Sep 06 2006
Ground Hog Day On NSA
Lawyers and a judge attempting to determine the legality of the NSA Terrorist Surveillance Program, and how it touches people here in the US, were stunned to realize the administration doesn’t see the NSA program a violation of FISA:
In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.
It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.
“We don’t agree,†the lawyer, Anthony J. Coppolino, said, “that the government has specifically conceded that point.†He added that the question could not be answered without endangering national security.
That’s because the NSA’s surveillance has been going on for decades. The NSA, under military orders, monitors our enemies. Iin this time of war on terrorism the NSA monitors terrorists who have been determined to be organizing, planning and supporting attacks on America, her citizens and her allies. The NSA is a military outfit and under the military chain of command. It is not a law enforcement agency and has NO STANDING to request warrants from a federal court.
Conversely, the Judicial branch cannot be directed to confirm or affirm orders given through the military chain of command. Can you see a judge demanding commanders get his or her permission before attacking, killing, destroying, capturing enemy personal or property? What next, Miranda rights before a battle? “You have the right to surrender. If you give up that right to surrender you may be captured, maimed, killed or forced to watch Dan Rather”.
The NSA portion of this issue has always been ‘legal’. What the FIS Court opposed post 9-11, and the NY Times totally misreported, was that after 9-11 the NSA began passing leads it had uncovered regarding terrorist contacts here in the US to the FBI. Prior to 9-11 the tradition and Gorelick wall required any leads the NSA (and presumably all other intel agencies like the CIA) had on people in the US associated with terrorism were simple destroyed. The military may be able to give local law enforcement information on a local robbery suspect, but identifying potential terrorists was a big no-no.
The FBI now investigates these leads and, if there is something dangerous discovered, they go to FISA to gain a warrant to all communications related to that suspect can be monitored. People who say the NSA must go to FISA or that the NSA must need a warrant are just not dealing with reality. Since when can a judge insert itself into the chain of command?
The answer is so simple it amazes me all these talking heads cannot grasp it. If the NSA passes on a lead to the FBI, and the FBI investigates that lead and determines there is a danger – the FIS Court should allow for an emergency 3-6 month warrant. After that time the process begins again. That way the NSA does its normal job – listening in on terrorists – and the FBI and Courts deal with suspects here under FISA. The only gap is people who talk to terrorists will always have those conversations monitored. After all, they are communicating with the enemy. What did they expect?
Pull –
Am not sure what you mean by “where are you [DGF] going with points one and two?”. That said, if I do roughly understand you, perhaps I can best satisfy your queries by me simply recounting, in as precise form as I can muster, my understanding what the “NSA wiretapping affair” is about (in part– significant part — at least) . I will address this, in the next post.
As to your question “Do you believe the CIA and NSA previously had the right to spy on American citizens and that they did do this?”, I do not know what you mean by “previously” (previous to what/when?). As to my beliefs (well-founded or not), I would say that my understanding is that the mandate of the CIA and the NSA was in the realm of foreign intelligence, and that the CIA was prohibited by law to engage in operations in the US. Assuming that this belief ever did in fact roughly correspond to reality, this may have changed via some provision of the Patriot Act, etc. Or not. I have no clue. So far as I can recall, I’ve always assumed that outside the US, the NSA/CIA could spy on US citizens, and I assume that this is roughly still accurate. There no doubt are domestic (federal laws) which govern actions of the CIA/NSF and their officers and agents and some such laws or regulations may impose limits upon those agencies’ authority to spy on US Citizens out-of-country, for all I know. I expect that there are also foreign laws which such agents may violate thru, e.g., engaging in some activities commonly known/believed to be utilized when one goes a-spying on people (US citizens or not) in any particular foreign jurisdiction (Monaco, Poland, Iran, Mexico). I expect that the CIA and the NSA have in fact spied on US Citizens out-of-country, lawfully (under Federal Law).
Regards
Pull [the promised second post] —
I believe the following points to be true, and not really subject to debate. Of course, I may have gotten one or more facts wrong, and indeed perhaps stupidly wrong. (That’s the downside of bothering to have beliefs, I suppose). These purported “true facts” follow:
1. FISA is a law which on its face governs wiretapping (and probably a bunch of other stuff whose particulars I should be (but am not) versed in);
2. FISA covers and governs intelligence collection regarding foreign intelligence (ie. that has a locus outside the country).
