The NSA's Phone Tree

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Over at Balkinization, Marty Lederman calls attention to the broad sweep of the NSA's warrantless eavesdropping on Americans' international phone calls and e-mail messages. At his press briefing on Monday, Attorney General Alberto Gonzales said the NSA listens in only when there's "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." When such a communication involves a U.S. citizen, he said, "it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda." He also said these are "communications where we believe one of the parties is affiliated with al Qaeda or part of an organization or group that is supportive of al Qaeda." (Emphasis added.)

Thus, Lederman argues, even if you buy the president's claim that Congress' post-9/11 Authorization for the Use of Military Force implicitly authorized "signals intelligence," including warrantless surveillance of communications involving Americans in the U.S., the NSA program goes beyond the targets mentioned in the resolution–i.e., "nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Lederman concludes that "many of the communications in question–say, a phone call from me to someone who is not part of Al Qaeda, or working with Al Qaeda, but who is 'part of' an organization 'supportive of' Al Qaeda–are between two people, neither of whom is covered under the terms of the AUMF." He suggests this helps answer the question of why the Bush administration decided not to seek warrants, even retroactively, from the Foreign Intelligence Surveillance Court, which would have wanted at least an assertion that one of the parties to a monitored communication was an agent of Al Qaeda (or another terrorist group).

[via Protein Wisdom]

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  1. From the WaPo:

    One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

    Those pesky laws, next they’ll complain that trying and convicting someone “demands too much.”

    Link.

  2. Maybe the real reason for reshaping the Middle East through regime change and democratization is to make us safer from our own government, which can’t distinguish it’s ass from a hole in the ground.

  3. Ugh, there have been more than a few commenters here on the H&R blog that have already made exactly that assertion.

  4. Sorry for the heterodox view here, but isn’t supporting al Qaeda at least, in one sense of the verb, aiding it?

  5. Sorry for the heterodox view here, but isn’t supporting al Qaeda at least, in one sense of the verb, aiding it?

    I suppose that would depend on how you are defining “supporting”. If you mean “giving money to”, then certainly, that would be aiding.

    If, like some people argue, you say that speaking out against the war in Iraq is the same as supporting Al Qaida, then I would say no.

    It is a vague term, and I don’t trust the government to define it narrowly.

  6. And oddly enough, quasibill, that group overlaps to a high degree with people who complain about activist judges who ignore original intent and treat the Constitution as a living document.

  7. Beyond eavesdropping here. I am being serious. A law school-type hypothetical:

    A journalist in a foreign but not officially hostile country writes an article vociferously attacking the President and US foreign policy. The President decides the journalist should be killed as it may harm alliances.

    A) He authorizes private friends to make the hit.
    B) He orders the military to do the hit.

    Lawful or no? One side of page in bluebook.

    Assume no other persons or parties will be injured in the strike by either of the above means.

  8. Not lawful. The journalist is not a combatant, lawful or otherwise, and therefor is not a legitimate target for violence.

    That was easy. Next!

  9. I suppose that would depend on how you are defining “supporting”. If you mean “giving money to”, then certainly, that would be aiding.

    If, like some people argue, you say that speaking out against the war in Iraq is the same as supporting Al Qaida, then I would say no.

    I would agree with that, but funding AQ would be a lower threshold that I would call “supporting.” There could be other activities that could be considered “support”: intelligence, target identification, message relaying, safe houses, etc. not to mention actual operational execution.

    I’m not thrilled with this revelation, but I’m searching for a viable alternative…without much success. Either this is a war or it isn’t.

  10. I’m not thrilled with this revelation, but I’m searching for a viable alternative…without much success. Either this is a war or it isn’t

    It isn’t. Much like the “War on Drugs”, the “War on Poverty” or the “Cola Wars”. It is a nice rhetorical device, but fairly meaningless really.

    If you believe the 9/11 Commission Report, our government failed us on 9/11. Not because they didn’t have enough power. Not because they were unable to listen in on everyone’s conversations. Not because the signs were not there. They simply failed at their jobs. Giving them greater power is not only counter-intuitive, but it fails to address the problem(s)

  11. A) He authorizes private friends to make the hit.
    B) He orders the military to do the hit.

    By “private friends” do you mean, for instance, citizens of the foreign country in which the journalist is working?
    He orders the military, or paramilitary such as CIA?

    I think the law is pretty clear that murder is wrong, unless done to a combatant. And RC Dean is correct that a journalist is not a combatant. So it does seem we would have to answer “unlawful” in both cases.

