Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and conservative members of his panel have reached agreement on legislation that may determine the legality of the National Security Agency’s (NSA) surveillance program, GOP sources say.
Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.
Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives.
Conservative Republicans who pushed for the change say that it will help quell concerns about the measure’s constitutionality and allow the White House to retain a basic legal defense.
An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program’s legality.
Could anything be more obvious at this point than the fact that the Bush administration deeply fears having the legality of its eavesdropping activities adjudicated by a federal court? They have engaged in one maneuver after the next to prevent that adjudication.
One would think that if they really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior.
Without the provision which was originally "demanded" by Sen. Specter, it is basically impossible for any plaintiff to ever challenge the legality of the NSA program. In very general terms, in order to have standing to bring such a suit, a plaintiff would have to prove that they have been specifically injured by the warrantless eavesdropping beyond the injuries of an average citizen. But the program is secret and there have been no investigations into it. As a result, nobody knows whose calls have been intercepted without warrants.
Therefore, any would-be plaintiff would be immediately trapped in the type of preposterous, bureaucratic Catch-22 in which American law specializes and which the Bush administration is eager to exploit -- namely, since nobody knows whose conversations have been eavesdropped on, nobody could ever make the showing necessary to maintain such a lawsuit, and since the administration claims that all such information is highly classified, the evidence necessary to make that showing can never be obtained. Thus, in the absence of the provision in Sen. Specter's bill, the administration would be able, in virtually all circumstances, to block a ruling on the legality of the NSA eavesdropping program:
[GWU Law Professor Mary] Cheh said plaintiffs would likely have to jump over very high hurdles to have their cases heard. The administration could, for example, invoke the “state-secrets privilege” and deny plaintiffs access to information, or it could try to deny plaintiffs’ legal standing. Cheh said it would be difficult for plaintiffs to demonstrate in court that they have been injured by the surveillance program because the program is secret.
There are other ways for the legality of this program to be challenged. For instance, a criminal defendant who can prove that evidence being used by the Government against him was derived from the illegal eavesdropping program can challenge the admissibility of that evidence, which, in turn, would require a court to rule on the legality of the eavesdropping program (because if the program is illegal, no evidence derived from it is admissible). But in such a case, the administration -- as they have done so many times before -- could simply drop the case or agree not to use the evidence in question, as a way of avoiding a ruling as the legality of the NSA program. Sen. Specter's bill was the sole mechanism to ensure that a federal court would rule on the legality of the administration's eavesdropping conduct -- which is precisely why its loyal soldiers on the Judiciary Committee refused to agree to any bill that contained that provision.
It is always worth noting that nothing in any of these bills immunizes the administration from being held accountable for its previous and ongoing violations of FISA. These bills simply render legal on a going forward basis warrantless eavesdropping. They do not make these programs retroactively legal.
Additionally, due to an independently revealing fact, we are far away from any resolution of this issue:
The agreement appears to pave the way for the committee to approve Specter’s bill and one sponsored by Sen. Mike DeWine (R-Ohio) granting the surveillance program legal authority. GOP aides say the chances of the bills’ reaching the Senate floor this year are unknown because of a crowded schedule and the dwindling number of workdays left this session. . . .
The panel had been expected to mark up Specter’s and DeWine’s bills Thursday but, instead, the committee will work on legislation on same-sex marriage. Two prominent conservative leaders, Dr. James Dobson of Focus on the Family and Tony Perkins of the Family Research Council, met Senate Majority Leader Bill Frist (R-Tenn.) and Assistant Majority Leader Mitch McConnell (R-Ky.) last week.
The delay of the markup on the NSA-related bills could imperil the compromise on the Specter and DeWine bills. The longer the agreement has to last before committee action, the more likely it is to be mulled over and picked apart, a GOP aide said.
Right now, many Bush allies in the Senate are far too busy with the critically important task of mollifying their political boss, James Dobson, by pretending to engage in another election year effort to constitutionalize the laws of marriage. As a result, they don't have time for petty matters such as legislation governing how the NSA collects foreign intelligence and spies on American citizens. As a result, even if Specter and the Bush allies on the Judiciary Committee can reach an agreement as to how to bestow the administration's illegal eavesdropping program with a shield of legality, it is far from certain that any of this will be resolved before November.
In the meantime, maybe some enterprising reporters somewhere could start asking administration officials - and their stalwart Senate allies - why it is that they are so eager to avoid a judicial ruling on the legality of this program if they are so confident that the president did nothing wrong. People who are unjustly accused of violating the law are eager to have their name cleared. Why isn't the president?
It's no surprise that Specter rolled over. He's just being consistent.
ReplyDeleteArlen Specter is a joke.
ReplyDeleteThis wouldn't bother me so much if he weren't helping the Bush Administration turn the American political system into an even bigger joke.
When are these supposedly wise and independent people going to learn that the worm turns, and it pays to work together?
ReplyDeleteAll this ass covering is going to come back with a hard bite on the Administration and the majority in Congress (and we all know who they are).
Now we just need the Democrats to learn that leading means taking a position before the majority of the public supports you.
As promised (I said Specter's a joke, now I've got one) (inspired by Eats, Shoots & Leaves):
ReplyDeleteBush and Rove are talking one night. Suddenly a terrifying apparition appears, dragging chains and chanting, "Im-peach-ment, Im-peach-ment," wearing a white sheet. Bush squints. "It's too tall to be Sessions in his Klan regalia," he says. "Unless he's gone J.Edgar on me and started wearing heels." Rove hisses at Bush: "Shut up." And the vision looms over them. "George W. Bush, you have done some very bad things, for which you must be investigated. And I will be doing those investigations. And you will be called upon to pay for your excesses." Bush's face goes white. "Oh, crap," he whispers to Rove. "We're screwed!" Rove slaps his shoulder. "I told you to shut up." The figure shakes a white finger at Bush: "I've got a subpoena, and I'm going to use it!" Bush almost faints, but Rove slaps him awake, harder now. "Sit up, George." Bush shivers. "He's going to impeach me!" Rove shakes his head. "Trust me," he says, "he's about to go away." And a moment later, the apparition floats towards the window. Bush, sensing his security restored, gathers the courage to ask, "Hey, what the hell are you?" And the ghost turns around. "I'm a specter," it says. "You know you scared the crap out of me," says Bush. "And for what?" The ghost shrugs. "Look it up. That's what I do." Bush, of course, has a well-worn dictionary, and when Rove helps him find the entry for specter, he reads it: "Specter: a terrifying figure that appears threatening and ominous, but doesn't actually do anything. Its only power is in the minds of others, because it exercises none of its own." Bush relaxes visibly and grins at it, anger becoming confidence now that he's out of danger. "Where're you going now?" he asks. The ghost shrugs, halfway through the window. "I gotta go talk to Lieberman. He always makes me feel more powerful."
I wonder if the legislation will be drafted broadly enough to legalize other NSA activities?
ReplyDeleteSlightly OT:
ReplyDeleteAT&T commercial:
"We identify security threats before they're problems."
Tag line: "Your world, delivered."
Maybe they ought to think about retooling their ad campaign for a slightly different image....
Cheers,
Let's work it backwards from a civil suit. Wouldn't Verizon & ATT have to use the government as a witness
ReplyDeleteto defend against lawsuit damages? How could these companies defend themselves without the support of the government and thus by default challenge the legality of the info transfer? I'm no attorney, nor do I play one on TV so, does any one think I'm way out there in my thinking? Great post as usual Glenn, CAN"T WAIT FOR MY BOOKS!
Putting aside the fact that it would be politically infeasible, what are the legal issues involved in charging Specter, Patrick Roberts, etc. with obstruction of justice? Do members of Senate committees have blanket immunity? They seem to have committed the offense IMnsHO. It is outrageous that they will get away with this. I would use adjectives like execrable and satanic, but it might appear to be hyperbolic. BTW, I think Orrin Hatch is one of the worst thing that has ever happened to America.
ReplyDeleteFrom the article:
ReplyDelete"Conservative Republicans who pushed for the change say that it will help quell concerns about the measure’s constitutionality and allow the White House to retain a basic legal defense."
Allow the White House to retain a "basic legal defense"??? Since when is sidestepping a court ruling a "basic legal defense"?
Not sure if "the measure's constitutionality" refers to the constitutionality of the DeWine/Specter bill, but why would preventing a court ruling "quell concerns about [some thing's] constitutionality"?
Black is white, up is down, and we've always been at war with Eastasia....
Cheers,
Yes, and consider Glenn's post in light of yesterday's discovery by ABC that the FBI has been tracking their phone records (under the authority of national security letters) in order to discover who is leaking stories like the NSA surveillance.