3. Some communications have a locus both outside the country and inside.
4. FISA covers them too.
5. Application to a FISA court is required in order for the goverment to legally collect certain types of information. That is, the government must make out an application (supported by sworn facts, as I understand it), which such application to collect the otherwise legally uncollectable information is submitted to the FISA court.
6. Having “reviewed” the application the FISA court all-but invariably approves the government’s request in toto.
[7. Otherwise uncollectable intelligence can be collected by the goverment notwithstanding the lack of prior FISA authorization in exigent circumstances, and the FISA Court is authorized in proper circumstances to “retroactively” approve these otherwise unlawful collection activities.]
8. Prior to 911, the NSA would not routinely monitor international phone traffic which would involve as a communicant a party (US citizen ?) in the US.
9. Post 911 President Bush changed the orders to the NSA, which (a) no longer sought to exclude from its database calls as described in (8), above; and (b) did not seek approval from the FISA court to collect information from such calls.
10. Unless there is some over-riding legal principle (such as some alleged inherent power of the President), such collection of such information violates the FISA statutes, and, arguably, the Fourth Amendment to the United States Constitution.
Anyway, that’s my undestanding of what (a major portion of) the brouhaha is all about. Bottom line (as I understand it) is that some folks are upset because (1) they do not believe that there is any such alleged over-riding legal principle at-play; and (2) the collection of such information without FISA Court involvement is unlawful.
Regards
Enforcement —
Thanks for the effort, but I don’t think you understand the Fourth Amendment quite correctly. I may be wrong, but my understanding of the Fourth is that (except in certain circumstances – and the law is always full of exceptions), the “default case” is that a govermental authority/agent who is otherwise empoweredto effect searches or seizures, cannot so search or seize absent the prior application for and issuance of a warrant by properly constituted legal authorities.
Regarding your reading of the Fifth Amendment, I must confess that I’ve never much considered the particular referenced provision, but I am fairly confident that you are misreading this provision. This portion of the Amendment imposes a general requirement of a presentment or indictment, which such requirement is not operative (ie. the “except” language) “in cases arising in the land or naval forces, or in the Militia . . .”
Regards
Retired Spook —
You snuck in there on me. Didn’t even see your post til 5 minutes ago. Quite the spook, you, indeed!
I’ll respond presently.
Retired Spook –
Re: your first point, I should have omitted from my quote to AJ the section where he says the NSA is not a law enforcement agency. I do not question that assertion, nor that the NSA is a military organization of some sort or stripe. I should have been more careful and made clear that my objection was to the “standing” issue. So far as I can tell, your post does not address that point.
Re: the second point, perhaps I was misunderstanding AJ’s position, but I thought he was adopting a position I have heard on several occasions, that civilian judges somehow don’t have jurisdiction over military entities or agents because the military is somehow “separate” from general civil society. Of course, the military *is* somehow separate, but the military (and its personell) has to follow the laws of the United States (and of Kentucky and Toledo) just like the rest of us, unless it/they are specifically exempted by law. Your point re: JAGs notwithstanding.
Re: your third point (e.g., “there was a prohibition in the Sigint community to knowingly collect signals intelligence on “US Persons—), your account accords with my understanding of the practice, and of the change which occurred (by Presidential action) post 911. Thus, unless I misread AJ (or you) wrongly, you also agree that AJ’s assertion that the NSA “always” collected information on “US Persons” is not accurate.
Re: your remaining points, I appreciate the references and shall shortly undertake the effort to suss out the truth of the matter.
And, of course, to report back.
– Regards
Spook —
In reading (immediately preceding post)
“Thus, unless I misread AJ (or you) wrongly, you also agree that AJ’s assertion that the NSA “always†collected information on “US Persons†is not accurate.”
the “wrongly” should be struck/stricken/omitted.
DGF:
Thanks for the cogent response. My post which was in the bin is now above with the various links.
On spying on US Citizens abroad — they may do that with severe limitations.
