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NY Times reports NSA is "data mining" domestic telecommunications
December 23, 2005 10:09 PM   Subscribe

The New York Times (reg required) is reporting that the National Security Agency has eavesdropped on far more domestic telecommunications at the directive of President Bush than has been previously admitted. "The N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications... N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation."
posted by chakalakasp (243 comments total)

 
BTW, this article kinda freaked me out. It would seem that ol' Big Brother has finally arrived in the good ol' US of A. The paranoid types have been saying that this has been going on for years, but I always kinda took them as the paranoid types. I'm kinda astounded that anything like this could be going on in America.
posted by chakalakasp at 10:13 PM on December 23, 2005


double?
posted by slater at 10:14 PM on December 23, 2005


I've just started CC'ing the NSA whenever I send emails so they don't have to go sneaking around.
posted by strangeleftydoublethink at 10:15 PM on December 23, 2005


No, believe it or not, it's not a double -- that other post deals with an entirely different set of violations of the Constitution.
posted by chakalakasp at 10:15 PM on December 23, 2005


I always figured they were doing this, but it strangely blows my fucking mind that this actually is proven.
posted by my sock puppet account at 10:22 PM on December 23, 2005


I wonder if this will be the thing to finally get the majority of people to start encrypting their e-mail. Anyone know of any easy-to-use encryption plugins for Outlook? (Yes, it has to be Outlook)
posted by longdaysjourney at 10:25 PM on December 23, 2005


This simply has got to get Bush & Co. in trouble. It's just such an egregious flouting of very important laws.

And so far, they've had nothing but the incredibly weak defense, "We did it for your own good!"

Well, if it was truly for our own good, I don't see why they couldn't have gone through the proper channels and done it all legitimately. It's not as if, with the current gang in Washington, they would have run up against very stiff opposition. Unless.... Unless.... Unless....

Unless the whole program was even bigger then these recent developments reveal. Like, much much bigger. So big that if its true dimensions were revealed, even the scariest Orrin Santorum Alito would say, "Wait just a cotton-picking-minute!"

At this point, I wouldn't be surprised.

(passing the popcorn)
posted by Afroblanco at 10:28 PM on December 23, 2005


One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

??!


longdaysjourney; GnuPG is a freely-available open-source implementation of PGP. A plugin for Mail on the Mac is available, I'm sure there's something similar for Outlook.
posted by odinsdream at 10:29 PM on December 23, 2005


Not to be overly cynical but pretty much everyone i know with a clue has just assumed this has been going on for a long time. I mean the Senators can act all surprised but what geek who looks at cryptome occasionally or read any of the info on Echelon that has been public for many years now honestly thought that domestic surveillance wasn't rampant?
I'm less clear on the factors that are pushing this info back into the limelight at this particular moment. Any good analysis out there on this question?
posted by well_balanced at 10:30 PM on December 23, 2005


Afroblanco : "Well, if it was truly for our own good, I don't see why they couldn't have gone through the proper channels and done it all legitimately."

Because people would freak out about whether it is for "own good", and the opposition would use it to make hay even though they understand and sympathize privately.
posted by Gyan at 10:30 PM on December 23, 2005


Bear in mind that the issue here is tapping communications passing through the U.S., by way of switching stations. If you make a call on a satellite phone from Canada to Afghanistan, and it happens to run through a ground station or switch in the U.S., then the NSA is certainly going to try to listen in. Is that a "domestic" communication?
posted by Brian James at 10:31 PM on December 23, 2005


This stuff, and echelon, is nothing compared to promis.
posted by stenseng at 10:35 PM on December 23, 2005


Thanks odinsdream. Ease-of-installation and ease-of-use are the things I'm really looking for, since otherwise I'll never be able to convince my family to use it.
posted by longdaysjourney at 10:36 PM on December 23, 2005


Although I suppose there's no point in encrypting my e-mail if Outlook has backdoors built into it. Ahhhh, paranoia, self-destroya.
posted by longdaysjourney at 10:39 PM on December 23, 2005


Because people would freak out about whether it is for "own good", and the opposition would use it to make hay even though they understand and sympathize privately.

First off, I don't know who you are referring to as the people who would be "freaking out." Are you talking about the judges who approve of the FISA warrents? Honestly, if something freaks out one of those judges, I would say that they should be allowed to freak out and object! After all, that's their job, isn't it? I mean, we keep these guys around for a reason, right?
posted by Afroblanco at 10:40 PM on December 23, 2005


Brian James, you're simply wrong - the article is clear that this does involve domestic outbound communication. The switches also happen to handle passthrough traffic, which is a bonus for the NSA - and why they were trying to encourage companies to purposefully route traffic that otherwise wouldn't be sent here through U.S. switches.
posted by odinsdream at 10:45 PM on December 23, 2005


In either case, I'd be very surprised if the segregation of outbound domestic versus passthrough could even be accomplished with the method the NSA seems to have gone with - simply plugging in to the switch and monitoring anything it touches.
posted by odinsdream at 10:47 PM on December 23, 2005


Points:

1) The 4th Amendment doesn't mean jack since this info isn't being used in criminal trials

2) There may or may not be a violation of FISA. There are plenty of loopholes in FISA, eg. if the surveiled communication is untargeted; loopholes of what is "surveillance" bolded:

(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) 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, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

3) I've learned way more about the 4th amendment the past 2 days than I thought possible or necessary or healthy
posted by Heywood Mogroot at 10:49 PM on December 23, 2005


What is your argument, then? The switches are in the U.S., the sender and recipient are unknown, since it's everybody on the switch, and the content is not acquired by intentionally targeting any individual person.
posted by odinsdream at 10:54 PM on December 23, 2005


No, the switches are in the U.S., the sender and the recipient ARE known, the data content of the calls themselves are supposedly unknown (though I really highly doubt it given the trend of the information leaking out), but the calling patterns (i.e., who you called and when) are known to the NSA. And getting that information typically requires a warrant, at least in the USA.
posted by chakalakasp at 10:57 PM on December 23, 2005


This is no big surprise. I'd like to hear people's speculation as to what type of keyword combinations, etc. might be likely to trigger a post to be monitored by the NSA? There are the obvious ones, but I've got to believe there are hundreds of thousands of posts which could qualify daily if screened only for names like Osama or Al Quaeda. Perhaps there are certain words like key place names in Afghanistan or Iraq which are triggers. Or the use of names of key components of explosives... I assume that terrorists wouldn't be entirely stupid, so they might use code words to refer to various people and supplies. Perhaps Osama would be designated as "Yosemite Sam" or something like that.

What would be your list of keywords?
posted by notmtwain at 10:59 PM on December 23, 2005


This stuff, and echelon, is nothing compared to promis.

It was written in 1983. Be serious. I think the well-documented Jurassic limitations of the FBI's systems put paid to a lot of the fantasy hype that was fluttered around PROMIS, e.g. with a staggering 570,000 lines of computer code, PROMIS can integrate innumerable databases without requiring any reprogramming. C'mon; even WIRED had people who integrated databases for a living back then, and it just ain't that simple. The standard description You can rotate the file by case, defendant, arresting officer, judge, defense lawyer, and it's tracking all the names of all the people in all the cases. sounds much more realistic.

That said, a pretty low-tech keyword system combined with built-in language functions like similar() could do quite a bit with the raw sewage in a telco pipeline.
posted by dhartung at 11:02 PM on December 23, 2005


The only thing preventing us from being truly safe is the Constitution. We need to get rid of it. I think it has yellowcake uranium.
posted by my sock puppet account at 11:03 PM on December 23, 2005


People will feign outrage on the net for a few days, and then go back to writing on their blog about how their favorite tv show has gone to the dogs this season.
Why even pretend that anyone cares anymore?
posted by nightchrome at 11:03 PM on December 23, 2005


I wonder if every ISP is also sending everything to them that travels on its networks? Every email, every url visited, all text typed...
posted by amberglow at 11:08 PM on December 23, 2005


People will feign outrage on the net for a few days, and then go back to writing on their blog about how their favorite tv show has gone to the dogs this season.

Duuuude! They TOTALLY took Arrested Development off the air!!!!!!1!!111one!
posted by Afroblanco at 11:09 PM on December 23, 2005


Friday-night before Christmas news story, 2 weeks of holidays, this will be cold turkey. Exactly what the Whitehouse hopes. The NYT had this story before last years election. Unbelievable.
posted by stbalbach at 11:10 PM on December 23, 2005


With all of the controversy about the news that the NSA has been monitoring, since 9/11, telephone calls and email messages of Americans, some folks might now be wondering if they are being snooped on. Here's a quick and easy method to see if one's email messages are being read by someone else.
...

posted by amberglow at 11:21 PM on December 23, 2005


How NSA can grab your call legally:

1) they batch collect it domestically, not targetting you specifically
2) they tap a cable outside the US
3) they intercept a radio call with no expectation of privacy (eg a cellular phone) or one party is not in the US.

eg. if they grab all calls to/from phones in Afghanistan, they are not targetting you specifically (unless you are in Afghanistan) so this doesn't count as surveillance.
posted by Heywood Mogroot at 11:23 PM on December 23, 2005


amberglow: that method is just as likely (probably more likely) to net you on some sort of watchlist as it is to actually prove anyone is spying on you. Be careful what you wish for.
posted by kjell at 11:25 PM on December 23, 2005


I'll try to clarify and summarize because I think some are confused.

Say, who is named John, call your friend Bob, then you call your friend John, then you call your friend Durka Durka to set up a suicide bombing mission for next Thursday. In the past, if the government wanted access to who you called, they went to a judge, laid out their case, and the judge either told them to stuff it or said "sure" and issued them a warrant. Once the judge said "sure", the government could go to the local telco with warrant in hand and say "Gimme everything you got on John." And they would give the government the records. And the government, who has prior evidence that you are a potential suicide bomber, sees that you are calling Durka Durka, who also is a known potential suicide bomber. The government would then go back to Mr. Judge and ask for a wiretap warrant to hear what it is that you're saying to Mr. Durka Durka. If they got the warrant, they'd tap your phone, listening in as best is possible for only conversations pertaining to blowing innocent people up.

Now, fastforward to today, what has been revealed prior, and what is revealed now. Now the governement has gone to the telecommunications companies and said "Hi, we're the government. Let us tap into your switches. We have no warrant, but trust us, it's better if you help us." So the telcos give the government unfettered access to the switches. Now, the government logs ALL calls coming in and out. The actual conversations are not recorded, but they know who called who when -- for everyone. Now, instead of going to a judge and saying "Please judge, here is our case, let us look at John's records," they just go to their captured data database and type your phone number into the search field. Armed with the knowledge that you've been calling Durka Durka, they then type his number into the search field and see who he's been calling. Then, instead of getting a warrant for a wiretap, they just go ahead and start wiretapping the both of you, and probably half the people that you talk to, to, in the hopes of catching as many in the dragnet as possible. Nobody knows about what they're doing except them and the president. There is no court oversight, or even court notification. It's all just done.

"But," you say, "this is needed! Getting warrants is too slow and terrorists are really fast bomb-builders! " Except, of course, the government already has the power to do these things FIRST and then get a SECRET warrant within 72 hours. So expedience clearly isn't why they are doing this.

Ah, but "great!", you say, that helped us catch those bombers Durka Durka and John throw their msierable butts into jail (though, in reality, many of these people have lately just been "dissapearing", held somewhere undisclosed with no access to a lawyer.) Ah, but, you see, it doesn't have to stop there. Why not see who, say, PETA is talking to? Why not look into who's giving John Kerry a ring? I mean, it's not like there is a paper trail. Why not have a listen into Harry Reid 's phone conversations every now and then to see what he's planning? Nobody would know. I'm not saying that these things are happening, but the fact that they COULD be given the current system is why the current system is very, very dangerous. It's why we HAVE judicial oversight. And the fact that expedience is not why they're doing this makes me VERY suspicious. Why do it this way unless you're purposefully attempting to avoid a papertrail? If who you are listening in on is clearly important to national security, than judicial oversight should be no obstacle at all. It's only when the person you are listening in on is clearly NOT important to national security that avoiding judicial oversight becomes important.

I have a feeling that we've only scratched the surface of something really big and bad.
posted by chakalakasp at 11:26 PM on December 23, 2005


I should also point out that, obviously, names are not the only things that can be run through filters. Want to get a list of all calls from Chicago to Afghanistan? Click. Want to get a list of all calls from Washington, D.C. to Ohio? Click. Want to get a list of all calls placed at 11:40 PM on Wednesday? Click. Want to get a list of all calls that lasted for more than 15 minutes? Click. All calls to Ohio that lasted more than 15 minutes from Harry Reid's office? Click.
posted by chakalakasp at 11:29 PM on December 23, 2005


odinsdream, your conclusion is most likely correct but not supported by the article. Based on this article, it's not at all clear that domestic outbound comms (ie, a call from a person known to be in the U.S. to a person known to be outside) are involved. I'm reading the same article you are and I just don't see it. I don't doubt it happened, but it's not there.

Even so, that's not the point of this story--you're thinking of a few days ago. Here, the issue is the NSA conducted traffic analysis on calls routed through the US, and encouraged telcos to route more traffic through their US switches.
posted by Brian James at 11:32 PM on December 23, 2005


eg. if they grab all calls to/from phones in Afghanistan, they are not targetting you specifically (unless you are in Afghanistan) so this doesn't count as surveillance.

Yes, but if you're tapping ALL conversations, then some of those conversations are bound to be innocuous. What do you do with all the information about "innocent" people?

Unless you destroy that information immediately, and only keep the information relating to the "guilty" people, I think it could be said that you are "targeting" people.
posted by Afroblanco at 11:33 PM on December 23, 2005


God. Who do you think is their source on all of this? I'm betting its the same one that got the whole ball rolling by leaking (also to the nyt) about the wiretapping. That guy has Iron balls, for sure (and I wonder what his motivation is)
posted by delmoi at 11:34 PM on December 23, 2005


chakalakasp:

It's accepted constitutional jurisprudence that pen-registers (recording phone numbers) don't need warrants.

Like I said elsewhere, sure the potential for abuse is bad. But the public disclosure of this abuse, should it occur, would be even worse to the perpetrators.

