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The Effectiveness of the NSA Surveillance Progam:
The NYT has an interesting story on the questionable effectiveness of the NSA domestic surveillance program as seen by officials within the FBI. A few excerpts:
. . . More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.
  . . . [T]he comments on the N.S.A. program from the law enforcement and counterterrorism officials, many of them high level, are the first indication that the program was viewed with skepticism by key figures at the Federal Bureau of Investigation, the agency responsible for disrupting plots and investigating terrorism on American soil. . . . .
  Officials who were briefed on the N.S.A. program said the agency collected much of the data passed on to the F.B.I. as tips by tracing phone numbers in the United States called by suspects overseas, and then by following the domestic numbers to other numbers called. In other cases, lists of phone numbers appeared to result from the agency's computerized scanning of communications coming into and going out of the country for names and keywords that might be of interest. The deliberate blurring of the source of the tips caused some frustration among those who had to follow up.
  This is an interesting story, although I'm not quite sure what to make of it. If the spying program led to the discovery of "a few terrorists," is the real story that the program only led to a few terrorists, or is it that the program successfully led to the discovery of terrorist cells inside the United States? The Times opts for the former, but it's not immediately obvious to me why they don't opt for the latter. Second, I'm a little bit skeptical of the sourcing for this article. Turf battles can create inter-agency friction, and a New York Times piece based on anonymous sources can provide excellent cover for fighting the battle over turf. I would want to know what kind of turf battles are going on within the government between the NSA and FBI before knowing how much to trust the views of anonymous FBI insiders about the work of the NSA. The story is helpful, and may be quite accurate, but I'm a bit cautious about this one.
Bob Bobstein (mail):
Amen, Orin. Anonymous leaks from one agency are rarely the best way to get the big picture.

If the factual assertions are accurate, it seems like there's a not-unfounded sense at FBI that there was a lot of wasted effort here. And some libertarian types will not be thrilled that Big Brother is listening in to our "calls to Pizza Hut."

But if it's catching even a small number of would-be terrorists, wouldn't it be great to get a version of this program approved by Congress, so it's legal and subject to some oversight?
1.17.2006 10:37am
John Lederer (mail):
Four groups of terrorists thwarted? No successful attacks in US? What would be success?
1.17.2006 10:42am
Al Maviva (mail):
So, the FBI is upset because the vast majority of leads they received from NSA were fruitless?

Maybe somebody from the FBI can enlighten us on their methods for figuring out, prospectively, which leads are worth investigating. Presumably, they've developed better methods for disregarding fruitless leads since 9/11. You'll remember that Colleen Rowley and some FBI agents out in Arizona were really upset about the FBI's old methods for disregarding leads. But the leakers in the Times areticle are spot on - you don't want all those agents wasting their time tracking down leads that don't pan out. They should only check out the leads that are definitely related to terrorism.

And on a related subject, the government should pass a law forcing automakers to make car keys that are easier to find. I don't know about you but I always find my keys in the very last place I look, and that's unacceptable. If there was some way of avoiding all that fruitless searching, it would be much more convenient for me...
1.17.2006 10:50am
Just an Observer:
Bob Bobstein: "But if it's catching even a small number of would-be terrorists, wouldn't it be great to get a version of this program approved by Congress, so it's legal and subject to some oversight?"

That is an interesting proposition, one in which I have been interested from the beginning. (Of course, this policy issue is quite different from the question of whether what has been going on has been legal.)

Even applying some windage to discount the FBI's turf interests, one thing that does come through this story is that there seems to have been a preponderance of chaffe among the domestic surveillance targets. In turn, that supports the theory that the primary reason the government did not seek FISA warrants was that they could not meet the law's standard for "probable cause."

If the law were to be changed to allow this kind of surveillance, could it constitutionally adopt a lower standard than "probable cause" for what seems more like a fishing expedition? There is that pesky language in the Fourth Amendment.
1.17.2006 11:02am
nrein1 (mail):
Even if some good came out of this program the still valid question is at what cost? Where resources used to sort through all of this chaff that could have been better used elsewhere. Perhaps if the FBI did not have to spend so much time doing this work they could have caught more terorists using traditional methods. I realize this is a difficult question to answer but it is one that needs to thought about when allocating resources.

For example I am of the opinion that entirely too much energy and reources are spent on airport screening and there are better uses for this. Perhaps hiring more people to look through large amounts of information?
1.17.2006 11:23am
Mahan Atma (mail):
"If the spying program led to the discovery of "a few terrorists,"...

That isn't what the article says though. It says the tips "led them to few potential terrorists." As I read the article, it calls into doubt the assertion that the program led to any actual terrorists, including the bozo who claimed to want to bring down the Brooklyn Bridge with a blowtorch.

Second, I'm not sure why you give no weight to the many innocent people whose privacy was subverted. We could probably discover a "few potential terrorists" by doing house-to-house searches of the entire country too, but I hope you wouldn't find it justified (although many here probably would).
1.17.2006 11:42am
Defending the Indefensible:
Prof. Kerr,

I think it is reasonable to suppose that if the police in general were allowed to conduct warrantless searches, they might discover "a few criminals" among the many other law-abiding people they investigated. By the same token, if the NSA dumped a whole bunch of "leads" on the FBI, some of them might have turned up a few legitimately suspicious individuals. In neither case does this comport with the Fourth Amendment, and moreover the resources wasted on the proportionately many false leads are resources diverted from more productive investigations.
1.17.2006 11:45am
Mahan Atma (mail):
"Anonymous leaks from one agency are rarely the best way to get the big picture."

And what, sir, do you propose is the best way to get the big picture in this situation?

The Executive Branch bypassed the FISA court and even forbade U.S. Senators from disclosing the existence of the program. Under this regime, there is absolutely NO legitimate way for any objective third party -- let alone the public -- to assess the legitimacy or effectiveness of the program!
1.17.2006 11:46am
JohnAnnArbor:
I'd rather they were caught while still "potential" terrorists, rather than waiting for them to become "actual" terrorists, if it's all the same to you.
1.17.2006 11:46am
John Lederer (mail):
NYT:
"The F.B.I. and other law enforcement officials also expressed doubts about the importance of the program's role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch."

I found this to be a bit disingenuous. Faris's proposed method of cutting the cables was thought to be technically feasible. The plot was "aborted" by the increased security occasioned by alerting local officials.

The NYT makes it sound like the plot was silly ( a "blowtorch" was assuredly not the method -- thermite, a cutting charge, or an exothermic torch would be the likely methods), and that it was aborted for reasons other than the increased security caused by intelligence information.
1.17.2006 11:47am
Mahan Atma (mail):
"I'd rather they were caught while still "potential" terrorists, rather than waiting for them to become "actual" terrorists, if it's all the same to you."

