Land of the free?

[Slim]

Originally Posted by keith

Really - I recall lots of bragging back in the distant '80s & '90s of just what the listening posts could do in terms of percent coverage of european communications. I assume technology has advanced a bit since then.....

Anyway whether the scanning is truly random, partially random, only those who have been within 100 feet of a mosque in the last week, wasn't entirely my point.

You are using an approach that allows you to trawl through far larger numbers of people than would be feasible under the kind of intelligence effort that the current law is designed for.

Yes, really. Percent coverage does not mean percent collection.

The law has nothing to do with the amount of targets. It has to do with target selection. There is no randomness to target selection. Yes this technology allows for far more coverage, and far more targets to be addressed. With the millions of cell phones out there, what do you expect?

Current systems also prevent the need for anyone to actually listen, reducing the likelyhood even further that a random conversation is being listened to by a real person. There are several levels that have to be met before a real person will actually listen to a conversation. If you place calls to the middle east and use the words "jihad" and "bomb", I'd be a little concerned someone is listening. Otherwise, dont sweat it.

Are you as concerned about the use of video security cameras? You've got a much better chance of showing up on one of those than on a monitored phone call.

Perhaps you are correct about the current laws not meeting the current needs. Perhaps that's why the president decided to act as he did.

[keith]

Originally Posted by Slim

The law has nothing to do with the amount of targets. It has to do with target selection. There is no randomness to target selection. Yes this technology allows for far more coverage, and far more targets to be addressed. With the millions of cell phones out there, what do you expect?

That more people would have thought through the obvious consequences of the technology?

Clearly the law makers in this country haven't. Despite it being an obvious and expected development for the last decade; it clearly sits outside the situations lawmakers imagined - it is also easy to put under legal coverage. It is quite easily described, and explained to the world at large but strangely no administration has chosen to do this. Perhaps they don't share your belief that the average american won't mind?

Originally Posted by Slim

Current systems also prevent the need for anyone to actually listen, reducing the likelyhood even further that a random conversation is being listened to by a real person. There are several levels that have to be met before a real person will actually listen to a conversation. If you place calls to the middle east and use the words "jihad" and "bomb", I'd be a little concerned someone is listening. Otherwise, dont sweat it.

Of course any words can be entered just as easily; blow job and intern for example. Clearly as with any counterintelligence activity it would not be onerous to demand judicial oversight - all it would say is you have to go to a judge to approve certain keyword trawls.

Afterall the cases where this is likely to be deployed is cases where you want to monitor all phone converstations in the vicinity of an suspected individual - which could be hundreds or thousands of calls in a large city. Of course you can't go to a judge and ask permission to monitor all those individuals calls in advance. You could of course ask after the fact though as the law allows; just present a list of names who where monitored. It seems that the administration didn't even bother running this idea by the judges involved.

Originally Posted by Slim

Are you as concerned about the use of video security cameras? You've got a much better chance of showing up on one of those than on a monitored phone call.

You seem to be labouring under the impression that this bothers me - it doesn't. I think it's not as useful a tool as some would claim - you are only likely to catch the stupid terrorists, or the type of character who likes to pretend to be on the fringe of whatever the latest lunatic has made popular.

Take your Jihad and bomb example - have a chat with someone about the latest goings on in the US and immediately you are under investigation..... perhaps this is the real reason that the administration wanted this quiet; now everyone is talking about what the keywords might be

Originally Posted by Slim

Perhaps you are correct about the current laws not meeting the current needs. Perhaps that's why the president decided to act as he did.

.... but it has been how many years? Seriously, if the administration thought it could get this approach passed into law it would have done it already. My guess is that 'ess is right; The average american doesn't trust this (or any future administration) to deploy this technology with no oversight.

[jeff]

Originally Posted by keith

The average american doesn't trust this (or any future administration) to deploy this technology with no oversight.

(emphasis added) This illustrates the value of different branches of government to provide "checks and balances". It is precisely for this reason that a legislative branch passes laws to curtail the power of the executive branch when it overreaches, and of the judicial branch to interpret those laws. The executive branch is not an impartial magistrate and cannot monitor and judge its own use of power. When it ignores laws created by the legislative branch or decides those laws mean solely what it thinks they mean (the job of the judiciary) then it has overstepped its authority.

[Inquartata]

Originally Posted by Philistine

I haven't seen any real contention by any previous administration that FISA was an unconstitutional encroachment on Executive powers

How about

"Every President since FISA's passage has asserted that he retained inherent power to go beyond the act's terms." -John Schmidt, associate attorney general in the Clinton Administration

My problem is that the Administration broke the law--realizing that it couldn't or didn't want to comply with FISA, rather than going to Congress and asking for an Amendment--it just quietly circumvented the law completely, becuase it realized that an Amendment would be politically unpopular.