ReplyDeleteThen read this Washington Post article from last Nov. which reveals how these national security letters (30,000 a year) are used to create a database of information about the personal lives of innocent Americans.
The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.
If the Democrats are smart, what they will do is boycott all of Specter's sessions on this issue. That will put the differences between the parties in sharp relief. We simply announce we will not participate in a constitutional atrocity. It will make headlines and concentrate the public's attention on what the Republicans are doing.
ReplyDeleteIt's amazing how transparent their motives are, and how few in the mainstream media are willing to point this out. It's been obvious for quite some time that the common denominator in all of the Bush administration's NSA program posturing is a desire to avoid judicial review.
ReplyDeleteI love how the article suggests that standing is an "important legal defense" for the administration. Please. Standing is a bizarre procedural technicality. The Bush administration is gambling that, with a secret program, we'll never know exactly whose rights are being violated, and therefore no one will ever be able to establish standing to sue. How ridiculously Orwellian a policy.
And Specter comes through again. Somebody tell Jack Cafferty...
ReplyDeleteI've been seeing "Glibertarian" a lot recently, but haven't been able to determine the meaning. Someone mind helping?
ReplyDeleteIt seams to me that this law would just be icing on the cake. They are already avoiding anysort of oversite by using states secrets. If people don't stand up, we are through.
ReplyDeleteTherefore, any would-be plaintiff would be immediately trapped in the type of preposterous, bureaucratic Catch-22 in which American law specializes and which the Bush administration is eager to exploit -- namely, since nobody knows whose conversations have been eavesdropped on, nobody could ever make the showing necessary to maintain such a lawsuit, and since the administration claims that all such information is highly classified, the evidence necessary to make that showing can never be obtained.
ReplyDeleteI'd note that the FISA law provides for notification of surveillance in certain cases (intent to use such evidence at trial or in the case of denial of a 72 hour emergency order [with exceptions]; see 50 USC 1806). I'm not sure that this new legislation does so.
Cheers,
With every new bit of information we receive about this NSA spy program, the program becomes more enraging and more ludicrous. For the dissenters, Specter then grimly appears on the Big Media Screen talking accountability and oversight. Little does anyone know, he's crafting legislation with his fellow GOP'ers that render all of his comments moot, and furthermore, the legislation gains no media attraction despite its contradictory nature in regards to his public statements. Is Specter sincere when he says that congress is not giving meaningful oversight? Is he just a politician, recognizing good publicity? What role does he see for himself in the GOP congress? It's difficult to understand Specter through his language, but becomes more clear watching his actions.
ReplyDeleteGlenn says:
ReplyDeletewhy it is that they are so eager to avoid a judicial ruling on the legality of this program if they are so confident that the president did nothing wrong. People who are unjustly accused of violating the law are eager to have their name cleared. Why isn't the president?
So let me get this straight... You're complaining that the Senate is trying to make the Program legal, before you have a chance to get an opinion to the contrary?
This is an embarrassment. After all the haranguing about making the program legal, here you are ticked off, because that's exactly what's happening.
There is no more concrete way to demonstrate malign political intention toward Bush, and desertion of the principle that the people should be protected.
Hey, Specter, et al. -- If they've done nothing wrong they should have nothing to hide. Just like he said Saddam should do with his weapons, Bush should lay out the NSA warrantless wiretap programs for the world to see . . .
ReplyDelete-- cs, art is bread
Anonymous said...
ReplyDeleteI've been seeing "Glibertarian" a lot recently, but haven't been able to determine the meaning. Someone mind helping?
glib libertarian.
Example: Shooter242 - glib libertarian.
ReplyDeleteWill Jack Cafferty mention the heroic stance of "the last person standing between us and a dictatorship"?. Will Jack say today "it's official, folks - we're in a dictatorship". Just askin
ReplyDeleteA great irony perhaps would be if the immigration issue builds more outrage within the GOP. And with that outrage would be a loss of focus on protecting Bush's ability to play king with NSA etc etc. Time would offer more exposure. The Telecoms would squeal, Media starts to get on board. I noticed on Countdown that Matthews was "outraged" at Bush's continued reference to American citizenship as a paper. Outrage used to be a word he used only on Democrats.
ReplyDeleteRight wing libertarianism is total glibberish.
ReplyDeleteMain Entry: glib
Function: adjective
Inflected Form(s): glib·ber; glib·best
Etymology: probably modification of Low German glibberig slippery
1 a : marked by ease and informality : NONCHALANT b : showing little forethought or preparation : OFFHAND glib answers c : lacking depth and substance : SUPERFICIAL glib solutions to knotty problems
2 archaic : SMOOTH, SLIPPERY
3 : marked by ease and fluency in speaking or writing often to the point of being insincere or deceitful a glib politician
- glib·ly adverb
- glib·ness noun
How is this even constitutional? I don't think you can legislate away judicial review.
ReplyDeleteAnon - "glibertarian" = "glib + libertarian", meant to refer to people like Glenn Reynolds who consider themselves libertarian but espouse authoritarian conservative views. They also tend to have a terse commentary style.
Any actual libertarian would be horrified by the power grabs and manipulations of the Bush administration.
[one of the other] a.l. sez:
ReplyDeleteI love how the article suggests that standing is an "important legal defense" for the administration. Please. Standing is a bizarre procedural technicality. The Bush administration is gambling that, with a secret program, we'll never know exactly whose rights are being violated, and therefore no one will ever be able to establish standing to sue. How ridiculously Orwellian a policy.
Combine that with the Ohio suit, and basically what is being said si that if you're all screwed equally, no one can sue. If they're tapping everyone's phone, you don't have a "particularized, individual" complaint.
I long for the days of Flast v. Cohen and the Warren court. Has that been overturned?
Cheers,
It's like the courts in Germany in the 30s and we are all the new Jews.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteGlenn:
ReplyDeleteGOP Senators block judicial review of NSA program
Really? Let's see what The Hill article actually said...
As The Hill reports:
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and conservative members of his panel have reached agreement on legislation that may determine the legality of the National Security Agency’s (NSA) surveillance program, GOP sources say.
Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.
Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives.
Looks like the sponsors of the bill made it conform to Article III of the Constitution. Article III forbids courts from rendering advisory opinions as Specter proposed and instead requires an injured party to bring a case in controversy, which is what the compromise calls for.
Nowhere in this article does it report that the bill will "block judicial review of NSA program."
An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program’s legality.
Yes, the obstacles are Article III of the Constitution and the utter lack of anyone with standing who was harmed in any way by this program. Not this bill.
Thus, in the absence of the provision in Sen. Specter's bill, the administration would be able, in virtually all circumstances, to block a ruling on the legality of the NSA eavesdropping program:
[GWU Law Professor Mary] Cheh said plaintiffs would likely have to jump over very high hurdles to have their cases heard. The administration could, for example, invoke the “state-secrets privilege” and deny plaintiffs access to information, or it could try to deny plaintiffs’ legal standing. Cheh said it would be difficult for plaintiffs to demonstrate in court that they have been injured by the surveillance program because the program is secret.
Those are the present hurdles in open federal court. This bill changes nothing so far as those cases go.
However, this bill may actually make it more likely that a plaintiff can successfully bring a suit because the Government may not be able to use the “state-secrets privilege” in the secret FISA court. The plaintiff's could request that the FISA judge review the NSA records in camera to determine if that particular plaintiff was a target of that intelligence gathering. The Government could not easily argue that the FISA judges are not cleared for top secret information.
However, in the end, the largest obstacle to any claim may be that the DeWine Bill ratifying the program will make any future claim before the FISA court moot. This bill's judicial review additions (not subtractions) are not likely to be retroactive.
Right now, many Bush allies in the Senate are far too busy with the critically important task of mollifying their political boss, James Dobson, by pretending to engage in another election year effort to constitutionalize the laws of marriage. As a result, they don't have time for petty matters such as legislation governing how the NSA collects foreign intelligence and spies on American citizens.
The timing of this bill has nothing at all to do with the Marriage Amendment. I told you folks months ago that this bill will be introduced and voted on just before Congress goes on recess to campaign this fall.
The Elephants are in no hurry. While the Donkeys may want to avoid this issue like the plague, the Elephants want to make it a campaign issue and force the Donkeys to get on record with a vote.
The Elephants not only want to get Donkeys in competitive races on the record, they want to get the Donkey leadership to vote against it so they can use this in commercials to argue that the Donkeys will stop the NSA from spying on al Qaeda if they gain power.
This is nothing but a winning political issue for Elephants.
Bring it on!
Since when is it the job of Congress to ensure that the administration has a basic legal defense for their illegal NSA wiretapping scandal/program?
ReplyDeleteOh yeah, since the Rebumlican Congress decided lick BushCo's taint.