And what evidence do you have to show that any of the innocent persons investigated under the program would have turned into actual terrorists?
1.17.2006 11:47am
Mahan Atma (mail):
"Faris's proposed method of cutting the cables was thought to be technically feasible."

Right... and exactly how long would it take to bring down the Brooklyn Bridge with a blowtorch?
1.17.2006 11:50am
Curmudgeon:
Officials who were briefed on the N.S.A. program said the agency collected much of the data passed on to the F.B.I. as tips by tracing phone numbers in the United States called by suspects overseas, and then by following the domestic numbers to other numbers called.

I agree that reading too much into a reporter's recounting of vague statement from an anonymous source with an agenda is silly, but this almost makes it sound like the program is based on pen registers rather than wiretaps.
1.17.2006 11:50am
Adam:
DIF: Police already are allowed to conduct warrantless searches under a variety of circumstances.
1.17.2006 11:56am
srg (mail):
Professor Kerr,
On a slightly different but related topic, John Schmidt, former Associate Attorney General under Clinton, said this:
"In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that 'All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority.'" Would you please comment, since this seems at odds with your judgment that the Bush administration has probably violated the FISA laws.
1.17.2006 11:56am
duh! (mail):
They can wiretap all they want, but *man* if they start making potential terrorists register their weapons, that would be against everything the founders intended!!!
1.17.2006 12:05pm
A.S.:
And what evidence do you have to show that any of the innocent persons investigated under the program would have turned into actual terrorists?

Um, convictions?

Anyway, I don't think anyone wants to squander resources. However, I certainly didn't see much convincing evidence from this article that resources are being squandered. I saw a lot of griping that many leads from the NSA program don't end up at terrorists. But the crucial question is: is the information from this program any worse (or better) than information gained from other techniques? I mean, how about anonymous call-ins to the FBI - when the FBI tracks down those leads, are they any more successful at finding terrorists? If not, should the FBI just stop answering anonymous phone calls?

What we really need to assess the NSA program is data showing how much resources is uses (including the FBI time to track down the info the NSA program gives them) as compared to resources used by other information gathering techniques, AND we need to know helpful the program is in getting us good info, as compared info obtained through other methods. The article doesn't give us ANY of that.
1.17.2006 12:12pm
JohnAnnArbor:
They can wiretap all they want, but *man* if they start making potential terrorists register their weapons, that would be against everything the founders intended!!!

Wow, how witty. We all know how quickly potential terrorists line up to comply with every law.

Right... and exactly how long would it take to bring down the Brooklyn Bridge with a blowtorch?

Cutting suspension cables on a suspension bridge is generally considered "bad." And if he did it with thermite, as another reader suggested, it could be faster than you think.

And what evidence do you have to show that any of the innocent persons investigated under the program would have turned into actual terrorists?

I don't. Because I'm not the one making choices to tap the phone numbers in the "recent call" list of the cell phones of recently captured terrorists. But it sure sounds reasonable.
1.17.2006 12:14pm
duh! (mail):
"Wow, how witty. We all know how quickly potential terrorists line up to comply with every law."

Kinda like the President!

"I don't. Because I'm not the one making choices to tap the phone numbers in the "recent call" list of the cell phones of recently captured terrorists. But it sure sounds reasonable."

Yea so reasonable that they didn't attempt to get a FISA court to approve it... Probably because its stacked with activist judges who hate freedom, right?
1.17.2006 12:29pm
JohnAnnArbor:
Yea so reasonable that they didn't attempt to get a FISA court to approve it... Probably because its stacked with activist judges who hate freedom, right?

How long does it take to prepare a warrant? I know, I know, they can "just do it" and get approval 72 hours later if necessary. Wanna bet the form is a bit more complicated than name, phone #, reason for tapping? And that bogging down twenty investigators filling out forms for days to account for just one captured cell phone might not be the best use of their time?
1.17.2006 12:36pm
Mark Buehner (mail) (www):
The Times opts for the former, but it's not immediately obvious to me why they don't opt for the latter.


It's immediately obvious to me. Thats not the story they have any interest in telling.


Second, I'm a little bit skeptical of the sourcing for this article.


That was my first thought. I'd be more surprised if the FBI insiders didnt gripe about the program. This is the organization that didnt have email until very recently, you think they would be happy taking a bunch of techno-leads from computer nerds? Again, Bush got lambasted for not connecting the dots pre-911, but when he takes firm steps to correct those errors (such as forcing the FBI to play team ball) everyone gets up in arms when the first bureacratic sniping hits the NYT.


Yea so reasonable that they didn't attempt to get a FISA court to approve it... Probably because its stacked with activist judges who hate freedom, right?


Er, no, actually because the huge volume of leads and speed at which they needed to be pursued made it prohibitive. If 100 AQ members around the world were each calling 10 people in the US, thats 1000 warrants needed. What if its 1000 AQ suspects? 5000? And what if their connections in the US keep switching numbers? How many warrants can you seek in a day and not make a farce of the whole process?
1.17.2006 12:40pm
JohnAnnArbor:
Here's an interesting take on the 72-hour issue and the complexity of the process.
1.17.2006 12:40pm
ObviousTroll (mail):
Here's a stupid question - do any of you people complaining about the lack of warrants in this program have any evidence that this program is the same one that violates FISA?

I find it hard to believe that the NSA has only one intelligence gathering program...
1.17.2006 12:40pm
Freder Frederson (mail):
Cutting suspension cables on a suspension bridge is generally considered "bad." And if he did it with thermite, as another reader suggested, it could be faster than you think.

And how much thermite (which would have to be in a shaped charge) do you think it would take to sever a cable that supports a load of 6,000,000 lb (and there are four of them)? If you think that that would be easy, then I could sell you that very same bridge for a reasonable price.
1.17.2006 12:43pm
Roger (mail):
JohnAnnArbor, What is interesting about the link you posted? It refers to legal arguments as being made by the "left" which is not acceptable legal scholarship. It also just seems to foot-stomp and say that it is too hard.

Also, none of the writers of that article, it seems are 4th amendment scholars. None have any experience with these issues. None litigated them. They don't seem like lawyers, anyway. (I never heard of that blog until today.)

Also, the blog doesn't seem to explore the interaction between the sections of the FISA.
1.17.2006 12:47pm
JohnAnnArbor:
And how much thermite (which would have to be in a shaped charge) do you think it would take to sever a cable that supports a load of 6,000,000 lb (and there are four of them)?

