Editore"s Note
Tilting at Windmills

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February 2, 2006
By: Kevin Drum

PROBABLE CAUSE....I was reading Richard Posner's article in the New Republic this morning not because I was interested in his judicial philosophy, but because I was interested in what he had to say about the NSA's domestic spying program. Here's the relevant paragraph:

Suppose a phone number in the United States is discovered on a rolodex in an Al Qaeda hideout in Yemen. Wouldn't you want the NSA to intercept all calls, especially international, to or from that U.S. number and scrutinize them for suspicious content? Yet the mere fact that a suspected or even a known terrorist has a U.S. phone number in his possession would not create probable cause to believe the owner of that phone also a terrorist; probably most phone conversations of terrorists are not with other terrorists. The government can't get a FISA warrant just to find out whether someone is a terrorist, though that's what it most needs to know.

Does this sound right? Being on a terrorist's speed dial actually strikes me as a pretty good example of probable cause, especially since the FISA court appears to have a fairly expansive view of what constitutes probable cause. But are al-Qaeda rolodexes really a good example anyway? Since the NSA program started up very quickly after 9/11, I doubt that it's based on physical evidence from Yemeni caves, which is probably fairly uncommon. It's far more likely that it's based on actual communications intercepts of some kind. In that vein, here's what I've been assuming all along about how FISA warrants work in real life:

  • Al-Qaeda suspect in Yemen calls someone in Pakistan. No problem. We can intercept without a warrant.

  • Al-Qaeda suspect in Yemen calls Mr. X in Chicago. Again, no problem. The FISA court would issue a warrant without a fuss.

  • NSA wants to tap Mr. X's phone to find out who else he's talking to. Since Mr. X is known to have talked to an al-Qaeda suspect in Yemen, this is probable cause and the FISA court would issue a warrant. At a minimum, the court would certainly issue a warrant if the previous conversation had been even remotely suspicious.

    Note that I'm assuming there's a considerable difference between a national security investigation and, say, a mafia investigation. If Mr. X gets a call from a suspected mob boss, there's a pretty good chance that Mr. X is an innocent party just an ordinary butcher, baker, or flower delivery guy. But if Mr. X gets a call from a cave in Yemen, there's a pretty good chance he's not an innocent party. Unlike the mob example, phone calls from Yemeni terrorists would probably cause a judge to agree that there's probable cause to believe that Mr. X might be an affiliate of a terrorist organization.

In other words, I'm working under the assumption that the FISA court would consider it "probable cause" that a U.S. citizen is an agent of al-Qaeda if that citizen is known to have communicated with al-Qaeda suspects overseas. A warrant against such a person would be issued routinely.

However, the NSA's secret program is directed solely at U.S. citizens whom the government doesn't have probable cause to believe are agents of al-Qaeda. This means the evidence they do have isn't phone calls or rolodexes. It's something much fuzzier, something that even a notoriously compliant, post-9/11 FISA court wouldn't consider adequate as probable cause. Perhaps something like this.

Of course, these are just assumptions on my part, since I don't know the inner workings of the FISA court or the legal definition of probable cause in international terrorist investigations. That's why I'm throwing them out for comment. Question: Do they sound reasonable? Or am I overlooking something significant?

Kevin Drum 1:28 PM Permalink | Trackbacks | Comments (91)

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"if Mr. X gets a call from a cave in Yemen, there's a pretty good chance he's not an innocent party. Unlike the mob example, that would constitute probable cause to believe that Mr. X might be an affiliate of a terrorist organization."

Or a journalist.

Posted by: Steve on February 2, 2006 at 1:33 PM | PERMALINK

Or a Yemeni-American getting a call from his brother.

Posted by: Joe Buck on February 2, 2006 at 1:36 PM | PERMALINK

Or why don't we do some dot connecting here? We have various programs overseas, in GTMO, Afghanistan, Iraq, and black sites operated in other, friendly, countries where suspected terrorists are subjected to questionable interrogation practices.

Mr. Al Qaeda suspect gives up Mr. X's name after being waterboarded by a friendly intelligence agency in a friendly dictatorship overseas. We want to listen in on Mr. X's phone conversations to find out if this information is accurate. Would the FISA court issue a warrant?

Posted by: Majun on February 2, 2006 at 1:43 PM | PERMALINK

Steve/Joe: Sure. Remember, though, "probable cause" is not "certainty." I'm guessing here, but I suspect that getting phone calls from a terrorist in Yemen would rise to the level of probable cause. It might not pan out, but it would be enough to get a warrant.

Bush has framed this controversy as "we want to listen in if terrorists are calling the United States." But we can already do that. What I want to know is: if we can already get warrants against terrorists calling the United States, then what's the NSA program for? Just what kind of evidence are they relying on to target U.S. citizens?

Posted by: Kevin Drum on February 2, 2006 at 1:50 PM | PERMALINK

I still think that we're giving too much "credit" to NSA task managers for developing a logical eavesdropping strategy, and not enough "credit" to the technology underlying the whole operation.

This whole business is about filtering: massive scale scanning of communications; the application of software for detection of specific words, language patterns, etc.; then eavesdropping on the fish caught up in the net.

I'd love to be proven wrong...

Posted by: Wonderin on February 2, 2006 at 1:53 PM | PERMALINK

If King George wants it, King George must have it. Didn't you learn the Lesson Of 9-11?

Posted by: Gore/Obama '08 on February 2, 2006 at 1:56 PM | PERMALINK

Kevin (you wrote)
“””However, the NSA's secret program is directed not at overseas suspects, but solely at U.S. citizens whom the government doesn't have probable cause to believe are agents of al-Qaeda. This means the evidence they do have isn't phone calls or rolodexes. It's something much fuzzier, something that even a notoriously compliant, post-9/11 FISA court wouldn't consider adequate as probable cause. Perhaps something like this.
Of course, these are just assumptions on my part….””””

Yes they are assumptions, very big assumptions… as a mater of fact this is pure conjecture on your part.

Since the program is…secret… you have no basis for claiming knowledge of what calls are made to whom, from were or by who. Hence the secret designation.

Hopefully the program will stay secret. That way the who’s and the whom wont know the what and the where. Once again…secret. (Until somebody leaked it – and compromised national security.)

The FISA court has nothing to do with this program. If you want further information or stricter regulation you’ll have to call your Congressman.

Posted by: Fitz on February 2, 2006 at 2:01 PM | PERMALINK

For the last time, FISA has nothing to do with this surveillance because its targets are not foreign. The targets of this program, without a single exception, are the domestic opponents of the Republican Party. It is the belated implementation of the Huston plan: neither less nor more. Everyone knows this. Those who oppose it, oppose it for this reason only. Those who support it, support it for this reason only.

Posted by: Frank Wilhoit on February 2, 2006 at 2:02 PM | PERMALINK

This just occurred to me as I was reading Kevin's posting: wouldn't it be possible that AQ operatives would dial a lot of random numbers in the US in order to hide the meaningful calls amongst a whole bunch of "noise?" In this way many people completely unconnected with AQ could be picked up as "contacts," even if the calls were just decoys. Not only would it greatly complicate the job of monitoring calls but it would have the added attraction for AQ to get US intelligence and criminal agencies chasing all sorts of false leads and possibly making life miserable for completely innocent people.