To quote from the CIA FAQs on their website:
“By law, the CIA is specifically prohibited from collecting foreign intelligence concerning the domestic activities of US citizens. Its mission is to collect information related to foreign intelligence and foreign counterintelligence. By direction of the President in Executive Order 12333 of 1981 and in accordance with procedures issued by the Director of Central Intelligence and approved by the Attorney General, the CIA is restricted in the collection of intelligence information directed against US citizens. Collection is allowed only for an authorized intelligence purpose; for example, if there is a reason to believe that an individual is involved in espionage or international terrorist activities. The CIA’s procedures require senior approval for any such collection that is allowed, and, depending on the collection technique employed, the sanction of the Attorney General and Director of Central Intelligence may be required. These restrictions on the CIA have been in effect since the 1970s. ”
Moving on…
The most important point you mention is:
“8. Prior to 911, the NSA would not routinely monitor international phone traffic which would involve as a communicant a party (US citizen ?) in the US.”
What AJ said -which you took issue with – was:
“Prior to 9-11 the tradition and Gorelick wall required any leads the NSA (and presumably all other intel agencies like the CIA) had on people in the US associated with terrorism were simple destroyed. ”
What I am saying here is I really do not see a difference. Ultimately, all computers have records. These kinds of wiretaps are done in an automated fashion. At some point the computer is going to get the US number called and have a recording of that. It is likely going to record the conversation. It may not. We do not know for sure. It probably does.
This is pre-9/11 I am talking about.
With software… the system, upon coming to an US number, would have processed that US number so it could say, “do not record this call” or “do not keep the record that this call was made”. It would have to process that number. This means the record of it being processed would have to be deleted — “destroyed”.
Does it really matter if pre-9/11 the phone call was recorded or not? Does it really matter if pre-9/11 the record the phone call was even made was recorded or not?
This brings us to…
“9. Post 911 President Bush changed the orders to the NSA, which (a) no longer sought to exclude from its database calls as described in (8), above; and (b) did not seek approval from the FISA court to collect information from such calls.
10. Unless there is some over-riding legal principle (such as some alleged inherent power of the President), such collection of such information violates the FISA statutes, and, arguably, the Fourth Amendment to the United States Constitution.”
You are making a lot of assumptions here. The NSA has an obligation to report on crimes they become aware of. If an inbound call is made by known terrorists, they have a responsibility to report that information to the proper authorities. They do not need a warrant for that.
That is just one possibility of many. We do not have all of the facts.
There are some rather outrageous claims being stated in the media, such as what has been stated in the links I posted to above.
As far as I am concerned these claims are hearsay. They are unsubstantiated, anonymous reports. Second hand sources, at best. What is true and what is not? We do not know.
But there are quite a number of justifiable reasons why the government could claim to be right in what they have done.
Right now, we really don’t know what they have done!
It is all speculation.
The only thing here which says anything is the big jingo, “NSA WARRANTLESS SPYING ON AMERICANS”. Great line. What does it mean. Let’s see some facts.
In any case, this is minor stuff. Plamegate level stuff. We are crying “wolf”. I see some serious accusations out there, such as in the New Yorker article, but that is all these are right now. Accusations. By anonymous individuals. A lot of second hand sources.
As for the military angle… these guys may be right, I do not know. I simply do not judge on such matters.
DGF, you may be right, BUT:
“the “default case†is that a govermental authority/agent who is otherwise empoweredto effect searches or seizures, cannot so search or seize absent the prior application for and issuance of a warrant by properly constituted legal authorities.”
If this amendment were interpreted as you do, a police officer could not pursue or arrest a bank robber without visitng a judge and getting a warrant first.
You did see the word ” unreasonable” in there didn’t you?
In your interpreting the 5th, you disagreed with me initially then turned right around and said what I did, that it doesn’t apply to military people in time of war…… and that’s what we’re dealing with here.
For Enforcement –
You got a point. I confess to not being competently versed on the general Anglo-American rules governing searches and seizures (much less under Federal Law) so I should just shut up altogether. That said . . . I believe (for what it’s worth) that while a person may be seized (arrested) on a competent officer’s having probable cause (in the case of a felony offense), that latitude (that is, the latitude of not requiring prior judicial review of the officer’s estimation that probable cause exists to arrest “Mr. X” for crime Z) does not generally extend to generally sanction searches absent (consent or) prior judicial approval. (and here we’re talking search/seizure not of a person, but of a “thing” — the wiretapping of a conversation) But as I say, there’s no particular reason I know of why anyone else should also adopt this belief.
