Monday, December 19, 2005

Following on to the NSA leak

This may not be as coherent a post as the last one on the NSA case — which is kind of frightening in itself. But there's been a lot of discussion and I want to capture everything in one place again, plus we've accumulated over 400 comments on the previous post, so I want to close it off for performance reasons.

Operational Reasons for Avoiding the FISA Process

On this topic, I'll note that I've got about 20 years of experience in computer security, DoD classified stuff, and in particular, spent a number of years doing operational intelligence collection and analysis systems. So, absent soemone with a current clearance and active knowledge of this operation, I think I'm fairly well informed.

And, of course, anyone who actually has real operational knowledge shouldn't be talking about it anyway. (But more on that later.)

One of the questions that has been raised is "why do they need to act so quickly"? So, let's just discuss that for a minute.

Let's say, for purposes of illustration, that a known or suspected al Qaeda member, Alice, is captured in Pakistan. ("Alice", in this case, might be Khalid Sheikh Mohammed for a concrete example.) At the time of capture, Alice has a laptop computer with a number of phone numbers, email addresses, and possibly some IP addresses either stored in user files, or in some logging data. One of these phone number is a "disposable" cell phone belonging to Ben in the USA. Ben is a legal permanent resident of the US and therefore might otherwise be considered a "US person."

It is the nature of this kind of network that once a node is known to be compromised, all connections to that node are dropped. Ben would put the cell phone in the trash or give it to a rape crisis center or whatever. So the various intelligence agencies --- this lies somewhere in both the domain of CIA and NSA --- know there is a very small time, in the order of hours, to exploit this intelligence before it goes stale. They need to intercept communications. (It might even be as simple as holding the phone up to Alice's mouth when a call comes in.)

Now, assume they feel they need FISA authorization before they can do so. How likely is it that FISA authorization can be obtained in a sufficiently short time? Operationally, you need to be able to act in minutes, not hours, to exploit this intelligence; we have the former DIRNSA's statement that this has led to collecting intelligence they wouldn't otherwise have had.

Aside: As an intelligence guy, by the way, this disclosure does bother me quite a bit. What it's done it put on notice everyone from whom intelligence is currently being collected that we're doing the collection. They probably stopped. As the president said in his press conference today, we've had that experience before, with the bin Laden satphone intercepts. Which, by the way, were blown by Orrin Hatch, so he's picked an example out of his own party. It's also notified al Qaeda et al that in the future, they have a much shorter window before a captured channel could be exploited; they will probably change their procedures as a result. At least I sure as hell would. Personally, I'd think the Attorney General should be thinking about prosecution under 18 USC 793, not 50 USC 1801 et seq. But not prosecuting the Administration.

Legal Arguments

Legally, and now recall I'm not a lawyer, just a logician, but I note that §1801(a) defines who a "foreign power" is, and §1801(b) defines who an agent of a foreign power is. As I understand it, once you're defined to be an "agent of a foreign power" you no longer enjoy all the protections of a "US person." Since 1801(b) specifically includes people engaged in or supporting international terrorism, seems there would be an argument that the Attorney General could authorize surveillance and intercept on that basis using the procedures in §1802 et seq.

Now, this analysis seems to pretty much depend on whether or not a person engaged in international terrorism loses some of the protections of being a "US person". It seems to me from the standpoint of logic that if you're excluded from the class of "US persons" in §1801(a-b), then you lose the protections accorded a "US person" in §1802.

Annoyingly, however, §1802 also says you can only conduct warrantless searches on people defined under §1801(a)(1-3), which leaves out the "terrorism" parts. On the other hand, it may be that al Qaeda is a "foreign power" under §1801(a)(1-3), which would appear to make someone who is an "agent" of al Qaeda fit the definition of someone who is an agent of a foreign power. Then §1801(e) comes in and makes this "foreign intelligence information." So, if I were a lawyer, I think I might very well want to argue that it all adds up to suggest that the "US person" restriction doesn't apply, at least as far s collection goes.

It would also appear that, from that USA v bin Laden decision, the District Court specifically appears to give some strength to that argument, but then excludes evidence collected under such an exception from the trial. This seems, to my untutored legal mind, to make good sense --- and operationally, it's fine with me, because I don't want to try these people, I want to track down their superiors and cells and kill them. We can try the survivors; this is a war.

But, it also appears that this has been a question before --- the events in USA v bin Laden happened in 1997. US Signals intelligence Directive 18 lays out the procedure and seems to very closely match what was described in Bush's statement. (See sections 4 and 5.) This directive dates from 1993. It's been widely reported that there was a program called ECHELON that did collect intelligence throughout the 90's. And I've seen it reported that the Carter administration made a similar executive order in 1979.

So, again, I am not a lawyer --- but it seems like there's some precedent here.

Now, if we look a little more closely at §1802, I'll note that the title of the section is "Electronic surveillance authorization without court order." The whole section lays out the circumstances under which intelligence intercepts can be performed without a court order.

