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November 03, 2006

Another Take on Intercepts

The Political Pit Bull conceives of it working differently:

25 As I understand it, the NSA terrorist surveillance program works as follows. The US acquires a telephone number or telephone of a suspected terrorist which contains, say, 20 numbers. The NSA casts out a wide net working with those 20 numbers and begins to monitor all the numbers being called by each of the original 20. For the sake of argument, say, 400. The NSA then might monitor the numbers being called by those 400 numbers and outward it goes increasingly the number or numbers exponentially. Like working down from the top of a family tree, for example.

Some of these numbers down the line will inevitably lead into the United States and this is where the "domestic" component of this program that we have heard so much about begins. Once the NSA acquires the number of someone inside the US, the NSA must obtain a warrant to track the the numbers which that individual, Terrorist A, is calling inside the United States. Where an issue has apparently arisen is that the FISA court wanted to know why the NSA wanted a warrant to listen in to the domestic calls of Terrorist A but the NSA didn't want to reveal to the FISA court how it obtained that number.

Where the issue of the warrant comes in is that Democrats have argued that the Bush administration needs a warrant before listening in on the calls to Terrorist A (inside the US) from one of the numbers originally obtained outside the US. The Bush administration argues, for reasons that I obviously don't know, that the process of obtaining this warrant would either (a) take too long and risk loosing valuable intelligence or (b) might be denied by the FISA court because there isn't 'probable cause' to issue a warrant. According to the Bush administration, and I agree, the standard to meet this 'probable cause' threshold places hinders the government's ability to gather intelligence from these sources.

The Democrats have successfully been able to paint this program as a "warrantless domestic surveillance program" which isn't an accurate representation of what it actually does. As far as I'm aware, almost every Democrat that has been briefed on this program has agreed that it is valuable and needs to continue.

While it was certainly a misrepresentation on my part, and on the part of Citizens United, to not stress that the majority of Democrats oppose this program because it's "warrantless," that also fits a little too nicely into the Democrats meme that this program was Bush flagrantly and maliciously trampling the Constitution when he authorized this program.

I disagree, though I'm only speculating when I do so. If this is all it was, I see no good reason why Bush couldn't get the necessary warrants for calls entering the country from AQ-connected phones. The FISA courts are not ultra-liberal, and it's easy enough to convince them that the NSA has connected this or that phone line to the terrorists. They're not stupid. They know what the NSA does.

So the fact that Bush opposes this suggests to me that something would in fact be lost if a warrant were required.

Notice this is only ever discussed vaguely. If it were as Greg Tinti suggests, why wouldn't he just say so?

I suspect the reason for the obfuscation is that this program is bigger, and more indiscriminate, and therefore "scarier" to many than has been previously disclosed.

But, again, I think we've been doing this all over the world for as long as we've had an NSA. The difference now is that we can capture calls in to, or out of, the US, whereas before we just interecepted every foreign call we could.

If you're not sweating the fact that your calls may have been intercepted by the NSA when you were travelling in Italy, I don't know why it would be so much more frightening that your infrequent domestic-to-foreign calls may be intercepted.

Although... Admittedly, I guess it would be pretty memory-intensive to record most calls that are intercepted.

Maybe there's something to Greg's belief, and maybe Bush has simply nominated a lot of "terrorist suspects" about which there is very little hard evidence about -- just running with the wrong sort of folks. Guilt by association and little more. And he doesn't want to give up his ability to listen in on them, even a FISA court demands a higher threshhold of evidence than "We've got a bad feeling about this guy."

Could be.

Stll, FISA courts understand, mostly, that they're involved in intelligence, not law-enforcement, and that the Fourth Amendment is frequently inapplicable (or far less applicable, at least).

If a cop can get a warrant by telling a judge an unnamed confidential informant tipped him off, or he got an anonymnous phone call telling him this or that, how could it be that FISA courts are very tough sells on warrants?

It could all just be, as the Democrats claim, that this is simply an assertion of Presidential power by Bush, and that, while Bush may want to assert his inherent authority, nothing at all would be lost by submitting these intercepts to the FISA court warrant process.

I just doubt that. Why fight so hard over something so abstract?

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posted by Ace at 06:32 PM

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