This is similar to the WMD case in Iraq. It would have been better for the admin to drop some sarin shells somewhere, or something. But the disclosure that they had done this, should it come out, would be an impeachable offense even WITH a republican majority (since anyone who failed to vote to impeach/convict would be thrown out of office next election day).
posted by Heywood Mogroot at 11:34 PM on December 23, 2005


afro:

the FISA definition of what is surveillance:

"the acquisition ... of the contents of any ... communication sent by or ... received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person"

If they're tapping all phones in Afghanistan, and you call over there, you weren't the intentional target, and if all they got is your phone number, you are not a particular, known US person. You could be anybody until they look up that phone number.
posted by Heywood Mogroot at 11:39 PM on December 23, 2005


It was written in 1983. Be serious.

Okay, let me rephrase that - this stuff is nothing compared to the promis derived and inspired software that's been developed over the last twenty years.
posted by stenseng at 11:40 PM on December 23, 2005


I caught my boss reading my email at work on his computer. There was nothing bad in the email, it was a typical communicate from one co-worker to another about a project. I know full well that employers have the right to do that and he has the access. However, it still made me feel guilty, and made me a little less trusting of him.

Now amplify that by a billion for the goverment even if they're legitimately doing the right thing. A trillion times amplified of not.

WTF, land of the free?
posted by [insert clever name here] at 11:45 PM on December 23, 2005


What do you do with all the information about "innocent" people?

If a tree falls in the forest, does it make a sound?

Actually, there is some case for a "chilling effect" of freedom of speech should we be subjected to a regime that is surveilling all calls like that. But if the surveilled calls are in fact all overseas calls, then there is much less chilling (more distance == lesser reasonable expectation of privacy) to a much smaller group (people communicating overseas).

Thing is, nobody may have standing to sue about this "chilling effect". The courts need present controversy, not potential controversies.
posted by Heywood Mogroot at 11:45 PM on December 23, 2005


1) The 4th Amendment doesn't mean jack since this info isn't being used in criminal trials

Heywood: go fuck yourself. Seriously. The 4th amendment doesn’t say "the people have the right to be secure against searches where the results can be used in a legitimate criminal trial, as opposed to simply being kidnapped and being secretly held at a military instillation indefinitely, which is totaly not a big deal anway, because they'll have an ocean view cage!"

The 4th amendment limits what the government can do. Personally, I'd rather that evidence gathered illegally could be used in court, with the cavet that the people who gathered it also be charged with the crimes they committed getting it (like breaking and entering, for example).

If bush gets away with this, good for him I guess. I always like seeing criminals get away with it! But that's what he is, make no god damn mistake.

And seriously. I'd rather live in a free society with a 9/11 scale attack every decade then live in a 1984 style dictatorship. People die all the time, but only a few of those dead ever had the chance to live as free people. Why the hell should I worry about god damn terrorists. I live in IOWA for gods sake!

I am so damn sick of all these cowards in their god-damn whaaaaaambulance driving us right to totalitarian dictatorship!
yes I'm drunk, why do you ask?
posted by delmoi at 11:50 PM on December 23, 2005


Isn't it interesting how these really terrible, damaging stories always break about two days before Christmas or some other major holiday?.
posted by Malor at 11:51 PM on December 23, 2005


One of my biggest problems with these data-mining efforts is that I don't think that they destroy data of known innocents. I think they keep it all. That means that everybody is a target, and not just "the bad guys."
posted by Afroblanco at 11:52 PM on December 23, 2005


How NSA can grab your call legally:

What do you mean? According to the bush admin, they can "grab" you at any time for any reason, as long as they think you're a 'terrorist'. Of course, "grab" means "kidnap and torture, without telling anyone."

What a wonderful country we live in.
posted by delmoi at 11:52 PM on December 23, 2005


The 4th amendment limits what the government can do

Good point. Surely either the judiciary or Congress can get the Executive to stop ignoring 4th Amendment protections on search & seizure. Or we can vote in a new Executive in 2009.
posted by Heywood Mogroot at 11:57 PM on December 23, 2005


chakalakasp: my apologies for the double call-out. My head's been spinning from all these wiretap stories...
posted by slater at 12:05 AM on December 24, 2005


I remember this old TechWorld article about the hardware used by Echelon (probably way out of date now):

"The systems are a combination of SSD with DSP ASICs." ASICs are application-specific integrated circuits - chips dedicated to a specific purpose.

TMS has a TM-44 DSP chip which has 8 GFLOPS of processing power... A SAM-650 product is called a 192 GFLOPS DSP supercomputer by TMS. It is just 3U high and has 24 DSP chips and is positioned as a back-end number cruncher controlled by any standard server - a similar architecture to that used by Cray supercomputers. There are vast streams of information coming from recorded telephone conversations. The ability to have the DSPs work in parallel speeds up analysis enormously. Spinning hard drives can't feed the DSPs fast enough, nor are they quick enough for subsequent software analysis of the data. Consequently TMS uses its solid state technology to provide a buffer up to 32GB that keeps the DSPs operating at full speed.

A cluster of five SAM-650's provides a terra flop of processing power; one trillion floating point operations per second.

Recorded signals are fed into the TMS SAM systems where the DSPs filter out the noise to produce much clearer signals that software can work on to detect individual voices, perform voice recognition, and listen out for keywords, such as, for example, "Semtex". Decryption of encrypted calls is also a likely activity.
"

And here is the obligatory Slashdot thread on the above article.
posted by Meridian at 12:07 AM on December 24, 2005


Please allow me a moment of outrage here.

Do you guys believe what is going on?

Look at the things that our country has started to represent : torture, surveillance, and leaders that are above the law.

Where the hell are we going?!

AAAAAARRRRRGGGGHHHHH!!!!

Sorry. I feel a little better now. Still, AAAAAAAAARRRRRGGGGHHHHH!!!!
posted by Afroblanco at 12:11 AM on December 24, 2005


The United States Department of Defense's Information Awareness Office and their original mission of Total Information Awareness is like something straight out of 1984.
posted by Meridian at 12:19 AM on December 24, 2005


Evidently Poindexter's TIA never really went away, did it.
posted by clevershark at 12:20 AM on December 24, 2005


and why are we in this handbasket?
posted by Heywood Mogroot at 12:21 AM on December 24, 2005


clevershark, you're right, it just got renamed and expanded. Here's some info from the above link:

"The IAO has the stated mission to gather as much information as possible about everyone, in a centralized location, for easy perusal by the United States government, including (though not limited to) Internet activity, credit card purchase histories, airline ticket purchases, car rentals, medical records, educational transcripts, driver's licenses, utility bills, tax returns, and any other available data. In essence, the IAO’s goal is to develop the capacity to recreate a life history of thoughts and movements for any individual on the planet on demand, which some deem necessary to counter the threat of terrorism. Critics claim the very existence of the IAO completely disregards the concept of individual privacy and liberties. They see the organization as far too invasive and prone to abuse."
posted by Meridian at 12:22 AM on December 24, 2005


Malor, yeah I said the same thing above, the timing of the news on the Friday evening before Christmas is no accident.
posted by stbalbach at 12:46 AM on December 24, 2005


This was their actual logo. The Latin text "scientia est potentia" means "knowledge is power".

Image Hosted by ImageShack.us
posted by Meridian at 12:48 AM on December 24, 2005


Yeah, that logo is pretty over-the-top.

However, I figure that if you use symbolism that nutjob conspiracy theorists tend to latch on to, you all attract so many nutjobs that their voices will totally drown out those of the reasonable objectors. Then you can just point at your opposition and say, "Look, what a bunch of loonies!"

Either that, or Cheney really is one of the Illuminati, and he's trying to immanetize the eschaton.
posted by Afroblanco at 1:07 AM on December 24, 2005


That logo looks like the Illuminati intelligently designing earth!
posted by zaelic at 1:13 AM on December 24, 2005


re: keywords they are looking for -- couldn't we start a movement to jam this intrusion (I'm Canadian, but I doubt there is any distinction for these purposes) by loading every email and every telephone call and every post we make, all day, every day, with a bombshell sarin osama usama bin badboys ricin nitro sidewinder oppenheimer abdul! abdul! falafel poppies allah inshallah yemeni boxcutter blood uranium polonium anthrax buboes gaza fly united ricin ricin jihad fallout mohammed koran gitmo nader fever fahrenheit pentagon mecca chomsky umlaut baghdad biggles bangbang oops sniper kill kill fresh kills yucca axis beards burning bush sudan stealth digging digging ammo thorax deflagration detonation desecration atta atta wiretapper secret b52 kamikaze throbbing vioxx laser firefox bertha sandstorms taliban pakistan galloway capital bullseye nasty nasty nasty akbar camelbag rendezvous prague evildoers boom splat bing bang bong faisal kong chittagong frenchfries canuckisterrorist tan cardcarrying ungodly fusillade tnt woundedknee john kerry dworkin ortega ortega fallujah revenge yellowcake pretzel hubristan few key words, kind of like decoy chaff?
posted by Rumple at 1:29 AM on December 24, 2005


He knows if you've been bad or good, so be good for goodness sakes.
posted by ColdChef at 1:39 AM on December 24, 2005


I wonder if this will be the thing to finally get the majority of people to start encrypting their e-mail.

heh
posted by ryoshu at 2:01 AM on December 24, 2005


Rumple: See that's the thing--I don't believe that the "key words" are necessarily about foreign terrorist-related concepts. I think that "nader" and "chomsky" and "biodiesel" are things that are going to set off the alarms.

Call me paranoid, but I'm almost at the point where I don't know if I can trust my own government.
posted by leftcoastbob at 2:47 AM on December 24, 2005


Way up, someone questioned why the New York Times sat on this story for a year and a half while the 2004 election came and went. It bears repeating. It's like the Times has Watergate envy and it's just dying to take down a President. They'd rather shoot for impeachment.

That said, this doesn't seem all that different from the COINTELPRO stuff that was going on in the sixties and seventies. Is the issue that this is the NSA and not the FBI? It doesn't matter much to me which government agency is spying on me, and I guess I just assumed they never stopped.

Regardless, it sure wasn't COINTELPRO that brought down Nixon.
posted by ScottMorris at 2:48 AM on December 24, 2005


As Pogo put it during the days of the House Unamerican Activities Committee, "Sometimes you have to destroy the forest to save the trees."

He was being ironic. The NSA isn't.
posted by Jatayu das at 2:58 AM on December 24, 2005


1) The 4th Amendment doesn't mean jack since this info isn't being used in criminal trials

Are you seriously making the argument that the police can stop me on the street, search me, search my car, drive me home, search my house, tap my phone, and take all my stuff, as long as they don't charge me with a crime?

(Of course, I suppose being charged with a crime isn't necessary anymore as a prelude to throwing me in prison to rot for the rest of my life if they want to, so why not?)
posted by EarBucket at 3:08 AM on December 24, 2005


So yeah, how 'bout that last episode of 'Joey'...
posted by nightchrome at 4:05 AM on December 24, 2005


"I'M MAD AS HELL and I'm not gonna take it anymore"
posted by fullerine at 4:18 AM on December 24, 2005


This was their actual logo. The Latin text "scientia est potentia" means "knowledge is power".

Yeah, that logo is pretty over-the-top.


As if that isn't over-the-top enough, they commissioned a mass-produced three-dimensional die cut lenticular version (think winking Jesus) through some friends of mine. I've got one of the samples.
posted by StickyCarpet at 5:14 AM on December 24, 2005


A lot of wrong thinking, confusion, missed facts could be cleared up here if one took the time to read http://www.salon.com/books/review/2001/04/25/nsa/ the second book by the guy who is up ON nsa past and present.
As forencryption etc.= forget it. They have this covered too.
posted by Postroad at 5:39 AM on December 24, 2005


Set up a honey pot to trap the NSA.
posted by caddis at 5:48 AM on December 24, 2005


never mind, amberglow has got it covered up thread
posted by caddis at 5:51 AM on December 24, 2005


caddis, don't worry: Metafilter already is that honey pot!
posted by ParisParamus at 6:14 AM on December 24, 2005


Thank you President Bush for protecting us.
posted by ParisParamus at 6:15 AM on December 24, 2005


WARNING! ParisParamus has entered the discussion. Do not engage, repeat: DO NOT ENGAGE. Keep to a safe distance. That is all.
posted by kaemaril at 6:44 AM on December 24, 2005


Heywood, et al.,

According to FISA (specifically Section 1802), the law states:

(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

...(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;...


So, it doesn't matter if a US citizen is targeted, known or whatever. The clear wording of the law says that if there is ANY SUBSTANTIAL LIKELIHOOD that the wiretap will acquire contents of any communication of a US citizen, then it is NOT permissible under FISA.

If Bush authorized warrantless wiretaps that had any substantial likelihood of aquiring US citizen communications, then he broke the law.

Whether the law is constitutional is another matter. But the FISA is pretty clear in what it doesn't allow, here.
posted by darkstar at 7:22 AM on December 24, 2005


chakalakasp :than judicial oversight should be no obstacle at all

But it is ! Pesky activist judges can't really do what they want so ,in revenge, they apply the law as they deem fit.
Except that even the most corrupted judge decision can be further scrutinized , appealed and overthrown IF the systems records and let's the public almost-real-time access the records of what the judge said, what law was applied , when and how. So even if some terrorist judge does the bidding of terrorists, recording his judgment and the method he used will nail him to responsability.

Who will nail NSA or similar agencies when they fail tapping into Abdil Abdal Abdul because they were too busy nailing
phone sex "offenders" or maybe looking for some dirt to use against somebody ? No one, no oversight.

I bet somebody will further construct this with the logical infinite loop argument "who's going to control the controller ? " in an attempt to justify no oversight over NSA ..somebody else will play the "must be secret enemy is listening" psychosis card.

Heywood: But the disclosure that they had done this, should it come out, would be an impeachable offense even WITH a republican majority (since anyone who failed to vote to impeach/convict would be thrown out of office next election day).

Excuse my ignorance but , thrown out by who exactly ? People ? Many bought into the terrorist scare at the speed of light..certainly 9/11 did help substantiate the scare so that apologists will say "we told you" the day after any little bomb goes off..which is likely, imho, to cancel the effects of any disclosure on government wrongdoing,

That happens because the scare of death is stronger and more relevant to many then the scare of living in a police state. To reinforce the threat, constat speaking of terrorist makes one recall that terrorism exists, keeping the person depressed in scary thougts, conveniently away from toughts on other significant and more pressing issues.

I guess the lever will be, again, emotional and ideological. Terrorist have won a battle by suggesting police state over the land of freedom ; strong powers all over the country, starting from current government (that includes many dems) including private interest would like to further profit from the situation by demolishing what's left of social state, by socializing cost and privatizing profits...aka you're free to get the shaft and I'm free to get the good, but not vice versa.