IMO pouplarity had zero to do with it. It was merely not worth picking a fight with Congress when they could and did assert that the law was unconstitutional and therefore without force, and then go about their business.

There are only so many battles one can fight at a time, and one chooses the ones one feels are most important, rather than having ones attention scattered and frittered away on every little possible conflict. Leave it to Congress to drag the matter into a court battle it would not win, and save ones powder for issues that matter. To do otherwise is to court the tactical use of a thousand petty attempts to hamper your execrise of power and to be bled dry trying to swat them all down.

If Congress passed a law requiring the Executive to begin quartering troops in private homes against the owners objections, which would be the proper response: comply and get busy quartering until such time as one could bring a court action and get a formal finding of unconstitutionality, or laugh in Congress' face and ignore the patently unconstitutional law? And if the President issued an executive order stripping Congress of its appropriations power, should Congress comply with that order until it could get an injunction, or should it even bother dignifying it with a response? IMO these two cases differ from the FISA case only in the degree of obviousness regarding their unconstitutionality.

[Inquartata]

Originally Posted by achilleus

This is a very good point, nor are you the first to have this theory or make this comparison. Shortly after 9/11, and the beginnings of the Patriot Act, many historians made comparisons of the current state of the US to Germany, pre-WWI. In fact, there were so many parallels, that a TV movie was made, and set to be aired on CBS. CBS pulled the plug due to fear of boycotts, and the program never aired.

Someone made a movie=proof of the thesis' accuracy?!

I guess we can expect an alien invasion or a rash of "superstorms" any day now.

[Inquartata]

Originally Posted by jeff

Franklin was an originator of American political thought, whose optimistic belief in the value of progress, self-improvement (and avoidance of elitism), tolerance, and good (public) works are illustrated by his aphorisms.

He also made a good many mistakes, miscalculations and misjudgements in his life; which is to say that he was human and therefore fallible. Though brilliant and wise, these qualities are no guarantors of the truth of any one of his opinions.

This doesn't amount to "infallible", as little or nothing does, but reflects the wisdom of a Founding Father present during a time when the "safe" action would have been to tolerate the loss of freedom to remain part of an empire, regardless of what tyranny it imposed.

However, Franklin only rejected this same "safe" view and became an advocate of independence after suffering a personal political reversal while in England...a reversal brought about in large part by a bungled attempt at intrigue he himself had attempted...

Are embarassment, anger and vengefulness roadmarkers to wisdom?

Moreover, a man more concerned with security through much of his life it would be difficult to find.

Nor has it been demonstrated that security and liberty are necessarily mutually exclusive, or at opposite ends of a spectrum.

No, he was a great and insightful man, but I must beg leave to reject his opinion as proof of a given thesis. Albeit I do admire the aphorism.

[achilleus]

Originally Posted by Inquartata

Someone made a movie=proof of the thesis' accuracy?!

I guess we can expect an alien invasion or a rash of "superstorms" any day now.

Hm...

I reread my post, nowhere do I mention that a movie equals proof, nor do I even mention proof.

I stated a fact that parallels were made by historians, so many that a TV movie on the parallels was made.

If you want to interpret that as proof, or a liberal media conspiracy, or a right wing boycott conspiracy, or to mean that aliens will invade then that's in your own head.

[Inquartata]

Right. The fact that a movie was made doesn't prove that there were any "parallels", either.

Cum hoc ergo propter hoc.

Screenwriters are "creative artists", not social scientists or documentarians, Ach. They do fiction.

Shall we talk about the ways in which the post-911 US situation did NOT resemble post WWI Germany? Like, no loss of a major war, no humiliating conditions imposed by a conquering enemy, no newly-created and tenuous democratic institutions, no recent autocratic past, completely different cultural milieu, geography and economy, etc. Would those really mean anything? No. But if a movie was made on the basis of them, well...

[achilleus]

Originally Posted by Inquartata

Right. The fact that a movie was made doesn't prove that there were any "parallels", either.

Cum hoc ergo propter hoc.

Screenwriters are "creative artists", not social scientists or documentarians, Ach. They do fiction.

Shall we talk about the ways in which the post-911 US situation did NOT resemble post WWI Germany? Like, no loss of a major war, no humiliating conditions imposed by a conquering enemy, no newly-created and tenuous democratic institutions, no recent autocratic past, completely different cultural milieu, geography and economy, etc. Would those really mean anything? No. But if a movie was made on the basis of them, well...