The fact that this section exists makes it clear the law does contemplate the possibility of doing intercepts without a court order (warrant). What's more, the code lays out two different procedures under which it can be done: first, under §1805, you can do it and apply later (within 72 hours, see §1805(f)); or, second, according to §1802, if you're not concerned with "US persons" under §1801 then you can collect without a warrant, and all you must do is file with the FISA court, under seal, a notice that you've done so, plus inform the Congress.

We know that the Attorney General certified this as needed; we know the Congress has been briefed; the actual certification would be classified, but I just don't see any reason to think the certification hasn't been filed.

Practically, it appears we've got a situation in which (a) the Administration received competent legal advice that it was permissible; (b) they followed the procedures laid out in the statute and USSID 18; and (c) that it is something that has been done in previous administrations, and if we have to be partisan about it, by administrations of both parties.

Given all of these things, I suspect that there's at the very least a pretty strong "good faith" issue here, ie, that the Administration could in all good faith believe it to have been legal.

Other People's Arguments

James Robbins more or less repeats my arguments about 1801, 1802, and so on.

I argued below that I thought the President, in his radio address, was more or less following that same argument. I still think so, but today in his press conference, he laid out an argument based on presidental powers under the Constitution; so did the AG. Hugh Hewitt lays that out. I usually find Hewitt a little too polemical, but he is an attorney, and his argument seems to match the one the AG used.

Byron York makes some pragmatic arguments.

Orin Kerr did a long post on it at Volokh; he addresses the §1801 issue, and argues:

So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.

But then, when I look at this "USA v bin Laden" case, the District Court says

"this Court adopts the foreign intelligence exception to the warrent requirement for searches targeting foreign powers (or their agents.)"

It goes on to say:

The Court is also persuaded that al Qaeda was properly considered a foreign power. In reaching this conclusion, the Court relies on the definitions of "foreign power" and "agent of a foreign power" which were incorporated by Congress in FISA See 50 USC 1801(a)-(b).

They then go on to say that the collection of intercepts under the "USA v bin Laden" case was unlawful, but specifically because the Government didn't get the authorization of the President or AG. It follows logically that if they had the President's authorization, the possibility exists at least that it would have been lawful. (I think if I were playing an advocate I'd argue that more strongly, but I don't think it follows by syllogism.)

In any case, it seems to me that the District Court doesn't agree with Prof. Kerr. One of the attornies that hang around here might weigh in on this.


  • A former Air Force intelligence officer, Emily Francona, says:
    Whether the President acted under proper executive authority will undoubtedly be determined during hearings of the Senate Judiciary Committee. But he did follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General.

    He also followed congressional oversight requirements by notifying the appropriate congressional committees in a timely manner. And it is customary for more sensitive activities to be briefed only to a limited number of senior oversight committee members to avoid leaks of classified national security information. Our current system of checks & balances does not require congressional oversight committees to approve intelligence activities in advance, only that they be notified of significant activities in a timely manner.

    Perhaps the most improtant aspect of this debate is whether we, the people, are comfortable with executive powers being invoked in certain circumstances to protect the nation: I would argue that under certain national security related circumstances it is necessary to trust the President of the U.S. to do the right thing - we elected him to conduct the people's business to the best of his ability.

  • Interestingly enough, 50 USC 1811 broadens the President's powers after a declaration of war. But we're not at war, you say?

    Well, Joe Biden disagrees:
    M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

    JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.

  • Interesting quote:
    "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

    "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
    (See Byron York today.)

  • Via The American Thinker today, I learn of this executive order authorizing the Attorney General to conduct warrantless searches for foreign intelligence information under 50 USC 1801 et seq. Who was the executive? Jimmy Carter.


Morgan said...

...recall I'm not a lawyer, just a logician...

If only logicians wrote the law.

Great job StY; I appreciate the clean analysis. I admit that I tuned out of the entire discussion shortly after it began, because the various "analyses" around weren't really analyses at all, they were advocacy (I had read many of the same comments quoted by Syl downstream, as well as some similarly partisan rebuttals).

If your "Alice" example is a fair explanation of what's going on here, it looks to me like this is a case in which the law clearly ought to allow warrantless collection, under the presumption that the law ought to serve the people of the country instituting the law. Put the law to a vote, as it were, and one that allowed this would pass.

Unfortunately, the law was written by people who thrive on ambiguity - mostly lawyers (for whom it is bread and butter) cum politicians (for whom it is an occupational necessity) - so there is some question whether the actions taken by the government actually were legal, regardless of the fact that only a fool would argue that they shouldn't be. Not that there is any shortage of fools in this world.

I don't thrive on ambiguity. Uncertainty, risk, probability - no problem. Ambiguity - ugh.

Charlie Martin said...

I read a paper some years ago on an attempt to turn a law in the UK into a Prolog program --- yeah, here it is: The British Nationality Act as a logic program. I don't recall the details, but I believe it turned out to be tough tough going.

What I've heard other people saying is that the warrantless intercepts were based on programs following social connection networks --- so that if Alice knows Ben, and Ben knows Charlie, Carrie, Cassie, and Carl, while Carl knows Donna, David, and Dwight (and so on) they might watch for calls within that network. We know that the DoD and the intelligence community have been exploting Social network theory, but ... well, how do you get a warrant for watching connections in a large social network?

