A Coupon? I Kill You! I Bomb Your Place!

The New York Times is reporting that the NSA's eavesdropping program was not so much a "vital tool," as President Bush described it, but a source of dead ends and wild goose chases, what agents described as "calls to Pizza Hut." Which, in retrospect, suggests that the "death to the infidels" three-topping special was probably a bad marketing move. (Hat tip: Garance at TAPped)

Comments

[Number 6]

Props for referencing the original, underground Jerky boys tape. Bonus points if you can work in a "I want you to beat the shit out of my wife" title somewhere.

Re: the topic at hand. Is this surprising to anyone?

[Ed]

Yes, and I understand that during the decoding of Nazi Enigma transmissions the odd Schnitzel Hut was raided.

[AnonCowherd]

When I read this in the newspaper this morning, I was reminded of comments here about how "they" would never waste their time and limited resources following the conversations of "ordinary" citizens.

I doubt we'll see those commentors admit how wrong they were.

[Tom]

Context please:
1. There are no named sources in the article, and the anonymous sources are probably the same people who so despised the program in the first place that they outed it.
2. Public polls have indicated that a majority of Americans don't mind a little eavsdropping if it helps to catch terrorists.

So do you think the NSA sources and the NYT have a vested interest in making it seem like the program had no practical benefits?

Finally, Federal agents have launched an investigation into a surge in the purchase of large quantities of disposable cell phones by individuals from the Middle East and Pakistan, ABC News has learned. Well, I'm sure convinced that all those terrorists were ordering pizza.

[SR]

"Public polls have indicated that a majority of Americans don't mind a little eavsdropping if it helps to catch terrorists."

Somehow my ConLaw professor skipped over the part where the protections of the US Constitution can be waived by polling data.

[Abdul]

I'm thinking that even terrorist cell leaders don't use their cell phones for exclusively terror business. It's not like Al Zawarhi is reading their expense accounts, asking "This call here, this was a booty call? And you made it on Al Quaeda's phone! Do you think we're run by some saudi billionare or something? Business calls only unless it is a family emergency."

[Jennifer]

Public polls have indicated that a majority of Americans don't mind a little eavsdropping if it helps to catch terrorists."

Eavesdropping doesn't bother me; eavesdropping with no warrants and no oversight does.

[Phil]

Uh, Tom, that story's already made the rounds, and its talking points are no longer operational:

"In a story Thursday about a potential link between terrorism and purchases of disposable cell phones, ABC Nightly News mentioned the purchase of a large quantity of cell phones in December from a Midland Wall-Mart.

According to Bill Vanderland, agent in charge of Midland's FBI office, no laws were broken when a group of men attempted to purchase a large number of cell phones from the Wal-Mart in the 200 block of Interstate 20 Dec. 18.

However, FBI agents responded to the incident at the request of the Midland Police Department, which was alerted to the attempted purchase by Wal-Mart employees.

Several members of the group were detained, Vanderland said, when authorities discovered they did not possess necessary immigration documents.

Immigration and Customs Enforcement agents ultimately charged one man for an immigration violation, Vanderland said, and two others were released after producing appropriate documents.

ABC's Thursday story also asserted a link between a suspected terrorist cell and the men attempting to purchase cell phones in Midland.

According to an MPD incident report quoted in an ABC online report paralleling Thursday's televised Nightly News story, "it was discovered that members of the group were linked to suspected terrorist cells stationed within the Metroplex."

However Vanderland said Thursday after the ABC report aired that assertions of a connection between a terror cell and the men who attempted to purchase cell phones from a Midland Wal-Mart were invalid.

"There is no known link or demonstrated link or any other kind of link at this point between the people here and any terror cell," he said.

ABC's online report did note, "ABC News has been unable to corroborate the information in the police report.""

See also here.

[mediageek]

"2. Public polls have indicated that a majority of Americans don't mind a little eavsdropping if it helps to catch terrorists."

Yeah, and at one time a majority of US citizens supported slavery, prohibition, disliked giving uppity womens the vote, and bought Journey albums.

Given the generally abysmal record of the American public to get anything right, I still find it shocking that anyone but the sort of person who would support slavery, dislike women voting, and has CD holder with the Ultimate Journey Collection would ever hew to the line "Well, a majority of Americans support X, so it must be alright."

[David]

2. Public polls have indicated that a majority of Americans don't mind a little eavsdropping if it helps to catch terrorists.

