January 19, 2006

What’s At Stake With NSA/FISA

Filed under: — Chap @ 8:43 pm

This Wall Street Journal article popped up in the Early Bird (DoD-only restricted link here) today. It’s subscriber only but is an outstanding characterization of the absurd nature of some of the rhetoric around the New York Times’ “exposé”.

And to correct an oft-cited misconception, there are no five-minute “emergency” taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B’s number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?

If you can, read the whole thing. It is an op-ed, clearly, but does put forth points I’d have liked to make, and does so clearly and effectively.

Rob’s clearly concerned about similar issues as Enrevanche and a few other folks. I’m more worried about leakers and efficient killing of bad guys before they get to us; they’re more concerned about civil liberties they perceive as lost, particularly with the character of the current administration. If this book is any indication of the profession of one of them, then that one guy may want to seriously consider a different job…

6 Responses to “What’s At Stake With NSA/FISA”

  1. Barry Campbell Says:

    Amendment IV – Search and seizure. Ratified 12/15/1791.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  2. yup Says:

    Barry, Barry, Barry,

    The operative word here is “unreasonable.” That does NOT mean that the government cannot do so. As previously asserted, nobody gives a rat’s tuchas whether you are buying gay porn on the Internet, obtaining Viagra for your illicit liaisons, or other such things. (And as Katie Couric once challenged Rush Limbaugh regarding the unconstitutional seizure of his medical records by a Florida DA, “if you’ve got nothing to hide, then why fight this action?”) Here’s some info I previously posted on the subject:

    Just a word FYI…. the FISA court in 2002 tried to hobble Bushco’s wiretaps in pursuing intelligence on terrorist operators. The decision was handed down by a court which included Judge James Robertson, he who has lately resigned in protest against Bushco’s warrantless operations and who is apparently a hero in your version of the saga. Well, did you happen to latch onto the fact that the FISA court of review (yes, there is an appelate body at that level, and yes, this was the first time it was ever petitioned since FISA’s passage in 1978) overturned the FISA court, and ruled of Robertson et al “the FISA court erred. It did not provide any constitutional basis for its action” and that “the FISA court may well have exceeded [its] constitutional bounds” in making its ruling? Did you note the reference to a Supreme ruling that “[W]e do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of ‘ordinary crime.’” United States v. United States District Court (Keith), 407 U.S. 297, 322 (1972) Did you catch that the FISA court of review in fact cited United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), a case involving the surveillance of a Vietnamese spy named David Truong which “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The FISA court of review added that “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. ”

    Apropos of nothing, I find it hilarious when the Legislature bloviate about how they didn’t really mean for the Executive (President) to actually use the powers that they gave him. In light of discussions on renewal of the Patriot Act, for example. This appelate ruling noted that the case law is pretty clear on these after-the-fact changes of heart: “The D.C. Circuit has described such post-enactment legislative statements as “legislative future” rather than legislative history, not entitled to authoritative weight”

    Read the ruling for yourselves.

    Some food for thought, eh?

  3. John deVille Says:

    “(And as Katie Couric once challenged Rush Limbaugh regarding the unconstitutional seizure of his medical records by a Florida DA, “if you’ve got nothing to hide, then why fight this action?”)”

    Yup — your example might be of the throwaway variety but it certainly flies in the face of not only the 4th Amendment but the 5th. I find Mr. Limbaugh to be one of the most obnoxious persons on the planet but he’s still entitled to his constituional rights, Ms. Couric’s insipid, uniformed, smarminess be damned.

    Why fight any action one deems to be unconstitutional? Because one respects the genius of Madison and Hamilton and the other participants. Because one respects the fight and the sacrifice that immediately preceded the Constitutional Convention.

    Why fight any action one deems to be unconstitutional? Because one recognizes the slope is not only slippery but lies at an extreme angle pitched towards a hell of where a savage Will to Power reigns supreme.

    And does Ms. Couric really want Uncle Sam peeking into her medicine cabinet?

  4. WillyShake Says:

    Well done, as always, Chap. Great discussion. I left a question for you HERE at my blog if you have time.