Morgan said...

Especially when the boundaries of any given network are liable to change based on the same information that causes you to want to get the warrant (the "Alice knows who?!" effect).

I'll have to find a copy of that article. It should be hilarious.

buddy larsen said...

I believe a 'social network' app is what caught Saddam. Field-applied, which is a joy to hear, and helps confirm a feeling that the brains in this war seem to be close to the front.

I'm with you on the deliberate ambiguity, Morgan. A clue is usually in the length of the document. More ink, more confusion.

Seneca, your work on this topic is simply great. I'm a little astounded at the quality, really. You should run for office.

Charlie Martin said...

Seneca, your work on this topic is simply great. I'm a little astounded at the quality, really. You should run for office.

Thank you, seriously. but what makes you think this would be qualification for running for office?

buddy larsen said...

Clarity. Might just catch on.

Syl said...


I agree..excellent work on this. The legality, in the end, depends on interpretation of definition. Also note what the SC said about Hamdi who is a US citizen. Details of which elude me now (sigh--age is a bitch) but I think it might be applicable--somehow.

Doug said...

Here is link to Hewitt on Hamdi:
Here's Hewitt on SCOTUS opinion in Hamdi.
(info at the link above, below is Hugh's intro, and my snip, below)

Much more important than Feingold's admission against interest, though, is the SCOTUS opinion in Hamdi, which displays the sort of analysis of AUMF that appears to be part of the Administration's reasoning on this point:

"A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States,"

Doug said...

The very same Russ Feingold who is now bloviating about Bush's lack of authority, just a few short years ago:

Feingold on September 14, 2001:

Like any legislation, this resolution is not perfect.
I have some concern that readers may misinterpret the preamble language that the President has authority under the Constitution to take action to deter and prevent acts of international terrorism as a new grant of power; rather it is merely a statement that the President has existing constitutional powers.
I am gratified that in the body of this resolution, it does not contain a broad grant of powers, but is appropriately limited to those entities involved in the attacks that occurred on September 11.
And I am particularly gratified that this resolution explicitly abides by and invokes the War Powers Resolution.

Syl said...

Tap me Tap me

Oh Tap me Please!

I want to be tap tap tappity tapped!

To the tune of NSA Songs My Mother Taught me!

USA USA you are mine I am yours.

I have not a life to give

But my voice is freely offered.

Tap me Tap me Tap me

Tap me please!

Unknown said...

I saw Brit Hume last night and listened to the panel.

I realize that Fred Barnes, Mort Kondracke and Charles Krauthammer will be considered shills by most liberals..but they made a point: this is a winner for the administration. The arcane legal arguments are secondary to a lot of people.

Charles said that even if the legal questions are murky or confusing people do want to know that the government is doing everthing it can to protect them.

It seems that Democrats only get outraged when some poor unfortunate terrorist or terrorist contact is being inconvenienced in some way. Bombs, shmombs where is the warrant.

This does not inspire confidence, in fact it makes them look reactionary and more than a little stupid. Now of course they are saying Bush did not get their permission..Puhleaze....

Just a few days the 9/11 Commission reared its ugly old head again to tell us goverment is not doing enough to fight terrorist attacks in the US and now it seems Reid and Feingold think it is doing too much.

Syl made a point that applies as well: what happens if a Democratic president needs to do something like this someday? It is not only Bush's hands they are tying, they could be creating a loophole for terrorist that any future president would have to deal with.

I think this is one reason AlQaida target people in prisons. They might be criminals, but they are American citizens and that citizenship could be very useful to AlQaida in terms of protection from scrutiny.

ex-democrat said...
This comment has been removed by a blog administrator.
ex-democrat said...

"markg8" -

"There can be an argument made that we are fighting three if you seperate the broader int'l. WOT from the war in Afghanistan against the Taliban."

What do YOU believe?

In addition, do you believe this president should have less wartime power than previous presidents and, if so, why?

Luther said...

A simple lesson I learned while in the Marines. Always prepare for the worst possible scenario. Plan and act accordingly. On several occasions that was life saving knowledge.

The nuances of Bush's actions can apparently can be parsed to infinity. He feels right and legal in his actions, some others feel otherwise. But, bottom line, he is doing what he feels necessary to protect and defend the United States from the actions of those who would, if able, destroy this nation.

If there is to be error in the defense of this country I would prefer that such error be on the side of preparing and attempting to protect for the 'worst case' as I mentioned above.

Believe it or not, it pains me to say this. But the Dem's and MSM have lost all credibility in my eyes. I do not TRUST them. They show everyday in every way that they are more concerned with their hatred of GWB than they are with helping protect this country. And I am not saying there is no room for a loyal opposition. But I would emphasize the "loyal" in that sentence. The Dem's and MSM's loyalty appears to be predicated on other agenda's. Agenda's, which to me, do not appear to be in the best interest of this country.

So, short answer Mark, yes I do trust him in that he will do his best to protect this country. I would trust no one on your side of the aisle with that responsibility.

Charlie Martin said...

