May 12, 2006

Re: Wiretapping

I'll be honest, I don't even have a phone. I don't have a cell phone. I don't have a land-line phone. I don't have a VoIP phone. I don't like talking on phones. I rely on e-mail and instant messaging.

So, personally, wiretapping probably isn't going to affect me.

More generally, I tend to agree with Joshua.

When you're willing to sacrifice your privacy and surrender some of your rights so you can rest a little easier due to a decreased chance of being blown up--when said chance of being blown up is pretty miniscule to begin with--you're not all that interested in the Constitution.

Posted by Ryan at May 12, 2006 10:54 AM | TrackBack

"I don't even have a phone."

Suddenly you're my hero. Can you get away with avoiding the phone at work too?

Posted by: Steve G. at May 13, 2006 09:14 PM

Obviously, I do have to have a work phone. Interviewing people for articles would be kind of impossible without.

Posted by: Ryan at May 14, 2006 12:20 PM

You could just make stuff up. I thought you said you were a journalist?

Posted by: simon at May 15, 2006 06:06 AM

As Mark Steyn points out ( how is this any less invasive than the government (IRS) demanding the intimate details of your bank accounts every year? How is this worse than the government (TSA) searching you any time you want to board a plane?

This isn't a case of government agents listening in on your calls -- it's a big honkin' computer program looking at records unconnected to specific names, looking for suspicious patterns. When patterns are discovered, *then* the question is asked as to whether they have the authority to tap the line and actually listen in.

Posted by: Strider at May 15, 2006 08:48 AM

Rats, I was hoping you had minions to handle that. Or that the people you interviewed were big on IM...

Posted by: Steve G. at May 15, 2006 02:55 PM

Strider makes a good point that describes the flexibility of the Constitution. The founding fathers never imagined an individual income tax collected on an annual basis. If they did, they would have chosen to address it. As it goes, the Fed needs to collect taxes and with it financial records. Is that a violation of the Constiution, yeah if it was 1789. Since then things have changed. The Constitution also declares that citizens have the right to arm themselves. If the founding fathers mentioned the right to carry concealed weapons I must have missed it. Are states that ommit conceal and carry laws violating the Constitution? If they are, is there a benefit that outweighs it?

The Constitution gets twisted many ways. For me, I find it impossible to think that the right to privacy = abortion, and at the same time, the right to bear arms = no handguns. But that's the status quo. So, no I don't see the big deal about the Fed checking phone records against each other IF there's a benefit gained.

And that is the big question mark in this issue. I have yet to hear anybody argue for or against this practice and cite specifics; that is a case or two where 1.) terrorist plans have been thwarted by cross referencing phone records; or 2.) blantant civil rights have been violated and Fed has missused its power. All the arguments take place in theory and extrapolation. I can either assume that the Fed is always going to act with my best interests in mind OR that my liberties will be eroded at every opportunity.

I mean yeah, I get your point and Joshua's as well, and all. The US has had some pretty draconian policies between Adams, Lincoln and even FDR. At the same time, I can see how the Fed is under pressure to do everything it can to counter terrorist activities. Not to be a dick, but I didn't see too many people clutching their Constitutions in the rubble of 9/11—Nope, we didn't catch all those calls to Moussaoui. But we did make sure his pizza deliveries were secure. I don't think the firemen and police officers had much to do with the individuals that flew the planes into the towers, or the extremist that put the plans in motion. For the most part, citizens get to roll the dice on whether or not the Fed can stop something like that.. If that smacks of fear, fine. For me, the trade-off is worth it.

Posted by: seed at May 15, 2006 03:34 PM

I think focusing on the question of whether all this wiretapping or data mining or whatever else we don't know about yet (bearing in mind that every new revelation has been accompanied by an outcry from those responsible that we shouldn't be informed about these actions taken by our government at all) ignores the most important point: If these activities are going on purely on the orders of the executive branch without any legislative or judicial oversight, doesn't that place the executive branch in violation of the Seperation of Powers? The role of the executive is to enforce and uphold the Constitution and the laws enacted by Congress. The current administration's assertion that it can act in violation of those laws (such as in the case of the FISA court) simply by issuing "signing statements" would seem to place them at odds with this.

This is to say nothing of the constitutional problems generated by the unauthorized intelligence programs themselves, most notably the Fourth Amendment. I would also put forth that the "calling pattern analysis" we're just now hearing about amounts to a mechanized method for determining guilt by association, which, like unreasonable search and seizure, is explicitly forbidden.

Posted by: flamingbanjo at May 15, 2006 04:09 PM

Whoops. First sentence should read "makes us safer" after the parenthesis.

