Why Bush Can't Get Warrants For Intercepts

Because the warrantless stage of intercepting messages is broad-based and most likely completely computerized:

Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.

Moreover, it is likely that at the first, broadest stages of the scan no human being is involved -- only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.

Warrants may be sought after the broad computerized scan has intercepted millions of messages and flagged a certain tiny number as possibly related to foreign intelligence, but obviously not previous to this step.

More: From the Washington Post:

Who are our masters of surveillance today? Most are located at the National Security Agency, the giant "Crypto City" complex located off Interstate 95 between Washington and Baltimore. The agency vacuums up 650 million intercepts a day -- called signals intelligence, or sigint -- from satellites, ground stations, aircraft, ships and submarines around the world. And it hunts for patterns that might lend seemingly ordinary words significance in the war on terrorism.

650 million a day. That would be an awful lot of warrant-applications flowing into FISA, wouldn't it?

posted by Ace at 02:26 PM

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