Looping the Hen

"It glosses over many of the substantial issues, not least of which is the fact that while yes, the NSA was tapping Americans, it does not mention that it was tapping American's who are talking to Al Qaeda or their associates."

Do I take this to mean that, because these Americans were talking to Al Qaeda or their associates that they've forfeited their constitutional protections? And if so, isn't the point of the wiretapping to establish exactly that they are associating with terrorists? That seems like a bit of bootstrapping.

The point of the linked article at Intel Dump was that no one is saying wiretapping is itself bad. What's wrong is the end run around the legal protections put in place for exactly these cases.

Thanks for your comments!

One of the difficulties of the FISA-court procedure is that when it was implemented, digital communications such as we have now were science fiction. Even still, in the vast majority of cases (around 97%), a FISA warrant is obtained.

One problem is that a FISA warrant is generally permission to tap one number, and it does not have the flexibility to deal with the situations where speed is needed. What is occurring is if a cellphone is found on a terrorist, the numbers in that phone and received by it all need to be monitored, and FISA has no way to allow generalized monitoring.

For example, we capture a phone from a terrorist in Pakistan. The phone is then called by 3 numbers, one in Hong Kong, one in Baghdad, and one in London. Each of those numbers is then monitored, and it happens that the one in Hong Kong then calls Nashville.

The contention is that the person in Nashville has guaranteed protection and shouldn't be monitored. But why should that be so? It then sounds very similar to a probable cause discussion (though I am no attorney and posit no expertise here). Although the courts have generally found a right of privacy, it is definitely not absolute. If someone hears a gunshot in my home, the police do not have to wait for a warrant to break down my door. In the same way, the President's war powers to intercept international or enemy communications allows the executive branch to conduct warrantless tapping of phones in certain situations where speed and/or secrecy is of utmost concern.

Privacy is a big deal to me; this is definitely not blindly following lockstep with the administration. The Carnivore and Echelon program's were (are) both gross violations of those rights. The current administration's NSA program is very small in scope by comparison, is limited to those in communication with Al Qaeda or their associates, and the President (and not just this one; Clinton and Reagan both did the same) has routinely had his powers upheld by both the Appellate courts and the Supreme Court.

The main difficulty in evaluating the article in Ars (and the reference article), for example, is that they are to a large degree comparing apples and oranges. The folks alleging the Bush administration is outside it's rights are reading what they see as the law verbatim, but without taking into consideration any of the case law (judicial) that goes with it, all of which supports warrantless tapping in the circumstances in which it is occurring.

I would say our country is in new territory here, because this war feels different than any other and we are still muddling through some of the legal arcana. What if it is put another way? Let's say it is WW II and someone from the SS in Germany is calling the US. Does the President still need to obtain a warrant to listen in? I certainly hope not!

We are in a war, and along with it needs to come commensurate security precautions.

Just my 2c, thanks for stopping by!

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