  5. yup Says:

    So Mr deVille, why you zero in on the vapid Couric, and ignore the Supreme and other court statements I included there? The Couric bit was intended as a jibe to the uber Leftists who run the DNC and their minions in the Congress.

    The FISA court of review is composed of three Circuit Court judges (FISA court being composed of District Court judges). Appointed by the Chief Justice. The Supremes have distinctly differentiated between the Article III and Article II powers of search — without getting into the merits of the Article II powers (after all, that might open up legislative or executive review — and possible curtailment — of judiciary powers). The FISA court of review admits that the Executive has the Constitutional power to conduct warrantless searches. The operative word in the Fourth Amendment is “unreasonable.”

    The Risen allegations, which are the basis for all the breathless innuendo and gum flapping in the Press and the Halls of Congress, not to mention here in the Internet, indicate that the government spied on some 500 persons in the US. There is no indication whatsoever that they were snooping willy-nilly through your phone calls, or your online porn activity, or anything like that. All of these 500 were connected in some manner to known terrorists. Why do you not want the government to exercise its supreme mandate of protecting the country by looking into these people? Oh wait, that’s right, you folks believe that the FISA court is a rubber stamp that will approve willy-nilly surveillance against just about anyone the government darn well likes, no evidence needed. Because of course we can’t imperil a court case by denying the bad guys their rights. Hoo boy. “Well, your honor, we want to surveille this guy Mohammed Atta because he’s a creep who’s taking flying lessons…..”

    Slippery slope. Love that one. Same argument can be made against gun laws (laid down in the 1920s, updated to include Mr Hitler’s best ideas in 1969). Or how about “gay marriage?” Or “constitutionally-protected abortion?” What about the Income Tax (ratification of which was dubious)? Or mandatory driver’s liscencing and insurance for automobiles? The Social Security Number? The loss of 1st Amendment rights under McCain-Feingold? The loss of 10th Amendment rights when States were forced to remain in the Union? The list of slippery slopes can go on ad nauseum. In fact, the whole concept of electronic surveillance can be construed as a de facto slippery slope, since it gives the government a power that can be abused.

    Perhaps you’re right. We should not use the capabilities we have as a government, and let people plan and implement our deaths with the freedom that they are due under the spirit of Constitutional protections.

  6. chap Says:


    I’m not too thrilled with Rush, myself, and get your line of reasoning. Where I differ from Barry on this beast is what kind of reductio is needed.

    First, my bias: I’ve had experience with using intelligence, am familiar with a few collection methods, and know what it means when a source or method is lost. I’ve also had to keep secrets.

    Because of that bias, and because of my experience, one of my concerns is the Bad Thing that happened when someone who swore to keep a secret didn’t, and I am unhappy that this issue (which was So Important in another recent issue that went another way politically) is not at the forefront of the discussion.

    Secondly, there is a tension between the right to privacy and the right to not get killed–which is driving much of the discussion.

    –I believe that what the article above is telling me includes examples such as where a known foreign bad guy can hop a plane to NYC and we lose the intel during the entire trip due to bureaucratic rules. These rules are intended to protect American citizen’s rights but in this case put Americans at risk to lose that other right.

    –I also believe that the Benjamin Franklin quote can be taken to a reductio ad absurdum. Like engineering or architecture, where “fast, cheap, good, pick two” applies, rights don’t exist in a vaccuum by themselves and tradeoffs occur.

    –I take the Lincoln and WWII examples, and the arguments made over my own lifetime as to what would happen if “insert Bad Thing here” were to occur knowing what that Bad Thing really was, and believe that there is some hyperbole on the more libertarian side on this issue. I know I need intel to find and fix on the kill chain, and intel to stop things before they occur. Many of the arguments made recently I’ve heard will not only reinstate Gorelick’s Wall but add more restrictions that Do Not Make Sense to me.

    –I am pretty sure I know exactly what the papers will say after an attack. I think we should do those things before.

    –I know that my enemy exploits my own moral stopping points, my bureaucratic seams, and my protection of fellow citizens. This makes things very very hard.

    This is an important conversation to have. It is, however, an important conversation to have made a while back, not when the NYT leaks on a slant.

Trackback URL for What’s At Stake With NSA/FISA:


Powered by WordPress (c) 2002-2009 Chap G.