First of all I see no one asking "why do they need to act so quickly?". .... I don't know anyone who says we're not at war.

The only way I can explain that is if you're reading nothing else but what I've posted. I appreciate the vote of confidence, but the reason I keep posting these links is so people can read more fully.

Thanks for the Greenwald link, I'd forgotten it. however, Mzark, that's not a Supreme Court opinion you're talking about; and I addressed his point in the tenth paragraph (the one that starts "annoyingly").

As to the "new tech" business, I don't know of anyone except Bob Graham that's said anything about new tech, and that in a statement that seems to come down to "I thought they were saying they had new technology; I never thought they meant they were going to use it." Personally, I don't see any need for new tech necessarily, but having thought about it, I wonder if the "social network" approach might not be involved. In fact, I think I'll do a separate post on that later today.


Mark, you've really fallen into a sort of a frustrating pattern: you dno't actually read what I say, and as far as I can tell, you don't actually contribute any additional thought. While you're not exactly doing a cut and paste, it's the next best thing --- you're parroting.

You seem to be reasonably intelligent and fairly articulate --- why don't you try thinking about it yourself?

Luther said...

"You trust him implicitly"

Don't read more than is there into by statement. I said I trust him to do his best to protect this country. You, OTOH, seem to be worried about a VRWC that is setting the stage for a coming takeover by the hob nailed boots of the fascists Repub's. Which worry do you think I take more seriously?

As well, you seem to be missing the point of my post, which was that I want aggressive action in the planning and/or protection of this country. Should errors occur, I prefer they be on the side of caution. That is simply it.

buddy larsen said...

Relentless point-misser Mark, Americans EXPECTED a new capability, to match that of the enemy's. There was DEATH in that stagecoach. You're like a failed suicide that wakes up pissed off at the medical staff for pumping your stomach.

buddy larsen said...

As I tried to tell you earlier, you've razored this down to what it is going to have to be for you BDSers--a question of politics. So, we'll see how your dudgeon does in the voting booth, won't we?

Doug said...

I love this one from Belmont poster,
Kerry said...
If Al Queda attacks the New York Times,
slicing through the masthead,
is it too much to hope that Salzberger et. al. will go down with the presses?
Although the AlienNation Media already is aflame, faster please.
Burn to the waterline!!

Down with the Presses, Indeed!

Doug said...

(Wretchards piece related a sub crew that made a final trip to the bottom rather than reveal secrets)

Doug said...

Buddy, I know still don't "BDS" is.

buddy larsen said...


Doug said...

So when do we apply the Double Standard practice to a BDS sufferer?

buddy larsen said...

It became 'clinical' after the 2004 election; there are specialists now practicing actual clinical treatments, involving drugs, even. A form of depression/anxiety--a mood disorder, rather than a classic mental illness. Not a surprising development, really, considering that it affects those whose politics are mood-based to begin with, and who expected through the 90s to 'win' the 'culture war'.

buddy larsen said...

Mark doesn't really 'have' BDS--he represents it, 'fronts' those who do. Think 'ambulance-chaser'.

buddy larsen said...

Clinton was a little boy who made the now-current BDSers feel 'adult'. Now comes an adult president, and these folks now feel like they've been sent back home to live under Daddy's Thumb. Their entire struggle for adulthood has been negated. It doesn't matter whether Daddy is a 'good' daddy or not--he's 'daddy', and he's 'in the way'. Yes, the central problem is weak identity, and the concomitant need for the externally-derived self-image to 'feel good'. it's why Bush policies don't matter at all, because as one of the strong-identity people, he's rigid, inflexible, arrogant, fascist, patriarchal, ect, etc, blah blah blah.

buddy larsen said...

Foreign enemies LOVE the BDS personality in that it's easy to beat--but are a little wary in a special way as it is also the most likely to throw a hissy and push the red button.

flenser said...

Am I the only one who was amazed by that Rockefeller "I'm too stupid to know what I'm doing" letter?

And this clown sits on the Intelligence Oversight committee.

Doug said...

Buddy, 11:37 AM
That fits in with everything I've observed/experienced.
One difference from the past is that maladies that were once confined mostly to adolescent years now stretch on for a lifetime.

Doug said...

Seems like a good way to go from here tho,
Think of campaigns of the future:
On debate night, Ed McMahon will unseal dueling secret letters from the candidates.

Doug said...

Bigger Diggler said...

Now I have 26 files on my desk (earlier I had 20), all of which are warrantless searches and seizures, with absolutely no hope of any efficacious judicial review......ever.
(this is a slow day at this office, btw. I am one of 13 attorneys).

26 is significant, because that apparently is the number of warrantless searches (wiretaps) "personally" ordered by George Bush, and which won front page coverage by the NYT.
(BTW, NOBODY personally ordered all these 26 warrantless searches and seizures on my desk.....they just sort of....well......happened. which is the real reason why those Al Quaeda agents have the undying sympathies and loyalty of the NYT, and my clients receive no notice, ever, by anyone).

