriously? You consider that sort of "argument" to be reasonable?

Why are you guys so set on defending FISA? Even in the absence of wartime powers, etc... it's a horribly outdated law.

It makes very clear the circumstances of the relevant officials, and it doesn't sound "disfunctional" at all, but, rather, about what you'd expect when dealing with such high level officials who are very busy.

As I indicated in my first comment in this thread, I am not defending anything here, just to be clear. But again, first, if you can't recognize that a DoJ that has been decimated by the sheer corruption and incompetence of the Gonzales regime is not "what you'd expect when dealing with such high level officials who are very busy," you are pretending as much for purely political reasons as those you accuse of not recognizing the absurdity of FISA in light of this spring's court ruling are.

Second, the fact remains that if Ackerman's story is accurate, then the Post story is simply a lie, regardless of what one thinks about the law; thus, for instance, the Post story would be false in stating:

But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

Finding one of the few DoJ officials left has nothing to do with "cobbl[ing] together. . . legal grounds."

Similarly, if, as you seem to concede, the trouble was finding the relevant officials, it is false to state:

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the "probable cause" necessary for the attorney general to grant such "emergency" permission.

They were not, according to Ackerman, "discuss[ing] legal issues," as though the legalisms held things up. They were waiting to find one of the few officials left in DoJ capable of providing the relevant authorization.

Why DaveS., I believe it is you that doesn't really understand the complexities of FISA; you are relying on mindless GOP talking points. Mary has been kind enough to edify you (and for the record, I believe she is being overly generous to your side in her discussion under her item number 4; I don't think it buys your argument one ounce of relief here). Lastly, you bet your ass I am serious about my number 4. And, under the one in a billion chance your bleating simpleton claims turned out to be true and there was a legal violation that resulted, that would be a proper situation for the Presidential Pardon Power (as opposed to the petty, immoral and self serving obstruction of justice reason behind the Libby pardon).

The story is bogus for multiple reasons.

First, no one has ever maintained that the NSA couldn't monitor international to international communications, this includes traffic going through US switches. Routing information should have been able to distinguish between domestic calls and international ones.

Second, even had their been a question about US switches, the NSA still had capabilities to monitor international to international communications outside the US.

Third, an emergency order should have taken a 5 minute phone call, not 9 hours, and all of that delay can rightly be ascribed not to deficiencies in FISA but to bureaucratic bungling. A shocking idea I know given this Administration's record. It should be remembered as well that FISA allows a 72 hour period for surveillance to begin before a request must be submitted to the FISC.

Fourth, it seems slightly incongruous that this Administration that has violated FISA blatantly for years should suddenly get religion about it just as a life and death situation presents itself.

OT- but very interesting. a Chicago Federal court has ordered discovery of the DOJ political prosecutions.

The litigation, entitled Beam v. Gonzales, questions the actions of former Attorney General Alberto Gonzales and Federal Elections Commission chair Robert Lenhard in going after a group of Edwards fundraisers.


Gonzales personally authorized a small army of nearly 100 federal agents to raid a law office and simultaneously raid the homes of its employees and their families. Indeed, one agent commented about how he had been flown in from Iraq to help find out why American citizens had made contributions to the John Edwards campaign.


Italics begone

bmaz - I am trying to be overly generous on #4. I think from the nature of the desires to ditch any court supervision and ditch requisite minimization procedures, they pretty clearly want to scoop up US persons communications too. But I do think that the foreign to foreign, where there is no reason to believe either is the agent of a foreign power as defined by the act, has come up and so that is an argument that can be conflated in - I also think that stored emails, being stored with a US facility - are an area where warrant issues might exist under the act.

Clearly - those things could be addressed by targeted legislation in a way that would make many people feel relatively comfortable.

I think that the reason no one wants to have the "no probable cause to believe they are an agent of a foreign power" argument is that then they have to say to the world that the US courts and US legislature will allow a US President to rifle through all communications and emails of foreign corporations and businesses and individuals; and to do anything that President wants, unchecked and unsupervised, with that information.

