Constitutional Surveillance (Listening in on our enemies has never been against the law)

The 911 commission didn't think it was laughable...

http://www.nationalreview.com/york/york200512191334.asp

In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.

Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.

"uh-huh. It's pretty laughable to consider what is being alleged as "wiretaps". Further, it is pretty laughable to consider wars prosecuted in the courts. It is pretty laughable to still think that people can't change communications methods faster than FISA paperwork can be handled. But...that's all irrelevant since what we're disscussing isn't a criminal issue at all, and is still a legitimate exercise of the CINCs duties and powers."

We're not talking about CINC war powers, though, we're talking about stopping preventing domestic spying and domestic terrorism by spying on American citizens through a secret court's warrants, and sometimes not even that. We're not talking about wars fought on battlefields prosecuted in the courts, but American citizens prosecuted on the basis of warrantless searches in the U.S., no matter your dismissive "American citizens might happen to be on the other end" comment--especially since these strictures do not apply to foreign powers but only come into play when searching/bugging American citizens is involved. We're not talking about changing communications methods nor are we talking about problems with them--we're talking about simply warrants in the first place, and if you want to bring technological issues into play show me where that is relevant to the issue we're discussing. I saw it stated above as "If it's American citizens, I see no reason why they shouldn't get a warrant."

You obviously disagree with the notion that the Executive should have to get a warrant to tap the phones of American citizens. But you're disagreeing with the Constitution. "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." I don't see any exceptions to that in the plain English, do you? If you don't like it, amend it. That's generally the way conservatives prefer to change the Constitution. If you prefer to change it through Congressional statute in violation of the Constitution's plain language, or SCOTUS fiat, that's peachy, too, but you should probably reconsider who you should be lining up for come next election.

Now, I'm all for trying the SOBs for treason, and hanging their asses. I don't think we should have trials for POWs or for unlawful combatants. I think every one of the non-Geneva-convention-abiding Iraqis and Afghanis and anyone else on the battlefield against us out of a uniform, or from outside the U.S. and caught committing terrorist acts, or from in the U.S. and caught on a foreign battlefield acting against us, should have been shot in the head right there. None of these are American citizens or entitled to Constitutional protections. I'm all for profiling and kicking out all the illegals and building an alligator alley on our northern and southern borders. These folks aren't Americans and don't deserve Constitutional protections. But I'm not at all willing to say that American citizens should be able to have their phones tapped because Mohammed Dirkadirka called a wrong number, because I don't think that Executive powers should extend that far without a warrant in cases where the arrested is a citizen and the territory in which they are arrested is not in rebellion or invaded at all. Wartime, in a war zone, perhaps. But not now, in an area neither invaded nor rebelling.

In fact, the SCOTUS seems to agree with me on something, for once. Ex Parte Milligan leans heavily in that direction. The Jose Padilla case seems to be a similar admission by the President that he knows the SCOTUS will grant him wide latitude in his battlefield powers, but will not grant him infinite war powers domestically.

Funny, I don't see any changes that have been made since 1978 in the section 1804 application required to make it easier for DOJ to prep an application. Have you ever seen what the FISA warrant application requires?

(1) the identity of the Federal officer making the application;

(two seconds to write a name)

(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;

(simple boilerplate, prepped once by the AG's constitutional lawyers and then zero time required by the field agents)

(3) the identity, if known, or a description of the target of the electronic surveillance;

(two seconds to write a name or address)

(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

(two minutes to write why the suspect is a suspect)

(5) a statement of the proposed minimization procedures;

(more boilerplate saying 'how we won't use the extraneous info,' something like: if found not to be foreign intelligence information, if recorded the information will not be indexed, and thus become non-retrievable, if in hard copy from facsimile intercept or computer print-out it will be discarded, if an re-recordable media it will be erased, or if too bulky or too sensitive, will be destroyed.)

(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;

(more specific than boilerplate but generally the same, i.e., foreign intelligence re: domestic spying/terrorist penetration into the U.S., let's say five minutes to be conservative)

(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;

(all a signature under boilerplate thus far, let's say two seconds)

(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;

(thirty seconds to write how the entry is to be made)

(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;

(thirty seconds to make sure the judge knows this isn't simply repetitive re-application)

(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and

(one minute either detailing the time limitation on the scope of the warrant or explaining why there shouldn't be one)

(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.