Again, where did I say a movie proves anything? I'll answer slowly for you:

No

where
.

I stated that Ess' comparison between the US and Germany was made years ago by historians and that a TV movie (a documentary if I remember correctly) was made about the parallels.

No where did I mention a judgement as to the accuracy of the comparison, the meaning of said comparison, nor did I offer a movie as proof of the veracity of these parallels.

Feel free to discuss any similarities or differences between the US and pre (or post for that matter) WWI Germany if that floats your boat. Feel free to add some Latin phrases to your posts, but really, try to read what is written rather than make up your own meaning...

[Philistine]

Originally Posted by Inquartata

How about

"Every President since FISA's passage has asserted that he retained inherent power to go beyond the act's terms." -John Schmidt, associate attorney general in the Clinton Administration

How about it?

AFAICT, this was a statment made less than a month ago--and the only "evidence" for it was the explanation "Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that 'the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.'"

I'm not quite sure how exactly this equates with either every president or some contention that FISA is unconstitutional. I don't think anyone is arguing that the president cannot go past FISA's terms. The argument is he cant contravene them.

Goerlick's statements were in the context of warrentless physical searches--which were not (at that time) made criminal by FISA.

IMO pouplarity had zero to do with it. It was merely not worth picking a fight with Congress when they could and did assert that the law was unconstitutional and therefore without force, and then go about their business.

I wonder how many other laws the Administration has decided are unconstitutional, but hasn't bothered to tell anybody they are violating.....

If Congress passed a law requiring the Executive to begin quartering troops in private homes against the owners objections, which would be the proper response: comply and get busy quartering until such time as one could bring a court action and get a formal finding of unconstitutionality, or laugh in Congress' face and ignore the patently unconstitutional law?

The proper response would be to veto the law.

If the veto is overridden, then bring an action in Court, and get a stay of the law--something which is not uncommon.

And if the President issued an executive order stripping Congress of its appropriations power, should Congress comply with that order until it could get an injunction, or should it even bother dignifying it with a response? IMO these two cases differ from the FISA case only in the degree of obviousness regarding their unconstitutionality.

Except that Executive Orders--by definition--are not binding on Congress, while laws, by defintion--are binding on the President.

Again--FISA contains a mechanism in the case of war in order to allow it to be modified. The President didn't even attempt to suggest a modification in accordance with what they've done. They did make other suggestions for modification which were accepted by Congress.

I am extraordinarily uncomfortable with any President's contention that he is the final arbiter of which laws he will comply with, and which he will not--and that he will keep secret which laws he has decided to comply with and which he has decided to ignore.

--Philistine

[Slim]

Originally Posted by keith

That more people would have thought through the obvious consequences of the technology?

Everything has the potential for misuse. I can name quite a few things that have more potentially disasterous consequences if misused than a surveillance system who's use is already very tightly regulated.

Originally Posted by keith

Clearly the law makers in this country haven't. Despite it being an obvious and expected development for the last decade; it clearly sits outside the situations lawmakers imagined - it is also easy to put under legal coverage. It is quite easily described, and explained to the world at large but strangely no administration has chosen to do this. Perhaps they don't share your belief that the average american won't mind?

The legal wheels move a lot slower than the wheels of technology. We should impede technological progress while waiting for the bufoons in congress to address it?

Originally Posted by keith

Of course any words can be entered just as easily; blow job and intern for example. Clearly as with any counterintelligence activity it would not be onerous to demand judicial oversight - all it would say is you have to go to a judge to approve certain keyword trawls.

Your point? The use of such a system does have extreme oversight. Google CALEA and have a read on the domestic restrictions of such tools.

Originally Posted by keith

Afterall the cases where this is likely to be deployed is cases where you want to monitor all phone converstations in the vicinity of an suspected individual - which could be hundreds or thousands of calls in a large city. Of course you can't go to a judge and ask permission to monitor all those individuals calls in advance. You could of course ask after the fact though as the law allows; just present a list of names who where monitored. It seems that the administration didn't even bother running this idea by the judges involved.

There is a lot of speculation and misinformation about what happend, and who really knew. They are trying to lynch the president, so I'd be careful about jumping to conclusions before all the facts are out.

Originally Posted by keith

You seem to be labouring under the impression that this bothers me - it doesn't. I think it's not as useful a tool as some would claim - you are only likely to catch the stupid terrorists, or the type of character who likes to pretend to be on the fringe of whatever the latest lunatic has made popular.

