Patterico's Pontifications

7/3/2008

Judge: Bush Wrong on Wiretaps

Filed under: General — Patterico @ 7:36 am

The New York Times reports:

A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

I haven’t read the opinion, but I think I agree.

What follows is mostly legal gobbledygook. Read on if you’re into that sort of thing.

I have become convinced — and in fact became convinced quite some time ago — that FISA is indeed the exclusive means for wiretapping, at least as far as the statutory interpretation aspect goes. (I have never researched the “inherent authority” arguments thoroughly enough to have a confident opinion about them, but I suspect that argument is not a winner. Justice Jackson’s Youngstown concurrence seems to be treated nowadays as good law, and if Congress has clearly spoken, the president would have a hard time getting around it.)

This represents a change in my thinking. I used to think the AUMF provided a plausible exception to FISA. I summarized my argument here:

The result, in my view, turns largely on whether the AUMF set forth an exception to the exclusivity provision of FISA, due to the fact that surveillance is necessarily incidental to the use of force (and thus distinguishable from the particular form of military commissions at issue in the Hamdan case). (In my view, the resolution of this issue resolves the “inherent authority” argument as well, because it tells us which of the Youngstown categories governs the analysis of the President’s actions. John Hinderaker would probably kill me for accepting those categories as the law, but I believe that the current court will treat it as such.)

But then commenter Crust argued:

I’ve always found the AUMF argument unsatisfying, since FISA explicitly provides even for a formal declaration of war. Basically, in wartime the same rules apply with some modification (a longer period for retroactive warrants).

When I read that, I found myself convinced. If FISA says it still applies even after a formal declaration of war, how can you argue that the AUMF provided an implicit exception to FISA?

I’m open to arguments to the contrary, but that’s how it seems to me.

337 Responses to “Judge: Bush Wrong on Wiretaps”

  1. I’m open to arguments to the contrary, but that’s how it seems to me.

    There are none.

    Why don’t you take the next step and say that by implementing his Domestic Surveillance Program, Bush was breaking the law, the telecoms were breaking the law, and the Constitution was being violated?

    That too much to ask all in one day? I guess I can’t complain. Baby steps.

    Levi (74ca1f)

  2. It’s implicit in what I say that, if my interpretation was correct, Bush was breaking the law.

    I don’t believe the Constitution was being violated. I have never been convinced by the Fourth Amendment argument. This is a statutory argument.

    Patterico (cb443b)

  3. “What follows is mostly legal gobbeldygook. Read on if you’re into that sort of thing.”

    Patterico – That’s what we pay you the big bucks for – so we don’t have to that kind of shit.

    daleyrocks (1cc55d)

  4. It’s implicit in what I say that, if my interpretation was correct, Bush was breaking the law.

    Does that make him worthy of impeachment?

    Levi (74ca1f)

  5. Perhaps because there was not a “formal” declaration of war (since we were not fighting a nation-state, but an ideology that crosses geopolitical borders almost at will)?

    Check of proof: Is there an individual or nation with the authority to surrender to Coalition forces and have such surrender actually be enforced?

    There has not been a “formal” declaration of war by the US Congress since 1941. Not Korea, not Vietnam, not Panama, not Grenada, not Kosovo, not the first Gulf War, not Iran circa 1979, none of the uses of US military force since the end of WW2.

    Has it been determined that the Authorization for Use of Military Force is the politico-legal equivalent of a Declaration of War?

    Drumwaster (5ccf59)

  6. Perhaps because there was not a “formal” declaration of war (since we were not fighting a nation-state, but an ideology that crosses geopolitical borders almost at will)?

    Check of proof: Is there an individual or nation with the authority to surrender to Coalition forces and have such surrender actually be enforced?

    There has not been a “formal” declaration of war by the US Congress since 1941. Not Korea, not Vietnam, not Panama, not Grenada, not Kosovo, not the first Gulf War, not Iran circa 1979, none of the uses of US military force since the end of WW2.

    Has it been determined that the Authorization for Use of Military Force is the politico-legal equivalent of a Declaration of War?

    What does that matter if FISA applies all the time? If it was a formal declaration, it applies. If it wasn’t, it applies.

    Levi (74ca1f)

  7. I don’t believe the Constitution was being violated. I have never been convinced by the Fourth Amendment argument. This is a statutory argument.

    Not specifically the fourth amendment, I’m talking about Bush’s constitutional theory of Presidential power, which basically amounts to ‘I can do anything I want as long as I say I’m keeping the country safe.’

    Levi (74ca1f)

  8. Just because you’re in motion doesn’t mean you’re driving a car.

    Can we retroactively impeach Carter for putting such an unConstitutional violation of a civil rights into place? (I mean, since FISA has been around longer than many of the commenters here, and even the NYT thought it was a grand idea to use it when Clinton was in office.)

    Drumwaster (5ccf59)

  9. Just because you’re in motion doesn’t mean you’re driving a car.

    Can we retroactively impeach Carter for putting such an unConstitutional violation of a civil rights into place? (I mean, since FISA has been around longer than many of the commenters here, and even the NYT thought it was a grand idea to use it when Clinton was in office.)

    What the hell? Do you see anyone arguing against FISA? People are saying we should abide by it. With nuggets like this, it’s no wonder nobody reads your shitty little blog.

    Levi (74ca1f)

  10. The FISA law wouldn’t apply to American citizens, except in one specific circumstance – if said American citizen were acting as an agent of a foreign power. But the President doesn’t need to invoke FISA if the only data gathered is that of call patterns (who is calling whom, and how often, rather) than actively “listening in”.

    Foreign citizens also don’t have any right to protest that their call data is being gathered, either.

    But by all means, let’s make sure that those who are actively trying to kill Americans know exactly how we can track them, so as to make it easier for them to avoid detection and successfully carry out their attacks. And those good Americans like the NYT editorial board (with the explicit cooperation of people like Levi and Harpie) are cheering them on for “sticking it to those rethuglikkkans”.

    Good thing Obama will make them drop their 50-year jihad with just a reproachful glance over chocolate milk and cookies.

    Drumwaster (5ccf59)

  11. it’s no wonder nobody reads your shitty little blog.

    And how many millions of visitors have you got, hmmmmm?

    *crickets*

    Thought not.

    Drumwaster (5ccf59)

  12. I’m talking about Bush’s constitutional theory of Presidential power, which basically amounts to ‘I can do anything I want as long as I say I’m keeping the country safe.’

    That is not really an argument, Levi. More like rhetorical diarrhea.

    But the President doesn’t need to invoke FISA if the only data gathered is that of call patterns (who is calling whom, and how often, rather) than actively “listening in”.

    Bingo.

    JD (75f5c3)

  13. “Does that make him worthy of impeachment?”

    No, I think he had a faulty statutory interpretation. I wouldn’t impeach a president for that.

    “Not specifically the fourth amendment, I’m talking about Bush’s constitutional theory of Presidential power, which basically amounts to ‘I can do anything I want as long as I say I’m keeping the country safe.l”

    Well, my non-expert and not-thoroughly-researched view, as I said, is that the Youngstown concurrence controls. If Congress has spoken, that doesn’t end the analysis, but it’s a significant factor. I don’t think that changes every statutory violation into a constitutional violation.

    Patterico (13b5d0)

  14. The FISA law wouldn’t apply to American citizens, except in one specific circumstance – if said American citizen were acting as an agent of a foreign power. But the President doesn’t need to invoke FISA if the only data gathered is that of call patterns (who is calling whom, and how often, rather) than actively “listening in”.

    Foreign citizens also don’t have any right to protest that their call data is being gathered, either.

    But by all means, let’s make sure that those who are actively trying to kill Americans know exactly how we can track them, so as to make it easier for them to avoid detection and successfully carry out their attacks. And those good Americans like the NYT editorial board (with the explicit cooperation of people like Levi and Harpie) are cheering them on for “sticking it to those rethuglikkkans”.

    Good thing Obama will make them drop their 50-year jihad with just a reproachful glance over chocolate milk and cookies.


    What the hell are you talking about?

    And how many millions of visitors have you got, hmmmmm?

    *crickets*

    Thought not

    I know I get more people to respond to me in the comments section of this website than you do at yours, and you’ve been at it for five years.

    Levi (74ca1f)

  15. I’ve always been unclar how Congress in 1978 could limit Constitutionally granted Presidential powers wihout an amendment to the Constitution. The argumens have been made, but I would be interested to know if they have been tested in court.

    daleyrocks (1cc55d)

  16. “I know I get more people to respond to me in the comments section of this website than you do at yours, and you’ve been at it for five years.”

    Levi – Idiots draw attention to themselves. It’s a common phenomenon. It’s not because we like you or think your comments are worthy. We are laughing at you. You still don’t get it, do you?

    daleyrocks (1cc55d)

  17. No, I think he had a faulty statutory interpretation. I wouldn’t impeach a president for that.

    But what was his faulty interpretation? ‘I don’t like this law, I’m not going to follow it.’ Isn’t there something that should be done about that? Doesn’t letting him get away with it with no consequences set a dangerous precedent for his successors? How can you say that there should be no punishment for breaking the law?

    Levi (74ca1f)

  18. “its no wonder nobody reads your shitty little blog”

    That sort of comment drags down the whole thread. Please keep the discussion on a higher plane.

    Patterico (bcd5bd)

  19. I don’t like this law, I’m not going to follow it.’

    Levi would not know good-faithed argument if it bit him in the ass.

    JD (75f5c3)

  20. Levi, so far your main arguments seem to be building strawmen as fast as anyone can tear them down.

    SPQR (26be8b)

  21. If a power is inherent to the President, can Congress limit it or overrule it? Certainly they could not pass a law saying that cabinet appointees must be over the age of 50 (although the Senate could refuse to confirm younger people).

    So the question should be more to the point of whether the Commander-in-chief has the inherent power to prevent or regulate any citizen’s communications with enemy foreigners during wartime. I really don’t know the answer to that, although it seems reasonable.

    In an era where the Constitution seems to bestow all kinds of unwritten rights, it’s really hard to say.

    Kevin Murphy (0b2493)

  22. “But what was his faulty interpretation? ‘I don’t like this law, I’m not going to follow it.'”

    No, I already explained the faulty interpretation and won’t repeat it. As I said, I fell for it myself.

    “How can you say that there should be no punishment for breaking the law?”

    I didn’t say that. I think the appropriateness of any “punishment” turns largely on intent. Cops sometimes innocently violate Fourth Amendment rights because the laws can be Byzantine. If the cops’ interpretation of the law was reasonable but faulty, and there is no pattern of abuse, they should not be punished for innocently getting the law wrong.

    Patterico (c0a76b)

  23. shorter Levi – MMmmm, straw! It’s what’s for breakfast [lunch, and dinner]!

    Darleen (187edc)

  24. Judge Walker’s ruling in the immediate case seems to throw it back to the Islamic charity to prove standing, giving them 30 days before tossing the suit, the same issue that has been a problem in other cases. The N.Y. Times soft pedals that issue in their article this morning.

    daleyrocks (1cc55d)

  25. As far as “wartime”, I believe that the AUMF is defined under the War Powers Act as a Congressional confirming the President’s war powers for an extended period. It was a post-Vietnam compromise, balancing the unlimited control of the military that Presidents asserted (and still assert) with Congress’ belief that a declaration of War is required for any sustained combat.

    No President has ever agreed that the War Powers Act was constitutional, or that an AUMF was required. Oddly, both Bushes have gone the AUMF route for political reasons but Bill Clinton did not in the Kosovo war. Clinton, in fact, was DENIED an AUMF by Congress (and by the UN), but did the thing anyway. As long as we are talking about impeachment….

    Now, I argued for a formal declaration of war starting about 9/12/01, never mind to idiotic argument that al Qaeda isn’t a country. If you can write an AUMF, you can write a declaration of war. The point to declaring war is that it puts CLEAR TIME BOUNDARIES and clear precedent on the exercise of war powers, and you wouldn’t need dodges like the Patriot Act that have dangerous implications outside of the war setting. Damn, but I was right.

    Kevin Murphy (0b2493)

  26. I’m glad to see an admission that W was breaking the law like all the lefties have known and protested for so long.

    “As I said, I fell for it myself.”

    The excuses for Bush’s lawbreaking and incompetence continue and it blows my mind. Bush has access to more lawyers and legal opinions than anyone in the world but I guess if Patterico fell for it then it’s OK.

    I.“How can you say that there should be no punishment for breaking the law?”

    “I didn’t say that. I think the appropriateness of any “punishment” turns largely on intent. Cops sometimes innocently violate Fourth Amendment rights because the laws can be Byzantine.”

    And more justification. If a cop on the street violates someones civil rights it’s OK for the President of the United States to do it to.

    “If the cops’ interpretation of the law was reasonable but faulty, and there is no pattern of abuse, they should not be punished for innocently getting the law wrong.”

    In Bush’s case there clearly was a paatern of abuse. He Knew.

    jharp (00ec6a)

  27. Bush knew in April 2004 in Buffalo, N.Y.

    Bush Caught on Tape: “A Wiretap Requires A Court Order. Nothing Has Changed.”»

    Bush, April 2004:

    Transcript: via whitehouse. gov

    Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

    jharp (00ec6a)

  28. No, I already explained the faulty interpretation and won’t repeat it. As I said, I fell for it myself.

    I’ve never heard that argument from anyone in the administration, about the AUMF. They’ve always said that FISA was too restrictive and not accommodating enough. Mukasey went on national television last year and was literally weeping as he spouted out some bullshit about some phone call they weren’t allowed to intercept from Afghanistan because of FISA. Arguments like that, and your run-of-the-mill, catch-all Bush justification that ‘the terrorists are going to get us’ is all I’ve ever heard from Bush and his cronies.

    Whatever interpretation you used to make about the AUMF wasn’t theirs, and that one was stupid anyway.

    I didn’t say that. I think the appropriateness of any “punishment” turns largely on intent. Cops sometimes innocently violate Fourth Amendment rights because the laws can be Byzantine. If the cops’ interpretation of the law was reasonable but faulty, and there is no pattern of abuse, they should not be punished for innocently getting the law wrong.

    Yes, and Bush’s intent was to bypass a long-standing, very accommodating law for no good reason. What’s the innocent explanation for that? Further, what is the innocent explanation for why he (and now virtually all Democrats) would want to grant blanket immunity to his accomplices in the crime?

    They didn’t just ‘innocently get the law wrong.’ They were carrying this thing out in secret for years. Isn’t that somewhat of a tacit admission that they knew that what they were doing was illegal? It’s not like they openly announced that FISA had to be bypassed because of the AUMF, they just did it and never told anybody about it.

    God you have a long way to go. And I thought small-government conservatives were supposed to be the ones inherently mistrustful of the government and people in power. Yeah right.

    Levi (74ca1f)

  29. “A Wiretap Requires A Court Order. Nothing Has Changed.”

    And a wiretap WOULD require a court order. However, simply gathering call data (which is what was being done) does NOT.

    The information they are gathering is that Person ‘A’ called Person ‘B’. Person ‘B’ is under surveillance, since he lives upstairs in a mosque known to support terror groups. ‘B’ then calls ‘C’, ‘D’ and ‘E’.

    No one was listening in on those calls. Not a single word was actually heard by anyone in the US government. But additional call data surveillance would then be placed on ‘C’, ‘D’ and ‘E’ to attempt to track down other members of the cell.

    On episodes of Law & Order (which is where you have apparently gotten your legal training), this information is referred to as “LUDs” (Local Usage Details), and the only information gathered is who made the call, the number called, and the length of the call. That is not a violation of the Fourth Amendment, because your privacy has not been compromised in the slightest.

    You voluntarily waived it when you chose to use a third party’s equipment to transport that message, whether it is walkit-talkies (and anyone on the frequency can listen in), e-mail (which has to be given to your ISP for delivery) or telephone.

    The NSA isn’t recording the calls, and won’t unless a warrant is obtained from the FISA courts, but nothing in the law prevents them from finding out that a call was made.

    JMO

    Drumwaster (5ccf59)

  30. As for the alleged right to privacy, I will remind you of an old proverb: If you do not wish a thing seen, do not do it. If you do not wish a thing heard, do not say it.

    Drumwaster (5ccf59)

  31. Is it too fuckin’ much to ask for Levi and harpy to argue in good faith, just once?

    JD (5f0e11)

  32. “And a wiretap WOULD require a court order. However, simply gathering call data (which is what was being done) does NOT.”

    Utter nonsense. And I’ll use Levi’s quote as I remember the day well

    “Mukasey went on national television last year and was literally weeping as he spouted out some bullshit about some phone call they weren’t allowed to intercept from Afghanistan because of FISA”

    You tell me Drumwater. What was that all about?

    jharp (00ec6a)

  33. harpy – You have proven to be intellectually dishonest. Patterico is closer to your positiom, yet that is not enough for you. He must also think Bush is guilty of high crimes and misdemeanors. and has trampled the Constitution to prosecute the illegal war of choice for oil. That, and you ignore or discount all positions that do not agree with you. Even Baracky does not agree with you, today.

    JD (5f0e11)

  34. “As for the alleged right to privacy, I will remind you of an old proverb: If you do not wish a thing seen, do not do it. If you do not wish a thing heard, do not say it.”

    So I guess you’ve got no problem with Obama wiretapping your calls.

    And in the “War on Drugs” certainly you wouldn’t mind having your home searched in stopping drugs.

    After all, if you’ve got nothing to hide what is there to worry about?

    You, sir, are un American.

    jharp (00ec6a)

  35. I’m still finding it hilarious that Levi and jharp keep refering to the Constitution when the issue is not a constitutional guarantee at all. Not to mention not understanding the difference between call detail records and actual surveillance of the phone call.

    SPQR (26be8b)

  36. “Patterico is closer to your positiom, yet that is not enough for you.”

    I was glad to hear it.

    “He must also think Bush is guilty of high crimes and misdemeanors.”

    It’s a point of what is the truth. Not that Patterico must agree with me. The evidence points to Bush knowingly broke the law. He specifically stated “any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.” while at that very time was not getting court orders and continued to not get court orders.

    “Even Baracky does not agree with you, today.”

    I’m aware and unhappy about it. But let me share something with you. My type does not blindly support whatever my candidate says. When my candidate is wrong I let them know. I’d like to see the wingers try it just once with King George. I am doing something about it and will continue to do something about it.

    jharp (00ec6a)

  37. Abject lies again, harpy?

    And FWIW, if Baracky’s NSA wanted to datamine my records, I would have no problem with that. That you continue to refer to it as wiretapping shows that you have no desire to be honest about the issue. Demagoguery is your friend. And, the evidence most certainly does not suggest that Bush knowingly ignored the law. There are good faithed reasons why one could arrive at some position other than yours.

    JD (5f0e11)

  38. Drumwaster @ 7 – the Constitution is silent as to what amounts to a “formal” declaration of war. Past SCOTUS decisions have established that any form of congressional authorization of hostilities is sufficient. For constitutional purposes the AUMF is a “declaration” of war.

    wls (1cdbde)

  39. When you refer to “my type”, harpy, what do you consider that to be ?

    JD (5f0e11)

  40. jharp

    goodness, “your type” bores me to tears with your sanctimonious demagoguery. Mostly because I understand, it is not sincere.

    The lawyers can argue nits til the cows come home, but reasonable people are going to see the real difference between gathering of call patterns vs wiretapping (akin to watching traffic from a helicopter vs searching individual cars). “Your type” may try and obfuscate it, and do quite an efficient job of it with “your type” in the MSM. But when you can’t help the King George (or Bu$HitlerHaliburtonZionistNeoCon) stuff, then it is quite clear your interest is rather America burn then allow a “R” President actually use 21st Century technology to fight 21st Century terrorists.

    Darleen (187edc)

  41. Independent small businessman first.

    Leftist, second.

    Democrat, third.

    jharp (00ec6a)

  42. “gathering of call patterns vs wiretapping”

    And you know this how?

    jharp (00ec6a)

  43. Okay, jap, pay attention. Bush isn’t “wiretapping” anyone. He is using the intel services to collect CALL DATA – who called whom, and how long they talked. NOT listening in to any calls, and NOT recording anything without a warrant.