Posted by: john on February 2, 2006 at 2:04 PM | PERMALINK

Kevin, I doubt that, if it were a journalist at this end and an alleged al-Qaeda terrorist at the other end of a call, there would be 'probable cause' to get a FISA warrant. But I'm sure that wouldn't stop the NSA/Bush administration from wanting to listen to the call. The law of averages suggests that, since there's a nefarious motive behind every damn thing this government does, there's a nefarious motive behind not getting FISA warrants as well. And someday, we'll find out what that nefarious motive is.

Posted by: Steve on February 2, 2006 at 2:05 PM | PERMALINK

Why is it so hard to suggest that everything is being monitored, land and cell phones, email, fax's etc.?????

Software is being used to refer extracts based on built-in parameters.

I am sure that is what is being done.

Posted by: robert mcdowell on February 2, 2006 at 2:07 PM | PERMALINK

I can think of two reasons they might have wanted to stop going through FISA even if FISA would have approved all their requests. Either they were paranoid about leaks, or they wanted to push executive authority on principle and realized that this would be the perfect scandal to distract from all the others, a winning scandal, if you like. Disturbing enough that the opposition and press would run barking after it, leaving the more troubling scandals, (torture, corruption, incompetence) lying in the dust. Bush has made a big show of fighting back on this one, while refusing to address the others. The point is, we can't really deduce FISA-refusable requests from the unwillingness to go through FISA.

Posted by: Tim on February 2, 2006 at 2:07 PM | PERMALINK

Fitz,

Can you explain how this compromised national security? We're talking about listening to phone calls and reading emails, were there terrorists who were not aware of this possibility before this revelation? (Hint: No) How is outlining the methods employed (sort of) in this program more detrimental to national security than the descriptions and debate over the patriot act, where the President says that the methods used to fight mobsters should be used to fight terrorists? Surely through that statement the president gave a good number of details to terrorists about methods we might use to go after them - what's the difference? Or did the president also "leak" information when he said that and did he compromise national security?

Why don't we face the fact that George Bush and the people who support him use the idea of "compromising national security" as an excuse to hide information that hurts them politically and nothing else.

Posted by: Nick T. on February 2, 2006 at 2:12 PM | PERMALINK

The Baltimore Sun had a good report on the failure of the NSA's Echelon-like data mining program (free reg required). I don't think we have any sophisticated ability to identify patterns in the data that the NSA captures.

I think they are engaged in what can only be characterized as fishing expeditions, in a desperate attempt to make up for Bush adminstration failures to develop any coherent strategy for dealing with Islamic terrorism in the Unted States both before and after 9/11. They are terrified they are going to miss another attack and so are doing scattershot (if pointless) tapping of anything that suits a desk clerk's fancy. Then, when the next attack occurs, they can say "we listened to everything we could! No-one expected people to use airplanes/busses/container ships/whatever!"


Posted by: tib on February 2, 2006 at 2:14 PM | PERMALINK

Wouldn't be a simple matter to get some corroborating evidence that the suspect has ties to a terrorist organization (as opposed to the number in the rolodex merely being a wrong number, ha-ha). His travels, who his relatives are, who his friends are, would be examples.

Posted by: Jose Padilla on February 2, 2006 at 2:15 PM | PERMALINK

So if Mr. X calls his Dentist's office, does everyone who sees that dentist get wiretapped?

Wouldn't a paranoid type think obviously a dentist office would be a great cover to be a communications relay?

Posted by: cld on February 2, 2006 at 2:16 PM | PERMALINK

Let me ask a not entirely hypothetical question, concerning: me.

I've had a couple long phone conversations with a guy in Geneva and Paris, who was banned from the U.S. (Tariq Ramadan)

After 9-11, I also had a long interview with a fellow, a U.S. citizen who used to run a mosque in Virginia. I knew at the time that at least two of the hijackers had attended his mosque -- but I did not anticipate that he was shortly gonna take it on the lam, which he did: I heard he booked to Yemen.

A year or so later, I found his email address, which I'd forgotten that I had: so I emailed him along the lines of "gee, heard you left the country, so, um... what's up?"

Never heard back.

BUT: the question -- I don't think either of those would rise to probable cause to wiretap my phone or monitor my email.

Anybody think it's legit for the NSA to be doing either, or both?

Posted by: theAmericanist on February 2, 2006 at 2:17 PM | PERMALINK

Shorter Fitz: I don't really care about the Constitution, so long as I'm made to feel like this might make me safer, and all Constitutional concerns are swept under the rug of "national security" and "state secrets." Mighty patriotic of you. In a Tom Clancy novel kind of way.

I'd be very curious to know what grounds the Bush administration thinks is giving them "reasonable suspicion" (which is their un-Constitutional metric for search and seizure). I suspect data mining or torture or something unsavory is giving them this suspicion, otherwise they'd have no problem going to the FISA court with it.

But the bottom line here is simple: this illegal search and seizure on the part of the Bush administration has no confirmed gain. More importantly, it has no oversight.

In the complete lack of oversight, I can guarantee you with absolute, 100% certainty, that this will be abused. If it has not yet, it will be. And that means that the party in power will be using this power to spy on their political opponents.

No ifs, ands, or buts.

It also puts America in Constitutional crisis. It's a clear violation of the Constitution, and we have a president pretending it is his right to violate the Constitution when it suits him.

Republican supporters have no idea how volatile this situation is. AQ is the least of our worries if we have a President that believes what this one claims to believe.

Posted by: teece on February 2, 2006 at 2:19 PM | PERMALINK

You givethese guys a measure of honest competence that I'm not sure they deserve.

Here's a more likely scenario:

Second generation Arab in US calls dad, who's visiting his brother in Jordan. Dad's name is really, really similar to a terrorist's name. Just a few extra letters. NSA dutifully records the call under the new "anything goes" policy.

NSA staffer figures "what the hell, I'm not going to get any promotions by NOT reporting this". Interpreter says they were talking about airline flights, visiting New York, and how much they wish Arafat had lived to see Sharon get a stroke. Clearly these guys should be given a high priority as a potential national threat. Besides, the staffer hasn't put a single high priority threat in for several days, while most of his coworkers have. What if his bosses think he isn't doing a good job?

Having been given a high threat level, the NSA computer dutifully notes and records every call made from the original number - friends, family (some of who are also suspiciously overseas), pizza joints, work, etc. Some of these places are registered to people with suspiciously arab names.

NSA isn't getting much of anything useful out of the calls. Decides they have the manpower and computer resources to trace it out further. Maybe they can find "trends" in the suspicious calls ... for instance, many of the high threat people in New York have called Abdul's Falafel House, owned by the suspiciously named Abdul Mohammed. All calls made to this likely nest of terrorist sympathisers will be monitored.

Days go by. Nothing interesting is forthcoming. But people expect results. NSA director is faced with two choices - either point out that since we haven't caught any actual foreign terrorists with a real plausible plot to kill Americans in the past 3 years, maybe there really aren't that many. BUT... would they recommend that NSA resources be given over to another agency? Would that shrink the director's penis?! What would the other agency directors say behind his back?!!!!

So its option number two - "We are swamped with potential leads. We need more resources, and more authority to track down high threats." To prove it, the NSA dumps all of the phone call numbers obtained from Abdul's Falafel House and many other suspicious places like it onto the FBI - "Look, if you won't increase our budget to meet our workload, then we really need more support from the FBI - god knows they have the extra capacity. they only came in with a half dozen leads, and hear we are with thousands. Have them check out these numbers."