Do you think severing one wouldn't be a bad thing? Bridge closed for months, etc? And no, it would not have to be a "shaped charge." The reaction is used for welding, too, and isn't that hard to start.

If you think that that would be easy, then I could sell you that very same bridge for a reasonable price.

Did I say it would be easy? No; he'd have to get to the cable carrying a significant load. But it is NOT out of the realm of possibility, as some implied. The Silver Bridge over the Ohio River fell because of the failure of a single iron bar in its suspension chains back in the '60s. Bin Laden's family is in construction, and Osama would be smart enough to find people who could find weak points of structures and hit them there.
1.17.2006 12:52pm
Mark Buehner (mail) (www):
How much jet fuel would it take to bring down a skyscraper? Lets just assume its impossible.
1.17.2006 12:54pm
Richard Aubrey (mail):
Freder.
How much explosive does it take to blow up the Murrah Federal Building?
Hint: It would fit in a Ryder truck. And that's AMFO, not a particularly powerful explosive compared to the military stuff available around the world if you have a couple more contacts than McVeigh did.
1.17.2006 12:54pm
John Lederer (mail):
"Right... and exactly how long would it take to bring down the Brooklyn Bridge with a blowtorch?"

As I think I stated I don't think a "blowtorch" was the proposed method.

An exothermic torch works by heating steel to its burning point, then supplying oxygen so that the steel itself burns.
In my youth I worked in a steel yard where we used a type of exothermic torch called an oxygen or thermic lance. It has been a long time, but the speed of cutting in 12" plate was very fast .

There is a video on this page that shows a thermic torch cutting what appears to be fairly thick (4-5"?) plate. The torchman makes what looks like about a two foot long cut in about 10 -15 seconds.

Thermite works by igniting a mixture of iron oxide powder and aluminum powder. The reaction starts slowly then goes quite quickly, It can be used to weld or cut. When used to weld a railroad rail the actually welding (as opposed to the length of time it takes for the steel to resolidfy) is a matter of maybe 10 seconds. Here is a video of thermite being used to make a steel casting. Even faster reactions can be made by using stronger oxidizers, in which case the heat is produced by actually burning the steel and the speed of the process very rapidly increases as it continues.
1.17.2006 12:55pm
Freder Frederson (mail):
I'm sorry, the maximum load supported by each cable on the Brooklyn Bridge is 6,000,000 lbs. The designed strength of each cable is 24,600,000 lbs. (4.1 safety factor built in, so one cable could support the entire bridge if necessary).
1.17.2006 12:56pm
Freder Frederson (mail):
. . .and continue to handle traffic since the 6,000,000 lb design load per cable is combined live and dead load.
1.17.2006 12:57pm
duh! (mail):
Those arguing for wiretapping, even though this is off topic, would they please state their opinion on whether or not requiring all new guns to be registered with the federal government is an acceptable practice.

Of course registering all guns would not prevent all crimes, but it would certainly hinder the availability of these weapons to potential terrorists. Right?
1.17.2006 1:02pm
byomtov (mail):
This sort of thing is exactly what one would expect from this program - lots of wasted effort - so much that it might even be counterproductive.

And the defenses mounted are predictable too. Ignore the waste of investigative resources but talk loudly about how wasteful it would be to get warrants. Claim that finding any "potential terrorists" means the program is a success, regardless of whether the same resources might have been used more effectively.
1.17.2006 1:05pm
Freder Frederson (mail):
How much explosive does it take to blow up the Murrah Federal Building?

The facade of the Murrah Building was blown off, the Building was not blown up. A lot of people were killed but the building did not collapse. Destroying a suspension bridge that handles 144,000 cars a day is quite an engineering feat, especially one that is overengineered as the Brooklyn Bridge.
1.17.2006 1:05pm
Freder Frederson (mail):
How much jet fuel would it take to bring down a skyscraper? Lets just assume its impossible.

Did I say that was impossible. As I sat there and watched the towers that day, before they collapsed, on the monitors at work, I told the person next to me, "those buildings are going to collapse". Sure enough, five minutes later, the first building came down. Once you destroy the structural integrity of a high rise like that the weight of the upper floors will just crush the lower ones. The WTC was particularly vulnerable because most of the load bearing members were on the outer walls.
1.17.2006 1:14pm
Brutus:
if the police in general were allowed to conduct warrantless searches, they might discover "a few criminals" among the many other law-abiding people they investigated.

The difference being, those few criminals are (generally speaking) not trying to slaughter Americans in large numbers, and probably will not cause billions of dollars in damage to the economy and the infrastructure.
1.17.2006 1:42pm
Richard Aubrey (mail):
Freder.
The Murrah building was eventually destroyed because it could not be repaired. So, by doing sufficient damage, it was caused to go away. McVeigh apparently economized, expecting the result. Or maybe it was just luck. But I've been there and the building wasn't.
Now, because you seem to have difficulty remembering whether to take things with excessive literalism, let me make the conclusion clear. The bridge could be so damaged that it could not be used for a very long time. The difference between blowing it up and making it unusable is thus irrelevant, except to the fish. If it could not be repaired, then it goes away, same as the Murrah building.
The BDS-motivated reflections on the efficiency of the intel process are not related to the legal issues.
Does somebody have a table of efficiency standards for intel work against which this effort could be compared?
No? Didn't think so.
1.17.2006 1:42pm
GWULAW (mail):
I think Orin is right that this article leaves a lot of unanswered questions. Perhaps the program has not produced any significant leads, but it's impossible to say anything definitively from the story. Regardless, as we calculate the programs worth, I don't think we should lightly consider the imposition into the lives of innocent Americans. To quote Jefferson: "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it."
1.17.2006 1:50pm
abayrat:
Freder.

"The WTC was particularly vulnerable because most of the load bearing members were on the outer walls."

The WTC was designed to put the load bearing members on the outer walls to allow for more open office space. The building took a long time to collapse because of the design allowing people to escape. In fact if the planes did not cut the elevators cables the FDNY would have been able to contain and extinguish the fire.
1.17.2006 1:54pm
Just an Observer:
Sorry to interrupt the engineering discussion, but I am interested in a couple of related legal matters:

1) Two lawsuits were filed today seeking to stop the NSA surveillance program. Does anyone believe either of these plaintiffs can assert standing successfully?

2) Former Vice President Gore yesterday called for a special counsel to investigate the controversy. Aside from the politics of such a proposal, would it even be legally viable? Since the attorney general already has declared the surveillance program to be lawful, could a special counsel (the AG's subordinate) pursue a different legal theory in the courts?