(more boilerplate saying 'how we won't use the extraneous info')

AND whenever the target of the electronic surveillance is a foreign power, and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power, the application doesn't even need THAT.

So an AAG spends ten minutes with an agent to get the warrant info, ten minutes filling out the application, and then whatever time it takes to get a judge to sign the warrant, a judge grants them quickly, according to your NR source. Yet that isn't laughable?

According to your own source, the 9/11 commission, the REAL problem ISN'T with getting a warrant that takes minutes to fill out and fewer to get. According to your citation, that "the FBI bureaucracy involved in applying for a FISA warrant was stifling." Why should we give that agency or the AG the power to evade these simple warrant requirements, when what is keeping them from getting warrants is not the law but the bureaucratic nature of those agencies and the federal government? Saying the way to solve the problem with the federal government and bureaucracy is to give the bureaucracy more power and less law to follow is like saying the way to cure cancer is to shoot people who get it. The 9/11 commission's 'solution' to the problem is to turn the entire federal law enforcement structure into another huge unibureaucracy, when in fact the primary problem seems to have all been created by Clinton administration-era bureacrats and bureaucracy at the FBI. The solution to the problem is to fire the damn bureaucrats who screwed up in overinterpreting the law to restrict information sharing, give the agencies fewer tasks and thus less broad power necessary or to abuse in doing those tasks, and return the federal government to doing its job of defending this country against threats from afar, instead of screwing around with the myriad federal crimes that have little to do with its Constitutional role.

But the Patriot Act doesn't do that, doesn't change the application process, and didn't just make getting a warrant easier. Under Patriot, the FBI doesn't have to know that the target of the roving FISA wiretap is using the phone being tapped. The FBI could simply tap a neighborhood exchange where a suspect is spotted and hope a terrorist uses a phone there. And the FBI can now get a warrant to wiretap a phone or computer without specifying either the suspect under surveillance or the phones or computers to be tapped. Does that sound like a warrant at all?

"We think that SOMEONE may use A phone or computer to commit a terrorist act, but we don't know who, and we don't know which phone or computer, and we swear we'll only use that power for national security purposes. Can we get a blank warrant, now, judge? Love, Hillary."

Funny, I don't see any changes that have been made since 1978 in the section 1804 application required to make it easier for DOJ to prep an application. Have you ever seen what the FISA warrant application requires?

You haven't seen a change to the act because the relaxation was included in the Patriot act.

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.

http://www.nationalreview.com/york/york200512191334.asp

Before the PATRIOT Act, law enforcement had the authority to conduct electronic surveillance - by petitioning a court for a wiretap order - when investigating many ordinary, non-terrorism crimes. Agents also could use wiretaps to investigate some, but not all, of the crimes that terrorists often commit.

The non-terrorism offenses for which wiretaps were available included: drug crimes, mail fraud, and passport fraud.

Section 201 (of the Patriot Act) enabled investigators to gather information when looking into the full range of terrorism-related crimes, including: chemical-weapons offenses, the use of weapons of mass destruction, killing Americans abroad, and terrorism financing.

Section 201 preserved all of the pre-existing standards in the wiretap statute. For example, law enforcement still must: (1) apply for and receive a court order; (2) establish probable cause that criminal activity is afoot; and (3) first have tried to use "normal investigative procedures."

http://www.lifeandliberty.gov/subs/add_myths.htm#s201

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Funny, I don't see any changes that have been made since 1978 in the section 1804 application required to make it easier for DOJ to prep an application

I suspect that you haven't seen a FISA warrant either, but here is what Victoria Toensing (former dpty AG who participated in writing FISA) describes

"FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months."

http://www.opinionjournal.com/editorial/feature.html?id=110007848

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the REAL problem ISN'T with getting a warrant that takes minutes to fill out and fewer to get. According to your citation, that "the FBI bureaucracy involved in applying for a FISA warrant was stifling."

