Marty:

I would only add one point: that if Continetti were correct that we are all in grave danger because of the expiration of the PAA (he's not), then it was unconscionable for the President to prevent an extension of it by threatening a veto. The fact that Bush chose to allow the law to lapse, solely in the name of telecoms' immunity for their (possible) violations of the law, should tell you all you need to know about what's truly at stake here.

This finger pointing excuse might have some merit if Congress actually opposed telecom immunity. In fact, this bill has already passed with a bipartisan super majorty in the Senate and is poised to do so in the House if the House leadership allows it to the floor for a vote.

The choice here is between allowing or not allowing a vote. The President has no duty to negotiate against himself when Congress already agrees with the compromise he negotiated last month.
 

Excuse me?

"The President has no duty to negotiate against himself when Congress already agrees with the compromise he negotiated last month."

This makes no sense. If the President's duty to protect the people is so overwhelming, shouldn't this duty require him to accept the bill, sans immunity, for the safety of the people?

The choice to allow a vote or not is not the President's to make. His choice is to either work with the Congress or not.

You can't have it both ways, not and have it make any sense as an argument. If the law of the land didn't stand in the President's way, the irrationality of those nasty Congress-critters cannot excuse the President from his duty.
 

Adding to the fun, did everyone see this article in the WSJ this morning?
 

Meanwhile, Mr. Sanchez does his best to avoid the issues at hand:

Continetti: [A]ny new wiretaps the government seeks will have to go through stringent FISA procedures, which require the government to show “probable cause” that a “U.S. person” is a “foreign power” or an “agent of a foreign power” before a search warrant targeting him can be issued. And this is troubling because–pace Richard Clarke–the old FISA didn’t and doesn’t work.

Sanchez: First, under any of the legislation under consideration, you would still need a FISA warrant to “target” a U.S. person. Nobody, as far as I can tell, wants to eliminate that requirement. What controversy exists here is over how to deal with collection of U.S. persons’ communications in the course of acquisitions whose target is a non-U.S. person.

Strawman. No one is talking about spying on US persons.

Second, it is at the very least highly misleading to say that “new wiretaps” are not covered by existing authorizations under the PAA. That’s because these “authorizations” are frequently general orders specifying an organization or corporate entity (e.g. “Al Qaeda”), meaning that new individual targets and facilities—in other words “new wiretaps”—can be added to these existing orders..

Hardly. It appears that there is a blanket warrant to spy on named terrorist groups. All the enemy has to do is invent a new cover name like Suicide Bombers R Us and they fall outside this warrant.

Continetti: It turns out, further, that the NSA wasn’t spying on Americans willy-nilly. Most of the warrantless surveillance targets were foreign nationals located overseas, though the program also surveilled the 500-odd people in the United States with whom those overseas targets were communicating.

Sanchez: The first assertion can’t possibly be made with any confidence. It has become transparently clear over time that most of what we know about the “NSA program” concerns one component of much broader surveillance authorized by the president after 9/11.

Sanchez is demanding that Continetti prove a negative. There is not one scintilla of evidence that the NSA was spying on Americans willy-nilly and the program has been under intense investigation by members of both parties, thus Continetti can indeed make the above statement with confidence

We know that whatever else was going on, some of it was so extensive that top Justice officials, including John Ashcroft and FBI head Robert Mueller, were ready to resign if the president reauthorized it over the objections of the acting Attorney General, even as the “Terrorist Surveillance Program” we know about continued without incident.

This is one of Marty's favorite red herrings. There is no allegation or evidence that DOJ was concerned with stopping NSA spying on Americans willy-nilly during this turf battle. More likely, this had to do with DOJ's difficulty using evidence gathered during intelligence gathering in their criminal investigations without additional safeguards.

The second sentence is simply wrong about the number of Americans surveilled, and again, can be easily checked against the original reporting on the program: The NSA was listening in on 500 Americans at any given time, which over the course of several years almost certainly means many, many more than that in total.

It is hard to believe that a reporter for a libertarian magazine would credit NYT anonymous sources for nearly anything. In any case, the cited NYT article does not claim that 500 Americans were targeted, but rather this oblique paragraph implies that up to 500 Americans are incidentally surveilled when captured al Qaeda numbers are monitored. What is not said here is that minimization procedures are in place to stop the monitoring of the captured numbers once it is plain that US persons are using the numbers. NSA made a very large deal about giving members of the Intelligence Committees tours to show off their minimization procedures.

Continetti: Nor was it at all clear whether or not FISA superseded the president’s plenary, constitutional authority to “protect and defend” the United States from attack. No court has ever said so.