My apologies to all those Republicans who actually stood for something once upon a time, although I am not sure what that ever was at this point.
Today, the Republican party will do three things: 1) put you into poverty, 2) put you in Jail, or 3) put you in a grave.
Loser...Any actual libertarian would be horrified by the power grabs and manipulations of the Bush administration.
ReplyDeleteI agree with some of what you say. What an "actual libertarian" is I'd like to know. It's very much open to debate and if you looked closely at the 2004 LP platform and you found it something you would support, you have been glibbed.
shooter242:
ReplyDeleteSo let me get this straight... You're complaining that the Senate is trying to make the Program legal, before you have a chance to get an opinion to the contrary?
If we passed a law tomorrow making axe-murderign pederasty legal, you'd still be in the slammer if you'd been convicted of such, and you'd still be legally and morally a criminal. Clear now?
This is an embarrassment. After all the haranguing about making the program legal, here you are ticked off, because that's exactly what's happening.
Who's been "haranguing about making the program legal"??? We've just been saying that in a constitutional republic, we expect -- nay, demand -- that the gummint follow the law. If you want different laws, pass them, and then do your thing. But don't expect a "get out of jail free" card because you thought that axe-murdering pederasty was peachy keen despite being illegal and thought the laws weren't 'good enough' for you to follow.
If the new rule is "everything Dubya wants to do goes, cause we'll just patch it up for him afterwards [hmmm, sounds like Dubya's life story]", there aren't any rules. Sad to see that this escapes you.
Cheers,
HUME'S -
ReplyDeleteThanx for the link to the WaPo article about the NSLs.
Yes we should be terrified. To all the bush appologists, its called the rule of law, and that pain-in-the-ass constitution. We know the "terrorists" have you trembling like scared little children but the rest of us adults would like to keep our country as the founding fathers intended.
ReplyDeletehttp://www.dailykos.com/storyonly/2006/5/16/10190/6364
Amust read.
Is there a procedure for impeaching or removing from office senators that fail to uphold their oath to uphold the constitution? Because if there is, then it's way past time for Specter, Hatch, Roberts, Lieberman and several others to be removed.
ReplyDeletedone strictly to kill lawsuits against telecoms and the govt
ReplyDeleteDUH
hello...is anybody out there?
its the new world order you=slave
them=have 100% of everything
HWSNBN spouts the same tired ol' horse patooties for the 397th time:
ReplyDeleteLooks like the sponsors of the bill made it conform to Article III of the Constitution. Article III forbids courts from rendering advisory opinions as Specter proposed and instead requires an injured party to bring a case in controversy, which is what the compromise calls for.
Simply untrue on a number of levels. First, as I've explained, there is not constitutional bar on "advisory opinions". As I've explained (and the troll here has ignored), such a "ban" is rather a glib short-hand for the actual, more intricate and detailed principles of "standing", "case or controversy" (which is the language that actually appears in Article III), "justiciability", "jurisdiction", etc. But Congress has many times conferred standing on specific parties to make claims or to challenge laws, and this has never been ruled unconstitutional; this is hardly exceptional, and HWSNBN is a liar or an eedjit if he doesn't know this essential fact of law. For just one example of the gummint itself being given standing to sue, see 38 USC 4323 ... there's many more where that came from.
Time for HWSNBN to drop four bits and buy himself a refresher course from Cracker Jax School of Law....
Cheers,
I failed to note in my previous comment that the National Security letters allow the FBI (and thus any law enforcement or intelligence agency) to obtain personal information (phone records, credit reports, etc.) without judicial review.
ReplyDeleteThis, the alleged NSA database of all phone calls, and the President's authorization of warrantless surveillance seems to be at odds with the President's assurance that the gov't is not trolling the personal lives of millions of innocent Americans.
This comment has been removed by a blog administrator.
ReplyDeleteThe Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which marked its fourth anniversary on Oct. 26. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.
ReplyDeleteAmerican citizens are now treated in a way that only foreign suspected terrorists were. What we are seeing is the shift from innocent till proven guilty towards guilty till proven innocent. That is a slope I'm not at all comfortable sliding down.
They want to get the Donkey leadership to vote against it so they can use this in commercials to argue that the Donkeys will stop the NSA from spying on al Qaeda if they gain power.
ReplyDeleteIn other words they want to continue lying. Well, it has worked in the past, but I suspect that people are waking up.
iN
Arne Langsetmo said...
ReplyDeleteBart: Looks like the sponsors of the bill made it conform to Article III of the Constitution. Article III forbids courts from rendering advisory opinions as Specter proposed and instead requires an injured party to bring a case in controversy, which is what the compromise calls for.
Simply untrue on a number of levels. First, as I've explained, there is not constitutional bar on "advisory opinions". As I've explained (and the troll here has ignored), such a "ban" is rather a glib short-hand for the actual, more intricate and detailed principles of "standing", "case or controversy" (which is the language that actually appears in Article III), "justiciability", "jurisdiction", etc.
It is true that the doctrine of "advisory opinions" is simply a branch of standing. While this might hold some interest for the uninitiated, it affects my argument not at all.
As for the the term "advisory opinion" being "glib," take it up with the Supreme Court which uses the term.
Lex, Arne has identified the Article III language for you - "case or controversy."
But Congress has many times conferred standing on specific parties to make claims or to challenge laws, and this has never been ruled unconstitutional; this is hardly exceptional, and HWSNBN is a liar or an eedjit if he doesn't know this essential fact of law. For just one example of the gummint itself being given standing to sue, see 38 USC 4323 ... there's many more where that came from.
Perhaps you might educate us all by posting the statutes which you believe might be precedent for the Specter plan to have the FISA court render advisory opinions without an actual plaintiff.
While I can only speculate as to what you are referring, it sounds like instances where Congress allowed a third party to stand in for an actual plaintiff who for some reason could not bring a case. That does not appear to be the case in the Specter plan. There are no identifiable plaintiffs with standing.
bart:
ReplyDeleteThere are no identifiable plaintiffs with standing.
Precisely why its a Catch-22. There are probably hundreds of people who would have standing but as long as they're not "identifiable" then they're screwed. Which I beleive is the whole point of the post. (but you knew that.)
The troll HWSNBN continues disingeniously:
ReplyDeleteIt is true that the doctrine of "advisory opinions" is simply a branch of standing. While this might hold some interest for the uninitiated, it affects my argument not at all.
Sez the troll. That's because the troll simply repeats the same ol' pap day after day and ignores what others say, and calls it an "argument".
As for the the term "advisory opinion" being "glib," take it up with the Supreme Court which uses the term.
From Hewitt v. Helms:
"The real value of the judicial pronouncement - what makes it a proper judicial resolution of a 'case or controversy' rather than an advisory opinion - is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff."
So the job of the troll HWSNBN is to show how a ruling on the NSA program's legality (and thus on whether it can be legally continuted) is not going to affect the behaviour of the gummint.
HWSNBN would be better to claim that no one has standing to initiate such a suit, but it's long been recognised that the gummint in particular can claim standing WRT laws that it's expected to abide by.
Then there's the rather lax "standing" rule in Dubya v. Gore which kind of opens the door wide, doesn't it?
Cheers,
I'm traditionally unmotivated to take to the streets over political issues, but I believe we should march in Washington against the rampant law-breaking and skirting of judicial review by this president and the acquiescing members of Congress which allow it to happen. Anyone know how we make this happen? I'm completely ignorant when it comes to political activism.
ReplyDeleteLex said...
ReplyDelete"Bart: The entire text of Article III, from The Constitution Society, follows. I'm not a lawyer. Please tell me where it says that courts may not render advisory opinions."
Lex, advisory opinions are an issue of mootness and ripeness. Advisory opinions are rendered in absence of an actual live issue in controversy.
There must be an actual justiciable controversy for the Article III Fed Cts to hear. With no actual controversy, the matter is one of an "advisory" opinion. Such opinions are matters for the Executive Branch's internal legal people to address, not the US Supremes or any other inferior Art III Court.
Specter's office is now saying there will still be hearings on Hayden's appointment, which is sufficient.
ReplyDeleteMy ass it's sufficient.
This is why no election, no eloquent blog, no op-ed is going to make a difference.
ReplyDeleteIt's going to take people, lots of people, angry and loud, in the streets if we're going to preserve our liberty maintain our Republic.
paul rosenberg: A Day Without A Democrat? A Week? A Month? A Year?
ReplyDeleteHow about a Day without a Patriot?
Issues:
1) Stop the War in Iraq
2) Find and Arrest bin-Laden
3) Stop Spying on Americans
People supporting these issues will simply stay away from work. Excluded--for now--are people who provide vital services.