The bureaucracy was responding to the pressure being applied by who????... The FISA court (According to the New York Times)

In addition, recent interviews of intelligence officials by The New York Times suggest that the bureau had a reason for growing cautious about applying to a secret national security court for special search warrants that might have supplied critical information. The FBI, the officials said, had become wary after a well-regarded supervisor was disciplined because the court complained that he had submitted improper information on applications.

http://www.freerepublic.com/focus/news/692148/posts

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Under Patriot, the FBI doesn't have to know that the target of the roving FISA wiretap is using the phone being tapped. The FBI could simply tap a neighborhood exchange where a suspect is spotted and hope a terrorist uses a phone there. And the FBI can now get a warrant to wiretap a phone or computer without specifying either the suspect under surveillance or the phones or computers to be tapped

I think you've fallen for some hype..

http://www.lifeandliberty.gov/subs/add_myths.htm#s201

Myth: "These wiretaps pose a greater challenge to privacy because they are authorized secretly without a showing of probable cause of crime. This Section represents a broad expansion of power without building in a necessary privacy protection." [ACLU, Oct. 23, 2001]

Reality:

For years, law enforcement has been able to use "roving wiretaps" - in which a wiretap authorization attaches to a particular suspect, rather than a particular communications device - to investigate ordinary crimes, including drug offenses and racketeering. The authority to use roving wiretaps in drug cases has existed since 1986.

Section 206 authorized the same techniques in national-security investigations. This provision has enhanced the government's authority to monitor sophisticated international terrorists and intelligence officers, who are trained to thwart surveillance, such as by rapidly changing cell phones, just before important meetings or communications.

A wiretap under section 206 can be ordered only after the FISA court makes a finding that the actions of the target of the application may have the effect of thwarting the surveillance.

A number of federal courts - including the Second, Fifth, and Ninth Circuits - have squarely ruled that roving wiretaps are perfectly consistent with the Fourth Amendment.

Whether the Department has used section 206 is classified. Details about its use were provided to the House Permanent Select Committee on Intelligence on May 29, 2003, in response to a request by the House Committee on the Judiciary.

This provision will sunset on December 31, 2005.

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"We think that SOMEONE may use A phone or computer to commit a terrorist act, but we don't know who, and we don't know which phone or computer, and we swear we'll only use that power for national security purposes. Can we get a blank warrant, now, judge? Love, Hillary."

"Hello Aksheesh, this is Muhammed. I am coming to America to strike for jihad. I want to ask a question of you for your great help. Should I bring my European cell phone or should I buy one after I arrive in America because the cursed NSA cannot spy on domestic cell phones. Will the dirty Jew sell me twenty one time without suspicion? After I arrive I will want to arrange a bomb-- I mean special celebration for jews and infidels. Can you help me get a cell phone or some special chemicals I will list in another email?"

"You haven't seen a change to the act because the relaxation was included in the Patriot act. The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained. Before the PATRIOT Act, law enforcement had the authority to conduct electronic surveillance - by petitioning a court for a wiretap order - when investigating many ordinary, non-terrorism crimes. Agents also could use wiretaps to investigate some, but not all, of the crimes that terrorists often commit. The non-terrorism offenses for which wiretaps were available included: drug crimes, mail fraud, and passport fraud. Section 201 (of the Patriot Act) enabled investigators to gather information when looking into the full range of terrorism-related crimes, including: chemical-weapons offenses, the use of weapons of mass destruction, killing Americans abroad, and terrorism financing. Section 201 preserved all of the pre-existing standards in the wiretap statute. For example, law enforcement still must: (1) apply for and receive a court order; (2) establish probable cause that criminal activity is afoot; and (3) first have tried to use "normal investigative procedures."

As I recall, you are denying that "FISA was established to give the government the easiest possible way to get a rubber stamp warrant to tap phones. Even after the fact." That everything above is true does not change this. The 1804 procedures are all that last sentence is describing. It is not suddenly more difficult to get a FISA warrant against a domestic target. It is even easier than before.

