Skip

No probable cause
February 8, 2006 10:47 PM   Subscribe

Was Gonzales truthful? Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said. So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.
posted by caddis (47 comments total)

 
Failure to obtain warrants is going to end up being the needle that pops this whole insane balloon.
posted by JWright at 11:09 PM on February 8, 2006




What they've learned.
posted by homunculus at 11:21 PM on February 8, 2006


There is no pendulum.
posted by troutfishing at 11:39 PM on February 8, 2006


Failure to obtain warrants is going to end up being the needle that pops this whole insane balloon.


Are you talking impeachment here?
posted by Pontius Pilate at 11:57 PM on February 8, 2006


So this haystack needle pops the insane balloon, which makes the frog march and tug on a string that swings the pendulum back turning the tide of the perfect storm in a teacup and this sea change lifts all boats above the burst dams but, lacking a paddle, they drop the other shoe on the turd blossom which oozes up through the Achilles heel and into the breeches making the old man strip down to his long underwear and dive into the water tank which triggers the indictment of the ham sandwich which leaves only crow to eat?
posted by fleacircus at 12:57 AM on February 9, 2006 [1 favorite]


Are you talking impeachment here?

People really need to stop suggesting this. Impeachment is simply not going to happen. Even if its illegal, even if its unconstitutional, the GOP can defend this program to the average voter as necessary for national security. To demand impeachment for something like that is political suicide.

The Dems keep losing partly because they're perceived as weaker on national security. To try to impeach a president for something that is in the end a national security measure (even an illegal one) is to continue being seen as weak on these issues for another umpteen election cycles.
posted by gsteff at 1:02 AM on February 9, 2006


People really need to stop suggesting this.

Actually, the point of me asking whether he/she was talking about impeachment was not at all to suggest that I think that it is the proper course of action, nor to suggest that I think it is at all likely ("no" on the second, and "unsure" on the first, for the record). I was simply trying to clarify the poster's position.
posted by Pontius Pilate at 1:32 AM on February 9, 2006


If national security is more important than the rule of law, then you (gsteff) would be right. If you were right then no action by the administration, no matter how lunatic or illegal, could ever be challenged as long as they could mount a specious justification of national security.

The administration's arguments, both on the utility of the information and the legality of the process are terribly weak. So weak that it seems certain they have sent out both Gonzales and Cheney to tell straighforward lies on the subject.

What's embarrassing for supporters of the policy is that there is a case to be made for it - it just isn't the case that the administration is making.

Time to flush this out.
posted by grahamwell at 1:38 AM on February 9, 2006


What's embarrassing for supporters of the policy is that there is a case to be made for it- it just isn't the case that the administration is making.

Sorry, but could you elaborate on that? What would be a good case to be made for it?
posted by Pontius Pilate at 1:45 AM on February 9, 2006


I'll try. The argument would be that this is not phone tapping at all, in the conventional sense - argued on the basis that it is, at least in the primary stage, automated and does not involve any human agent. As a data-mining exercise it uses techniques and technologies that did not exist when the FISA law was passed, could not have been anticipated by that law and falls outside of its scope.

That's how I'd start anyway. You can see the obvious cracks in the argument but the overall point, that the wire-tapping laws are outdated and urgently need to be revised, would probably get more general assent. It's true, after all.
posted by grahamwell at 2:01 AM on February 9, 2006


That would work if FISA applied only to traditional phone tapping. However, Section 1801(f) defines electronic surveillance to include:

"...the acquisition by an electronic, mechanical, or other surveillance device..." (emph. added).

It doesn't really matter, I don't think, that the data-mining aspect of it does not involve a human agent. Further, I don't think that it's clear at this point that there the program involves a definite one-two step process whereby targets of interest are identifying automatically via datamining first, and are then passed along for human surveillance second. Again, the operational details are unknown, so this is at best an assumption.


the overall point, that the wire-tapping laws are outdated and urgently need to be revised, would probably get more general assent. It's true, after all.

Whether or not it's true is irrelevant to the legality of the program. It may be that FISA could stand to be updated once again, though it has already been updated (most recently with the PATRIOT Act). However, to use this argument as a defense of the use of this program is to say "We know there was a law on the books that prohibited this, but it was too cumbersome and outdated, so we just ignored it." That's not really the way our government should ideally operate.
posted by Pontius Pilate at 2:20 AM on February 9, 2006


That's not the way our govenment should operate. Period.
posted by Kirth Gerson at 2:53 AM on February 9, 2006


"We know there was a law on the books that prohibited this, but it was too cumbersome and outdated, so we just ignored it."