Take your Jihad and bomb example - have a chat with someone about the latest goings on in the US and immediately you are under investigation..... perhaps this is the real reason that the administration wanted this quiet; now everyone is talking about what the keywords might be

You're wrong. Intelligence gathering is like bulding a mosaic. Up close it may seem that the information is benign and of not much value. In the context with other information, it can be extremely valuable.

Originally Posted by keith

.... but it has been how many years? Seriously, if the administration thought it could get this approach passed into law it would have done it already. My guess is that 'ess is right; The average american doesn't trust this (or any future administration) to deploy this technology with no oversight.

As Inq said, perhaps it's not a hill worth dying on. If they can do it under other rules, procedures or precedence, why bother taking it to congress for a fight?

Again, the reality is that these types of systems have so much oversight and what can be done with collected information is so controlled, its really not worth getting too worked up over.

[jeff]

Originally Posted by Inquartata

He also made a good many mistakes, miscalculations and misjudgements in his life; which is to say that he was human and therefore fallible. Though brilliant and wise, these qualities are no guarantors of the truth of any one of his opinions.

Which is simply (in different wording) what I said in my next sentence... ' This doesn't amount to "infallible"'. I was very clear about that, and see no reason for confusion.

Originally Posted by Inquartata

However, Franklin only rejected this same "safe" view and became an advocate of independence after suffering a personal political reversal while in England...a reversal brought about in large part by a bungled attempt at intrigue he himself had attempted...

That's not how I read the biography I'm looking at right now "Franklin came to London not only as a loyalist to the Crown but as an enthusiast for the Empire, of which he felt America was an integral part. But he soon found out that he labored under a misconception..." (Ibid, p183) More of an eye-opening experience, I would say.

Originally Posted by Inquartata

Are embarassment, anger and vengefulness roadmarkers to wisdom?

Is it your asserttion that Franklin's was possessed of those emotions - you haven't demonstrated this- and that his change in political stance (for which he was willing to risk life and property) was motivated by his emotional state? Are you contending that his conversion to the belief in independence was unwise?

Originally Posted by Inquartata

Moreover, a man more concerned with security through much of his life it would be difficult to find.

Somebody concerned about security would be more inclined to sacrifice other values in order to maintain it. Hence, your comment makes even more emphatic his admonition to not sacrifice liberty to provide security. Thanks for a comment that shows that Franklin felt liberty even more important.

Originally Posted by Inquartata

Nor has it been demonstrated that security and liberty are necessarily mutually exclusive, or at opposite ends of a spectrum.

Not as necessity, but in practice - in Revolutionary times and since then, there have been many instances in which liberty was sold cheaply to procure an imaginary security. The safe thing would have been to remain second-class subjects of the Crown, in his day.

Originally Posted by Inquartata

No, he was a great and insightful man, but I must beg leave to reject his opinion as proof of a given thesis. Albeit I do admire the aphorism.

Which, I repeat, is why the aphorism is not in the nature of "proof", but is an apt summary of a belief that otherwise would take longer to express. Being a figure of high respect makes it reasonable that we should hold such an opinion to have some value, but I explicitly said it was not "proof". I stated this clearly at the outset.

[Inquartata]

Originally Posted by achilleus

I stated that Ess' comparison between the US and Germany was made years ago by historians and that a TV movie (a documentary if I remember correctly) was made about the parallels.

Hmm. You seem to have a blind spot when it comes to seeing your own arguments. Remember the "a cut makes a tournament more competitive" business? You just could not, or would not, see that you were making any argument at all, much less the implications of it. I thought then that maybe I just wasn't pointing it out to you clearly enough, but I'm starting to think that this is a cognitive defect with you. I know, I know: your response, then as now, was "No, it's YOU who can't understand!" I expect more of the same after this.


Simply, you made an argument, Ach. It was "There are parallels, because a movie was made about them". What other possible interpretation can one put on your statement? Why else link those two things, the post 9-11 situation and a movie being made, if there were no relation betwen them?

No where did I mention a judgement as to the accuracy of the comparison, the meaning of said comparison, nor did I offer a movie as proof of the veracity of these parallels.

No? You see no "judgement" in

"This is a very good point ( I suppose that's not agreement with or approval of the "point"? ), nor are you the first to have this theory or make this comparison. Shortly after 9/11, and the beginnings of the Patriot Act, many historians made comparisons of the current state of the US to Germany, pre-WWI. In fact, there were so many parallels ( looks like a "judgement" to me---not "some have said there were parallels", but "there were" ), that a TV movie was made ( "so many" existed...that's not a judgement? ), and set to be aired on CBS. CBS pulled the plug due to fear of boycotts (and you know that this is the reason, how? ), and the program never aired."