See details in my earlier post here.
1.17.2006 2:07pm
KMAJ (mail):
Prof. Kerr,

The NYT is engaging in CYA journalism. One should always treat with skepticism attributions to anonymous officials. One should always ask when reading about anonymous sources: Who are these people ? Do they have an agenda or personal motivation ? Are they protecting turf ? Are they carry over personnel from a previous administration ?

It is granted that both sides use the 'anonymous source' route to play politics, but the most successful are going to be those whose 'politics' is shared by the media it is leaked to. Media bias in the 'old media' is a very real aspect in today's society, though many on the left seek to deny it. That does not mean that there are no sources for news that are biased towards the right, but when you consider subscription rates and viewership for news media, the left leaning media has a large advantage. The right has the advantage in talk radio, but I do not consider that news. Every study that has been done on the news media has found that it leans left, and not one study has ever asserted it leans right. The public perceives it as leaning left and the demographics of political affiliation among its ranks are heavily democrat.

In my opinion, for too long, the MSM had a monopoly on the news we received and presented us a one-sided vanilla news product. Vietnam and Watergate had a major impact on how the news media operates, shifting from an unbiased presenter of events to an advocate and adversarial entity in search of the BIG story to make a name for the reporters, often labelled 'Gotcha' or yellow journalism. The news media is an unelected power broker, the right has made advances, but they have a long way to go before they reach parity. Journalism in this country is following the path of media in Europe, becoming propaganda arms for ideological factions and ideas.

Whether your newspaper of choice is The New York Times or Washington Times, the Washington Post or New York Post, you are getting a propagandized presentation. It can be subtle with the simple choice of one word over another, that while synonymous present a totally different perception. It can be shaped by labeling one side more often than the other, or accentuating certain information over equally important information. It can be shaped by the choice of quotations used and those not used, by the location within a story that you place information and the most egregious is the use of the deceptive headline.

The Times is taking heat for their exposure of this program, one avenue to try to shift focus is to discredit the program revealed. The Grey Lady has taken many hits to their credibility in recent years, deservedly so. They have dropped any pretense of being an unbiased presenter of the news.
1.17.2006 2:19pm
Mark Buehner (mail) (www):
Those arguing for wiretapping, even though this is off topic, would they please state their opinion on whether or not requiring all new guns to be registered with the federal government is an acceptable practice.

First, i dont think its an acceptable practice, but i see no evidence that such a law would be unconstitutional. Second, there is absolutely no comparison. The example might work if the government was tracking only those who were in direct contact with known terrorists, and in such a case i doubt there are many people who would disagree with such a program.
1.17.2006 2:21pm
duh! (mail):
Mark Buehner-

The logical extension is this, can the president order the tracking of all weapons(sans congressional/judicial authority) using the same rationale?

Clearly the wiretapping was not simply those who were in "direct contact" with known terrorists. Otherwise a FISA warrant would have been a formality.

Let me give a more clear comparison. Timothy McVeigh was a domestic Terrorist. Should the President have the power to (without congressional/judicial authority or warrant) to track the purchases of not only McVeigh, but those who have tangential connections to him.

Those that belong to the same militia, those contacts, etc etc.

Then extend that to the Operation Rescue folks. The Earth First folks. All of which have ties to "potential" terrorists, no?
1.17.2006 2:35pm
Michael B (mail):
"Those arguing for wiretapping ..." duh!

Obviously, no one is arguing "for wiretapping" outside of initiatives to help thwart terrorist actions and nab terrorists/jihadists. Equally obviously, this decontextualized syntax is now ubiquitous - and it's a tell-tale sign itself, from those partisan/sectarian quarters, that the unadorned, known facts are insufficient for these rhetorically over-weighted forays.

Obviously still, people are arguing that it's a good thing to prevent terrorist initiatives and to nab terrorists/jihadists. And, certainly so within Constitutional and statutory frameworks, if this NSA program is doing that and fruitfully exploring ways to do that - especially so in an atmosphere of evolving technologies (e.g., communications and weaponry) - then that's a good thing.

Costs vs. Benefits; Vigilence vs. Liberty; etc. All soundly and commensurately weighed in the balance.
1.17.2006 2:35pm
Mark Buehner (mail) (www):
Clearly the wiretapping was not simply those who were in "direct contact" with known terrorists.

Clearly, you havent been following this story. Every government and Congressional source has explicitedly stated that communication between individuals on US soil (domestic communications) were never targetted by this program. Without question, the biggest problem with this story and discussion is the way the Presidents political enemies have intentionally misled the American public into believing the NSA was warrantlessly monitoring domestic communications. There is zero evidence of that.

Otherwise a FISA warrant would have been a formality

I thought the counter-argument was that the FISA warrant was essentially a rubber stamp, and that there is no reason in the world not to jot down what you want on a cocktail napkin, fax it over, and have your warrant by lunchtime? Of course the reality is far different, and with potentially hundreds or thousands of such warrants necessary at any given time the amount of resources required to rush together a warrant application that generally takes weeks of work into the 72 hour window FISA allows is simply prohibitive pragmatically. Particularly because any warrant that isnt submitted and granted within the 72 hours must by law have its survellence automatically cut off and the contents of its records never shared or acted on except under very specific and narrow circumstances (imminent threat to lives).
1.17.2006 2:45pm
Noah Klein (mail):
Professor Kerr:

The NYT report cites an example of the FBI concerns with this program changing the way the leads are given to the F.B.I.:

"In response to the F.B.I. complaints, the N.S.A. eventually began ranking its tips on a three-point scale, with 3 being the highest priority and 1 the lowest, the officials said."

Furthermore, the article itself discusses the issue of turf and the F.B.I.'s credibility in making such claims:

"The views of some bureau officials about the value of the N.S.A.'s domestic surveillance offers a revealing glimpse of the difficulties law enforcement and intelligence agencies have had cooperating since Sept. 11.

The N.S.A., criticized by the national Sept. 11 commission for its "avoidance of anything domestic" before the attacks, moved aggressively into the domestic realm after them. But the legal debate over its warrantless eavesdropping has embroiled the agency in just the kind of controversy its secretive managers abhor. The F.B.I., meanwhile, has struggled over the last four years to expand its traditional mission of criminal investigation to meet the larger menace of terrorism.

Admiral Inman, the former N.S.A. director and deputy director of C.I.A., said the F.B.I. complaints about thousands of dead-end leads revealed a chasm between very different disciplines. Signals intelligence, the technical term for N.S.A.'s communications intercepts, rarely produces "the complete information you're going to get from a document or a witness" in a traditional F.B.I. investigation, he said.