Re; the 5th Amendment, the portion you cited simply says that the requirement of a presentment or indictment is generally the rule, but is not the rule in “times of war with respect to military folks” (roughly paraphrased). All that means is that military folks in times of war have *less* protection than the 5th Amendment normally would accord, rather than more No? Nowhere in that Amendment do I read that military folks in time of war are immune from prosecution for any crimes, be they capital crimes, infamous crimes or other.
DGF wrote:
“I confess to not being competently versed on the general Anglo-American rules governing searches and seizures (much less under Federal Law) so I should just shut up altogether. That said . . . I believe (for what it’s worth) that while a person may be seized (arrested) on a competent officer’s having probable cause (in the case of a felony offense), that latitude (that is, the latitude of not requiring prior judicial review of the officer’s estimation that probable cause exists to arrest “Mr. X†for crime Z) does not generally extend to generally sanction searches absent (consent or) prior judicial approval. (and here we’re talking search/seizure not of a person, but of a “thing†— the wiretapping of a conversation) But as I say, there’s no particular reason I know of why anyone else should also adopt this belief. ”
“Anglo-American”? What is that supposed to mean? Are you not in the US? I suppose a slip of the tongue. America is bar none the most diverse country on the planet.
You are saying “seizures” are okay with prior judicial review, but not “searches”.
I can’t think of a country where that is the case. Any country.
Ever.
And who could complain? Pull over a guy with a bloody arm in the passenger seat… and not be able to search his car? Ouch.
Lol… I mean, seriously.
If this were not the case… nobody would ever go to jail. Guys could be walking around in blood soaked clothes and a human finger in their pocket and they couldn’t be searched. We wouldn’t be able to search people once we seized them. We couldn’t search vehicles. We would be unable to search apartments from where shots might have been fired at an officer — even if the officer saw a hand sticking out of a window with a gun in that hand firing at him.
He would have to get judicial approval first.
This is exactly how it has been pre-9/11 with the NSA.
Amazing? Absurd? Incredible? That is the state of American intelligence. How else did we miss the Pakistani Bomb, the fall of the Iron Curtain, and 9/11? How did we miss the Iranian revolution? Because we were taking chances and collecting too much information?
Anyway, I admit I do not have all of the facts. But, from what facts we do have this does appear to be the case of what is going on here… that this issue is not the “NSA WARRANTLESS AMERICAN EAVESDROPPING” program the NY Times claims it is.
that this issue is not the “NSA WARRANTLESS AMERICAN EAVESDROPPING†program the NY Times claims it is.
Pull, the proof of this is that, at least to my knowledge, no American citizen has been prosecuted based on a warrantless surveillance.
I realize it’s a fine line between identifying out enemies and their intentions and trampling on the rights of American citizens, probably more so now than ever before. Personally, I’d rather err on the side of caution. Civil libertarians getting their panties in a knot is a small price to pay to avoid another 9/11 or, God forbid, something much, much worse. The Left’s single biggest problem in all of this is that they still don’t recognize that we’re at war, and I’m afraid it’s going to take a truly catastrophic event to wake them up — those that are still alive, that is.
DGF
To put this on a lower level of simplification without being distracted by the seemingly esoteric debate of mundacities of constitutional law and how those are altered when a congressional resolution puts us into a defacto state of war and thereby enables presedential powers of all means necessary to effectively procecute that war to the best of our ability. Consider the following.
Let us assume we are dealing with a local drug crime task force.
They may get tips on drug related activity from
1 A paid snitch
2 A concerned citizen that calls into a tips hotline
3 A pattern observed or a specific instance of the nature to arrouse suspision by a uniformed patrol officer
No matter which of these or any other potential source, they only result in giving the task force intelligence of some activity that may be worthy of applying resources to investigate.
The initial lead may not be admissible in court as evidence for whatever fault of the technicalities of the legal system. However as long as this source is not used as evidence in the case, it does not impeach increased surveilence of the reported situation which then develops enough information to support true probable cause to obtain warrants for furthur investigation.
