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Three score and ten or more

Sunday, January 29, 2006

Fear of Warrantless telephone interception

I am so tired of so many expressing so much fear about government intrusion into our      privacy without a warrant that I am feeling almost tongue-tied with frustration.  I know why some people are promulgating that fear, because some people are so filled with hate toward the current administration that they have no compunction in distorting the NAS interception policy or even, if they understand it (some people are in paradigms so blinding that it is difficult to open the mind to understand anything beyond the button pushing headlines)  they don’t mind lying about it.    I have posted my thoughts on a couple of other blogsites, but I feel it necessary to post them now in my own space.  I procrastinated this post, in part, because Saurkraut (I keep trying to make links, but I have decided that it aint ever gonna happen) included a link on her blog that provided the official Department of Justice report (all 42 pages) and I wanted to read it all before I posted, to make sure I wasn’t mistaken about how this works. (I do wish lawyers could write something in clear denotative English and not in convoluted legalese, and this post would have been available a couple of days ago.

The truth is very simple, and not at all frightening to anyone who thinks about it clearly.  The  process used by the NSA to intercept foreign intelligence is very parallel to the process by which law enforcement seeks information on domestic crooks.  I will illustrate it through an analogy.

Juan de Getcherdoe is a major drug dealer (let’s say wholesaler) who has come to the attention of law enforcement because he has been careless.  The Drug Enforcement folks or the FBI, whatever kind of feds are involved have ample evidence to convict him, but want to know more about his suppliers and his dealers before they pick him up.  Since he lives in the U.S.A, they go before Judge Righteously and get a warrant to tap his phone.  For a couple of weeks, everybody who talks to Juan is recorded.  They are recorded with out any warrant on THEM. because it would be impossible to get Juan’s rolodex and get a warrant for anyone he plans to call or to be called by.  Joe the delivery boy at Domino’s is one of these, and all he talks about is “what’s the address?”  He is recorded and analyzed anyway, and with the obvious innocence of his conduct his tapes are put aside. Don Getchahigh says incriminating things, so the feds get a warrant to tap his phone too.  This goes on and on.  Juan can be prosecuted in court on the basis of evidence gained through a warrant.  Don can be prosecuted on the basis of his communication with Juan, even if the incriminating stuff came before the warrant was made for him, as can people who talked to darn much, but never had a personal warrant or tap.

Now the NSA:  Osama ben Nasty is an acknowledge enemy of this country.  He has been making threatening videos, bragged about killing Americans, etc.  He is not a citizen nor a resident of the U.S.A.   The NSA was established for the purpose of getting intelligence about enemies of the country, so, doing their duty they intercept his phone calls:  all of them, whether he talks to someone in Germany, or Syria, or the USA.  There is no way on earth that they could initially know who he is calling in the USA in order to get a FISA warrant, or actually an approval. The same applies to anyone who calls him.  If someone in the USA says something incriminating, the implied warrant in the War Powers act is sufficient to justify recording the call.  If it is sufficiently incriminating that there appears a need to tap that US resident’s phone it is then, and then only that the law requires the NSA to get an approval (read warrant) from one of the judges on the FISA court.  Anyone who is called by, or who calls Osama comes under suspicion.
“History conclusively demonstrates that warrantless communications intelligence targeted at the enemy (bold print is mine) in times  of armed conflict is a traditional and fundamental incident in the use of Military force authorized by the AUMF”  (The AUMF is “the Authorized Us of Military Force” passed by Congress and declared by the Supreme Court to be the equivalent of a Declaration of War.  If anyone says we are in an undeclared war he/she is either a damned liar, a distorter of fact, or too darn lazy or stupid to look it up.    Anyone who leads you to believe that the NSA is randomly targeting domestic phone calls, whether within the USA or to overseas numbers is also either: 1.  A damned liar,  2. a distorter of fact, whether through misunderstanding or through a deliberate attempt to mislead you for political purposes, or  3.  Too damned laze or stupid to investigate the facts, or 4. So blinded by their hatred of George Bush that they are unable to look at things that they should understand objectively.  I’m sorry, but that is the way it really is.  I have run this past a some attorneys (one of which is a wild eyed liberal) and, with the Department of Justice defense in hand, they all had to admit that it was a valid analogy.
So there.


At 9:34 PM, Blogger Fish said...