Oh - I absolutely agree, that's a terrible argument. Actually it's pretty much Gonzales' argument, except that in his view the force resolution passed by Congress meant that they could ignore it legally. That argument leaves open the question as to how many other inconvenient laws the force resolution and apparently endless 'state of war' overrides.

My feeble defence comes down to scope. Does the FISA law cover what the NSA were doing?

Of course we don't know exactly what the NSA were up to, there are some guesses here but it does seem that much of it was not about intercepting the content of communications but rather analysing the 'metadata' about those communications, preliminary to a decision as to which communications to intercept in the traditional sense (ie: listening to them). Thus the larger part of the programme (the pre-qualification) could fall outside of the scope of FISA.

Maybe, but given that the motive behind the drafters of FISA was originally ..
".. The application of vague and elastic standards for wiretapping and bugging has resulted in electronic surveillances which, by any objective measure, were improper and seriously infringed the Fourth Amendment rights of both the targets and those with whom the targets communicated. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information - unrelated to any legitimate government interest - about the personal and political lives of American citizens. The collection of this type of information has in its turn raised the danger of its use for partisan political and other improper political ends by senior administration officials."
... it seems that if they could have covered such data-mining they certainly would have.
posted by grahamwell at 3:26 AM on February 9, 2006


One odd point that is almost inevitably glossed over in discussions on Gonzalez' flimsy rational for ignoring FISA is his claim on presidential privilege during wartime : well, the US is not at war. Congress hasn't declared war in decades.

Say aloud - it's fun. "We're not at war".

All the "state of war" and "War on Terror" talk is BS - a resolution on the use of force is not the same as a declaration of war. What I'm wondering is - why didn't Congress declare war ?

Was it due to the absurdity of declaring war on a foe which can't be clearly identified ? The ridiculousness of declaring war on a feeling ? Or was Congress leery of granting the extended privilege that a legal state of war would confer on the executive ?
posted by troutfishing at 4:24 AM on February 9, 2006


I think I now understand the administrations logic that "FISA is too cumbersome and outdated." It would seem that the program is a mixture of data mining and directed surveillance. The data mining looks for keywords, calls to certain blocks of numbers or geographic regions, whatever. There is no probable cause to monitor each of these conversations so therefore "FISA is too cumbersome and outdated." When information was obtained without a warrant the judges refused to let the NSA use that tainted information as the basis for a probable cause determination for a FISA warrant. Again, "FISA is too cumbersome and outdated" and much of the surveillance directed at particular individuals is done without a warrant.
posted by caddis at 4:57 AM on February 9, 2006


How heartwarming that your Attorney General -- the person whose job it is to uphold the law -- is sending a clear message that if a law is inconvenient in any way, you can feel free to just ignore it. He's not just sending the message either, he's being downright flippant about it. Oh, that might mean that he has to be available to sign warrant applications. It's his fucking job.

Seriously, I've heard of Americans being quite willing to sacrifice freedom for convenience, but in this case it's not even their own convenience, but that of an AG who apparently can't be bothered to put in the long hours in order to fight the war on terror, which is supposed to be important (from what I've heard).

I used to laugh when people hinted that Ashcroft might be replaced with someone worse. It doesn't seem to outrageously funny anymore, does it...
posted by clevershark at 5:39 AM on February 9, 2006


Remember how Janet Reno was savaged by the "liberal" media and their Republican masters about some perceived appearance of a lack of independence from the Chief Executive?
How is it that Attorney General Gonzalez gets a free pass as the clear slave and defender of Bushism today? Is it something about the CEO Presidency? Or maybe 9/11 changed everything?
posted by nofundy at 5:51 AM on February 9, 2006


Glenn Greenwald, linked upthread by homunculus, has the best commentary around on this issue. Bar none.

nofundy: Yeah, I can't believe it. The other day I was reminiscing about Janet Reno. *shiver* At least she wasn't (publicly) in favor of torture.
posted by sonofsamiam at 5:58 AM on February 9, 2006


Reno was savaged for incompetence, real or imagined, more so than her lack of independence.
posted by caddis at 5:58 AM on February 9, 2006


I think I now understand the administrations logic that "FISA is too cumbersome and outdated."

even better: I think I now understand the administrations logic that "FISA the Constitution is too cumbersome and outdated."
posted by matteo at 6:30 AM on February 9, 2006


Well, this is the same guy that thinks terrorists are likely to forget about secrecy if they're not constantly reminded that they're under surveillance:
BIDEN: Thank you very much.
General, how has this revelation damaged the program?
I'm almost confused by it but, I mean, it seems to presuppose that these very sophisticated Al Qaida folks didn't think we were intercepting their phone calls.
I mean, I'm a little confused. How did it damage this?