Sanchez: First, Matt has apparently mistaken the language of the oath of office for an affirmative grant of authority—of plenary authority no less.

Score one for Sanchez. The President's plenary authority to direct foreign intelligence gathering is derived from his executive and CiC powers and the lack of the same in Articles I and III for Congress and the Judiciary. The rest of Sanchez' comments on this quote are red herrings and I am running out of time before I need to get to court.

Continetti: At issue is the so-called “retroactive immunity.” The House Democratic leadership doesn’t like it. Most of their arguments against retroactive immunity aren’t any more sophisticated than Senator Edward Kennedy’s disgusting assertion that President Bush is “willing to let Americans die to protect the phone companies.” But the crux of the anti-immunity Democrats’ argument seems to be that because the original Terrorist Surveillance Program was “illegal” and the phone companies were complicit in its “illegality,” they therefore should be liable for damages resulting from such “illegal” invasions of privacy.

If the program was not illegal, or even if it was but the telecoms had a good faith belief that it was lawful, then there is no need for immunity: The courts will quickly establish as much, and they won’t be liable for any damages.

LMAO!!! These harassment suits have been before the Courts running up attorneys fees for YEARS now and they are still arguing about standing!

If any Democratic legislators have asserted, not only that the ACLU should have its day in court, but that the telecoms actually owe damages, then I haven’t heard it.

THAT is precisely the point!!! The Dems do not allege that the telecoms did anything wrong. They are defending harassment suits for no reason which they can state.

Sanchez' "rebuttal" is about as weak as that of the House leadership blocking a vote on the bill.
 

Mark:

Computer mining of public and semi public transaction data raises a whole new kettle of worms which has not been dealt with by the courts.

Do folks have a reasonable expectation of privacy in their transactions with public businesses and on the internet which are protected by the 4th Amendment?

If so, when and where?

If the 4th Amendment reaches certain types of transactions with public businesses and on the internet, does it still apply for intelligence gathering against agents of foreign groups?

When a computer is data mining, are safety measures like restricting searches to jihadi terms enough to make it constitutional foreign intelligence gathering rather than unconstitutional 4th Amedment searches?

I am not particularly worried about the TSP. However, the Intelligence Committees need to keep a sharp eye on the data mining.
 

"Lawful" is one of those words with flexible meaning.
.
Most readers immput "in accord with statutory presecritions and proscriptions," but the administration is appying a different standard.
.
The administration is sserting, without putting facts on the table, that it's activity is wholly within the realm of an Article II power, ergo, it is constitutional, ergo it is "lawful."
 

"Strawman. No one is talking about spying on US persons."

Actually, that is precisely the discussion that is occurring. Just as "The Dems do not allege that the telecoms did anything wrong. They are defending harassment suits for no reason which they can state" (granting this for argument's sake only), no one is suggesting that foreign to foreign communications require a warrant.

You want to ignore the domestic angle without offering any credible argument as to why we should. Even when you suggest that US citizens were "incidentally" surveilled (sure).
 

TPMMuckraker points to a WSJ article:

"NSA’s Domestic Spying Grows
As Agency Sweeps Up Data

Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans’ privacy, even after the Sept. 11 terrorist attacks.

But the data-sifting effort didn’t disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system…

~snip~

…According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called “transactional” data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA’s own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge’s approval when a link to al Qaeda is suspected…

~snip~

…Current and former intelligence officials say telecom companies’ concern comes chiefly because they are giving the government unlimited access to a copy of the flow of communications, through a network of switches at U.S. telecommunications hubs that duplicate all the data running through it. It isn’t clear whether the government or telecom companies control the switches, but companies process some of the data for the NSA, the current and former officials say…

~snip~

…Two current officials also said the NSA’s current combination of programs now largely mirrors the former TIA project. But the NSA offers less privacy protection. TIA developers researched ways to limit the use of the system for broad searches of individuals’ data, such as requiring intelligence officers to get leads from other sources first. The NSA effort lacks those controls, as well as controls that it developed in the 1990s for an earlier data-sweeping attempt…

~snip~

…Gen. Hayden, the former NSA chief and now Central Intelligence Agency director, in January 2006 publicly defended the activities of the Terrorist Surveillance Program after it was disclosed by the New York Times. He said it was “not a driftnet over Lackawanna or Fremont or Dearborn, grabbing all communications and then sifting them out.” Rather, he said, it was carefully targeted at terrorists. However, some intelligence officials now say the broader NSA effort amounts to a driftnet. A portion of the activity, the NSA’s access to domestic phone records, was disclosed by a USA Today article in 2006…

~snip~

…It isn’t known how many Americans’ data have been swept into the NSA’s systems. The Treasury, for instance, built its database “to look at all the world’s financial transactions” and gave the NSA access to it about 15 years ago, said a former NSA official. The data include domestic and international money flows between bank accounts and credit-card information, according to current and former intelligence officials…"

And all of our guesses/speculations/paranoid imaginings are correct!