Particularly after SWIFT, this is the kind of thing that will make companies, people, etc. reluctant to use US entities and flow throughs if they can turn to an alternative source with less arbitrary and abusive privacy protection for their personal and financial information.

So everyone talks about "terrorist" communications but is drafting for ALL foreign communications and to even dragnet US communications with it.

Keep in mind, the only Judge (other than what FISA may or may not have done when 'teh program' was submitted ) to rule on the merits of the program found it to violate the Constitution.

The discussion needs to be reality based - how much dragnetting and of what kinds, duration, and storage of dragnet info could/should be allowed and how much supervision is appropriate.

With the overarching issue that Congress shouldn't collude with the Executive to violate the Fourth Amendment.

And the sad reality that a Dem Congress will engage in that collusion, almost more readily that the "rubber stamp Republicans" At least when Republicans ran the Congress, early on after the program was revealed, Gonzales admitted that he hadn't gone to Congress for authorizations bc he thought they wouldn't give it.

How times have changed with the Dems in charge.

Oh Mary, I was not busting your chops in the least; just letting the other cluck know that I did not think your graciousness bought him any relief on his insipient argument. And boy, howdy, your last two clauses are the bitter truth.

One other quick item. Clement, as acting AG, isnt' the only one who could have made the emergency request (and btw - did anyone ever get that designation as acting REVOKED before Gonzales did make the request or was Clement still, as Comey was when Gonzales approached Ashcroft, AG when Gonzales made the call).

McNulty, as DAG, is empowered under FISA too. He had just the day before announced he was resigning. Odd timing that, isnt it? The day before the whole place falls apart over a surveillance request that, as it is being characterized, should not have required a warrant at all, and a couple of days AFTER the kidnapping and AFTER amendments were sought and granted to a standing FISA order - - McNulty resigns. In any event, he stayed on for some time and he very likely could have made the request. Why didn't he? Why doesn't he feature in at all? Why hasn't anyone asked Clement or McNulty why they were so unavailable during the emergency?

Sounds pretty fishy to me.

I wonder how long the odds are that Gonzales went ahead, knowing the order request would be turned down and knowing why and knowing about previous admonitions, but unconcerned that he, as AG, would authorize anyone to pursue the AG for the FISA felonies?

it seems slightly incongruous that this Administration that has violated FISA blatantly for years should suddenly get religion about it just as a life and death situation presents itself.

understatement of the year

To tag onto Mary's comment, I don't recall ever hearing a logical and valid reason that Ken Wainstein "was not yet authorized". A guy who's very job description is to lead and make decisions in precisely these situations somehow was "not authorized" despite possessing every prerequisite necessary and having been confirmed almost a year earlier to perform these duties. There are a plethora of reasons why this clusterfuck occurred; all pretty much attributable to the incompetence and criminality of the Bush Administration, not the existence of FISA.

Funny, there didn't seem to be any problems with FISA when Clinton was president, or before that, either. Only since Shrub and Darth were appointed to office has it become a Big Problem needing Radical Revisions. [caps intended, along with the implied snark]


I'm not so sure of that. The RFP for some of the work Qwest thought it was getting went out at least as early as summer 2000.

EW - it isn't so much that this stuff wasn't around in 2000, as that there wasn't this big push to Fix Things (retroactively or not) in FISA. (I'd bet that they were doing tapping of citzens, with or without warrants, if they felt the need; they probably invoked J Edgar's spirit too.)

NSA: I'm a citizen and, guys, I Do Not Approve.

Yeah, I think it is quite clear that at least some aspects of all this surveillance were being discussed and considered under Clinton and well before Bush took office; although that is not to say that they were going to be used in the unscrupulous manner and combinations the Bushies have done. It is also my understanding that there was basically a rolling discussion on how FISA was crafted and worked in light of new technology and situations; however, I think PJ is correct in that I have heard no one from the Clinton Administration say that they considered FISA to be a useless hinderance to security like the Bushies have. In fact, the Clintonians I have heard address this, including Big dog himself, have said just the opposite; stating that FISA was useful, necessary and still allowed the snooping that needed to be done to be done.