It just struck me that the net result of this weird inquisition by the New York Times is an extremely absurd irony. It is a result that stands all reason and morality on its head. It is this:

Al Quaeda agents, because of the publicity and political repercussions generated by this bizarre non-story, had, and will have, far GREATER protections against warrantless searches and seizures than ANYONE else in the United States!!!
A foreign agent, who is dead set on arranging the mass-murder of American civilians, will have a greater legal and political protection against a warrantless search and seizure than a petty criminal (who is a US Citizen) who is smoking a joint inside his own home!!!

chuck said...

I wonder if the "social network" approach might not be involved. In fact, I think I'll do a separate post on that later today.

Modern encryption is essentially unbreakable if used correctly. What's left? Analysis of communication patterns. I suspect most of us who thought about it came to the same conclusion. Certainly the professionals did.

On the other hand Al Qaeda in the past seems to have been rather careless, leaving unencrypted stuff on their disks and such. Thank G*d for that, but I don't think it will last.

buddy larsen said...

Whether Underground drop by and issue you your beret, did it, Mark?

buddy larsen said...

Your increasingly insane party has been a sore test already, for 5 years now.

chuck said...

To the rest of you I suggest you keep your wits about you and your senses of humor intact. Your tender sensibilities are going to be sorely tested in the months to come and you'll need them.

Oh, I've been aware that we are also at war with the totalitarian left for some time. I mean you, markg8, and the rest of the leftist crowd. It has to be fought, fights are never pretty, but so it goes. Back in the 60's I wondered who would be the biggest threat to this country in the future, the religious right or the nutcase left. I think the answer is now clear.

buddy larsen said...

!2:01 PM, December 20, 2005, all over the nation the Whether Underground begins to beat the drums.

!2:03 PM, it poops out and takes a nap, first promising "You'll Be Sorry, Someday!"

buddy larsen said...

Captain Mark Garrity, strutting back and forth addressing the literally dozens of assembled wheelchairs, screams "WD-40 or FIGHT!"

flenser said...

Once the modern-day Rosenbergs are sitting in the electric chair mark is likely to change his tune.

buddy larsen said...

Rosenbergs--do you mean the nice couple that NYTimes 'knew' to be innocent, until the wall-fallen KGB announced that, "no, truth is, we bought all SORTS of top-secrets off 'em!"...those Rosenbergs?

buddy larsen said...

Freedom House--ht to Brit Hume--"2005 has been the best year for freedom since FH began measuring in the 70s."

No wonder the Left is pissed off.

buddy larsen said...

First ze NYTimes, tomorrow ze VORLD!

buddy larsen said...

Mark, re your fixation on Roger Simon, if you'll remember, your tone over there was truly unpleasant and nasty, and depressingly dreary, and full of non-sequiters and, well, "lies". So, really, he didn't ban you, you banned yourself.

buddy larsen said...

Maybe the new plywood berets being shipped over from the Bay Area will hold up better, ya think, Peter?

buddy larsen said...

Peter, if you're a Dem, your 'personhood' is like totally not important, it's your color and/or religion, ethnic group, victim classification, etcetera that matter.

buddy larsen said...

Ah, must let the ripped-off New Orleanians know their property was put to some use.

Charlie Martin said...

Seneca it's a moot point anyway.

Nonsense. He's asserting the same exemption that Clinton did, but I'm arguing that he's in compliance anyway. This is called, in the law, "arguing in the alternative", I'm told.

Everything we know about it says he complied with the statute too, modulo the 1801(a)(4) question.

buddy larsen said...

Mark, your writing talent is undeniable. Rarely have I seen so much concentrated, well-triangulated bile in such a few short sentences.

Charlie Martin said...

Why don't you look into whether this is new tech or not? It's gonna come out anyway.

Mark, if I were to find out for certain it was new tech, I wouldn't talk about it; unlike some people apparently, I took that oath seriously. I'm not currently cleared, however; the notion that it could be new stuff, say based on social networking theory, is an interesting one that I intend to explore later today or tomorrow.

Which I actually said anyway, but thanks for the suggestion..

Charlie Martin said...

Modern encryption is essentially unbreakable if used correctly. What's left? Analysis of communication patterns. I suspect most of us who thought about it came to the same conclusion. Certainly the professionals did.

Um, well, yes and no --- note for example that SHA-1 was just cracked (complexity 2^63). There are certainly things thought to be unbreakable in the open literature that are less than unbreakable in fact. But you're certainly right that often traffic analysis is a very strong approach --- the last thing I did for SECNAV was looking at the bandwidth of traffic analysis in packet-switched networks.

buddy larsen said...

Mark--you ARE funny--yer 2:06--you should quit politics and write comedy--really, seriously.

Charlie Martin said...

Mark, thanks for the link; it was mostly good for a laugh (come on people, figure out what the cost of storing 32 million seconds times the number of active phone connections a year PLUS every IP packet would be) but the notion they might do some traffic analysis on limited sets of text, say from known email addresses, is an interesting one.

Syl said...

Modern encryption is essentially unbreakable if used correctly. What's left? Analysis of communication patterns.

You know what scares the sh&t out of me? That the BIG secret Bush is protecting is that we are NOT listening in on conversations. That we're only getting the patterns.

