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February 09, 2006

We Have A Spying Problem

OK so I was wrong. It only shows I don't quite understand the law. Apparently, if you have a warrantless search, anything you find from that appears to be completely inadmissible, even for the purposes of obtaining proper warrants. I was under the impression that was not the case. According to the WaPo

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

So there's a conceptual difference that needs a great deal of explaining with regard to wartime powers and 'the battlefield' when such things are mixed in with the infrastructure of peacetime civilians. I mean, I know that we are in a state of war against certain elements of various worldwide organizations, but I don't feel like I am at war personally.

I worry we may not be able to resolve this without some kind of reform. I don't want to see our system crash. Not that on this particular matter of warrantless wiretaps is more than a minor tactic in a major offensive. Everybody knows this, which is why no injuctions have been sought, but lets see what we see.

Posted by mbowen at February 9, 2006 08:10 AM

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the problem is that this is NOT being used as a tactic against terrorism. this is being used as a tactic of internal control of dissent. remember you talked about how old and out of touch the original law was? it's been modified already...BY BUSH.

Posted by: Lester Spence at February 9, 2006 08:35 AM

If you define dissent as giving aid and comfort to the enemy, then the wingnuts are as correct about liberals as they can be.

Posted by: Cobb [TypeKey Profile Page] at February 9, 2006 08:38 AM

The problem is, from my POV, war has not been declared, constitutionally. So, following from that point, some of this is suspect and walks a very fine line.

Posted by: DarkStar [TypeKey Profile Page] at February 9, 2006 06:00 PM

DS, I think it's time to sit down and figure out who we're fighting. From the way I see it, times have changed. Declare war? Against who? Unfortunately I really think it's going to take another week-day morning of TV news detailing nuclear detonations in major cities for us to agree that it's time to be on the same page. Unfortunately I think the President, at this point, is working w/ the tools he has. I could be wrong . . . but his opponents still agree that "a" threat exists . . . but W is somehow doing all the wrong things. "Rank Opportunism" is what I guess. So I'm just crossing my fingers that I'm not downwind from the fallout . . . .

Posted by: Jon at February 9, 2006 07:13 PM

what does my definition of dissent have to do with how they use their spying capabilities?

Posted by: Lester Spence at February 10, 2006 03:48 PM

Nobody is going to prove that the NSA is spying on American political dissidents. The very idea is preposterous. The NSA is spying on people loosely affiliated with AQ and similar terrorist groups. If you consider affiliation with AQ to be legitimate political dissent, then you're past Blue state partisanship into the truly wacky zone.

Who is being silenced? Show me the money. This is truly a BDS idea.

Posted by: Cobb [TypeKey Profile Page] at February 10, 2006 04:18 PM

Ok. First you say that the law is outdated, and outmoded.

No. Bush changed it in 2000.

Are you now saying that Bush's wireless taps are being used solely to spy on people "loosely affiliated" with AQ and "similar terrorist groups"?

If so, what are you basing this statement on?

Posted by: Lester Spence [TypeKey Profile Page] at February 10, 2006 10:21 PM

I am basing it on the (unsworn) testimony of the AG, the fact that no injuction has been sought by the Democrats and what I interpret as the goals of the Bush Administration. But most of all, I am basing it upon my understanding of the number of professionals in the NSA and legal staffs involved in authorizing FISA or non-FISA wiretaps. Unlike the matter with Plame, this is an ongoing activity that is happening outside of the White House. The number of people who would have to coverup a targeted domestic political enemies list would be even large and out of White House control.

I strongly believe that NSA is coming up with the targets and those people are requesting extraordinary leeway in recording the activities of those targets and that the White House lawyers are figuring paths through the law to allow wiretaps. I beleive that this is done aggressively in the spirit of the public demand to 'connect the dots' and that FBI and NSA are cooperating to the best of their bureacratic ability, but that the sole impetus for this is to identify military intel on AQ and its affiliates.

There is simply not enough rabid partisanship within this chain of command to warrant domestic searches for the purposes of stifling political dissent.