Phrased that way, who can blame them. Besides, you'll find that a polled majority of people believe a lot of idiotic things.

It would be nice if the public were presented with a suspect caught using his cell phone for terrorist planning, as proof that it works. Or maybe released some record of a plot foiled by the use of eavesdropping technology.

Either of these would better support claims that eavesdropping without a warrant is really necessary than the usual "You're in constant danger from terrorists. We can't tell you when because of national security, and we can't show you what we've done to stop it because of national security. You'll just have to trust us."

[joe]

If there was a debate going on about whether the government should be allowed to eavesdrop on Americans, Tom's point would be an interesting one.

However, since the debate is about whether the government should be able to eavesdrop on Americans WITHOUT WARRANTS, AND IN CONTRAVENTION OF THE LAW, his point is much less interesting.

For the recond, I believe the government should be allowed to eavesdrop on Americans. And, like the large majorities of Americans in every poll that asks thequestion, I believe they should obey the law and get warrants to do so.

[R C Dean]

I'm trying figure out the boundaries here, so, a few questions:

Does the government need a warrant to monitor communications between foreign governments and foreign nationals that are entirely overseas?

Does the government need a warrant to monitor communications between foreign governments and foreign nationals where one or the other is located in the US?

Does the government need a warrant to monitor communications between foreign governments and foreign nationals where both are located in the US?

Does the government need a warrant to monitor communications between foreign governments and US citizens that are entirely overseas?

Does the government need a warrant to monitor communications between foreign governments and US citizens where one or the other is located in the US?

Does the government need a warrant to monitor communications between foreign governments and US citizens where both are located in the US?

[R C Dean]

However, since the debate is about whether the government should be able to eavesdrop on Americans WITHOUT WARRANTS, AND IN CONTRAVENTION OF THE LAW, his point is much less interesting.

You can find some very serious legal thinkers, including I believe Cass Sunstein, who have indicated that some to much to maybe all of the eavesdropping we are talking about is both legal and Constitutional.

http://gaypatriot.net/2006/01/16/law-school-dropout-accuses-president-of-breaking-the-law

[Phil]

Given that the URL itself is an ad hom, I doubt I'll find much of value at RC's link.

[Timothy]

Does the government need a warrant to monitor communications between foreign governments and foreign nationals that are entirely overseas?

No, that's called "spying".

Does the government need a warrant to monitor communications between foreign governments and foreign nationals where one or the other is located in the US?

That depends, but I'm okay going with "yes" on this one. Although, granted, mainly out of practicality. It's hard to tell who is and isn't a foreign national when calling from a US number.

Does the government need a warrant to monitor communications between foreign governments and foreign nationals where both are located in the US?

I assume you would mean embassies and the like, which are technically not US soil. Again, I'm going to go with "yes" due to the difficulty of telling who is and who isn't a foreign national if one or more parties on the line is unknown to the investigative team.

Does the government need a warrant to monitor communications between foreign governments and US citizens that are entirely overseas?

As it is the US government, yes, it should gain a warrant from a US court before gathering data on any US citizen at any time. You don't lose constitutional protection from Uncle Sam simply by leaving the country. For the government, there are probably ways around this, but let's just go with "yes".

Does the government need a warrant to monitor communications between foreign governments and US citizens where one or the other is located in the US?

Most definitely, yes, because, you know, 4th fucking amendment.

Does the government need a warrant to monitor communications between foreign governments and US citizens where both are located in the US?

Again, yes, see amendment #4. And probably that whole "due process" bit of #5.

[methodman]

And you can find some serious legal thinkers at the Congressional Research Service who point out that it ain't lookin' too legal...highlights and link to the CRS report here. And if their link to the CRS report isn't working (as it appears not to be), this is the pdf.

[Frank Rizzo]

Nice headline there sweet-tits.

[joe]

RC,

Let's clarify some terms here. The spying violates FISA; it is in that sense "against the law." However, some in the administration's corner claim that the President doesn't have to obey the law, that he can violate laws passed by Congress and signed by the President whenever he decides he's acting as Commander in Chief. According to this theory, his actions that break the law are not illegal.

When I made reference to "IN CONTRAVENTION OF THE LAW," I was referring to the former case, when the President does something that violate an on-the-books law.