Job well done, America is now more secure. Staffer who first hooked onto the first call gets a hearty "attaboy" - oh yes, his career is lookin good!

Posted by: Mysticdog on February 2, 2006 at 2:21 PM | PERMALINK

I think majun hit it on the head, in part, they got evidence through illegal means and knew if they presented it to the FISA court the court wouldn't accept it.

Posted by: Ugh on February 2, 2006 at 2:21 PM | PERMALINK

I also want to add that probable cause is measured in a totality of the circumstances sort of way, not per se, cut and dry rules. Posner very carefully crafted a situation where probable cause is weak, but his situation would carry with it other details inherently that could move it in either direction. It of course would depend on how the name is listed in the rolodex, what else existed in this cave office, what kind of activities could be attributed to people who had occupied the cave etc. All of these are important facts. Of course if all you found was a phone number on a sheet of paper in a cave you thought maybe was previously occupied by terrorist you might be able to get a pen register of calls made to that number and when, and then from that develop probable cause.

Bush used the example of 9-11 and this program, if those guys were on terrorist watch lists, there was likely enough PC to monitor their calls, so obviously Bush was twisting the facts and shamelessly using 9-11 to his politcal ends (shocker).

FISA is applicable to this situation because it is for foreign intelligence gathering, ostensibly, it's the very reason FISA was written, as a way to control how the fed gets foreign intelligence in cases where the 4th amendment still applies (i.e. IN the US).

Posted by: Nick T. on February 2, 2006 at 2:24 PM | PERMALINK

Here's another not hypothetical:

I was on vacation in Italy, and my plane flight back was cancelled due to the discovery near the airport of an unexploded WW2 bomb. I called the US office of the airline to reschedule, and had to explain to them about the bomb. Were the NSA data-mining, I'm sure they would be interested in the word "bomb".

Is that probable cause to listen to all the phone calls from my phone in the US?

Posted by: PetervE on February 2, 2006 at 2:27 PM | PERMALINK

TIM
(you wrote)

“”””. Either they were paranoid about leaks, or they wanted to push executive authority on principle and realized that this would be the perfect scandal to distract from all the others, a winning scandal, if you like. Disturbing enough that the opposition and press would run barking after it, leaving the more troubling scandals, (torture, corruption, incompetence) lying in the dust.”””””

Fitz says: It might be you who is a little paranoid here (but I like it) a bit machiavellian for real life Washington.

(you also wrote)
The point is, we can't really deduce FISA-refusable requests from the unwillingness to go through FISA.

Fitz says: Yes…precisely

(Robert wrote) ‘’’Why is it so hard to suggest that everything is being monitored, land and cell phones, email, fax's etc.?????
Software is being used to refer extracts based on built-in parameters.
I am sure that is what is being done.’’’
Fitz says: Yes …that seems to be the gist, we just don’t want to know the Who, what, where, why, when & how.

Nick T (you wrote)
“””Can you explain how this compromised national security?”””
Fitz says: Yes, the more public attention, the more oversight, the more oversight the greater the number of people with specific knowledge. = The greater potential of sensitive data leaking.
Washington = Leaking Like Sieve- (like it has already)
They call it – “compartmentalization” or “need to know” -SOP

Posted by: Fitz on February 2, 2006 at 2:28 PM | PERMALINK

Back to Kevins point:

On its surface the Bushite argument seems to be,

We nab a laptop in Kabul and on it we find 10 US ph #s and 300 email addresses which we find are owned by individuals residing in the US. Given the fact that many of the #s and addresses are one of many owned by the same person, we could have thousands of FISA warrants to procure.

Kevin, I am not saying I agree with the logic, but that does seem to be part of their argument.

Posted by: Keith G on February 2, 2006 at 2:29 PM | PERMALINK

Of course, since I don't think the terrists pose much of a threat to us-Osama got what he wanted, the World Trade Center, and the others have other fish to fry-I probably shouldn't comment. To me it's just more Bush bullshit.

Posted by: Ace Franze on February 2, 2006 at 2:35 PM | PERMALINK

Fitz,

Thank you, but your response doesn't address difference between this and the patriot act at all, now does it? Please respond to that. Also your argument is one which is against oversight altogether, and is an pretty obvious slippery slope. No one is suggesting these warrant requests need to go in newpapers. Clearly you must be agains the FISA bill in the first place since it involves oversight and therefore by itself compromises national security, Yes?

Or is your response really just vague bullshit? It's not hard to have a few judges who review the request and understand their duty to not reveal the information (it would be a crime to reveal specifics of course).

The simple fact is tv shows, news stories and such reveal new methods for fighting and detecting crime and terrorism all the time. You're either against all of that or your pulling a GWB and using the National Security smokescreen. People, places and other specifics revealed compromises national security. Generally, methods, especially when they are not new at all, revealed, don't do this.

Posted by: Nick T. on February 2, 2006 at 2:36 PM | PERMALINK

Even shorter Fitz: Don't think. Just follow.

Posted by: t-t-t-trolls r us on February 2, 2006 at 2:40 PM | PERMALINK

What's Fitz doing in this thread, anyway? No one is talking about gay men or abortions.

Posted by: shortstop on February 2, 2006 at 2:43 PM | PERMALINK

No, no, no.

The reason they didn't go to FISA is not because they were concerned about the outer edges of terrorist affiliates. There's no subtle distinction of law going on here.

Douglas MacArthur Shaftoe says it best:

Jesus!...Can't you recognize bullshit? Don't you think it would be a useful item to add to your intellectual toolkit to be capable of saying, when a ton of wet steaming bullshit lands on your head, "My goodness, this appears to be bullshit?"

Posted by: JayAckroyd on February 2, 2006 at 2:49 PM | PERMALINK

You left off possibility #4. Suppose that in 2004, Mr. K placed a call from Davos to Boston to talk to a former supporter of his successful relection campaign to the Senate. Wouldn't that be considered probable cause of some terrorist threat to the re-election of our commander in chief - George W. Bush? Far fetched? Well, let's see what the NSA has been doing for the past few years just to make sure.

Posted by: pgl on February 2, 2006 at 2:50 PM | PERMALINK

Except that it really doesn't work that way.

What you're describing, Kevin, is call chaining--developing a diagram of a terrorist network based on every call made by every phone that is known to be in use by entities identified as belonging to the network.

Why is the Posner article wrong?

FISA would grant a warrant in a heartbeat if this scenario were in play--there's more than enough probably cause and more than enough evidence presented to protect US persons.

This is not why the administration took a hit on the whole warrantless wiretap issue--they were targeting people outside of normal channels and they got caught. They have been caught using an intelligence agency and its powerful tools against US persons in violation of the law.

End of story.

Posted by: Pale Rider on February 2, 2006 at 2:51 PM | PERMALINK
We nab a laptop in Kabul and on it we find 10 US ph #s and 300 email addresses which we find are owned by individuals residing in the US. Given the fact that many of the #s and addresses are one of many owned by the same person, we could have thousands of FISA warrants to procure.

There is no limit in FISA of one e-mail address (for instance) per warrant; if you can identify, say, a dozen email addresses and a score of phone numbers controlled by one person, with the appropriate cause for tapping them based on the probable cause to believe the controller is a foreign power as defined under FISA, you can secure one warrant to monitor all of them.

