Here's my question. How does the use of secret illegal wiretaps save thousands of lives more than the legal ones?
That seems to be his implication here. Does this mean that these thousands of lives were saved in addition to the regularly approved ones? How do we know? How many FISA wiretaps have been approved, and how many lives have they saved?
I don't think I have the ability to get the answers to these questions myself. I hope someone is, because I'm pretty confused. Why? Because FISA already provided for lots of secret applications, and the Senate was considering expanding further under the Patriot Act (emphasis mine):
· Further expands time limits for FISA surveillance. The Senate Intelligence Committee bill significantly expands the amount of time some FISA surveillance authorities remain in effect (already greatly expanded by Patriot Act section 207, which the bill makes permanent), further minimizing judicial review of this rapidly-expanding secret form of government surveillance.
· Exacerbates using FISA as "end-run" around stricter safeguards for criminal surveillance. The bill further exacerbates the danger of using FISA to evade criminal probable cause by providing that FISA secret searches and surveillance (such as the secret search of Brandon Mayfield's home) can be initiated for the sole purpose of criminal prosecution for certain crimes, such as terrorism and espionage. Currently, the acquisition of foreign intelligence must be a "significant" purpose. This change is described as a codification of the FISA Court of Review's decision upholding section 218 of the Patriot Act (which the bill also makes permanent), but it appears to go significantly beyond that decision. In particular, the bill provides express statutory authorization for a search, without probable cause of crime, for the sole purpose of gathering evidence for a criminal prosecution and, as a result, is plainly unconstitutional.
· Creates new statutory authority for intelligence investigators to track mail of ordinary citizens. The bill adds an entire new section to FISA on "mail covers" which allows intelligence investigators to track, without probable cause, the outside of any sealed mail sent or received or the contents of any unsealed mail. The authors say this is a codification of an existing regulatory power, but this rationale has been the excuse for virtually every new power added to FISA surveillance since its enactment (e.g., physical searches). FISA was originally intended to provide some check on electronic surveillance for national security purposes, instead of criminal investigations. FISA is not necessarily based on any evidence of criminal wrongdoing.
· Expands greatly the amount of information obtained without probable cause through Internet surveillance. The bill expands substantially the amount of information that can be obtained, with a court order but without probable cause, from surveillance of so-called "routing information" through the Internet (pen registers and trap and trace devices). Pen registers and trap and trace device capture information like telephone numbers dialed or received, the header of an e-mail, or the web address of a web site or web page viewed. They are based on a rubber-stamp standard of relevance, rather than any individual suspicion. The bill would require, for FISA pen registers and trap and trace devices, a host of additional information to be supplied by the service provider on this rubber stamp standard, including: name, address, telephone number or IP address of the device, how long the subscriber has used the services, method of payment (including credit card numbers), and the periods of the subscriber's usage.
So, it's not like using FISA would publish the government's activity in the newspaper. And the Senate was working on legislation to expand the the scope and secrecy of FISA. Doesn't sound to me like the Senate was going around screaming secret data from the rooftops, but rather that they were working on making legal (if, from the ACLU perspective and mine, dangerous) frameworks for the continued acquisition of secret data.
Again I ask, what is it that is so special about the secrecy of the warrantless search as opposed to the secret warranted search provided for by FISA?
Posted by binky at December 20, 2005 11:32 AM | TrackBack | Posted to J. Edgar Hoover | The Ever Shrinking ConstitutionIf the NSA program involves conventional (phone/email) wiretapping (conventional = you have names/numbers and are trying to figure out if they are terrorists by listening to them), then Bush violating FISA makes no sense.
The latest rumor/tinfoil-hat/logical guess (take your pick of adjectives) is more complicated:
These are not phone numbers we're talking about...These are IP addresses, email addresses.
A system is in place that basically filters on certain triggers (text, phoneme, etc.) within Internet "conversations." This is "detection" or at least it's tortured definition that was placed in this idiot Bush's mind. "Monitoring" would be recording an entire conversation, like in a phone conversation.
That system then collects information on those conversations including...ta da...source and destination IP addresses. Those IP addresses can then be stored for further investigation on other "conversations."
E.g., I start an email thread with a friend in France. I mention Al Qaeda. My conversation is "detected" and my info is stored. The system then segments my address into another system and starts a deeper "detection" on any further "conversations" for further triggers. Hence, the system could still be said to be in the detecting mode, not monitoring. If I don't mention any other "evil" words, if I simply send medical records or lusty love letters or diatribes against liberals, I'll eventually be dropped.
Ramifications: Anybody doing anything on the Internet whose traffic gets routed overseas, no matter why, no matter how, is being sniffed. Let's just call it sniffed. Spare me the parsing of "detection" versus "monitoring."
This is, of course, all just guessing, but it does make some logical sense. If the NSA has no specific numbers/names/email addresses to look at (and, hence, can't get a "normal" FISA warrant), but is instead just hooving up all communications that exits the US and then analyzing that big pile for any bit of voice/text/data that looks suspicious, and then (after finding "suspicious" communications) focusing on those numbers/names/emails and who those people talk to (and dropping the numbers/names/emails which turn out not to be interesting after a day/week/month of monitoring), well, that would be interesing, no? Moreover, that's a process that (if known) would hurt inteligence gathering, and we wouldn't want leaked. It's also, very likely, unconstitutional/illegal.
Hey, everyone play random speculations!
Posted by: baltar at December 20, 2005 01:14 PM | PERMALINKWell, this would be consistent with the intel traces we find here, no? After all, we have international readers, some in countries "of interest" to the intel folk. I know because I look at the site meter and occasionally see dots on Saudi Arabia and Malaysia and Kuwait, for instance. Now, I know that I have friends in the military who read the site, and some of them are likely in some of those places (guessing TOTALLY as they are not allowed to reveal where they are and I don't really have any clue where they are), but how does the 'bot sniffer (and I've talked with a local computer pro about our "visits" and he thinks it's a 'bot) know that our exchange between Kuwait and the US is inocuous?
Of course, Americblog was speculating that the warrantless searches also were tracking journalists, and that the government wanted to keep it super secret so the press didn't cry foul. I don't see how this is such a worry, since the NYT apparantly rolled over for the administration and kept this quiet for a whole year unil after the election. Of course, now they are reaping what they sow, as Bush's first step when he came out swinging was to call them traitors and disparage their already shaky reputation. It's maddening, especially since they are acting like typical Democrats: suck up to power and hope power will treat you nicely, and then act surprised when that doesn't work out for you.
Posted by: binky at December 20, 2005 01:22 PM | PERMALINK
it takes a couple hours to get a FISA approved warrant. my best friend's mom is a federal judge and has had to sign some of the warrants. so the administrations argument is that in certain circumstances a couple hours wait makes the tap significantly less valuable for the purposes it was sought for in the first place.
Bullshit.
And you know why? FISA can be invoked after the wire tap. Only it has to occur within a certain number of days.
Also, see here where Armand explains why that argument is a "big, gigantic, bald-faced lie."
Posted by: binky at December 20, 2005 02:39 PM | PERMALINK