"I suspect that you haven't seen a FISA warrant either, but here is what Victoria Toensing (former dpty AG who participated in writing FISA) describes[:] "FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months."

Let's see...I said, "Funny, I don't see any changes that have been made since 1978 in the section 1804 application required to make it easier for DOJ to prep an application." and you responded with a statement that a former prosecutor found it hard to fill out applications. I still don't see any way that responding to the questions posted above would result in two to three inches of application for a warrant--NONEMERGENCY or otherwise. Warrant applications aren't that thick. And to respond to your aside, I doubt you've seen an application for a FISA warrant, or any other warrant for that matter, either.

"The bureaucracy was responding to the pressure being applied by who????... The FISA court (According to the New York Times) In addition, recent interviews of intelligence officials by The New York Times suggest that the bureau had a reason for growing cautious about applying to a secret national security court for special search warrants that might have supplied critical information. The FBI, the officials said, had become wary after a well-regarded supervisor was disciplined because the court complained that he had submitted improper information on applications."

That just shows you the bureaucracy was protecting its own. He was breaking the law in submitting IMPROPER info, not in submitting "two-to-three inches" of info.

"I think you've fallen for some hype...For years, law enforcement has been able to use "roving wiretaps" - in which a wiretap authorization attaches to a particular suspect, rather than a particular communications device - to investigate ordinary crimes, including drug offenses and racketeering. The authority to use roving wiretaps in drug cases has existed since 1986. Section 206 authorized the same techniques in national-security investigations. This provision has enhanced the government's authority to monitor sophisticated international terrorists and intelligence officers, who are trained to thwart surveillance, such as by rapidly changing cell phones, just before important meetings or communications. A wiretap under section 206 can be ordered only after the FISA court makes a finding that the actions of the target of the application may have the effect of thwarting the surveillance. A number of federal courts - including the Second, Fifth, and Ninth Circuits - have squarely ruled that roving wiretaps are perfectly consistent with the Fourth Amendment. Whether the Department has used section 206 is classified. Details about its use were provided to the House Permanent Select Committee on Intelligence on May 29, 2003, in response to a request by the House Committee on the Judiciary."

Lessee, I said "Under Patriot, the FBI doesn't have to know that the target of the roving FISA wiretap is using the phone being tapped. The FBI could simply tap a neighborhood exchange where a suspect is spotted and hope a terrorist uses a phone there. And the FBI can now get a warrant to wiretap a phone or computer without specifying either the suspect under surveillance or the phones or computers to be tapped." I fail to see how this canned response addresses either concern. That roving wiretaps have been allowed for a long time with normal warrants is not the same as giving wide permission for such wiretaps against domestic targets under FISA's minimal requirements.

"Hello Aksheesh, this is Muhammed. I am coming to America to strike for jihad. I want to ask a question of you for your great help. Should I bring my European cell phone or should I buy one after I arrive in America because the cursed NSA cannot spy on domestic cell phones. Will the dirty Jew sell me twenty one time without suspicion? After I arrive I will want to arrange a bomb-- I mean special celebration for jews and infidels. Can you help me get a cell phone or some special chemicals I will list in another email?"

Here's the difference between your hypo and mine. In YOUR hypo, the person calling would be calling/emailing from OUT OF THE COUNTRY. They would be liable to be tapped regardless, scot-free, no warrant required. They would then be busted regardless of what cell phone they were carrying. And of course, you're making the assertion that "the cursed NSA cannot spy on domestic cell phones" under American law--it can spy on foreigners all it wants, since they're ostensibly spying for purposes of foreign intelligence, but it can't spy against Americans without a warrant and probable cause.

In my hypo, the warrant could be issued against ANYONE, regardless of whether they were calling in or out of the country. Let's see it again:

"We think that SOMEONE may use A phone or computer to commit a terrorist act, but we don't know who, and we don't know which phone or computer, and we swear we'll only use that power for national security purposes. Can we get a blank warrant, now, judge? Love, Hillary."

Your hypo doesn't scare me because we both know it'd be perfectly acceptable under prior and current law to tap the phone call without a warrant. My hypo doesn't scare you for...hell, I can't figure out why it doesn't scare you.

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