[Tom]

My comment about the polls supporting limited eavesdropping on Americans was not made to argue to rightness or wrongness of the action, but to suggest a reason why the program's foes would return to the NYT to tell us that nothing useful has been gained. This issue has little traction outside the beltway, because (I believe) the general public is willing to make some trade-offs, and balance the right to privacy with a desire for security. I think the NYT and the original leakers are trying to undermine this understanding of balance, hoping to amp up the outrage.

This is not a legal question. It is political from day one. If the leakers had non-partisan, Constitutional concerns, there is a whistleblower process they could have followed.

I think the blowing of the NSA intercept program is on the same page as State Dept officials complaining that the leadership appointed by the elected president doesn't respect the consensus of the careerists; CIA officials sending an unqualified hack to investigate Niger; State Dept officials defending the Saudia Visa Express program a year after 9/11; and so on. There is a war within the executive branch departments over who should make policy, the unelected careerists or the elected President and his appointments.

[Johnny Clarke]

I now have this amusing visual of bush putting on his "Commander in Chief" hat and doing whatever he likes, then taking it off and resuming his role as an elected official. I can't decide if it should be a shiny helmet or one of those large, garish things with feathers.

[Timothy]

I now have this amusing visual of bush putting on his "Commander in Chief" hat and doing whatever he likes, then taking it off and resuming his role as an elected official. I can't decide if it should be a shiny helmet or one of those large, garish things with feathers.

Like that episode of Upright Citizens Brigade where the guy can do whatever he wants as long as he does it through the hole in the sheet.

[David]

I now have this amusing visual of bush putting on his "Commander in Chief" hat and doing whatever he likes, then taking it off and resuming his role as an elected official. I can't decide if it should be a shiny helmet or one of those large, garish things with feathers.

Maybe the commander in chief hat should be a crown.

[Tom]

From the NYT article:
The F.B.I. and other law enforcement officials also expressed doubts about the importance of the program's role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch.

Some officials said that in both cases, they had already learned of the plans through interrogation of prisoners or other means.

So on odd-numbered days the NYT runs stories quoting anonymous officials saying that we don't need to eavesdrop on Americans because we get the same information through interrogration, while on even-numbered days the NYT runs stories quoting anonymous officials saying that our interrogration techniques are inhumane and should be stopped because they don't work anyway.

Am I the only one to see a pattern here?

[Captain Holly]

Forget Pizza Hut. I'm wondering how many of those calls were to 1-900-HOT-GIRL.

[joe]

Yes, Tom. A pattern.

When the issue is "warrantless eavesdropping by the government in violation of the law," you describe it as "eavesdropping," and point out that eavesdropping can be a good thing.

When the issue is "the use of torture as an interrogation practice," you describe it "interrogation," and point out that interrogation can be a good thing.

Yes, I see a very clear pattern.

[linguist]

Though I have, of course, changed my position on the NSA wiretaps to "anti", this story does support my idea that the NSA would get too caught up in its own bureacracy to cause any harm, anyway.

Still, if all this boils down to is more inefficiency, that's yet another reason to disallow it.

[mediageek]

"I can't decide if it should be a shiny helmet or one of those large, garish things with feathers."

Either way, I think it ought to have one of those spikes on it like the German helmets you see in WWI pictures.

[Tom]

joe at 11:32,
Good point, although you're oversimplifying things. I agree that I was blurring the lines in favor of my position; the problem is the media is blurring the lines in favor of their position, which is all interrogation is torture and all eavesdropping is wrong.

I allowed myself to get distracted; I never wanted to argue the merits (it's complicated and I have mixed feelings) but to point out that the NYT's anonymously-sourced hit piece may not be entirely trustworthy. Orin Kerr at the Volokh Conspiracy makes the same point I was trying to, but does a much better job saying it.

[Timothy]

mediageek: Bush doesn't have a withered arm like Kaiser Wilhelm, nor the totally rad moustache. Now if we somehow comnvinced Bob Dole to grow a big moustache and be president, then there'd be more cause for such helmets.

[mediageek]

Fun fact for the day:

There are only two US companies that still make moustache wax.

[James]

Is this story such a surprise? Remember the NSA activated WMD response teams when they heard pacifists were coming to visit.

I think they been in their little bunkers too long.

[ChrisM]

"You can find some very serious legal thinkers, including I believe Cass Sunstein, who have indicated that some to much to maybe all of the eavesdropping we are talking about is both legal and Constitutional."