You've put that to bed rather soundly. I has gotten tiresome hasn't it. All the emotionalized garbage being thrown about on this. Someone even visited my feeble little blog and ranted about how Bush should be arrested because what he is doing is an arrestable offense yadda yadda.

At 6:06 AM, Blogger Ed Abbey said...

I agree that the tapped phone calls aren't happening randomly or even happening on a large scale. I have no problem with the ones that are happening as long as they follow the law passed in 1978 saying they must have a warrant with 72 hours. When that warrant isn't obtained, I have a problem and my understanding of the situation is that Bush or members of the NSA aren't obtaining that warrant. Bush has fallen back on the Patriot Act saying that it provides the powers to wiretap without a warrant but members of his own party in Congress say no it doesn't.

Assuming Bush doesn't have the authority, I don't think he nor any president should have the ability to wiretap people without a warrant. There no longer is a check to balance the power and it leads to a larger more powerful government, something I am against along with our founding fathers and traditional conservatives.

At 7:03 AM, Blogger Three Score and Ten or more said...

I'm sorry Ed, but those warrants withing 72 hours are FISA warrants, and they are not needed unless the intercept is deliberately on a U.S. phone, and, in spite of all the hoorah, there is, as yet, no evidence that such illegal taps have happened. The law in seventy eight was passed as a reaction to taps between U.S. phones that were excused on the basis of cold war intelligence (actually some of them related to Russian diplomats being tapped in the U.S.) It had been a common practice for years for intelligence gathering. If you were a member of the German-American Bund in 1942, you can be sure that your phone was tapped. The law was passed to prohibit such, and should have been, but it never could possibly have related to calls from outside the U.S. to the U.S. that were caught in an intercept of "Osama". In the first place, there was not the technology to filter so many calls outside the U.S. and, as you see from the warrant analogy, such intercepts are even legal in court if the warrant has been given for the crook's phone.

At 7:56 AM, Anonymous Kathleen said...

Thank you for doing the research and posting the data. I have been meaning to bring myself up to speed, but have lacked the time and fortitude recently.

I have read and heard enough to think your research is valid. I am also convinced that those who hate GW Bush are unwilling to look at simple logic and reason. I have experienced this in my attempts to point out flaws in a string of posts about fascism. It is very frustrating to say the least. I'm not sure why I stay in the frey.

Anyway, I totally agree with you. I also appreciate you giving the effort to seek the truth and share it with us.

At 7:58 AM, Blogger Saur♥Kraut said...

Here's my link and the DOJ link is included there.

I don't hate Bush or his administration, incidentally. The reasons for my disapproval are clear in my post. I think it's easy to dismiss objections as due to hatred. I think it's more fair to consider that they may be coming from people who would wish for so much better.

I voted for Bush, both times. I thought, and still think, that he was the lesser of two evils. But that doesn't mean I'm going to be a knee-jerk Republican. I can't fall in with the party line. And there are many that agree.

I know that the tapped phone calls aren't en masse, yet. But the potential is there, and that is what scares me.

Simpy because there's no evidence of misuse doesn't mean that misuse hasn't occurred...or won't occur.

At 9:37 AM, Blogger Three Score and Ten or more said...

Saur, I don't think you hate anybody,( perhaps except some of the folks who've been trying to steal your business) but I do think you pay too much credit (or credibility) to some who do. Thanks for including the link. I have had that process explained forty times but am such a computer cretin.
I don't think the potential is there. Saying that the fact that there is no evidence there in not a sign that it hasn't happened is a little like saying the fact that there is no evidence that it happened doesn't mean that Richard (or Saur) haven't robbed a bank. We live in a country where (except in politics) there is a presumption of innocence.

At 11:50 AM, Blogger Ed Abbey said...

Let me ask you a question. How can you put a tap on an international call from an unknown number that hasn't yet been placed unless it is by necessity on someone's number already residing in the United States? If that person is a bad guy and not a citizen, there still isn't a problem but if he is a citizen, then the 1978 FISA law applies as well as the 4th Amendment. I agree that the 78 FISA law was passed under different circumstances but it is law just the same even if the circumstances have changed until it is repealed or changed. I'm not a legal scholar by any means but that is my take on it.