Right, no judgement, just a perfectly impartial reporting of a state of fact, no metaphorical nods there whatsoever.

Feel free to discuss any similarities or differences between the US and pre (or post for that matter) WWI Germany if that floats your boat. Feel free to add some Latin phrases to your posts, but really, try to read what is written rather than make up your own meaning...

I can read perfectly well. Perhaps if you stop making ridiculous conspiracy-theory assertions I can do so without scratching my head or pointing out your howling errors.

"Feel free" to respond with more supercilious metaphorical pats to my head.

[Inquartata]

Originally Posted by Philistine

How about it?

I was asked to back up my statement that previous Administrations have held the view that the Executive has plenary powers deriving from their Constitutional assignment which are not legaly trimmed by FISA; that FISA does not bind them. There is the support for what I said.

AFAICT, this was a statment made less than a month ago--and the only "evidence" for it was the explanation "Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that 'the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.'"

You don't think that maybe an assistant AG working for a previous Administration knows more about the views of that Administration than you or I? That maybe in the course of his work he has heard positions taken and seen briefs and so forth that we are not going to unearth with a casual Google search?

I'm willing to take his professional word for the fact that this is and has been the position taken by his Administration and others. He's in a much better position to know about that than I am, and I can see no reason for him to make things up in order to support a position taken ONLY by the Bush White House. You are welcome to call him and ask him for documentation of his statement. I was only asked to furnish a cite for my assertion that previous administrations have taken the position.

I'm not quite sure how exactly this equates with either every president or some contention that FISA is unconstitutional. I don't think anyone is arguing that the president cannot go past FISA's terms. The argument is he cant contravene them.

What is the difference?

If FISA says "You must do X and Y before you can exercise power Z" and you just go ahead and do Z, that's "going past" the restrictions put in place by Congress, no?

Goerlick's statements were in the context of warrentless physical searches--which were not (at that time) made criminal by FISA.

The quote was not from Gorelick. Nor have I seen any qualification from Schmidt that he was speaking only in relation to something Gorelick did or said, or any mention of a distinction between types of search...or for that matter any mention of searches at all. His statement looks pretty broad to me.

However, we can discuss Gorelick's 1994 testimony to Congress if you like.

An excerpt:

"...the Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."


Which I daresay was the statement to which you have referred. But he then went onto say that

"...when the Supreme Court determined that warrant requirements applied to electronic surveillance for domestic intelligence purposes in the Keith case, it specifically declined to apply this holding to foreign powers or their agents."

And also

"...for Fourth Amendment analysis purposes, courts have made no distinction between electronic surveillances and physical searches."

I wonder how many other laws the Administration has decided are unconstitutional, but hasn't bothered to tell anybody they are violating.....

Bit of a red herring, don't you think?

The proper response would be to veto the law.

Technically, yes. But you know as well as I do that legislators are wont to attach pet provisions to larger pieces of legislation which they feel the President cannot veto. This is a pretty standard tactic. Or the provision is part of a tit-for-tat deal. And politics is not always---perhaps not even usually---about the "proper response", but about the convenient or the useful one.

IMO some combination of those rationales is probably how FISA got signed in the first place.

If the veto is overridden, then bring an action in Court, and get a stay of the law--something which is not uncommon.

And do you enforce the law until you can do so?

Except that Executive Orders--by definition--are not binding on Congress, while laws, by defintion--are binding on the President.

Not if they are attempts to impose unconstitutional restrictions on the ennumerated powers of the Exexcutive they aren't...

Again--FISA contains a mechanism in the case of war in order to allow it to be modified. The President didn't even attempt to suggest a modification in accordance with what they've done.

Why would he bother, if he believes the relevant provisions are nonoperative?

They did make other suggestions for modification which were accepted by Congress.

Just as several Administrations have felt that some provisions of FISA infringed upon inherent Constitutional powers of the Executive, they have recognized that other provisions did not. I see no contradiction in agreeing that they are bound by X but not by Y, and behaving accordingly.

I am extraordinarily uncomfortable with any President's contention that he is the final arbiter of which laws he will comply with, and which he will not--and that he will keep secret which laws he has decided to comply with and which he has decided to ignore.

--Philistine

I cannot fault you for this, but I would point out that in this specific case he is very probably right that some of the provisions of FISA infringe unduly on Constitutional powers of the Executive branch. Some legal scholars seem to concur, so it's not as though Bush himself is simply declaring himself exempt willy nilly from an inconvenient statute without either reason or justification...