Some F.B.I. officials said they were uncomfortable with the expanded domestic role played by the N.S.A. and other intelligence agencies, saying most intelligence officers lacked the training needed to safeguard Americans' privacy and civil rights. They said some protections had to be waived temporarily in the months after Sept. 11 to detect a feared second wave of attacks, but they questioned whether emergency procedures like the eavesdropping should become permanent."

Yet even with the issues of turf warfare and the institutional slowness of converting a law enforcement agency to a counterterrorism agency, there still plenty of concerns that are legitimately expressed in this article. The question arises thus should we dump a massive amount of raw intelligence on the F.B.I. and other law enforcement agencies.

What is the good of not giving these people solid leads to pursue? One of the arguments in favor of the wiretapping without court orders is that it saves time and allows for quicker surveilance of terrorists. Yet, if this system simply transfers the time-consuming onto the F.B.I., then what is the point, especially when the program yields "few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."

Thus the fact that the program had to be altered to prioritize the intelligence given to the F.B.I. seems to thus indicate that the concerns of the officials quoted were real and not entirely a turf battle, since this is something that can be independently verified and thus cause these people to lose face if shown to be wrong.

Finally, as to the "connect the dots" argument made by others, we must remember what connect the dots means. We have determined that government did have the information that would have led to the discovery of the 9/11 plot. The F.B.I. had Moussaui (I can't remember how to spell his name), the NSA had intercepted the "Tommorrow is the day" and other such messages, the CIA and FBI had many of these people on their watchlists and so on. "Connect the dots" refers to the inability for the government to see the needle in the haystack. Efforts that would allow for the government to more quickly and more efficiently process its intelligence, such as the CTC and the growth of intelligence analysts are beneficial. Perhaps dumping raw intelligence on the desks of FBI agents is not. If you are going to argue that the problem that occurred before and on 9/11 was connecting the dots, then this program with its many "dead-ends" does not seem to be the right one. If you want to argue that the government did not have enough information, then this program may have some worth.

Noah
1.17.2006 2:47pm
srg (mail):
Noah,

When you quote someone over several paragraphs, you need to put quotation marls before the beginning of each paragraph. That makes it clearer for the reader.
1.17.2006 2:55pm
MarkW (mail):
How long does it take to prepare a warrant? I know, I know, they can "just do it" and get approval 72 hours later if necessary. Wanna bet the form is a bit more complicated than name, phone #, reason for tapping? And that bogging down twenty investigators filling out forms for days to account for just one captured cell phone might not be the best use of their time?

Ron Kessler reported in the Wall Street Journal a couple of weeks back (in the course of writing in support of the wiretapping) that preparing the paperwork for securing a warrant takes, in its entirety including getting the AG's signature, no more than a day.
1.17.2006 2:59pm
Noah Klein (mail):
Srg:

Sorry you are right. I should have done that.

Mark and others:

I don't see why you guys do not understand that the intelligence people are not the ones filling out the information. The Justice Department has a whole bunch of lawyers. These lawyers job is to fill out all the legal documents that are necessary for the government. They have been doing this job for over a hundred years and while I'm sure they make mistakes, I think they do a good job on the whole. The intelligence official gives the relevant information to the lawyer whose job it is to fill out the paperwork. Now, you are lawyers and you know how complicated documents are and what it takes for a warrant and other legal documents. Does it really take 72 hours to fill out such a document? If it does, then how do police ever catch crimials? The fact is it doesn't and while there are several things that the intelligence official and AG must certify, I doubt they do more than just review the work of a very smart lawyer in the Justice Department. Is this wrong?

Noah
1.17.2006 3:02pm
Mark Buehner (mail) (www):
Noah that is your interpretation of the process. This is not a simple warrant to pick up some kid selling pot in Queens. I'd imagine the lawyers involved need special security clearances to work in the FISA realm. Certainly they will need to be talking to the NSA technicians and analysts in order to get the required information, that takes away from their time and resources. And remember, we are potentially talking about hundreds or thousands of such 'events' at a given time. Remember the recent stir over mass cell phone purchases? Every time one of the AQ people overseas talks to someone in the US using a different disposable cell phone, a new warrant needs to be generated, with 72 hours if they want to listen in immediately. Multiply that by hundreds. This is a massive undertaking to begin with, and to argue it is not sufficiently burdened with lawyers and paperwork is an odd argument to bring to the American people when talking about preventing another massive terrorist attack on US soil. All this to supposedly protect the rights of people actively communicating with enemy agents overseas in a time of war? I'd hate to think that anybody was listening in on Mohammed Attah's phone calls with OBL.
1.17.2006 3:16pm
Noah Klein (mail):
Mark B and others:

I think it is a good idea to review each thing that must certified and see if it would take more than 72 hours to determine.

"(1) the identity of the Federal officer making the application;"

This obviously should take a second.

"(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;"

Since this would refer to an executive order made by the president and a signature or some other approval by the AG, I would say let's give this about 30 minutes so you can attach the Executive order to the application and have the AG read it over and approve of it.

"(3) the identity, if known, or a description of the target of the electronic surveillance;"

Firstly, as can been seen from the wording, knowledge of the identity of the target is not even needed, but if given this should take no more time than the intel official telling the lawyer what the person's name or phone number or other description is. So let's give it about 5 minutes.

"(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;"

This might take more time than the requirements above it. This would require a certain amount of knowledge from the intel official that would have to be explained to the lawyer. The intel official should, of course, before the tap already know this information, so it would not require him that much more to reacquire the information so he can explain it to the lawyer. But maybe we should give this between an hour and two hours.

"(5) a statement of the proposed minimization procedures;"

This minimization procedures might take a while to develop. Possibly days or weeks. But at the time of the application these minimization procedures or the past procedures that would be changed by the AG once he makes a final judgement on the proposed procedures should already be known and easily be able to put on the said application. Thus, I would say this should take 15-30 minutes.

"(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;"

Once again, this is a somewhat more difficult part of the application. I would think that this would be part of the discussion related to Section 4 and the target, but this also like that part might take some time. I would give this an hour or two.

"(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;"

This also would require someone in the White House reading this information and approving of it. Therefore, I don't think this would take more time than the AG to do the same thing. I would give it 30 minutes.

"(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;"

Since this procedure would already be happening and thus pretty obvious as to the answer, I would say this would take a minute at most.

"(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;"

This would require some research. Considering that there have been somewhere close to 19,000 applications, this might take some time to determine. Of course, the lawyer will naturally exclude portions of those applicatiions that do not in any apply to this target. It might still take some time to narrow this down and determine whether any and which applications apply to this target. I would give it 6 hours.