    Please try to use the intellectual honesty God gave a gorilla, and understand the difference.

    Listening in on or recording requires a warrant, finding out that a phone call was made from one phone to another and how long the call lasted other does not. It is as clear and distinct as the difference between breaking and entering and simply watching your house from across the street.

    Get it? If Obama violated my Fourth Amendment rights, I would gleefully demand his impeachment. However, I would just as gleefully do so if Bush were doing so. (Because my opposition is to the action, not the perpetrator nor his ideology.) You have shown your utter willingness to defend Obama, with the unfounded assertion that “Repubs were doing it too!” (Never mind that it is patently false, because you guys couldn’t be honest about the time of day if it were someone on the other side of the political spectrum….)

    However, Bush’s administration is NOT doing so, and you cannot prove that they are. If there were even so much as the faintest whiff of criminality, don’t you think the Democratically-controlled House would have passed Articles of Impeachment by now?

    Drumwaster (5ccf59)

  44. “gathering of call patterns vs wiretapping”

    And you know this how?

    Because the NYT revealed those particular national security secrets several months ago. (Charges of treason so far having utterly failed from being made by those so concerned with Constitutional protections.)

    Where were YOU? Oh, right, protesting Bush.

    Drumwaster (5ccf59)

  45. Patterico, is it possible that you favor criminal law over constitutional or UCMJ? I see all your comments related only to statutory law.

    rightwing (5362c6)

  46. Patterico and Dalyrocks @ 15: Youngstown Steel is not a good vehicle for analysis here.

    The subject in Youngstown Steel was not one committed to the authority of the Executive Branch by the Constitution.

    Conduct of intelligence operations during wartime is a subject committed to the authority of the Executive under Article II.

    Congress can no more regulate Article II through legislation than it can reach into the docket of the Supreme Court and decide cases by taking a vote as to which side should win and then establishing that winner through legislation.

    wls (1cdbde)

  47. And you know this how? Since you are accusing someone of intentionally ignoring and breaking the law, the answer to that question is your burden. But obviously you know better than the Leftists in Congress who disagree with you.

    JD (5f0e11)

  48. jharp – Is there a right to privacy in the Constitution? If you think so, could you point it out to me?

    daleyrocks (1cc55d)

  49. wls @46 – I agree with you, which was the point of my earlier comment.

    daleyrocks (1cc55d)

  50. Leftist, second

    makes me suspicious of the “first” claim

    Darleen (187edc)

  51. “Since you are accusing someone of intentionally ignoring and breaking the law, the answer to that question is your burden”

    Let the trials begin and we’ll find out soon enough. Oh, that’s right, King George wants to pass a law that grants immunity to the lawbreakers. I wonder why that is?

    And no one really does know the truth.

    It’s all top secret. You remember that, don’t you?

    jharp (00ec6a)

  52. “Because the NYT revealed those particular national security secrets several months ago. (Charges of treason so far having utterly failed from being made by those so concerned with Constitutional protections.)”

    Well if the New York Times says so then it must be true.

    And do you have a link?

    And no one knows for sure. It’s all top secret.

    jharp (00ec6a)

  53. “Is there a right to privacy in the Constitution?”

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

    I don’t know if you could call this a right to privacy but sure seems to be a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”

    jharp (00ec6a)

  54. The right to be secure does not preclude the possibility that someone is watching you scratch you ass while walking down the street, or watching you pick your nose while driving down the freeways.

    You are perfectly secure, with absolutely no right to be “private”. You want “private”, go do whatever the hell you want – but behind locked doors and you don’t talk about it to strangers (such as your neighbor’s friend’s third cousin’s half-sister’s husband who happens to be wanted for a crime against the People of the United States).

    Drumwaster (5ccf59)

  55. And no one really does know the truth.

    It’s all top secret. You remember that, don’t you?

    Curious, I wonder if jharp has ever been through a background check or held any type of security clearance?

    Darleen (187edc)

  56. jharp

    Is the newstation helicopter over the freeway reporting traffic patterns invading your privacy?

    Darleen (187edc)

  57. “Curious, I wonder if jharp has ever been through a background check or held any type of security clearance?”

    And I wonder why you wonder.

    The answer is I don’t think so.

    jharp (00ec6a)

  58. And no one really does know the truth.

    Yet you and your type assert, without a scintilla of evidence, that Bush knowingly and intentionally ignored and broke the law.

    JD (75f5c3)

  59. Is the newstation helicopter over the freeway reporting traffic patterns invading your privacy?

    No. But the government listening to my phone calls is and I’d like to know the truth.

    jharp (00ec6a)

  60. Call data is just another business record, it is information that you give away to the phone company to engage in a transaction with them. It is no more “private” than any other such business transaction.

    SPQR (26be8b)

  61. Curious, I wonder if jharp has ever been through a background check or held any type of security clearance?

    I’ve got $20 that says “Not a chance in hell”. Not even many people who have had such background checks and clearances would be able to define the differences between Confidential, Secret, and Top Secret, much less any of the conditional additives, such as NOFORN.

    {/used to hold a NATO Top Secret, aka “Cosmic Top Secret”}

    Drumwaster (5ccf59)

  62. #25, Kevin Murphy

    Now, I argued for a formal declaration of war starting about 9/12/01, never mind to idiotic argument that al Qaeda isn’t a country. If you can write an AUMF, you can write a declaration of war. The point to declaring war is that it puts CLEAR TIME BOUNDARIES and clear precedent on the exercise of war powers, and you wouldn’t need dodges like the Patriot Act that have dangerous implications outside of the war setting.

    I do not see any clear time boundaries in the declarations for either WW1 or WW2.
    Avalon, WW2 page
    First World War, Primary documents

    (Does anyone happen to know why the Avalon Project seems to ignore The Great War or WW1, as it’s now called?)

    htom (412a17)

  63. jharp still does not understand the difference between call data and actual interception of calls.

    SPQR (26be8b)

  64. The answer is I don’t think so.

    Whoa, it’s not like that’s a hard question.

    I take it as a “no” since any one that HAS gone through ’em, does know it. (raises hand … has gone through them – for financial, law enforcement and government defense work institutions). It’s about understanding what is at stake when it comes sensitive information and not being an insufferable pr*ck sneering about “top secret.”

    Darleen (187edc)

  65. Is the newstation helicopter over the freeway reporting traffic patterns invading your privacy?

    No. But the government listening to my phone calls is and I’d like to know the truth

    No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.

    IE being that traffic helicopter

    sheesh

    Darleen (187edc)

  66. This is the main reason that it is such an immense waste of time discussing anything with jharp – all of ones time is wasted trying to educate jharp enough on an issue to actually have a discussion. A point never reached.

    SPQR (26be8b)

  67. “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    And you know this how?

    jharp (00ec6a)

  68. And you know this how?

    Google it.

    Darleen (187edc)

  69. I agree with WLS #46. Especially when the communication is cross-border. The President’s duty to defend the United States cannot be confined to “one if by land and two if by sea”.

    nk (16accd)

  70. jharp

    who is responsible for 9/11/01, and how do you know? Really?

    Darleen (187edc)

  71. Well, #67 is yet another example. jharp is ignorant of what has been publicly reported on the issue.

    SPQR (26be8b)

  72. No. But the government listening to my phone calls is

    Paranoid, often?

    Drum – Mine was TS-SCI

    Folks – harpy is as dishonest as Levi, with less cursing. No fundamental difference.

    JD (75f5c3)

  73. “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    And you know this how?

    Well, #67 is yet another example. jharp is ignorant of what has been publicly reported on the issue.

    Comment by SPQR — 7/3/2008 @ 10:32 am

    Please share.

    jharp (00ec6a)

  74. And you know this how?

    Google it.

    Comment by Darleen — 7/3/2008 @ 10:30 am

    I found nothing on the google that substantiates your claim.

    Please help.

    jharp (00ec6a)

  75. SPQR

    IMHO, I’m seeing it less ignorance and more “conspiracist” in nature.

    My top secret contacts in the government have just forwarded to me a picture of jharp’s office

    Darleen (187edc)

  76. SPQR

    I don’t think it’s ignorance —

    indeed, my top secret contacts in the government have forwarded to me just now a picture of jharp’s office

    http://tinyurl.com/632jzz

    Darleen (187edc)

  77. It is feigning ignorance just like it did on the thread about all of the gleeeeeeeens. It has no intention of arguing in good faith.

    JD (75f5c3)

  78. I did find this.

    http://www.msnbc.msn.com/id/23235602/

    “The eavesdropping remains classified but was confirmed by President Bush.

    A U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored and thus could not prove they had been harmed by the program.

    The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.

    ACLU officials described the situation as a “Catch-22” because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program.”

    jharp (00ec6a)

  79. It is a liar. Demonstrably.

    JD (75f5c3)

  80. Please ignore jharp. I suspect he is a Nigerian cabdriver angry at the cost of gasoline.

    I propose, for debate, whether the President has unfettered power under Article II to monitor all cross-border communications including reading the “wish you were here” postcard from your mother-in-law on vacation in Bora-Bora.

    nk (16accd)

  81. To make my point a little more poignant. A local-area man was arrested today for receiving pufferfish toxin, a very potent poison, through the mail. Would the President have needed Congressional authorization to keep it from coming into the country?

    nk (16accd)

  82. I’m starting to think you guys have got nothing.

    “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    Please share with me how this is known.

    My position is it isn’t known.

    So far I’ve gotten about five insults and Drumwater saying the NY Times says so.

    jharp (00ec6a)

  83. I love their standard. They get to make shite up, offer nothing to support it, and then the burden of proof gets shifted to the other side with claims that since nothing is known, we cannot show that it is just making shite up.

    JD (75f5c3)

  84. “The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.”

    Got that. Nobody knows.

    It really isn’t a difficult concept.

    You are the ones saying “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    Please just answer how you know this.

    You folks are the ones “making shite up”.

    jharp (00ec6a)

  85. jharp

    You are the one saying the government is listening in on your phone calls.

    Please just answer how you know this.

    Darleen (187edc)

  86. More legal dribbling.Wpe yo chin or you will get a shock when it hits the keyboard.

    davod (5bdbd3)

  87. “You are the one saying the government is listening in on your phone calls.”

    Now you’re just making shite up. I did not say that.

    I said no one knows because the government won’t release the details. You know, “top secret”.

    But when King George himself defends the use of warrantless wiretaps and threatens to veto any bill that doesn’t provided immunity to the lawbreakers it makes me dam suspicious.

    WASHINGTON (CNN) — President Bush defended using government wiretaps without court authorization to monitor terrorism suspects and urged the Senate to renew the USA Patriot Act during his year-end news conference Monday.

    The president said he intends to continue using secret international wiretaps to monitor activities of people in the United States suspected of having connections to al Qaeda.

    jharp (00ec6a)

  88. Darleen,

    “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    I gave you an honest answer to your query.

    Now I’d like one.

    How do you know this?

    jharp (00ec6a)

  89. jharp @ #59

    But the government listening to my phone calls

    jharp @ #86

    I did not say that

    sweetcheeks, you might like to loosen the headbands on that tinfoil hat.

    Darleen (187edc)

  90. Darleen,

    You are dishonest.

    You asked me.

    “Is the newstation helicopter over the freeway reporting traffic patterns invading your privacy?”

    And I answered.

    No. But the government listening to my phone calls is and I’d like to know the truth.

    Comment by jharp — 7/3/2008 @ 10:17 am

    This is not saying the the government actually is listening to my phone calls. It simply says the act would be invading my privacy and I’d like to know.

    jharp (00ec6a)

  91. Is there any way to get the government to listen in on my phone calls? And get it to call back? It could replace blogging for me.

    nk (16accd)

  92. #

    Darleen,

    “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    I gave you an honest answer to your query.

    Now I’d like one.

    How do you know this?

    Comment by jharp — 7/3/2008 @ 11:46 am

    How about it Darleen?

    Got anything?

    jharp (00ec6a)

  93. jharp

    you’re nothing but tedious

    it has been pointed out to you several times but here is another from a highly biased source that uses the wrong wording, mixes up the programs and still cannot help but reveal a nugget or two of truth in its diatribe described as news reporting

    http://www.nytimes.com/2005/12/24/politics/24spy.html

    Nugget:

    Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.

    Baldfaced, unsubstantiated, partisan assertion:

    This so-called “pattern analysis” on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.

    Now, go wrap a few more layers of Reynolds over your head.

    Darleen (187edc)

  94. The president said he intends to continue using secret international wiretaps to monitor activities of people in the United States suspected of having connections to al Qaeda.

    Once the method of communication crosses international boundaries, there can be no possible claim that privacy has been violated, and the President doesn’t need to get permission from an American court, since that is directly and specifically under his control as Commander-in-Chief.

    You have also forfeited any right of civil debate, since you are not operating under any semblance of good faith.

    You have also not acknowledged the difference between collecting the call data and actually eavesdropping on the call.

    Until you grow up, do us a favor and let the grups talk.

    Drumwaster (5ccf59)

  95. “No, the government may be observing where your calls GO and at what TIMES,

    So you give me a link that openly admits this.

    “but they aren’t listening to the call itself.”

    And nothing on this.

    You’re a dishonest hack.

    I’ll say it again. No one knows. It’s top secret.

    But our President says this.

    WASHINGTON (CNN) — President Bush defended using government wiretaps without court authorization to monitor terrorism suspects and urged the Senate to renew the USA Patriot Act during his year-end news conference Monday.

    The president said he intends to continue using secret international wiretaps to monitor activities of people in the United States suspected of having connections to al Qaeda.

    You’re a joke.

    jharp (00ec6a)

  96. “Once the method of communication crosses international boundaries, there can be no possible claim that privacy has been violated, and the President doesn’t need to get permission from an American court, since that is directly and specifically under his control as Commander-in-Chief.”

    So if I call my wife from Europe it’s perfectly OK to have the government listen in.

    Why don’t you move to Russia. You’re obviously unAmerican.

    jharp (00ec6a)

  97. No sweetcheeks

    I gave you a link that consistently DESCRIBES pattern analysis as “wiretapping”. Maliciously.

    Like you.

    Second thought, wrap that foil over your mouth. It’ll keep pollution down.

    Darleen (187edc)

  98. jharp appears to have switched to repetition and volume of assertion in order to make its dishonest point. What he refers to, thanks to the NY Time and the Left, as wiretapping, is data mining.

    JD (75f5c3)

  99. There are two parts to the program, and here is a very oversimplified overview:

    There is/was a “data mining” operation which is generally the part that is the subject of the various suits. The telecomms assisted the government by allowing NSA to install equipment in the telecomm facilities which allowed NSA computer systems to sift through the electronic signals passing over the telecomms’ equipment, looking for particular words and phrases which, when combined with information about the location of the participants in the call, might suggest potential terrorist activity.

    The second part of the program involves actual monitoring of telephone conversations, either in real time or after the fact. Historically, if the participants in the conversations were all outside the US then no warrant was required. If all participants are inside the US, then a warrant under Title III or FISA is required.

    Two sticky issues have arisen — what about when one party to the conversation is inside the US and the other is not. The second issue is when both parties are outside the US but due to modern technology, their signal transmission actually passes through equipment located inside the US. The FISA court actually resolved the latter issue against the US due to the antiquated nature of the language in the FISA statute, which was written long before the advent of cell phone technology and the internet. One of the key functions of the Patriot Act, the Protect Act, and the new FISA legislation has been to bring the language of these various statutes in line with modern technology developments.

    WLS (68fd1f)

  100. JD

    Did you hear? The government is now going to wiretap produce.

    http://www.reuters.com/articlePrint?articleId=USN034807620080703

    Darleen (187edc)

  101. Levi wrote: I know I get more people to respond to me in the comments section of this website than you do at yours, and you’ve been at it for five years.

    HA! That’s like bragging about how far batters hit your fastballs.

    L.N. Smithee (b048eb)

  102. So if I call my wife from Europe it’s perfectly OK to have the government listen in.

    By George, I think he’s got it!

    The other countries will probably be listening in, too, since you are calling a country that they hate (the US), and you will neither know (except for the clicks and pops and beeps) nor be able to whine about it later.

    Drumwaster (5ccf59)

  103. Which brings us back to this.

    “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    How do you know this?

    Hint. You don’t. It’s top secret.

    Admit it and move on.

    jharp (00ec6a)

  104. “I gave you a link that consistently DESCRIBES pattern analysis as “wiretapping”. Maliciously.”

    Oh, now I get it. Since the NY Times inaccurately describes pattern analysis as wiretapping that means there is no warrantless wiretapping.

    Are you retarded?

    jharp (00ec6a)

  105. “And no one really does know the truth.”

    Harpy uses the shopworn rhetoric of all lefties who resort to conspiracy theories and nutbag loon talk. Just like the Loose Change folks –
    (“but how do we really know why the buildings fell down? Who’re you gonna believe, us or your lyin’ eyes?).

    It’s akin to Mulder on the X – Files; “The Truth is OUT THERE!”

    Dmac (ea35f7)

  106. I do fear for Jharp’s safety. He is the poster boy for paranoia and the model for Mel Gibson’s character in Conspiracy Theory flick. That said, with all the alphabet domestic intelligence groups and that fact that the evil BusHitler actually has been detaining some dissenters in secret government facilities, Jharp may well find himself vanishing to the gulag. Horrors! One hopes that he and Levi don’t get stuck in a cell with Mikey Moore.
    Personally I don’t worry about any wiretapping of my phones as I am not guilty of anything illegal, nor am I a disloyal citizen. Of course I haven’t bought into Urkel’s electric kool-aid acid test yet nor do I get a woodie watching or listening to him. In fact, he makes me puke with revulsion as do all the idiot bastard’s sons who are intellectually dishonest and spin Urkel’s lies, inveigling and obfuscations. Change! Hope!
    Umgawah, bang, bang, beep, beep, white blood, mulatto power. Wish there were a feature here that would allow me to easily read all of Levi’s and JHarp’s posts so I can worship at their altar of liberal enlightenment.

    madmax333 (388d99)

  107. jharp, projection much?

    SPQR (26be8b)

  108. This is of course yet another in a long string of examples of Levi and now jharp reveling in their ignorance of a topic that they nonetheless boldly opine upon.

    And another example of what a waste of time they are because they do not understand the basics of an issue and won’t learn.

    SPQR (26be8b)

  109. Get this. We find out they were listening in on phone calls without warrants.

    And better yet it comes from the great Glenn Greenwald.

    I know you America and rule of law haters don’t like it but it is a great day for our country.

    Let the trials begin!

    http://www.salon.com/opinion/greenwald/

    Judge Walker’s decision (.pdf) was issued in the case of Al-Haramain v. Bush. That lawsuit was brought against the Bush administration by an Oregon-based Muslim charity and two of its American lawyers, alleging that the Government violated FISA — i.e., broke the law — by eavesdropping on their telephone conversations without the warrants required by law. The warrantless eavesdropping occurred as part of Bush’s NSA spying program, which entailed spying on Americans’ international communications without warrants (the lawyers were in London when they spoke on the telephone to their client in Oregon). What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.

    The Bush administration argued that the plaintiffs could not prove their case because, to do so, they would have to rely on documents and information that the President deemed to be “state secrets” (i.e., the Government’s eavesdropping activities) and which are, therefore, unusable in court. That is the argument the court rejected — holding instead that Congress, when it enacted FISA, established a procedure that allows even classified information to be considered by a court, and the President’s Article II powers cannot override the FISA statute. As the Court pointed out, Congress’ core purpose in enacting FISA in 1978 was to bar the President from exercising untrammeled, unchallenged power in the area of eavesdropping. Thus, presidential assertions of secrecy do not override the law.

    Looks as if a few knuckledragging GOPers are going to have a little crow for dinner tonight.

    jharp (00ec6a)

  110. Another Greenwald link! Oh, my, I’m hurting myself laughing.

    jharp evidently wants to be known as a joke.

    SPQR (26be8b)

  111. if my interpretation was correct, Bush was breaking the law. I don’t believe the Constitution was being violated.
    .