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety (Benjamin Franklin).
posted by elpapacito at 7:48 AM on December 24, 2005


I wonder what constitutes a police state in the modern world? If this isn't a police state, what is? Instead of wondering if family members or your neighbor are members of the apparatus of oppression, instead you look at your telephone and computer with apprehension and suspicion. The Orwellian nightmare is impersonal which has left a majority of ill-prepared to identify it as such.

In a twist of irony, members of the Nixon administration (John Dean and others) have called the Bush administration scary because it was more secretive than Nixon's White House and the FISA Court was established as a response to Nixon's spying on Americans (war protestors, political enemies, etc.) and Bush went around that.

Hmm. Does this qualify as a high crime or misdemeanor?

"See no evil, hear no evil."
posted by Mijo Bijo at 8:21 AM on December 24, 2005


Man, this is a lot more convenient than asking the British secret service to eavesdrop on US calls.
posted by Nelson at 8:26 AM on December 24, 2005


Geez, the alcoholic, failed-businessman who rose to the presidency through a combination of scare tactics, divisive politicking, judicial coup, and (perhaps) electronic ballot stuffing, whose initial victor took place in the State where his brother is governor and whose Secretary of State was the Bush state campaign co-chairperson, whose presidency has been marked by a failure to act on intelligence that the US was going to be attackede by terrorists, whose response to that attack was to launch an unrelated, inept war that has included torturing prisoners, whose vice president was president of the very company that gets the biggest contracts for cleaning up all these disasters, who could barely be roused to respond to the destruction via flooding of an American city, and who has led this country into the deppest debt in the history of the world is also illegally spying on US citizens and has repeatedly lied about the fact?

It's just so hard to believe.

Sorry about the run-on sentence.
posted by maxsparber at 8:40 AM on December 24, 2005


Oh, by the way, merry Christmas/
posted by maxsparber at 8:41 AM on December 24, 2005


"Hmm. Does this qualify as a high crime or misdemeanor?"

No, it's a completely Constitutional use of executive powers in the realm of national security. And if you don't believe me, I invite you to commence suit in federal court--the courts are closed on Monday, but they open at 8:30am on Tuesday.
posted by ParisParamus at 8:42 AM on December 24, 2005


Justice Roberts and future Justice Alito look forward to it!
posted by ParisParamus at 8:43 AM on December 24, 2005


Sorry about the run-on sentence.

The last 5 years has been a horrid run-on sentence that's been in need of a period.
posted by Mijo Bijo at 8:44 AM on December 24, 2005


There you go, Paris ruling what is Constitutional or not :) Merry Xmas and Happy New Year !
posted by elpapacito at 8:45 AM on December 24, 2005


And Happy Chanukah--may be Greeks be defeated again and again.
posted by ParisParamus at 8:50 AM on December 24, 2005


There you go, Paris ruling what is Constitutional or not.

Please don't entertain the troll. When you hear his footsteps, just let him continue to his cave, don't invite him in for dinner.
posted by Mijo Bijo at 8:51 AM on December 24, 2005


Troll á la Metafilter: anyone you don't agree with who is clever and tenacious enough to take on your bullshit.
posted by ParisParamus at 8:56 AM on December 24, 2005


ParisParamus - I think that referring to you as a troll in this context is well-justified.

You come to the thread, and throw out some divisive remarks without backing up your statements with anything substantive whatsoever.

How about this - instead of kicking us in the shins and running away, why don't you try to counter some of that arguments that have already been laid down in this thread?
posted by Afroblanco at 9:04 AM on December 24, 2005


darkstar:

The clear wording of the law says that if there is ANY SUBSTANTIAL LIKELIHOOD that the wiretap will acquire contents of any communication of a US citizen, then it is NOT permissible under FISA.

But look at what surveillance is defined as. If the collection is not surveillance, it is not covered by the provisions you cite.
posted by Heywood Mogroot at 9:33 AM on December 24, 2005


PP: here's some examples of your trolling in this thread:


caddis, don't worry: Metafilter already is that honey pot!

Thank you President Bush for protecting us.

HTH. HAND. Funny how it's left to me to actually present a rational defense of the administration's actions, as opposed to continual stream of smoke and taunts that you offer us here.
posted by Heywood Mogroot at 9:37 AM on December 24, 2005


No, those are funny. Grow up. And lighten up.
posted by ParisParamus at 9:41 AM on December 24, 2005


Every time I think the Bush administration couldn't possibly get any worse...

I'm actually nostalgic for the days when he was only a threat to voting rights, fair elections, ANWR, Social Security and Medicaid; back when he'd just taken office. Boy, those were the good old days.
posted by Soliloquy at 9:47 AM on December 24, 2005


But look at what surveillance is defined as. If the collection is not surveillance, it is not covered by the provisions you cite.

What is the collection then? Sounds like semantics to me.
posted by Mijo Bijo at 9:51 AM on December 24, 2005


PP: outside of the taunts and "jests", you have made one point in this thread:

"It's a completely Constitutional use of executive powers in the realm of national security".

However, this is just a bald assertion with no supporting basis. It is perfectly worthless, which is entirely par for the course with you. Come on, kick up your game here.
posted by Heywood Mogroot at 9:52 AM on December 24, 2005


No, those are funny. Grow up. And lighten up.

You must be the Andy Kauffman of Metafilter.
posted by Mijo Bijo at 9:54 AM on December 24, 2005


Mijo: In the other NSA thread I posted what FISA defines as surveillance.

Basically:

1) Collecting communications without targetting a specific, known US person

2) tapping a cable outside the US

3) snooping a radio call when one party is outside the US

is defined as NOT surveillance for the purposes of FISA.
posted by Heywood Mogroot at 9:54 AM on December 24, 2005


Sounds like semantics to me

:) The Law is 90% semantics and 10% wishful thinking.
posted by Heywood Mogroot at 10:06 AM on December 24, 2005


Heywood: The FISA court has only rejected four requests in its history of nearly 20,000 applications. It is very apparrent that what was going on violated the standards for FISA. It's the only logical reason to go around it.

I think Bush, so far, has underestimated the American people's loathing of this behavior and the "I was protecting you" argument has grown very thin. I agree that there are some situations that arise as president that may warrant you to cast aside the rules (ever so briefly), but a strong pattern has emerged. This isn't an isolated case of "this is a very bad guy, and the normal means wouldn't have worked." This is a systematic shitting upon the constitution and the rule of law.
posted by Mijo Bijo at 10:17 AM on December 24, 2005


andy kaufmann was fucking funny.
posted by quonsar at 10:26 AM on December 24, 2005


But look at what surveillance is defined as. If the collection is not surveillance, it is not covered by the provisions you cite.

Okay - you honestly might have a point here, in that the semantics could concievably be on your side. However, any judge that actually reviewed this would clearly not be on your side. When your argument rests on semantics, it's generally seen as sleazy and unfair.

Because, according to you, it would be illegal for the government to tap my phone without a warrant (or FISA approval after-the-fact). Yet, it would be perfectly legal to tap the switch through which my call passes on its way to china, along with the millions of other calls that switch handles. There is no good way to segregate those calls before monitoring them.

You see, I did make a call to china, and that call did have to pass through a switch at our borders. Do you understand what I'm saying here? My call data is most likely stored at NSA right now because it passed through a border switch. And you think that's fine, because of semantics?

All that aside - can you provide any indication that there is any oversight at all in this operation? If not, why is that okay? Do you understand why our laws require oversight? Why it's useful at all?
posted by odinsdream at 10:30 AM on December 24, 2005


I disagree that batch surveillance violates FISA, but I guess that will come out. The admin really isn't contesting this point about FISA, but the mention of TIA in what's-his-faces secret letter to Cheney indicates to me that that what's been going on.

The admin wants to keep appearances up that its wiretaps are simple affairs of tapping into single conversations, and thus applicable to FISA regulation, not the wholesale collection of /everyones/ messages, which apparently isn't even covered under FISA.

If I were running the NSA surveillance, I'd sweep everything up and analyze it later, getting warrants to listen to older convos as required.

This is how we won the war in WW2 -- we recorded enemy messages, then worked back as best we could, often old messages went unreadable for months, then we got a break and were able to read them.

The potential for abuse is immense, but the benefit to anti-terrorist work is also immense.

Funny thing is that FISA *does* protect domestic convos rather well. It's only people communication overseas that have a privacy issue.
posted by Heywood Mogroot at 10:37 AM on December 24, 2005


This whole thread could be monitored right now, because somebody is loading this page from outside the U.S.
posted by Mijo Bijo at 10:37 AM on December 24, 2005


"It's a completely Constitutional use of executive powers in the realm of national security"

you're asking me to prove a negative. If no court has ruled on the activity in question, it's not illegal.
posted by ParisParamus at 10:41 AM on December 24, 2005


Even Barron's is calling for an investigation and then either changing the laws or impeachment.--...Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law. ...

posted by amberglow at 10:42 AM on December 24, 2005


This is how we won the war in WW2 -- we recorded enemy messages, then worked back as best we could, often old messages went unreadable for months, then we got a break and were able to read them.

Inside America? Your argument is flawed, nobody is debating the legitimacy of collecting and surveilling foreign communications. During the John Bolton nomination hearings an issue was raised about his requesting the identities of American citizens that popped up during legitimate intelligence gathering in foreign countries.

As an American citizen, if I were to be in a foreign country and talk to somebody (intentionally or randomly) who is under surveillance by the U.S., any report handed to somebody in the administration would identify me as "American Citizen". My name and any photo of my face would be blurred, because I am protected from unwarranted surveillance from my own government. They can request my identity (and most of the time it will be revealed after a review of the request).
posted by Mijo Bijo at 10:46 AM on December 24, 2005


If no court has ruled on the activity in question, it's not illegal.
You're wrong. The FISA Act is crystal clear, and Ashcroft went to court to get it changed and he was rebuffed--the administration knew it was illegal all along.--...
On May 17, 2002, the secret Foreign Intelligence Surveillance Act (FISA) Court ruled that portions of guidelines issued by Attorney General John Ashcroft on intelligence sharing violated federal law. The court said the policy established by Ashcroft, who cited the Patriot Act for his authority, shortcut the Constitution and FISA by replacing existing surveillance requirements used for criminal prosecution with the more lax FISA requirements.

In its ruling, the court cited the constitutional right to privacy of U.S. citizens, saying Ashcroft's policy "was not reasonably designed or 'consistent with the need of the United States to obtain, produce, or disseminate foreign intelligence information'" as mandated by FISA. Prior to the Patriot Act, FISA had been interpreted by attorneys general and the FISA Court as having mandated a "wall" between the criminal and intelligence sides of an investigation. In this ruling, the FISA Court felt that the new procedures issued by the attorney general had illegally dismantled that wall.

The FISA Court also said the powers given to criminal investigators by Ashcroft might allow the government to illegally use intelligence information in criminal cases. ...

posted by amberglow at 10:46 AM on December 24, 2005


Look, was it better when the secret government funded itself by dealing cocaine, in the Reagan/Contra days?

Look at the published prices of stocks just before big deals or earnings are announced -- they spike up.

Someone knows what's coming and profits.

Surely it's better to fund the secret government programs by skimming profits off business transactions before they're announced to the public, than by transporting cocaine, eh?

Every free market has freebooters. We elect ours. So?

Heck, they could probably fund the whole business just by re-stealing already stolen money by intercepting and redirecting wire transfers. The government's already paid off the insured account holders, so it's basically free money!

Just speculating, mkind you.
posted by hank at 10:53 AM on December 24, 2005


I'm beginning to become quite curious as to what actions the Administration could take that would finally push everyone over the edge.

From what I'm reading on MeFi, there's literally nothing the government can do that would force some of our metacitizens to turn against the government.

For a collection of pretty smart folk, it's a little alarming that that is possible.
posted by five fresh fish at 10:53 AM on December 24, 2005


This is how we won the war in WW2 -- we recorded enemy messages, then worked back as best we could, often old messages went unreadable for months, then we got a break and were able to read them.

That's a different matter. In WW2, we were recording only known enemy messages. In this case, we're collecting everyone's messages.

The admin wants to keep appearances up that its wiretaps are simple affairs of tapping into single conversations, and thus applicable to FISA regulation, not the wholesale collection of /everyones/ messages, which apparently isn't even covered under FISA.

So, correct me if I'm wrong - you're saying that the government is trying to prove that they didn't violate FISA, because they don't want people to know that they were engaged in an activity that is completely beyond the scope of FISA?

If that is the case, then you're saying that this whole thing is more of a PR disaster for the Bushies then anything else, correct?
posted by Afroblanco at 10:56 AM on December 24, 2005


If no court has ruled on the activity in question, it's not illegal.

True, that's what allows some people to whip out their cock and splooge all all over Metafilter every day.
posted by afx114 at 11:19 AM on December 24, 2005


There's four issues here (or more):

1) The collection of foreign communications by NSA, including US citizen's convos therein

it is unclear to what extent our convos are being recorded, but FISA apparently doesn't really cover much in this area.

2) The "sharing" of these foreign communications outside NSA, with eg. the DoJ.

this is apparently what Ashcroft was trying to get expanded.

3) Our rights as free citizens not to have our convos recorded as protected by the 1st, 4th, and 9th amendments

this is a judicial and political issue

4) What specific authorities the Executive is using to spy on Americans

After 9/11 the Congress gave war powers to the administration. Inherent in these powers is the authority to aggressively collect intelligence on foreign powers and agents thereof. Even prior to 9/11, this being a dangerous world, the adminstration has some authorities as the seat of Executive power to preserve the public's safety to engage in foreign intelligence collection.

The issue of where Congress's Constitutional authorities begins and the Executives' Constiutional authorities ends is the interesting part, but so far I haven't seen an argument that the NSA collection is violating any statutory restriction on the Executive's powers.
posted by Heywood Mogroot at 11:21 AM on December 24, 2005


then you're saying that this whole thing is more of a PR disaster for the Bushies then anything else, correct?

like TIA was, yes. Bush is apparently very, very mad that this leaked out. Plus there's the delicious possibility that abuses of some nature have occurred. That would torpedo the Republicans in 2006 like Nixon's abuses torpedoed them in 1974.

Though since I'm just a guy on the internets -- I could be totally wrong about eg. FISA not covering batch wiretaps of calls to Afghanistan. But I don't think I am, I think there were technical reasons why the language in FISA is so "semantically" legalistic.
posted by Heywood Mogroot at 11:26 AM on December 24, 2005


"You're wrong. The FISA Act is crystal clear, and "


OK. I look forward the return of Democrat control to Congress in 2006 and to the Presidency in 2008. I also look forward to Howard Dick...um I mean Dean leading the way...
posted by ParisParamus at 11:29 AM on December 24, 2005


Isn't there an old saying about being careful not to become that which you hate?