The much discussed Gorelich wall would put us blind to snitches, tip lines and other such sources. It would have us limited only to probable cause developed by street patrols by the drug squad to observe direct evidence to develop probable cause to furthur the case.
It is very hard to fight a global war on terror if you try to put us in the same mode as drug task forces being in this strange position.
Clearly the result is any smart mouthed kid in high school can find a connection to the latest drug party or supplier, but we have police departments who can’t seem to get a clue.
Hopefully our terror related efforts are more focused and efficient.
DGF said
10. Unless there is some over-riding legal principle (such as some alleged inherent power of the President), such collection of such information violates the FISA statutes, and, arguably, the Fourth Amendment to the United States Constitution.
This point alone is the one that invalidates all your others.
Even well prior to 9/11 for example, once congress authorizes action that results in direct utilization of military forces, it invokes the expanded powers of the president as commander in chief.
So even the resolutions concerning the enforcement of No Fly Zones over Iraq enabled certain powers that are more restricted when no force employment is involved.
Also he said
Anyway, that’s my undestanding of what (a major portion of) the brouhaha is all about. Bottom line (as I understand it) is that some folks are upset because (1) they do not believe that there is any such alleged over-riding legal principle at-play; and (2) the collection of such information without FISA Court involvement is unlawful.
Go back to my previous post and also review the first comment post in this tread. We and AJ in the past have disected this whole senario many times. Admittedly you may have not been here, but it has been fully aired.
No the most vocal opponents are more likely to have very suspicious motivations. When I hear people proposing to talking head media types that we are putting your grandmother talking to her bookie in danger, I see just political spin and gin. In those cases we are seeing more likely someone that knows the strength of the administrations position, but are only doing the snake oil salesman bit with all the credence of a used car salesman.
However many people still buy lemons from disreputable used car salesmen. Your mileage may varry.
To put this on a lower level of simplification without being distracted by the seemingly esoteric debate of mundacities of constitutional law and how those are altered when a congressional resolution puts us into a defacto state of war and thereby enables presedential powers of all means necessary to effectively procecute that war to the best of our ability.
Bingo Merlin!!! That, in one brief and concise statement, is the sum total of the difference between how the Left and the Right look at the debate. The Left does not view the AUMF as a declaration of war. The do not believe we are at war.
I have a good friend, who happens to be well to the left of me, who said to me recently, ” if we really are at war, it’s likely to be a war with no visible end. Does that mean that the President has these expanded powers indefinitely?” My answer was, “yes, and what’s wrong with that?” The President’s chief responsibility is the protection of this country and its citizens. The Left just really doesn’t have a frickin’ clue.
Pull —
“Anglo-American Law” is a term which (as I understand and use it) simply embraces the legal traditions and rules more or less common to the various laws of the principal/primary subsidiary jurisdictions in the Federal system — that is, the various States. (The “Anglo” part simply recognizes the debts that our legal systems and rules owe to English law.)
Re: 4th Amendment law, I repeat that my competence level in that vein does not suggest that I engage in extended discussion. That said, in the course of trying to prepare what I hope will be my final post on this thread, I refer you to http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf, a letter by the Atty General to Congress re: the NSA wiretapping question, in which the General states (among other things) that “For searches conducted in the course of ordinary criminal law enforcement, reasonableness generally requires the securing a warrant. See Bd of Ed. v. Earles, 536 US 822, 828 (2002)”
Retired Spook —
On the ‘Pull, the proof of this is that, at least to my knowledge, no …’ post…
I don’t like these false charges from the Left because it is crying wolf. Crying wolf is a central security flaw. It is entirely corrosive to good security.
If, at anytime in the future, our nation does become so corrupted… that we start to become totalitarian in nature… then all of these false cries of “wolf” by the Left will have been the foundation of just such a society.
America is not a France or Germany or Japan whereby we may say whether we are totalitarian or free that, “We are America”. We are the foremost example of a country built upon ideas, built upon godly virtue. If you take that away, there no longer is an United States of America.
So, I consider the rights issue as seriously – if not moreso – as any “civil libertarian”. That is a battlefront, as far as I am concerned.
As of yet, I have seen nothing which persuades me that we are inching towards totalitarianism by these means.