    There’s no way to tell. The evidence that describes the scope and rules for surveillance are state secret.

    cboldt (3d73dd)

  112. Conduct of intelligence operations during wartime is a subject committed to the authority of the Executive under Article II.

    .

    In peacetime too. Gathering of foreign intelligence information doesn’t “stop” based on the presence or absence of “war.”

    cboldt (3d73dd)

  113. cboldt, you mean that when FDR illegally intercepted communications through US cable companies to and from the Japanese embassy, he should not have been impeached?

    SPQR (26be8b)

  114. SPQR,

    Go read Judge Walkers decision.

    “What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.”

    Huge breakthrough. Huge.

    You tickle me with your attacks on Greenwald. You’ve got nothing. A federal judge appointed by Bush 41 slaps down the “state secrets” bullshit.

    “And the DOJ produced transcripts of the eavesdropped telephone calls.”

    Reag that two or three times or however many it takes for it to sink in.

    Busted. Let the trials begin!

    jharp (00ec6a)

  115. jharp, I do not have “nothing” on Greenwald. The entire blogosphere showed Greenwald to be a lying nut. Meanwhile, you’ve shown you’ve no more credibility.

    SPQR (26be8b)

  116. cboldt, you mean that when FDR illegally intercepted communications through US cable companies to and from the Japanese embassy, he should not have been impeached?

    Wah, wah, wah. A democrat did it too.

    So in wingnut land that makes it legal.

    jharp (00ec6a)

  117. jharp, in wingnut land, it is ignored. Your wingnut land that is.

    SPQR (26be8b)

  118. “What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.”

    Let’s stay focused on the issue as it is HUGE.

    Greenwald’s credibility has nothing to with it.

    The circuit court’s decision has everything to do with it.

    Go read Judge Walkers decision.

    jharp (00ec6a)

  119. intercepted communications through US cable companies to and from the Japanese embassy
    .
    Foreign embassies are the quintessential locus for “gathering foreign intelligence” without resort to court supervision.
    .
    Separate subject – the “call pattern” story. Here’s a link to the law that purports to regulate PRTT for foreign intelligence gathering purposes: Title 50, CHAPTER 36, SUBCHAPTER III

    cboldt (3d73dd)

  120. cboldt, prior to WWII, when the FDR administration was intercepting cable communications, there were no statutory exceptions at all to the statute that forbade it. The FDR administration knew it was explicitly illegal. But the political parties were adults back then, unlike today.

    SPQR (26be8b)

  121. Al Haramain v. Bush : Doc 453 Plaintext of Judge Walker’s opinion and order of July 2, 2008.
    .
    He basically says the civil remedy is toothless, as intended by Congress (i.e., the law is there, but no plaintiff can possibly obtain relief under it) but plaintiff is invited to “knock himself out” in coming up with non-state-secret evidence that he was subjected to state-secret surveillance. LOL

    cboldt (3d73dd)

  122. nk wrote: Please ignore jharp. I suspect he is a Nigerian cabdriver angry at the cost of gasoline.

    Hold on a cotton pickin’ minute, partner!

    Being a black man myself, I can tell you — there aren’t too many African natives where I live who are slinging rock, parking their raspberries on porches with fake gold teeth and baggy pants, or lounging on Skid Row in an alcoholic or drug-induced state of semi-consciousness. They work two jobs as security guards, fast food drones, gas station attendants, and cab drivers to pay for college. Eventually, they open businesses. They work in hospitals as physicians or credentialed support staff. They work in banks, brokerages, real estate offices.

    I know and/or have worked with immigrants from Ghana, Ethiopia, Eritrea, and Nigeria. They are studious and hard-working people who appreciate this country more than most natives even when they suffer discrimination. And — for the most part — they don’t whine about life in America because they have beaten the odds and made it to a land where their hard work pays dividends beyond survival under the thumb of despots, tyrants, and warlords who would just as soon kill them as not.

    It speaks volumes, IMHO, that rather than contrast the advantage of his American home with the land of his paternal roots, Obama chose to throw his lot in with the “White folks greed runs a world in need” crowd of Jeremiah Wright’s Perpetual Victim church.

    L.N. Smithee (d1de1b)

  123. cboldt, but we are assured by Greenwald/Ellersby/Ricky that this court opinion is one of the Four Horseman of the Apocalypse?

    SPQR (26be8b)

  124. jharp – Amazing that you discovered the case that this post is about. Truly incredible.

    The problem you have is relying on Greenwald, who has incorrectly interprested the FISA kerfuffle from the start.

    jharp – What do the democrat leaders who were briefed in on the program currently say? Could you let us know please? Harman was a big supporter, which caused her to get kicked to the curb.

    daleyrocks (d9ec17)

  125. prior to WWII, when the FDR administration was intercepting cable communications, there were no statutory exceptions at all to the statute that forbade it.
    .
    A statute that forbids the gathering of foreign intelligence information without a warrant would be unconstitutional on its face. FISA doesn’t forbid it either, it expressly recognizes the fact that embassies wiretapping is ALWAYS warrantless.
    .
    But I’m interested in any cites you have that describe the FDR activity juxtaposed against some statutory or court-laid framework.

    cboldt (3d73dd)

  126. cboldt, I’ll have to do some digging. I read it in a history of the intelligence / decryption efforts of the Pacific War – it will take some time for me to recall which book. And it was mentioned on this blog in the scores of long discussions we had here about FISA in recent years.

    SPQR (26be8b)

  127. when FDR illegally intercepted communications through US cable companies to and from the Japanese embassy
    .
    Unless I see the statute that forbids it, I think the statement that an FDR-ordered warrantless interception of communications to/from a foreign embassy is/was illegal, is false.
    .
    Court cases have consistently held that this aspect of surveillance is out of the court’s sphere of competency.

    cboldt (3d73dd)

  128. daleyrocks,

    “The problem you have is relying on Greenwald, who has incorrectly interprested the FISA kerfuffle from the start.”

    Wrong. I am relying on the Circuit Court and Judge Walkers decision. Go read it.

    “jharp – What do the democrat leaders who were briefed in on the program currently say? Could you let us know please? Harman was a big supporter, which caused her to get kicked to the curb.”

    What makes any difference what the democrat leaders say?

    Bush and company broke the law. Are you saying if the democrats told him it was OK to break the law that makes it OK?

    More straight thinking from wingnut land. Since the dems didn’t stop it it’s legal.

    You guys are nuts.

    jharp (00ec6a)

  129. cboldt, no, there was a specific statute in 1941 that forbade the interception of cables and had no exceptions. I can’t think of any court cases that would not be well after the fact.

    SPQR (26be8b)

  130. #105 – “Personally I don’t worry about any wiretapping of my phones as I am not guilty of anything illegal, nor am I a disloyal citizen.”

    We welcome you, comrade, we hope you like our shiny new Gulag. Just keep your mouth shut and you’ll be fine.

    Another sheep, belly up in fear.

    Pontificoot (17c6d7)

  131. jharp, you can’t be relying on Walker’s opinion since it does not support your claims.

    SPQR (26be8b)

  132. there was a specific statute in 1941 that forbade the interception of cables and had no exceptions.

    .

    I don’t believe it. I’m researching your contention for you right now. Communications Act of 1934.

    cboldt (3d73dd)

  133. As for court cases, surely you know the Olmstead and Katz pair, and intervening federal legislation aimed at “rectifying” what Olmstead wrought.

    cboldt (3d73dd)

  134. “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    With nothing, nada, zilch, zero evidence to support the claim.

    And then the 6th Circuit Court decision.

    “What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.”

    And the thread wants to start talking about FDR.

    Bizzarro world.

    jharp (00ec6a)

  135. jharp, given your habit, complaining about a digression in a thread only shows your own hypocrisy.

    SPQR (26be8b)

  136. “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    “What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.”

    Got that?

    The Department of Justice produced transcripts of the calls that were tapped.

    jharp (00ec6a)

  137. jharp – Do you know how you can tell when Greenwald is lying? When he’s writing.

    Walker is the third hederal judge to rule against the program. BFD. Diggs Taylor gave the plaintiffs summary judgement in a joke opinion when the government offered no affirmative defense. Her wacky ruling was overturned and ridiculed.

    Ron Gilman, the second judge he cites, wrote a dissenting opinion. It carried no weight, yet Greenwald continues to cite it as if it had precedential value, the putz.

    Greenwald’s article also talks about warrantless surveillance. Did you see any mention of warrants or the lack thereof in Walker’s opinion? I didn’t. I fact, the government doesn’t even acknowledge surveilling the charity in the case, yet that moron Greenwald automatically assumes they were and that they were doing it without warrants. If you find that citation, let me know, mkay.

    daleyrocks (d9ec17)

  138. Amusingly, Walker’s opinion dismisses the complaint’s allegations with regard to FISA and strongly suggests that the plaintiffs will not be able to amend them to conform.

    But to find that out, you have to read it.

    SPQR (26be8b)

  139. 47 USC 605 – Unauthorized publication or use of communications
    .
    That is the “current” version of the Communications Act of 1934. The statutory linkage circa 1941 is proving tough to reconstruct.
    .
    The statutory linkage today is from
    18 USC 2511
    (2)(f). That section also has recent history in that it cross references FISA (a 1978 law), but the general principle of constitutional law, that surveillance for foreign intelligence purposes is within the executive’s sole prerogative, is embodied there, and in numerous cases that predate FISA (see the “Keith” case – and it likely has some useful historical citations).
    .
    Another example that is not infrequently brought up to justify “secret surveillance” is the WWII Office of Censorship, established under the First War Powers Act.
    .
    The statutorily-enabled, and operated in plain view Office of Censorship is not a good parallel to a unilateral program of secret surveillance of publicly-unknown scope.

    cboldt (3d73dd)

  140. Did you see any mention of warrants or the lack thereof in Walker’s opinion? I didn’t.
    .

    The complaint alleges that the National Security Agency (“NSA”) conducted warrantless electronic surveillance of communications between a director or directors of Al-Haramain and the two attorney plaintiffs without regard to the procedures required by FISA, that the NSA turned over logs from this surveillance to OFAC and that OFAC then consequently froze Al-Haramain’s assets.
    .
    18 USC 2511(2)(f). This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.
    .
    The impetus for the enactment of FISA was Congressional concern about warrantless wiretapping of United States citizens conducted under a justification of inherent presidential authority under Article II. Congress squarely challenged and explicitly sought to prohibit warrantless wiretapping by the executive branch by means of FISA, as FISA’s legislative history amply documented.

    .
    There are more instances, but by this time in the case, the issue of “warrantless” and alleged the surveillance of al Haramain as against the FISA framework are abundantly clear.

    cboldt (3d73dd)

  141. Amusingly, Walker’s opinion dismisses the complaint’s allegations with regard to FISA and strongly suggests that the plaintiffs will not be able to amend them to conform.
    .
    Also amusingly, as you know from reading the opinion, Judge Walker thinks NO plaintiff could obtain relief under the statute. IOW, the remedy expressed by the statute is illusory.
    .
    Which makes one wonder, if all plaintiffs are going to lose in court, why the push to get the cases tossed out of court?

    Difficult as it is to learn of one’s status as an aggrieved party for section 1810 purposes, an aggrieved party needs more than mere knowledge of the surveillance to be able to proceed with a lawsuit under section 1810. The next major obstacle to seeking civil remedies under FISA is the lack of a practical vehicle for obtaining and/or using admissible evidence in support of such claims. An aggrieved party must be able to produce evidence sufficient to establish standing to proceed as an “aggrieved party” and, later, to withstand motions for dismissal and/or summary judgment. This effort is encumbered with legal and practical obstacles. …. [pages later]
    .
    This is not to say that it is impossible to obtain relief under section 1810, but the fact that no one has ever done so reinforces the court’s reading of the plain terms of the statute: section 1810 is not user-friendly and the impediments to using it may yet prove insurmountable.

    cboldt (3d73dd)

  142. I trying to make my way through Judge Vaugh’s decision, but the one thing I have noticed is that the government did not make a frontal assault on FISA itself as a violation of the Artilce II Executive powers. THe government’s argument seems to have been that whatever FISA is, the State’s Secrets privilege from common law survived, and remains a bulwark against any private causes of action under FISA when it is properly invoked.

    Vaugh’s decision doesn’t specifically address whether FISA is an unconstitutional encroachment on Article II — he accepts as written the Congressional language in the FISA legislation that Congress is rejecting the notion of inherent authority in the Executive to conduct warrantless wiretapping pursuant to Article II.

    The question remains whether Congress could reject such a notion without violating Article II. If the Executive Branch challenges this provision in FISA, rather than simply relying on the State’s Secrets privilege as an end-run around FISA, there might well be a different outcome.

    This decision will now go to the 9th Circuit — problaby the same 3 judge panel that decided the earlier issue. That panel had two very liberal judges on it.

    I suspect it’ll be in the SCOTUS in two terms.

    The strategy pursued in this case avoided a constitutional confrontation. We’ll see for how long that lasts.

    WLS (68fd1f)

  143. Walker is the third hederal judge to rule against the program.
    .
    See Judge Aiken’s decision in the Brendan Mayfield case too. Currently up on appeal by the government.
    .
    Orin Kerr’s Analysis of the Oregon FISA Decision – September 27, 2007

    cboldt (3d73dd)

  144. cboldt @140 – That talks about the legislative history and the plaintiffs’ claims, not the actual facts of the case. The plaintiffs did not prove anything nor did the defendants admit anything. How would anyone reach a conclusion if any wiretapping took place in this instance that it was warrantless?

    daleyrocks (d9ec17)

  145. This decision will now go to the 9th Circuit — problaby the same 3 judge panel that decided the earlier issue. That panel had two very liberal judges on it.
    I suspect it’ll be in the SCOTUS in two terms.

    .

    The 9th Circuit reversed the District Court ass to the usability of the government document as evidence of having been under surveillance. I doubt they are going to reverse Judge Walker after he dismisses the al Haramain case with prejudice. Al Haramain is apt to appeal to SCOTUS, where I see “cert denied” in the future.

    .

    The alternative is a Congressional cut-off, where causes of action based on 50 USC 1809 (with allegations of surveillance from 9/11/2001 to 1/17/2007) are not permitted to lie in court.

    cboldt (3d73dd)

  146. “Vaugh’s decision doesn’t specifically address whether FISA is an unconstitutional encroachment on Article II — he accepts as written the Congressional language in the FISA legislation that Congress is rejecting the notion of inherent authority in the Executive to conduct warrantless wiretapping pursuant to Article II.”

    WLS – He said language was deleted from the final bill to avoid any recognition of inherent presidential power, but goes on to say later he is not sure whether the Article II argument has been tested.

    daleyrocks (d9ec17)

  147. not the actual facts of the case. The plaintiffs did not prove anything nor did the defendants admit anything. How would anyone reach a conclusion if any wiretapping took place in this instance that it was warrantless?
    .

    I took your “no mention of warrantless” literally. If I’d taken it as “no evidence of warrantless,” I’d not have commented.
    .
    My mistake.

    cboldt (3d73dd)

  148. #121 L.N.Smithee- I hear you. I think the immigrant community often works its butt off. Much more so than the minority or redneck people born here, at least in my experience working with state employee drones. Dirty Pretty Things is an excellent movie that deals with the struggles of two immigrants played by Chiwetel Ejiofor and Audrey Tatou in west London.

    #135 Pontificoot- at least I am not seeing conspiracies where there are none. If you want to believe ib dickwads like Pelosi, Reid and Urkel, be my guest. Bet you are a troofer also and have a raging case of BDS? Now, bioya,mf and gfy ad hominemly. jajajaja

    madmax333 (28e282)

  149. cboldt – No problem. My reference was in the comment about Greenwald. There is no evidence for him to draw the conclusions he has about the case. We do not know if there was wiretapping (although because of the mishandled document we think we do) and we certainly do not know if it was warrantless.

    daleyrocks (d9ec17)

  150. cboldt – If there was wiretapping with a warrant, it could have all been legal, but the state secrets doctrine would prevent both the judge and the government from revealing that to the plaintiffs. Easy come easy go.

    daleyrocks (d9ec17)

  151. Here’s where the Judge Walker (I think I called him Judge Vaughn above — Its Judge Vaughn Walker) misses the mark, and makes an error that won’t stand up on this record:

    “Congress appears clearly to have
    intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever
    power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities
    and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

    If the “power the executive may otherwise have had” flows from Article II, Congress couldn’t diminish that power through passage of FISA — it would require an amendment to the Constitution to diminish that power.

    Judge Walker didn’t even try to define this power the executive “may otherwise have”, or its origin. So the question remains whether or not Article II confers upon the Pres. the authority to collect intelligence in a time of war against persons believed to be part of the opposition.

    WLS (68fd1f)

  152. Making a liar out of myself (on “I’d not have commented”), here is Judge Walker on “the evidence.” (@ p41-42)

    To speak metaphorically, the inadvertent disclosure by OFAC of the Sealed Document amounted to a small tear in the thick veil of secrecy behind which the government had been conducting its electronic surveillance activities. The Oregon district court refused to allow plaintiffs to learn more by conducting discovery, but held that no further harm could result from working with the salient information divulged thus far. By refusing to allow the use of the Sealed Document in any form for the adjudication of plaintiffs’ claims in this matter, the court of appeals required that the small tear be stitched closed, leaving plaintiffs with actual but not useful notice and without the sole item of evidence they had offered in support of their claims.

    .
    I don’t recall any discussion in the case (not just this opinion and order, but other court documents and reports I’ve read) that conclusively establish whether the surveillance evidenced by the “Sealed Document” was under a warrant or not. Al Haramain alleges the surveillance was undertaken without a warrant.

    cboldt (3d73dd)

  153. If there was wiretapping with a warrant, it could have all been legal, but the state secrets doctrine would prevent both the judge and the government from revealing that to the plaintiffs. Easy come easy go.
    .
    I think that’s the case for 100% of the plaintiffs. This statute has no practical value, except to delude people into thinking there is some sort of statutory check on secret surveillance.

    cboldt (3d73dd)

  154. question remains whether or not Article II confers upon the Pres. the authority to collect intelligence in a time of war against persons believed to be part of the opposition.
    .

    I understand the fixation on “in a time of war,” but it’s an unnecessary and incorrect limitation. The executive power to conduct foreign intelligence information is just as strong in time of peace as it is in time of war.

    cboldt (3d73dd)

  155. Al Haramain alleges the surveillance was undertaken without a warrant.

    c.boldt – I think we’re in agreement on the facts.

    My point is that all the hysteria about this being a case about warrantless eavesdropping could be complete BS. Nevertheless, the Judge’s analysis of FISA is what makes it necessary to read.

    daleyrocks (d9ec17)

  156. It’s been funny watching you morons while at work where I can read but can’t post insist that this whole affair is about a data-mining operation, when the plaintiffs in this very court decision based there whole case on the fact that they were sent a transcript of their phone conversations by the government.

    A lot of people have embarrassed themselves in this thread.

    Levi (74ca1f)

  157. It’s been funny watching you morons while at work where I can read but can’t post insist that this whole affair is about a data-mining operation, when the plaintiffs in this very court decision based there whole case on the fact that they were sent a transcript of their phone conversations by the government.

    A lot of people have embarrassed themselves in this thread.

    Comment by Levi — 7/3/2008 @ 4:53 pm

    Once, just once I’d like to hear a wingnut say “I was wrong”.

    The data miners seem to have disappeared and the knuckledraggers are trying to woo us with their knowledge of the law.

    Total embarrassments to our country as well as themselves.

    jharp (00ec6a)

  158. It’s funny watching you two clowns trying out for Gleen All-The-People-And-The-Places-I-Have-Been Gleenwald’s next cabana-boy.

    nk (16accd)

  159. “It’s funny watching you two clowns trying out for Gleen All-The-People-And-The-Places-I-Have-Been Gleenwald’s next cabana-boy.”

    I guess it’s a win win cause I’m having quite the good time seeing you gentleman exposed as the liars and purveyors of false information that you are.

    jharp (00ec6a)

  160. Once, just once I’d like to hear a wingnut say “I was wrong”.

    It can be done. I got the legendary DRJ to do it, and it took about 200 posts, but it can be done.