To be clear, most of Sunstein's arguments concern the constitionality of the surveillance, not it's legality under FISA. He's actually somewhat non-comittal about the later.

Secondly, is it any surprise that both a left-winger (Sunstein) and the Bush administration agree that we ought to construct a nanny state, complete with warrantless surveillance? Big government is a dream shared by all sorts of wingnuts.

[Deacon Blues]

"The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. "There were no imminent plots - not inside the United States," the former F.B.I. official said."
"Some of the officials said the eavesdropping program might have helped uncover people with ties to Al Qaeda in Albany; Portland, Ore.; and Minneapolis. Some of the activities involved recruitment, training or fund-raising."
The second paragraph follows the first and , to me, contradicts the first. So the program is not successful except when it is.

[R C Dean]

Given that the URL itself is an ad hom, I doubt I'll find much of value at RC's link.

First, pointing out that Al Gore dropped out of law school is not an ad hominem attack, it is an observation relating to his qualifications to opine on this topic. Its also a cheap shot, but not every cheap shot is an ad hominem.

Second, by blowing off the link, you miss out on further links to commentary by, among others, Cass Sunstein and the Clinton administration lawyer on this topic.

To be clear, most of Sunstein's arguments concern the constitionality of the surveillance, not it's legality under FISA. He's actually somewhat non-comittal about the later.

and

However, some in the administration's corner claim that the President doesn't have to obey [FISA], that he can violate laws passed by Congress and signed by the President whenever he decides he's acting as Commander in Chief.

Of course, the Constitutionality of FISA insofar as it represents an attempt by the legislative branch to restrict the Constitutional powers of the executive, is also something of an issue. As you know, joe, just because a law is passed by Congress and signed by the President doesn't make it Constitutional.

[joe]

And as YOU know, RC, the President is not authorized to blow off the law because he, along, decides it is unconstitutional. There is a branch of government authorized to strik down laws as unconstitutional - the judiciary. Absent such an act, we are bound - even those of us who work for the government, espeically those of us who work for the goverment - to obey those laws, or face legal sanction.

And as you also likely know, FISA has been challenged and held to be constitutional.

[Timothy]

Do we need to go handing RC a copy of Maybury v. Madison? I mean, damn that activist John Marshall!

[Phil]

First, pointing out that Al Gore dropped out of law school is not an ad hominem attack, it is an observation relating to his qualifications to opine on this topic.

It is, of course, no such thing, unless one supposes that a multiple-term Congressman and Senator is, generally speaking, not in a position to speak knowledgeably at all about what is and isn't good law. Which would be -- not to put too fine a point on it -- idiotic.

I mean, I suppose you might be insinuating that only law school graduates should be listened to on this topic, or that our lawmakers should all be lawyers, but . . . really? I mean, really?

Aside from that, What Joe Said. The President does not have the Constitutional authority to decide that a law is unconstitutional and thus that he is not bound by it.

[ChrisM]

"However, some in the administration's corner claim that the President doesn't have to obey [FISA], that he can violate laws passed by Congress and signed by the President whenever he decides he's acting as Commander in Chief."

I'm aware that some people claim as much, but that doesn't make it so. This passage refers to a rather unorthodox view of executive power--one that finds scarce support in precedent or the Constitution. The passage is also consistent with my characterization of Sunstein's position; he doesn't actually claim that this is his personal view. Finally, the underlying logic behind the unitary executive theory admits of no clear bounds. Its firmest supporters claim that nothing binds the executive except the popular vote, which leaves second term presidents with absolutely no constraints. That sort of power would make even Louis the XIV green with envy.

[JD]

The "German WWI helmet with a spike" is called a Pickelhaube. And there are as many as two US companies still making mustache wax? One's got to be Clubman, but I don't know who the other might be. Still, it's not like it's hard to make your own.

[R C Dean]

The President does not have the Constitutional authority to decide that a law is unconstitutional and thus that he is not bound by it.

I'm not so sure about that. Doesn't every branch of the government have an obligation to evaluate whether the laws it is being directed to comply with are legitimate?

Do we need to go handing RC a copy of Maybury v. Madison?

I've read it. A brilliant piece of work, purporting to elevate the Court to a position of primus inter paribus via nothing more than obiter dicta. I'm all in favor of the Court striking down unconstitutional laws. Allowing it to do so does not necessarily strip the Executive of any authority or duty to refuse to recoginze unconstitutional laws as well.