What I do know is we are weak, left far moreso, of course, but right, too. We have not handled the terrorist threat as we should have. We all know this. It is only a matter of time. We ban groups as “terrorist” and that is it. We wave to them. We close their bank accounts… like AQ Khan, we watch them and do nothing to stop them. We let them take over portions of countries… of Israel (Hamas), of Lebanon (Hezbollah), of Colombia (FARC)… the Syrian, Iranian, and Sudanese leadership are all terrorist as far as I am concerned, or more rightly: Islamo-Fascist.
So, yes, one can be concerned about the rights of Americans and still be extremely hard lined about the threat of Islamo-Fascists.
Where is the dividing line? I don’t know. I call it as I see it.
I do know we are all just waiting for the next big attack. I also know that though we know have dropped the incrediblying PC term “terrorist” for our enemies… this also means we do not seem to be concerned about Leftists or Neo-Nazis and other enemies who espouse terrorists means and methods.
That concerns me.
We have been changing enemies – priorities – back and forth so much over the years… but the truth is, our enemies have always been the same.
But, I digress from the subject at hand… apologies.
DGF —
Thanks for explaining on the Anglo-American part. I am not always sure where people are coming from whom I do not know.
On that pdf, it is compelling. I doubt that is their full legal perspective however, and I think they have since said as much to the courts. If they are contradicting their later strategy, I could see where that would be a problem. As far as precedent evaluation, no idea.
So, then, there would be two real issues:
1. Presidential authority (“in wartime” classification, I would think is optional here, as we always have some sort of threat, that is not even needed)
2. it is a reasonable search
I am tending to think the real legal strategy here would be both issues.
I do not think this post would contradict any such future strategy because of classified information being forced to be withheld and because the usage of the word “generally” above is rather open ended and merely acknowledges conflicting opinions.
If all they are doing is passing on probably illegal activity alerts to the FBI, that is surely reasonable to do. It would be unreasonable to dump that information in the first place.
We really do not know if what they are doing goes considerably beyond this. We do not know by the standard “terrorist” is defined. There are many issues here we do not know.
As far as Presidential powers go… any covert action ultimately has to be “ok’d” by the President himself, usually through the NSC.
Can we really live without such covert actions? The Islamo-Fascist and other terrorist enemies live in a covert world where they do not need such weighty decisions made. How can we fight them if we can do nothing covert… ?
And what is covert if searches are not covered here?
Or what can we do at all… without alerting the general public – and our enemies – about what we are doing? What would be “okay” to do here that wouldn’t be leaked out by government employees?
Anyway… I think this is a complex case. But, I also think it is legal. I could be wrong here. I do leave that open. But, I doubt it.
We really won’t know until this gets some kind of fair hearing.
I do find this entire process very difficult to bear with. Not everything the government does should be open to public inspection. We can not fight on those terms.
We can not afford Plamegates getting in our way every time we try and fight these guys.
From what I have read… that is exactly why our intelligence forces have been so ineffective. Because of past Plamegates. Their hands have been tied. And that is our primary defense against these types of enemies. Right now, anyway.
As of yet, I have seen nothing which persuades me that we are inching towards totalitarianism by these means.
Pull, neither have I, in spite of the whines and moans of the Left about “King George” and “the Imperial Presidency”. We’ll know in 60 days what the mood of the country really is.
Wrap-up Post (fingers-crossed) [Part One of ___ parts]
Earlier I posed two questions. What reliable “evidence” is there for AJ’s position that “The NSA portion of this issue has always been ‘legal’â€? In this postition, AJ maintains that the NSA has always had the legal authority to intercept and record (wiretap) international calls notwithstanding the fact that one of the parties to the call was located in the US. AJ likewise has, in this vein, asserted that no Federal court could legitimately order or forbid the NSA to/from doing x, y or z with respect to its intelligence gathering because the NSA is some sort of military or quasi-military organization, and because any such judicial order would (unlawfully) run afoul of the military “chain of command”.
Potential “evidence” with respect to such assertions, in that the assertions described constitute purely legal questions, would, presumably, be found primarily in statute or constitutional law; caselaw potentially, and (secondarily) in learned treatises or legal commentaries, etc. (i.e., lawyer-written stuff, for the most part), and finally, in tertiary sources which “report on” either the primary or secondary materials (e.g., newspapers, pundits).