The fundamental premise on which the argument you suggest here is based in utterly false.

Posted by: cmdicely on February 2, 2006 at 2:51 PM | PERMALINK

The FISA court has nothing to do with this program

as a matter of fact this is pure conjecture on your part.

Posted by: cleek on February 2, 2006 at 2:53 PM | PERMALINK

if we can already get warrants against terrorists calling the United States, then what's the NSA program for? Just what kind of evidence are they relying on to target U.S. citizens?

The answer is, if the FISA court told them they didn't have enough evidence--if they failed to meet the threshold required by law--they weren't looking for terrorists.

They were simply interested in breaking the law.

If they weren't, then why are we still talking about it and why are they scouring the intel agencies right now, bringing people in for mandatory polygraphs to find who leaked the information?

If you can't satisfy the FISA court, you have no basis for using NSA to conduct the surveillance. Hence, the reason why a Rhenquist-appointed judge resigned--at least one of them still has a conscience.

Posted by: Pale Rider on February 2, 2006 at 2:55 PM | PERMALINK
They have been caught using an intelligence agency and its powerful tools against US persons in violation of the law.

Is it surprising that an administration that appointed a vociferous advocate of increased domestic role of the CIA as Director of Central Intelligence would then abuse foreign intelligence agencies for domestic surveillance without regard to the law?

I mean really, the details may have been unanticipated, but the kind of abuse was one that everyone should have seen coming.

Posted by: cmdicely on February 2, 2006 at 2:57 PM | PERMALINK

Once again I have to point out the astounding fact that Fitz is a lawyer. (Well, maybe I shouldn't say "fact." He has said that he's a lawyer.) The law is a profession in which precision of language is pretty important, yet Fitz can't articulate jack shit. He can barely write at all. My fourth-grade daughter can compose more coherent (and better-spelled) statements than he can.

Pity for those poor clerks and paralegals who have to try to wade through the indigestible mass that is his "reasoning."

Posted by: Alek Hidell on February 2, 2006 at 2:57 PM | PERMALINK

No, Kevin. Your assumptions do not sound reasonable. "Being on a terrorist's speed dial actually strikes me as a pretty good example of probable cause."

(http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html)

[Under FISA, surveillance is generally permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power. ... A "United States person" may not be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States.]

FISA won't grant a warrant to listen to a US person unless that person is determined to be an an agent of a foreign power. That person cannot be determined to be an agent of a foreign power merely on the basis of the presence of a phone number on a rolodex, as the presence of a phone number in a rolodex/speed dial would be considered an exercise of free speech.

The rest of Kevin's post proceeds from the assumption that the court issued a FISA warrant to eavesdrop on a US citizen merely because his/her phone number was in a terrorist rolodex - I don't believe that the court would issue such a FISA warrant, for the reason listed above and those to follow.

Kevin: "In other words, I'm working under the assumption that the FISA court would consider it "probable cause" that a U.S. citizen is an agent of al-Qaeda if that citizen is known to have communicated with al-Qaeda suspects overseas."

But we haven't gotten to that point yet where we 'know' the US person has communicated with terrorists, have we? We only know that his number is in someone's rolodex. First we need a FISA warrant to listen, but if FISA won't give us a warrant because we lack probable cause, we don't even get to the point where we know that the person has communicated with al qeada.

Why wouldn't FISA issue a warrant?

[For U.S. persons, the FISA judge must find probable cause that one of four conditions has been met: (1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation; (2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power pursuant to the direction of an intelligence network and his activities involve or are about to involve criminal violations; (3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or (4) the target knowingly aids or abets another who acts in one of the above ways.

Without already listening to or surveilling the US person, I don't see how a FISA judge could agree that the person was "knowingly" engaging in any of the above activities. We might only know that the target is here legally, on a student visa, he's in school, and he's taking flying lessons. How could a judge possibly find that this US person (1) is engaging in clandestine intelligence activities? (2) engaging in other secret intelligence activities on behalf of a foreign power? (3) engaging in sabotage or international terrorism? (4) aiding or abetting another who acts in one of the above ways? We can't! We haven't listened yet. There's no probable cause here to issue a FISA warrant; we have to listen first, without the warrant, as FISA allows.

Posted by: jerry on February 2, 2006 at 3:08 PM | PERMALINK

I mean really, the details may have been unanticipated, but the kind of abuse was one that everyone should have seen coming.

And you Republicans should be shitting yourselves in fear at the thought of Hillary Clinton having the level of Executive Power now held (without the least bit of Congressional oversight, I might add) by this administration.

I mean, if anyone is still foolish enough to think that this is all legal, bend over and clean out your shorts somewhere else.

Posted by: Pale Rider on February 2, 2006 at 3:10 PM | PERMALINK

Suppose a phone number in the United States is discovered on a rolodex in an Al Qaeda hideout in Yemen. Wouldn't you want the NSA to intercept all calls, especially international, to or from that U.S. number and scrutinize them for suspicious content? Yet the mere fact that a suspected or even a known terrorist has a U.S. phone number in his possession would not create probable cause to believe the owner of that phone also a terrorist; probably most phone conversations of terrorists are not with other terrorists. The government can't get a FISA warrant just to find out whether someone is a terrorist, though that's what it most needs to know.

I decline to speculate whether this nor any other scenario has merit because the government has failed to provide sufficient data to confirm or deny that such items actually are those which are being monitored.

Nothing in the above suggests that the government's mere coming forward with such data would legitimize or otherwise validate the action. Rather, this information must be produced in full before the legitimacy of these searches can even be considered.

Posted by: Thinker on February 2, 2006 at 3:12 PM | PERMALINK

Nice try, Jerry.

There is that little part about having 72 hours grace period to get the FISA court to issue a warrant, though...

Your whole premise about probable cause goes out the window because they can roll up on a target, start listening, and then pursue the warrant within 72 hours--even in an emergency, they can and have done this in the past.

Posted by: Pale Rider on February 2, 2006 at 3:13 PM | PERMALINK

Kevin,

if Posner (a judge) doesn't think such a scenario would produce probable cause, is it possible your take on probably cause is wrong? I think your standard sounds reasonable, but maybe it's more strictly defined than you think.

Posted by: Elginb on February 2, 2006 at 3:19 PM | PERMALINK

From what I've read, obtaining a FISA warrant is even easier than obtaining a grand jury indictment--they'll give it to you before you even spread the mustard.

That makes this whole NSA business even more suspicious to me. Sorry, I'm not blindly taking the administration's word for it that only terrorist phone calls are being tapped--and the people that are would be saying just the opposite(they'd be fucking screaming for impeachment) if Clinton was doing it. And spare me the talking points about Clinton's deputy AG, they've been debunked about a million times now.

Saying that you think you can do it, and actually doing it many times and bragging about it, are two very different things.

Posted by: Ringo on February 2, 2006 at 3:24 PM | PERMALINK

I am quite pessimistic about the possibility of any end to the NSA domestic spying.

A democracy works so long as the people who are elected believe in it.

Unfortunately for us, the GOP leaders who are in-charge, do not.

Posted by: lib on February 2, 2006 at 3:28 PM | PERMALINK

"Your whole premise about probable cause goes out the window because they can roll up on a target, start listening, and then pursue the warrant within 72 hours--even in an emergency, they can and have done this in the past."