Do the egotistical screaming bastards of the Left want al Qaeda to know THAT?

Their usualy hysteria is going to have dire consequences, to put it mildly.

Charlie Martin said...

Seneca, I think you're wrong about the 1801(a)(4) question. But either way it's too late, Bush has already tossed that defense aside and pretty much dared congress to do anything about it.

mark, you know, it'd be easier to not get annoyed with you if you showed any evidence of reading and comprehending what I said. Let's take it again: even if Bush is asserting the Gorelick argument used by the Clinton administration --- that is, the assertion of Executive power that can't be regulated by the legislative branch --- that doesn't mean the 1801(a)(1-3) argument wouldn't work. Since USA v bin Laden accepted that argument for the Clinton administration, I think there's every reason to think the Supremes might. And just because Bush doesn't make that argument in speeches, for whatever reason, doesn't mean it couldn't be another argument later.

buddy larsen said...

LOL, mark--really very good. Too bad you found that nasty surprise waiting for you at the pre-production meeting.

Unknown said...

instapundithas an interesting post on the Clinton administration and warrantless searches. It seems that several presidents have used this kind of authority to a greater or lesser extent, but until the guy in the White House was Bush the NYT did not give a rat's ass. Or not enough to make a big deal out of it.

same old double standard.

Charlie Martin said...

Seneca it's not the Supremes that decide this, it's Congress. They act as judge and jury. How do you see it going to the Supremes?

Mark, it's not going to impeachment. I kind of hope it would, because that would be the end of the line for the Democrat Party, but it isn't. After Clinton, the notion that a president could be impeached and convicted for the difference between paragraph (1-3) and paragraph (4), with the state of the law and the fact that it would mean that every president since 1978 had committed impeachable offenses, just ain't happening.

Similarly, the AG is no way going to attempt a criminal prosecution on that basis.

What might happen, if someone is silly enough to press it, is that Feingold or someone else on the leftward fringe might attempt a civil action in behalf of unnamed persons as a class, who might have been US persons and been intercepted. That might, in a feverish enough environment, eventually get to the Supreme Court.

buddy larsen said...

Peter, that can't be 'our' MarkG8, "ours'is 50 years old, the one in your links is obviously a college kid.

buddy larsen said...

Well, of course it was legal, then, Peter--that was before 911.

buddy larsen said...


Unknown said...

Maybe the Democrats could make it a campaign issue.


something like that.

We are talking about a few people here and not all of them were Americans. Atta had permanent resident status after all.

Gee, wouldn't it have been a tragedy if someone had intercepted one of his calls to Afghanistan or Europe and figured out what he was up to?

Yeah, what a freaking miscarriage of justice that would have been.

I also note the complete disregard the press and the left has with the people who divulged the information. The fact that they broke the law seems to be of no importance whatsoever.

The double standard is [as usual] stunning.

Unknown said...


Speaking of draft dodger did you know that William Jefferson Clinton ignored his call to arms and spent the war in your country chasing the lassies?

Yes, ineedy, the only honest to God, real live breathing draft dodger to ever make it to the White House, the man who "loathed" the military.

I got news for Bill, the feeling was mutual.

Charlie Martin said...

Mark, you've got to learn to read closely and critically. Here's a gloss to help you.

There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly.

We follow the rules.

We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law.

That would be 1801(a). [We still have the question of whether we're talking about 1801(a)(1-3), or (4-6).]

We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department."

Look at what I emphasized, mark. he's laying out two cases: we don't collect against "US persons" unless they are agents of a foreign power. We don't collect in the United States unless we have a FISA warrant.

What's the remaining case? Collections against agents of a foreign power taking place outside the US. There's nothing so far that anyone but the feverish have said that suggests Bush and Gonsalez are saying anything different.

All that folderol floating around the net about Clinton bypassing FISA? Oops, out the window.

Amazing how Jamie Gorelick's statements in public record can be dismissed, but George Tenet's can't.

buddy larsen said...

...been re-reading the Mein Kampf, Herr Kollege-Geriatric?

buddy larsen said...

...FISSssssaaaaaa....Kvik, Schultz, helfen sie, der air iss eskaypeenk der ballooonss!!

Charlie Martin said...

Don't cherry pick Tenet's statement Seneca.

Mark, I don't think copying your whole quotation twice adds anything.

Even less so copying the whole quotation three times.

Since you'd included it, I didn't see any need to copy it all again; looking at what I wrote versus what you wrote, I don't see that including anything I left out adds context; and given that you're using a quote from Tenet almost a year before Bush was inaugurated, and he's clearly saying there are circumstances under which warrantless intercepts are authorized, I don't think you're doing your argument much good either.

I shall, however, be happy to taunt you with that quote as opportunities arise.

buddy larsen said...

"OK, kids, Bush has gone too far--go burn every car on Elm Street--if you get busted, call me, Gark Marrity!"

buddy larsen said...

"I'm way behind you all the way!"

buddy larsen said...

"Let's you take it to the STREETS!"

buddy larsen said...

AKA Josef Stallin' ?

Specter said...