And pssst...Bart, the strawmen are real, and they are spying on US citizens...including you!
 

I believe a large part of the push by Bush for immunity is, as many have stated, to cover HIS ass as much as his corporate best buddies in the criminal telecoms. One of the big problems was just reported in the WSJ and flashed up at places like Rawstory: the NSA has broadened domestic surveillance to suck up ALL information on text messages, emails, cell phone calls, landline calls. All of it a direct violation of not only the 4th Amendment but also numerous laws. One of the laws was passed not too long ago that disbanded the TIA monstrosity. What did Bush/Cheney do? Continued the TIA in another form. The NSA is guilty (and needs to be reamed out and the lot of people there from McConnell on down FIRED and tried and jailed), Bush/Cheney is guilty, and the telecoms are guilty of felonies.

The TIA was killed but the NSA decided that they wanted to do it anyway, screw the law, screw the very clear text of the Constitution (and Bill of Rights). This is also the impetus behind McConnell's idiotic and unacceptable push for the American people to redefine "privacy" to mean NO privacy.
 

We have a traitor in our midst:

It appears that there is a blanket warrant to spy on named terrorist groups. All the enemy has to do is invent a new cover name like Suicide Bombers R Us and they fall outside this warrant.

One of those in our ranks is of the opinion that he should alert his friends in al Ka-heeda as to how to evade our surveillance techniques with some fiendish and dastardly diversion techniques. If this isn't "giving aid and comfort to our enemies", I don't know what would be.....

Cheers,
 

mad dogs:

Privacy purists are wasting their time jousting with the TSP. The TSP is a small beans program involving a few thousand captured enemy telephone numbers in what is pretty standard wiretapping with some fancy filters. There is no evidence of abuse here and little chance of a significant threat to privacy.

Where the really interesting issues arise is in data mining our new information super highway on which hundreds of millions of us are surfing around communicating and doing business. The potential for good and bad here is enormous. When Professor Balkin speaks of a "national surveillance state," this is what he is or should be talking about.

The classical balance between state interest and privacy interest takes very new forms here.

When we freely and unthinkingly volunteer large amounts of information about ourselves in what is actually a very public forum open to nearly everyone, is there a reasonable expectation of privacy?

There is no traditional geography in this virtual world. Does the 4th Amendment travel with you as you send your information around the world?

If we wish to create enclaves of privacy in this information super highway, we will need to balance that desire with the incredible intelligence tool data mining offers. For example, the closed down Pentagon program to which the article refers was Operation Able Danger. In this operation, a small band of military intel folks gathered publicly available information from the internet and developed protocols for finding terrorists when they interacted with the internet grid. Although this is disputed by the bureaucrats who shut down the program for "privacy concerns," the Able Danger officers insist they identified the Atta cell before 9/11.

This is the stuff of science fiction on shows like "24" come to real life. And that was a decade of technological advances ago.

On the debit side, a Nixon or a Clinton could abuse the data mining tool to dig up dirt on the opposition or to attain other unsavory objectives we can't even dream of right now.

This is the area on which the Intelligence Committees need to keep very close tabs and start thinking about how they may want to regulate data mining to minimize intrusion on legitimate 4th Amendment interests of the Citizenry while allowing the most latitude for foreign intelligence gathering.

It would be far better to take a proactive position now than to allow some scandal to arise and overreact by unconstitutionally attempting to hamstring the national defense as Congress did with FISA.
 

Speaking of myths: "The TSP is a small beans program involving a few thousand captured enemy telephone numbers"

I call BS. There is no indication that anybody here knows the extent of the NSA's eavesdropping, and the WSJ article indicates a vastly more comprehensive program.

If we're going to stray from the post topic, at least let us not start making crap up.

If, as the authoritarians drool in anticipation of, we are heading toward a surveillance state, we are going to need structures and limitations in place that far outstrip FISA in limiting the capability for having this done in secret, or its capacity for misuse will be enormous.
 

It makes perfect sense to conclude that the FBI Director and Asst. AG threatened to resign over an evidentiary question in cases that aren't ever prosecuted. I mean, who wouldn't?
 

THIS IS EXCELLENT NEWS!! FOR HILLARY!!!
 