Specter's capitulation was thoroughly predictable. His reputation as a "principled maverick" is as undeserved as John McCain's. Indeed, the notion of a "moderate Republican" has about as much substance as the notion of a "moderate Iranian" (in the Ollie North context).
ReplyDeleteI wonder if the Justice Dept. will continue to be so eager to avoid judicial review of its royalist claims, considering the decision in DailmerChrysler v. Cumo (referenced in an earlier comment). The Supreme Court now unanimously agrees taxpayers have no standing to challenge the tax or spending decisions of their governments. That is, citizens have no legal power to prevent the government from doing anything. (I offer a fuller analysis of this decision at http://dethronekinggeorge.blogspot.com/2006/05/deck-is-fully-stacked.html) Maybe Abu Gonzales will now go rushing to court to get approval for everything from water-boarding to warrantless wiretapes.
Specter once again proves his complete worthlessness, and shows he's nothing more than a Constitution-Hating Louse, just like the other GOP Senators backing warrantless spying on the vast majority of the US public
ReplyDeleteBy the actions of the President, the NSA and the GOP, it's obvious those entities now consider the US public as al-Qaeda sympathizers to be kept in check at every possible opportunity
And with regard to the wearisome straw argument of "Show us who's been hurt with warrantless spying on purely domestic communications", I'd retort, "Show us how many terrorist attacks from overseas entities have been stopped by warrantlessly spying on the US public"
And since we only have the President's assurance that calls and communications are NOT monitored past a telephone number, then I'd like that assertion independently verified before buying into it in the least
This Administration lies on a constant basis to the US public, and rapes the US Constitution on just as active a basis-I have NO doubts they're monitoring and recording every single syllable of phone calls, e-mails, Text & Instant messaging as well
Like was pointed out, this Administration & the GOP should be INSISTING on having their personnel testify UNDER OATH that they're not breaking the law
Since they won't, it's obvious they're trying to hide clearly illegal actions mounted against the US Public
The traitors to this country, people and Constitution are clearly residing in the White House, and have now infested the GOP
So, since the most paranoid & secrecy obsessed President & Administration in US history are SO insistent on the lives of US citizens being made as open a book as possible anytime the Imperial Presidency wishes to warrantlessly examine them, then I say I want the same publicity attached to PROVING that NONE of the Administration or GOP have ANY ties to al-Qaeda or any other terrorist groups seeking to "destroy freedom"
If it's a good enough standard for the President to subject the public to, it's good enough for the Administration to have to endure as well, and any spin arguing otherwise should be discounted as that of partisans insistent on covering up clearly illegal actions done at the expense of the voters and the Constitution
Specter gave in, again. That has been his M.O. all along: get incensed, brandish the specter (sorry for the pun)of hearings, and then collapse like a deflated balloon. What a pathetic little man!
ReplyDeleteI'm shocked, shocked to find Arlen in this establishment.
ReplyDeleteBart,
ReplyDeleteI'm seeing that you think the NSA issue is a winner for the Republicans. Personally I don't think that would be the case. But, you'll be more than correct if that Democrats run from the issue as they usually do. If the leadership develops a spine…(I know one can hope) and makes this an issue I think the administration and the congress will be further pummeled in the poles.
Americans don't like to be spied on. Calling it terrorist surveillance or some other warm and fuzzy name won't change that. When the full implications of this program become a part of the national consciousness (and this should happen well before the election) the administration and the rubber stamp congress will be in a very bad position.
Day without a Patriot?
ReplyDeleteIssues:
1) Stop the War in Iraq
2) Find and Arrest bin-Laden
3) Stop Spying on Americans
People supporting these issues will simply stay away from work. Excluded--for now--are people who provide vital services.
I am clearly not a constitutional expert, but Doesn't this Catch-22 violate the First Amendment.
ReplyDeleteCongress shall make no law ... abridging the freedom ... of the people ...to petition the government for a redress of grievances.
DeAnna
PhD9 said...
ReplyDeletebart: There are no identifiable plaintiffs with standing.
Precisely why its a Catch-22. There are probably hundreds of people who would have standing but as long as they're not "identifiable" then they're screwed. Which I beleive is the whole point of the post. (but you knew that.)
Speculation like "probably" does not get you into Court.
There is no evidence at all that the NSA is targeting anyone but foreign groups and their agents in the US. al Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering.
If an enemy agent is tried in our criminal courts, they have standing to object to illegally gathered evidence. However, there might be a half dozen such defendants, not hundreds.
I sent a FOIA request to the Department of Homeland Security and the FBI for a very valid reason regarding a personal incident. The FBI did not respond at all, but I did received a response letter from DHS. The letter stated they were unable to conduct an adequate search with the information I provided, and that they DO NOT maintain a central index of records catagorized by individual name. They requested that I provide them with the type of record, the DHS component agency and the time period during which I believe the records were created.
ReplyDeleteIf the records are not kept under my name, I have no idea how to continue the search. An attorney friend suggested that I list a group of possible departments and wait for another negative response. Then write another listing more departments, etc. This person also suggested that the DHS filing system was purposely set up to make it difficult to retrieve information.
Also, I contacted the ACLU for assistance. They wrote back saying they are waiting to see the result of their litigation and FOIA requests before they take on new matters of similar nature.
Any thoughts?
HWSNBN engages in the fallacy of circulus in demonstrando:
ReplyDeletePerhaps you might educate us all by posting the statutes which you believe might be precedent for the Specter plan to have the FISA court render advisory opinions without an actual plaintiff.
ROFL. Typical troll 'argumentation'.
But I'd note that the FISA court itself is a bit of a sport; hearing essentially ex parte cases where one of the parties is "missing"....
What Specter had specified is that the gummint be required to file an "application for approval" of the wiretaps it was doing or wanted to do. Hardly a theoretical "case or controversy". The FISA court could turn them down, and that would be the "end of story".
Cheers,
The troll HWSNBN:
ReplyDeleteThere are no identifiable plaintiffs with standing.
Irrelevant. There's no requirement that plaintiffs be "identifiable". Only that they be real plaintiffs. Class action suits are such; while it's not possible to identify all individuals harmed (although the law provides that a good faith effort be made to find them), in fact they are "represented" in the class action suit by the litigant attorneys there. They may not be able to receive any monetary settlement if they can't be found, but in suits seeking prosepctive injunctiuve relief, they benefit just as much from any such settlement terms in their favour.
The troll HWSNBN throws out the "identifiable" 'red herring' here because the gummint had done everything in its power to prevent anyone from finding out if their rights have been violated. But that hardly means that their rights haven't been violated and that they haven't been "injured in fact". HWSNBN loves "Catch-22" logic. That type of regime suits his philosophical leanings ... that is to say, fascism.
Cheers,
Arne Langsetmo said...
ReplyDeleteBart: It is true that the doctrine of "advisory opinions" is simply a branch of standing. While this might hold some interest for the uninitiated, it affects my argument not at all.
Sez the troll. That's because the troll simply repeats the same ol' pap day after day and ignores what others say, and calls it an "argument".
wow. Does the "sez you" riposte work for you in front of a judge during legal arguments?
Bart: As for the the term "advisory opinion" being "glib," take it up with the Supreme Court which uses the term.
From Hewitt v. Helms:
"The real value of the judicial pronouncement - what makes it a proper judicial resolution of a 'case or controversy' rather than an advisory opinion - is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff."
Good summary of the use by the Supremes of the term advisory opinion and summary of the requirement that a plaintiff must present a dispute with the defendant which must be settled.
Thank you for proving my point.
So the job of the troll HWSNBN is to show how a ruling on the NSA program's legality (and thus on whether it can be legally continuted) is not going to affect the behaviour of the gummint.
One more time for the slow...
The government runs the NSA Program in question. Therefore, it obviously cannot be a plaintiff objecting to its own program. This falls under the NO DUH branch of standing.
Then there's the rather lax "standing" rule in Dubya v. Gore which kind of opens the door wide, doesn't it?
I could toy with you over this moronic statement, but I will just cut you off at the knees now.
Mr. Bush was the plaintiff in that case. He had standing because he was adversely affected by the lack of standards being used by the Donkey election officials in Palm Beach, Broward and Miami-Dade as they attempted to manufacture votes for algore.
Get it yet?
The plaintiff has standing when he or she alleges that the defendant damaged the plaintiff in some way.
The defendant by definition cannot sue itself for damaging itself.
Arne: But Congress has many times conferred standing on specific parties to make claims or to challenge laws, and this has never been ruled unconstitutional; this is hardly exceptional, and HWSNBN is a liar or an eedjit if he doesn't know this essential fact of law. For just one example of the gummint itself being given standing to sue, see 38 USC 4323 ... there's many more where that came from.
Bart: Perhaps you might educate us all by posting the statutes which you believe might be precedent for the Specter plan to have the FISA court render advisory opinions without an actual plaintiff.