Where DaveS go? Things were just getting good - by which I mean bad, for him - when he disappeared. Oh well.

Here's my other question. What was the pre-9/11 stuff for, since we know the Bush admin at least wasn't interested in terrorism, right?


yeah, that's a question i would like to know the answer to also.

here"s my special long-winded version of that Q:

[looking back on the conduct of the bush administration over the last six years,

there is no reason at all, in my mind, to doubt that our janus-headed presidency might have authorized wiretapping prior to sept 11, 2001.

but why?

if the answer given is: to check for terrorist messages,

then i would like to know:

- how could the bush/cheney administration possibly have missed catching the communications of the saudi terrorists who destroyed the world trade center?

- if the administration and its spy technology did fail to intercept these messages, why should we now believe that continued massive surveillance provides the u.s. with any greater protection?

if the focus of the early 2001 surveillance was not terrorist communication,

and here it is crucial to recall that bush/cheney have adamantly claimed to have been taken completely by surprise by the attack of the wtc,

then who was the intended target of their communications spying?

were they just preparing for the years of warfare that they had planned for us?

were they spying on diplomats engaged in controlling saddam hussein's weaponry?


Posted by: orionATL | October 13, 2007 at 16:21]


They were possibly building a database of secrets they could use to control Congress and the media (more than the media were already, that is)?

"putting a human face on things"


where else have i heard that recently.

oh, yeah. the little boy who was badly injured in a car accident,

and whose family had the hell harassed out of them last week by a mob of right-wing crazies activated by sen. republican leader mcconnell's office.

why did this wingnut mob harass the child's family?

his parents had the nerve to let him appear on a democratic radio address and talk about how the schip health insurance program program had saved his life.

the nerve of those parents and that kid - and the democrats.

but now the rat-c's want to put a human face on one of their arguments, that is to say, they want to develop emotionally powerful anecdotal "evidence".

fortunately for them, there is no one to whom the public could ask questions to verify or discredit this republican tale,

all involved are administration officials supporting the purpose of this tale (further gutting FISA and getting immunity for telecos),

and no records the public could access, since all would be labeled "secret".

pretty convenient.

make up tales that can't be checked easily, and certainly not quickly enough to prevent a another democratic stampede away from FISA.

as every lobbyist and congressional manipulator knows,

the goal of "persuading" legislators to support of oppose something is to cause sufficient numbers of them to stampede in the desired direction.

it will be interesting to see if this particular tale, told and retold on teevee, will stampede enough democratic meatheads.

I'll just remind everybody that the key to making sense of this episode is in the Nacchio CIPA filings. Before I read those, I never could figure out why the FISC had made a ruling requiring a warrant for foreign to foreign communications or why the government would need a warrant for listening to calls in Iraq between Iraqis. It is absolute nonsense to say that an Iraqi cell call to another Iraqi cell phone would be routed through the U.S. in normal circumstances.

But now we know what happened. The NSA contracted with various carriers to create fiber optic links all over the world that would allow the NSA to tap almost any call in the world and listen to it inside the U.S. It's the 'listening to it inside the U.S.' that requires a warrant.

friar will

doesn't you comment imply that american officials would have had

at least

two spying networks to track and record those desperate calls re the three soldiers?

-one nsa capability within iraq, or somewhere in the middle east


- one within the u.s., as a result of the expansion of nsa spying within the u.s.


might there not have been a third,

a dod intelligence outfit that monitors call traffic from within iraq (and maybe the rest of the middle east?

were i a centcomm general, i would certainly want that.

and the dod has a history of duplicating intelligence functions that the u.s. govt has created separate from the dod.

WO - Believe it or not, I actually did remember that. I should probably go read FISA as it currently stands before I say this with any certainty, but I still don't think foreign-foreign begets the FISA problem that is being claimed here, even if it is routed through the US. The only way the claims here make any sense is if they had no idea who the "teroorists", "insurgents" or whatever were, had no idea what (if any) cell phones or other communication devices the suspects were using etc. and just wanted to idly troll some giant cable or whatever that, like a needle in a haystack, might somehow have some unknown information related to this particular kidnapping incident. However, if that is the case, then is is pure unadulterated crap that whatever they were seeking to do had any rational relation to the actual recovery of our soldiers or that the "10 hour delay" was what killed them. And this is still leaving out the part that it was their incompetence and criminally hollowed out DOJ that would be the cause of the delay. You sure understand the technical details of all the routing, cables, switches etc. a lot better than I do; so I am interested if I am wrong here....