That said I do not consider it beyond the realm of possibility that Michael Moore or some other radical US citizen may have intentionally sought out connections with AQ or AQ affiliates and that they end up two degrees of separation from them. But you also have to think of the mathematics of this. If you have a list of 50 (say) core operatives, two degrees of separation from them yeilds many thousands of phone numbers. Three degrees nets hundreds of thousands. You have to have a whole lot of time and effort to track that many phone calls and get real intelligence on it. Parsing chatter is no mean feat. So there has got to be a sizeable staff and a ton of paperwork going on here. Understanding that it's compartmentalized does not change the fact that the people at the top know there's a substantial dragnet in operation. To the extent that the White House lawyers have to do business with the NSA and FBI lawyers and nobody can be arrested based on warrantless wiretaps it's a highly dubious and expensive strategy for suppressing political dissent.

Now I have some questions for you. Who would you consider to be George W. Bush's single most formidable political enemy? What has Bush done to combat this enemy, and why would he risk employing the NSA to additionally combat this enemy? What kind of pressure would he put on this enemy and what evidence do you have that he may have done so?

Posted by: Cobb [TypeKey Profile Page] at February 11, 2006 08:25 AM

In other words, you aren't basing it on anything other than gut. Which is fine....but if the AG cannot say whether (for instance) the NY Times is being investigated, then I'm not sure what that testimony actually buys us. And of course the fact that it is unsworn renders it utterly useless.

So we move onto "the goals of the Bush Administration."

Which ones? Where does your understanding come from?

Posted by: Lester Spence at February 11, 2006 05:25 PM

I don't believe that simply because people have decided to be enemies of the Bush administration that the declaration is mutual. So having not answered my question I can only assume that you believe the Bush Administration is out to punish the NYT, it's biggest enemy, and has employed the NSA in order to accomplish this. I believe that the Bush Administration is out to find military intelligence on AQ and that it is being aggressive. If the NYT is some small number of degrees away from AQ that may make them part of the chain, but they are not the primary targets, nor are they a target of opportunity.

There it is.

Posted by: Cobb [TypeKey Profile Page] at February 11, 2006 06:42 PM

Does disclosing the existence of a wiretapping program that violates federal law bring the NYT within that small number?

Posted by: Lester Spence at February 11, 2006 07:34 PM

of course not.

Posted by: Cobb [TypeKey Profile Page] at February 11, 2006 11:09 PM

Ok...so why are they investigating them, with a zeal they never exhibited during the Plame case? Why can't the AG say--particularly given the fact that he wasn't sworn in--"you guys aren't being tapped?"

Posted by: Lester Spence at February 12, 2006 08:07 AM

Duh. Because that's how secret programs work. They specifically don't work when the enemy has reason to believe they are being surveyed. It's called 'blowing your cover'. You simply don't reveal the details of an ongoing investigation, period. I'm sure you've heard this rationale before. Why do you think it shouldn't apply to the NYT if they are not the target of the intelligence gathering?

Posted by: Cobb [TypeKey Profile Page] at February 12, 2006 08:14 AM

You're confusing the federal investigation of the NYT, with the wiretap issue.

Why can't the AG say--not only to the NYT, but to Democratic Senators--you aren't being tapped--in order to give more information about the warrantless domestic surveillance program they have?

Posted by: Lester Spence at February 13, 2006 05:54 AM

I don't know about any investigations of the NYT. I only used it because you implied that they were the biggest enemy of the Bush Administration who might be on the path to AQ. If what you really mean is that Democratic Senators are targets of domestic surveillance under the cover of military intelligence gathering, that's even a more far out theory. But in either case, I don't expect the AG or General Hayden to do anything more than, in closed session, reveal some of the profiles and the extent to which various provisions, such as minimalization, of the FISA statute is applied.

I doubt that the AG has any operational details - he has no need to know.

Posted by: Cobb [TypeKey Profile Page] at February 13, 2006 07:55 AM

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