I will take your silence on this point as an admission that you have no such statues and made this argument up.
Jao and I had a bit of confusion the other day concerning the relationship between the "direct hookup" to customer records that an AT&T whistleblower discussed in published reports and the database that is described in the USA Today article.
ReplyDeleteToday, it's being reported that BellSouth denies turning over records to the NSA, as well as having some sort of contract with the NSA to do this.
The following remarks from wired.com's blog, 27B Stroke 6 shows how the "direct hookup" at the secret NSA AT&T facility might explain both BellSouth's deceptive statement, as well as how the records collected at this facility could be (technologically)part of the database mentioned by USA Today.
According to wired.com's database surveillance guru:
Note that BellSouth doesn't explicitly rule out the possibility that it provided the NSA with access to its phone record database; it just says it never turned over records in bulk. They deny a contract exists, but don't explicitly say there's no agreement or memorandum of understanding.
For instance, the late December Los Angeles Times story about AT&T's database of call records (a massive database comprising 312 terabytes of information and 1.88 trillion records) says that the NSA has a "direct hookup" to the database.
That's different from providing bulk records to the NSA.
That doesn't mean the USA Today's story that the NSA was building the world's largest database using these records are wrong. The NSA could be building a distributed database, that would allow its computers to search through multiple, geographically distinct databases as if they were a single one.
While that is harder to build than a single database, that structure has the advantage of not having to copy immense amounts of data from one database to another and solves the problem of keeping databases synced (for instance, if AT&T discovered an error, changed a phone record in its database after having turned over a copy of the database to the NSA, how do make sure the change gets propagated to the new database).
Politically Lost said...
ReplyDeleteBart, I'm seeing that you think the NSA issue is a winner for the Republicans. Personally I don't think that would be the case. But, you'll be more than correct if that Democrats run from the issue as they usually do. If the leadership develops a spine…(I know one can hope) and makes this an issue I think the administration and the congress will be further pummeled in the poles.
Please, bring it on. I would much rather argue this than gas prices and immigration.
Americans don't like to be spied on.
Lucky for us then that there is not a shred of evidence from your leakers or any other source that this is happening.
PLEASE let this fall's race be about these programs.
Arne Langsetmo said...
ReplyDeleteBart: There are no identifiable plaintiffs with standing.
Irrelevant. There's no requirement that plaintiffs be "identifiable". Only that they be real plaintiffs. Class action suits are such; while it's not possible to identify all individuals harmed (although the law provides that a good faith effort be made to find them), in fact they are "represented" in the class action suit by the litigant attorneys there. They may not be able to receive any monetary settlement if they can't be found, but in suits seeking prosepctive injunctiuve relief, they benefit just as much from any such settlement terms in their favour.
I am feeling guilty. This is like a boxing match against a quadriplegic.
Fool, in order to file a class action suit, you need a representative group of plaintiffs who can prove damages and then evidence that there are a class of similarly situated plaintiffs who have suffered similar damages.
You do not have a single plaintiff whom you can identify as suffering damages under the NSA Program. Nada, none, zilch, zero, NONE.
Come back when you do.
BART: There is no evidence at all that the NSA is targeting anyone but foreign groups and their agents in the US. al Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering.
ReplyDeleteThis is why everyone should skip Bart's posts. He doesn't understand even the most basic issues of the law.
Under FISA, no warrant is even needed to target an agent of a foreign government outside the U.S. If such a person calls into the US, the governmetn can listen in without a warrant.
A warrant under FISA is needed ONLY if a U.S. person is targeted in the U.S. Thus, to say that the administration is eavesdropping in a way that FISA requires warrants for (as they admit) is to say, by definition, that they are targetting U.S. persons in the U.S.. If they weren't, FISA would never come into play, and they would therefore not need to bypass it.
That's why I believe that you people are ruining Glenn's comments sections by paying so much attention to Bart. These discussions are NOT good or informative. They are very low-level, because Bart is both stupid and dishonest, and he knows very little about the law. he's a DUI lawyer, for Chrissakes'. This blog operates at a much higher level than this.
Why do you people keep devoting the comments section in this blog to chasing a fly? It's stupid.
JaO said... It sounds like the venue for civil challenges to the NSA program would be transferred from U.S. District courts to the FISA courts. That is uniquely novel, as no outside parties have ever had any standing there, except those invited to brief at the appellate level FISCR in In re Sealed Case.
ReplyDeleteThe details of this new standing are a mystery, and could be significant. Perhaps the closed FISA venue at least would preclude the government from claiming state-secret privilege. The FISA judges supposedly have been briefed on the program already.
liquified viscera said...
[A]dvisory opinions are an issue of mootness and ripeness. Advisory opinions are rendered in absence of an actual live issue in controversy.
There must be an actual justiciable controversy for the Article III Fed Cts to hear. With no actual controversy, the matter is one of an "advisory" opinion. Such opinions are matters for the Executive Branch's internal legal people to address, not the US Supremes or any other inferior Art III Court.
HWSNBN said...
Speculation like "probably" does not get you into Court.
and
The defendant by definition cannot sue itself for damaging itself.
The issue of standing and justiciable controversy becomes critical when government actions are shielded by secrecy. Most will agree that some government activities should have such a shield, but the constitution as it stands now does not contain an effective mechanism for challenging potential misdeeds and over-reaching that may be hidden.
We may be successful in stopping Specter's end run around the courts, and we may be successful in kicking the neocons out of the administration, but until we create an institutional barrier to using secrecy laws to prevent the easy identification of persons with standing to challenge, another group could come along and repeat this travesty, perhaps with even more devastating effect.
Therefore, beyond saving our butts from the immediate threat, we must also create an independent ombudsman with constitutionally-mandated standing to challenge government actions, including secret actions, that threaten the core freedoms of the citizens of this country. The government (read: Dept. of Justice) cannot protect us when the government is the greatest threat to the people. We need an independent ombudsman to defend the interests of the citizenry from the government when it has been taken over by predatory corporatists and fascists.
Day without a Patriot
ReplyDeleteIssues
1) Stop the War in Iraq
2) Find and Arrest bin-Laden
3) Stop Spying on Americans
4) Close the torture houses
Action
People supporting these issues will simply stay away from work. Excluded--for now--are people who provide vital services.
For those willing to do so, silent mass march on the Capitol, the White House, and the Pentagon.
For others, possible actions while taking the day off could include:
* Writing a letter to the editor in opposition to one of the issues.
* Inviting friends and acquaintances into your home to discuss the issue.
* Running an advertisement in the newspaper that notes the issues and why people should endorse them.
* Reading a book that covers one of these issues.
* Engaging in on-line discussion groups to discuss these issues.
* Monitoring the national news and send emails to correct misstatements of facts or refusal to adequately cover the event.
* Putting a US flag out. If you don’t have one buy it and fly it from a window.
* Publishing photos of the Iraq carnage at your blog. If you don’t have blog create one and publish the photos.
(Suggestions for further actions requested)
Operational Guidelines
Do not be provoked into countering negativity with negativity. While anger and indignation might be warranted, this is a day for education. Be informed to inform; be educated to educate; be Socratically open to questions to Socratically ask questions.
Counter-Attack
Companies that threaten or take action against employees who opt out of working on this day are to be published on a national web page and people encouraged to boycott the company and its services/products.
Is it constitutional to have such a law have retrospective application, i.e. I can understand a law being passed that said going forward the President can do whatever the hell he wants, but I can't understand a law stated that any past acts that may or may not have been violations are now suddenly okay? Who has standing to bring a suit against the President for authorizing these acts (or suit against the NSA officials)?
ReplyDeleteLucky for us then that there is not a shred of evidence from your leakers or any other source that this is happening.
ReplyDeletePLEASE let this fall's race be about these programs.
And
You do not have a single plaintiff whom you can identify as suffering damages under the NSA Program. Nada, none, zilch, zero, NONE.
Come back when you do.
Here's an idea-how about the Administration tells us how many terrorist attacks from foreign-based sources scheduled for US soil have been disrupted by the Administration's warrantless spying on purely domestic communications
Perhaps quoting Bart in respect to proof that warrantlessly spying on US Citizens has actually stopped terrorist attacks is the best way to go here
Nada, none, zilch, zero, NONE.
Come back when you do.