Posted by: flamingbanjo at May 15, 2006 04:14 PM

Sorry, Flamer...

There is judicial precedent/oversight in this case:

A ruling from the Supreme Court in 1979:Smith v. Maryland and the Fourth Amendment
During a criminal investigation, the victim of a robbery told police he had been getting phone calls from the suspected robber. Without getting a warrant, police installed a surveillance device called a "pen register" at the central telephone office. The pen register recorded the phone numbers called by the suspect from his home phone. When the pen register revealed that the suspect had placed several calls to the victim's phone, the suspect was arrested and eventually convicted of robbery.
The convicted robber appealed, claiming that the warrantless collection of his call records violated his Fourth Amendment rights protecting against unreasonable search and seizure.
Both the state court and U.S. Supreme Court, in Smith v. Maryland, disagreed, ruling that pen registers do not constitute a search in the traditional sense and may be used without a warrant. Since the only information collected by the pen register -- the phone number called -- is automatically shared with the phone company, with the knowledge of the caller, the Court held it unreasonable to expect the information would remain private.

Hmmm... 1979? Guess you can't blame Reagan or Bush I or W or Ashcroft or Cheney or John Roberts; Gotta blame the same Court that decided Roe v Wade.

Not all phone companies turned over their data to the government after 9/11. If you are that worried about your privacy, or if you are a terrorist concerned about operational security, you have the right to switch your phone service to one of those companies.

Posted by: Rob@L&R at May 16, 2006 05:31 AM

Here's a few more to add to Rob's list:
United States v. Butenko, 1974:
In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”

United States v. Truong, 1980
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities.

And, United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No.02-001, 09/09/2002:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable? —comment filter didn't like my url to the last item:

Posted by: seed at May 16, 2006 11:06 AM

Ooh, case law. I love it when internet conversations get all case lawey.

United States v. Butenko was before FISA, so it doesn't apply. United States v. Truong also regards surveillance that took place before the passage of FISA (the decision was rendered post-FISA, but the case matter predated FISA). The material you've quoted from United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No.02-001 only allows data gathered for foreign intelligence purposes to be used for criminal prosecution; it doesn't widen the executive's brief for gathering intelligence beyond the limits specified in FISA.

That final case is the only one that might have a bearing on the NSA wiretapping issue but that association is shaky at best. The section of the decision you've quoted (and I'll take it as an article of faith that your quote accurately captures the spirit of the decision as a whole) specifies that the President has the constitutional power to collect foreign intelligence. FISA doesn't contradict this point, but it does explicitly define "foreign intelligence" --the kind that the executive would be able to gather without venturing into the realm of the Fourth Amendment and, therefore, without a warrant-- as exclusive of sub-state entities. Therefore, simply acknowledging that the President has the constitutional power to gather "foreign intelligence," doesn't expand the President's powers beyond FISA and FISA's exceptions requiring warrants for domestic surveillance of sub-state entities still apply.

Smith v. Maryland addresses a completely different kind of case than the data mining currently taking place at the NSA. Also, ruling that callers had no expectation of privacy in 1979 doesn't necessarily mean they have no expectation of privacy today; user agreements have been substantially reworded in the interim. If modern user agreements contain any wording that gives users an expectation of privacy, there's plenty of room to challenge Smith v. Maryland with regard to the NSA's practice. In fact, developments in intellectual property law could really put a spin on that discussion if someone wanted to dig into all that. Though I mention these issues on Smith as a point of order-- ultimately, I think the phone records gag is probably be legal. I don't like them and I'd consider voting against anyone who authorized them, but they're probably legal.

Posted by: Joshua at May 16, 2006 04:13 PM

PS - I forgot to mention that even in cases where FISA does allow for warrantless surveillance, it still requires the Attorney General to certify the necessity of the surveillance to the FISC and report to House and Senate Intelligence Committiees. If Bush authorized warrantless surveillance that took place without Ashcroft going through that process, they still broke the law.

I believe that's the case the DoJ just dropped because they were stonewalled (and they're the President's butt boys).

Posted by: Joshua at May 16, 2006 04:20 PM

I don't disagree with you on the inclusion of the Attorney General and Intel Committee. I've said before, if Bush side-stepped the proper channels—for whatever reason—ring him up. For me, I'd be willing to accept that it was done for a positive reason. But, I'd agree with you that there should be a censure. Rules is rules.

As for the case law, I hope it gave you a chubby. Seriously though, the case law is murky at best. Previously courts have not held judgements against surveillance of foriegn powers. All that has to be present is a loose precedent that supports the policy. Bush: Is this action legal? —could be; Can it improve national security? —could be. I'll give you an inch and say that W probably wasn't that worried about the later question IF you make a concession that this issue is a bit of red herring.