"(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and"

This regards how long this order should be and the justification for the time. Since this might need some explanation, I would say this could take an hour.

"(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device."

This has nothing to do with the application, it just says that the same procedures apply to all the devices used and not just one. Therefore, this should take no time.

Also, we must consider how long this will take to get from the agency to the Department and up that chain and to the White House. With e-mail, faxes and so on. The time of travel should be nil, but the time it takes for the official to get to the court may be longer. This, of course, will be high priority and thus mean that it will take less time to get from official to official. I would say we should give this a day. I don't think it would take that long to get from one to the other and so on. But let's go ahead say it will a day.

Calculating all that time it would take 36 hours and 36 minutes and 1 second. Now, I do not have specific knowledge of this situation. I am not a good source to explain the timing. But looking at the procedures required for the application and having a knowledge of slow moving government. It does not make much sense that it would be longer and I doubt it is even close to as long as I say it might be. I think the more accurate figure would be that it would take an hour to get all that information down. Anybody who is prosecutor and has written a warrant would be helpful. Obviously, there are more standards for the application. But is it much greater than a criminal warrant? How long does it normally take you to write a warrant? It seems ridiculous to me to assume a smart lawyer cannot write a court order very quickly, even a complicated court order.

Noah
1.17.2006 3:38pm
duh! (mail):
Mark-

What you are dismissing is that the FBI had "thousands" of bad leads.

Now I don't know about you, but its hard to see how some school teacher would accidently be talking with someone on the other end of a terrorist's cell phone.

In short, you no more understand what went on in the program as we do. The difference is, some of us want to understand why ignoring FISA was necessary.

Give us a reason! Nobody would question listening in on a phone call for a known terrorist number, but why was there so many false positives?

Also, you keep stressing international only calls. This doesn't make sense from a policing stand point. Why would you ignore FISA on the basis of necessity, but then not go the next logical step and tap domesitic calls as well? If one of the stated purposes for the wiretapping was to root out domestic terrorist threats, then wouldn't the Government want to, uh, moniter those threats domestically?

You'd hate to think that Atta's calls with OBL were not monitered... I'd agree.

Wouldn't you also hate to think that Atta's calls to somebody in Georgia were also not being monitered??

Why would the Government sidestep the warrant on one hand, but not the other?
1.17.2006 3:39pm
Noah Klein (mail):
Mark B:

We are also talking about hundreds or thousands of technicians and anslysts talking to possibly hundreds of lawyers. Do you think that only four or five people in the Justice Departmen have the proper clearance? Of course not, there many lawyers both in the NSA and the Justice Department with the clearance to prepare these applications. The procedures required for this court order are obviously not the same as those for a kid selling pot in Sherman Oaks, but this does not mean it is a higher burden. In fact, it seems like a lower burden, because the lawyer does not even need probable cause that this person committed a crime, but instead that they are an agent of a foreign power. This is lower burden obviously.

Finally, we not talking about protecting the rights of terrorists or those talking to OBL. We are talking about the rights of Americans. This seems to be the disconnect. People defending this program don't understand or don't accept that this is surveilling Americans. These Americans haven't been accussed of crime or even met lower standard of probable cause that they are agents of a foreign power. These are Americans. And if the NYT story is correct, which I don't have any reason to doubt it (even though I know you think I should and you do), then many of these are in fact innocent Americans. The point is not to defend those talking to OBL. If we could determine for certain, without anything close to a doubt (in OTW if we were omniscient), that these were all terrorists plotting to destroy America than there would be no problem. As it is, even with standard of the FISA court, we still don't know for certain, without anything close to a doubt, that these are terrorist. We just have probable cause that they are terrorists. Why can't you see that the government is not omniscient?

Noah
1.17.2006 3:53pm
Mark Buehner (mail) (www):
Calculating all that time it would take 36 hours and 36 minutes and 1 second

It took me 20 minutes just to read your description of how its sposed to work. Give me a break, everything you describe as 'this should only take x' you are purely speculating on and failing to introduce all the friction inherent in any amount of bureacracy and paperwork. Oh Jim was sick today? Uh oh, he had the page 5. I'd love to hear your description of how i should be able to get my drivers license renewed in less than 4 hours. And after all that you still have a 36 hour process- assuming everything goes flawlessly. People do need to sleep and eat you know. Now imagine 50 of these arising every day. Doesnt take a genius to figure out there is going to be some major snafus at any given time.

Now lets remember the point of all this: we are talking about one of the biggest secrets in the entire American government, considered instrumental in preventing terrorist attack on US by an enemy we are at war with. The more people outside an absolute need to know you bring into this thing, the more certain information is going to leak out and be either found out by our enemies or published by the media. Which in fact is what happened. And you want to add a bunch more lawyers and paper pushers to this critical operation? It seems to me that the amdministrations first priority was to keep this program viable and dynamic. If adding a layer of lawyers and paperwork in any way made the system more efficient, you might have an argument. But obviously the only thing that layer can do is add friction, a tremendous amount. That is a bad idea with the security of the nation at stake. I dont think anyone familiar with how the sausage gets made in government is likely to agree with your assessment of how 'simple' such a process with such a mountain of instances would be. In fact it seems likely the whole thing would grind to a halt, or at the least would introduce a pressure of timidity on the NSA when constantly being pestered by a gaggle of lawyers when they could be listening in on AQ phone calls.
1.17.2006 3:56pm
Mark Buehner (mail) (www):
What you are dismissing is that the FBI had "thousands" of bad leads.

There is one unnamed source suggesting that, and we have no idea in what context that is or how many 'bad leads' the FBI deals with on a regular basis in this type of work.

Now I don't know about you, but its hard to see how some school teacher would accidently be talking with someone on the other end of a terrorist's cell phone.

Exactly.

In short, you no more understand what went on in the program as we do. The difference is, some of us want to understand why ignoring FISA was necessary.
Give us a reason! Nobody would question listening in on a phone call for a known terrorist number, but why was there so many false positives?


I've given a bunch of reasons. Again you have no idea how many false positives there are or what that implies. You have no idea that those false leads are directly generated from this particular program. You are speculating a heck of a lot more than i am. The point is, if we stop 1 terrorist attack, is that worth the terrible moral strain of the NSA listening in on people talking to terrorists overseas?
1.17.2006 4:01pm
Mark Buehner (mail) (www):
Finally, we not talking about protecting the rights of terrorists or those talking to OBL. We are talking about the rights of Americans. This seems to be the disconnect. People defending this program don't understand or don't accept that this is surveilling Americans

This program is specifically targetting people on American soil (citizens or not) talking to known terrorists overseas. I cant say that enough times, because some people just refuse to hear it. If Uncle Hans was talking to German subs on his ham radio in 1943, I would want Uncle Sam listening in on him as well. And I sure wouldnt want him to wait for a warrant. This is exactly the same thing.
1.17.2006 4:04pm
KMAJ (mail):
Noah,

You make too many assumptions based on your own admitted lack of knowledge of government operations and intelligence surveillance, specifically.