Let me get this straight: they killed or let be killed several American soldiers to prove a point?

C'mon, this has to be explosive front-page stuff.

Newspaper headline:
Bush & Co. let 4 soldiers die,
FISA law needs repair!

If this is real, then somebody needs to go to the stockade...probably Bush & Cheney.

Still, on FISA, what on earth does it have to do with the Iraq war? Isn't war zone communications completely separate from FISA? I mean, are they trying to listen in on American citizens from Iraq?

Bush & Co need to go as soon as possible.

I'm cynical.
1) FISA has retro active 72 hours approval, so they could start and deal with the house keeping later.

2) If they thought they might be able to tap an insurgent regarding an American life, regardless if it was routed through the US, why didn't they have the balls to just do it, and deal with the house keeping later? It is not like they might possibly ever be charged with war crimes later. If the Pentagon could get the FBI to wiretap secretly (without FISA court) then why didn't the DoJ?

3) If the DoJ has such a hard time authorizing stuff, and can't get the rubberstamping FISA court to go along with whatever the DoJ needs in a timely fashion, shouldn't heads be rolling at the DoJ like water over Niagra Falls?

4) If they are having so much trouble getting adequate staffing after 6 years of ownership of Congress and the Executive branch, heads should roll, and the victim's heirs should be compensated (in a civilian world that would work, but military, not so much. I wish there were some accountability).

I think this is all about the retroactive immunity that Goldsmith said they should have sought, and not about the other smokescreens that are being thrown in front of Congress like WMD on the way to justice. I hope Congress will realize that if the NSA/DoJ is not competant now in wiretapping, then the question should be asked, will they ever be good at it? And how are they intending to change? How do we know that they are following any safeguards at all, given the fact that they had been doing warrentless wiretapping for at least 4 years before we knew about it, maybe 5. Should we let them continue to do ANY wiretapping? And even if we tell them to stop, can we have any confidence that they have?

Here's where I think the FISA issue is. One of the definitions in FISA for electronic surveillance is:

the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

and the definition of wire communication is:

“Wire communication” means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.

The problem for the NSA is that when you pull those communications into the U.S. with the backdoor fiber optic channel, you're no longer a common carrier.

WO - If I am being dense here, EW will give you my contact info and you can come conk me on the head (alternatively, my wife would be pleased to do it for you free of charge); but are you saying that once the govt. splits the cable off for their own use, they are no longer a common carrier (as opposed to saying that the mere act of suckering/sucking all these signals into the US in the first place, which I assume would be function of the common carrier businesses and somehow in their financial interest)? If this is what you are saying, I see your point, but I still don't think it matters if the signals to be intercepted are known foreign-foreign (for one there is no standing or recognized reasonable expectation of privacy for foreign- foreign criminal/ terrorist activity. It still seems to me that the only way a rub comes in is if they are trolling without specific targets.

WO - I see your point and I too think the issue is in definitions, but I don't think that's the answer. IMO, where they set up the backdoor fiber optic channel - if that is what is going on - that is treated the same as where they would have accessed any other less broad in scope communications. At some point, communications will be pulled onto NSA equipment. If they are drug en masse via a fiber optic backdoor, or by more targeted specific number surveillance.

FISA was set up in the context of some specific rulings. One of those had been that Presidents COULD engage in warrantless surveillance of non-US citizens for the purpose of gathering national security related foreign intelligence. The language of those opinions was pretty tight and the Court did not attempt to define "foreign intelligence" nor did the court opine as to communications of US citizens that might involve foreign powers and national security and foreign intelligence.