The USA looks more and more like the old Soviet Russia every day. Spying on one's old citizens? That's right out of the commie regime playbook.
posted by five fresh fish at 11:35 AM on December 24, 2005


3) Our rights as free citizens not to have our convos recorded as protected by the 1st, 4th, and 9th amendments

this is a judicial and political issue


God you're dense. That's the whole fucking issue right there. It isn't some goddamn sideshow we're just talking about for the hell of it - it's the entire basis for being concerned.

Back up your "war powers" assertion, my friend. If the president has war powers, I suppose that's only during a time of war, right? Well, what war are we fighting right now? And, since you're so good with semantics, I'm going to ask that you find an actual government document (hint: Declaration of War) that indicates who we are at war with, who declared war on whom, and when. That should be easy, right? You know, since these supposed "war powers" apparently give the president carte blanch, it would be pretty useful to actually know whether we're at war first.

There is no authority to do what they're doing. If FISA doesn't apply, then normal rules do - you use FISA if what you're doing isn't already covered by normal rules - like if you want to start a tap right now and get approval later. Just because FISA doesn't cover this stuff, doesn't mean it's "whee...we can do whatever we want!" No.. it means you fall back on the old rules - where you can do even less stuff.

Fuck bush for being "mad" that this leaked out. How about making a real goddamn intelligence agency with humans on the ground working to actually uncover real networks, rather than going on fishing expeditions to literally invent the networks out of thin air. Welcome to the cold war - this is the exact same thing that Wolfowitz' buddies did back then - there was no good evidence that there was a soviet threat - so instead of accepting that, they concluded that the lack of evidence was actually evidence that it was really there, just hidden really good.

This is what these kinds of cast-net operations generate - the ability to back up your unfounded suspicions with statistical noise presented as fact. We are going in completely the wrong direction. Terrorist threat my ass, it's made up, and you bought it, fool.
posted by odinsdream at 11:41 AM on December 24, 2005


The Barron's article:

"The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power."

As I tried to point out earlier, the Constitution is the supreme authority, not Congress, so Congress cannot abrogate any Constitutional authorities of the Executive (they can try, but our Judiciary will nullify these laws as unconstitutional).
posted by Heywood Mogroot at 11:42 AM on December 24, 2005


But look at what surveillance is defined as. If the collection is not surveillance, it is not covered by the provisions you cite.

This is an important point. You (or in this case the NSA) can get alot of information by just monitoring where communications go. If the NSA isn't listening in on the information then they are not violating FISA. It's a loophole.

Plus there's the delicious possibility that abuses of some nature have occurred.

Ask Bill Richardson. He has a few choice words for John Bolton and NSA intercepts.
posted by ryoshu at 11:50 AM on December 24, 2005


this is just a bald assertion with no supporting basis

PP is bald? I knew it!
posted by srboisvert at 11:54 AM on December 24, 2005


Rumple: see the NSA Line Eater from the good old days of the Internet.
posted by mrbill at 11:55 AM on December 24, 2005


It isn't some goddamn sideshow we're just talking about for the hell of it - it's the entire basis for being concerned.

I agree, but there are other charges, eg. that this surveillance is or is not contrary to FISA statutes, that can be talked about intelligently.

Back up your "war powers" assertion, my friend. If the president has war powers, I suppose that's only during a time of war, right? Well, what war are we fighting right now?

We are fighting two legally distinct wars right now, one against the people who attacked us on 9/11 and one against Iraqi regime.

And, since you're so good with semantics, I'm going to ask that you find an actual government document (hint: Declaration of War) that indicates who we are at war with, who declared war on whom, and when. That should be easy, right? You know, since these supposed "war powers" apparently give the president carte blanch, it would be pretty useful to actually know whether we're at war first.

That would be the two separate War Powers authorization acts passed by Congress in 2001, and 2002.

There is no authority to do what they're doing. If FISA doesn't apply, then normal rules do

In the interests of precision, what are "normal rules"?

Fuck bush for being "mad" that this leaked out. How about making a real goddamn intelligence agency with humans on the ground working to actually uncover real networks, rather than going on fishing expeditions to literally invent the networks out of thin air.

As Seinfeld's Newman said, "He who controls the mail, controls Information!". Information war is an important dimension to the modern battlefield. Our enemies rely on electronic communications to make their plans. We have the power to find that information, by eg. tapping every call into Afghanistan.

There's a constitutional doctrine of balancing interests -- we have an interest in privacy BUT we also have an interest in not getting blowed up, or having our soldiers in Afghanistan die needlessly.

It's not the collection itself that is injurious to our freedoms -- it is the potential for abuse that is troubling.

Welcome to the cold war - this is the exact same thing that Wolfowitz' buddies did back then - there was no good evidence that there was a soviet threat - so instead of accepting that, they concluded that the lack of evidence was actually evidence that it was really there, just hidden really good.

well, the soviet threat was existential in the sense of undermining the neoliberal capitalist order. We're seeing echoes of this now with Venezuela and Bolivia.

This is what these kinds of cast-net operations generate - the ability to back up your unfounded suspicions with statistical noise presented as fact. We are going in completely the wrong direction. Terrorist threat my ass, it's made up, and you bought it, fool.

I really don't think this attitude is going to win many elections.
posted by Heywood Mogroot at 11:56 AM on December 24, 2005


well, the soviet threat was existential in the sense of undermining the neoliberal capitalist order. We're seeing echoes of this now with Venezuela and Bolivia.

I want to apologise for interacting with you. I was under the impression that you were at least slightly logical. Clearly, you're out of your mind.
posted by odinsdream at 11:59 AM on December 24, 2005


This is what these kinds of cast-net operations generate - the ability to back up your unfounded suspicions with statistical noise presented as fact.

It also represents a horribly ineffective security countermeasure. In any such system ever demonstrated, the number of false positives typically outweigh the number of "correct" positives by a margin of at least 100,000 to one. With such a failure rate, the system is worse then useless - it's harmful. You're going to spend a ridiculous amount of resources chasing down false leads, violating the civil rights of many innocents in the process. Even worse, when you're accustomed to such a high failure rate, the "Crying Wolf" effect sets in, and people will start to ignore the "threats" detected by this system, thinking that "they're just another one of many false positives."
posted by Afroblanco at 12:11 PM on December 24, 2005


This brief article from early 2001 shows what the NSA was (allegedly) doing prior to Bush taking office.
posted by Heywood Mogroot at 12:24 PM on December 24, 2005


Afro: saving data to disk is no "ridiculous amount of resources". Well it is, but the NSA has an even more ridiculous amount of resources available to it.

heh, it wouldn't surprise me that this is a DoD takedown of the NSA. Rumsfeld's buddies want to get in on this action... TIA was a DARPA project, not NSA-affiliated.
posted by Heywood Mogroot at 12:28 PM on December 24, 2005


afro: I posted this elsewhere, but this is how the NSA's effort could pay off:

1) Record every call to/from Pakistan

2) Bust into a safehouse in Pakistan, find a phone

3) Pull up the calls made to/from this phone

4) Get search warrants for US person's communications involved, probable cause being having called a phone that was found in a safehouse.

No statutory violations here, AFAIK... Point 1 has constitutional fears of possible abuse, but the SCOTUS cannot adjudicate on possible harms, only actual harms. Congress can further outlaw this, should it choose to do so, and I don't think the Executive would have a strong enough case to argue to the SCOTUS that it had a constitutional prerogative to record americans convos without a warrant.
posted by Heywood Mogroot at 12:35 PM on December 24, 2005


Where the hell are we going?!

No no no my friend, we're already here.

This isn't potential future abuse of power, it's actual, already-occurring abuse of power.
posted by beth at 12:39 PM on December 24, 2005


Hey Heywood. Please post an e-mail address!
posted by ParisParamus at 12:43 PM on December 24, 2005


Yes, we're already in hell, and/or the Soviet Union. How utterly detached from reality.
posted by ParisParamus at 12:44 PM on December 24, 2005


We are fighting two legally distinct wars right now, one against the people who attacked us on 9/11 and one against Iraqi regime.

don't forget christmas!
posted by quonsar at 12:47 PM on December 24, 2005


Thanks mrbill. I like how they say it would ahve been cheaper and more effective to hire 50 high school students to do the job. If only they would now hire 50 elementary school students to review their ethics and constitutional law.

A thunderbird extension that auto-generated spy words and/or generated a bunch of apparent crypto, and attached to each email would be sweet. The NSA methods absolutely have to be vulnerable to mass warculture jamming.
posted by Rumple at 12:51 PM on December 24, 2005


Afro: saving data to disk is no "ridiculous amount of resources". Well it is, but the NSA has an even more ridiculous amount of resources available to it.

I'm not talking about the feasibility of saving the information. I'm talking about the feasibility of acting based on that information. If you cannot act based on the information, then the information is worthless then, no?
posted by Afroblanco at 1:29 PM on December 24, 2005


afro: I posted this elsewhere, but this is how the NSA's effort could pay off:

This is, of course, assuming that we can find the safehouses to begin with. If we knew how to find the safehouses, then we wouldn't need these cast-net operations, would we? We could just track all calls to this safehouse, period. This would be far different from "tracking all calls made to Pakistan," and would be far more legal.

(and by legal, I mean in the traditionalist sense, not the weird, semantic sense that you've been floating in this debate)
posted by Afroblanco at 1:36 PM on December 24, 2005


"We could just track all calls to this safehouse, period. This would be far different from "tracking all calls made to Pakistan," and would be far more legal."

Both are legal; one is just less intrusive.
posted by ParisParamus at 1:37 PM on December 24, 2005


The Constitution doesn't guarantee you absolute privacy. It guarantees you a level of privacy against which "compelling state interests" are balanced.
posted by ParisParamus at 1:40 PM on December 24, 2005


I'm talking about the feasibility of acting based on that information. If you cannot act based on the information, then the information is worthless then, no?

And I gave you a credible case above as to how the information is actionable.

There's no analysis cost for having the big database. The database is just a time machine, enabling the analysts to surveil convos in the past should they desire.

And I would expect the ability to automatically suss out connection networks (A called B, B called C, C called A) would be very useful. We brought AQ to trial in early 2001 with this technology:

Just before the Aug. 7 embassy bombings, a suicide bomber, Mohamed Rashed Daoud al-Owhali, contacted an Al Qaeda number in Yemen from a safe house in Nairobi. Owhali called that same number the next day from a hospital clinic and would make a series of phone calls from Nairobi to Yemen.

The indictment clearly links bin Laden's satellite telephone calls to the East Africa bombings in Nairobi and Dar-es-Salaam.

On Aug. 11, two days after the bombings were completed, bin Laden's satellite number phone was used to contact network operatives in Yemen, at a number frequently called by perpetrators of the bombing from their safe house in Nairobi.

What pulled all this information together?

A system called ECHELON is said to be mainly responsible, according to U.S. government officials who requested anonymity.


link
posted by Heywood Mogroot at 1:40 PM on December 24, 2005


I now clear to me why the republican talking points are aligning on this idea of data-mining, why they refer to the FISA court as being not 'agile' enough: They want to simultaneously tap millions of people.

They best part about their argument is the claim that they are only 'looking for trends' or 'skimming the surface' of the data.

That argument is a cleverly disguised, implicit, assertion that their capabilities are restrained by the volume of data. That they cannot, or will not, view the whole picture. They leave out, that, because they have direct access to major routers on the backbones, they can view any data they choose with perfect resolution. They are limited only by what algorithms they employ, and the hardware they are willing to pay for. Meridian touched on the type of hardware it takes to do this crap, and *just* on the front end of the data vacuum. But lets face it, they have no real limit on that side of things. They can buy supercomputers 'till the cows come home.

People need to understand that the NSA may only be 'skimming the surface' of a deep pool of data now; But, every year, the ability for Echelon to probe deeper into that pool of data will increase. Every year, the system will have a better view of the gestalt. It will also have an intimate view of the individual, the singular. (of course it might be a parameterized form of the gestalt, crude and explicit). This system can do both at the same moment, take in the whole of the traffic flow, and scrutinize each datum, endlessly. People need to know that this is a rapidly evolving situation; Our capabilities, with regards to technology, are not pegged down in any rational sense.
posted by kuatto at 1:49 PM on December 24, 2005


It's now...
posted by kuatto at 1:53 PM on December 24, 2005


If we knew how to find the safehouses, then we wouldn't need these cast-net operations, would we? We could just track all calls to this safehouse, period.

there is a forensic nature to this investigation that you are missing. Your guys-on-the-ground find a guy somewhere in Pakistan. He has a computer in his room. Wouldn't it be great to see all the messages this guy sent to/from this computer, and to whom, even if he takes great care to wipe the hard-drive regularly? Call the echelon guys. They've got the info. One of his AQ friends has a phone. Wouldn't it be great to listen to all the calls he's made with this phone? Call the echelon guys. They've got the calls on tape. And so it goes.
posted by Heywood Mogroot at 2:00 PM on December 24, 2005


You know, as much as I oppose wholesale surveillance simply on principal, my main objections are this :

1) The crudity of their algorithms, and the likelihood that they will turn up so many false positives that the system will be useless and harmful
2) That, once they analyze the information, they will not only keep information related to "guilty" parties, but the innocent ones as well

and, most importantly,

3) The potential for abuse.

It's well documented that the reason for FISA in the first place was as a response to the abuses of the Nixon administration. The Bushies want new abilities? Fine. Let them go through the proper channels and not break the law. By bypassing the current system of safeguards and using slippery, specious reasoning in an attempt to explain their actions and wriggle out of the consequences, they draw a lot of suspicion to themselves, which, in this case, I think is completely warranted.
posted by Afroblanco at 2:04 PM on December 24, 2005


there is a forensic nature to this investigation that you are missing.

Still, I'd like to think that the person on the American end of the connection is still innocent until proven guilty, or at very least, unmonitored until that person falls under "reasonable suspicion."

As fine-grained, granular, and semantic as you want to get with the letter of the law, it comes down to this very basic principal - should we be able to monitor people who have ostensibly done nothing wrong?

I don't buy the "wartime powers" argument, nor do I buy any line of reasoning to the effect of "because Osama is such a bad man!" I've never bought into the idea of a "War on Terrorism," nor do I buy into any of the other various "Wars" our country wages on various social phenomenon (drugs, poverty, etc.) The concept of a never-ending "War" against an ambiguous, conceptually-defined entity is an extremely slippery slope, and straight out of 1984. This is stuff I learned in HIGHSCHOOL, forchrissakes! Unfortunately, Americans' tacit acceptance of the "War on Drugs" laid the groundwork for much of what we're seeing today vis a vis civil liberties and "The War on Terrorism."