And while Bart may be naive enough to believe in, and constantly blather for, an Administration that repeatedly lies to the US public, an Administration that now considers the public as al-Qaeda sympathizers to be kept in check whenever possible, I want hard, independently verifiable proof that the NSA is not recording conversations and writing down every syllable of text messages at every opportunity
Taking this President at face value regarding Constitutional Protections is indeed foolish, and not a view in accord with the real world damage the warrantless spying is doing to our Constitution
Since we know the Administration lies constantly to push it's agenda of imperial powers for an increasingly despised President, then every single claim it makes regarding the "sanctity of privacy on behalf of the US Citizens" should be treated as just more lies unless backed with independently verifiable facts
Again, since the most paranoid & secrecy obsessed President & Administration in US history insists on the citizens opening their lives to the most intimate & warrantless investigation, then that standard should be applied to the President and Administration as well, I want records of every single phone call every single Administrative lackey to prove that there are no al-Qaeda sympathizers in the highest reaches of our Government
Of course, since W DID let Usama bin Laden get away with murder on September 11, the above is a ludicrous claim for the President to make
The traitors to the Constitution are the President and his Administration, and they delight in raping the Constitution on an almot hourly basis
Oh yeah, if the W lackeys/trolls have a problem with a liberal President having these imperial powers and targeting, say, the membership & financial rolls of 2nd Amendment Groups, then the only word that truly fits is Hypocrite
But then again, they've trailblazed the path that will end up attacking those causes they hold most dear
An ironic, karmic payback all the way around
Media Matters deconstructs misleading Time article on Hayden concerning his justifications for the NSA surveillance program(s):
ReplyDeleteMedia Matters also noted that Hayden's claim regarding the program's operating standard was inconsistent with the Bush administration's. In a January 26 Washington Post article, Department of Justice (DOJ) spokeswoman Tasia Scolinos asserted that the standard used by the NSA was no different from that required under FISA. Scolinos explained that the operative standard for NSA surveillance is "reasonable basis," which she said was "essentially the same" standard as FISA's requirement for "probable cause."
In subsequent comments, Hayden contradicted his own claim that the warrantless surveillance program's "reasonable basis" standard of proof was lower than FISA's "probable cause standard." On the February 5 broadcast of Fox Broadcasting Co.'s Fox News Sunday, Hayden claimed that in order to undertake domestic surveillance without a warrant, the NSA must have evidence in the same "probable cause range" that FISA requires to obtain a warrant.
Another lie by HWSNBN:
ReplyDeleteal Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering.
Not true (as a general proposition, as the troll HWSNBN makes it here). Not to mention that it's more "circulus in demonstrando" in assuming his "conclusion"; that is, that all surveilled persons are in fact al Qaeda members or agents. But even if they were (such as self-proclaimed al Qaeda agent Moussaoui), that hardly precludes them from claims in U.S. court under the appropriate circumstances. In fact, the troll HWSNBN can't point to any law or case that makes such memebership (or lack thereof) a condition of standing. Sure, he'd likeit to be the case that the preznit can decide who does and who doesn't quality for the protections of the U.S. Constitution and system of gummint, but while we still have a constitution that hasn't been used as toilet papers by the Doofus-In-Chief, that is not the case....
Cheers,
HWSNBN:
ReplyDeletewow. Does the "sez you" riposte work for you in front of a judge during legal arguments?
My question first:
Does quoting dicta and claiming that this dicta is a "holding" in a case that actually decided something entirely different work for you in court, Mr. DePalma?
Does misstating law get you spanked regularly?
Did such lapses in legal acumen result in your having to try and wangle pity from da judge for the drunks you're taking money from?
Cheers,
HWSBNB sez:
ReplyDeleteThank you for proving my point.
The troll HWSNBN's 'point' was that a suit (or more specifically, "case or controversy") to determine whether the gummint could wiretap without a warrant is supposedly an "advisory opinion". Simply not true. For one, FISA courts hear applications from the gummint all the time. The courts can resolve the case either for or against the gummint. The trol HWSNBN seems to think that such is beyond an Article III court, but this, if true would surprise quite a few people. Needless to say, the troll HWSNBN can't cite any judicial decisionm in support of his -- ummm, "unique" -- claim.
Until he does, just consider his "advisory opinion" cr** repeated ad nauseam as just mindless trolling.
Cheers,
The troll HWSNBN really steps in it:
ReplyDelete[Arne]: Then there's the rather lax "standing" rule in Dubya v. Gore which kind of opens the door wide, doesn't it?
I could toy with you over this moronic statement, but I will just cut you off at the knees now.
Mr. Bush was the plaintiff in that case. He had standing because he was adversely affected by the lack of standards being used by the Donkey election officials in Palm Beach, Broward and Miami-Dade as they attempted to manufacture votes for algore.
The person (at least until the sport Dubya v. Gore for making an "equal protection" claim is the person whose "equal protection ofthe law" was allegedly violated. In the Dubya v. Gore case, that would have to be a Florida voter. But Dubya was not a Florida voter. His vote was cast in Texas, and counted by Texas voting authorities. He should have had no standing (at least under the rules of standing as otherwise espoused by the likes of Rehnquist and company, in cases of alleged racial discrimination).
The troll HWSNBN just doesn't know his law. Which may explain his (alleged) short tenure in a prosecutor's office, supposedly doing something other than sweeping the floor.
Cheers,
Charles Scott, Jr. said...
ReplyDeleteBART: There is no evidence at all that the NSA is targeting anyone but foreign groups and their agents in the US. al Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering.
This is why everyone should skip Bart's posts. He doesn't understand even the most basic issues of the law.
This is usually the prologue before the insertion of one's foot into one's mouth...
Under FISA, no warrant is even needed to target an agent of a foreign government outside the U.S. If such a person calls into the US, the governmetn can listen in without a warrant.
A warrant under FISA is needed ONLY if a U.S. person is targeted in the U.S. Thus, to say that the administration is eavesdropping in a way that FISA requires warrants for (as they admit) is to say, by definition, that they are targetting U.S. persons in the U.S.. If they weren't, FISA would never come into play, and they would therefore not need to bypass it.
Now that you have firmly inserted foot in mouth, let's rehash the facts one more time...
The NSA Program as it was leaked involves the international calls between the US and overseas where one end of the call is a number captured from al Qaeda.
In surveilling these calls, NSA is targeting al Qaeda and its agents in the US under the assumption that some number of calls involving telephone numbers captured from al Qaeda will involve al Qaeda.
There is no evidence that the NSA program is targeting Americans who are not agents of al Qaeda.
The NSA is not getting warrants from the FISA court because it is not required to do so under Article II and the AUMF and because they cannot gain probable cause that the persons involved in the monitored telephone calls are actually al Qaeda until they actually listen. Mere possession of a telephone number by al Qaeda doesn't mean that owner of that number is al Qeada. He or she could be that al Qaeda operative's favorite falafel maker.
That's why I believe that you people are ruining Glenn's comments sections by paying so much attention to Bart. These discussions are NOT good or informative. They are very low-level, because Bart is both stupid and dishonest, and he knows very little about the law. he's a DUI lawyer, for Chrissakes'. This blog operates at a much higher level than this.
LMAO!!!
And yet none of the legal beagles here can provides legal authority to contradict my points.
However, I do apologize for interrupting your efforts to find new and different ways to call Mr. Bush either an idiot or a fascist.
eddiehaskel@nyc.rr.com said...
ReplyDeleteIs it constitutional to have such a law have retrospective application, i.e. I can understand a law being passed that said going forward the President can do whatever the hell he wants, but I can't understand a law stated that any past acts that may or may not have been violations are now suddenly okay? Who has standing to bring a suit against the President for authorizing these acts (or suit against the NSA officials)?
Unless the statute expressly or strongly implies that it is to be applied retrospectively, courts will usually restrict it to prospective applications.
The troll HWSNBN:
ReplyDeleteYou do not have a single plaintiff whom you can identify as suffering damages under the NSA Program. Nada, none, zilch, zero, NONE.
You miss the point. The maladministration has admitted to these snoops. That we don't have the names of the people doesn't mean that they don't exist. The maladministration has said they've conducted taps without warrants, and basically admitted that some have been "U.S. persons".
Nothing hypothetical here. The difficulty in "identification" here is of the gummint's own making, but doesn't magically make the "real party of interest" disappear in a puff-ball of maladministration smoke'n'mirrors.
Cheers,
KingCranky II said...
ReplyDeleteBart: You do not have a single plaintiff whom you can identify as suffering damages under the NSA Program. Nada, none, zilch, zero, NONE.
Come back when you do.
I want hard, independently verifiable proof that the NSA is not recording conversations and writing down every syllable of text messages at every opportunity
I have a better idea. Let's allow partisan enemies of the President, who would not pass up any opportunity to damage him, to oversee the application of the NSA Program and actually see the program in action.
Oh yeah, they have already done that.
Still, the overseeing Donkeys have yet to offer a single plaintiff whom you can identify as suffering damages under the NSA Program. Nada, none, zilch, zero, NONE.
Arne Langsetmo said...