So Congress did some dancing. They set up FISA to not require a warrant for the kind of situation where case law already said no warrant was required - spying on "furriners" but not just any "furriners" No warrant was required only if the communications involved "foreign powers" and "agents of foreign powers" and only for "foreign intelligence" purposes. If that was the setting, not only was a warrant not required, but FISA legislation prevents a FISC from issuing orders/warrants where only foreign powers/agents of aare involved - in part bc of the precedent that this was a Presidential area of operations.

So in Sec. 1802, a-1-A, FISA (the old FISA) says that the AG may order electronic surveillance:

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title

and subsection b of 1802 goes on to say that where a-1-A applies, a court will not have any authority to enter any order, unless there is some evidence that a US person's communications will also be impacted:

... except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person

So, what does it take for a FIScourt order(warrant per our shorthand) to issue? Well, 1805-a-3 says that there has to be probable cause to believe that(among other things):
the target of the electronic surveillance is a foreign power or an agent of a foreign power

I would tend to think that, in something like the kidnapped soldiers scenario, someone wanted to do a geographic sweep of all communications in an area. Now, if they KNEW they were only accessing foreign power to foreign power info, then they knew they not only didn't need a court order, but that the court wouldn't issue one unless, basically, they were wrong about what theythought they knew and ooops - US persons info ended up being caught up too.

But what about the geographic area situation - or, lets say, sorting through stored emails as well. If they are just going fishing among all kinds of foreign to foreign communications (assuming they even truly can do that), how do they show a judge "probable cause" that the target is a foreign power or agent of a foreign power?

I think if you look carefully at a lot of the spokespersons statements that were being issued, many had a tendency to refer to things like " why do we need warrants for terrorist or other foreign to foreign communications. And you can see why - apart from "technology" aspects, the very conversation begins to get into touchy diplomatic and business territory. Because now you aren't talking about following a terrorist communication wherever it goes - but rather allowing the US Prez to access at will all kinds of foreing to foreign communications that don't involve foreign powers or agents of foreign powers or national security interests.

So, on the one had, rifling through all that info might be nice and fun for a Pres or even helpful in some situations - like the kidnap soldiers (for the same reason a geographic dragnet would be nice for law enforcement to have domestically for a kidnap situation for that matter - or for the same reason that writs of assitance were popular for those who held them). OTOH, when Congress wrote FISA it took a balancing approach for the whens, wheres and whys of "foreign intelligence" surveillance.

A court, even a FISCt, is going to have another problem (other than FISA) with this dragnetting approach. General warrants, blanket warrants, basket warrants, program warrants - whatever you want to call them, are not supposed to be issued by a court. So if the NSA comes to a court and says - we want to target ALL foreign communications in a geographic area (as one example) the court has both the problem of the lesser "probable cause" for FISA (already lesser than for the Fourth Amendment bc it is only probable cause that there is communication with a foreign power and not that anyone is doing anything wrongful - an aspect that has yet to be challenged in court and may not work anyway) not including probable cause that someone is foreign as a grounds - only probable cause that someone will be an agent for a foreign power or a foreign power; and then you have a Constitutional overlay whereby the Fourth Amendment tells courts not to issue blanket warrants. So how does a court do what the Constitution seems to prohibit? Apparently under some bootstrapped concept that if only foreigners are involved or likely involved, then it's ok?

IMO, fwiw, this is where the US stations has come into play. The courts saying that no we can't issue blanket warrants to access info through a US based switching station on the sole probable cause grounds that the blanket will only pick up foreign calls, but not limited to foreign calls where there is probable cause to believe that they are all agents for a foreign power. IOW - either "targetless" surveillance, which isn't authorized, or "targeted on all foreigners and not just agents of foreign powers" communications.

Here's what I think is most interesting about the soldiers story.

EITHER - the FISct went ahead and granted them the authority to do what they wanted to do but had been worried about doing (which means that things were addressed under existing law and there should be no similar delay in a repeat circumstance bc they have precedent now and maybe they are all kicking themselves for not calling the court more quickly since that is the only thing that held them up),
you have what no one talks about.