    Levi (74ca1f)

  161. exposed as the liars and purveyors of false information that you are.

    Oooooo…. the devestating PeeWee Herman manuever!

    twit

    Darleen (187edc)

  162. What false information? Article II gives the President the duty and power to monitor anything outside our borders or anything crossing our borders. Inside our borders, the Fourth Amendment applies. Where are you two morons coming from? Bushee did it, me no likee it?

    nk (16accd)

  163. japster, lying through his teeth, as usual.

    “Ignore, deny, change the subject, lie about the facts.” You have your hero’s tactics down pat.

    I’m sure he and his cabana boy are sooooo proud.

    Drumwaster (5ccf59)

  164. Once, just once I’d like to hear a wingnut say “I was wrong”.

    It can be done. I got the legendary DRJ to do it, and it took about 200 posts, but it can be done.

    Comment by Levi — 7/3/2008 @ 5:32 pm

    Can you link it for me? I missed it. Maybe she did. She is a very kind person and just could not stand to hurt a retard (that’s you) anymore.

    nk (16accd)

  165. harpy and Levi – Where in that opinion does the judge address whether this was done with or without a warrant?

    JD (5f0e11)

  166. Actually, jharp, it’s been fun watching you. And, unlike you, I won’t call you names. It is obvious what you are. No further descriptions are necessary. There are people who know. It’s not the President doing the intelligence gathering. Those people who do have sworn an oath to support and defend the constitution, against all enemies, foreign and domestic Yet, they have not come forward to declare that the constitution has been violated. I realize you most likely do not believe that they would hold to their oath. However, unlike you, they actually have integrity.

    Again, it has been fun watching you. I imagine all who actually know have enjoyed watching you, also. Good luck on your future space voyages.

    Barney (7f9027)

  167. Can you link it for me? I missed it. Maybe she did. She is a very kind person and just could not stand to hurt a retard (that’s you) anymore.

    In the Tim Russert thread. You could ask her again, too. Her and pat have been dodging me ever since.

    Levi (74ca1f)

  168. NK,

    Levi is right.

    I tried every way I could in the Russert thread to explain Jeremiah Wright’s statements as based on anything but racist and anti-American beliefs. In the end, I had to stand by my original post on the subject that asserted Wright’s words show he is hate-filled and anti-American. Basically, Levi made me eat my [original] words.

    DRJ (a0ba79)

  169. I’ll bet he is so proud at having proven the Lightbringer’s spiritual mentor a race-baiting America-hater.

    Drumwaster (5ccf59)

  170. Drumwaster – His moral compass, the man he could no more cast aside than his grandmother. How easily Obama changes his mind and becomes an ordinary hack politician!

    daleyrocks (1cc55d)

  171. “I guess it’s a win win cause I’m having quite the good time seeing you gentleman exposed as the liars and purveyors of false information that you are.”

    jharp – I see no evidence. Can you be specific.

    daleyrocks (1cc55d)

  172. This?

    Levi,

    Patterico asked me to state the liberal position in my own words:

    Liberals believe that Jeremiah Wright’s statements are irrelevant because Barack Obama is not responsible for statements other people make. The overwhelming national support for Barack Obama, extensive anti-Bush sentiment, and McCain’s lackluster support from his base make it virtually impossible for the GOP to win this election so conservatives are willing to do or say anything to win, including exploiting racism.

    Can we discuss it?

    Comment by DRJ — 6/22/2008 @ 11:51 am

    I dunno; I vote Levi’s out for the weekend or something – his comment #342 (see Patterico at #341) doesn’t sound like someone who doesn’t want to finish this thing.

    Oh the suspense. Thanks to DRJ’s plus Patterico’s megapatience, plus (credit where credit’s due) Levi’s willingness to stick with this thing, all Levi has to do to win 10 bucks is to either say “OK” or tell DRJ how she can correct her statement to better fit his position.

    Can he do it? Will he do it? Cmon Levi, you’re almost there…

    Comment by no one you know — 6/22/2008 @ 12:01 pm

    no one you know,

    I agree. I think Levi is busy and that he will return when he can. I updated my comment so it would be easier for him to find.

    Comment by DRJ — 6/22/2008 @ 12:48 pm

    Re: the original post, Tom Brokaw will replace Tim Russert as moderator of Meet The Press through the 2008 election.

    Comment by DRJ — 6/22/2008 @ 12:50 pm

    I’ve been switching computers, in case you were wondering, but yeah. I’m ready. I’ve said a number of times already which of DRJ’s statements I find agreeable, her refinements are fine, too. Whatever is supposed to happen next is up to you guys.

    Also, I might be bringing this new computer back to the shop, so you guys might have to go without me again in the near future.

    Comment by Levi — 6/22/2008 @ 1:29 pm

    Levi,

    Do me a favor.

    If DRJ’s comment 361 is a fair statement of your position, please say that clearly in a comment. That way, I’ll have something to link when I put up the post where you guys have your debate.

    Comment by Patterico — 6/22/2008 @ 1:51 pm

    If DRJ’s comment 361 is a fair statement of your position, please say that clearly in a comment.

    Yes it is.

    Comment by Levi — 6/23/2008 @ 2:32 pm

    This? You have got to be kidding. I’m sorry I did not drop into that thread but I was doinf CLE at the time. As Xrlq attests, CLE can really mess up your mind.

    nk (16accd)

  173. Does the FISA Court of Review itself affect your
    (Patterico) view now or as of Nov 2002?

    See Sealed Case No. 02-001 USFISA Court of Review
    (Nov 2002) which also referred to the earlier
    decision in US v. Truong Dinh Hung (4th Circuit 1980) that explicitly discusses the President’s
    inherent authority.

    eric rowe (4d0bcf)

  174. You’d be suprised how much people you don’t know know about you.

    Morons.

    nk (16accd)

  175. Levi and jharp – Since you are now self-proclaimed wiretapping and FISA experts, I have a question for you.

    If the phone calls in questions to and from the charity were to a foreign target of terrorist surveillance, would they have required a warrant to eavesdrop on those calls?

    daleyrocks (1cc55d)

  176. Levi,

    I’m not ducking you but I don’t post anymore so I’m waiting for Patterico to start a new thread where we can debate. I’m ready to go forward anytime.

    In addition, I doubt Patterico is ducking you. I think he is waiting on you to clearly state you want to go ‘double or nothing.’ You indicated that you did at one point in the Russert thread, but you never said it after you approved the final version of the liberal statement.

    DRJ (a0ba79)

  177. “If the phone calls in questions to and from the charity were to a foreign target of terrorist surveillance, would they have required a warrant to eavesdrop on those calls?”

    I have a question for you since you seem to know little about what you opine on.

    Who makes the legal distinction of who is a foreign target of surveillance?

    jharp (00ec6a)

  178. So you don’t know anything about FISA then, do you jharp? You don’t understand any of the basics about the issue you so boldly opine upon. And you’ve never bothered to learn any of the basics. But everyone who wastes their time trying to explain them to you is a moron?

    SPQR (26be8b)

  179. jharp,

    “If the phone calls in question to and from the charity were to a foreign target of terrorist surveillance, would they have required a warrant to eavesdrop on those calls?”

    I’m interested in your answer to that question. Can you please answer it directly?

    DRJ (a0ba79)

  180. Not to mention not understanding the difference between call detail records and actual surveillance of the phone call.

    Comment by SPQR — 7/3/2008 @ 9:22 am

    You were here earlier pimping the call detail record argument that was and is 100% false.

    And you’re telling me I don’t know about the case.

    Good grief.

    jharp (00ec6a)

  181. DRJ,

    And I’m interested in your response to mine.

    Who makes the legal distinction of who is a foreign target of surveillance?

    jharp (00ec6a)

  182. jharp, yes I am telling you that you don’t know about the issues in the surveillance program.

    You continue to prove it.

    SPQR (26be8b)

  183. But everyone who wastes their time trying to explain them to you is a moron?

    Comment by SPQR — 7/3/2008 @ 7:28 pm

    No.

    The morons were the bozos touting the below argument with zero, nada, zilch evidence.

    Who ran and hid when I asked for ANY piece of evidence to back their claim.

    “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    jharp (00ec6a)

  184. Changing the subject, and ignoring uncomfortable questions.

    Never gonna learn, are you?

    Drumwaster (5ccf59)

  185. jharp, you’ve not bothered to learn that the surveillance program that the NYT had written articles about some time ago, that was the subject of the lawsuits against the telecoms, that was extensively discussed on this blog and that was in part discussed by the Bush administration was indeed about searching through call detail records.

    SPQR (26be8b)

  186. Just more confirmation of my point that jharp is a troll who is wasting others’ time by intentionally remaining ignorant of issues so as to be unable to write coherent arguments about them.

    SPQR (26be8b)

  187. Fuggedaboutit, SPQR. He’s positively allergic to the facts.

    Drumwaster (5ccf59)

  188. “jharp, you’ve not bothered to learn that the surveillance program that the NYT had written articles about some time ago, that was the subject of the lawsuits against the telecoms, that was extensively discussed on this blog and that was in part discussed by the Bush administration was indeed about searching through call detail records.”

    So that is your evidence that “they aren’t listening to the call itself.”

    “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”

    No one denied the existence of call detail records. It was the ludicrous claim they weren’t listening to the call itself.

    And it turns out the department of justice mistakenly sent the transcript of them doing EXACTLY that.

    Aren’t you even a little embarrassed by your own stupidity?

    jharp (00ec6a)

  189. So that is your evidence that “they aren’t listening to the call itself.”

    Exactly, you moron.

    As for your claims about some alleged “transcripts”, I see nothing there that supports your claim.

    That means you are lying. And probably unpatriotic, to boot. Admit it, you hate this country and everything she stands for, don’t you?

    Pathetic.

    Drumwaster (5ccf59)

  190. jharp, actually I’m embarrassed only that I engage your stupidity. You continue to confuse two different issues. And show that you don’t understand either by failing to understand the question about the actual phone call surveillance posed to you earlier.

    SPQR (26be8b)

  191. jharp,

    I can’t answer these questions because I’m don’t know enough about the subject. Is that the case with you, too?

    DRJ (a0ba79)

  192. I’m outta here.

    Proud day for the wingnuts. Obama doesn’t care if gas is expensive. George Bush wasn’t listening in on actual calls, only tracking where the calls were from.

    Oh, wait none of it’s true.

    Doesn’t matter. just keep repeating it. The 25%ers will believe anything.

    Thank God it now only 25%. That is some real progress for all Americans.

    jharp (00ec6a)

  193. “I’m outta here.”

    Another lie from the harpster.

    steve miller (724340)

  194. How does one get by, on a day-to-day basis when you are so fundamentally dishonest?

    JD (5f0e11)

  195. I’ll bet he is so proud at having proven the Lightbringer’s spiritual mentor a race-baiting America-hater.

    You have no idea what was going on.

    Busy at your blog, probably.

    Levi (74ca1f)

  196. This? You have got to be kidding. I’m sorry I did not drop into that thread but I was doinf CLE at the time. As Xrlq attests, CLE can really mess up your mind.

    No, that wasn’t it.

    You have about 200 posts to read if you wanna get it.

    Levi (74ca1f)

  197. If the phone calls in questions to and from the charity were to a foreign target of terrorist surveillance, would they have required a warrant to eavesdrop on those calls?

    They would have. Although they could have gone ahead with the tap if there were time constraints, so long as they went back within 72 hours and got a warrant.

    But that situation is exactly what FISA was designed for.

    Levi (74ca1f)

  198. jharp and levi – I’ll keep waiting for an answer to my 176.

    daleyrocks (1cc55d)

  199. IF what Levi describes in 198 is accurate, then it would be my position that Congress attempted to usurp or limit Presidential powers by legislation. How is it not the duty of a President to do just that? Why do they not require warrants to search mail, or your person, when crossing our border?

    They also intentionally conflate wiretapping and data mining, which just adds to their perfidy.

    JD (5f0e11)

  200. Levi – I believe you are dead wrong in 198, which again is a reason to tone down the hysteria of the left.

    Why would we need a warrant to surveil a foreign terrorist target? If the conversations are recorded as part of that surveillance, how is a separate warrant required? Seems elementary except to the left.

    I’ll see if anybody else confirms, but I think you’ve got a shitty understanding of the requirements of FISA, Levi.

    daleyrocks (1cc55d)

  201. “Why would we need a warrant to surveil a foreign terrorist target?”

    “Who makes the legal distinction of who is a foreign target of surveillance?

    jharp (00ec6a)

  202. Harpster, didn’t you say you were outta here?

    And you’re back?

    Were you just lying?

    steve miller (724340)

  203. yes, and i was

    and i’m back

    you got some sort of problem with that?

    jharp (00ec6a)

  204. Drum,

    Couldn’t sleep and was up reading over todays debate and came across this beauty.

    “Okay, jap, pay attention. Bush isn’t “wiretapping” anyone. He is using the intel services to collect CALL DATA – who called whom, and how long they talked. NOT listening in to any calls, and NOT recording anything without a warrant.

    Please try to use the intellectual honesty God gave a gorilla, and understand the difference.”

    From you.

    Just wondering what kind of man you are and if you have the guts to admit you were wrong.

    And not only were you wrong you just made shite up with no evidence whatsoever to support your ridiculous claim.

    jharp (00ec6a)

  205. We do not know if there was wiretapping (although because of the mishandled document we think we do) and we certainly do not know if it was warrantless.

    .

    I’ve re-read some of the court documents that I have on hand. I suppose “we do not know” can be finely parsed somehow, to measure the reliability and credibility of the evidence. I’ll leave that to the sophists and flame-warriors that inhabit this space.

    .

    As for my opinion, Judge King’s Sept 7, 2006 Opinion and Order records what I think are credible insights into what we know about whether or not there was wiretapping.

    .

    I accord the allegation “credibility,” in part because the allegation and further probing indicates that the plaintiffs say they do not know if the surveillance was done under a warrant or not. They had been attempting discovery to determine that fact. IOW, the allegation doesn’t ring of making over-reaching claims. Also, the governments defenses include items that would apply only under a situation where contents of communications had been acquired. The government doesn’t admit the acquisition, but it’s arguments aren’t in the nature of defending call-tracing activity (See 18 USC 3127 definitions of “pen register” and “trap and trace” – capture of information other than contents of communication)

    .

    As a result of receiving the document, Al-Buthi, Sedaghaty, Belew and Ghafoor know what information the Sealed Document contains, which means they know whether or not the government has conducted electronic surveillance of communications between Al-Haramain’s director or directors and Belew and Ghafoor. (this conclusion based on plaintiff’s allegations and not based on the contents of the Sealed Document.) …
    .
    Even if plaintiffs are not identified in the document, if they engaged in electronic communications during the period of time described in the document, and discussed the subjects identified in the document, they also know whether their communications have been intercepted.

    .

    I’d say we know there was wiretapping because a) the legal term “electronic surveillance” means acquisition of contents of communications, and b) the document identifies subjects of discussion.

    .

    If the electronic surveillance was conducted pursuant to a warrant, it falls under the FISA structure. If conducted without a warrant, it falls outside the structure of FISA, and by the terms of FISA, plaintiff is entitled to the civil remedy in section 1809.

    .

    Without more in the way of factual information, it’s impossible to render a useful opinion as to whether the surveillance (under a warrant -or- warrantless) was constitutional or not. And taking hypothetically that it was warrantless, yet constitutional (notwithstanding Judge Walker’s recent “exclusive means” finding), untangling the conflicts between FISA and the constitution is likewise futile outside of a fact pattern.

    cboldt (3d73dd)

  206. Look — the case that produced this particular decision involves the actual monitoring of telephone conversations. That’s a given.

    But, the first disclosures of the terrorist surveillance program concerned the data mining part of it– that NSA computers were being used to filter through the signal information passing through telecomm equipment, and that signals intelligence was being used for intelligence purposes. Sometimes that signals intelligence led to further investigation — including the use of wiretaps without a warrant.

    But not all wiretaps require a warrant. Its possible for the NSA to tap a foreign telephone that makes a call into the US because that foreign telephone relies upon domestic telecomm equipment. If NSA is monitoring that foreign telephone, and it calls a domestic US number, what should the NSA do?

    So, grow up, quit calling each other names, and discuss the issues in the opinion — the most glaring of which is that the district court AVOIDED the issue of whether the Executive has inherent authority under Article II to act in the manner in which he did.

    wls (1cdbde)

  207. I’d just add, the fact that a warrant is issued under FISA doesn’t necessarily mean the warrant is constitutional. Warrants have been know to be obtained on false pretenses; and it may be that FISA “as applied” can run afoul of the 4th amendment. The Mayfield case is poking around in that territory. I linked to a discussion of the Mayfield case, at 7/3/2008 @ 3:52 pm above.
    .
    Also, “falling under the structure of FISA” doesn’t address whether or not the warrant is in conformity with the requirements of FISA (in theory, a FISA warrant can be statutorily infirm).
    .
    The only responsible position to take is that “without more in the way of facts, we don’t know.” There are many possible permutations, some of which may impinge on the president’s Article II power, and some of which may run against the 4th amendment.

    cboldt (3d73dd)

  208. the first disclosures of the terrorist surveillance program concerned the data mining part of it
    .
    Here is the first public disclosure: Bush Lets U.S. Spy on Callers Without Courts NYT, December 16, 2005
    .
    If NSA is monitoring that foreign telephone, and it calls a domestic US number, what should the NSA do?

    .

    Without making a moral opinion, FISA has a multi-faceted answer as to what is to be done when an intercepted communication includes a person located in the US.

    .

    The short answer is that they listen in and “minimize” the record of that contact. Same idea as when a criminal is wiretapped, and he calls the pizza joint to order a large pepperoni. The pizza joint isn’t put under surveillance as a result of the contact (although it may be under suspicion for totally independent reasons), etc.

    cboldt (3d73dd)

  209. discuss the issues in the opinion — the most glaring of which is that the district court AVOIDED the issue of whether the Executive has inherent authority under Article II to act in the manner in which he did.
    .
    First, we don’t know what “act in the manner in which he did” means. We don’t what surveillance activity was undertaken, nor do we know what justification/suspicion supports it, nor do we know the extent of court preview of the surveillance.
    .
    Second, the question of whether and to what extent there is inherent authority “outside of” or “in excess of” FISA isn’t relevant to decide whether or not FISA was followed.
    .

    Plaintiffs’ other causes of action are for alleged violations of the “separation of powers” principle in the Constitution, the First, Fourth and Sixth amendments and the International Covenant on Civil and Political Rights. But it is to plaintiffs’ FISA claims that the parties have directed their arguments and the court of appeals its attention. All of plaintiffs’ claims would appear to depend on FISA. This order, therefore, devotes itself exclusively to FISA and the question posed by the court of appeals remand.

    .
    The only issue addressed in this opinion in whether FISA was followed or not. The opinion doesn’t probe the “constitutionality” claim, or any “inherent power” defense.
    .
    Judge Walker’s conclusion that FISA trumps state secret has a VERY narrow application.
    .
    The Opinion answers whether state secret has to yield in order to answer the question, “was the statutory scheme of FISA applied?” Note too, even if FISA is held to prevail over an assertion of state secret, FISA can’t bootstrap a disclosure of state secret, and that any disclosure of state secret would be to the Court, not to the public.
    .
    The Opinion strongly suggests that the threshold for reaching the inquiry, a factual showing of “aggrieved person” being made without resort to state secret, may be impossible to reach – so that the yielding of state secret to FISA may be nothing more than a theoretical construct. But, he concludes, if plaintiffs CAN cross the threshold, then the Court is obliged to evaluate the evidence to determine whether or not FISA was followed.

    cboldt (3d73dd)

  210. cboldt – Isn’t the definition of domestic and international calls the true basic underlying issue in all of this? Domestic to domestic is clearly domestic. But many now argue that if either party is domestic, or the data is routed domestically, that makes it domestic.