I say we put an end to this dangerous semantic garbage for once and for all.

A "War" is fought between nations. Countries. They have borders. And armies. And diplomats.

Terrorists are criminals. They may be international criminals. They may be part of an immense underground network. They may even have a consistant ideology. I don't care. They're criminals and murderers, plain and simple.

The rule of law should not change simply because we are dealing with a different sort of criminal.
posted by Afroblanco at 2:18 PM on December 24, 2005


Still, I'd like to think that the person on the American end of the connection is still innocent until proven guilty, or at very least, unmonitored until that person falls under "reasonable suspicion."

But don't you see? Nobody is without suspicion under this system. Everyone's activity is recorded "just in case" it needs to be reviewed in the future.

The point is not that this can be done, or even that it might be useful. I could make up lots of methods that would absolutely prevent certain kinds of attacks from ever happening - but my methods would require an enormous abuse of civil liberties and basic constitutional principles. We don't live in that kind of world - where safety is more important than freedom. I certainly don't want to. A handful of people in this thread clearly do. Unfortunately for them, there is no such thing as perpetual safety, that's a utopia that can never be obtained. These people will end up living in a world with less rights, but the same amount of daily fear. Good for you.

As for "war powers" somehow implying we're at war - nice Catch-22. When does the president get to execute war powers? When we're at war. When are we at war? When the president says so, by executing war powers. Yeah, nice game you've got there. In reality, war is defined by a Declaration of War, not by speeches.
posted by odinsdream at 2:32 PM on December 24, 2005


AQ has perpetrated some serious acts of war, like bombing our embassies in Africa and other things.

Criminal threats deserve criminal prosecutions, but AQ is something more than a criminal enterprise.

While I share some of the paranoia, I also think that our institutions can handle the responsibility in the end. cf. the Church Committee's report disclosing to the public the FBI's abuses.
posted by Heywood Mogroot at 2:39 PM on December 24, 2005


AQ is something more than a criminal enterprise.

And this, I believe, is our fundamental difference in opinion.
posted by Afroblanco at 2:41 PM on December 24, 2005


Once again, it may be necessary to change the laws themselves in order to fight a new kind of criminal. But the rule of law itself should remain unchanged.

All of the arguments that you have presented as to why the Bushies didn't actually break the law strike me as an extreme case of "using the letter of the law to defeat the spirit of the law."
posted by Afroblanco at 2:44 PM on December 24, 2005


war is defined by a Declaration of War, not by speeches

The Joint Resolution adopted by Congress and signed into law by the president last year provides the president with statutory authorization to use all necessary and appropriate force against those responsible for the September 11 atrocities. This includes authority to prevent future attacks by responding with force against any nations, organizations or persons responsible for planning, authorizing, aiding or harboring the terrorists who were responsible.

-- Russ Feingold

It is arguable that the authorization of force includes authorization for heightened intelligence activities against foreign powers. Congress has pretty strong Constitutional prerogatives to "regulate" these war powers IMV, so if we Americans don't like this, we can talk to our representatives. Failing that, we can elect new representatives that are more aligned with our thinking. Failing that, we can sue for relief in our court system. Failing that we can vote with our feet.

We don't live in that kind of world - where safety is more important than freedom

I agree that the freedom from not having one's telecommunications to a foreign country surveilled is important. The Executive is pushing our limits, eg. seeing how much invasion of privacy we will tolerate to be safe(r).
posted by Heywood Mogroot at 2:52 PM on December 24, 2005


All of the arguments that you have presented as to why the Bushies didn't actually break the law strike me as an extreme case of "using the letter of the law to defeat the spirit of the law."

actually, it appears to me that the letter of law was intentionally crafted to permit this surveillance. After all, they had to add wordage to create these loopholes.

And, get this straight, it's NOT the Bushies. The Church Committee disclosed echelon-like NSA surveillance of US citizens communicating overseas in the mid-1970s, and of course a lot more details came out during the late 90s and the early 2001 prosecution of AQ for the African bombings.
posted by Heywood Mogroot at 2:56 PM on December 24, 2005


...Hey Heywood. Please post an e-mail address!

Paris is yearning.
posted by Haruspex at 2:58 PM on December 24, 2005


And this, I believe, is our fundamental difference in opinion.

Killing 50 people is a criminal act. Killing 3,000+ is an act of war.

Granted, misdirected USG violence in the prosecution of this war can be immensely counter-productive, and the fact that our enemies are non-state actors means there can be no ratified armistice, but this war can be won by addressing their reasonable grievances (if any) and neutralizing enemy actors (via tracking them down and instituting judicial proceedings).

"War" need not be about just killing the enemy. "War" is forcing the enemy to surrender to your secular power, and hence will.
posted by Heywood Mogroot at 3:07 PM on December 24, 2005


I'm sorry, Heywood. I don't think that we are going to agree on this. I have a very narrow definition of what makes up a war, and I think that to stray from that definition is to invite disaster.
posted by Afroblanco at 3:12 PM on December 24, 2005


Or, to put it more succinctly, I think that in the US, "War" has become an abused metaphor. It used to mean one thing, and now they're trying to make it mean another thing. This is politically advantageous for certain individuals for a number of reasons, but, I think it is, at the very root, dishonest.
posted by Afroblanco at 3:17 PM on December 24, 2005


Afro: my point is that AQ is using violence (secular power) to force us to submit to their will. This makes it different to criminal justice. With criminals, you can make the costs of crime deter the criminal, or take them out of society if that doesn't work.

AQ is fighting for an agenda, which makes them an ideological enemy, not a criminal group. After all, when the Germans bombed Pearl Harbor that was just a "crime", too.

We can:

1) tolerate their violence indefinitely -- Gandhi

2) nonviolently arrest them as we can -- crimefighting

3) surrender & submit to their will (not going to happen)

4) find a modus vivendi (livable compromise) with AQ (we already pulled out of KSA for them)

5) join the battle (with our immense wealth and manpower, the easiest approach)
posted by Heywood Mogroot at 3:27 PM on December 24, 2005


Killing 50 people is a criminal act. Killing 3,000+ is an act of war.
This sounds problematic to me. Where's the threshold, exactly? And what statute defines it? Is killing 100 a criminal act but not an act of war? How about 500? 1,000? 1,500? Is killing 500 a criminal act but 501 an act of war?

If a company accidentally releases a new drug that kills 1,000 people due to a bad batch of chemicals, does that company get prosecuted or have its head office bombed and the board members shipped off to Guantanamo?

And, of course: If Al-Qaeda bombs a building but "only" kills 50 people, what would Bush call it? A criminal act or an act of war?
posted by kaemaril at 3:29 PM on December 24, 2005


After all, when the Germans bombed Pearl Harbor that was just a "crime", too.
Well, no wonder some of us disagree so strongly with others. It appears some of us exist in parallel universes :)
posted by kaemaril at 3:31 PM on December 24, 2005


With criminals, you can make the costs of crime deter the criminal, or take them out of society if that doesn't work.

Why can't we do this with AQ?

when the Germans bombed Pearl Harbor

???

After all, when the Germans bombed Pearl Harbor that was just a "crime", too.

No, Japan is a country. Thus, a conflict with them would fit under the traditional definition of "war."

Look, I accept that we may have to change our tactics to fight a new kind of criminal. You don't like the term "criminal?" Fine. Let's just call them "terrorists." However, a conflict with a "terrorist" entity, in my opinion, differs greatly from a conflict with a "country." In fact, I feel that a struggle against "terrorists" is more like a struggle against "a criminal network" then a struggle against a "country."

But fine. Let's just say that a conflict with terrorist entities falls outside of the boundries of "war" and "crime." Let's say that it exists as an entity unto itself. This would make more sense.

You see, the concept of a "war" has certain assumptions and associations that I believe were never meant to apply to terrorism, drugs, or whatever else they tell us that we are fighting a "war" on. They are leveraging the powers that are assumed during wartime to fight something that differs greatly from what the term "war" was originally meant to apply to. Thus the abused metaphor.

What I think is interesting about your reasoning, though, is this - when it comes to the specific wording of laws like FISA, you are willing to get really specific and granular. However, when it comes to something like "War," you seem to take the broadest definition possible.

What gives?
posted by Afroblanco at 3:38 PM on December 24, 2005


This sounds problematic to me. Where's the threshold, exactly?

Yes, this was somewhat imprecise thinking. I sorta revised it above with:

"AQ is fighting for an agenda, which makes them an ideological enemy, not a criminal group"

Khaddafi is a case of a quasi-state actor picking a fight with us.

Lockerbie was an act of war too, though TMK his intelligence services only killed a hundred or two civilians.

Violence is a language of diplomacy too. A state of War exists between two groups who see no way to settle their political differences other than through violence.
posted by Heywood Mogroot at 3:43 PM on December 24, 2005



darkstar said: The clear wording of the law says that if there is ANY SUBSTANTIAL LIKELIHOOD that the wiretap will acquire contents of any communication of a US citizen, then it is NOT permissible under FISA.

Heywood said: But look at what surveillance is defined as. If the collection is not surveillance, it is not covered by the provisions you cite.

Heywood,

From FISA, the following is from subsection 1801, which clarifies four possible definitions for "electronic surveillance." Any one of the four definitions can apply - they are not all required. Definition 1801.f.(2) says electronic surveillance is:

(2) 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, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

Under this definition, the mere acquisition of the contents of any wire communication to or from a person in the United States is considered electronic surveillance.

Hence, under FISA, it does not require the wiretap to be either directed at a known target or content analyzed for this law to apply.

Hence, a warrantless wiretap on a US citizen, whether known or unknown, whether content analyzed or simply collected, is prohibited by the law (specifically in subsection 1802, as I referenced above).

In short, if the President has authorized a warrantless wiretap on a US citizen, he has broken the law.

And now, I have learned far more about Title 50, Chapter 36 of the US Code than I ever thought I would care to...but it's pretty exciting!
posted by darkstar at 3:43 PM on December 24, 2005


AQ is fighting for an agenda, which makes them an ideological enemy, not a criminal group.

Does this mean that people who bomb abortion clinics, or animal research clinics where vivisection takes place, aren't criminals but instead "idealogical enemies" the state needs to declare war on? Or is it possible that an "idealogical enemy" can be a criminal group too?
posted by kaemaril at 3:48 PM on December 24, 2005


Will everyone arguing in favor of the president please sign one of these and please send it in? Thanks.
posted by fungible at 3:48 PM on December 24, 2005


Why can't we do this with AQ?

because they are fighting for (arguably) irrational ideas, not the rational profit-loss calculations of a criminal organization.

And they (apparently) have the resources beyond common criminal/private enterprises to keep their jihad going.

Criminal approach is useful, and we can prosecute it in parallel with more violent approaches.

What gives?

War is an evolving human phenomenon, and the "laws" of war can and do change (winners make the rules ex-post-facto). WW2 brought the specter of "total war" back on the human stage, which we hadn't seen for a while (perhaps since the fall of Constantinople in 1453???).

They are leveraging the powers that are assumed during wartime to fight something that differs greatly from what the term "war" was originally meant to apply to.

This happened first with the defense of Korea in 1950, though I guess they tried to sell that as a Police Action (and got UN authorization for the intervention).

NK decided to test our resolve of defending the SK in 1950, they lost that test. NV decided to test our resolve of maintaining the independence of the Saigon regime, and we lost that test.

The Reaganauts were looking for fights to pick -- this wonderful military wasn't going to sit idle for 8 years -- so they went into Grenada to overthrow that sovereign state, to get the Army back on its feet after the semi-debacle of Vietnam.

The Libyan airstrike of 1986 was a flexing of war power. It was educational to me, I was 18 & against it, but in retrospect I guess it worked the way it was designed to.

Panama in 1989 was similar to Grenada.

Bush throwing some forces into Somalia at the end of 1992 was also an exercise of war powers.

In the 1990s various acts of war were committed against us by AQ -- the 1993 WTC bombing (?), the Khobar Towers bombing, the 1998 African bombings, leading up to the 2000 USS Cole incident.

While these acts of violence are not quite up to the level a state actor could pull off with a real military force, they were certainly significant provocations.

AQ is happy fighting a war against the US, UK, and its allies. War doesn't have to be a formal affair, the formalisms are just attempts to minimize unnecessary suffering and misunderstanding.
posted by Heywood Mogroot at 4:07 PM on December 24, 2005


Under this definition, the mere acquisition of the contents of any wire communication to or from a person in the United States is considered electronic surveillance.

you missed the 'if such acquisition occurs in the U.S.' qualifier.
posted by Heywood Mogroot at 4:10 PM on December 24, 2005


Or is it possible that an "idealogical enemy" can be a criminal group too?

Good point. There's a threshhold of pain involved in getting to the "war" level. War means the talking is done and the guns and bombs will speak.
posted by Heywood Mogroot at 4:12 PM on December 24, 2005


So, Heywood, out of interest : Are ALL terrorist groups "at war" as far as you're concerned, or are there some that you still consider merely criminals? Because up until Bush decided he could really do with the ratings boost of being a "war president", most of the free world seemed perfectly happy to treat them as criminals and murderers.

Hell, in the UK the IRA bombed our government (Brighton Bombing) and we still treated them as criminals, even as cabinet ministers were being escorted out of the rubble. Margaret Thatcher wasn't exactly known for being a woolly-thinking liberal...
posted by kaemaril at 4:15 PM on December 24, 2005


Criminal approach is useful, and we can prosecute it in parallel with more violent approaches.

I never said that I had a problem with violent approaches. Violent approaches are used to fight crime all the time. What I have a problem with is framing this as a "war," which I believe it is not.

All of the historical examples that you cite further prove my point. Once you start abusing a metaphor like "war," it is a very slippery slope, and before you know it, you are doing outrageous shit like tracking the calling information of innocent (until proven guilty) citizens.

War doesn't have to be a formal affair, the formalisms are just attempts to minimize unnecessary suffering and misunderstanding

First off, war IS a formal affair. That's why we have things like "declarations of war." Once something has been declared a war, you have a whole new set of powers available to you. It is, in fact, necessary that war STAY a formal affair. That is the only way to avoid the slippery slope mentioned above.

