Sep 05 2006
NSA And FISA: The Left Is Clueless, The Solution Obvious
Liberals are a fairly clueless lot. They do not understand the separation of powers and the authorities granted the three branches under the constitution. Ever since the NY Times totally screwed up the reporting on the post 9-11 relationship between the NSA and FISA you have to admit that our education system has produced a lot of people ignorant of the government they live under. Take this bit of happless cluelessness:
The problem with the “warrantless wiretapping scandal” is that the American people are being lied to (” Bush defends surveillance program,” Aug. 19).
The problem is not about the National Security Agency. It is not the “NSA wiretapping scandal.” It is the warrantless part.
Everyone who has a brain can figure out that we need to spy on terrorists. We just need to make sure we do it legally. With warrants.
This poor uneducated soul is clearly not understanding where the NSA exists. It is a military organization. Right now it is in a war with terrorists overseas trying to attack us here and abroad. To that end it is listening in on the terrorists overseas to determine their plans and identify where their forward forces are and how close they are to attacking American assets and people. The NSA takes direction through a military chain of command. It is not a law enforcement agency. It does not have the power or authority to request search warrants.
And the Judicial Branch has not authority to order or require the military request permission from a judge to follow orders legally given through the military chain of command. The parallels are obvious if people would just think about the precendent implied in the above statement. We would see field commanders seeking permission from a judge to seize land on the battlefield. We would see field commanders seeking permission from judges to detain enemy soldiers. We would see field commanders seeking permission from judges to demolish enemy facilities and infrastructure. Wars would be fought like local people fighting zoning issues and arrest warrants.
The fact some of our military assets are based here in the US, well behind our strongest defenses, does not make them subervient to the Judiciary. The fact is, prior to 9-11, the NSA would never notify law enforcement of a lead they detected here in the US while listening in on enemies overseas because it was some naive legal theorists who decided that was too risky, it might be abused by some second coming of Nixon. It was abused, but by Al Qaeda and it cost no one to lose their privacy to political dirty tricks, just 3,000 innocent lives snuffed out in a matter of hours one morning.
The crux of the debate is not to make a military unit run to some judge every time they want to listen in on an enemy on the field. The problem is how to treat leads the military uncovers. So far, the approach has been to remove the Gorelick Wall and allow the leads the NSA uncovers to be passed to the FBI for investigation and, if deemed a serious lead, to the FISA court for a full surveillance warrant of the person here in the US. This lead is no different from the military passing on leads of theft or arson at a military base. It is no different than military personal testifying in a court in a civil criminal case. We just have to stop being so paranoid that Nixon’s ghost will return so that the NSA can do its job and the FBI and courts and HSD can protect us here.
And what we REALLY need is educated debated – not this silliness where a military unit has to go to a judge to get permission to follow legal orders. If the NSA can monitor our enemies in a time of war, then whoever contacts those enemies is fair game to be listened in on DURING THOSE CONTACTS. To listen in all everything someone in the US is saying, beyond their communications with our enemies, should be handled under emergency warrants (which should be a mechanism in FISA).
The solution is obvious once the picture is clear. The FISA court fought and fought the idea of using NSA leads as probable cause for concern. The idiocy of that is amazing. Why we are still dealing with idiotic premises and not discussing this subject seriously is beyond me. And why FISA cannot authorize a 6 month emergency warrant if the NSA leads, once vetted by an initial FBI investigation, determine we have a serious threat is also beyond me. The answer is that simple. If the NSA and FBI are both concerned with what they gleaned from the NSA lead, the FISA Court should let them do their jobs.
AJ,
Do you ever suspect you’re stuck in an unending time loop, like on Star Trek or something? It’s where things just keep on repeating themselves and nobody learns a damn thing! Same here. Although I think on Star Trek they actually did learn. JEEZ these people are dense! Of course, when they don’t want to learn…they probably won’t!
Sigh.
Carol
The NSA Debate…
Here are a few links and quotes from around the blogosphere on the NSA debate. This is going to be a major issue in the upcoming mid-term elections. I have worn myself thin repeating myself in this debate so I’ll just quote others this time ar…
One other minor point, the constitution only protects against “unreasonable” searches and seizures, not against any. To me, if somebody is planning to kill me, it wouldn’t be unreasonable to learn about it before hand.
And talking about never learning. Think back, The democrats controlled the presidency from 1933 til 1969 with the exception of 8 years when Eisenhower did nothing. Remember who all the far left radicals were trying to overthrow in 1968? Well the Far Lefties are still at it. They haven’t learned at all.
I know just what Carol means.
Have you been asked to explain this in front of Senator Arlen Specter’s judicial committee as well as its equivalent House?
Aj
I have a lawyer friend who lives a couple of houses down and one night over relaxing by my pool with a beer we wandered into a discussion of warrantless searches.
He did not itemize them , but he said there are at least 23 laws which specifically authorize warrantless searches. One example he gave was searching for a gun in the home of a convicted felon.
As he expressed, it is not strictly the concept of warrantless searches that is the binding issue, it is the mostly overlooked “unreasonable” search verbage that is important.
Another good example, is if you happen to for any reason to choose to take your personal vehicle on to a military base, with either a visitor or permanant pass you sign a waiver that authorizes search of your vehicle at any time.
How does getting a warrant harm the War on Terror?
I do not think their belief set requires realistic understanding or support. I think their belief set only requires the appearance of understanding or support.