    JD (a6d772)

  211. “If the electronic surveillance was conducted pursuant to a warrant, it falls under the FISA structure. If conducted without a warrant, it falls outside the structure of FISA, and by the terms of FISA, plaintiff is entitled to the civil remedy in section 1809.”

    “The short answer is that they listen in and “minimize” the record of that contact. Same idea as when a criminal is wiretapped, and he calls the pizza joint to order a large pepperoni. The pizza joint isn’t put under surveillance as a result of the contact (although it may be under suspicion for totally independent reasons), etc.”

    cboldt -I disagree with your above comments. I did not go back to read the underlying documents, but I take it from your comments that we do not know how the alleged conversations were captured electronically. For example, were they captured because the charity itself was a target of surveillance or were they picked up as pat of conversations people at the charity were having with other targets. Judge Walker doesn’t go into it and I’m pretty sure the government wouldn’t want to describe it either.

    What I’m suggesting is that the government doesnot necessrily need a warrant to preserve conversations with the charity if they are captured pursuant to legitimate foreign intelligence gathering activities. If the charity is a U.S. person rather than an gent for a foreign power, a warrant would be required to specifically target them.

    We don’t have the information from the details provided to make those determinations.

    daleyrocks (1cc55d)

  212. I think it’s worth pointing out how tremendously easy it was to satisfy the FISA courts, as they’ve approved 22,985 of 22,990 applications they’ve received since 1979. That means they’ve rejected 5. That means they approve 99.9% of them. FISA does not make it hard. There’s no reason to skip them, unless you’re up to no good.

    Levi (74ca1f)

  213. We don’t have the information from the details provided to make those determinations.

    You’re right, we know very few details.

    But one of those details is that Bush broke the law.

    Levi (74ca1f)

  214. There’s no reason to skip them, unless you’re up to no good.

    Or, unless you don’t HAVE to file anything with that court, as the action taken is beyond that court’s jurisdiction.

    Such as the data mining operations, or if the person under surveillance is outside the borders of the US, or if the method of communications crosses the international boundaries.

    FISA does not make it hard.

    Actually, the high percentage means that the prosecutors requesting those warrants don’t waste the court’s time with frivolous requests that would get turned down. When you have all your ducks in a row, things can progress very smoothly.

    Drumwaster (5ccf59)

  215. You’re right, we know very few details.

    But one of those details is that Bush broke the law.

    Wow! Really? And that wouldn’t be at all hard to prove, would it? Especially for those Democrats who have been running Congress for the last two years.

    I mean since the evidence is so pervasive that even idiots like you and harpie have it just lying around…

    (Hint: “Unfounded and unsupported assertions” do NOT equal “evidence of a crime”, no matter how many times you repeat the charge.)

    If the Dems had even the faintest hint of a crime committed by Bush (say, a genetic smear on a blue dress), do you honestly think they would hesitate?

    If so, why?

    Drumwaster (5ccf59)

  216. Levi – It does not matter if they approve ever fucking application. If it is a foreign/international call, it is not required. Simple foundational issues like that are too much for you to wrap your little head around. There are plenty of reasons to skip FISA, like when the calls in question are not applicable.

    Then, Levi says we do not know the details, and follows with the assertion that Bush broke the law.

    I read the title of a book yesterday, “Levi and harpy are brokeback liars”, which proves what I have always thought about them.

    JD (a6d772)

  217. Let’s start from scratch for those who still don’t get it: what is the purpose of obtaining a warrant?

    Drumwaster (5ccf59)

  218. Drum – facts get in the way of their story telling.

    JD (a6d772)

  219. WE ARE IMPERVIOUS TO FACTS YOU FUCKING WINGNUT WARMONGERERS !!!!!!!!!!!!!!

    Wranglers (a6d772)

  220. “Wow! Really? And that wouldn’t be at all hard to prove, would it?”

    It took us three years for the evidence to surface that they were actually listening to telephone calls. It was all kept “top secret”

    Just yesterday quite a few of you idiots were claiming they weren’t.

    I wonder how the guy at the department of justice who mistakenly sent the transcripts of the illegal eavesdropping is doing?

    And it’s just too dam funny that the administrations own incompetence is what tripped them up.

    jharp (00ec6a)

  221. Just yesterday quite a few of you idiots were claiming they weren’t.

    They AREN’T. On those rare occasions when a warrant is required, a warrant is obtained. As Levi keeps pointing out, it’s “easy”.

    However, those incidents where a warrant is needed are extremely rare compared with the number of calls per day that are being monitored (not listened to, not recorded) for call patterns.

    Still waiting for the Obama-tards to tell us: what is the purpose of obtaining a warrant?

    Drumwaster (5ccf59)

  222. you mean that when FDR illegally intercepted communications through US cable companies to and from the Japanese embassy, he should not have been impeached? … I’ll have to do some digging. I read it in a history of the intelligence / decryption efforts of the Pacific War – it will take some time for me to recall which book. And it was mentioned on this blog in the scores of long discussions we had here about FISA in recent years.
    .
    I found it without too much trouble, by using a google search. The post is The Constitutionality of Warrantless Wiretaps of 8/26/2007. (Using ‘site:patterico.com intercept cables’ results in one hit – a few other search terms ended up with numerous hits, but were “dry holes”)
    .
    The posts cite a book that asserts “violation of the Federal Communications Act of 1934,” which is the same statute I found independently. As noted above, reconstructing the complete statutory scheme circa 1939, and then, as now, the “default” is that interception without a warrant is prohibited. That section of law reads the same way today. HOWEVER, a separate section of law sets out exceptions, and intercepting diplomatic communications to and from an embassy is not subject to court review, for reasons that ought to be obvious even if statutory expressions haven’t caught up with differentiating foreign policy “breaches” from enforcing criminal law.
    .
    Nardone v. United States, 302 U.S. 379 (1937) touches only on the use of intercepted communications in a criminal prosecution setting, so it’s “there is no exception” conclusion is “no exception to precluding the use of the interception in a criminal case.”
    .
    I’ll do a little more digging, but what I’ve seen so far shows no clear cut case between 1934 and 1939, although subsequent cases and statutes are 100% in accord with separating “foreign intelligence information” (and embassy-bound communications are a slam dunk in that regard) from everything else.

    cboldt (3d73dd)

  223. Still waiting for the Obama-tards to tell us: what is the purpose of obtaining a warrant?

    Because the law requires it. Pretty simple, huh?

    jharp (00ec6a)

  224. Because the law requires it.

    No, it doesn’t, and I’m speaking more generally than that.

    Let’s try it this way: why do you think the law requires it?

    Drumwaster (5ccf59)

  225. It took us three years for the evidence to surface that they were actually listening to telephone calls

    They damn well better be listening to foreign calls from suspected terrorists. That is the primary responsibility of our governement, to provide for the common defense.

    JD (a6d772)

  226. “They damn well better be listening to foreign calls from suspected terrorists. That is the primary responsibility of our governement, to provide for the common defense.”

    Yes, sir. They dam better be.

    And they dam better be getting a warrant to do so.

    jharp (00ec6a)

  227. Harpy – You keep dodging my 176 chickenshit.

    daleyrocks (1cc55d)

  228. And they dam better be getting a warrant to do so.

    harpy – Where did you attend stupid school?

    daleyrocks (1cc55d)

  229. “Let’s try it this way: why do you think the law requires it?”

    It’s kind of a separation of powers thing. Like judicial oversight of the executive branch.

    I know the wingnuts would prefer to live under the rule of a king but our founding fathers saw it differently.

    jharp (00ec6a)

  230. And they dam better be getting a warrant to do so.

    They do not have to get a warrant to listen to two terrorists in a foreign country, you moron.

    Still waiting for why you think our government needs to get warrants.

    Explain the need, instead of just trying “because I said so”. That is neither true nor applicable.

    (I’ll give you a hint: under what circumstances are improperly obtained warrants voided?)

    Drumwaster (5ccf59)

  231. daleyrocks,

    And you keep dodging my 178.

    Who makes the legal distinction of who is a foreign target of surveillance?

    jharp (00ec6a)

  232. Wow! Really? And that wouldn’t be at all hard to prove, would it? Especially for those Democrats who have been running Congress for the last two years.

    I mean since the evidence is so pervasive that even idiots like you and harpie have it just lying around…

    (Hint: “Unfounded and unsupported assertions” do NOT equal “evidence of a crime”, no matter how many times you repeat the charge.)

    If the Dems had even the faintest hint of a crime committed by Bush (say, a genetic smear on a blue dress), do you honestly think they would hesitate?

    If so, why?

    Levi (bc7823)

  233. Woops, sorry about that, lemme try again.

    Levi (bc7823)

  234. In the world I live in, lower numbers come first. So the original question is 176.

    In the world of “I hate Bush,” questions can be ignored because, well, I HATE BUSH!

    steve miller (724340)

  235. And they dam better be getting a warrant to do so.

    BZZZZZZZZTTTTTTTTTTTTT. Wrong answer.

    How is conducting surveillance and intelligence gathering on foreign agents some separation of powers thing, harpy? Or, are you just making shite up again, like you did with that King BS.

    JD (a6d772)

  236. Like judicial oversight of the executive branch.

    You’re close, but you keep missing the actual facts.

    Drumwaster (5ccf59)

  237. Drumwaster, #216

    Every judge that has ever ruled on the legality of Bush’s Domestic Surveillance Program have decalred it to be in violation of FISA. Judge Walker makes it 3 of 3. The judges that threw out the ACLU’s lawsuit did so on procedural grounds. This isn’t my opinion, this is the opinion of judges, some of whom were appointed by Bush.

    As for why the Democrats don’t do anything about it, well what can I say? They’re Democrats. They’re pathetic, and they don’t know a massive political gift when they see it.

    Levi (bc7823)

  238. I’d like to acknowledge something you very well might be right.

    And they dam better be getting a warrant to do so.

    They do not have to get a warrant to listen to two terrorists in a foreign country, you moron

    In my haste I did not read it carefully. And I do not know how other countries handle the U.S spying within their country.

    jharp (00ec6a)

  239. As for why we need warrants, well just look at why they passed FISA in the first place; because all sorts of politicians were running around wiretapping people in the 70’s. Having a very accomodating court checking over the shoulder of the executive branch makes sure no one is being wiretapped that shouldn’t be.

    Levi (bc7823)

  240. transcripts of the illegal eavesdropping

    What evidence do you have that it was illegal?

    JD (a6d772)

  241. Levi states

    Every judge that has ever ruled on the legality of Bush’s Domestic Surveillance Program have decalred it to be in violation of FISA.

    Since not one of the rulings you refer to has anything to do with the merits, you are again being ignorant or a liar? I vote liar.

    JD (a6d772)

  242. From the harpster:

    I’d like to acknowledge something you very well might be right.

    We just need to hear this more often. Even if it’s insincere.

    steve miller (724340)

  243. Who makes the legal distinction of who is a foreign target of surveillance?

    Comment by jharp — 7/4/2008 @ 9:14 am

    jharp – Your question has no relevance to answering mine unless I am missing something. Whoever tasked the NSA with the surveillance made the determination.

    Anser the question you have been avoiding. You obviously know very little about this subject.

    daleyrocks (1cc55d)

  244. “Every judge that has ever ruled on the legality of Bush’s Domestic Surveillance Program have decalred it to be in violation of FISA.”

    Bullshit – I addressed this above.

    daleyrocks (1cc55d)

  245. “Every judge that has ever ruled on the legality of Bush’s Domestic Surveillance Program have decalred it to be in violation of FISA.”

    This is a gleeeeeenwaldian whopper.

    JD (a6d772)

  246. The judges that threw out the ACLU’s lawsuit did so on procedural grounds.

    Specifically, that the plaintiffs couldn’t show that they were, in fact, deprived of any alleged right to privacy. They had no standing, and the ACLU got its suit tossed because they couldn’t show a single person who had been “wiretapped” without a warrant.

    Not one.

    Gee, I wonder why that is? With all of the bajilions of people that you claim Bush is secretly listening in on, they couldn’t find a single person who had actually been wiretapped without a warrant.

    Still waiting for you dumbasses to explain why the government NEEDS a warrant.

    Drumwaster (5ccf59)

  247. Specifically, that the plaintiffs couldn’t show that they were, in fact, deprived of any alleged right to privacy. They had no standing, and the ACLU got its suit tossed because they couldn’t show a single person who had been “wiretapped” without a warrant.

    Yes, that is what I just said.

    Gee, I wonder why that is? With all of the bajilions of people that you claim Bush is secretly listening in on, they couldn’t find a single person who had actually been wiretapped without a warrant.

    Because Bush has classifed everything having to do with the program as top secret.

    Still waiting for you dumbasses to explain why the government NEEDS a warrant.

    To make sure they aren’t spying on people at random and for no reason.

    Levi (bc7823)

  248. Yes, that is what I just said.

    You are an overt and aggressive liar.

    You said

    “Every judge that has ever ruled on the legality of Bush’s Domestic Surveillance Program have decalred it to be in violation of FISA.”

    JD (a6d772)

  249. Levi — I’d like you to post the portion of Judge Walker’s opinion that says the surveillance program violates FISA. I’m not saying its not there, but what I read the opinion to be saying is that FISA displaced the common law “state’s secrets” privilege, and the government couldn’t rely on the state’s secrets privilege to prevent the plaintiffs from coming to court.

    Whether or not FISA has actually been violated by the conduct at issue remains to be determined. What Walker’s opinion does is that it keeps the courthouse doors open to people like the plaintiffs who want to claim that their rights were violated, and pursue a private right of action under FISA and other statutes.

    What Walker also said, however, is that the plaintiffs are going to have to figure out a way to establish that they have standing without knowing what it is the government has done — its a little bit of a chicken-and-egg problem that they probably can’t solve under the law as its currently written.

    wls (1cdbde)

  250. To make sure they aren’t spying on people at random and for no reason.

    No. Good heavens, you’re thick. Since neither of you know what the heel you’re talking about, I’ll give you the answer.

    The government obtains a warrant in order to pursue a criminal investigation.

    Now, let’s see if you can tell the difference between gathering intelligence against a hostile power and trying to prosecute and convict someone who has violated criminal codes.

    Because Bush has classifed everything having to do with the program as top secret.

    You can’t even identify what is meant by the difference between “Top Secret” and “Secret”, so I’m just going to laugh at your naivete, and pretend you didn’t say something so foolish.

    Drumwaster (5ccf59)

  251. Should government agents waste time getting a FISA warrant under circumstances where its not required?

    Why should they treat FISA different than Title III warrants used in criminal cases?

    A warrant is only required under Title III if both parties to the conversation are unaware they are being tapped. If one party gives consent to the monitoring of the phone conversation, no warrant is required.

    Similarly, if the phone in question that is being surveilled under FISA is the phone of an attorney in London, a FISA warrant is not required — the phone is not a domestic phone, its a foreign phone. When that phone calls a US number, what does the law require?

    Someone here suggested that the law requires minimization at that point. Why? FISA doesn’t apply to the phone being monitored. If the Executive is monitoring the London phone for the purpose of collecting intelligence for military use in combatting terrorism, i.e., it is functioning under its commander in chief role pursuant to Article II (as opposed to gathering intelligence for general foreign policy purposes), the FISA does not apply because the Executive’s authority under Article II cannot be curtailed by a statute — it can only be altered by an amendment to the Constitution.

    wls (1cdbde)

  252. “Gentlemen do not read other gentlemen’s mail”.
    Google it if you care.

    nk (16accd)

  253. Why does no one seem to care about Bush standing up and lying to the American public? The goddam transcript is posted on the whitehouse website.

    Bush Caught on Tape: “A Wiretap Requires A Court Order. Nothing Has Changed.”»

    Bush, April 2004:

    Transcript: via whitehouse. gov

    Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

    jharp (00ec6a)

  254. Moving the goalposts again? You might as well admit you’ve lost this argument.

    steve miller (724340)

  255. Isn’t the definition of domestic and international calls the true basic underlying issue in all of this? Domestic to domestic is clearly domestic. But many now argue that if either party is domestic, or the data is routed domestically, that makes it domestic.

    .

    Under FISA, certain domestic-domestic communications can be acquired without a warrant. See 1802. But even those “warrantless” acquisitions include some contact with FISC – just not “you need permission and/or agreement.”

    .

    As for the TSP and the question of whether and how it runs afoul of FISA, the definition of “electronic surveillance” in 1801(f) includes international communications.

    cboldt (3d73dd)

  256. Drum, In your stupidity you’ve actually brought up a good point

    “Now, let’s see if you can tell the difference between gathering intelligence against a hostile power and trying to prosecute and convict someone who has violated criminal codes.”

    Just who are these hostile powers? Anyone with brown skin? Anyone not an American? Aren’t they admittedly stateless persons?

    So is it pretty much everyone is a hostile power until they are proven innocent?

    And just what are the rules for the United States spying within a the borders of a sovereign country.

    I for one, would not like it if our government allowed foreign governments to spy on me.

    jharp (00ec6a)

  257. Moving the goalposts again?

    steve miller (724340)

  258. jharp — explain for me what it is you think a “roving” wiretap is.

    This should be funny.

    wls (1cdbde)

  259. Moving the goalposts again? You might as well admit you’ve lost this argument.

    Comment by steve miller — 7/4/2008 @ 10:31 am

    No. Just asking why no one cares that Bush lied that they were complying with the requirement to get a warrant. After he openly admitted a warrant was necessary.

    Care to answer?

    jharp (00ec6a)

  260. jharp — the only “rule” about spying within the borders of a foreign country is “don’t get caught.”

    And, it doesn’t require physically setting foot in London for the NSA to monitor a phone call over a London phone. I’ll just leave it at that.

    wls (1cdbde)

  261. Yep. You’re moving the goalposts. And making up facts as you go along.

    steve miller (724340)

  262. And just what are the rules for the United States spying within a the borders of a sovereign country.

    I for one, would not like it if our government allowed foreign governments to spy on me.

    jharp,

    You’re nuts, right?

    nk (16accd)

  263. I’m not sure if you think “lying” by Bush is bad, but “lying” by Obamessiah is good. (Baracky has, you must admit, been lying pretty much non-stop in his pursuit of the presidency.)

    Perhaps you just have BDS. It’s not the wiretapping that’s getting you. You’d be fine in an Obamessiah administration that tapped the phones of AIPAC, I’d guess.

    What you don’t like is that 7 1/2 years ago Bush was elected president. And for 7 1/2 years that anger has been eating at your soul – how could America do such a thing? It must be something criminal. Imagine – Bush in the White House, while Al Gore is reduced to living in a mansion the size of a football field and consuming enough oil to run the city of St. Louis. And John Kerry, paragon of military service, lost to Bush triumphant. And impeachment failing to make its way through Congress even with the saintly Democrat Party in power.

    It must drive you nuts.

    So every policy dispute is now a crime.

    steve miller (724340)

  264. Just who are these hostile powers?

    I’d start with the ones chanting “Death to America!” on international TV, and work our way from there…

    I for one, would not like it if our government allowed foreign governments to spy on me.

    And just exactly what would you prefer the government to do if this WERE the case? Declare war? If you and your compatriots were actively plotting the destruction of (say) Monaco, I would consider it a severe lack of foresight if Monaco weren’t listening in on your every whisper.

    So is it pretty much everyone is a hostile power until they are proven innocent?

    Until their actions prove friendly, then a bit of caution is always in order. Do you bare your chest to every stranger you meet? Tell random strangers how much cash you have in your pockets? Tell the guy at the bus stop how that unlocked window in the back of your house at 1234 Main St has always been a concern, but especially now that you just got the new entertainment center?

    Why would you think it is any different with nation-States?

    Drumwaster (5ccf59)

  265. jharp — Bush isn’t a lawyer and his comment was overbroad.