Secondly, abusing the "war" metaphor and using it to apply to situations it was never meant to apply to CREATES unnecessary suffering and misunderstanding. Thus the reason why we are having this debate in the first place.
posted by Afroblanco at 4:16 PM on December 24, 2005


Even if you accept that the "war on terror" is a real war, then so is the "war on drugs". For which other "wars" will this info be used and why? And why is any of that ok, when we have explicit statutes and acts and laws specifically worded to prevent abuses? We've already had abuses that necessitated the creation of the FISA Act and FISA Courts--they still work.
posted by amberglow at 4:17 PM on December 24, 2005


you missed the 'if such acquisition occurs in the U.S.' qualifier.
AKA "The Guantanamo Defence" :)
posted by kaemaril at 4:18 PM on December 24, 2005


And Congress specifically denied Bush War Powers--The Bush administration requested, and Congress rejected, war-making authority "in the United States" in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today's Washington Post. ...
posted by amberglow at 4:27 PM on December 24, 2005


What causes the least harm: a high value for personal privacy in all aspects of one's private life, with a generous definition of 'private' ... or a high value for the aggregate security of the nation, with a generous definition of 'secure'?

I wager the former.

This is because I conclude that the enemy -- and I use that term to include abortion clinic bombers -- are of less personal threat to myself, ie. have less than a 2,986:295,734,134 chance of being killed when they set a new record in this country (a record they're unlikely to top).

I figure the government and police, with a record of crimes against innocent citizens that is long enough to numb you to the horror, are of much more significant personal threat to myself.

I think I make a rational conclusion when I decide that I value my privacy rights far more than I fear any attack. I believe the government has more than enough legal means at its disposal to be fully capable of preventing terrorist groups from becoming a significant risk to my safety.
posted by five fresh fish at 4:34 PM on December 24, 2005


c/myself/our citizens/ (were I an American)
posted by five fresh fish at 4:40 PM on December 24, 2005


Heywood, it seems that some of the authorization to perform warrantless wiretaps was conducted within the United States, and had a substantial likelihood of collecting communications of US citizens.

If this is true, it means that:

a) Because it was in the US and involved US citizens, it counts as "electronic surveillance" under FISA,

b) it is therefore specifically prohibited under FISA.

Hence, if this happened, Bush clearly broke the law.
posted by darkstar at 4:47 PM on December 24, 2005


Violent approaches are used to fight crime all the time. What I have a problem with is framing this as a "war," which I believe it is not.

while I was away I thought of a weakness in my thinking... police powers should be used where the police can operate. War powers need to be used where police powers can not operate effectively enough.

This covers the domestic/foreign ideological enemy thing.
posted by Heywood Mogroot at 5:05 PM on December 24, 2005


Maybe we could install cameras in every room of every building and every street corner and every vehicle. Always on, always taping, but the evidence would just sit there unless the cops wanted to look at it to investigate a crime. We'd all be safer, and it wouldn't violate our privacy. . .after all, you'd have nothing to fear from the government unless you were an evildoer.

Your distrust of the government's omnipresent camera law enforcement program suggests you are a terrorist sympathizer. Review of your visual surveillance logs has commenced.
posted by EarBucket at 5:11 PM on December 24, 2005


And Congress specifically denied Bush War Powers

specifically "in the United States".

Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."

the other recent link:

"But the Times said that NSA technicians have combed through large volumes of phone and Internet traffic in search of patterns that might lead to terrorists."

this is news? Durrr, this was disclosed in 1999, and early 2001...

As for breaking FISA, here's what the article said:

with help from American telecommunications companies, obtained access to streams of domestic and international communications

If the interception occurred from geosynchronous orbit, it didn't happen "in the US".
posted by Heywood Mogroot at 5:15 PM on December 24, 2005


And this explains Padilla how, exactly? Or Richard Reid? Or Maher Arar? The Bush administration seems to have little tolerance for little use for police powers when it can just storm in and use "war powers".

Earbucket: UK are doing exactly that on UK roads. All traffic monitored by cameras that will recognise license plates. Every car-using person will be tracked for x years, all in the name of preventing crime.
posted by kaemaril at 5:16 PM on December 24, 2005


yup, earbucket, that's where we're going, if we as a democracy will tolerate it. But it's up to us. hmm, that kinda explains the CIA bringing in crack cocaine thing. The powers that be aren't affected by street-crime in the slightest, but "law and order" sure gives one plenty of power to legistlate away privacies.
posted by Heywood Mogroot at 5:17 PM on December 24, 2005


Heywood: Oh, come on. That's a weak cop-out and you know it. If a US-owned satellite received instructions from a US-based ground-station, under the control of a US-based technician, and sent those signals back to a US-based facility...

Hey, why not just have the NSA announce they're installing an enormous fleet of maritime surveillance stations just outside territorial waters, which will beam all their stuff back to Fort Meade, and see if Congress goes "Well, fair enough, nothing we can do there. It's not in the US".

I don't think so.
posted by kaemaril at 5:20 PM on December 24, 2005


The Bush administration seems to have little tolerance for little use for police powers when it can just storm in and use "war powers".

well, there's this $500B/yr military we need to feed... Everybody on THIS payroll -- and $500B/yr covers a lot of paychecks -- votes Republican, for plain job security reasons.

frankly, I agree we don't need so much warmongering. I'd like to see our defense bill cut in half eventually.

Afghanistan made sense since that was a lawless state. N Korea is also something of a reprobate but apparently internationally harmless, other than launching the occasional missile over Japan.

Iran, I don't see what the big deal is, though I guess regional-wise they are a burr against Israel's hide.

Communist China is our bestest-friend now, so war ain't going to be on with them anytime soon.

Our NATO friends don't need us any more. That leaves Syria, sub-saharan africa, and Latin America as national security interests.
posted by Heywood Mogroot at 5:28 PM on December 24, 2005


That's a weak cop-out and you know it. If a US-owned satellite received instructions from a US-based ground-station, under the control of a US-based technician, and sent those signals back to a US-based facility...

Hey, the NSA wrote the law, so you'd expect it to have the loopholes it needed to operate.

why not just have the NSA announce they're installing an enormous fleet of maritime surveillance stations

USS Jimmy Carter:

"The Carter has additional maneuvering devices fitted fore and aft that will allow her to keep station over selected targets in odd currents. Past submarines that were so outfitted were used to place listening devices on undersea cables and listen on communications of foreign countries."
posted by Heywood Mogroot at 5:33 PM on December 24, 2005


darkstar: with help from American telecommunications companies, obtained access to streams of domestic and international communications

Heywood: If the interception occurred from geosynchronous orbit, it didn't happen "in the US".


Well, gee whiz, that's getting pretty tortuous, isn't it?

If a US telecommunications firm has been involved in the acquisition, even if their satellite is the mechanism used for the collection, it would be folks within the US that are "flipping the switch" to effect the acquisition. And electronic and mechanical support infrastructure within the US that is part of the satellite link/control. Satellites don't act autonomously. In such a case, part of the act of acquisition (indeed, the most important part: the volitional part) is still taking place within the US.

Honesly, if I were a judge and counsel came before me trying to argue the point that acquisition didn't actually "take place in the US" because the actual acquisition device, though controlled by people and supported by electronic infrastructure sitting within the US, was itself in orbit over the country, I would be sorely tempted to gavel him to a bloody pulp on the spot.

Perhaps that's why I'm not a judge, though... :)
posted by darkstar at 5:34 PM on December 24, 2005


if Congress goes "Well, fair enough, nothing we can do there. It's not in the US".

You write as if Congress was not aware of this catch-all surveillance. The Church Committee detailed this echelon-esque NSA surveillance programs in the mid-1970s. It's what the NSA does.

Congress is perfectly free to close these loopholes. There was a FY 2000 addition to FISA apparently, authored by Barr, that added some more oversight provisions.
posted by Heywood Mogroot at 5:37 PM on December 24, 2005


? 22,300 miles up in space is "not in the US". Words have meanings. I'd like to see the older, unamended versions of the FISA. I bet you'd see fewer loopholes in it.
posted by Heywood Mogroot at 5:43 PM on December 24, 2005


Hey, the NSA wrote the law, so you'd expect it to have the loopholes it needed to operate.
No, actually, because I strongly suspect any judge worth his job-title would toss it as a spectacularly weak excuse.
"Hey, you're not allowed to spy on people on US soil..."
"Er ... we didn't, your honour. We spied on him from a helicopter, so we weren't actually on US soil."
There then follows a judicial smackdown. To me, this "loophole" is pretty much of that order.
USS Jimmy Carter
Cool name for a sub. Nothing whatsoever to do with what I suggested, which is that the NSA openly admits they're going to install a network of spy stations to spy on US citizens ... but NOT on US soil, so that's OK then. How do you think that would go down in the nation's capital?
posted by kaemaril at 5:45 PM on December 24, 2005


Ah, Barr said:

"Our Foreign Intelligence Surveillance laws were last updated in the 1970s."

in 2000.
posted by Heywood Mogroot at 5:46 PM on December 24, 2005


Here's what Barr did in 2000:

"On this side of the Atlantic, Rep. Bob Barr (R-Ga.) added language to the Foreign Intelligence Authorization Act for Fiscal Year 2000 that requires the NSA, the Central Intelligence Agency (CIA), and the Department of Justice to report to Congress what legal standards justify their communications intercepts involving U.S. citizens."
posted by Heywood Mogroot at 5:53 PM on December 24, 2005


? 22,300 miles up in space is "not in the US". Words have meanings. I'd like to see the older, unamended versions of the FISA. I bet you'd see fewer loopholes in it.
A geosynchronous satellite above the continental USA, owned by the US federal government, receiving instructions from US personnel in a US-based ground-station, monitoring traffic from the continental USA and sending data back to a US-based ground station...

That "loop hole" is so vanishingly small I'd expect any judge worth his gavel to make it do just that in court : vanish.
posted by kaemaril at 5:53 PM on December 24, 2005


Heywood, you completely evaded the point of my comment! What's that all about? You're more astute than that.

I know that a satellite in orbit is not "within the US".

My point, clearly stated, was that even under your hypothetical scenario of a satellite acquisition, the act of acquisition involves people and infrastructure at work within the US, as well as that satellite flying way up there. Hence, the "act" of acquisition is partially conducted within the US, even if part of the mechanism used to effect acquisition is outside of the US.

This being now your fifth or sixth iteration of hair-splitting that has become finer and finer, it's finally reached the point that I think more discussion is unlikely to achieve any further clarity. I believe I've effectively rebutted you at each step, though I appreciate that you probably disagree.

But in any event, I'm afraid I'm not going to be able to continue to give attention to this thread. Suffice it to say I believe the circumstances are pretty straightforward and the law is pretty clear: if warrantless surveillance was authorized to be conducted on US citizens, then it seems that Bush very likely has broken a federal law.

Before I head off to bed, as it's 3 a.m. here, let me say Merry Christmas, all!

Or "Happy Holidays", as you prefer. :)
posted by darkstar at 6:00 PM on December 24, 2005


kaemaril: in 1942 (Goldman) the SCOTUS said it was OK for the feds to surveil somebody (without a warrant) by placing a microphone on the outside of their office wall.

In 1961 (Silverman) the SCOTUS said it ~wasn't~ OK to use a microphone that penetrated the wall by a matter of inches to get better coverage of the interior.

In 1967 (Katz) the SCOTUS finally said, forget that "trespass" shit, just don't listen to people without a warrant, period.

The law is ALL ABOUT what the words actually mean.

Justice Douglas saw the problem for Silverman:

But neither should the command of the Fourth Amendment be limited by nice distinctions turning on the kind of electronic equipment employed. Rather our sole concern should be with whether the privacy of the home was invaded. Since it was invaded here, and since no search warrant was obtained as required by the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure, I agree with the Court that the judgment of conviction must be set aside.

But Justice Black saw the REAL problem with 4th Amendment jurisprudence in his Katz dissent:

"My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order "to bring it into harmony with the times" and thus reach a result that many people believe to be desirable"
posted by Heywood Mogroot at 6:10 PM on December 24, 2005


the act of acquisition involves people and infrastructure at work within the US, as well as that satellite flying way up there.

for every hair you throw, the NSA can split it... just command the satellite from the UK.

I guess I'm just repeating myself, but if Congress wanted the law to mean what you wish it to mean, they would have left out the loopholes that are present. The NSA is spending $36B/yr, I think Congress knows what it is doing with that money.
posted by Heywood Mogroot at 6:13 PM on December 24, 2005


ah wait, darkstar's original was referencing "wire communications". Satellites are OK.

"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".

So the NSA can't wiretap in the US. That's not what it's doing.
posted by Heywood Mogroot at 6:21 PM on December 24, 2005


Nope, sorry, Heywood. I agree with Darkstar. Yes, I'm aware the law is all about the wordage. It's also about the interpretation of the wordage and not just their literal meanings. I suspect any justice department lackey trying your argument would get short shrift. Until such time as they develop autonomous satellites smart enough to decide who to spy on themselves and then volunteer that information, your arguments hold little water. If somebody in the US is pushing the buttons to control that satellite, then the spying is going on in the US, it's as simple as that. IANAL but to me your "loophole" is begging to be shot down in flames the first time it hits a court of law. OTOH, if you can point me to somewhere where that's been upheld, I'd be very interested.

And I'm not as convinced as you are about Congress's ability to track where the money is going.
posted by kaemaril at 6:24 PM on December 24, 2005


Merry Xmas everyone, including you NSA peeps!
posted by Heywood Mogroot at 6:28 PM on December 24, 2005


Actually, looking briefly* at FISA I can't even see this supposed loophole. Where is it? I can't see anything about spying not on US soil/territory/etc. It mainly seems to differentiate based on where the US citizen being spied upon is, not where the surveillance device is. What am I missing? Cites?

* Always a mistake when it comes to laws, I know, but that sucker's quite big ...

Oh, and Merry Christmas and/or Happy Holidays to everyone who celebrates the time of year... for whatever reason :)
posted by kaemaril at 6:39 PM on December 24, 2005


then the spying is going on in the US

perhaps, but the language is talking about "acquisition", not "spying". And this case was the wiretap case, so it doesn't really matter, since the NSA doesn't have to wiretap in the US anyway.

Let's see if I can restate the 4 cases of what "surveillance" is in plainer language

1) any wire or radio communication sent by a particular, known US person who is in the US, if the contents are acquired by intentionally targetting this person, and if a warrant would be normally required

2) any wire communication to or from a person in the US, if the acquisition occurs in the US.

3) any radio communication which a warrant would normally be required, and if the sender and all intended recipients are within the US.

4) messaging other than a wire or radio comms, where a warrant would be required for law enforcement purposes.