Nice try, Pale Rider.

The Atty Gen has already explained that he must use the same probable cause standard before allowing warrantless surveillance within the 72 hour window:

"Some have pointed to the provision in FISA that allows for so-called emergency authorizations of surveillance for 72 hours without a court order. Theres a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted."

Posted by: jerry on February 2, 2006 at 3:34 PM | PERMALINK

NEVER FORGET:

Under the existing law, they could tap those calls IMMEDIATELY. They have 3 days to get the warrant from the uncommonly lenient FISA court. What farking phone call lasts more than 3 days! Such hypotheticals are just silly obfuscation.

Posted by: Jeffrey Davis on February 2, 2006 at 3:46 PM | PERMALINK

jerry, do you even read what you write?

You're gleefully pointing out that the Bush surveillance does not meet standards of probable cause.

In other words, it's a violation of the 4th Amendment.

What Bush has done is illegal. Think about that for awhile.

Even if they were trying to catch the bad guys, it was illegal. You don't get to pick and choose the laws you follow, for crying out loud.

Posted by: teece on February 2, 2006 at 3:48 PM | PERMALINK

cmdicely:

Babes, it was not my argument, don't blow a gasket. i was just restating to the best of my limited ability what I have heard admin apologists say during interviews. Again, the buzz was "In one action we can come upon hundreds of targets to investigate"

Don't get sloppy.

Posted by: Keith G on February 2, 2006 at 3:57 PM | PERMALINK

So, let me get this straight, Kevin.

If the US has mere suspicions, but not probable cause to believe that an individual in a foreign country has ties to Al Queda, and contacts a US citizen from overseas, these mere suspicions of an Al Queda connection then transform into probable cause to monitor the call to the US citizen.

Let's even say there is probable cause to believe that the individual in the foreign country is a member of Al Queda, isn't it still bootstrapping to say that there is probable cause to monitor a particular phone call?

And this is even dismissing the fact that the Bush administration and our intelligence services have been wrong, wrong, wrong, wrong, wrong (or dishonest) on numerous occasions about the credibility and existence of the evidence used to justify their "probable cause" to believe, among other things, that WMDs existed in Iraq or that so-and-so is a terrorists or terrorist affiliate.

How far does it go, btw.

If the individual in a foreign country is suspected of not being a member of Al Queda, but merely someone who is suspected (let's even say there is probable cause) of having been in contact with a suspected (and we can even say probable cause here too) member of Al Queda and that supsected non-member of Al Queda who contacted a suspected Al Queda contacts a US citizen, does the government get to bootstrap the various probabilities together to monitor the call to the US citizen?

I think this last scenario is probably what's happening and why they can't get a FISA court warrant.

They are trolling through the most ephemeral of suspicions.

But a failure to do that wasn't what failed to prevent 9/11.

People failing to do the job with the tools that they had resulted in 9/11.

We didn't need new tools so much as we needed people who would use the old tools rather than focusing on advancing their careers through office politics and avoiding any situation that required hard work, hard thinking, and a willingness to hear and deal with bad news or potential threats that required competence to handle.

Posted by: Advocate for God on February 2, 2006 at 3:58 PM | PERMALINK

In all of this you leave out the wiretap for free card (the magic 72 hours). What ALSO might be happening is that they can't get to all the numbers that quickly or after monitoring for 72 hours they get nothing. I am sure the "terists" don't call all that often maybe once a week or something. So there goes the window for a FISA warrant. So they go "F--- It! keep tracking anyway", until they get something or until they check out all the numbers from this number and they call two friends and then they call two friends, and then they call two freinds and so on and so on. No way FISA OK's that. Do we need it? FBI already said it was a huge waste of time on $. They are just documenting info. Tracking people who aren't doing anything. They hope they will find something that they can exploit. But there is nothing. In the mean time since it is all secret and illegal anyway, maybe a little side-line tracking is going on like say on peace groups, anti-war groups, Blogs, etc.

Maybe it could stop an attack, maybe not. They knew about two of the attackers b4 9/11 and the PDB and didn't do anything. But go change the law then. The problem is that it isn't just "Lefty Liberals" that would oppose this. If A. Gonzalez says "we didn't think it could pass Congress," (a GOP Congress) then we know no one will go for it.

Posted by: txexspeedy on February 2, 2006 at 4:07 PM | PERMALINK

teece:

This entire discussion is about surveillance without probable cause. Kevin: "The NSA's secret program is directed solely at U.S. citizens whom the government doesn't have probable cause to believe are agents of al-Qaeda."

And if you actually think that it is always a violation of the 4th amendment to conduct searches without a warrant/probable cause, you either don't understand or aren't thinking too clearly. When you get searched at the airport there is no warrant and there is no probable cause to suspect you've done anything illegal. There are a dozen other examples.

Posted by: jerry on February 2, 2006 at 4:08 PM | PERMALINK

"Al-Qaeda suspect in Yemen calls Mr. X in Chicago. Again, no problem. The FISA court would issue a warrant without a fuss.
NSA wants to tap Mr. X's phone to find out who else he's talking to. Since Mr. X is known to have talked to an al-Qaeda suspect in Yemen, this is probable cause and the FISA court would issue a warrant. At a minimum, the court would certainly issue a warrant if the previous conversation had been even remotely suspicious."

if you read through all of Posner's discussion in TNR (three different articles) -- its clear, especially from the last one, that he doesn't think the above scenarios constitute probable cause. I would kindly suggest that being a federal judge he might know more about this than the rest of us.

(btw, the 72 hour window still requires probable cause).

Posted by: Nathan on February 2, 2006 at 4:20 PM | PERMALINK

Ahhh - very good points to bring up, Kevin. This is just the sort of analysis we need to cut through the simplistic "we need to protect ourselves" spin from BushCo. Keep it up.

Posted by: Neil' on February 2, 2006 at 4:21 PM | PERMALINK

Jerry:

I agree there are exceptions to the fourth amendment. However i don't the Airport search is a good one in this situation. It is a much lower expectation of privacy and it is not that far from a stop and frisk or stop and identify which a law enforcement officer can do with minimal justification i.e. safety.

I think the closet would probably be exigent circumstances and expediency which would make obtaining a warrant under the circumstance a hurdle to stopping the commission of a crime or the destruction of evidence. (like searching a car of a suspect leaving a location where a drug buy just went down, eventhough you didn't see him make an exchange).

But the 72 hour window makes that exception pointless.

They expectation of privacy on your person and in your home are the greatest that is why the Constitution specifically protects it. There are very few activities that your expectation of privacy would be greater that in telephon conversations or e-mails. The slippery slope would then say why don't we just put electronic monitoring devices in the homes or cars of US citizens who have received a phone call from a person with a "suspected tie" to al Qaeda. Or maybe all the places this person with ties went to like resturants, grocery stores, mosques, Dr's office, school, or maybe we should just monitor all those places anyway in the name of security. I mean if you have nothing to hide you have nothing to fear. I am sure we could stop the drug trade the mob, white collar crime. There is no end to how useful that would be to law enforcement.

But you first.

Posted by: txexspeedy on February 2, 2006 at 4:24 PM | PERMALINK

jerry: FISA won't grant a warrant to listen to a US person unless that person is determined to be an an agent of a foreign power.

False.

As proven by your own posts.