    I gave you one example of when a warrant isn’t required under Title III to monitor a phone call. A “wiretap” is nothing more than a team of law enforcement agents sitting in a room — with modern technology that room is now usually inside the office of the law enforcement agency rather than at some location near the site of the phone being tapped — and listening to calls coming in and going out, with a digital recorder running. If they hear a conversation between the target and his grandmother about his grandmother’s upcoming birthday party, they “minimize” their monitoring — which is generally understood as shutting off the recording equipment for 2 minutes. They can then turn it on again for 10-15 seconds to see if the subject of the conversation has changed. If after 2 minutes granny is still talking about what she wants for her birthday, they shut off the recorder again and wait. If after another 2 minutes granny has started questioning the target about why her take from their meth sales has declined, they can continue recording.

    Now, if I want to listen to you arrange a 10 pound meth deal with your supplier, and you give me permission to attach a recording device to your phone because you are cooperating, then I don’t need a warrant even though your meth supplier doesn’t know he’s being recorded.

    Similarly, if I want to search your home for the 10 pounds of meth I think you’ve got under your bed, and you give me permission to come inside and do so, I don’t need to get a warrant for the search — even if I have zero probable cause for really believing you have 10 pounds of meth under your bed.

    FISA requires a warrant in certain domestic circumstances. FISA does not require a warrant for NSA to tap the phone of a London lawyer.

    wls (1cdbde)

  266. What I’m suggesting is that the government does not necessrily need a warrant to preserve conversations with the charity if they are captured pursuant to legitimate foreign intelligence gathering activities. If the charity is a U.S. person rather than an agent for a foreign power, a warrant would be required to specifically target them.
    .

    Without getting to the question of whether the surveillance is constitutional (as the legitimate exercise of Article II inherent authority to acquire foreign intelligence information), and confining the analysis to FISA as stated, I don’t believe either end of the conversations acquired fits within the contours of 1802.

    .

    The warrantless regime of 1802 is VERY narrow. It includes elements of the means of communications (used exclusively between or among foreign powers), and further includes the elucidation of minimization procedures and reporting to FISC. By admission, the administration did not report any aspect of the TSP to the FISC.

    .

    The casual definition of the TSP, international communications into or out of the United States where there is reason to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist group, does not fit within the parameters of 1802.

    cboldt (3d73dd)

  267. FISA doesn’t apply to the phone being monitored.

    .

    It applies to “communications,” meaning both ends (or all ends) of the communication are considered.

    .

    At this point, 2+ years after the TSP was disclosed and admitted, the people who cling to the notion that the TSP is/was four-square within the FISA boundary are few and far between. I dismiss them as uniformed, or cranks, or both.

    .

    Not even the administration argues that the TSP fits within FISA.

    cboldt (3d73dd)

  268. cbolt — the administration hasn’t made that argument yet because it would require a constitutional confrontation between branches. They have used non-constitutional arguments so far to defend against the suits.

    That may be changing.

    FISA can’t amend Art. II.

    wls (1cdbde)

  269. c.boldt @267 – Thanks for the comment. There are carve outs to the minimization and notification procedures if the information contained in the conversations represents foreign intelligence information, as defined. Again, we don’t know squat about this charity excpt that it was shut down by the Treasury as a terrorist front group.

    I think FISA essentially boils down to a trust your government statute, which the left currently is unwillingly to do. They want methods and procedures exposed to embarrass Bush because congressional and judicial oversight is not sufficient. I cannot say the right would not demand the same given the abuses of the Clinton Administration that the left conveniently forgets, but those did not for th most part involve external threats to the country – excpt perhaps selling secrets to the Chinese.

    We still don’t know why the last and only Independent Counsel’s report on the Clinton Administration, the one relating to the politicization of the IRS and Justice Department, was suppressed by a gaggle of democrat senators.

    daleyrocks (1cc55d)

  270. the administration hasn’t made that [TSP is/was four-square within the FISA boundary] argument yet because it would require a constitutional confrontation between branches.

    .

    Not at all. An contention that an activity is within statutory boundaries can be shown by fitting the general description of the activity within the terms of the statute. There’s no need to look for legal authority outside of the statute to conduct that analysis.

    .

    But nowhere, not in the public White paper, not in briefs before courts, not in pressers, nowhere has the government asserted that “TSP is within the parameters of FISA.” The closest they come to that, and this argument sucks pond water, is that “FISA plus the AUMF constitutes statutory authority to conduct what we describe as the TSP.”

    .

    That’s not to say that the surveillance is “unconstitutional,” just that it’s not within the parameters of FISA.

    .

    They have used non-constitutional arguments so far to defend against the suits.

    .

    You are right, the government has used non-constitutional arguments so far. But it has also asserted that the president has inherent authority, which is essentially a constitutional argument. It uses the word “lawful” instead of “constitutional,” but a review of the details (see Senate Report, see White Paper) shows that the meaning of “lawful” is “outside of FISA, but inside of inherent powers.”

    .

    The current “arguments” are to change FISA and get the TSP-based suits dismissed from Court by a Congressional grant of retroactive immunity. Among other causes of action, a cause of action stating a violation of 50 USCG 1810, on surveillance alleged from 9/11/01 to 1/17/07, is to be dismissed.

    .

    FISA can’t amend Art. II.

    .

    And in the other direction, a statute supposedly can’t violate a constitutional limit on government power.

    cboldt (3d73dd)

  271. There are carve outs to the minimization and notification procedures if the information contained in the conversations represents foreign intelligence information, as defined. Again, we don’t know squat about this charity excpt that it was shut down by the Treasury as a terrorist front group.
    .

    The “carve out” is basically that warrantless activity is transmitted to FISC under seal, not to be opened unless the government later asks for a warrant. That is, even the warrantless regime has the government submitting something to FISC.
    .
    Al Haramain is a lousy plaintiff for those who want to show the government is snooping with inadequate suspicion.
    .

    I think FISA essentially boils down to a trust your government statute

    .

    Well, Judge Walker pretty much says the civil remedy is useless at tits on a bull hog, so yeah, it’s pretty much “trust your government.” See COINTELPRO and assorted other programs where the government keeps a watchful eye on its subjects, for their own protection of course. Anybody who thinks laws can tamp down snooping activity is naive.

    cboldt (3d73dd)

  272. Oh, and as to “carve outs in minimization if the acquisition represents foreign intelligence information — EVERYTHING in FISA MUST be based on foreign intelligence information. A significant purpose of the surveillance MUST be to acquire foreign intelligence information, or else the surveillance is outside of FISA, and either in the criminal (Title III) realm of surveillance, or rogue.

    cboldt (3d73dd)

  273. “jharp — Bush isn’t a lawyer and his comment was overbroad.”

    No. He lied. He said nothing has changed. Wiretaps require warrants and we are following the law.

    He wasn’t. It was a lie.

    And you do not have to be lawyer to see that for the blatant lie that it is.

    Oh , no. It wasn’t Bush’s fault. He’s not a lawyer.

    Good God, what has become of the republican party?

    Excuses, excuses, and more excuses. But never King George’s fault.

    jharp (00ec6a)

  274. “I for one, would not like it if our government allowed foreign governments to spy on me.”

    And just exactly what would you prefer the government to do if this WERE the case?

    Not allow a foreign government to spy on me without judicial oversight. You know, follow the law.

    Clear?

    jharp (00ec6a)

  275. Just who are these hostile powers?

    I’d start with the ones chanting “Death to America!” on international TV, and work our way from there…

    I don’t think chanting death to America in a foreign country is even a crime. Any more than a toothless redneck GOPer advocating nuking the middle east is here.

    Really just who are these hostile powers?

    And just what do you mean by “powers”?

    jharp (00ec6a)

  276. You know, follow the law.

    Follow WHOSE law, moron? The law here in the United States doesn’t have any jurisdiction outside the borders of the United States. (Just ask that Seattle kid who got caned for vandalism in Singapore. Their rules, their party, and not a hint of the Eighth Amendment to be found.)

    Still wondering why you think that the intel teams listening in on a cell phone call from Riyadh to Damascus have to apply for warrants…

    Really just who are these hostile powers?

    Really, I’d start with the guys chanting “Death to America” on international TV. (Pleasepleaseplease deny this is happening.)

    When people are publicly wishing you dead, wouldn’t you call that kind of behavior “hostile”?

    Drumwaster (5ccf59)

  277. Still wondering why you think that the intel teams listening in on a cell phone call from Riyadh to Damascus have to apply for warrants
    .
    I’m still wondering how the administration gets off for asserting the courts ordered warrants for foreign-foreign acquisition.
    .
    Nothing in FISA requires it. Every FISA limitation involves acquisition of a communication of a person located in the US.

    cboldt (3d73dd)

  278. I don’t think chanting death to America in a foreign country is even a crime. Any more than a toothless redneck GOPer advocating nuking the middle east is here.

    Oh, so “not a crime” = “not hostile”? Talk about moving the fucking goalposts… I didn’t realize that even you could be this stupid.

    Fuck you and the ADA-compliant Guide Horse who rode you in. (Feel the love!)

    Drumwaster (5ccf59)

  279. You know, follow the law.

    Follow WHOSE law, moron?

    How about the law that applies in the country you are in.

    Kind of like I don’t think the U.S. should allow foreign governments to spy on our citizens.

    “When people are publicly wishing you dead, wouldn’t you call that kind of behavior “hostile”?”

    Yeah, I would. What do you propose we do about it. Arrest them even if no laws were broken? Just because George Bush says so. Nuke the entire country? Invade and occupy the country?

    jharp (00ec6a)

  280. “I’m still wondering how the administration gets off for asserting the courts ordered warrants for foreign-foreign acquisition.”

    c.boldt – That was because one of the FISA judges made the determination that since one of those foreign calls touched a U.S. switch in the process of being completed, even though it was a foreign to foreign call, it involved a U.S. person. It was a bullshit judicial call, but it gummed up the works.

    daleyrocks (d9ec17)

  281. That was because one of the FISA judges made the determination that since one of those foreign calls touched a U.S. switch in the process of being completed, even though it was a foreign to foreign call, it involved a U.S. person. It was a bullshit judicial call, but it gummed up the works.

    .

    The judges have used the better part of their discretion by keeping their mouths shut. It’s the administration who says “the courts ordered us to not acquire foreign-foreign communications absent a warrant, if the communication was acquired at a US switch.”

    .

    The fact of the matter is, the government wants to acquire TSP material (one side in the US, remember?), and at least in some (maybe most) cases, it uses US-based hardware for the acquisitions. As a “come-along bonus,” the government ALSO gets some foreign-foreign traffic.

    .

    The only thing the judge observed was that the TSP part (one side in the US, remember?) was in the 1801(f)(2) definition of “electronic surveillance,” and not within the ambit of 1802 warrantless.

    .

    Keeping in mind that the sole jurisdictional power of FISC is to issue warrants that comport with FISA, the judge concluded, “I have no way to fit your TSP warrant request into the limitations of FISA.”

    .

    The government could have said fine, we’ll just grab the foreign-foreign stuff, and if we get US-foreign by accident, we’ll just throw it away. But the government wasn’t to keep certain US-foreign material (TSP – one side in the US, remember?).

    .

    The administration saying “a judge required warrants for foreign-foreign acquisition” is a bullshit accusation when it doesn’t explain the context.

    cboldt (3d73dd)

  282. IOW, FISA is SILENT on the subject of foreign-foreign communications. No warrant is required for acquiring foreign-foreign communications, period. No judge would EVER demand to issue a warrant for foreign-foreign communications.
    .
    Check out 1802(f)(2), the clause that supposedly sets up a requirement to obtain a warrant for foreign-foreign communications, if the communications are acquired in the US:

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

    cboldt (3d73dd)

  283. c.boldt – Which instance are you talking about above with the quotes?

    daleyrocks (d9ec17)

  284. Which instance are you talking about above with the quotes?
    .
    I’m paraphrasing the April-June 2007 arguments by the administration, where it cast the FISC as making dumb-ass rulings that resulted in requiring a warrant for foreign-foreign communications. You repeated the accusation. “one of the FISA judges made the determination that since one of those foreign calls touched a U.S. switch in the process of being completed, even though it was a foreign to foreign call, it involved a U.S. person [and therefore necessitated a warrant]. It was a bullshit judicial call.”
    .
    If you like, I can retrieve examples of statements from administration officials in the relevant timeframe, with links so you can verify for yourself.
    .
    But as a matter of simple legal construction, the function of FISC is to issue warrants, and everything in FISA has two components – “foreign intelligence information” and “at least one party in the US.” If one of those is absent, FISC is out of the picture.

    cboldt (3d73dd)

  285. Here’s one:

    MR. SNOW: It’s not a new power. What happened is that the way the law was written, if you ended up having a foreign-to-foreign conversation that ended up traveling over a fiber-optic line in the United States, you’d have to go seek a warrant for it.
    .
    Press Briefing by Tony Snow – August 8, 2007

    .

    So, show me in the FISA law, where it requires a warrant for the acquisition of foreign-foreign communications. You can’t. It’s not there. Section 1801(f) lists ALL of the activities that constitute “electronic surveillance,” and all of them involve acquiring communications of a person in the US.

    cboldt (3d73dd)

  286. c.boldt – Thanks. I still disagree, but may not have the time to dig in today.

    I like the following piece by A.J. Strata for a history of the controversy.

    http://strata-sphere.+++/blog/index.php/archives/5239

    Substitute com for the three plus signs in the link.

    daleyrocks (d9ec17)

  287. “So, show me in the FISA law, where it requires a warrant for the acquisition of foreign-foreign communications.”

    c.boldt – I’m not arguing that point as I made clear above. I agree with you. I disagree with your analysis of the administation’s position and the judge who said you had to get a warrant.

    I posted a link that may not come through in another comment you have probably already seen if you read A.J. Strata.

    I may not have time to dig in today.

    daleyrocks (d9ec17)

  288. Strata from 9/11/07:

    Many of us have been trying to explain to the brain dead media that the NSA doesn’t target US citizens or domestic communications without a warrant from the FISA court. Never has and never did. So here is the administration telling the death, dumb and blind left one more time:

    “Regardless of the type of communication being surveilled or the location where the surveillance takes place — FISA does not apply when the surveillance is targeting persons outside the United States,” Wainstein told a symposium at Georgetown University. “It does apply — and we have to get a court order — when the communications are domestic or when we target someone in the U.S.

    The situation was always what to do when targetting a known terrorist and all of a sudden they contact someone here in the US – like what happened prior to 9-11 when we intercepted calls by 9-11 terrorists Atta, Shehhi and Hazmi. At that time the policy was to destroy the names and locations of those people in the US before passing on the intel. In a world where terrorists are trying to enter our country in order to kill us by the thousands, this kind of ignorance is not bliss. It is suicidal.

    What changed after 9-11 was the FBI is now informed about who in the US is in contact with known NSA targets being monitored. The FBI now investigates and can use the NSA lead to gain a FISA warrant if it looks like the people in the US are indeed terrorists. Prior to 9-11 no NSA data could be used to gain a FISA warrant. And in fact, no FBI data obtained from an NSA lead could be used. That is how idiotic the law was, and how idiotic the people are who want us to go back to the days when terrorists, once they entered the US, where free to contact their masters overseas without worry.

    daleyrocks (d9ec17)

  289. “So, show me in the FISA law, where it requires a warrant for the acquisition of foreign-foreign communications.”

    .

    I’m not arguing that point as I made clear above.

    .

    Make the point again. Are you saying it’s true that a judge required a warrant for foreign-foreign communication? I.e., the government comes in and says “Hey, we plan to get foreign-foreign communications off a switch in the US” and the judge said “No, sorry, you can’t acquire foreign-foreign communications off a US switch unless you file and I approve your request for a warrant.”

    .

    That makes as much sense as going to a US judge and asking for a warrant to conduct surveillance in Russia. Of course the judge will say “no.” But that doesn’t make it a BS ruling, it’s a BS request in the first place.

    cboldt (3d73dd)

  290. Strata from 9/11/07 [snippage]
    .
    I don’t see anything in there about foreign-foreign. Are we having two different conversations at the same time? Or did you just change the subject?
    .
    I thought you were arguing against my “I’m still wondering how the administration gets off for asserting the courts ordered warrants for foreign-foreign acquisition.”

    cboldt (3d73dd)

  291. c.boldt – I started with my question about communications between the charity and a foreign terrorist target of surveillance. My assertion was that we need no warrant to vacuum any and all communications to or from that target. You seem to be in agreement with that assertion. What we subsequently do with them in the case of U.S. persons is another question.

    The following is excerpted from the 8/11/07 N.Y. Times, which describes the situation I characterized as bullshit:

    “With the chatter up in August,” Ms. Harman said, “the issue of FISA reform got traction. Then they ran out the clock.”

    A White House official said the push was driven by genuine concerns by Mike McConnell, director of national intelligence, for the government’s ability to conduct terrorist surveillance.

    “There was no real argument on the need for a fix” between Democrats and Republicans, the White House official said. “He’s a straight shooter.”

    The prelude to approval of the plan occurred in January, when the administration agreed to put the wiretapping program under the oversight of the Foreign Intelligence Surveillance Court. The court is charged with guarding against governmental spying abuses. Officials say one judge issued a ruling in January that allowed the administration to continue the program under the court’s supervision.

    A ruling a month or two later — the judge who made it and its exact timing are not clear — restricted the government’s ability to intercept foreign-to-foreign communications passing through telecommunication “switches” on American soil.

    The security agency was newly required to seek warrants to monitor at least some of those phone calls and e-mail messages. As a result, the ability to intercept foreign-based communications “kept getting ratcheted down,” said a senior intelligence official who insisted on anonymity because the account involved classified material. “ We were to a point where we were not effectively operating.”

    Mr. McConnell, lead negotiator for the administration in lobbying for the bill, said in an interview that the court’s restrictions had made his job much more difficult.

    “It was crazy, because I’m sitting here signing out warrants on known Al Qaeda operatives that are killing Americans, doing foreign communications,” he said. “And the only reason I’m signing that warrant is because it touches the U.S. communications infrastructure. That’s what we fixed.”

    In April, Mr. McConnell began talking with lawmakers in classified meetings about that “intelligence gap” and alluded to it publicly, too. At the time, the administration proposed sweeping measures to “modernize” the foreign surveillance law, a much broader proposal in some respects than what Congress approved.”

    So yeah, I think we’re crossing wires so to speak somewhere.

    daleyrocks (d9ec17)

  292. I started with my question about communications between the charity and a foreign terrorist target of surveillance. My assertion was that we need no warrant to vacuum any and all communications to or from that target. You seem to be in agreement with that assertion.
    .
    Go back and reread my comments. As to al Haramain, my conclusion was “the snoop was outside of FISA (ergo they do have a FISA claim), and we don’t know if the snoop was inside of Article II powers.” I further stated that I thought al Haramain was a bad poster child for objection to FISA, because al Haramain seems to be the sort of operation that the government might well have reasonable cause to suspect as carrying foreign intelligence information.
    .
    The following is excerpted from the 8/11/07 N.Y. Times [snippage]
    .
    You can find the same sort of stuff in WaPo and other papers, and I cited a statement by Tony Snow to the same effect.
    .

    “the judge who made it and its exact timing are not clear — restricted the government’s ability to intercept foreign-to-foreign communications passing through telecommunication “switches” on American soil.”

    .
    My point is that this “restriction” doesn’t and can’t happen as a stand alone. FISA has no prohibition or requirement to even look at a judge, if the function is acquisition of foreign-foreign communications, no matter where they are acquired. Whatever the judge said “no” to had to be a request to acquire more than just foreign to foreign.
    .
    And I think the only possible deduction is that the government sought to acquire communications from a US switch, some of which was US-foreign, some of which was foreign-foreign, and the judge said “you need a warrant for the US-foreign stuff off a US-switch, see 1801(f)(2). So the government cherry picked the language in its request, and reported to the dumb-ass media “a judge said we need a warrant for foreign-foreign.”
    .
    Because if the government had said, “We want a warrant to get foreign-foreign from a US switch”, the judge would have said, “Go ahead, that’s none of my business.”
    .
    Like I said, the FISC judges have done an admirable job of holding their tongues. I guarantee you 100% of them knows there is no need for a US judge to have any involvement whatsoever in acquisition of foreign-foreign communications, yet the administration is asserting that at least one of them is that big of a dumb ass.
    .
    If you want to persist in thinking a judge viewed a description of surveillance aimed ONLY at foreign-foreign crossing a US switch, and insisted on issuing warrants for same, then we’ll just leave it as a disagreement between you and I.

    cboldt (3d73dd)

  293. c.boldy – We’re still talking at cross purposes, but getting closer.