They don’t want us to win. They don’t want to impede Islamists from attacking us. They do want to hide their hatred.
Deep down, they hate America. They maybe don’t imagine themselves having their heads cut off by some sharia swearing turban wearer… but then again, their world is one built on lies, not truth. Cowards are always delusional.
The question from above is:
How does getting a warrant harm the War on Terror?
Each law enforcement person works a certain number of man hours per year. If a man hour is spent (and it takes many hours) getting a warrant, that hour is not spent on counter-terrorism.
A person engaged in terrorism should expect an officer to not have a warrant because the terrorist is doing something that it would not be unreasonable to search and seize for.
How does getting a warrant harm the War on Terror?
Roberto, I’m going to refrain from calling you a dumba$$. What part of the following statement from AJ’s post do you not understand?
The NSA takes direction through a military chain of command. It is not a law enforcement agency. It does not have the power or authority to request search warrants.
Retired Spook —
“The NSA takes direction through a military chain of command. It is not a law enforcement agency. It does not have the power or authority to request search warrants.”
Whether or not the NSA is in the DoD chain of command (I believe not, but could be wrong), it can (and under FISA is required) to obtain FISA approval in order to legally monitor certain conversations (e.g. US Persons (in the US)) This is clear from language in the FISA statutes themselves, and has been confirmed (for example) by former NSA head Hayden, as well as by AG Gonzales. See, e.g. my comments, references and authorities at http://strata-sphere.com/blog/index.php/archives/2450#comments
(I corrected several errors in my posts at the end of the thread (as of this date) – in three posts, so you might want to start by noting those corrections (which may forestall confusion in then reading the posts-at-large)).
If you (or anyone) has any focused critique of my analysis, I’d be happy to respond, and will I monitor this thread and the above-referenced thread for a week or so.
I’m fairly confident in my analysis and understanding, but anyone can be wrong. That said, many of the remarks AJ has made on “the NSA Question” are clearly and readily-demonstrably in error, and hence well-understood to be in error.
Regards
Retired Spook –
As a clarification of the above post (and to avoid any confusion over my understanding and my remarks), I probably should have inserted the word “targeted” in the 2d paragraph of my last post, as indicated below:
“Whether or not the NSA is in the DoD chain of command (I believe not, but could be wrong), it can (and under FISA is required) to obtain FISA approval in order to legally monitor certain conversations (e.g. TARGETED US Persons (in the US)) This is clear from language in the FISA statutes themselves, and has been confirmed (for example) by former NSA head Hayden, as well as by AG Gonzales. See, e.g. my comments, references and authorities at http://strata-sphere.com/blog/index.php/archives/2450#comments”
(That is, my remarks assume the legal importance of the distinction between incidental and targeted monitoring (“contact” and “target” monitoring, in AJ’s terms), and the analysis presupposes (for puposes of argument, anyway) that no FISA approval is necessary for incidental monitoring of US Persons (in the US)
Parenthetically, too (and likewise to forestall misunderstanding, so far as possible), I believe in some remarks on the referenced thread I may have referred to US Persons in the US simply as US Persons; frankly, I’m too lazy to check to see if the definition of “US Person” already includes that person’s being in the US, but in any event, I believe that as a rule where I referred to US Persons on that thread, I intended that the referrent be US Persons in the US.).
— Regards
DGF,
Your ignorance is stunning. By law the only organization that can go to the FIS Court is the DoJ, specifically the Attorney General or their designee.
It would be much better for your own image if you just stopped pretending you understand what is going 0n. The NSA has no standing to get a FISA warrant. FISA can only monitor US persons in support to the FBI which gets the FISA warrant. That is why the NSA threw away leads it had on the 9-11 highjackers prior to 9-11. There was no FBI warrant to pass the lead to the FBI! Talk about dumb rules!
Ugh. We are going to die from national ignorance.
AJ –
Apparently your response to analysis is epithet. Epithet and name calling are not analysis or debate. Neither is analysis to be found in naked and unsupported assertion of the ramdom (or non-random) thoughts which happen to be floating around in AJ Strata’s grey matter.
You do not respond to my analysis in any meaningful way. You simply ignore, for example, the former head of the NSA (cited by me in haec verba) who confirmed that prior to 911 the NSA had on occasion sought FISA approval occasionally. You ignore what the AG has said, and so far as I can tell, you ignore basically the totality of reporting on the NSA Question (or lable it misreporting or the work of fools). Indeed, you ignore your own contradictory statements. You acknowledge and address none of these points which I have raised.
Why is it that you do not respond in an analytical fashion? Aren’t you supposedly some sort of “software systems engineer”? I assume that you understand some basics of programming and logic. A logical analysis proceeds from a to b to c, etc. step by step. It should be easy for you to show how my analysis is faulty, if indeed it is. It should be easy for you to support your several seemingly ridiculous statements, by pointing to statute “Z” or authority “A”. Yet you don’t. How curious.
Why is it that you do not respond in an analytical fashion?
I expect the answer is that you cannot – because there is in fact no support for the several assertions of yours which I have questioned.
In law as in life, silence on a point is often properly taken as an admission. Your silence — your inability to contest my analysis in any even moderately rigorous “points and authorities” manner — properly may be viewed as a telling admission of the factual and intellectual bankruptcy of your position.
An honest man would either pony up with his detailed authorities and counter-analysis, or admit his error(s) squarely.
— Regards