GONZALES: Well, Senator, I would first refer to the experts in the Intel Committee who are making that statement, first of all. I'm just the lawyer.
And so, when the director of the CIA says this should really damage our intel capabilities, I would defer to that statement. I think, based on my experience, it is true -- you would assume that the enemy is presuming that we are engaged in some kind of surveillance.
But if they're not reminded about it all the time in the newspapers and in stories, they sometimes forget.
posted by PontifexPrimus at 6:52 AM on February 9, 2006


Republican Who Oversees N.S.A. Calls for Wiretap Inquiry
Rep. Heather Wilson (R-NM), “whose subcommittee oversees the National Security Agency broke ranks with the White House and has called for a full Congressional inquiry into the Bush administration’s domestic eavesdropping program. … By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why.”
posted by ericb at 7:26 AM on February 9, 2006


I've heard of Americans being quite willing to sacrifice freedom for convenience

"He who sacrifices freedom for security deserves neither" -- Benjamin Franklin
posted by ericb at 7:28 AM on February 9, 2006


Can I ask a stupid question? What exactly does is mean to "tap" a phone? Is it the simple act of accessing a line? Does it require that the line be actively monitored by a person? Does it matter if the line is monitored by software, with the explicit exclusion of human ears? Does it matter if nothing is ever done to the actual person whose line is tapped (rather, each person is just a 'data point')?

Just from a legal definition, is this sort of thing defined in FISA or anywhere else? If not, what should the definition be?
posted by underdog at 7:28 AM on February 9, 2006


why didn't Congress declare war ?

The US hasn't declared war on anyone since it declared war on Bulgaria, Hungary, and Romania in June 1942. Since the end of World War II, Congress has preferred to authorize the use of force without declaring war, and since 1973 this has been covered by the War Powers Resolution.
posted by kirkaracha at 7:29 AM on February 9, 2006


ericb, the actual quotation reads: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."
posted by emelenjr at 7:43 AM on February 9, 2006


emelenjr -- thanks, that's it.
posted by ericb at 7:48 AM on February 9, 2006


"That's not the way our govenment should operate. Period."

Well. It is. And it seems to have been working that way for quite some time. And, as far as I can tell, it's not going to change.

Welcome to the new America. The Bill Of Rights thing was a quaint idea for a long time, but it's just become too much of a bother for those in power. Too bad. So sad.

Unless we as citizens and voters organize and vote to foster massive changes in leadership. This is what we'll get from now on. In a very explicit sense we'll get the government that the founding fathers tried to protect us from. And since we as citizens and voters have shown as much support as outrage, I think you can look forward to things getting worse rather than better.
posted by y6y6y6 at 7:51 AM on February 9, 2006


I have only one question about this whole scandal, and I damn sure wish that some senator would ask it:

Mr. Gonzalez, you claim that the authorization of force allows the president to do these searches beyond oversight of the court system. What, if anything, would NOT be permitted by this authorization of force?

I.e., is the president allowed to anything whatsoever, ignoring any law whatsoever as long as he claims that his actions are fighting against enemies of our state, or their agents, or friends, or just poeple on the AIM buddy list of one of their friends? Because I might be willing to go along with this (ok, I'm not, but I say I am for the sake of this argument), but I'm not for making the president into a defacto king.

Why won't somebody ask this question? It's the first question the Supremes would ask (ok, will ask as soon as the ACLU trial goes forward).
posted by zpousman at 7:52 AM on February 9, 2006


I can't help but think most of the damage done to America after 9/11 has been by ourselves, the big winners appear to be the oil companies really, which in turn finance both our glorious leader and the terrorists. In order to spread democracy around the world we need to thin it out here I guess. My only effective strategy is to walk and ride the bus. Why is it that congress had the nerve to try and somehow hold Terry Shiavo's husband accountable but not those in the highest seats of power who break the law. How can conservatives be in such a massive state of denial, this whole thing has to create at least a little cognitive dissonance for them. Ideology means nothing as long as we can keep gays from marrying and teen pregnancy rates high. Who cares if government growth/waste grows massively, if we can cut welfare, Medicaid and education while cutting taxes. Sometimes I just want to find a republican and kick them in the shins! Idiot, Lying SOB's!
posted by los pijamas del gato at 7:52 AM on February 9, 2006


Bush Used Emergency FISA Wiretaps More Times Than Any Other President
"The central thrust of the administration's argument for ignoring FISA is that the FISA application process is too slow. Yet, as anyone who read the text of the statute realizes, FISA allows for a search-first-apply-later option....