    My reference to the foreign terrorist target and charity was a hypothetical. I agree with you that the al Haramain is a bad example on which to test theory because there could be probable cause.

    I think we’re going to have to disagree on the rest. I think Royce Lamberth had very questionable performance and ideas on the FISA Court. I think it is entirely possible that the ruling discussed by Tony Snow in your excerpt and by the Mike McConnell in mine came about as a result of putting the entire program inder the auspices of the FISA Court in January as opposed to your theory.

    I’ve enjoyed the discussion.

    daleyrocks (d9ec17)

  294. Go back and reread my comments. As to al Haramain, my conclusion was “the snoop was outside of FISA (ergo they do have a FISA claim), and we don’t know if the snoop was inside of Article II powers.”

    .
    I went back and re-read them myself – my conclusion was “we don’t know if the snoop was in or out of FISA.”
    .
    My assertion was that we need no warrant to vacuum any and all communications to or from that target. You seem to be in agreement with that assertion.
    .

    IF the snoop was conducted within the scope of FISA, then there was a warrant, because 1) the snoopee was located in the US (ergo, it is electronic surveillance) and 2) the acquired communications was not transmitted by means of communications used exclusively between or among foreign powers, nor was the communications from property or premises under the open and exclusive control of a foreign power. [“foreign power” as defined in section 1801(a)(1), (2), or (3)] (ergo, the acquisition is not in the warrantless 1802 regime).

    .

    If the snoop was warrantless, it may still be kosher as a legitimate exercise of Article II power, but litigating that would be messy. And even if the snoop -IS- withing Article II power, that doesn’t dispose of the 1810 remedy, which attaches on a statutory violation.

    .

    I did not express a conclusion that the snoop was kosher (i.e., snooper had probable cause to believe the acquisition would be foreign intelligence information) without a warrant – although it darn well could have been. See Truong for how things worked pre-FISA (some evidence precluded, other evidence admitted). The FISA statute can’t take away the power of the government to warrantless snoop for foreign intelligence purposes, period. All it can do is limit the use in criminal prosecutions. As for a warrantless snoop being a violation of the 4th amendment, the inquiry becomes one layer removed and probes the question, “how did the government get its suspicion that there was a passing of foreign intelligence information” in the first place?

    cboldt (3d73dd)

  295. I think it is entirely possible that the ruling discussed by Tony Snow in your excerpt and by the Mike McConnell in mine came about as a result of putting the entire program inder the auspices of the FISA Court in January as opposed to your theory.

    .

    As opposed to my theory? Heck, my theory supposes (assumes, depends on) the issue came up directly as a result of trying to shoehorn the TSP (warrantless part and all) into FISA. But TSP doesn’t fit under FISA.

    .

    IOW, my theory takes as given that the ruling discussed by Tony Snow in my excerpt and by Mike McConnell in yours came about as a result of putting the entire program under the auspices of the FISA Court.

    .

    I just dug into how could it be, that foreign-foreign was somehow cut-off, because saying that a judge said there was a need for a warrant for foreign-foreign acquisition is nonsense. There has to be more to the story than some FISC judge is such a big dumb ass that he would insist on being involved and protecting the rights of people involved in foreign-foreign communications.

    .

    My speculation, that US-foreign material was part and parcel of the request, fits perfectly with the announced plan to “put TSP under FISC.” The problem is, TSP (one side in US, remember?) can’t fit under FISA when the acquisition takes place in the US. See 1801(f)(2). Was foreign-foreign traffic also available there? Yes. Did a judge say a warrant was needed to get the foreign-foreign? He can’t – that call is outside of his jurisdiction, see the statute.

    cboldt (3d73dd)

  296. I think Royce Lamberth had very questionable performance and ideas on the FISA Court.
    .
    That could well be, but to the extent his judgement was “off,” it’s more likely to have been an issue in the bridge between “foreign intelligence” and “criminal prosecution,” or in the exact measures necessary to accomplish minimization.

    .

    But the “warrant or not” requirement is a very easy and direct call. The real mystery is how the dickens did the administration structure an argument that acquiring US-foreign communications (TSP), for a US-based switch, was somehow NOT “electronic surveillance” as described in 1801(f)(2), or, in the alternative, was in the ambit of 1802 (warrantless permitted under FISA) as using facilities entirely under the control of foreign powers, as defined in section 1801 (a)(1), (2), or (3).

    .

    FWIW, another judge who gave the administration a hard time was Judge Colleen Kollar-Kotelly. She didn’t want TSP-tainted cases being legitimized by later submission to FISC. See Secret Court’s Judges Were Warned About NSA Spy Data (WaPo) February 9, 2006.

    cboldt (3d73dd)

  297. The real mystery is how the dickens did the administration structure an argument …. [to shoehorn TSP into FISA]
    .

    Just to offer a more plausible explanation, compared with the black and white “warrant” “no warrant” being the only options, I think the conflict between the administration and FISC was actually, “what kind of warrant,” or “how many warrants.”
    .
    The government likely offered, and FISC initially accepted, a broad or blanket warrant request that resembled TSP activity.
    .
    That shifts the difference of opinion into sections 1804 and 1805. Even here, the analysis easily reaches the conclusion that one warrant can’t fit what the administration had been enjoying as “easy access to the flow of international communications without reporting to the Court.”
    .
    I think it’s better for the public in the long run, that Courts don’t “make up the law” to suit an administration’s fancy – and TSP really doesn’t fit into FISA.
    .
    Tangential case was Aldrich Ames. Clinton wanted a FISA warrant to enter Ames’ house and bug it, but FISA at the time had no language for warrants for physical entry for foreign intelligence gathering. So, FISC said, “we can’t help, your request is outside of our power, which flows from the statute.” Clinton entered anyway. The outcome is history, and Ames never litigated whether or not the entry was a legitimate exercise of inherent Article II power (it was).
    .
    So, if GWB says “make up some interpretation of the statute so I can grab all of these communications with a one-shot warrant,” I think it better for FISC to view the statute, and employ intellectual honesty before rendering an answer.

    cboldt (3d73dd)

  298. The FISA statute can’t take away the power of the government to warrantless snoop for foreign intelligence purposes, period. All it can do is limit the use in criminal prosecutions.
    .
    The first part of that is correct, but the second part isn’t. The limit to use in a criminal prosecution is driven mostly by the 4th amendment, not by a statute. And the FISA statute has other possible functions, e.g., provide a statutory cause of action and criminal penalties.
    .
    Just the same, I’m not sure FISA is a smart concept. Seeing as how the government is (and should be) free to snoop to the limit of Article II power, regardless of illusory statutory limitations, it seems FISA is an unnecessary complication. It creates potential conflicts (FISA v Article II, FISA v 4th Amendment) that would not exist, but for FISA.

    cboldt (3d73dd)

  299. “Even here, the analysis easily reaches the conclusion that one warrant can’t fit what the administration had been enjoying as “easy access to the flow of international communications without reporting to the Court.”

    cboldt – Where are you deriving your lack of administration reporting to the court that you’ve now referenced a couple of times?

    daleyrocks (1cc55d)

  300. Where are you deriving your lack of administration reporting to the court that you’ve now referenced a couple of times?
    .

    I’m not sure what you’re driving at, ultimately. That the TSP was within the ambit of FISA because the administration was reporting TSP activity to FISC?
    .
    I reach the conclusion that TSP was conducted without reporting to FISC from several data points.
    .
    The administration describes the parameters of the TSP as surveillance of terrorists, without a warrant. That definition does not comport with any clause of FISA. The only part of FISA that defines the warrantless conduct of electronic surveillance is 1802. [1822 does the same for physical entry; Subchapter III of Chapter 36 of Title 50 covers PRTT activity (always involves a court)]
    .
    Warrantless surveillance of terrorists is outside of the 1802 warrantless regime set up under FISA for failure to meet two elements. First, the “foreign powers” for purposes of 1802 consists of 1801(a)(1-3) (again, this is by statute, not by con-law). A “foreign power” of 1801(a)(4) [which has NO overlap with 1801(a)(1-3)] is “a group engaged in international terrorism or activities in preparation therefor.”
    .
    A second element, necessary to fit within the ambit of warrantless 1802, is that the acquired communications must either be transmitted by means of communications used exclusively between or among foreign powers [1801(a)(1-3)], or from property or premises under the open and exclusive control of a foreign power [1801(a)(1-3)].
    .
    So, one data point is that TSP doesn’t fit the FISA framework. Flowing from that, any mandatory 1802(a)(3) certification describing warrantless surveillance of terrorists would indicate operating outside of the statute rather than following it.
    .
    A data point related to the above comes from the WaPo article I linked to above. That article reported FISC Judge Colleen Kollar-Kotelly didn’t want TSP-tainted case to appear in FISC. “Both judges [Lambert and Kollar-Kotelly] had insisted that no information obtained this way [warrantless monitoring of phone calls and e-mails ordered by President Bush] be used to gain warrants from their court.” One function of the sealed certification of warrantless surveillance of 1802(a)(3) is to serve as a potential basis for a statutorily-firm FISC warrant.
    .
    Now, that article also shows awareness of the TSP on the part of at least those two judges – there would no way for them to object, unless they were aware. The administration also asserts that Congress was aware, because it told a few members of its TSP activity. Unlike the FISC, a majority of Congress approves of the president not following FISA.
    .
    Yet another data point comes from studying the collection of administration statements following the December 2005 news report of warrantless surveillance, through August 2007. Press Briefing by Tony Snow (January 17, 2007) is a good example, where Mr. Snow is talking about the January 2007 DOJ decision to put the TSP before FISC for the first time.
    .
    If the administration had been submitting material to a court, even under seal, one would think THAT activity would have been trumpeted, because it would mollify critics. Sure, they’d complain the contact wasn’t “approval,” but the WH could come back as say, “we’re so confident that our actions will withstand judicial scrutiny, that we’ve submitted sufficiently particular descriptions to a court, under seal.” But as noted above, the administration studiously AVOIDED presenting a Court with cases that had contact with its TSP activity. The FISA Court wanted nothing to do with the TSP, because the activity was outside of the FISA statutory boundaries, and FISC is in the business of applying the FISA statute.
    .
    Finally, the term “warrantless” itself implies a certain lack of contact with a court.

    cboldt (3d73dd)

  301. Let me cut to the quick. This was a 9th circuit judge who ruled. That in and of itself ought to disqualify that opinion, and will be in the Supreme Court, as usual.

    PCD (520e75)

  302. A couple more data points – so soon after hitting “Submit Comment” too!
    .
    The administration touted the need for “speed and agility,” and suggested that waiting for a court, or interacting with a court, resulted in a “speed and agility” deficiency that was dangerous – unable to detect terrorists and prevent terrorist mayhem.
    .
    President Bush described the TSP as operating under his personal approval and initiation, with surveillance conducted by the NSA, having DOJ directing the NSA with periodic reissue of surveillance orders, and DOJ testing of “reasonableness” of the search orders. Again, no mention of engaging a court – and such mention would have defused much, if not all of the criticism.

    cboldt (3d73dd)

  303. Let me cut to the quick. This was a 9th circuit judge who ruled. That in and of itself ought to disqualify that opinion, and will be in the Supreme Court, as usual.
    .

    Well, I have to say, your approach is sure faster than reading. More entertaining too – as a joke that is.

    .

    Bet you a year’s pay that plaintiff continues to lose, in the 9th Circuit, and that if he appeals his loss to SCOTUS, SCOTUS will deny cert., or affirm the decision of the 9th Circuit.

    cboldt (3d73dd)

  304. Make the bet for Scalia, Thomas, Alito and Roberts to unanimously affirm and the amount $100 and you’re on.

    boris (ecab60)

  305. cboldt – Where I begin to have problems with people analyzing the TSP is when guesswork comes into the equation, such as your #300, because of how little we actually know. We may feel we are making informed speculations based on press releases, interviews, and whatever, but when you get right down to it, we don’t know.

    Prior to 9/11, the FISA court did not want NSA derived intelligence to be shared and used as the basis for domestic wiretapping warrants. I believe that is common knowledge and would be happy to provide backup if you disagree.

    After 9/11, Bush mandated that the NSA share its intelligence with other law enforcement agencies and initially overwhelmed the FBI with the volume of its leads. Mike Hayden has spoken publicly about that process. I also have trouble reading the current minimization rules the way you interpret them.

    Since we are in agreement that purely foreign sourced intelligence should not require a warrant, the speed issue you have rightly flagged most probably does involve a U.S. issue or U.S. person, although again, we are entering the realm of guesswork. I believe the government convincingly made a case that 72 hours is not enough flexibility for documenting a warrant after the fact under the existing rules.

    Unlike some others who blog on the topic, I don’t pretend to have a large enough ego to have thought through all the possible activities or angles the government may have engaged in here to make either a statutory or constitutional argument that it has engaged in illegal activity
    without more information. I think that is serious gun jumping.

    daleyrocks (1cc55d)

  306. Where I begin to have problems with people analyzing the TSP is when guesswork comes into the equation, such as your #300, because of how little we actually know.

    .

    I’m using the administration’s definition of TSP; one end in the US, one end out of the US, one party suspected terrorist, no warrant. If that’s guesswork, fine. But it’s possible to logically analyze the administration’s own description of the program against the FISA framework.

    .

    Not that some people don’t cling to the possibility that TSP is within the FISA boundary, some do. I dismiss them as uninformed, cranks, or unable (or unwilling) to follow a fairly simple logical analysis. The TSP is not within the ambit of FISA. Not even the administration argues that TSP is within the ambit of FISA, it never made that argument, other than to argue the AUMF is statutory authority to undertake long-term deviations from the routine FISA regime.

    .

    Prior to 9/11, the FISA court did not want NSA derived intelligence to be shared and used as the basis for domestic wiretapping warrants.

    .

    As a blanket assertion, that’s false. See Jabara case, and many other instances of NSA-initiated surveillance maturing into criminal prosecutions. What was an issue (and still is) is “how much” or “how little” foreign intelligence suspicion can be used to support criminal suspicion. See “a significant purpose” vs. “the purpose”

    .

    I don’t pretend to have a large enough ego to have thought through all the possible activities or angles the government may have engaged in here to make either a statutory or constitutional argument that it has engaged in illegal activity without more information.

    .

    I’m sure I haven’t thought through all the angles either. But I’ve consistently held (since December 2005 to the present) that the TSP (as described by the administration) is in violation of FISA, but we don’t know enough to conclude whether or not TSP is/was constitutional. I didn’t leap to that conclusion – I got there via the application of logic and analysis.

    cboldt (3d73dd)

  307. Does that make him worthy of impeachment?

    Less so that the internment of Japanese-Americans made FDR worthy of impeachment.

    Michael Ejercito (a757fd)

  308. With a legal wiretap on a local crime boss the FBI can monitor a call to an out of state hitman, alias Lefty Icepick, without also having a warrant on Lefty. Surveillance of all communication by a terrorist outside the country should have the same access no matter where the other party is located. Clearly no US judge has jurisdiction to issue a warrant for surveillance of the terrorist so the options for an administration are:

    Grant the foreign terrorist’s communications more protection than a US crime boss.

    Interpret FISA, or the FISA Court of Review sealed case, or constitutional authority, or AUMF, or tacit cooperation of Congress to allow access to all communication of a terrorist outside the country regardless of where the other party is located.

    I consider the first option unworkable. So would the FBI if they had to have warrants for both the crime boss and Lefty before accessing a wiretap.

    boris (ecab60)

  309. For technical reasons requiring a warrant for all TSP may preclude or impede foreign to foreign (F2F) surveillance on US “switches”. Thus it is possible that the judge did not specifically prohibit F2F and the administraion’s claim is effectively accurate.

    boris (ecab60)

  310. Here’s a portion of Mike Hayden’s speech to the National Press Club on January 23, 2006.

    cboldt – The issue of using NSA derived information as a basis for domestic wiretapping warrants is a question of how much so I question your characterization of my statement as false.
    If the FISA Court wanted to limit the NSA content in a warrant application, as you seem to acknowledge, calling my assertion false is a contradiction.

    Look, let me talk for a minute about this, okay? Because a big gap in the current understanding, a big gap in the current debate is what’s standard? What is it that NSA does routinely? Where we set the threshold, for example, for what constitutes inherent foreign intelligence value? That’s what we’re directed to collect. That’s what we’re required to limit ourselves to — inherent foreign intelligence value. Where we set that threshold, for example, in reports involving a U.S. person shapes how we do our job, shapes how we collect, shapes how we report. The American SIGINT system, in the normal course of foreign intelligence activities, inevitably captures this kind of information, information to, from or about what we call a U.S. person. And by the way, “U.S. person” routinely includes anyone in the United States, citizen or not.

    So, for example, because they were in the United States — and we did not know anything more — Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA prior to 9/11.

    Inherent foreign intelligence value is one of the metrics we must use. Let me repeat that: Inherent foreign intelligence value is one of the metrics we must use to ensure that we conform to the Fourth Amendment’s reasonable standard when it comes to protecting the privacy of these kinds of people. If the U.S. person information isn’t relevant, the data is suppressed. It’s a technical term we use; we call it “minimized.” The individual is not even mentioned. Or if he or she is, he or she is referred to as “U.S. Person Number One” or “U.S. Person Number Two.” Now, inherent intelligence value. If the U.S. person is actually the named terrorist, well, that could be a different matter. The standard by which we decided that, the standard of what was relevant and valuable, and therefore, what was reasonable, would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field. And we acted accordingly.

    To somewhat oversimplify this, this question of inherent intelligence value, just by way of illustration, to just use an example, we all had a different view of Zacarias Moussaoui’s computer hard drive after the attacks than we did before.

    Look, this is not unlike things that happened in other areas. Prior to September 11th, airline passengers were screened in one way. After September 11th, we changed how we screen passengers. In the same way, okay, although prior to September 11th certain communications weren’t considered valuable intelligence, it became immediately clear after September 11th that intercepting and reporting these same communications were in fact critical to defending the homeland. Now let me make this point. These decisions were easily within my authorities as the director of NSA under and executive order; known as Executive Order 12333, that was signed in 1981, an executive order that has governed NSA for nearly a quarter century.

    Now, let me summarize. In the days after 9/11, NSA was using its authorities and its judgment to appropriately respond to the most catastrophic attack on the homeland in the history of the nation. That shouldn’t be a headline, but as near as I can tell, these actions on my part have created some of the noise in recent press coverage. Let me be clear on this point — except that they involved NSA, these programs were not related — these programs were not related — to the authorization that the president has recently spoken about. Back then, September 2001, I asked to update the Congress on what NSA had been doing, and I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities.

    Now, as another part of our adjustment, we also turned on the spigot of NSA reporting to FBI in, frankly, an unprecedented way. We found that we were giving them too much data in too raw form. We recognized it almost immediately, a question of weeks, and we made all of the appropriate adjustments. Now, this flow of data to the FBI has also become part of the current background noise, and despite reports in the press of thousands of tips a month, our reporting has not even approached that kind of pace. You know, I actually find this a little odd. After all the findings of the 9/11 commission and other bodies about the failure to share intelligence, I’m up here feeling like I have to explain pushing data to those who might be able to use it. And of course, it’s the nature of intelligence that many tips lead nowhere, but you have to go down some blind alleys to find the tips that pay off.

    Now, beyond the authorities that I exercised under the standing executive order, as the war on terror has moved forward, we have aggressively used FISA warrants. The act and the court have provided us with important tools, and we make full use of them. Published numbers show us using the court at record rates, and the results have been outstanding. But the revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1978. And I don’t think that anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9/11 or to deal with a lethal enemy who likely already had combatants inside the United States.

    I testified in open session to the House Intel Committee in April of the year 2000. At the time, I created some looks of disbelief when I said that if Osama bin Laden crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him protections and affect how NSA could now cover him. At the time, I was just using this as some of sort of stark hypothetical; 17 months later, this is about life and death.

