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Friday, January 20, 2006

Surveillance, Etc

I thought the White Paper regarding the administration's position on its powers was interesting. There's also a bunch of documents regarding the issue at FindLaw Legal News. What it comes down is this; when Congress passed FISA it said it could place certain limitations upon the Presidency, and this administration is prepared to insist that provision of FISA violates the Constitution. They've got a pretty good argument, too.

If this goes to the Supreme Court I don't know how it will come out, but my guess is that it will not be greatly in Congress' favor. Because all of this outrage is described by the NY Times as having been spawned by this:
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
This is not going to terrify the average person. What this sounds like is that the NSA has been hunting for communications sent to foreign email addresses or phone numbers that have been flagged as associated with possible Al-Qaeda or other terrorist organization activity. The proposition that a judge can say to the President "no, you cannot intercept a call going to a number in Switzerland or France that has been flagged as possibly being associated with Al-Qaeda" might cause more anxiety among the general population.

Historically speaking, the Presidency has done such things on US soil in times of war. And even in the case of domestic wiretapping, the authorization given upon showing of probable cause is for the suspect number, which in these cases appears to be foreign. Now it's not controversial that the Presidency can monitor communications outside the US, but in FISA Congress set forth the principle that it could control the Presidency's use of domestic electronic networks to monitor foreign communications.

But standards such as probable cause have little relationship to the type of intelligence work needed to identify amorphous lines of communication. What, exactly, is the purpose of a judicial review in such circumstances? Realistically speaking, such a net must be cast very wide in order to gain usable information. You have to spiderweb out from what you do know to all possible points, and look at patterns, etc. So either NSA would be going to judges and saying "well, this here number appears to be possibly associated with this one", or "this is being billed to the same entity, and in the past we have picked up such-and-such activity associated to this entity" and some judge would be saying "no, yes" basically at random, or FISA courts would be rubber-stamping all such requests.

Do you think that the NSA should have to get a judge to agree that it can look at calls made from inside the US to Iranian President Ahmadinejad's cell phone? Because that is what this amounts to. How severe is the impact on the individual freedom of American citizens? Of course the devil is in the details, and the public does not know the details. One would guess that it might be slightly safer if we didn't know this much about the program, because whatever we know some fervent person in a basement filled with unstable chemical compounds also knows.

I would say that the ACLU would be better off discussing some other provisions of the GWOT legislation, such as the 314(a) provisions which allow the feds to send a list of names to banks. The banks have to search their records to see if they have done business with these people, and then send back an affirmative if they had. Then the feds get a subpoena. That bears much more possibility of misuse IMO.

It's safe to say that from what I've seen of the spying mess here, I have no issue with it.

As far as the leakers go...what if, instead of leaking to the press, they had simply informed Al Qaeda what we were doing? Would that have been OK? Is it suddenly OK to pass classified information to the enemy so long as you leak it to everyone else as well? The filling in of any appropriate historical analogy is left to the reader.
Yeah. I wonder what Congress knew and when they knew it? If they were informed about this program and did not object, it seems that it is hard to make a case that this should have been disclosed to the public. There is a tradeoff of interests, and some things should not be publicized.
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