Gonzales paints the emergency FISA process to be so grueling, so bureaucratic as to render the entire process almost useless in this post-9/11 word where we need to act swiftly. Well, if emergency FISA searches are so darn hard to execute, why then has the Bush administration's use of emergency FISA risen exponentially since 9/11? Take for example the one year period following the 9/11 attacks. From 2001 to 2002 , the Bush administration had exercised the emergency FISA option 113 times. To total number of emergency FISA wiretaps in the court's 23-year history before Bush took office?

Forty-six.

Forty-six emergency FISA wiretaps in 23 years, and here we have 113 such warrantless wiretaps in a single year. By April 1, 2003, that number was 170. That's more than three times the total number of emergency wiretaps before Bush took office. In case you're wondering about the math, that's about 9 warrantless, emergency FISA wiretaps per month since September 11th. About 2 per week.

FISA works, and the administration's frequent, successful employment of FISA's emergency provision proves that. Again, the central issue: since the administration's own records prove FISA is flexible enough to address immediate terrorist threats, why did the President ignore the law and wiretap Americans without a warrant? Why did he keep his program secret for over four years? And what does he have to hide?
posted by ericb at 7:59 AM on February 9, 2006


My feeble defence comes down to scope. Does the FISA law cover what the NSA were doing?

Yes, it does. Why? Because FISA specifically states that it is the only method through which any electronic surveillance can be done. The NSA is using electronic surveillance, so it must do so under the rules of FISA. Gonzales admits that the program is not being done under FISA rules.

So, that much is absolutely clear - The administration is using electronic surveillance. FISA is the only method through which electronic surveillance can be done, legally.

Everybody agrees on the above points, it's just that Gonzales and the administration don't agree that the president can also do whatever he pleases because of the authorization to use military force.

The entire hearing is available on c-span.org, if you're interested.
posted by odinsdream at 8:12 AM on February 9, 2006


I regret not having been able to participate in this thread as it unfolded. (Having to sleep is a nuisance.) At any rate...


I.e., is the president allowed to anything whatsoever, ignoring any law whatsoever as long as he claims that his actions are fighting against enemies of our state, or their agents, or friends, or just poeple on the AIM buddy list of one of their friends? Because I might be willing to go along with this (ok, I'm not, but I say I am for the sake of this argument), but I'm not for making the president into a defacto king.

Why won't somebody ask this question? It's the first question the Supremes would ask (ok, will ask as soon as the ACLU trial goes forward).


That's not *quite* the argument the administration is making. As far as I understand the legal reasoning, it was first claimed that the President has use of all the powers available under Article II; the latest argument, however, is that the President can use all war powers, Congressional prohibitions notwithstanding. So - pretty bad, but not yet to the point of claiming to be able break any law whatsoever in the name of safety (small solace, considering how extensive war powers are).

Also, it's not certain that theree is going to be an "ACLU trial" anytime soon. Yes, the ACLU has filed for an injunction under allegations of violations of the First and Fourth Amendments. However, there is of course the problem of proof of wiretapping and the difficulties of discovery. David Barron has suggested that a way to get around that would be for Congress to amend FISA to confer standing on the basis of identifying a discrete injury (chilling activity) for a declatory judgment that the program is unlawful. But, of course, the likelihood of that happening is slim.
posted by Pontius Pilate at 9:07 AM on February 9, 2006




Wanted: Competent Big Brothers
"After four and a half years, our intelligence and national-security apparatus still hasn't learned how to track terrorists, and the Bush administration has put forward little more than cosmetic reforms.

The legal controversy over the NSA surveillance program has obscured an intelligence issue that is at least as important to the nation's future: sheer competence. Do we have any idea what we're doing? One reason the NSA is listening in on so many domestic conversations fruitlessly - few of the thousands of tips panned out, according to The Washington Post- is that the agency barely has a clue as to who, or what, it is supposed to be monitoring....