Secondly, I challenged AJ’s assertion that the NSA has in fact “always” exercised the authority alleged above. I wrote:
“Finally, it is my understanding that until President Bush changed the regimen post-911 (by issuing new marching orders to the NSA), the NSA in fact did not freely monitor overseas communications which terminated in the US. This understanding of course is also directly contrary to AJ’s assertion. Can anyone point me to reliable sources in support of (or contrary to) AJ’s position on this factual question ?”
Potential “evidence” with respect to this issue is a question of fact as to how the NSA has operated (rather than simply being a legal question, as is the first on)
Several readers have commented on my original post in this thread, and at least two have invited me to further research these questions myself, rather than joining in a call that AJ should be expected to support his (repeated, tho unsupported) assertions on their own merits. AJ has not participated in any aspect of the thread relating to responses to (and replies on) my original post. I have responded to several inquiries with respect to my original or later posts, and set forth in one such post a numbered 10 point exposition of my understanding of the (principal) gist of the “NSA wiretapping affair/question” (hereinafter “the Question”).
I accepted the invitation to further educate myself so as to confirm or disconfirm the accuracy of my understanding of the Question and (pretty much of necessity) to answer my original question as to what support (if any) exists for AJ’s assertions (set forth above).
The results of my research and thought on this matter will follow in one or more posts.
Wrap-up Post (fingers-crossed) [Part Two of ___ parts]
A. With respect to the “factual question” of whether or not the NSA has, in fact “always” freely wiretapped international calls notwithstanding the lack of any warrant/judicial authorization for such activity and notwithstanding the fact that one of the parties to the call was a US citizen/legal resident present in the US, AJ’s assertion is contradicted by Retired Spook, who wrote (in the thread above)
“During most, if not all of my career (I retired in 1989), there was a prohibition in the Sigint community to knowingly collect signals intelligence on “US Personsâ€, which included pretty much anyone who was in the country legally, citizen or not, even if one end of the conversation originated overseas. My understanding, from contacts I still have in the intelligence community, is that that changed only after 9/11.”
This was my understanding as well, which I presumably came to believe from sources in “the media” or the
blogosphere. In researching the Question for this thread, I can refer the reader to the following additional sources in support of this fact. Again, this change in NSA practice is contrary to AJ’s unsupported (albeit many-times repeated) assertion to the contrary:
1. http://www.globalsecurity.org/intell/ops/nsa-activities.htm (by implication, e.g., at “Following the
September 2001 terrorist attacks in New York and Washington, Mr. Bush says he authorized the surveillance of such calls without court warrants, because part of the terrorist strategy is to place operatives inside the United States….” (that is, Bush issued orders in this regard to NSA *after* 911, which such orders changed the existing regimen at NSA with respect to wiretapping “US Persons”)
2. http://strata-sphere.com/blog/index.php/archives/2461#comments(by implication, via AJ’s reporting of a Bush speech ([Bush]”At my direction, the National Security Agency created the terrorist surveillance program. Before 9/11, our intelligence professionals found it difficult to monitor international communications, such as those between the Al Qaida operatives secretly in the United States and planners of the 9/11 attacks.”)
3.. http://www.foxnews.com/story/0,2933,179114,00.html (Again, by implication, via report of earlier Bush speech, evidencing change in NSA regimen (“On the eavesdropping issue, Bush said “absolutely” he has the legal authority to order such surveillance, citing Article 2 of the Constitution, which he said gives
him the responsibility and authority to deal with an enemy who declares war against the United States. After the Sept. 11, 2001, terror attacks, Congress also gave him the authority to use force against Al Qaeda, he noted, to tackle an “unconventional enemy,” some of whom lived in U.S. communities.[para]…”After Sept. 11, one question my administration had to answer was, how, using the authority I have, how do we effectively detect enemies hiding in our midst and prevent them from striking [us] again? We know that a two-minute phone conversation from someone linked to Al Qaeda here and to Al Qaeda overseas can cost millions of American lives,” he [Bush] added saying some of the Sept. 11 hijackers made several phone calls overseas before the attacks.”)