Privacy purists are wasting their time jousting with the TSP. The TSP is a small beans program involving a few thousand captured enemy telephone numbers in what is pretty standard wiretapping with some fancy filters.

As Bart would put it ::sigh::. The fact is that none of us, including Bart, actually know what the TSP is. The whole point of the suits (against either the Administration or the telecoms) is to find out just what really happened (and is happening).
 

The problem is that the American people in the late 1970s, through their representatives in both houses of Congress, made the deliberate and conscious decision to NOT entrust the government with the unlimited power to go snooping through our private communications.
When the American people through their representatives in Congress were faced with the same choice in 2002, they consciously and deliberately chose NOT to allow Poindexter's plans to vacuum up all of our private data to go through.
The lawbreaker-in-chief decided to toss out our decisions in both cases.
 

Heh! The question is "How much can we trust the government to surveil only what they're supposed to and not to go overboard?" Daily Kos tells us how informed Michael Chertoff is on his own agency's actions.

Chertoff: I’m not — but you see, you’re assuming stuff you’ve read in the paper.

Me: I’m not. I’m asking you for information.

Chertoff: I’m telling you I have received — we get information from the intelligence community. It can be collected from a variety of sources. I don’t know which program it comes under. I don’t know whether it’s got a warrant or doesn’t have a warrant. I don’t know whether it’s collected — I mean, as soon as I can contextually tell where it’s collected or not collected.

So I don’t know if it’s under this program or that program. None of that is known to me. All I know is, incorporated in the massive intelligence we get is all these different streams of intelligence, which help us decide whether we need to do something to protect the country or not.

I can’t verify your assumptions concerning whether something was under this program or that program. I have no basis to accept your characterization of harvesting, which doesn’t strike me as having any legal significance...

How the $%#@& are we supposed to trust ANYTHING these guys say?!?!?.
 

c2h50h:

BD: "The TSP is a small beans program involving a few thousand captured enemy telephone numbers"

I call BS. There is no indication that anybody here knows the extent of the NSA's eavesdropping, and the WSJ article indicates a vastly more comprehensive program.

The opponents of the TSP which provided the sources for the NYT disclosure to al Qaeda say 7000 numbers were targeted. Given the position of the sources, if there was an error, it was that the number of targets was exaggerated.

There is also a physical limitation at work here. NSA simply does not have the personnel to be listening in on even a microscopic fraction of US telecommunications.

Finally, the WSJ article is not talking about the TSP. The NSA is hardly limited to the TSP and hopefully has a program or two which is not disclosed to the enemy on some headline or another.

jo jo said...

It makes perfect sense to conclude that the FBI Director and Asst. AG threatened to resign over an evidentiary question in cases that aren't ever prosecuted. I mean, who wouldn't?

The job of DOJ is criminal prosecution. It is very likely that they would make a high stink over issues which they believed would compromise prosecutions of high profile cases. Its their asses if a terrorist goes free in a civilian criminal prosecution.
 

SHAG FROM BROOKLINE SAYS:

I'm reading Seth F. Kreimer's recent Lewis & Clark Law Review article titled "Rays of Sunshine in a Shadow 'War': FOIA, the Abuses of Anti-terrism, and the Strategy of Transparency" that is available at SSRN or by "googling" the title. This is an eye opener. Let's all sing: "You are my sunshine" as we honor both the letter and the spirit of the Constitution and its Amendments to shine some light on Cheney's "dark side" of the "War on Terror."
 

SHAG FROM BROOKLINE SAYS:

I just finished reading Prof. Kreimer's article. I could not be prouder of the ACLU, its attorneys and other attorneys who joined in FOIA and other legal proceedings to gain access to documents revealing the actions of George W's Administration. (I became a proud card carrying ACLU member back in 1988 at the "urging" of George H. W. Bush when he "accused" Mike Dukakis of being such a card carrying member.) Marty Lederman is noted in several footnotes for some of his Balkinization posts on related subjects. The extensive footnotes disclose much information from the documents that the Administration was forced to release. The battle continues, with the Administration still reluctant to honor the spirit, if not the letter, of the Constitution and its Amendments. More transparency is required. As for the Administration's protective ranters (you know who you are), their motives are quite transparent.
 

shag:

Prof. Kreimer's puff piece celebrating the felons leaking classified intelligence to the enemy and the ACLU attempting to do so through the courts was unintentionally tragicomic.

Let us start with the comedy...

Kreimer's thesis is that disclosing classified information to the public and the enemy somehow curbed policies which he deems "executive overreach."

However, the ACLU usually lost in the courts establishing contrary precedent.