You really think Congress took such great pains to define these terms to protect the (absolute) privacy of your overseas communications?
posted by Heywood Mogroot at 6:51 PM on December 24, 2005


(the above is the definition of "electronic surveillance" of FISA)
posted by Heywood Mogroot at 6:59 PM on December 24, 2005


I wonder if all of our phone company's and isp agreements' privacy sections mention this little matter of turning it all over to govt? can we sue?
posted by amberglow at 7:04 PM on December 24, 2005


From the NSA's very own website:Responsible Citizen --Americans expect NSA to conduct its missions within the law. But given the inherently secret nature of those missions, how can Americans be sure that the Agency does not invade their privacy?

The 4th Amendment of the Constitution demands it... oversight committees within all three branches of the U.S. government ensure it... and NSA employees, as U.S. citizens, have a vested interest in upholding it. Respecting the law is only a part of gaining Americans' trust. ...

posted by amberglow at 7:07 PM on December 24, 2005


Respecting the law is only a part of gaining Americans' trust. ...

respecting the law is easy when you're the ones writing it...

Though how they get around 4th Amendment jurisprudence will be interesting. I predict a return to textualism ... no person, no house, no papers, no effects == no violation of privacy as guaranteed by the 4th.
posted by Heywood Mogroot at 7:19 PM on December 24, 2005


Was Heywood Mogroot the lawyer in Fox's case against Franken?
posted by juiceCake at 7:23 PM on December 24, 2005


they are effects/papers if they're our isp accounts, and our writings/emails online, no?
posted by amberglow at 8:01 PM on December 24, 2005


Just like at the bottom of each of these pages--All posts are © their original authors.
posted by amberglow at 8:02 PM on December 24, 2005


juiceCake: explain to me how eg. intercepting every international call into Afghanistan qualifies as "electronic surveillance" of the FISA statute as defined here.

As I read it, as long as the NSA doesn't do either of the following:

1) targetting known, individual "US persons", located in the US
2) acquiring the call via wiretap within the US

...interception of international calls to Afghanistan doesn't even fall under FISA.

This is not to say that this action wouldn't be raping the jurisprudence of the 4th Amendment, and hard.
posted by Heywood Mogroot at 8:10 PM on December 24, 2005


they are effects/papers if they're our isp accounts, and our writings/emails online, no?

papers, to me, would be extended to the modern-age to include one's laptop computer, flash drives, etc. Things with writings in/on them. Effects are material objects, personal property.

The framers had a word for correspondence: "correspondence", or the "post".

The 4th simply did mean "general privacy" until 1967. Before then, the state could in fact bug your residence as long as they didn't trespass. Read Black's dissent in Katz.

Clearly the degree of omnipresence that electronic surveillance was giving the authorities was troubling to the SCOTUS. They decided to legislate from the bench with Katz, though, as they (incl. Scalia!) did with Kyllo.
posted by Heywood Mogroot at 8:24 PM on December 24, 2005


didn't mean "general privacy" and only the Kyllo majority went too far IMV, Stevens' dissent made the most sense.
posted by Heywood Mogroot at 8:29 PM on December 24, 2005


Heywood : thanks, that's what I was looking at. Not seeing the impunity for satellites, though :)
posted by kaemaril at 9:15 PM on December 24, 2005


Rumple:bombshell sarin osama usama bin badboys ricin nitro sidewinder oppenheimer abdul! abdul! falafel poppies allah inshallah yemeni boxcutter blood uranium polonium anthrax buboes gaza fly united ricin ricin jihad fallout mohammed koran gitmo nader fever fahrenheit pentagon mecca chomsky umlaut baghdad biggles bangbang oops sniper kill kill fresh kills yucca axis beards burning bush sudan stealth digging digging ammo thorax deflagration detonation desecration atta atta wiretapper secret b52 kamikaze throbbing vioxx laser firefox bertha sandstorms taliban pakistan galloway capital bullseye nasty nasty nasty akbar camelbag rendezvous prague evildoers boom splat bing bang bong faisal kong chittagong frenchfries canuckisterrorist tan cardcarrying ungodly fusillade tnt woundedknee john kerry dworkin ortega ortega fallujah revenge yellowcake pretzel hubristan

*snif* that's beautiful, man. Poetry.
posted by Devils Rancher at 9:17 PM on December 24, 2005


If the interception occurred from geosynchronous orbit, it didn't happen "in the US".

You realise this is why these things go before a judge, so he can shoot down these insane arguments from shitheads like you, right? That's why this never went before FISA, because it's obviously a piece of shit - and doesn't even begin to be legal. Yeah, it might be so insanely overreaching as to escape all the laws we currently have written, because nobody in their right mind even imagined this kind of all-encompassing surveillance, but that's what the judge is for - to say "Hold up everybody - that's grossly illegal."

That's why the administration just skipped around the court - because it would have been shot to fucking hell.

And, what's amusing - is you know this. You've said as much in your commentary above, about the "nsa writing these laws" (whatever the fuck that means) and how the words mean certain things. Yeah, that must be a nice little world you live in - where you just read a little on the internet and make a decision. In the real world, the judge is there to set you straight when you wander off into bizarro territory like you did shortly after popping in to this thread. (Germans attacking pearl harbor? Come on man... give it a fucking rest, you're out of your league here and you know it.)
posted by odinsdream at 9:38 PM on December 24, 2005


yeah, it might be so insanely overreaching as to escape all the laws we currently have written, because nobody in their right mind even imagined this kind of all-encompassing surveillance,

This form of catch-all surveillance was detailed in the Church Committee hearings from 1975:

"The broad sweep of communications interception by NSA takes us far beyond previous fourth amendment controversies where particular individuals and specific telephone lines were the target. How can we control this sophisticated technology allowing NSA to perform its legitimate foreign intelligence task without also allowing it to invade the privacy of American citizens by sweeping in messages unrelated to the interests of national security?"

FISA was the result. And, to my reading, and you're welcome to tell me where I'm wrong, "sweeping" of *international* communications from/to the US was intentionally designed.

Look at all the loopholes as to what constitutes "electronic surveillance" for the purposes of FISA! If it's not surveillance, it's not covered.
posted by Heywood Mogroot at 10:14 PM on December 24, 2005


Germans attacking pearl harbor

heh, that proved a pretty useful, if unexpected, marker on responses that were pretty much not worth reading.
posted by Heywood Mogroot at 10:17 PM on December 24, 2005


kaemaril: to my reading, domestic calls via satellite would be case 3) and require a warrant or the hassle of other provisions of FISA. International calls via satellite would be case 1) and only require a warrant (or the hassle...) if a known individual was targetted for intercept.

funny thing, these definitions sure make a lot of sense if you're trying to run a semi-responsible foreign intelligence operation.
posted by Heywood Mogroot at 10:23 PM on December 24, 2005


veiled apologetics for this sort of assault on our privacy and freedom

FWIW, I think this surveillance has *serious* 1st amendment implications (freedom of speech incorporates confidentiality), 4th Amendment jurisprudence ("search" and "seizure" of communication), and of course 9th Amendment / common-law freedoms to be let alone.

All I'm arguing here is that I don't see how this NSA surveillance violates FISA, since as I've argued above I think FISA explicitly excludes the ~exact~ kinds of surveillance NSA is good at from its regulations.

I agree that I'm monopolizing the threads on this, but in my defense that's because I'm the only one manning my sides of the arguments for whatever reason. I'm only responding to what people are writing... it's called a discussion.
posted by Heywood Mogroot at 11:49 PM on December 24, 2005


police powers should be used where the police can operate.

Correct me if I'm wrong, but the notions of "police powers" and "war powers" extend far beyond the idea of staffing.

In fact, that's the whole idea that Bush is trying to put across - since we are at "war" with the terrorists, we should be allowed to do things that you can't do in a "crime" situation, such as performing surveillance on innocent people.

I'm not suggesting that the NYPD go abroad to Afghanistan to track down Osama. That is obviously something that the military is more capable of. The question is, should the NSA be able to analyze my communications data because the NYPD isn't properly trained for Central Asian Desert Combat? I would say "No."

War powers need to be used where police powers can not operate effectively enough.

Yes, but "effectiveness" is not the only important issue here. A big issue for me (but not, apparently, for you) is whether or not our rights as citizens are being upheld. Should we allow our government to "use war powers because police powers aren't effective enough" or should we "respect people's civil rights, and act in a way that gets the job done without becoming what we hate the most?"
posted by Afroblanco at 11:52 PM on December 24, 2005


since we are at "war" with the terrorists, we should be allowed to do things that you can't do in a "crime" situation, such as performing surveillance on innocent people

IMV Congress pretty much has the final say about regulating the Executive's authorities within the country, "Commander in Chief" or no, so I don't think the admin's rationale here is going to fly. "President not King", indeed.

But I see two issues here wrt NSA. One is what IMV is the public kabuki show about listening to specific people in the US via wiretap w/o warrant:

"In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations."

There are apparently hundreds or thousands of people in this class, but we know no specifics of who, what, where, when, why, or how so it's kinda pointless discussing it now.

The 2nd, IMV more interesting issue is the whole NSA "echelon" enchilada, and how FISA is apparently wordsmithed around its operation.

This is just the tinfoil talking maybe, but if the MSM focuses on the NSA infringement of hundreds or so people (all with alleged connections to "terrorists") but doesn't mention this apparent latter massive violation of privacy then I'll suspect the MSM (and Congress) is in the tank with the admin on this.

The question is, should the NSA be able to analyze my communications data because the NYPD isn't properly trained for Central Asian Desert Combat? I would say "No."

It seems to me Bush is going with "wartime exigency" only for adding a thousand or so domestic surveillees. FDR (with Congressional & SCOTUS OK) threw 100,000+ Japanese-Americans into concentration camps for 3 years, so clearly the nation does have some practice in sacrificing the rights of the few for the needs of the many. If you aren't on their suspect list, you're not in this particular class of surveillee.

Should we allow our government to "use war powers because police powers aren't effective enough" or should we "respect people's civil rights, and act in a way that gets the job done without becoming what we hate the most?"

The president's war powers at home & abroad generally derive from explicit Congressional delegation of *its* war powers.

That's what the "War Powers Act" hoo-haw is all about.

The exception to this is basically when Congress can't react to the situation fast enough, then the Commander in Chief's Constitutionally-mandated on-the-spot position gives him some temporary leeway in reacting to the situation.

Additionally, implicit in the "Commander in Chief" designation, Congress is supposed to regulate, but not command, the armed forces of the US.

So the answer to your question is the Executive doesn't have the power to abuse people over the long-term. Congress has that power, subject to Judicial review that Congress' actions are copacetic with the Constitution.

apologies to beth for the length of this post
posted by Heywood Mogroot at 1:47 AM on December 25, 2005


Afroblanco : I'm not suggesting that the NYPD go abroad to Afghanistan to track down Osama. That is obviously something that the military is more capable of
Well, you'd think so, wouldn't you? And yet ...

I say give Mike Logan and Robert Goren a chance :)
posted by kaemaril at 4:28 AM on December 25, 2005


Heywood : kaemaril: to my reading, domestic calls via satellite would be case 3) and require a warrant or the hassle of other provisions of FISA. International calls via satellite would be case 1) and only require a warrant (or the hassle...) if a known individual was targetted for intercept.

Absolutely. But I don't see how this works with your suggestion that, since a satellite isn't "in" the United States, this somehow gives the NSA carte blance.
As I suggested earlier, these particular definitions seem more aimed toward where the subject of the surveillance is not where the surveillance is being carried out...

funny thing, these definitions sure make a lot of sense if you're trying to run a semi-responsible foreign intelligence operation.

Operative word there being foreign, NOT domestic. Well, that and "semi-responsible", of course.
posted by kaemaril at 4:39 AM on December 25, 2005


Heywood : It seems to me Bush is going with "wartime exigency" only for adding a thousand or so domestic surveillees. FDR (with Congressional & SCOTUS OK) threw 100,000+ Japanese-Americans into concentration camps for 3 years, so clearly the nation does have some practice in sacrificing the rights of the few for the needs of the many. If you aren't on their suspect list, you're not in this particular class of surveillee.
Since this alleged surveillance activity appears to be doing an end run around FISA, in and of itself governed by a secret court, you don't really know that, do you? For all you know, Bush could be tapping Al Gore and Big Bird :)

Also, I hope you're not suggesting that Japanese Internment, considered constitutionally suspect even at the time, and subsequently condemned and officially apologised for by the US government, should be considered some sort of precedent?

Former Supreme Court Justice Tom C. Clark, who represented the US Department of Justice in the "relocation," writes in the Epilogue to the book Executive Order 9066: The Internment of 110,000 Japanese Americans (written by Maisie & Richard Conrat):

The truth is—as this deplorable experience proves—that constitutions and laws are not sufficient of themselves...Despite the unequivocal language of the Constitution of the United States that the writ of habeas corpus shall not be suspended, and despite the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action under Executive Order 9066....

posted by kaemaril at 5:06 AM on December 25, 2005


LA Times: ... The companies have also given the NSA access to electronic switches that connect U.S. and overseas communications networks, a "significant expansion" of NSA capabilities, it said.
Phone companies and others have cooperated with U.S. agencies including the NSA for years.
In the early 1990s, AT&T agreed to use an NSA-designed chip to ensure that law enforcement had access to phone calls.
And AT&T has a database code-named Daytona that keeps track of phone numbers on both ends of calls as well as the duration of all land-line calls, according to a business executive who has been briefed on the system.
"This started as a way for phone companies to dig out fraud," the executive said Saturday. After Sept. 11, intelligence agencies began to view it as a potential investigative tool, and the NSA has had a direct hookup into the database, he said.
After such massive volumes of information are collected, they are searched for suspicious language. The administration could thus argue that only hundreds of people were monitored because those conversations were the ones that were flagged because they contained suspicious words, Schneier said.
"If a computer looks at all e-mail and says 'bing' once, is that monitoring one person or millions?" Schneier asked. "The Bush numbers are depending on that subterfuge."
One former senior Pentagon official who has overseen such "data mining" said he also believed the NSA was probably conducting such wholesale surveillance. ...

posted by amberglow at 9:28 AM on December 25, 2005


But I don't see how this works with your suggestion that, since a satellite isn't "in" the United States, this somehow gives the NSA carte blance.

I was incorrect there, since the only test of location of acquisition is the literal wiretap case, (case 2).

It's pretty easy. Look at the FISA definition of "electronic surveillance" and tell me which of the 4 categories tapping ALL calls to/from Afghanistan would fall under. If you can't find one, it's not covered under FISA.