You, nor I, have any clue on what steps are taken from detection of the first contact to the actual monitoring. Nor do we know whether there is any use of those calls for criminal prosecution, remember FISA was initially created to maintain the wall between intelligence and criminal prosecution, specifically in the domestic arena.

Secondly, your whole premise is based on accepting that a FISA warrant is required. The DOJ and White House counsel advised otherwise, it is their role, not Congress or the judicial branch, to advise the executive branch on Constitutionality. Certainly the legislative branch attempting to do so would be a clear violation of the separation of powers, the judicial branch's role is to rule on specific cases brought before them, not advise. The administration followed the rules in advising appropriate congressional leaders of both parties, as well as conferring with the chief FISC judge. The DOJ (Comey) and chief FISC judge raised concerns, the program was restricted until those concerns were addressed, one would assume to the satisfaction of those concerned.

Third, lost in all this falderal, there has not been one documented claim the NSA targeted a person in the US without FISA approval, I accentuate NOT ONE, just the smearing attempts of insinuation and innuendo. There has not been one claim of the FBI not seeking a FISA warrant if the information turned over to it by the NSA panned out.

What you have here is political gamesmanship at the expense of the best interests and security of this country. A self-serving, power-drunk media driven maelstrom of disinformation, spin, baseless allegations and character assassination to try to take down an administration the old media does not like, a media bias the democrat party is all to willing to use in a propaganda effort to manipulate the public and inflame.

I am leery of any unelected monolith exerting power and influence, that includes the media and academia. Unlike government, with the exception of the judicial branch, where we the people have the power of the vote, we have no direct check on these unelected monoliths, there is no even balance of choice, though there is a very slow movement brought about by public pressure, it is still basically unresponsive to outside influences. You are part of that academic monolith, you are in the belly of the beast, as a student, being molded.
1.17.2006 4:21pm
KMAJ (mail):
Many in this forum have derided AJStrata because of his political point of view, but he has a very inciteful analysis of the NY Times article with many valid points and observations on his blog.

NY Times Confesses Truth About NSA Leak
1.17.2006 4:46pm
KMAJ (mail):
btw 'inciteful' was a deliberate misspelling, as I am sure his opinion will 'incite' some who disagree.
1.17.2006 4:48pm
Noah Klein (mail):
Mark:

I really don't think you get it.

With time elements, I was assuming people eat and sleep and so on. I wasn't expecting that this would take 36 straight hours. Remember, I said it would a day for all the paperwork to go from one person to another. The 36 hours that I said it would take, I thought as I said it would be the maximum or towards that extreme. I assume it will a lot less time. I would really like some prosecutor or somebody who has gotten warrants for the criminal process to make judgement, concerning the standards of FISA as stated above would this really take 36 hours or more 72 hours or just a couple of hours. It is my considered opinion tha

Secondly, your misstating the amount of court orders. The Justice Department has said that there has been 19,000 applications over 30 years. The amount per year increased, obviously, after 9/11. Since that time, somewhere close to 4,000-5,000 applications were made. Also, we must consider that perhaps thousands have been surveiled as part of this program. Let's just say that on the outside chance its another 5000. If do we do some division, (10,000/4)/365=7. That's about seven per day.

Finally, we would not be adding a layer to talk about the lawyers. They are already there. Do you honestly think that the intel official goes to court? No, its the lawyer. The intel official focuses on his job. The lawyer goes to the court. Did you think that the Justice Department did not have an intelligence subdepartment, which full or lawyers? Of course, it does. This is agency is called the Office of Intelligence Policy and Review. Here is their mission statement:

"The Office of Intelligence Policy and Review, under the direction of the Counsel for Intelligence Policy, is responsible for advising the Attorney General on all matters relating to the national security activities of the United States. The Office prepares and files all applications for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act of 1978, assists Government agencies by providing legal advice on matters of national security law and policy, and represents the Department of Justice on variety of interagency committees such as the National Counterintelligence Policy Board. The Office also comments on and coordinates other agencies' views regarding proposed legislation affecting intelligence matters.


"The Office serves as adviser to the Attorney General and various client agencies, including the Central Intelligence Agency, the Federal Bureau of Investigation, and the Defense and State Departments, concerning questions of law, regulation, and guidelines as well as the legality of domestic and overseas intelligence operations."

These lawyers already exist. We are not adding a layer nor are we delaying the intelligence gathering. Remember the reason we have to ensure that this happens within 72 hours is because the tap, pen register or other device for surveillance is already under way. And as to the time that the intel official has to take away from his job, since the information is being recorded, I am okay with him taking perhaps at most an hour or a half an hour to explain to the lawyer the reason behind the tap. We don't lose the information and we ensure that people's rights are protected.

Mark, as to Uncle Hans talking to Hitler, one this program didn't exist then. But even if it did, Uncle Hans is an American citizen (if it is to be comparable to the program in question) and first you must determine that he would even think of doing such a thing. Because if we break the law to surveil Uncle Hans, who might doing such a thing, then why can't we break the law to say Noah (who is Jewish) must spying for Israel. Well we need surveil Noah just to make sure he's not. Oh wait, well why can't we jail him? Why can't we execute him? The government is not omniscient. We don't know for sure that Uncle Hans is using his Ham radio in such way, unless evidence points us in that direction.
Using your example, let's say Uncle Hans was just a German immigrant from the turn of the century. He became a U.S. citizen and a baker. There many people just Uncle Hans in his community. How do we know that Uncle Hans is sending messages? You assume we know that Uncle Hans is sending messages. If we do, then it ain't no thing to tap and get a court (I know I used a double negative). If we don't, then if we're going to tap Uncle Hans, why don't we tap his brother Otto? Or their children? Or everybody in their community? The reason we don't is because, 1) it would be fruitless because the amount of usable intelligence gathered would not be worth the effort of gathering and deciphering it. 2) because we live in system of laws that respects the rights of the individuals who live our jurdisdiction. We can't force others to live under our laws and we can't force others to believe what believe. Since this is a dangerous world and people across it do not accept values, we do not apply our values on them. We thus don't care if you listen in on the phone calls of foreigners to foreigners. But we expect our government to respect our rights and when it doesn't it becomes a tyranny.