  12. The problem is the President has claimed that he has unilateral power to declare who is a combatant without any restrictions or judicial review. If it is only illegal to murder non-combatants, wouldn’t it be legal for the President to kill anyone, anytime that he wanted as long as he designated them a combatant first, even if that designation was based on secret evidence never reviewed by a court that might have been obtained by torture. That is what is scary about the Bush administration, they are arguing for unfettered power to do anything that they want without transparency or due process, even if that means violating Federal law and the US Constitution. Fascism is on the march.

  13. It isn’t. Much like the “War on Drugs”, the “War on Poverty” or the “Cola Wars”. It is a nice rhetorical device, but fairly meaningless really.

    I’m sorry, but that’s just not a serious position. I yield to no one in my disdain for the War on Drugs, but the individuals killed on 9-11 did not make the choice to assume the risk of being incinerated or dismembered with al Qaeda contracted out to do the act. Cocaine ever declared war on the United States, nor has marijuana called upon all pious foliage to kill Americans wherever they may be found.

    When the leader of a recognizable band of militants says he will kill and destroy Americans and America, then proceeds to put his plan in spectacular motion, I’m inclined to take him at his word.

    Did the federal government fail us on 9-11? Absolutely. Did it lack the power to uncover the plot? Hmmm…no, though there are quibbles with that. But to conclude from these two data that there’s no threat to be countered is pure folly and not worthy of a political faction that is serious about showing it can adequately lead anything larger than a small town sewer district.

  14. “but the individuals killed on 9-11 did not make the choice to assume the risk of being incinerated or dismembered with al Qaeda contracted out to do the act”

    Actually, we all make this choice everyday we choose to do anything not dressed in body armor and driving a tank.

    The best definition of life I’ve ever seen is “the condition of being at risk of dying.”

    You have every right to make yourself as secure as possible. You have no right to force me to pay for it.

  15. Wow quasibill…

    And people actually wonder why no one takes us seriously.

  16. quasibill- but who’s gonna pay for the color-code chart?

    And what about the color-blind, how will they know the threat level? Not to mention the Braille edition. This stuff ain’t cheap. Only the feds have the resources.

  17. Wow quasibill…

    And people actually wonder why no one takes us seriously.

    My thoughts exactly.

  18. But to conclude from these two data that there’s no threat to be countered is pure folly and not worthy of a political faction that is serious about showing it can adequately lead anything larger than a small town sewer district.

    Whoa, hold on. I never said there wasn’t a threat. What I said was this isn’t a war. Big difference. Particularly since we can fight terrorists, but we cannot fight the concept of terror. This “war” is eternal.

    But defining it as a war is faulty on so many levels, not the least of which is it is a “war” that can never be won. There will always be threats. Oklahoma City was a terrorist bombing. The Unabomber was a terrorist. We will have to deal with those who wish to do us harm as long as we exist.

    But calling it a war does nothing to help the cause of stopping these threats before they are able to do us dammage. It does, however, help those who want power over us. And they use the mental associations people have with the word “war” to manipulate.

    The actual wars that have come before were far different from what we have to deal with now. This is an entirely different concept.

    Dangerous and Serious. Not a War.

  19. Jeffersonian asserts that there is indeed a real “war on terror” becuase an enemy, namely AQ, declared war upon the US. I certainly don’t disagree with that in general, but semantically that’s a “war against AQ”, not terror – you can’t fight a concept. It’s a bit like calling war with Japan a “war against military agression” after Pearl Harbor. Gulf War I would then have been just another theatre in that endless “war.”

  20. “Wow quasibill…

    And people actually wonder why no one takes us seriously.”

    Glad to see you had somehting constructive to add.

    No, really, thanks – that’s enlightening.

    Besides, I’m not interested in being popular, I’m interested in being right. And the truth is – you choose to take many, many risks everyday. You just choose that the reward is greater than the possible risk.

    If you don’t want to take any chance of dying in a car accident, you can drive a tank. Don’t want to get scalded with coffee? Don’t drink it. Don’t want to get killed in a terrorist attack? Don’t live/work in a highly populated area.

    Or, you can take precautions. But you DO make these choices, knowing that there is more of a risk of dying in NYC from a terrorist attack than there is in Podunk Iowa. That’s just reality. And anyone who denies it is just, well, a whiner, looking for welfare handouts.

    Happy Jack – exactly.

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