NSA may have other statutory and Executive order restrictions on it that limit the "carte blanche". The reporting thus far has been rather sucky.
posted by Heywood Mogroot at 12:44 PM on December 25, 2005


...basically the only limitation I can see in my above test is that NSA may not tap into actual wires in the US without a FISA warrant, since that is case 2.
posted by Heywood Mogroot at 12:48 PM on December 25, 2005


juiceCake: explain to me how...

odinsdream already elaborated my point more explicitly...

If the interception occurred from geosynchronous orbit, it didn't happen "in the US".

You realise this is why these things go before a judge, so he can shoot down these insane arguments from shitheads like you, right?

See what happened in the Fox case against Franken. You're repeating it here.
posted by juiceCake at 1:27 PM on December 25, 2005


juiceCake, please explain to me how intercepting a satellite call falls under case 2, which explicity only covers "wire communications".

FWIW, calling me insane, a shithead, and blind appeals to the authority is not a rational argument.
posted by Heywood Mogroot at 1:55 PM on December 25, 2005


Look guys, you should have figured this out by now : no matter what we say, Heywood is absolutely determined to get the last word on this argument. I don't know what his motivation is. All I know is that he has a near infinite amount for time and patience for this thread and its subject matter.

Heywood - I'm still not convinced. Furthermore, I will not be convinced. We have a fundamental difference of opinion. I think that nearly all of your arguments boil down to "using the letter of the law to defeat the spirit of the law." I still don't believe in the "War on Terror" or the concept of having a war on anything other then another country. I think that it's an absurdist notion. Period.
posted by Afroblanco at 2:15 PM on December 25, 2005


The point of good, rational debate is to identify where we part philosophical, logical, or factual company.

I think that nearly all of your arguments boil down to "using the letter of the law to defeat the spirit of the law."

My argument is that the letter of the law is there for explicit purposes of allowing NSA to eg. surveil vast swathes of the globe automatically, without having to worry about excluding US citizens' communications from this collection.

I point, as support of this belief, the completely tortured wordsmithing of what is classified as "electronic surveillance", eg:

(1) the acquisition ... of the contents of any ... communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

If Congress had intended our communications to be sancrosanct from collection overseas, they wouldn't have EXPLICITLY incorporated the loopholes I have bolded above.

How, exactly, do you disagree with this assertion?
posted by Heywood Mogroot at 2:53 PM on December 25, 2005


but a "particular known person" doesn't in any way mean collecting everything from everyone.
posted by amberglow at 4:21 PM on December 25, 2005


why not?

you call your friend in Afghanistan, the intercept is targetting the friend, and your part of the convo is along for the ride.

Note that this does NOT apply to purely domestic communications, since those would fall under cases (2) (domestic wiretap) or (3) (interception of a domestic radio communication) of the surveillance definition.

amberglow, IMV they clearly ADDED words to explicitly allow the collection of overseas calls of US citizens living in the US.

simplifying the wording of (1) like this:

the acquisition ... of the contents of any ... communication sent by or intended to be received by a United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

would be required to give us 4th amendment privacy rights to our communications overseas.

I do not that this NSA case is somewhat similar to the asymmetric issue of wiretaps. If the FBI is legally wiretapping subject A, and you call them, YOUR call is being wiretapped without a warrant.
posted by Heywood Mogroot at 4:45 PM on December 25, 2005


(correction: not "give us 4th amendment rights" but criminalize the infringement of these rights)
posted by Heywood Mogroot at 4:48 PM on December 25, 2005


...to explicitly allow the collection of overseas calls of US citizens living in the US.

But they're collecting everything from everyone, and then sifting.
posted by amberglow at 5:12 PM on December 25, 2005


And is this collecting and sifting criminalized by FISA? I agree it's a violation of our 4th amendment rights, as extended by the Katz court in 1967, but I'm just talking about FISA.

n.b. I think a lot of the publicized internal gov't discord about FISA was Ashcroft trying to find a way to get intelligence gleaned by the NSA into the criminal justice system (without having it thrown out by the excusionary rule and 'fruit of the poisoned tree' jurisprudence).
posted by Heywood Mogroot at 5:45 PM on December 25, 2005


if my analysis of FISA is correct, it is quite a wonderful example of 'what the large print giveth, the small print taketh away').

I can see why the USG would like us to THINK our overseas communications are protected from unwarranted surveillance.

But we don't have the full picture here; I've found this:

"Information about a U.S. person who is not an approved target, if lawfully acquired incidental to the authorized collection, may be retained and disseminated if it amounts to foreign intelligence or counterintelligence; otherwise, it may not be retained or disseminated."

that sheds some light on the NSA's retention policies under Clinton.
posted by Heywood Mogroot at 5:59 PM on December 25, 2005


✌ ☞☞
posted by Heywood Mogroot at 7:01 PM on December 25, 2005


it's the "lawfully acquired" part that's at issue here i think.
posted by amberglow at 7:55 PM on December 25, 2005


Do you understand that "intelligent debate" doesn't involve repeating your assertions ad nauseum until everyone else goes to sleep, or goes off to have dinner with their family, or what have you? You have added absolutely nothing to this thread for your past dozen or so comments that you haven't already said.

We get what you're saying - you're being completely clear as far as what your position is. The fact that your position itself isn't clear, or that you apparently have a horrible understanding of basic history, or that your sentences aren't even structurally correct sometimes, is entirely your fault - but repeating the same mistake isn't useful.

You've made up something about FISA by "rewording" it to "simplify" it for us, and in the process, you've opened the doors to this semantic wiggling. Also, you've gone from defending NSA, to defending yourself, to defending the fact that you're actually on our side, but you're just trying to help all of us understand what the NSA is "up to" in the way they "write these laws."

I guess you're just waiting until you're ahead to stop. In that case, I certainly don't expect you to stop anytime soon.
posted by odinsdream at 9:15 PM on December 25, 2005


I'm coming in later here, but it seems that a satellite in orbit would be governed by the same precepts as a ship in international waters or a plane in international airspace: the craft itself is considered the territory of the flagged nation.
posted by nathan_teske at 11:05 PM on December 25, 2005


You have added absolutely nothing to this thread

Let's see, this:

This form of catch-all surveillance was detailed in the Church Committee hearings from 1975

showed that Congress WAS aware of NSA's catch-all surveillance capabilities in 1975

I felt this:

Additionally, implicit in the "Commander in Chief" designation, Congress is supposed to regulate, but not command, the armed forces of the US.

was a good original argument that the Executive does have the constitutional mandate to *command* our national security state.

The rest of the thread has been me trying to work out where we disagree about FISA. There's nothing else going on in the thread so it's not like I'm diverting discussion from other conversations.

or that you apparently have a horrible understanding of basic history

(sigh)

You've made up something about FISA by "rewording" it to "simplify" it for us, and in the process, you've opened the doors to this semantic wiggling

Of course! What do you think the trade of law is but semantic wiggling! In my simplified sample at 4:45 above I was illustrating what the FISA language would look like if Congress had intended for US civilians to have 4th amendment protections communication overseas.

... that's not the language Congress used; it's clear to me that they ADDED weasel words to allow spying, and I'm just curious why you think different.

you've gone from defending NSA

I see that this is kinda the problem here. We're so accustomed to having the tribes on two sides that we're stuck either with circle-jerks or poo-fights.

Nothing in my words above should be construed as "defending NSA". It's suspected for years that they've been listening in on our calls for decades, contrary to our 4th Amendment protections.

My point in bringing up what I consider to be the "fine-print of FISA" is actually a MUCH deeper attack on the NSA's activities than you can see, apparently.

This issue broke in the press as just some n-hundred "terrorist suspects" losing their 4th amendment protections thanks to Bush; but should my reading of FISA be right then it's clear that WE ALL have had our privacy (potentially) violated by NSA's catch-all overseas surveillance.

It's my theory that the USG just wants us to keep our eyes on the "illegal" wiretapping of "terrorist-connected" citizens and NOT look at the wider picture of NSA's longstanding methods of intelligence collection.

In that case, I certainly don't expect you to stop anytime soon.

Well, I'm not going to stop while there's discourse to clarify. This line of argument is 100% on-topic to this fpp.
posted by Heywood Mogroot at 11:36 PM on December 25, 2005


but it seems that a satellite in orbit would be governed by the same precepts as a ship in international waters or a plane in international airspace: the craft itself is considered the territory of the flagged nation.

doesn't matter since the actual location of intercept only matters for wire communications, definition (2) of what is regulated surveillance. Satellites can't intercept those... or CAN they :)

AFAICT NSA is free to slurp radio comms as long as at least one party isn't in the US... definition (3) says if one party is in the US then they need to do the FISA court thing to get a warrant.
posted by Heywood Mogroot at 11:56 PM on December 25, 2005


FWIW, calling me insane, a shithead, and blind appeals to the authority is not a rational argument.
posted by Heywood Mogroot at 4:55 PM EST on December 25 [!]

I know. I didn't do that. Funny how you dismiss the entire argument because of one bad choice, a personal insult, but then you're all to happy to say that a satellite transmission used by U.S. agents is perfectly fine since technically it's not a wire communication.

This is, in fact, just as absurd as the Fox lawyer's arguments and was laughed out of court.
posted by juiceCake at 9:47 AM on December 26, 2005


Myth # 2, We have to monitor terrorist cells in the U.S. to stop them from planting a bomb in yada yada yada.
A. Do you know what tradecraft is? Its what you train operatives in before they start a covert mission, wait, not train, beat into their skulls over and over again relentlessly. You never talk on a phone or even in public in "the clear" meaning you always talk in code, always. And not movie code talk like "my umbrella is red". I mean you talk about your computer, for instance,
:How is that computer problem you are having?
:Not good, i had to reinstall Adobe Photoshop last thursday.
:That sucks.
:Its working now, I should be finished Sunday.
:Great.
Translation: Send me more explosive on friday and i will have the weapon ready on next monday.

This is BASIC tradecraft, basic. No terrorist cell in the U.S. are ever going to talk in the clear on their phones, or in public. These people come from Saudi Arabia, you think they trust that their cell phones are listened to? Did the 9/11 terrorists ever talk about the mission, even in Arabic? No. Not even on the day before.
B. So why is it a secret that Bush wants to tap peoples computers and phones without a warrant, and its NOT a secret that we tap peoples phones and computers WITH a warrant. Well, the only reason i can think it is that Bush is breaking the law.
I wonder, have they been listening to the Federal Prosecutor Patrick Fitzgerald's conversations with his investigators about Bush adminstration indictments?

posted by amberglow at 9:47 AM on December 26, 2005


Thanks amberglow. Dead on.

I'd add that respecting the law or the letter of the law is not enough. There must be the appearance of respect for the law. Particularly in a Republic.
Not a lot of dues being paid to the Caeser's wife maxim. It is important that not only actual justice is done, but that the public believes that they have received justice. And the apparatus of government should be above suspicion.

I don't think anyone believes justice is being done here.

I'd speculate that internal oppression is the goal of this kind of surveilance.
Oppression in the many faceted sense, as well as power consolidation.

I wonder if we will be having elections in the next decade...
posted by Smedleyman at 10:12 AM on December 26, 2005


I wonder if we will be having elections in the next decade...
it's my greatest fear--and they're certainly not acting like people willing to give up power anytime soon.
posted by amberglow at 10:21 AM on December 26, 2005


I wonder, have they been listening to the Federal Prosecutor Patrick Fitzgerald's conversations with his investigators about Bush adminstration indictments?

Eeek.

You know, if Jr. Bush hasn't burned all contacts Poppa's CIA connections got him over the years, I should think this is a very real probability.
posted by five fresh fish at 11:50 AM on December 26, 2005


Heywood, is your (sigh) link some kind of, defense of your having said that Germans bombed Pearl Harbor, or...were you joking about germans bombing pearl harbor, and you're just linking to a google search that reveals similar jokes?

At least on that one point, you could say something like "Sorry - I said germans bombed pearl harbor, but obviously the japanese did. My bad."

Instead, you're being obtuse about it, in the exact same way that you're being purposefully obtuse about the real discussion here, by rewording FISA so that it fits your arguments better.
posted by odinsdream at 2:06 PM on December 26, 2005


"I wonder if we will be having elections in the next decade...
it's my greatest fear--and they're certainly not acting like people willing to give up power anytime soon."

Idiots on talkradio were saying the same thing about Clinton circa 2001...
posted by ParisParamus at 2:12 PM on December 26, 2005


At least on that one point, you could say something like "Sorry - I said germans bombed pearl harbor, but obviously the japanese did. My bad."

It's a joke from the movie "Animal House." I recognized it immediately, and assumed Mr. Mogroot meant it as such.

And as for "rewording FISA," the law clearly has a bunch of loopholes in it. A reasonable reader of the law would, I think, interpret those loopholes as intentional. From the EFF FISA FAQ:
15. Why is FISA dangerous?

... If the U.S. person is not "known," or more important, not "intentionally" targeted, it simply isn't "electronic surveillance" under § 1801(f)(1).
There's additional interesting FISA reading here.
posted by me & my monkey at 3:29 PM on December 26, 2005


Actually, in § 1801, if the data is collected in the US, then the U.S. person doesn't need to be known or targeted and it will still specifically count as "electronic surveillance" for the purposes of FISA. Which means that even unknown, untargeted US persons are entitled to the warrant requirement if the surveillance is conducted in the US.

An outstanding article on the whole warrantless wiretaps issue here by Suzanne E. Spaulding.

As Balkinization reported on Christmas Day:

If You're Going to Read Only One Thing About the NSA Spying Program it probably ought to be this piece by Suzanne Spaulding, former assistant general counsel at the CIA, general counsel for the Senate and House Intelligence committees, and executive director of the National Terrorism Commission (1999-2000).
posted by darkstar at 11:39 PM on December 26, 2005


Thanks, darkstar! Bookmarked.
posted by Afroblanco at 11:44 PM on December 26, 2005


Sure thing!

And from the article, an excellent conclusion and a reminder of why I like O'Connor so much:

Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

...The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O'Connor reminded us in Hamdi , "It is during our most challenging and uncertain moments...that we must preserve our commitment at home to the principles for which we fight abroad.

posted by darkstar at 1:18 AM on December 27, 2005


Idiots on talkradio were saying the same thing about Clinton circa 2001...

Sure--Clinton and Democratic Party spied on Americans without warrants all the time, right? And the GOP never spied on people before, either during Nixon's day--or even more recently, right? And Bolton never got NSA info he shouldn't have, right?
posted by amberglow at 5:36 AM on December 27, 2005


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