So if you have the first part - then quite obviously you don't need to change FISA, you just need people to pick up the phone and call the court more quickly. Plain. Simple. No one can legislate competence and the situation was just one of incompetence in that scenario.

If you have what no one talks about - you have a situation where what they wanted to do was NOT approved by the court at the end of the 72 hour period. Maybe even where a court had already told them that such applications would not be granted. But they went ahead anyway. In which case - - what happened to those felony charges they were all worried about? Has someone been charged?

Bc that would "put a face" on the argument, wouldn't it? *g*

mark H -

you're on the "mark" with your suspicion, but i would guess what actually happened is, sadly, what often happens in war,

the guys got into a situation that their command could not save them from (or their command put them there).



some son of a bitch in the whitehouse or the republican congressional caucus decided,

"well, let's use these guys deaths for our purposes."

and so they did.

rat-c exploitation of a tragedy, pure and simple.

sailmaker -

"i hope the congress will realize that if the nsa/doj is not now competent in wiretapping then the question should be asked, will they ever be good at it?"

that's the key point.

can communications spying do anything really helpful for our national security

or even for

a misbegotten war effort?

i suspect the answer is either "very little" or "no".

for the bush/cheney gang, though, communications spying is just useful rhetorical hocus-pocus that can be injected into the public discourse

to divert attention from the more serious national security failures of bush/cheney-

the plea and complaint is:

"if only we had been granted the power and authority we needed."

i.e., it's somebody else's fault,

and that "somebody else", in this case, is the fisa court, in particular

and the 220 year old american tradition of constitutional law, in general.

just another reminder that the bush/cheney gang are whining, blaming, incompetent idiots.*

* this message brought to you by the bush/cheney gang.

Mary - Again you say things in such a more detailed and coherent way than I have. However, I still am more jaundiced about the foreign-foreign, irrespective of the nature of it, than you are. I can easily see the arguments you and WO are staking out; I just think that, as to the administration, they are being artificially being bandied about to create this false flag basis for eviscerating FISA and privacy and, more importantly, giving the criminals in charge more cover. Also, I had never been aware of our government, or our justice system, being particularly concerned about the nature of who they were tapping, as long as they were foreign. I know this much, I have had DEA intercepts of two Mexican nationals (one of whom was the brother of my client), intercepted in Sinaloa, and certainly without any warrant or anything either, and the court found it just fine to admit against my client. I know this isn't the greatest analogy; but I did research it back then and the conclusion I reached was that as long as it was two foreign subjects and involved criminal activity, it was just hunky dory. That has been a while, so I may be forgetting something significantly distinguishable that I have not mentioned; not to mention nothing in that case actually came into the US, nor was collected in the US. Bottom line, I just find it inconceivable that FISA was the problem with any 10 hour delay these idiots bumbled through.....

The Republicans have non-chalantly whistled their way up close to the Dems on FISA, and now they are about to drop their beers and do a Classic Gooper Bum's Rush.

This totally 'contrived' scenario using sympathy for lost soldiers in a war zone, while ignoring the boobery of their own roles in creating the 'crisis' - is simply a Trojan Horse.

BushCo wants US to grab Their Hollow Argument and start beating it up with the facts, while they 'mourn' the lost soldiers loudly in public. Every news item that focuses on the Nearly-10-hour Pinata Beating will be a BSO for the Mighty Wulitzer to Drum-up the Hate and get people 'over-whelmed' and needy for a Don't-Tell-Me-About-It-Just-Tuck-Me-In 'security' binky easy answer.

But, the Stealth Agenda Items that the Goopers don't want debated or explored are hidden in the Belly of the Nearly-10-Hour Beast:

- Retro-active/Blanket Immunity for the Telecoms
- 'importation' of the (less than 4th amendment) foreign-to-foreign probable cause standard for domestic surveillance

There may even be more?

From what I've read, the Bill will have to go through the SJC before getting a Full Vote - here's hoping Leahy and Crew stop it there for a good, long 'look-see' at all the crucial Citizens/Civil-Rights Impacting elements - so that something so important as effectively discarding Our 4th Amendment Right isn't lost in the noise of the (BushCo contrived...shhhhh!) Nearly-10-Hour 'Ordeal of the Soldiers'...