    So now, we come to one additional piece of NSA authorities. These are the activities whose existence the president confirmed several weeks ago. That authorization was based on an intelligence community assessment of a serious and continuing threat to the homeland. The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.

    Now, you’re looking at me up here, and I’m in a military uniform, and frankly, there’s a certain sense of sufficiency here — authorized by the president, duly ordered, its lawfulness attested to by the attorney general and its content briefed to the congressional leadership.

    But we all have personal responsibility, and in the end, NSA would have to implement this, and every operational decision the agency makes is made with the full involvement of its legal office. NSA professional career lawyers — and the agency has a bunch of them — have a well-deserved reputation. They’re good, they know the law, and they don’t let the agency take many close pitches.

    And so even though I knew the program had been reviewed by the White House and by DOJ, by the Department of Justice, I asked the three most senior and experienced lawyers in NSA: Our enemy in the global war on terrorism doesn’t divide the United States from the rest of the world, the global telecommunications system doesn’t make that distinction either, our laws do and should; how did these activities square with these facts?

    They reported back to me. They supported the lawfulness of this program. Supported, not acquiesced. This was very important to me. A veteran NSA lawyer, one of the three I asked, told me that a correspondent had suggested to him recently that all of the lawyers connected with this program have been very careful from the outset because they knew there would be a day of reckoning. The NSA lawyer replied to him that that had not been the case. NSA had been so careful, he said — and I’m using his words now here — NSA had been so careful because in this very focused, limited program, NSA had to ensure that it dealt with privacy interests in an appropriate manner.

    In other words, our lawyers weren’t careful out of fear; they were careful out of a heartfelt, principled view that NSA operations had to e consistent with bedrock legal protections.

    In early October 2001, I gathered key members of the NSA workforce in our conference room and I introduced our new operational authority to them. With the historic culture of NSA being what it was and is, I had to do this personally. I told them what we were going to do and why. I also told them that we were going to carry out this program and not go one step further. NSA’s legal and operational leadership then went into the details of this new task.

    You know, the 9/11 commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are no communications more important to the safety of this country than those affiliated with al Qaeda with one end in the United States. The president’s authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.

    The purpose of all this is not to collect reams of intelligence, but to detect and prevent attacks. The intelligence community has neither the time, the resources nor the legal authority to read communications that aren’t likely to protect us, and NSA has no interest in doing so. These are communications that we have reason to believe are al Qaeda communications, a judgment made by American intelligence professionals, not folks like me or political appointees, a judgment made by the American intelligence professionals most trained to understand al Qaeda tactics, al Qaeda communications and al Qaeda aims.

    Their work is actively overseen by the most intense oversight regime in the history of the National Security Agency. The agency’s conduct of this program is thoroughly reviewed by the NSA’s general counsel and inspector general. The program has also been reviewed by the Department of Justice for compliance with the president’s authorization. Oversight also includes an aggressive training program to ensure that all activities are consistent with the letter and the intent of the authorization and with the preservation of civil liberties.

    Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about.

    This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. We bring to bear all the technology we can to ensure that this is so. And if there were ever an anomaly, and we discovered that there had been an inadvertent intercept of a domestic-to-domestic call, that intercept would be destroyed and not reported. But the incident, what we call inadvertent collection, would be recorded and reported. But that’s a normal NSA procedure. It’s been our procedure for the last quarter century. And as always, as we always do when dealing with U.S. person information, as I said earlier, U.S. identities are expunged when they’re not essential to understanding the intelligence value of any report. Again, that’s a normal NSA procedure.

    So let me make this clear. When you’re talking to your daughter at state college, this program cannot intercept your conversations. And when she takes a semester abroad to complete her Arabic studies, this program will not intercept your communications.

    Let me emphasize one more thing that this program is not — and, look, I know how hard it is to write a headline that’s accurate and short and grabbing. But we really should shoot for all three — accurate, short and grabbing. I don’t think domestic spying makes it. One end of any call targeted under this program is always outside the United States. I’ve flown a lot in this country, and I’ve taken literally hundreds of domestic flights. I have never boarded a domestic flight in the United States of America and landed in Waziristan. In the same way — and I’m speaking illustratively here now, this is just an example — if NSA had intercepted al Qaeda Ops Chief Khalid Shaikh Mohammed in Karachi talking to Mohamed Atta in Laurel, Maryland, in say, July of 2001 — if NSA had done that, and the results had been made public, I’m convinced that the crawler on all the 7 by 24 news networks would not have been “NSA domestic spying.”

    Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such.

    daleyrocks (1cc55d)

  311. I also have trouble reading the current minimization rules the way you interpret them.
    .

    The short answer is that they listen in and “minimize” the record of that contact. Same idea as when a criminal is wiretapped, and he calls the pizza joint to order a large pepperoni. The pizza joint isn’t put under surveillance as a result of the contact (although it may be under suspicion for totally independent reasons), etc.

    .

    I suspect we don’t have any disagreement as to the principle of “minimization.” The bottom line is an analysis of how the government reasonably develops suspicion, and then, once suspicion is established, what action follows.

    .

    Sometimes the wiretapped criminal will call a person who was not previously under suspicion, and simply as a result of the call, the authorities develop suspicion. I use the “call out for Chinese” as a quick example of a call that generally wouldn’t, on its own, cast suspicion toward the take-out joint. But anybody the target calls is potentially a suspect.

    .

    And there damn well ought to be a bias in extending suspicion when the target is a known or suspected terrorist.

    .

    Just a quick aside, I notice that the administration description of TSP is consistently stated in a way that tends to draw a conclusion that the “suspected terrorist” is the overseas part of the communication. But that limitation is never stated. IOW, the TSP may be warrantless surveillance of terrorist suspects in the US, when they engage in international communications. Anyway, no matter for the “minimization” discussion – just pointed out as “leap to conclusion” can work in favor of the administration, as well as work against it.

    .

    The question of minimization is what to do with conversations with people in the US, where there are NOT grounds to have suspicion. Separately, if the government IS suspicious of a person in the US, should the government seek to reinforce its position by obtaining agreement from a court, that the suspicion has a reasonable basis, not bootstrapped from an unconstitutional surveillance.

    cboldt (3d73dd)

  312. If the FISA Court wanted to limit the NSA content in a warrant application, as you seem to acknowledge, calling [the FISA court did not want NSA derived intelligence to be shared and used as the basis for domestic wiretapping warrants] false is a contradiction.

    .

    I see a vast difference between “wanted to limit” and “did not want intelligence to be shared.”

    .

    The whole point of FISA is to create a safe harbor for the export of foreign intelligence into criminal prosecutions.

    cboldt (3d73dd)

  313. Some history in the “I bet he wishes he hadn’t said that” department, April 12, 2000 statement by NSA Director Lt. Gen. Hayden to the House Permanent Select Committee on Intelligence:
    .

    The result today at NSA is an intelligence gathering system that operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and – – through the FISA — the judiciary. The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies.

    cboldt (3d73dd)

  314. “The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies.”

    cboldt – He’s talking about oversight and regulation in terms of the framework. Hindsight is a wonderful thing.

    daleyrocks (1cc55d)

  315. TSP may be warrantless surveillance of terrorist suspects in the US, when they engage in international communications.

    This would only be of interest if warrantless TSP where the terrorist is out of country were okay.

    Let the rule be thus: Under no circumstance should a foreign terrorist under surveillance have more protected communication than a domestic criminal under surveillance. Since we are not likely to have access to the details of whatever technology is used … make the assumption that the rule requires access to any and all international communication. In that case it makes no effective difference which side of the border the terrorist is on.

    I guess the point is one of priority. Should the protection of non terrorist internatinal communication take precedence over full access to foreign terrorist communication. IMO it’s not a close question. In general international communications involve parties under different legal systems so reasonable expectation of privacy based on the US constitution would not apply.

    boris (ecab60)

  316. He’s talking about oversight and regulation in terms of the framework.
    .
    Yes. He is.
    .
    And the policy decisions reflected in FISA, as to where to draw an oversight (vs. absence of oversight) boundary, are not trustworthy. They weren’t trustworthy in 1978, and they aren’t trustworthy now.

    cboldt (3d73dd)

  317. cboldt – My conflict come where Congress steps in and attempts to constrain something clearly belonging to the Executive, vis a vis, Article 2. You have laid out a pretty compelling case that is causing me to reconsider, though at this point, I just disagree, with reservations. If the asshats could argue like you, maybe we could listen to them, and consider their views.

    JD (a6d772)

  318. Good argument for letting the elected branches settle these kind of disputes at the ballot box. Too often judges are being used to insulate elected fubars from the consequences of bad politics. “It’s SO unfair to vote on AUMF when opposition would be political suicide!”

    boris (ecab60)

  319. When the country was angry and scared the congress was in no frame of mind to “attempt to constrain something clearly” intended to protect national security.

    boris (ecab60)

  320. My conflict come where Congress steps in and attempts to constrain something clearly belonging to the Executive, vis a vis, Article 2.

    .

    I don’t think it’s possible to craft a statute that tracks exactly the same lines that the constitution draws.

    .

    The differences cut both ways, against the executive, and against the public. The public (as reflected in Congress, polls, and election results) seems to prefer being in an unchecked surveillance state, so that’s what we’ll get. We have legally-enforceable privacy as against everybody EXCEPT the government.

    .

    I very much appreciate and thank you for your compliments about my presentation.

    cboldt (3d73dd)

  321. I don’t think it’s possible to craft a statute that tracks exactly the same lines that the constitution draws.

    Why would this even be necessary? If it tracks exactly with what the COTUS says, isn’t that redundant? And (almost certainly) needlessly verbose?

    Drumwaster (5ccf59)

  322. If the asshats could argue like you, maybe we could listen to them, and consider their views.
    .

    If President Clinton had viewed the OKC bombing as an action of international terrorism (and that’s not a stretch), and implemented an indefinite (but totally outside of court supervision) surveillance regime on the basis of acquiring “foreign intelligence information,” I think there would be pretty much a political party role reversal. Republicans would be the civil libertarians, and the DEMs would be the law and order folks.

    .

    The asshat would be on the other foot, as it were.

    cboldt (3d73dd)

  323. Why would this even be necessary? If it tracks exactly with what the COTUS says, isn’t that redundant?

    .

    FISA has value as creating a safe harbor for foreign intelligence surveillance, so it’s not merely redundant. It also serves as a propaganda tool to convince the public that it (the public) can’t be subjected to random surveillance by the executive, and that random surveillance was checkable by review in the courts, and statutory penalties if the surveillance was without reasonable cause.

    .

    A restatement of my point is that a safe harbor can’t track the ultimate limits drawn by con-law; in either direction.

    .

    The country got along fine with no FISA whatsoever, for almost 200 years. Pre-FISA, the courts managed to differentiate between “foreign intelligence” and “criminal.” Courts also managed to probe the factual basis behind finding suspicion, even when the germ for suspicion came from foreign intelligence (see Truong).

    .

    But regardless of the statute, there is no way to prevent surveillance unsupported by reasonable suspicion. History from 1978 to now shows that conclusively. If “we can’t know,” then we can’t detect, let alone enforce an objection.

    cboldt (3d73dd)

  324. I think there would be pretty much a political party role reversal

    Doubt it. If you mean that at least one Republican would have complained about it, well okay, but role reversal? BS.

    [the public] seems to prefer being in an unchecked surveillance state

    Seems overwroght. A policy that a foreign terrorist under surveillance should not have more protected communication than a domestic criminal under surveillance looks reasonable to me even if it requires warrantless access to international communications. During AUMF or war or angry and scared public.

    boris (ecab60)

  325. What are my communication privacy rights as a citizen?

    (1) A warrant is necessary to wiretap my communication or to wiretap whoever I am in communication with.

    (2) A warrant is necessary to wiretap my communication but only a legal wiretap is required on whoever I am in communication with.

    (1) and (2) default to the same thing for domestic communication. It should be obvious that (1) is unworkable for international communication where warrant on the foreign party is both impossible and unnecessary.

    boris (ecab60)

  326. (1) A warrant is necessary to wiretap my communication or to wiretap whoever I am in communication with.

    No warrant is necessary to simply determine that a phone call was made, nor to discover the location and identity of the receiving phone, nor to measure how long the phone call lasted.

    And – pay attention, libtards, because THIS is the point that I have been trying to get you to admit:

    NO WARRANT IS NEEDED IF THERE IS NO INTENTION OR ABILITY TO USE THE INFORMATION IN A CRIMINAL PROSECUTION.

    If the police have an active tap on the phone of a criminal, and said criminals call up a restaurant to order some take-out, there is no need to get a warrant against the restaurant to hear that call because there is no intent to investigate them for criminal activity.

    Second, if an ordinary citizen has bugged your phone and discovers evidence of criminal activity, you have no protection against him, because he has no ability to legally take away your liberty.

    Drumwaster (5ccf59)

  327. “If the police have an active tap on the phone of a criminal, and said criminals call up a restaurant to order some take-out, there is no need to get a warrant against the restaurant to hear that call because there is no intent to investigate them for criminal activity.”

    They likely have to stop listening once they realize its not part of their warrant on the suspect.

    “Second, if an ordinary citizen has bugged your phone and discovers evidence of criminal activity, you have no protection against him, because he has no ability to legally take away your liberty.”

    Likely the evidence wont be admissible, and you have a cause of action against this person under the wiretap act.

    afall (21778e)

  328. They likely have to stop listening once they realize its not part of their warrant on the suspect.

    Not their intent, in other words.

    Likely the evidence wont be admissible

    The SCOTUS would disagree with you as to the admissibility of the evidence, and your counter-claim against him would be a civil case, not a criminal one. But he still wouldn’t have to get a warrant to gather that evidence…

    Drumwaster (5ccf59)

  329. “The SCOTUS would disagree with you as to the admissibility of the evidence”

    I doubt it. The wiretap act is straightforward. 18 usc 2515:

    “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter”

    ” your counter-claim against him would be a civil case, not a criminal one.”

    My claim would be civil, like these cases against the administration. But he could also be prosecuted criminally. Its a crime to wiretap someone one.

    afall (c9c7da)

  330. The wiretap act is straightforward.

    The Fourth Amendment is directed toward government agencies (local police, etc.) and, in limited capacity, government workers such as schoolteachers. Consequently, any warrantless seizure of evidence by a private citizen, not acting as an agent of the government, may be used at trial even if the citizen trespassed or did not have probable cause to seize a person or item.

    Drumwaster (5ccf59)

  331. “Consequently, any warrantless seizure of evidence by a private citizen, not acting as an agent of the government, may be used at trial even if the citizen trespassed or did not have probable cause to seize a person or item.”

    I just showed you the part of the law that says this isn’t quite right. It’s not a consequence of the fourth amendment. It’s a consequence of the law I showed you. What do you think that paragraph of the law means?

    afall (e870b9)

  332. Second, if an ordinary citizen has bugged your phone and discovers evidence of criminal activity, you have no protection against him, because he has no ability to legally take away your liberty.

    I love it when idiots make shit up. If an ordinary citizen listens in on telephone conversations, without permission, he goes to prison. For five to ten years. Whether it’s a wiretap or just a scanner picking up cellular and wireless phone calls. DON’T EAVESDROP!

    nk (16accd)

  333. I just showed you the part of the law that says this isn’t quite right.

    Your part of the law limits CRIMINAL INVESTIGATIONS and the admissibility of the evidence obtained. Who has the power to initiate and continue criminal investigations?

    And your law will not trump the Fourth Amendment (which is a specific limitation on GOVERNMENT, not the citizenry), which is why the Fourth Amendment controls this issue. Specifically, United States v Jacobsen (1984): “(a) The fact that employees of the private carrier independently opened the package and made an examination that might have been impermissible for a Government agent cannot render unreasonable otherwise reasonable official conduct. Whether those employees’ invasions of respondents’ package were accidental or deliberate or were reasonable or unreasonable, they, because of their private character, did not violate the Fourth Amendment. The additional invasions of respondents’ privacy by the DEA agent must be tested by the degree to which they exceeded the scope of the private search. Pp. 113-118.”

    Keep trying.

    Drumwaster (5ccf59)

  334. Consequently, any warrantless seizure of evidence by a private citizen, not acting as an agent of the government, may be used at trial even if the citizen trespassed or did not have probable cause to seize a person or item. [Specifically, United States v Jacobsen, 466 U.S. 109 (1984)]
    .
    The Circuit Courts of Appeal are split on the answer to the question, as applied in the field of interception of communications. The Second, Fifth and Sixth Circuits have adopted some sort of “clean hands” exception that you promulgate. The Third, Ninth, and D.C. Circuit Courts of Appeals have rejected it.
    .
    The issue is complicated because the “exception to the exclusionary rule” is not a blanket. It depends on who did the illegal wiretapping (spouse v. friend v. stranger), and evidence obtained illegally but privately can be used for some aspects of the administration of justice, even in the Circuits that reject the judge-made “clean hands” exceptions to the statute.
    .

    See United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995); cert. denied, 517 U.S. 1187 (1996)
    United State Brief in Opposition to Petition for Certiorari in Murdock v. US (1995) (It misleads as to the
    .
    An informative law review, if for nothing but leads and cites: “Should ‘clean hands’ protect the government against sec 2515 suppression …” – Francis Marion Hamilton, III, Washington and Lee Law Review (1994)
    .
    Still the prevailing law in the First Circuit: United States v. Vest, 813 F.2d 477 (1st Cir. 1987)
    .

    The government argues that we should read into section 2515 the exception to the fourth amendment exclusionary rule for evidence falling into the government’s hands after a private search and seizure, see, e.g. United States v. Jacobsen, 466 U.S. 109, 113-18, 104 S.Ct. 1652, 1656-59, 80 L.Ed.2d 85 (1984). But the fourth amendment exclusionary rule is a judicially-fashioned rule serving different purposes than the congressionally-created rule of section 2515–a rule that we are here limited to interpreting rather than modifying. We agree with the district court that to hold that section 2515 allows the government’s use of unlawfully intercepted communications where the government was not the procurer “would eviscerate the statutory protection of privacy from intrusion by illegal private interception.” 639 F.Supp. at 914-15. The protection of privacy from invasion by illegal private interception as well as unauthorized governmental interception plainly “play[s] a central role in the statutory
    scheme,” see United States v. Giordano, 416 U.S. 505, 528 (1974).
    .
    We decline to read into section 2515 an exception permitting the introduction in evidence of an illegally-intercepted communication by an innocent recipient thereof.

    cboldt (3d73dd)

  335. Just to illustrate the “narrowness” of the “clean hands” rule crafted by the 6th Circuit (in Murdock), here is the 6th Circuit recapitulating its own rule:
    .
    Smoot v. United Transportation Union (6th Cir. 2001)

    Second, in Murdock, this Court emphasized that the “clean hands” exception only applied to situations where the victim, not the perpetrator, of an unlawful interception was not precluded from using evidence “that literally falls into its hands.” Murdock, 63 F.3d at 1403. Plaintiff, as the perpetrator under the Act, cannot avail himself of the clean hands exception under Murdock.

    cboldt (3d73dd)

  336. “Your part of the law limits CRIMINAL INVESTIGATIONS and the admissibility of the evidence obtained. ”

    No. It talks about wiretaps, be they part of criminal investigations or one person tapping another. Read it. start at 18 usc 2501.

    “And your law will not trump the Fourth Amendment (which is a specific limitation on GOVERNMENT, not the citizenry), which is why the Fourth Amendment controls this issue.”

    It doesn’t ‘trump’ it. It goes on top of it. Its in addition to it. Its another bar to admissibility that congress has created. “your law” ? don’t be a dick.

    “The fact that employees of the private carrier independently opened the package and made an examination that might have been impermissible for a Government agent cannot render unreasonable otherwise reasonable official conduct.”

    This isn’t about opening packages, but wiretaps. Wiretaps that are regulated by federal and state law as well as the 4th amendment. So any of those could be sources of bars to admissability.

    afall (b82338)


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