Noah
1.17.2006 4:50pm
Noah Klein (mail):
KMAJ:

How many times do we have to demonstrate to you that Americans are being targeted. The NYT said it. The president said it. The AG said it. Moschella said it. The CRS report, which was based off the legal arguments made by the Moschella, said it. U.S. persons (citizens and residents) ARE THE TARGETS of the the surveillance. If after all this, you still can't accept that, if your faith in this president is so strong to doubt that he would target U.S. persons like this, then there is no reason to debate you anymore. You won't be able to the truth and you will be like one of those people who say Nixon didn't do anything wrong. He did the same thing as past presidents. Where is your evidence? We have given tons of evidence, where is yours?

As to AJStrata, stop using somebdoy who has constantly been demonstrated to be a liar. The evidence he cites to demonstrate that current program is not targeting Americans is court case from 1979, which was filed before FISA. Please use a more reputable source. He has been completely discredited on this blog.

Your rants against the media are useless to this debate. We not arguing the bias of the media. We are not arguing whether or not this institution is corrosive or beneficial to our society. We are arguing whether the president can break the law. We are arguing if the president broke the law. Finally, we are arguing if the president broke the law was it for a good purpose and should he under our system be able to continue to do so. So far, the evidence from the NYT on the program that has confirmed was confirmed by the president and the AG. So far, we have no reason to doubt the veracity of their reports (beyond our own biases and the fact that this is from unattributed sources). If the NYT reports are determined to be a lie, I will be the first to say I was wrong and they were criminal for such actions. But since, we don't information on this from any other source. Let's debate the information provided with the proviso that we know we are getting the information second hand or possibly third hand and thus must understand the liabilities there. We don't information any other way. Do you know of another way, besides the press, that we would learn of great abuses by the governmetn? If so, tell me and I will use that source, if it is better.

Noah
1.17.2006 5:12pm
JohnAnnArbor:
U.S. persons (citizens and residents) ARE THE TARGETS of the the surveillance.

If they're on some overseas terrorist's cell phone list, they should be. Duh.
1.17.2006 5:34pm
Mark Buehner (mail) (www):
Noah, i cant continue this discussion. You are bouncing back and forth between what is happening, what could happen, what should happen, and what might happen interchangeably, and with absolutely nothing to back up your assertions. The NSA is bypassing the FISA court under certain circumstances. It should be quite apparent that comparing what happens when they have gone to court under different circumstances and using it to assume what would happen under these circumstances is as pointless as it is liable to be wildly innaccurate. I dont disregard your opinion, but neither do i intend to keep up an argument based on idle speculation that seems fantastic to me. But in parting, a cant help but address one last of your assumptions:

U.S. persons (citizens and residents) ARE THE TARGETS of the the surveillance. If after all this, you still can't accept that, if your faith in this president is so strong to doubt that he would target U.S. persons like this, then there is no reason to debate you anymore.


" ….we're talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda."


Those are the words of the Attorney General. Either he is lying or you are flat out wrong. I tend to believe the guy with the facts instead of the guy on the internet so blase about what 'must' be the case.
1.17.2006 5:40pm
Just an Observer:
Trying to correct the misstatements of law perpetuated by AjStrata is like playing Whack-a-Mole. No matter how often one refutes his misstatements -- originated on his own polemic blog and repeated here by himself and his true believers -- the same misstatements resurface later by repetition.

AJStrata is fixated on the question of who is "targeted" by an intercept. It's always legal, he states as an axiom, if a bad guy overseas is "targeted" by an intercept and that intercept happens to pick up someone in the United States.

Well, that is a gross oversimplification of the FISA statute. In some cases, under the law, it does matter who is "targeted." In other cases, including all the NSA intercepts that reportedly occurred in the United States, it is irrelevant who is targeted, or if there even if anyone is a target. In such a situation, FISA applies to the intercept.

This was all explained before here. Whack! The mole disappeared.

Now it reappears. Whack!
1.17.2006 6:23pm
Freder Frederson (mail):
Those are the words of the Attorney General. Either he is lying or you are flat out wrong. I tend to believe the guy with the facts instead of the guy on the internet so blase about what 'must' be the case.

Well that is exactly the problem. I believe that the administration, including the Attorney General and the President are lying about this program. I think they are lying about its scope and its breadth. I bet, if it is ever is fully revealed, that we will find out they were and are spying on people who had absolutely nothing to do with foreigners or Al Qaeda and were tapping purely domestic calls between U.S. citizens including groups with hundreds of years of non-violent aims like the Quakers.

Why do I believe this? Because the president has already been caught in a couple outright lies about the program. Before the program came to light he repeatedly stated that warrants were required to spy on people and even cited FISA as requiring warrants. McClellan et. al. have tried to parse his words without much success. He was lying. After the program was revealed he stated that only calls coming into the country were being monitored. Another lie. The White House later "clarified" his remarks and said that what he meant to say that both outcoming and incoming calls were monitored. The "consultations" with congress and the courts were apparently cursory at best.

Every time something new is revealed, it contradicts something the Administration has already told us. Today's story is just another example.
1.17.2006 6:29pm
Wintermute (www):
Orin, do you have "Potential"-lexia?
1.17.2006 6:57pm
Noah Klein (mail):
Mark B:

I thought I delinated between the potential and the actual, but if I didn't I am sorry. When I addressed the timing situation with regards to the finding of the warrant I was talking about my assumption about what happens during the filing of this warrant based on my experience with the federal government. I would also like to note that I often in those posts requested anybody with warrant experience to say whether I was way off or not. I still hope someone will make some kind of statement with regards When I addressed the law and the program, I was talking about what actually was happening.

" ….we're talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda."

If this were the only thing that the AG said with regards to the NSA Program, I would say you are correct, yet he also said:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress."

This means one of two things: 1) Either I am right and American citizens are being targetted and thus this is a violation of FISA as the AG says or 2) I am wrong and Freder is right that it does not matter who they are targetting and they are violating FISA. My point in saying that U.S. citizens are targets is just to demonstrate that the AG said this program violates FISA and I am tired of ridiculous arguments to the contrary.

Noah
1.18.2006 1:44am
speaker-to-animals (mail):
There is another agency which indulges in turf wars and leaks.
look at the title to Risen's book.
State of War : The Secret History of the C.I.A. and the Bush Administration
i betcha the

More than a dozen current and former law enforcement and counterterrorism officials

includes only ONE former NSA official, the execrable triple-chinned traitor, Russell Tice. My prediction is the rest are FBI and CIA.
1.18.2006 3:13pm