ReplyDeleteAnother lie by HWSNBN: al Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering.
Not true (as a general proposition, as the troll HWSNBN makes it here). Not to mention that it's more "circulus in demonstrando" in assuming his "conclusion"; that is, that all surveilled persons are in fact al Qaeda members or agents. But even if they were (such as self-proclaimed al Qaeda agent Moussaoui), that hardly precludes them from claims in U.S. court under the appropriate circumstances.
Our exchanges remind me of Monty Python and the Holy Grail with you playing the part of the Black Knight...
On what basis would a foreign terrorist group bring a complaint against the NSA Program?
Arne "Black Knight" Langsetmo said...
ReplyDeleteThe troll HWSNBN's 'point' was that a suit (or more specifically, "case or controversy") to determine whether the gummint could wiretap without a warrant is supposedly an "advisory opinion".
This is perhaps your opinion, but it bears no resemblance to mine.
I stated that Article III bars the federal courts from rendering advisory opinions at the request of the putative defendant Government without a case brought by a plaintiff who has actually been injured by the NSA Program.
Simply not true. For one, FISA courts hear applications from the gummint all the time. The courts can resolve the case either for or against the gummint.
The FISA court is permitted by statute to either grant or deny a government warrant request. Nothing else. The government cannot both request a warrant and object to it at the same time.
HWSNBN shows RW "foamer" 'logic':
ReplyDeleteThe NSA Program as it was leaked involves the international calls between the US and overseas where one end of the call is a number captured from al Qaeda.
In surveilling these calls, NSA is targeting al Qaeda and its agents in the US under the assumption that some number of calls involving telephone numbers captured from al Qaeda will involve al Qaeda.
"[I]n the U.S." Thank you.
"[S]ome". What of the others?
Then there's this: What part of "U.S. persons" does the troll HWSNBN not understand? (don't answer; it was an academic question)
FWIW, doesn't much matter that "some" of the folks targeted may actually be al Qaeda. The law (and the Constitution) doesn't provide for special treatment of such people.
There is no evidence that the NSA program is targeting Americans who are not agents of al Qaeda.
Irrelevant. But from the troll HWSNBN's admissions above, also not true.
Cheers,
This comment has been removed by a blog administrator.
ReplyDeleteArne "Black Knight" Langsetmo said...
ReplyDelete[Arne]: Then there's the rather lax "standing" rule in Dubya v. Gore which kind of opens the door wide, doesn't it?
Bart: I could toy with you over this moronic statement, but I will just cut you off at the knees now.
Mr. Bush was the plaintiff in that case. He had standing because he was adversely affected by the lack of standards being used by the Donkey election officials in Palm Beach, Broward and Miami-Dade as they attempted to manufacture votes for algore.
The person (at least until the sport Dubya v. Gore for making an "equal protection" claim is the person whose "equal protection ofthe law" was allegedly violated. In the Dubya v. Gore case, that would have to be a Florida voter.
And the candidate receiving the votes.
It is amazing that algore had hired some of the best attorneys in the country to argue his case and yet did not raise this point.
It's my understanding that even if they make it legal from this point forward, it was legal from this point backward and someone still needs to be held responsible. As far as I know the Constitution states that you can not make any laws retro-active. So, what's the point of passing this law now?
ReplyDeleteIt's my understanding that even if they make it legal from this point forward, it was illegal from this point backward and someone still needs to be held responsible. As far as I know the Constitution states that you can not make any laws retro-active. So, what's the point of passing this law now?
ReplyDeleteMore geek speak at Defense Tech about why the NSA domestic surveillance programs won't work. (Note the picture of grandma on the phone.)
ReplyDeleteMore experts are stepping up to tell us what Valdis Krebs said here last week: be careful with those call-chains, NSA.
"Not every link is as useful as the next," notes Jeff Jonas, who data-mined for both Washington and Las Vegas heavyweights. "Not only must one start with a bad guy but also pursue relationships in a very narrow manner."
"Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives."
ReplyDeleteSo how is a plaintiff informed if the hearings are in secret?
How can we determine if the challenge is even heard?
I'm pretty certain to be on the list for having criticised prince AWOL my share.
They have done a bait and switch, say there's a way to oversight in an invisibile court. This is star chamber material.
-Mr.Murder above post
ReplyDeletejao: I certainly can't explain this discrepancy. The company's denial does seem categorical. Let's see what USA Today says.
ReplyDeleteDoesn't it seem odd that they don't immediately request a retraction? This story has put them in a bad light. It's a potential PR catastrophe. Some news reports suggest that customers are dropping the phone service of companies who allegedly participated in this NSA spying. You'd think that BellSouth would come out swinging with all its might if the USA Story naming of them were wrong. It doesn't add up in my book.
JaO said...
ReplyDeleteIn the midst of the argument about Specter's proposed legislation, let us not forget that the Bush administration under existing law has had the opportunity all along to bring a test case in the FISA courts. Everyone is worrying about how to force DOJ into court, but the department could certainly go there voluntarily.
And no, this would not be an "advisory opinion," but an actual FISA warrant application with actual facts, precisely what the FISA courts are authorized to consider:
1) The DOJ, which has standing in the FISA courts, can simply apply for one or more FISA warrants based upon information derived from the prior warrantless surveillance purported to be lawful.
2) If the lower FISC court agrees with the government, that is all there is to it. The government would win.
3) But if the FISC court rejects the application(s) because it finds the prior surveillance unlawful, that rejection would be reviewable by the appellate FISCR court. The FISCR ruling, in turn would be reviewable by SCOTUS.
This is clever. However, there is a major problem with this plan.
DOJ has already told the FISA court that the NSA Program is being used only for intelligence gathering and it is not being used to gather evidence for a criminal case.
This bright line distinction is critical because the courts have repeatedly held that intelligence gathering does not require warrants under the 4th Amendment while criminal evidence gathering does.
This being so, why would Justice go to the FISA court and request a warrant used to gather criminal evidence based on information gained through warrantless electronic eavesdropping?
Forget FISA. Such a stunt would not only endanger the warrant for the underlying criminal case on 4th Amendment grounds, but would also trash the entire Article II legal foundation of the NSA Program as solely an intelligence gathering operation.
Poor Bart-still can't show ANY evidence that warrantlessly spying on purely domestic communications has stopped any terrorist attacks on US Soil, in other words, that ANY real-world good has arisen from possible real-world harm to the Constitution
ReplyDeleteNone, nada, zip, zilch, but I'm content to wait for a reply to that point
And actually Bart, turns out there IS someone who has a decent enough claim that warrantless spying has harmed them-And the best part here?
It comes from the 4th Circuit just last month, and I was one of the few bloggers to post about it at the time
http://royallykranked.blogspot.com/2006/04/warrantless-wiretapping-gets-smacked.html
From the 4-26-06 NY Times
Cleric Wins Appeal Ruling Over Wiretaps
An appellate court on Tuesday directed a lower court to consider statements by a Muslim cleric in northern Virginia that he had been illegally wiretapped under the warrantless eavesdropping program that President Bush authorized.
The ruling opened the door to what could be the first ruling by a federal court on whether information obtained under the program, operated by the National Security Agency, had been improperly used in a criminal prosecution.
**************
The cleric, Ali al-Timimi, who was sentenced to life in prison last year for inciting his Muslim followers to violence, is challenging his conviction because he says he suspects that the government failed to disclosed illegal wiretaps of his e-mail messages and telephone conversations.
***********
In an order released on Tuesday, the United States Court of Appeals for the Fourth Circuit did not rule on the merits of Mr. Timimi's assertions about the N.S.A. program, but sent the case back to the federal trial court in Alexandria, Va., for a rehearing.
*************
The appellate court gave the trial judge in the case, Leonie M. Brinkema, broad latitude, saying the trial court could "order whatever relief or changes in the case, if any, that it considers appropriate."
****************
Mr. Timimi's case is the first to result in a rehearing on the challenges. The Justice Department did not oppose his motion to vacate his appeal and have the trial court consider the eavesdropping question. Department officials said they saw the appellate decision as largely procedural, but declined to discuss how the case might play out when the trial court rehears it.
***************
"We'll brief the court at the right time and advise the court appropriately," a spokesman for the department, Bryan Sierra, said. "Whenever we have the opportunity to set the record straight, we'll do so."
*************
But a lawyer for Mr. Timimi, Jonathan Turley, said the appellate order was a significant and "extraordinary step" because appellate courts did not generally order a rehearing in a criminal case while an appeal was pending.
"This is very good news for us, and we're eager to go back to Judge Brinkema to explore these troubling issues," Mr. Turley said in an interview.