Moreover, the felon leakers ended up disclosing that Congress was in on the "executive overreach." Once the enemy knew about these programs, Congress usually ratified them in public law.

In short, these leaks and disclosures ended up establishing the policies which the felon leakers and ACLU sought to stop.

The tragedy is that these felon leakers, and the ACLU if the courts would allow them, gave detailed descriptions of our intelligence gathering to the enemy.

If an al Qaeda spy did the same thing, we could and should execute him. However, in our law reviews, supposedly dedicated to the rule of law, such criminality is celebrated.

Wonderful.
 

["Bart" DePalma]: The tragedy is that these felon leakers, and the ACLU if the courts would allow them, gave detailed descriptions of our intelligence gathering to the enemy.

If an al Qaeda spy did the same thing, we could and should execute him.

And what should we do with people who leak handy tips like this?:

"It appears that there is a blanket warrant to spy on named terrorist groups. All the enemy has to do is invent a new cover name like Suicide Bombers R Us and they fall outside this warrant."

Cheers,
 

SHAG FROM BROOKLINE SAYS:

Alas, a huffin' & a puffin' response by one who probably did not read what he alleges is a "puff piece." Reading those 80 pages with extensive footnotes must have kept him from maintaining his bloggable hours. Keep on a huffin' and a puffin' and blow the house down. He needs to put a shine on his "Red, White and Blue Surge Suit."
 

Bart,

Thanks very much for your reassurances, based as they no doubt are, on personal knowledge, that the NSA doesn't have the personnel to listen in on many conversations. So this means that, since the available bank robbers cannot victimize more than a tiny fraction of the banks on any given day, we can just ignore the problem of bank robbery.

Of course, my own personal knowledge and experience with automated phone services, one of which I spent a lot of time with recently, and which recognized a remarkable number of keywords, means that your claim means exactly nothing if the NSA is allowed access to the data streams.

I'm sure this will stimulate the sophistry in your soul to now change the subject, or conflate some other programs so as to confuse the fact that the NSA is, apparently, illegally surveilling Americans in the USA.
 

The tragedy is that these felon leakers, and the ACLU if the courts would allow them, gave detailed descriptions of our intelligence gathering to the enemy.

Y'know, pardon me if I don't share Bart's enthusiasm for rigorously enforcing all laws, no matter what the consequences to American society, but what exact harm was done to our intelligence-gathering efforts by all of the revelations from December 2005 onwards?
The bad guys obviously knew that the NSA was keeping tabs on them. Warrants to tap the phones of suspicious characters were a closely-held secret between the intel agencies and the FISA Court. What exactly did al Qaeda learn that wasn't already obvious?
 

Rich, don't try to apply logic to Baghdad Bart's posts. You will only get a headache.
 

Rich:

The fact that the TSP was successful in surveilling al Qaeda indicates that the enemy did not know they were being surveilled.

When the enemy knows the general means and methods of how you are intercepting their communications, the real communications go black and the enemy feeds you misinformation.

Imagine if some Republican bureaucrat in the War Department leaked the basic means and methods of the ENIGMA program intercepting and decoding the German telecommunications in order to get at FDR and a GOP leaning paper ran it on their front page.

Even if they did not fully understand how the US and UK were intercepting their communications, the Germans would have stopped the important compromised communications and continued the mundane communications mixed with disinformation.

This is more basic than Intelligence 101. This is simple common sense. You have to engage in willful ignorance or outright malice toward the country to engage in or excuse this behavior.
 

The fact that the TSP was successful in surveilling al Qaeda indicates that the enemy did not know they were being surveilled.

They know we are trying to listen to their communications, you imbecile. That is not a state secret.
 

I do not believe that it is an established fact that the TSP was successful in obtaining any information about AQ.

Does anyone imagine that AQ ever doubted that the US would wiretap and eavesdrop on them without regard to law. Only Americans would have expected their government to follow legal procedures and get warrants.
 

Bin Laden was using a satellite phone, he discovered that the US was intercepting it and had decrypted his communications, so he stopped using.
But there's never been any special technology connected with Bush's warrantless surveillance. Bush was grabbing far more information than he was legally entitled to grab, not because he was using any new technology, but because he wasn't getting warrants for doing it.
The only people that were hurt by Bush's illegal actions were Americans. Al Qaeda was neither here nor there. Doesn't seem to me they were hurt by warrantless surveillance and I can't see how it benefited them to learn of it.
 

Would someone please explain to me exactly how an amnesty for past alleged illegal activity would improve the telecoms' willingness to legally cooperate with the government in the future? Anyone? Anyone? Bueller?