Posted by: Advocate for God on February 2, 2006 at 4:25 PM | PERMALINK
Babes, it was not my argument, don't blow a gasket.

Perhaps I was unclear. When I said "the argument you suggest" I meant what might otherwise be phrased as "the argument you refer to" not "the argument you are making."

Posted by: cmdicely on February 2, 2006 at 4:32 PM | PERMALINK

Over 200 years ago, the Framers came up with a formula that works pretty well when its adhered to...if you believe in freedom of speech and freedom of association. The actions taken by the government are designed to quell dissent, to spy on political opponents, and to give advanced warning to those that might need to destroy evidence to avoid criminal culpability.

And what this really is about is whether the government legally obtained wiretapes of communications between Ambassador Wilson and his wife and friends or they just decided he was another enemy of theirs. Or is that not how its all going down?

Our governmental system was not designed to quell dissent. But that seems to be what its being used for now. It is being used to intimidate any voice that does not tow the governments line. To that end, the Great Leader and his men have turned the machine of national security against the nation itself.

Posted by: parrot on February 2, 2006 at 4:32 PM | PERMALINK
When you get searched at the airport there is no warrant and there is no probable cause to suspect you've done anything illegal.

Irrelevant since such searches involve both notice and affirmative consent by conduct not Constitutionally protected.

Posted by: cmdicely on February 2, 2006 at 4:36 PM | PERMALINK

And you Republicans should be shitting yourselves in fear at the thought of Hillary Clinton having the level of Executive Power now held
Naw, Tradesports has Repub to hold the House around 70% and the Senate around 80%. You can look forward to multiple ongoing investigations until she is impeached and removed.

(Sorry Pale, couldn't contain myself)

Posted by: conspiracy nut on February 2, 2006 at 4:44 PM | PERMALINK

txexspeedy:

"I agree there are exceptions to the fourth amendment. However i don't think the Airport search is a good one in this situation."

I agree; I was merely pointing out to teece that a simplified view that the 4th amendment always prevents searches without warrants is quite obviously wrong. You make the valid point that the airport search is not akin to eavesdropping and I agree, but I wasn't making that comparison.

"But the 72 hour window makes that exception pointless."

But the Atty Gen says he cannot allow surveillance during this 72 hour period unless he has probable cause. "Some have pointed to the provision in FISA that allows for so-called emergency authorizations of surveillance for 72 hours without a court order. Theres a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted."

"The slippery slope would then say why don't we just put electronic monitoring devices in the homes or cars of US citizens who have received a phone call from a person with a "suspected tie" to al Qaeda."

While I appreciate your response I am not sure what point you are trying to make. FISA requires probable cause to issue a FISA warrant to surveil a US person, and the details about the surveillance must be approved by the FISA court. If you are trying to make the point that warrantless surveillance can be abused, I could hardly disagree, but I do recognize that this particular NSA program is rigorously monitored by the Pres, Atty Gen, Justice dept, and career NSA officials. Please don't forget that members of congress are briefed and can use their various powers to influence this program. So, for example, if the briefed members of congress discovered that we were spying in a Jack in the Box because a suspected agent of a foreign power eats there, the members of congress could quite simply defund the entire program, stall all legislation, stall all apointments, etc. One of the problems here has been that liberal/democrats in congress who object to this program haven't done a thing about it, and don't believe it when someone tells you they can't do anything - they have plenty of ways to 'influence' the Executive.

Posted by: jerry on February 2, 2006 at 4:44 PM | PERMALINK

jerry: . . . this particular NSA program is rigorously monitored by the Pres, Atty Gen, Justice dept, and career NSA officials.

All of whom have been shown to be liars and utterly uninterested in preserving our constitutional liberties, except for themselves of course.

Please don't forget that members of congress are briefed and can use their various powers to influence this program.

They are not fully briefed, as you well know.

And they certainly are not briefed at the level of being told who is being monitored, as you also well know.

And the president has claimed that Congress has no authority to restrict his activities in this area.

And the Congress is controlled, particularly with respect to the very few members even allowed the vague briefings on the matter, by Bush sycophants.

Which is why the program needs vigorous monitoring by the courts at the very least and needs to be held to standards less subject to political abuse.

Posted by: Advocate for God on February 2, 2006 at 4:58 PM | PERMALINK

Today's edition of Occam's Razor may be this exchange from an online chat with WaPo reporter Dana Priest, who knows a few things about the spy trade:

Vienna, Va.: . . . It seems to me that the reason the administration and NSA wanted to extend their reach is that they don't really have a very good handle on who's a terrorist and who isn't. Therefore they wanted to look into more people in a looser fashion. So instead of worrying about the government illegally spying on us (which may be true) we should be more worried that they don't know enough about the bad guys to protect us. Your thoughts?

Dana Priest: Bingo! I totally agree. This collecting-the-dots mania is a dead giveaway that they aren't able to zero in yet on true threats and problems.

Posted by: penalcolony on February 2, 2006 at 5:02 PM | PERMALINK

The truth is the administration really wants to use these tactics for combatting crime, well non-corporate crime, and political opponents.

This is well-demonstrated in a history of opposition to narrow warrant exceptions, the Miranda warnings, etc.

The trouble is they can use these methods only for "terrorists" without Americans becoming concerned.

So, the problem is how can they can expand the definition of "terrorist" or "national security threat" so as to include the whole of what they really want to apply these methods to.

That's where they are running into problems.

It's not that they can't define who's a terrorist, but that they want to define it so broadly that it will include everybody they see as a danger to the US or, more to the point, to conservative political hegemony.

Thus, they end up with muddied rationalizations for such programs and policies by trying to invent specious arguments on how particular persons fit within that group of persons that Americans will accept as subject to having their rights denied.

It's a con-game to get Americans to by indifference or fear allow the adminstration to slowly expand the use of these techniques ubiquitously on the pretense of protecting national security.

Posted by: Advocate for God on February 2, 2006 at 5:16 PM | PERMALINK

Advocate for God:

jerry: this particular NSA program is rigorously monitored by the Pres, Atty Gen, Justice dept, and career NSA officials.

advocate: All of whom have been shown to be liars and utterly uninterested in preserving our constitutional liberties, except for themselves of course.

okay, you've convinced me!

jerry: Please don't forget that members of congress are briefed and can use their various powers to influence this program.

Advocate: They are not fully briefed, as you well know.

Since the briefings are classified, I don't know what they are hearing, but I presume that they are not prevented from asking questions.

advocate: And they certainly are not briefed at the level of being told who is being monitored, as you also well know.

And you know this how .... ? Psychic? Or perhaps I am corresponding with Jay Rockefeller!

Advocate: And the president has claimed that Congress has no authority to restrict his activities in this area.

Correct, but congress does control the purse strings, as you well know (right?)

advocate: And the Congress is controlled, particularly with respect to the very few members even allowed the vague briefings on the matter, by Bush sycophants.

okay, you've convinced me again! Must be the incredible arguments you put forth, with so much supporting evidence.

advocate: Which is why the program needs vigorous monitoring by the courts at the very least

and, of course, us reasonable righties would argue that the proper role of the courts is not to determine how the President chooses to wage war.

Posted by: jerry on February 2, 2006 at 5:22 PM | PERMALINK

Priest is right, and colony scores for posting it.