You should really consider serious therapy. Now you've taken the NYT to have said that NSA is spying on all Americans. You ask for proof that they are not. Why don't you try proving they are.....

buddy larsen said...

"And I'm not talking mall rats here. I want
top notch college GPAs and at least a couple of 6
footers goddamit.

Say it ain't so, Mark--this's GOTTA be someone else, a different MarkG8--puh-leeze!

buddy larsen said...

"Freedom is Slavery"

Syl said...

What a charade.

The NSA probably has mechanisms that automatically trigger an intercept. Can't get a warrant for that even after the fact because there is no specific person to request a warrant FOR.


What would happen next is if words in the conversation triggered something else, like curiosity by the FBI.

Then the FBI gets the warrant.


This is all silly nonsense and hysteria.

Syl said...

Another thing to keep in mind is unintended consequences.

The FISA regulations are extremely bureaucratic and slow to implement in order to discourage surveillance.

But FISA has become so cumbersome that, lo and behold, it has become necessary in some cases to totally bypass them.

Woulda thunk that the Left building obstacles to our national defense--like the wall, FISA regulations, decimation and PC of the military, gutting of our intelligence agencies through lack of funding--would go too far and result in the worst attack ever on American soil.

As usual they went too far. Our civil liberties are not absolute, they are balanced with our civil responsibilities. The Left champions the former and ignores the latter at the expense of American lives.

How dare they criticize the loss of our soldier's lives in Iraq when it's their own damned fault.

buddy larsen said...

Precisely, Syl. That's why the only way to describe the hither-yon/inside-out world of the American Left is as a monumental global disaster.

Unknown said...

Needless to say asopt is Terrye speak for adopt.

oh well.


I don't think they can go after the NYT but I am not so sure about the reporters. Traitors that they are.

Marky is hysterical again.

I think the number of people involved about supposed to be about 500, and as far as whether all of them are American...well they make the point of saying US Persons, which does not always mean citizen so I think it is fair to say that chances are some of these people may not be citizens. And if they are they should be more damn careful about who they hang with.

BTW the constitution says that people should be protected against "unreasonable" search and seizure etc.

I remember hearing an FBI agent talking about trying to get a FISA warrant on one of the guys that turned out to be part of the 9/11 plot. Too slow....and we all know what happened.

Unknown said...


I saw that at powerline too. United States Foreign Intelligence Surveillance Court of Review. I did not even know there was such a thing.

I think people forget that the executive branch is equal to the legislative branch.

And that was interesting. I guess mark must be misleading someone.

little fibber. naughty.

buddy larsen said...

Wonder that myself, Peter. The old 80-20 rule, 20% of the population is insanely left, 20% of the economy is underground or tax-evaded. You can bet that 80% of the two 20%'s overlap is worried about their own doings.

buddy larsen said...

of course, that 'overlap' of the two fifth-parts could be small.

buddy larsen said...

Seneca or Morgan could do the probabilities.

Specter said...

If you want to read one of the opinions by the United States Foreign Intelligence Surveillance Court of Review go to:

Two relevant sections state (emphasis mine):

United States Foreign Intelligence
Surveillance Court of Review

…Hung, 629 F.2d 908 (4th Cir. 1980). That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power. In approving the district court’s exclusion of evidence obtained through a warrantless surveillance subsequent to the point in time when the government’s investigation became “primarily” driven by law enforcement objectives, the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” Id. at 915. Targets must “receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.” Id. at 916…

Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable...

Specter said...

That is:

Had to break it into two lines. Now the tricky question - how do I code it to just have a word-link.

Morgan said...


I'd show you how, but I can't get it to not show up as a link.

If your browser allows you to "View Source" you'll find the code pretty easily. Figuring out which of those little bits of code are actually necessary is half the fun.

You get to screw it up three times, after which we vote on whether to ban you or not. I'm on number two already, and I'm planning to filibuster.

Specter said...

Ok...I think I've got it. Read the FISCR opinion here.

Specter said...


I got it first time. Do I get to stick around? LOL

Doug said...

For now, let me just say that the question does not appear to be close. Under all existing authorities, the NSA program, as we understand the facts, was legal.

For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], 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. *** 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.

And those are cases that deal with electronic intercepts inside the United States. A fortiori, intercepts outside the United States that coincidentally sweep in messages sent from America would seem to be obviously within the President's inherent Article II powers. So far, I have found no authority to the contrary.
Thanks to reader Andrew Strnad.

(Limbaugh cited this on his show this AM)
Posted by John at 04:30 PM POWERLINE

Charlie Martin said...

Okay, Morgan, now your assignment is to figure out how to code it to show up.

Hint: <a ... here.

Doug said...

Oops, Peter's been in my head again with the Powerline message.

Morgan said...


Now you're just showing off .

Charlie Martin said...

Hey, folks, sorry there's no "social networking" post tonight; there's a ton of literature on the topic and I haven't read enough yet.

buddy larsen said...

ok, that does it, you're fired.

Doug said...