Like you said, I haven't seen any proof that it has been used on American citizens but when on December 17, 2005, in response to the New York Times Article, President Bush stated that he ordered the National Security Agency to eavesdrop on AMERICANS and to intercept the international communications of people INSIDE the United States, I began to think that it might be true.

At 2:05 PM, Blogger Three Score and Ten or more said...

I have explained how we eavesdrop on Americans (through intercepts on foreign numbers)and it is the same with *inside* the United States. If it is both lines *inside* the United States, then they need a wire tap. I think the Times was treasonous (not my favorite paper as you know) for making it known that we had the technology to eavesdrop on virtually every cell phone in the middle east (or wherever we thought the bad guys would be.) Till then, the bad guys thought they were beyond our technological reach if they avoided land line phones.

Speaking of that, have you noticed that virtually every detective show on the air from CSI to Veronica Mars has shown (in the last couple of months, but taped much earlier) some geek sitting at a computer tracing down someone's location by tracing the location of the cell phone (also without a warrant). You would think that someone would complain about that.
(Of course you can't trace anyone's location through a cell phone location if they are smart enought to turn the cell phone off when they aren't using it.

another sub point: You would think that on your own blog you wouldn't have to do the darn word verification puzzles more than once.

At 3:04 PM, Blogger Patrick Joubert Conlon said...

Nail on head, Richard.

At 5:34 AM, Blogger Ed Abbey said...

I see now. Basically you are saying that as long as one of the callers is international, even if the other is an American citizen on U.S. soil, their rights to warranted searches are not covered. Thanks for the clarification.

I guess we will have to disagree on this point. If you don't mind, can I ask you another question? What are you feelings on enemy combatants found in the U.S. who are American citizens? Do they have rights to trials in our court system or can they be held indefinitely at Quantanamo? I'm guessing your answer would be the latter.

P.S. It seems as if I rarely get the word verification on the first try either.

At 8:13 AM, Blogger Three Score and Ten or more said...

Ed, I am not judging the right or wrong on this, just the law. I just get frustrated with those who claim that all American privacy rights are eroded in this situation, when they are much better protected than they would have been in ANY previous conflict.

As far as American citizens who are declared Enemy combatants having a right to trial versus storage in Guantanamo, I don't really have a clue. Any legal part of that is beyond my knowledge. I suspect that, as a personal moral and constitutional sense, those who are apprehended on U. S. soil and are U. S. citizens should have the right to trial. Those captured in enemy armies fighting against us should be treated as enemy combatants,(John Walker Lind??)or as prisoners of war. Gut instinct, I have no legal basis for this conclusion.

At 8:54 AM, Blogger Dust Bunny Queen said...

As I understand the "wire tapping" process, it is computers looking for patterns of calls from outside the US, from suspicious areas or previously know to be terrorists, to numbers within the US. Once the pattern has been estabished, which takes only seconds to do, the calls are intercepted.

Wire tapping is such an outdated term. There are no wires and no tapping in most of these instances. It brings to mind Edgar J Hoover's, minions in dark pin stripe suits, sitting hunched over mysterious equipment with headsets on,in a black 1940s panel van, with stale donuts and old coffee cups scattered around. This is not what is happening. The terrorists are using throw away cell phones and no one is really listening until the computers have established a pattern.

If we needed to get a warrant to track a throw-away cell phone call from Lower Sobovia to a terrorist cell member in the US, it would take days and be much to late to accomplish anything. The callers and callees would have disappeared like smoke in the wind by then.

I am not personally afraid that someone is "listening" to my phone calls...If they were they would be bored out of their minds. I am not that vain or paranoid.

At 10:40 AM, Blogger Ed Abbey said...

Dust Bunny Queen - The FISA bill (disregarding whether it applies to this situation or not) says that a warrant must be obtained within 72 hours of listening in so whoever is listening would have three days before they would be breaking the law. This gives them the ability to listen and follow the disposable phones without being bogged down in paperwork. It gives the executive branch some slack but not enough rope to get into trouble.

Three Score - Thanks for taking the time to explain your view to me. I am kind of on the edge of the fence on this one and you lay out a pretty convincing argument. I guess the next step would be to dive more deeply into the legalese to understand better what exactly the law allows. Thanks again.

At 11:15 PM, Blogger The Zombieslayer said...

Interesting post, Three Score. I'm going to have to do more research before having an opinion, for I've always felt an uninformed opinion is better when the mouth is kept closed.


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