AFG writes: "If the US has mere suspicions, but not probable cause to believe that an individual in a foreign country has ties to Al Queda, and contacts a US citizen from overseas, these mere suspicions of an Al Queda connection then transform into probable cause to monitor the call to the US citizen."

This isn't an abstraction for me, cuz it IS me -- on two counts.

I don't think the word "bomb" used in a phone conversation would be a reason to hoover up the call -- for one thing, "you da bomb, baby!" is problematic.

But I'm curious why folks in this thread, presented with a REAL situation, spend so much time arguing over hypotheticals and speculation.

I make no pretense to a general rule, but it doesn't bother me (much) that the NSA might have monitored my phone calls from (and to?) Ramadan: but I would REALLY object if, without a warrant, they put me on a watch list.

What is so alarming about this, the gaffe in all of it, is that the Bush administration really doesn't know who or what al Qaeda is.

It's bad enough we don't have an Objective for this war on terrorism -- we don't seem to know who the enemy is, either.

Posted by: theAmericanist on February 2, 2006 at 5:30 PM | PERMALINK

jerry: . . .and, of course, us reasonable righties would argue that the proper role of the courts is not to determine how the President chooses to wage war.

Or Congress, which means your claims that Congress can oversee is a bunch of hooey.

Since the briefings are classified, I don't know what they are hearing . . .

Then your claim that Congress is being fully briefed is equally specious.

If you can make definitive claims about the program being legitimate and properly protective of civil rights without being in those meetings, then I can make definitive claims that the opposite is true.

All your assertions come down to one core principle: you trust that what Bush and his servants say is true is true.

That's it.

You have no more independent evidence of what you claim to be true about the NSA program than anyone else has.

And that's the problem.

Especially with an adminstration that lied us into war in Iraq, has not captured those responsible for 9/11 whom it promised to capture, and who has by its own admissions and after-the-fact proven revelations kept Congress in the dark about various aspects of pre-war intelligence and the NSA program itself.

. . . but I presume that they are not prevented from asking questions.

To which the administration has said, and conservatives like you have supported it, that they won't answer because of national security concerns.

Posted by: Advocate for God on February 2, 2006 at 5:42 PM | PERMALINK

tib -- good article on data mining activity at the NSA (or lack thereof).

An interesting tidbit from the article:


Science Applications International Corp. (SAIC), the lead contractor on the project, did not provide enough people with the technical or management skills to produce such a sophisticated system, according to industry and NSA experts familiar with Trailblazer. And, they said, the company did not say no when the NSA made unrealistic demands.

The company was initially awarded $280 million in 2002 to begin construction.



A quote from the datamining page at SAIC.com: SAIC has also developed a strategic alliance with ChoicePoint Incorporated to provide our clients with quick and effortless information retrieval from public records data. ChoicePoint Incorporated maintains thousands of gigabytes of public records data. SAIC's Automated Data Analysis and Mining (ADAM) service provides a gateway to this information and allows clients to seamlessly integrate automated data retrieval into their workflow.

Posted by: chris on February 2, 2006 at 5:45 PM | PERMALINK

From Josh Marshall . . .

Interesting. Allen Raymond, one of the guys at the center of the New Hampshire phone-jamming case, was sentenced today up in New Hampshire.

In court, his lawyer, John Durkin, said that when Raymond was executing the election tampering plot he "was acting at the behest of the state and federal Republican parties (italics included)."

Pretty much says it all about the GOP and their methods.

If they would break the law for partisan advantage in New Hampshire, there would appear to be no limits to when they would break the law for much larger rewards elsewhere, including when engaging in wiretapping of American citizens.

Posted by: Advocate for God on February 2, 2006 at 5:46 PM | PERMALINK

Advocate:

Thanks very much for spending the time to read my posts. I won't be replying to any of your posts from this point forward, as you are a bit silly. (If you can do it, then I can do it! You're a liar. You're a liar!) I think most who read my posts understand that I enter them here in the spirit of a fair and reasonable debate. I'm trying to learn something here.

Posted by: jerry on February 2, 2006 at 5:53 PM | PERMALINK

I'm trying to learn something here.
Posted by: jerry on February 2, 2006 at 5:53 PM | PERMALINK

Badum Ba!

Posted by: Aaron in NM on February 2, 2006 at 6:05 PM | PERMALINK

jerry: I'm trying to learn something here.

Sounds more like you're trying to be pedantic, but whatever.

Posted by: Advocate for God on February 2, 2006 at 6:07 PM | PERMALINK

Well jerry, I'd say you just learned something. My favorite from AfG was
Lies flow from your keyboard like water from Niagra Falls

Posted by: conspiracy nut on February 2, 2006 at 6:08 PM | PERMALINK

Thanks to Jerry, above, for pointing us toward the relevant sections of FISA applicable to the question Kevin presents.

To issue a warrant, a court must find (among other things) that the target is a foreign power or agent of a foreign power. 50 USC 1805(a)(3)(A).

Here is the definition of "agent of a foreign power" for U.S. Persons:

"any person who
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C)."

18 USC 1801(b)(2) (emphasis added).

In each of the above subsection, a finding as to KNOWELDGE of the target is neceesary. In the case in question here, the only thing that is known about the US Person is that he or she is known to have communicated with al-Qaeda suspects overseas. I don't think that gives the FISA court probable cause to believe that the US Persons has any of the knowledge set forth in any of the subsections above.

Posted by: Al on February 2, 2006 at 6:15 PM | PERMALINK

Well jerry, I'd say you just learned something. My favorite from AfG was
Lies flow from your keyboard like water from Niagra Falls

Truth hurts, cn.

Posted by: ckelly on February 2, 2006 at 6:21 PM | PERMALINK

Kevin -

I think that you are wrong that the facts set forth by Posner would establish probable cause. Probable cause is information that would warrant a reasonable person in believing that a crime has been committed by the target (for purposes of old-fashioned criminal wiretaps) or that the target is an agent of a foreign power (for FISA purposes). Mere association with a criminal doesn't give reason to believe that you are a criminal yourself: John Gotti presumably place phone calls to his children's doctors on occasion. As a criminal lawyer I am pretty confident that no court would find that this constitutes probable cause. Having said that I think that raises a valid question: do we want our government to be able to follow up on leads like that? The question that he doesn't raise - at least in the excerpt that you cite - and that is at the heart of the NSA surveillance scandal is, who should write the rules for this surveillance, Congress or the President?

Posted by: ebob on February 2, 2006 at 8:17 PM | PERMALINK

"However, the NSA's secret program is directed solely at U.S. citizens whom the government doesn't have probable cause to believe are agents of al-Qaeda."

What is there about this that doesn't get libertarian knickers in a twist? Why do Al and his ilk think that they would be exempt from government persecution if they stumbled into the wrong end of an investigation?

Which makes me think the 'terrists' could wreak yet more low-budget havoc by speed-dialing random numbers in the USA and cackling as they watch little old ladies in Pensacola get hauled away. Bush says 'they hate our freedom', and he sure is working overtime to give them a system they can love.

Posted by: Kenji on February 2, 2006 at 8:32 PM | PERMALINK

Sorry, should real all the comments before I post, but I didn't.

As some posts I did read suggest, just getting a call from an al Qaeda member doesn't create enough probable cause to justify a warrant. It could be perfectly innocent business. Such a call might be "reasonable cause", but that isn't and shouldn't be the standard for issuing a warrant, not if you read the Constitution.