What would fix all of this? Like I mentioned above, examples of successes or infractions. Past history has given us Sedition Acts, confiscatted presses and west coast camps. Non of those compare to data mining communications in my estimation. I don't see a line at the ACLU citing survellience infractions. Could be because nobody knows who's listening, could be because it's not interferring with anybody's lives. I also don't see a laundry list of thwarted plots infront of the white house. Could be because the nature of intel doesn't allow public disclosure, could be because this type of activity isn't effective.

Posted by: seed at May 16, 2006 07:36 PM

if Bush side-stepped the proper channels—for whatever reason—ring him up

The colloquialism I think you're going for here is actually "string him up" as in "hang him." Unless you think the appropriate judicial response to violations of surveillance laws would be to call him on the telephone. Which would actually be kind of funny so maybe that's what you were going for.

Seriously though, the case law is murky at best. Previously courts have not held judgements against surveillance of foriegn powers. All that has to be present is a loose precedent that supports the policy. ...I'll give you an inch and say that W probably wasn't that worried about the later question IF you make a concession that this issue is a bit of red herring.

I appreciate your flexibility re: willingness to give an inch but we're not there yet and, given how comment discussions usually turn out, we probably won't get there. I don't say that to be a dick, it's just how these things tend to go.

For what it's worth, the reason I can't joint you on the red herring issue is that the case law is anything but murky. There are, as you say, legal precedents for the executive being able to surveil foreign powers. But none of those precedents reinterpret or abridge FISA and, as I said earlier, FISA specifically excludes sub-state entities from the President's brief for warrantless surveillance. So your "is this legal-- could be," discussion is based on a faulty premise-- that there's some ambiguity in the law or the case law on the subject of surveiling sub-state entities or agents. The reality is that both the wording and the law and the existing body of case law make it fairly clear that warrantless surveillance of sub-state entities is not legal.

I don't see a line at the ACLU citing survellience infractions... Could be because the nature of intel doesn't allow public disclosure, could be because this type of activity isn't effective.

There's no "could be" about why the ACLU can't file suits in this matter; they've specifically criticized the government in this case because all surveillance records collected under the NSA's warantless program are classified-- so it's impossible to know who's being listened to or how the information is being used, in much the same way that it's impossible to evaluate the status of certain detainees at Guanatamo-- the evidence supporting the detention of individuals is (supposedly) a national security risk in and of itself because if anyone saw the evidence then they might be able to guess how we got it.

It seems to me that this kind of thing creates a higher standard for surveillance, not a lower one. If we ask the questions, "Who's being surveiled and who's got access to the surveillance records?" and the government's answer is, "We can't tell you," then I think we're forced to operate from first principles (rather than abandoning them) and say, "Then you need to at least get clearance from FISC, because otherwise there is no oversight and that state of affairs is, by definition, a violation of the separation of powers and a danger to national security."

Posted by: Joshua at May 17, 2006 07:35 AM

Man, even when I try to be witty, people tend to think it's just a typo. As comment strings go, they're usually dead-pan. Ah well, no hard feelings.

As an interesting development, the White House just announced that they are going to expand the oversight of the NSA programs beyond sub-committee members. Depending on where you are in the news cycle, you may have seen that. I don't expect you to stand up and cheer, but it is a concession of sorts.

Posted by: seed at May 17, 2006 08:16 AM

And, BTW, I noticed that Strip Mining has been down for the past couple of days, atleast for me. I've been getting a time-out error in Safari and Firefox.

Posted by: seed at May 17, 2006 08:30 AM

Strip Mining is down. Massive hardware failure due to a situation that would take more time to explain than it's worth. Should be back online by Wednesday of next week-- hopefully at the latest.

As to expanding oversight-- that addresses a general concern about how the program is proceeding, but it doesn't address my initial concerns about how the program has been carried out up to this point. It also doesn't do what I think actually needs to happen, which is that we need to move ahead with impeachment proceedings. Everyone on the internet acts like I'm from Mars when I talk about this, but I honestly don't see why it's so mind-boggling. The wiretapping that was going on prior to the NYT breaking the story was, by all indications, illegal. Which means it was a felony-- and not a little felony.

In fact, it seems to me like the Republicans would want to initiate impeachment proceedings and get them out of the way why they still controll congress. Right now all three branches of government are basically stacked with Repubicans and Republican appointees. If that changes after the mid-terms, the President might actually face a credible threat of impeachment.

Posted by: Joshua at May 17, 2006 09:07 AM
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