4.
http://www.boston.com/news/nation/articles/2005/12/23/wiretaps_said_to_sift_all_overseas_contacts/
(“”The whole idea of the NSA is intercepting huge streams of communications, taking in 2 million pieces of communications an hour,” said James Bamford, the author of two books on the NSA, who was the first to reveal the inner workings of the secret agency.[para] ”They have a capacity to listen to every overseas
phone call,” said Tom Blanton, director of the National Security Archive at George Washington University, which has obtained documents about the NSA using Freedom of Information Act requests.[para] The NSA’s system of monitoring e-mails and phone calls to check for search terms has been used for decades
overseas, where the Constitution’s prohibition on unreasonable searches does not apply, declassified records have shown.[para] But since Bush’s order in 2001, Bamford and other specialists said, the same process has probably been used to sort through international messages to and from the United States, though humans have never seen the vast majority of the data * * * [para] In 1978, following revelations that President Nixon had used the NSA to spy on his domestic enemies, Congress enacted a law making it illegal to wiretap a US citizen without permission from a secret national security court. The court requires the government to show evidence that the target is a suspected spy or terrorist.[para] Under the 1978 law, NSA officials have had to obtain a warrant from the secret court before putting an American’s information into their computers’ search terms.[para] The restrictions largely limited NSA to collecting messages from overseas communications networks, but some Americans’ messages were intercepted before the 2001
terrorist attacks.[para]Ocasionally, the interception was deliberate. In April 2000, the NSA’s then-director, General Michael Hayden, told Congress that since 1978 ”there have been no more than a very few instances of NSA seeking [court] authorization to target a US person in the United States.”[para] More often, the interception was accidental. Because American international calls travel through foreign networks, some of which are monitored by the NSA, the agency’s computers have sifted through some American nternational messages all along.[para] ”Long before 9/11, the NSA gathered from the ether mountains of [overseas] phone calls and e-mail messages on a daily basis,” said Columbia Law School professor Deborah Livingston. ”If you have such an extensive foreign operation, you’ll gather a large amount of phone traffic
and e-mails involving Americans. That’s something we’ve lived with for a long time.”[para] But Bush’s order cleared the way for the NSA computers to sift through Americans’ phone calls and e-mails. [para] According to a New York Times report last week, Bush authorized the NSA’s human analysts to look at the
international messages of up to 500 Americans at a time, with a changing list of targets. [para] Hayden, now the deputy director of national intelligence, told reporters this week that under Bush’s order, a ”shift supervisor” instead of a judge signs off on deciding whether or not to search for an American’s messages.”)
5. http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html
(by implication, via AG/NSA Head Press release; “[AG]The President confirmed the existence of a highly classified program on Saturday. * * *The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the — one party to the communication is outside the United States.* * *What we’re trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that’s what this program is about.[para] Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides — requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday, unless there is somehow — there is — unless otherwise
authorized by statute or by Congress. That’s what the law requires.[emphasis added] Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence. * * * The President, of course, is very concerned about the protection of civil liberties, and that’s why we’ve got strict parameters, strict guidelines in place out at NSA to ensure that the program is operating in a way that is consistent with the President’s directives. And, again, the authorization by the President is only to engage in surveillance of communications where one party is outside the United States, and where we have a reasonable basis to conclude that one of the parties of the communication is either a
member of al Qaeda or affiliated with al Qaeda.”)
6. http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR2006020600931_pf.html
(Via Congressional testimony (AG): “LEAHY: Now, back to my question: Did you come to the conclusion that you had to have this warrantless wiretapping of Americans inside the United States to protect us before the president signed the resolution on September 18th, 2001? You were the White House counsel at the time. GONZALES: What I can say is that we came to a conclusion that the president had the authority to authorize this kind of activity before he actually authorized the activity. LEAHY: When was that?
GONZALES: It was subsequent to the authorization to use military force. LEAHY: When? GONZALES: Sir, it was just a short period of time after the authorization to use military force. LEAHY: Was it before or after NSA began its surveillance program? GONZALES: Again, the NSA did not commence the activities under the terrorist surveillance program before the president gave his authorization. Before the president gave the authorization, he was advised by lawyers within the administration that he had the legal authority to authorize this kind of surveillance of the enemy. * * * GONZALES: * * * But it’s my understanding — and I believe this to be true — that the NSA did not commence in the kind of electronic surveillance which I am discussing here today prior to the president’s authorization. “)