BushCo is Shameless.

Leahy, Whitehouse and Company should be able to see this train coming from miles and miles away.


Here's what I really think happened. I think the Bushie lawyers chose to use the definition I pointed to above because it was the only way to shoehorn in the TSP under FISA. I think they made the argument that because they had contracted with the carriers to provide this service (pulling communications from foreign networks), then the carriers weren't operating as common carriers in this activity and, therefore, this didn't involve wire communications, but just "monitoring". The FISC went along, but said, in effect, since you don't know in advance whether the communication involves a U.S. person, you have to get a warrant every time.

WO, out of curiosity, what if the telecoms were no longer 'common carriers'?

In the June 2005 'Brand X' decision, the SCOTUS decided (6 - 3) that broadband didn't have to share it's pipes b/c it was no longer a 'common carrier'. Then the telecoms got a decision out of the FCC later that fall claiming that they were also no longer 'common carriers'.

They're all 'information services' now, which moved them out of Title II FCC regulatory control, and into Title I 'information services'. So does that affect what happened here...?

I've always thought the roots of this mess were technical (analog > digital), but now it appears there is a second layer, which is 'legal' ('common carrier' > 'information services').

For a common carrier, you'd need a FISA warrant. But why would you need one to obtain info from an 'information service' if you had a special contract with them on the side...?

Am I nuts?

ROTL - WO is a lot better suited to discuss that than I am, but I think that you are on to something there; at least partially. The answer probably depends on where and when this changed definition kicks in. By that, I don't mean the date of the court decision or FCC ruling, but how and when it applies to substantive criminal and Constitutional law as opposed to mere commerce determinations. There are a ton of semi-analogous scenarios in criminal law where the courts have pretty consistently ruled that when it comes to fundamental Constitutional rights issues, it doesn't matter what you call something, it matters what it is. In this case, that, if correct, would mean that it doesn't matter if you call it a common carrier or information service, it is the conduit of your private conversations and you have a reasonable expectation of privacy therein. Not sure how that ultimately fits in here; but that is sure how I view it; a viewpoint I readily admit is worth nothing...

Strange all these rantings against a free press.

Posted by: Jodi | October 15, 2007 at 11:20

What do you mean 'free', Jodi? Rupert Murdoch paid good money to control the US news cycle -- starting with $.5 million book deal for Newt Gingrich, in exchange for ramming through the legislation that allowed non-citizens like Murdoch to own US networks like FOX. He patiently waited nearly a decade for FOX to start turning a profit, which is hard as its demographics for its propaganda arm suck rocks, which means that the A-list advertisers generally stay away from FOX Snooze (and it also means that FOX is having a hell of a time trying to renegotiate its ad rates upwards, especially as Olbermann's kicking O'Reilly's butt in the 25-54 demographic).

And Murdoch's not the only example of right-wing media welfare. Rush Limbaugh and his clones owe their careers to the billions spent by their conservative sugar daddies over the decades -- first on getting the Fairness Doctrine repealed in 1987, then on all but giving Rush's expensively-produced programs away to rural stations desperate for cheap shows to fill air time.

(Arrgh -- that should read "a $4.5 million book deal".)

The reason I don't think the issue is whether or not the telecoms are acting as "common carriers" or not is that the activity the court is going to focus on is the govt action - not the telecom action. So would a court (a real one - not a loyal Bushie kiosk) buy off on massive, covert govt "monitoring" of communications that include domestic communications as somehow not being a search and seizure - and I don't think they would. I also think the legislation added weasel words "other like devices" to cover those eventualities.