[Jennifer]

Allowing it to do so does not necessarily strip the Executive of any authority or duty to refuse to recoginze unconstitutional laws as well.

Are you saying that the laws requiring the government to get a warrant when spying on people is unconstitutional? Which part of the Constitution are you referring to?

[Tom]

Are you saying that the laws requiring the government to get a warrant when spying on people is unconstitutional?

Possibly. One branch of government can not strip away powers granted by the Constitution to another branch. The President is granted the authority to make war (as commander-in-chief), and has sole power to conduct foreign affairs, so Congress can't, for example, dictate what day D-Day should be, or what our diplomatic position at the UN should be (other than its power to advise and consent on ambassadorial appointments), and CongressCritters are supposed to get State Department approval before meeting with foreign governments.

Implied in the power to make war and conduct foreign policy is the power to spy on our enemies. So if Congress passed a law forbidding the US from spying on foreign powers, it would be clearly unconstitutional and unenforceable. Some commenters here think the President would have to follow it until getting a ruling from the Supreme Court, but I'm not as sure about it.

No one is suggesting that the President can't authorize the NSA to eavesdrop on communications between suspected enemies of the US (al-Qaeda, Iraqi insurgents, etc.) when both parties are on foreign soil. The ultimate question here is does the President's constitutional authority to make war and foreign policy allow him to spy on communications between foreign enemies of the US outside the country, and enemies (or suspected enemies) who are inside the US and may even be US citizens.

The strong pro-surveillance argument is that the presidential power to conduct war gives him the authority to do this, even if it violates a law, becuase the Congress can't legislate away the President's enumerated powers.

The strong anti-surveillance argument is that eavesdropping on people inside the US is not "foreign" surveillance, that the fourth and fifth amendments (which do not apply to foreigners) do apply to persons in the US, and therefore if Congress has established a procedure to conduct surveillance within US borders (the FISA court) the President must follow the law.

[Jennifer]

So the Constitution says that the rules about warrants don't apply in wartime?

[Tom]

So the Constitution says that the rules about warrants don't apply in wartime?

That's kind of the argument, yeah.

The constitution is pretty vague on the subject, as it is on many things, allowing us to make up rules as we go along.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So what does unreasonable mean, and what is probable cause? For example, if a cop buys drugs from a guy on a corner, and chases him into a house, the cop can break into the house and search it without a warrant, because he has probable cause to believe there are drugs there, and because the delay in obtaining a warrant would allow the suspect to destroy any evidence and flee. There are a lot of other kinds of warrantless searches that are perfectly legal.

So one way to frame the debate is to say that if the NSA finds a US phone number on an al-Qaeda contact list (probable cause) it is not unreasonable to listen to calls made to that number without a warrant because during the delay to obtain a warrant, the suspect might get wind of the capture of his contact and change his number. Therefore the search is constitutionally permitted.

Of course, things that are constitutionally permitted can be regulated by Congress (things that are constitutionally required obviously can't be outlawed). And Congress has, through FISA, set up rules covering surveillance of supected terrorists within the US. The administrations argument then is, conducting surveillance on U.S. enemies during wartime is a Presidential Power that Congress can not take away by means of a law.

Whether the administration's argument will succeed remains to be seen.

[MJ]

"...that the NSA's eavesdropping program was not so much a "vital tool,"... but a source of dead ends and wild goose chases, what agents described as "calls to Pizza Hut."

Given that the 9/11 attacks were blamed on failures of intelligence and a failure to "connect the dots", suggesting that an intelligence program is a failure because a lot of lot of what it came up with was dross, is foolish. "Connecting the dots" as it were requres figuring out the pattern of dots, and whether some things are dots at all. I would suggest that of the information processed by most intelligence programs, 99% are dead ends and wild goose chases. That is the nature of the work. It's the few nuggets of gold remaining that justify the enterprise. There may be many good arguments to make against this program but that is not one of them.

[Douglas Fletcher]

The New York Times is reporting

What a cute concept.

[joe]

Tom,

The Constitution vests the power to declare war with Congress.

Congress also controls the federal purse; if they forbade the use of federal funds for taking pictures of Utah Beach, FDR would have been SOL.

[Sherry Parshley]

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Sherry Parshley of maggot maiden fame

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rite?

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