Hewitt devastated Alter in an interview on his show.
Alter was not fazed, and blathered on, not bothered that he had not read anything about what he was talking about.
Simply Wrong, Wrongheaded, and malicous toward Bush.
Newsweek's Jonathan Alter
by Hugh Hewitt
was my guest this evening. Radioblogger will have the transcript up later.
When you are done reading the transcript of the Alter interview, be sure to read Andrew McCarthy's take down of all MSM speaking on the issue of the warrantless surveillance of al Qaeda communications with its American agents. It is an extraordinary piece, not just about basic ConLaw, but also about cluelessness in the MSM.

Doug said...

New York Times vs. History and the Law
It is quite remarkable that the New York Times has launched a campaign to persuade the American people that the President does not have the power to order warrantless electronic intercepts for national security purposes.
No court, as far as I have been able to determine, has ever so ruled.

As noted below, the federal courts have consistently held the precise opposite of the position urged by the Times, as in this article from tomorrow's paper, titled
"Cheney Defends Eavesdropping Without Warrants."

Has any administration ever backed the position now urged by the Times?
It doesn't appear so. Matt Drudge points out that the Clinton administration engaged in warrantless wiretapping.
Deputy Attorney General Jamie S. Gorelick wrote that the President "has inherent authority to conduct warrantless searches for foreign intelligence purposes." That is an accurate summary of the holding of every federal court decision that has addressed the issue.

On May 23, 1979, President Jimmy Carter signed an executive order that said, "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

Doug said...

Qaeda Relocates to U.S. for Spy-Free Calling .

(2005-12-21) — Al Qaeda announced today it would relocate its international headquarters to an unnamed U.S. city in order to take advantage of espionage-free local, and state-to-state, phone calls.

“Al Qaeda will thrive in the land of liberty,” said an unnamed spokesman on a 30-minute pre-recorded DVD.
We’re still shopping for a primary location with great access to transportation and, Allah be praised, good public schools.”


Specter said...

It goes like this:

"(A HREF="" REL="nofollow") TEXT(/A>)"

Now replace all the '( )' with '< >'

buddy larsen said...

Wayne Madsen? Why not link to Kim Jong Il?

Start with where Madsen tattles on Pappy Bush for calling Wellstone a "chickensh*t".

Madsen has apparantly gone thru lots and lots of Reynolds Wrap in his economic niche as "former Reaganite, current BDSer".

Charlie Martin said...

Mark, it looks to me like someone needs medical help. I don't have time to go through the whole thing --- there are a bunch of internal issues --- but the most glaring paranoid fantasy is the old canard about tthe Flight 93 "shootdown."

Here's a hint, Mark, figure it out for yourself: big explosions up high lead to big debris fields and lots of big pieces; planes that hit the ground whole leave small debris fields and lots of small pieces.

buddy larsen said...

Plus, it's so very pat--and "prove it didn't happen". It's how the mark(s) try to create a future description of something as "controversial".

buddy larsen said...

More on mark's big "scoop".

buddy larsen said...

ha ha, GOD directed those last two posts--Madsen is all over your favorite site, Mark(s). Anudder liddle fiberooskie, there?

My link, above, a commentaler says no Dems will come forward on the 'rigged voting machines' "...because they are afraid of being ridiculed as morons, sore losers etc...."

Oh, my goodness, thats...that's...TRUE !

buddy larsen said...

"... I wouldn't put it past Bolton to order intercepts of Powell or Richardson."

Of course you wouldn't, Mark(s). Why on earth would you?

Charlie Martin said...

Don't know anything about Madsen but I wouldn't put it past Bolton to order intercepts of Powell or Richardson.

Right. Bolton could "order" an intercept of the sitting Secretary of State.

At least you've begun to catch on that you're losing this argument --- you wouldn't be groping so, otherwise.

buddy larsen said...

He fought back against the nastiest smear campaign imaginable, and won on merit & character, and now you guys have to maintain the echo-smear or be revealed in your rotten politics. THAT's what's plausible--and obvious.

buddy larsen said...

Digging for dirt on an opponent? Clearly that is outside your boundary of decent behavior, Mark. Clearly, clearly.

Charlie Martin said...

Because we learned Bolton asked for about 10 NSA intercepts at his confirmation hearings last summer and rumor had it that he was digging for dirt on his enemies or looking for people in the State Dept. talking behind his back. It's entirely plausible with that guy.

That' fine, Mark. What's implausible is the "Secretary of State" part. If you think anyone at NSA would get in the middle of that bureacratic nightmare, well, ... well, frankly, i'm at a loss to think of something else equally silly that you might also believe.

buddy larsen said...

Didn't 'win'? Who de UN Ambassador?

In 220 of our 225 yrs, a man of Bolton's character and record would've been in in a trice as an executive nominee for a job to be filled by executive appointment.

Only in the grotesque nightmare approval process created by the last 5 yrs of Dems, would such a shallow, obvious, fraudulent opposition be mounted as the one which led to the recess appointment.

Don't like recesses? Quit making them necessary--we both know full well there ain't a fly on Bolton, other than he is the president's choice, and will--is--cleaning up the left-wing bid-rig that the UN had become under yer boy Bubba.

Ever hear of the Oil-for-Food Scandal?