In part, too, the issue would be that the "argument" about not being a common carrier and the activity being just "monitoring" is one that the court would know, if they approved it, could apply with equal impact in all criminal settings - - no warrants needed bc there was no search and seizure. There's far too much precedent on that front - the Keith case didn't rely upon the how of the search and seizure as much as the what of that seizure.

bmaz - I only think that FISA slowed them down to the extent that they were done doing all things logical and rational and defensible (which they had already done with their amendment to the existing order). But as all the Bush revelations have shown - he was probably in petulant, pushy, "what more can you do" mode. So they went into "we could (intercept all commmunications in the area - or something like that) but it isn't likely to help much, it's been a few days and by the time we sort through all those calls and yada yada and besides, there may be problems getting the court to approve a warrant letting us go on something that is a fishing expedition with no probable casue of any kind - not even that they are agents of foreign powers - to be picking up most of the calls we would have to sort through and ..."

Bush - "do it"

So the delay was, imo, caused bc they knew that what they were going to ask for, a FISCt judge wouldn't approve. Perhaps bc they had been down that path before (what was the time of the ruling Boehner talked about? - it might have just happened not too much earlier and come with some admonitions) or perhaps bc of discussions with the court or language in the orders the court put into effect when the program was *supposedly* brought under the FISCt oversight in January.

When you know the Judge will say no - not just think it, but know it - and there's no good compelling reason to do it other than to be able to please an idiotkingPresident, then what? And why - with McNulty out the door already - wasn't he asked to be the go to guy? Or had he been asked the day before, and said no in a pretty strong way?

IMO, in part the delay was to give Clement a reason to be gone: it was after 5:00 when the "decision was made." That's a farce playing out. Otherwise, think it through - they've been debating this thing for hours and hours and no one ever called Clement for his input on what he would evenutally have to sign off on or even give/get a heads up that there was a problem and to stay in touch? Bull.

If you have an emergency that, in the end, has to be addressed by one person, you give them a heads up. Anyone who has worked in a big law firm coordinating schedules with hundreds of other lawyers, some not in your office or time zone, for pleadings and filings and other client based emergencies, knows that you don't leave the lead so far out of the loop.

So I think FISA was the "delay" to the extent that what they wanted to do could not be supported by FISA or by their deal with the court in January and no one wanted to be on the hook for it - maybe looking at court sanctions even. They probably also didn't want to taint the Sol Gen office more than they had to - but you still had to please the President.

IMO - if the court was smart - it included a failsafe in its orders on the program - something like a direction to the telecoms or to some other entity/party to provide notice to the court of interceptsions so the court could see if DOJ was being truthful in its applications - - they had already had some cases of DOJ not being truthful to the court. Lamberth talked about one case, the Loenig WaPo story discussed Kollar-Kotelly as reaming out Ashcroft over another situation. By now, the court knows that whethe or not there are a "lot" of liars at DOJ, there are certainly DOJ liars who appear before them - perhaps selected for just that ability.

So I think they were spending the time spinning their wheels and posturing and wargaming. If we do this - then what, if we do that, then what. They probably knew that the court would find out what they did if they just did it and that it was something the court disallowed. They knew that Clement and McNulty wouldn't sign off. They knew the loyal Bushies at NSA and DOJ wanted to go forward anyway. The sentients who weren't loyal Bushies know that their duty is to try to protect their [evil, immoral, lawbreaking, warmongering, emotionally warped] client.

IMO the only reason they even went with the "emergency" application approach was - not bc there was any kind of emergency per se, but bc it was the route that provided the most statutory protection to Gonzales/NSA if they were going to go ahead and do something that they knew weren't allowed to do. Keep in mind how fast they go their standing order amended and that, in all those hours, someone could easily have been drafting an application to be presented to the court for an order/warrant - if they thought it would be granted.

Instead, they knew it would not. So the delays were to come up with a gameplan to try to insulate the request from judicial retaliation as best as possible and to frame it as much as possible so that the actions being taken would look less blatantly illegal and less blatantly in violation of the court's authority and also to frame the storyline for why they didn't go to Clement or McNulty.


Heh heh.

By Murdoch's rag, I thought you meant the Wall Street Journal. I suppose it's only a matter of time....

Thx Mary; always appreciate your take on things. rOTL

I guess I can give up on DaveS coming back to take his medicine. Oh well.

Jeff, one wonders... has DaveS 'cut and run'?
That would be so... wingnut.

The comments to this entry are closed.

Where We Met

Blog powered by Typepad