As for listening in on a call to the US from that al Qaeda member we were already conducting surveillance on, we wouldn't need a warrant even though it involved a US citizen. Think about it. If there was a warrant to tap Michael Corleone's phone, would you need a separate warrant for each of the people he called or who called him? Not hardly. You only need a warrant for one phone involved to listen to the entire conversation.

Everyone agrees you need a warrant for one end or the other of a purely domestic call, but if it's international, one end in the US and the other in a foreign country, and the foreign end of the call is being listened to legally? Actually, I think that's been pointed out many times. No court has ruled on that particular situation.

Posted by: Strick on February 2, 2006 at 8:38 PM | PERMALINK

Ticking Time bombs.

Terrorist's Roldex.

Osama's speed dial.

These are the fantasies of little rich boys, this is the world of the Republican Party.

Posted by: S Brennan on February 2, 2006 at 9:06 PM | PERMALINK

I'd point out that, according to NY Times reporter James Risen, Bush started the NSA spying soon after he entered office, not after 9/11. Bush apparently is lying and, I notice, he no longer mentions when he started the program.

From Risen, it appears the NSA approached the White House to say, in effect, that their eavesdropping captured US citizen's activities from time to time, that the policy was to delete the data or redact the identifiable information, and would the White House want to continue with this policy? I understand Bush then changed the policy to keep data captured about US citizens.

Bottomline, it's not as neat to say Bush started spying after 9/11. Perhaps they expanded their efforts after 9/11, but that's not clear.

Posted by: Fred on February 2, 2006 at 9:18 PM | PERMALINK

So Jerry's been proven wrong again and again--

No one has substantially changed or altered the central focus of the debate:

Federal prison awaits the key players of the Bush Administration who signed off on this program.

No President is above the law.

Posted by: Pale Rider on February 2, 2006 at 10:22 PM | PERMALINK

One of the terrorists was known to have a New York City Telephone White Pages Directory in his possession, therefore under Bush's reasoning, all of New York is open to warrantless surveillance as are any persons who call into or are called from New York City and any persons those persons call. But not any others of course.

Posted by: murmeister on February 2, 2006 at 10:51 PM | PERMALINK

Posner is predictably full of shit and on multiple fronts. First, he displays a fundamental misunderstanding of how a terrorist organization works--perhaps he's been reading too much fiction. Second, he's wrong on reasonable suspicion/probable cause. Third, unlike regular courts and investigations, FISA warrants can be obtained retroactively. Summing up the last two points, the FISA court does not operate on the same principles and is not bound by the same standards as a regular criminal court.

Also, let's not forget that Posner is an appelate judge with primary interest in civil--mostly business related--matters. Maybe I just don't have enough respect for the man, but I do not understand why a Posner opinion automatically has an aura of credibility, just like a Brandeis, Cardoso or Learned Hand opinions do. The difference between this bunch and Posner is that they are dead and most of their quoted opinions have all been final. Their opinions have survived the test of time--some only because of respect for stare decisis, some on their own merits. Posner's opinions are not usable outside the 7th Circuit. They count for no more than a research paper. And few have been tested.

Because of this, I would approach Posner's opinions from the opposite perspective--the first immediate question should be, "Why should we see the opinion as credible?" Posed in this way, many people will find rather quickly that Posner cannot convince them. The passage Kevin cites is a clear case in point.

Posted by: buck turgidson on February 2, 2006 at 11:20 PM | PERMALINK

chris,

Yeah, typical large IT project in a large organization. Can't try something that might work 'cause that would screw up the relationship with the vendor. At least they kicked Hayden, the guy who screwed it up, upstairs.

It sounds like even the link analysis Kevin is suggesting isn't working. Maybe they should have hired Google.

And thanks for the Choicepoint catch. Those guys sure get around in this administration.

Posted by: tib on February 2, 2006 at 11:44 PM | PERMALINK

For some reason this article comes to mind when I read the post. It was questions about colorado general hayden refused to answer in public on thursday.

NSA Expands, Centralizes Domestic Spying

Code Name(s) of the Week: DIAZ, Emergejust, Freedom, Highpoint, PASSGEAR, Viceroy

The National Security Agency is in the process of building a new warning hub and data warehouse in the Denver area, realigning much of its workforce from Ft. Meade, Maryland to Colorado.

The Denver Post reported last week that NSA was moving some of its operations to the Denver suburb of Aurora.

On the surface, the NSA move seems to be a management and cost cutting measure, part of a post-9/11 decentralization. "This strategy better aligns support to national decision makers and combatant commanders," an NSA spokesman told the Denver paper.

In truth, NSA is aligning its growing domestic eavesdropping operations -- what the administration calls "terrorist warning" in its current PR campaign -- with military homeland defense organizations, as well as the CIA's new domestic operations Colorado.

Translation: Hey Congress, Colorado is now the American epicenter for national domestic spying.

http://blogs.washingtonpost.com/earlywarning/2006/01/nsa_expands_its.html#more

Posted by: qwerty on February 3, 2006 at 2:23 AM | PERMALINK

-they'll give it to you before you even spread the mustard.

Well, that one at least gave me a laugh. And it makes the point in a succinct way.

Look, if this were really about protecting Americans from terrorism, they wouldn't have had to go outside of FISA. They certainly wouldn't have had to spend time testifying, negotiating, modifying legislation that they were planning to ignore. There is no way that this is about terrorism.

Posted by: JayAckroyd on February 3, 2006 at 2:50 AM | PERMALINK

I THINK EVERYONE IN THE U. S. SHOULD TRY TO CALL SOMEONE IN YEMEN AND TALK ABOUT SOMETHING TO DO WITH A TERRORISTIC ACT .REALLY THEY CAN'T TAKE US ALL DOWN CAN THEY????

Posted by: sticky on February 3, 2006 at 9:27 AM | PERMALINK

Jesus, Sticky: perhaps you should introduce yourself to a NYC firefighter.

Posted by: theAmericanist on February 3, 2006 at 12:02 PM | PERMALINK

I haven't read Richard Posner's latest article in TNR or the 80+ comments here regarding Posner's opinion's on probable cause and the effectiveness of FISA in balancing the Fourth Amendment freedom from warrantless searches against national security but I have a question. Doesn't it bother anyone else, including any judicial ethicists, as it does me that Richard Posner, who is a sitting Federal Circuit Court Judge, is writing such articles without any apparent intention to recuse himself from any case involving these issues that may come before him in the future?

Posted by: Robert on February 3, 2006 at 12:24 PM | PERMALINK

IF I DID I WOULD HAVE TO EXPLAIN WHY THE GOV FLEW REMOTE CONTROL PLANES INTO THE TRADE CENTER THE BLEW IT UP WITH EXPLOSIVES.

Posted by: sticky on February 3, 2006 at 5:06 PM | PERMALINK

ISN'T LITTLE GEORGY REALLY MAD AT BEN OVER SOME LAUNDERD MONEY ? ARN'T WE REALLY IN IRAQ FOR OIL ? COME ON PEOPLE LETS GET REAL

Posted by: STICKY on February 3, 2006 at 5:11 PM | PERMALINK

I MEANT THEN BLEW IT UP

Posted by: STICKY on February 3, 2006 at 5:39 PM | PERMALINK




 

 

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