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December 31, 2005

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

Comments

Missing close link tag.

Posted by: someone on December 31, 2005 02:28 PM

All I ask is that the Justice Department's investigation goes forward expeditiously and without the leaks that feed the MSM fury with -- not the scourge of our security -- but with their hatred of GWB.

Knowing the how's and where's of security surveillance is not on my need-to-know list. National security sans MSM hype, misinformation, self-promotion, masked leaks and ACLU's intervention IS.

But don't get me started -- again!

Keep up the good work! Happy New Year!

Posted by: Gull on December 31, 2005 02:47 PM

Warrants may be sought after the broad computerized scan has intercepted millions of messages and flagged a certain tiny number

But they weren't. What's your explanation for that? Who cares if he didn't get warrants for the 650 million intercepts per day where only computers were involved, if he also didn't get warrants for the "tiny number" of hits?

How do you know that they're only scanning for terrorism-related keywords, addresses, and events, and not also things related to their political opponents? Because he told you so? Remember what he told you about WMDs.

It seems to me to fit the spirit of FISA and the Constitution to have a court review the set of keywords that are being scanned for.

Posted by: Bob Munck on December 31, 2005 03:34 PM

But they weren't.

FISA warrants have been on the increase since 2001. (replace * with e)

You have no basis for saying that those warrants weren't being issued on the people in question here, you're just pulling stuff out of your ass. Again.

Posted by: on December 31, 2005 04:05 PM

But they weren't.

FISA warrants have been on the increase since 2001. (replace * with e)

You have no basis for saying that those warrants weren't being issued on the people in question here, you're just pulling stuff out of your ass. Again.

Posted by: Sortelli on December 31, 2005 04:12 PM

Ace! Your comment software was off on a coke bender again, wasn't it?

Posted by: Sortelli on December 31, 2005 04:13 PM

There's nothing that connects the NSA domestic wiretapping with the new FISA requests; they're coming from other agencies and other NSA programs. Bush himself has said that the NSA program wasn't seeking any warrants from the FISA court.

Show me something that says NSA is asking for warrants for the results of their widespread data collection.

Posted by: Bob Munck on December 31, 2005 04:14 PM

Bush himself has said that the NSA program wasn't seeking any warrants from the FISA court.

Alright, that does change things. Either way, Bush is going to the FISA judges with a briefing next month according to that link.

Posted by: Sortelli on December 31, 2005 04:20 PM

http://huachuca-www.army.mil/sites/local/

There isnt an electronically transmitted burp that these guys dont intercept and analyze.

One of the arguments is that if you put it out into space via RF, have no expectation of privacy (and anyone with two connected nuerons knows that you should expect no privacy. Dont say anything on any phone that you dont want to answer to your mom or a jury for.

Posted by: Scott on December 31, 2005 04:44 PM

I would point again to the information that dozens of NSA types talked to the NYT. Presumably they are well up on the law.

If this is true, it says to me that whatever was done may be illegal. I would sure like to see a judicial review. If it is OK, then OK. If not, then not.

Posted by: searp on December 31, 2005 06:29 PM

I would sure like to see a judicial review.

Because judges are so much better at collecting intelligence in war time than anybody else? Because they would never bend the law to suit their policy preferences?

I take it as read that the CinC gets to do the foreign intelligence thing, even if (maybe especially if) agents of foreign powers are already on our soil, without having to say, "Mother, may I?" He isn't preparing for a criminal prosecution, for Pete's sake. He's fighting a war. But I don't quite get what added value comes from having a civilian who may or may not believe the written law is a "living and breathing" thing second guess the pros on what we should put our finite resources to work on.

The Constitution doesn't have to require this to make it a good idea, but why on earth would anyone believe it's a good idea? Newsflashes: (1) We are fighting a covert army of bad guys whom we have to discover and whose knowledge must become ours; (2) nobody in the NSA cares if you are downloading gay porn or haven't returned Catcher in the Rye to your public library.

Personally, of course I figure my phone/email/etc. can be secretly intercepted even though I'm not doing anything. All it takes is people I am connected to doing something that looks funny enough and the warrant would issue. So how is the NSA program harming my privacy?

I seem to remember Tom Clancy writing about this sort of stuff years ago. (Was it The Sum of All Fears?) We all kind of shrugged at the thought. I'm still shrugging.

Posted by: VRWC Agent on January 1, 2006 02:38 AM

Too many liberal politicians too many liberal judges

Posted by: spurwing plover on January 2, 2006 02:44 PM