Vice President Dick Cheney asserted recently that the NSA’s domestic surveillance program has 'saved thousands of lives.' The only domestic success that administration has publicly linked to the surveillance program is the exposure of a rather comical plan by truck driver Iyman Faris to blowtorch the Brooklyn Bridge (even that claim is questionable)." [Newsweek | February 8, 2006]
posted by ericb at 9:13 AM on February 9, 2006


the US is not at war. Congress hasn't declared war in decades.... "We're not at war".... All the "state of war" and "War on Terror" talk is BS - a resolution on the use of force is not the same as a declaration of war. What I'm wondering is - why didn't Congress declare war?

Utmost respect, troutfishing, but that view is shared by -- to my knowledge -- not one person in government. The War Powers Act was designed as an equivalent to a Declaration of War, and it has been understood so in legal terms for some 35+ years.

Sen. Biden has stated that they are constitutionally equivalent. You may disagree, but he's the one on the Judiciary Committee.

People really need to stop suggesting this. Impeachment is simply not going to happen.

It certainly isn't likely while the GOP holds Congress, and I'm still not betting that they won't continue to do so for another cycle.

Failure to obtain warrants is going to end up being the needle that pops this whole insane balloon.

This, however, is key. There will need to be stronger opposition by moderate Republicans, and they won't join in unless and until actual harm is shown to innocent Americans (ideally, from a PR stance, who do not fit into the dismissable class of PETA/Sheehan/ANSWER). As I've indicated before, I think that the apeshit pushback response of the administration -- as with the apeshit response to Joe Wilson -- is entirely out of proportion, unless you assume that something, really, as bad as you can imagine has taken place.

They may even be connected. One hypothesis is that the Plame outing was a warning signal in what the White House perceived as a war with the CIA. Then you can speculate that they were running this program to detect or conduct such a war. That's a bit out there based on what we know now.

But I have a hard time believing they engaged in such serious deception for such small potatoes as they've gotten.
posted by dhartung at 9:45 AM on February 9, 2006


“Was Gonzales truthful?”

There’s something in that question that is resistant to analysis.
posted by Smedleyman at 10:08 AM on February 9, 2006


I have only one question about this whole scandal, and I damn sure wish that some senator would ask it:

Mr. Gonzalez, you claim that the authorization of force allows the president to do these searches beyond oversight of the court system. What, if anything, would NOT be permitted by this authorization of force?


My understanding is that he was asked that question or something like it. He responded by saying that he was not there to answer hypotheticals.
posted by flarbuse at 10:15 AM on February 9, 2006


From the conservative newspaper, Washington Times:

1) Bush is spying on American-American phone calls in the United States.

2) Known Al Qaeda agents are running free inside the U.S.

3) Spy program is useless.

[more]
posted by ericb at 10:27 AM on February 9, 2006


Was Bush Truthful?
" [On] April 24, 2004, ...[Bush]...told a Buffalo audience: 'Any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.' This statement was false, and Bush knew it when he said it. The president lied in Buffalo." [Newsweek | February 6, 2006]
posted by ericb at 11:14 AM on February 9, 2006


Yes, but Bush wasn't testifying before Congress as Gonzales was.
posted by caddis at 1:21 PM on February 9, 2006


ANS: hell no.
posted by j-urb at 1:34 PM on February 9, 2006


And if Gonzales did 'misrepresent the truth', he wasn't under Oath.
posted by MiltonRandKalman at 1:50 PM on February 9, 2006


Even if he wasn't under oath, lying before congress is a crime.
posted by caddis at 1:56 PM on February 9, 2006


"Senate Judiciary Committee Chairman Arlen Specter, a Republican from Pennsylvania, announced that he is drafting a bill that would 'require the administration to take the [domestice surveillance] program to the Foreign Intelligence Surveillance Court.'

...Sen. Chuck Hagel (R-Neb.) said in an interview that the 'balance must be preserved between the executive branch and the legislature. And I think this is a clear example of where the balance has gotten skewed. . . . The administration cannot unilaterally assume that they have the answers to get around or go over a law.' Hagel sits on the Senate intelligence committee...

[Washington Post | February 9, 2006]
posted by ericb at 1:59 PM on February 9, 2006


The dictator defense
posted by homunculus at 9:12 PM on February 9, 2006


« Older The Mohammed Dance   |   1AC 1NC 2AC 2NC 1NR 1AR 2NR 2AR Newer »


This thread has been archived and is closed to new comments



Post