Now, I'm no lawyer, but it appears that the above story knocks the legs out of Bart's arguments in terms of no one being done injury at the hands of an out-of-control President eager to violate the constitution at every possible opportunity
At the very least, the 4th Circuit finds it conceivable that this program harms those it snags, otherwise they would not have ruled the way they did
Bart, please cite the clear and unambiguous language in the US Constitution that allows the President to violate the same Constitution he's sworn to uphold, and even better, please elaborate as to how the Administration's warrantless spying on purely domestic communications is upholding the constitution's 4th Amendment prohibitions against illegal search & seizure
And remember, I'm no lawyer, so you'll have to explain it to me as you would a slow, dense child
I fail to see how destroying long-established freedoms prevents further such attacks on US Soil, and I fail to see even further why al-Qaeda is worth this Administration's daily rape of the Constitution
Now when this Administration is willing to have it's officials testify under oath about the legality and scope of this program, then we'll have something to talk about
But as we all know, "Under Oath" to this President and Administration is as "Sunlight & bleach" are to roaches and other vermin
the cynic librarian said...
ReplyDeleteMore geek speak at Defense Tech about why the NSA domestic surveillance programs won't work.
Read not only the linked blog, but also the sublinked articles in that blog.
These articles raise suggestions on how the NSA Programs could work better based on an unwarranted assumption that all the NSA has are the telephone call records and nothing else.
In his use of network theory in his own business, Mr. Jonas starts with one bad guy and then moves on to examine other relationships besides telephone calls to find more bad guys.
Well, what if you start with hundreds of captured enemy telephone numbers, move six degrees out in the US telephone call records and then look for nodes of common numbers? Would that not exponentially increase the likelihood of finding more bad guys than just starting with one number?
Mr. Farley joins with Mr. Jonas in arguing that you need more than just telephones to help weed out weak ties which are unrelated to terrorism.
The government started doing this back in the 90s, perhaps sooner. Able Danger analyzed terrabytes of all kinds of publicly available data, not just telephone numbers. This enabled them to identify the Atta 9/11 cell before the attack.
Exactly why should we assume that the NSA has not likewise integrated the telephone call records into a much larger data base looking for common nodes on several levels of relationships?
bart: Well, what if you start with hundreds of captured enemy telephone numbers, move six degrees out in the US telephone call records and then look for nodes of common numbers? Would that not exponentially increase the likelihood of finding more bad guys than just starting with one number?
ReplyDeleteA lot of what-ifs, huh? They've already sunk billions down this rat hole, why not more huh? Just like Rumsfeld's favorite boondoggle, Star Wars, which has never worked out after--what? 20-some years--I guess we can expect the NSA to catch real, red-blloded terrorist 20-or-so years from now, maybe? Meanwhile, Osama bin-Laden sits back and luaghs, wondering at his luck at not being caught yet. --
Now, I wonder how those billions wasted on destroying Iraq, these boondoggle "terrorist" and "domestic" surveillance program(s) might have actually been used to catch the guy who actually started this whole thing off... ?
Spector is really like an inflatable doll. He huffs and puffs then the air slowly seeps out and all that is left is a wrinkled piece of rubber.
ReplyDeleteWhoever was counting on him to protect our liberties made a bad choice.
HWSNBN sez:
ReplyDeleteI have a better idea. Let's allow partisan enemies of the President, who would not pass up any opportunity to damage him, to oversee the application of the NSA Program and actually see the program in action.
Oh yeah, they have already done that.
Still, the overseeing Donkeys have yet to offer a single plaintiff whom you can identify as suffering damages under the NSA Program. Nada, none, zilch, zero, NONE.
Oh, really. Then there should be no problem in detailing WTF the maladministration has been snooping on w/o a warrant. Right? Right???
*crickets*
OTOH, we have the FBI complaining that they're sepnding lots of time running down "dead ends" based on the NSA snoops.... Now why would that be? Don't expect the troll HWSNBN to actually think for a change....
Cheers,
This comment has been removed by a blog administrator.
ReplyDeletekingcranky:
ReplyDeleteFrom the 4-26-06 NY Times
Cleric Wins Appeal Ruling Over Wiretaps
An appellate court on Tuesday directed a lower court to consider statements by a Muslim cleric in northern Virginia that he had been illegally wiretapped under the warrantless eavesdropping program that President Bush authorized.
The ruling opened the door to what could be the first ruling by a federal court on whether information obtained under the program, operated by the National Security Agency, had been improperly used in a criminal prosecution.
Now, I'm no lawyer, but it appears that the above story knocks the legs out of Bart's arguments in terms of no one being done injury at the hands of an out-of-control President eager to violate the constitution at every possible opportunity
At the very least, the 4th Circuit finds it conceivable that this program harms those it snags, otherwise they would not have ruled the way they did
Here is the link to the actual order:
http://jurist.law.pitt.edu/AlTimimiOrder.pdf
Contrary to the leftwingnut blog you linked, the 4th Circuit did not rule on any of the merits of this case.
The defendant al Timini was convicted of and sentenced to life for soliciting terrorism against the United States.
Part of the evidence against al Tmini was a legally obtained tape recording of a call between a man convicted of financially supporting al Qaeda where Timini is hear discussing plots to attack the US.
al Timini had already started his appeal when his lawyers heard that the lawyer of the al Qaeda financial supporter claimed to have a record accidentally provided by FBI indicating that he had been surveilled by the NSA. [This is the case that I am keeping an eye on].
al Timini then requested to vacate his appeal to allow him to file a post trial motion seeking to obtain copies of any other tape recordings of al Timini which may have been gathered by the NSA.
In general, a defendant is entitled to exculpatory evidence in the possession of the prosecution. al Timini will probably demand copies of all NSA tapes of his conversations which are exculpatory.
However, I don't see how the court can get into the legality of surveillance which was not introduced as evidence against al Timini at trial.
In any case, DOJ does not appear to be avoiding this fight. DOJ joined the al Timini motion and asked the 4th Circuit to send it back to the trial court to resolve this issue.
This is perfectly natural because Justice is going to want an evidentiary record at the trial level before this issue goes on appeal.
Stay tuned.
HWSNBN sez disingenuously:
ReplyDeleteOur exchanges remind me of Monty Python and the Holy Grail with you playing the part of the Black Knight...
On what basis would a foreign terrorist group bring a complaint against the NSA Program?
The ol' "straw man" fallacy, eh? Typical troll behaviour.
I haven't made any such claim about any "foreign terrorist group" (however, if a foreign group does have grounds to file suit in U.S. courts, there's no bar to that [see, e.g., the Bhopal victims], nor is there a bar to terrorists filing claims in U.S. court, although depending on the circumstances it might not be the wisest idea to do so).
But I'd note that one suspect has made a claim in court that the gummnint illegally spied on him (when it handed his ottorney transcripts of their private ACP-protected communications). SO much for the troll HWSNBN's little "straw man" here. You'd think that he might try picking up on some higher literature ... say, Cervantes....
Cheers,
Let me try...
ReplyDeleteBart: Well, what if you start with hundreds of captured enemy telephone numbers, move six degrees out in the US telephone call records and then look for nodes of common numbers? Would that not exponentially increase the likelihood of finding more bad guys than just starting with one number?
Six degrees out would more than likely cover everyone in the US. That's the hard part; balancing the depth of the tree search with appropriate pruning. I'm not saying it can't be done; only that's its a very difficult problem.
HWSNBN dissembles thusly:
ReplyDeleteI stated that Article III bars the federal courts from rendering advisory opinions at the request of the putative defendant Government without a case brought by a plaintiff who has actually been injured by the NSA Program.
He neglects to acknowledge that the gummint can indeed claim "injury in fact" due to the FISA restrictions that make what the NSA wants to do a felony.
Cheers,
JaO said...
ReplyDeletebart: This is clever. However, there is a major problem with this plan.
DOJ has already told the FISA court that the NSA Program is being used only for intelligence gathering and it is not being used to gather evidence for a criminal case.
This bright line distinction is critical because the courts have repeatedly held that intelligence gathering does not require warrants under the 4th Amendment while criminal evidence gathering does.
This being so, why would Justice go to the FISA court and request a warrant used to gather criminal evidence based on information gained through warrantless electronic eavesdropping?
jao: The primary and traditional purpose of a FISA warrant has never been to get criminal evidence, but to gather intelligence.
I would disagree, but this argument is irrelevant. THIS DOJ uses FISA warrants for gathering criminal evidence purpose and strictly segregates out intelligence gathering in order to preserve the admissibility of its criminal evidence under the 4th Amendment and to maintain the Article II legal foundation for the warrantless intelligence gathering.
HWSNBN ignores reality:
ReplyDeleteThe FISA court is permitted by statute to either grant or deny a government warrant request.
This outrageous whopper from a person that keeps citing the dicta from In re: Sealed Case!!!
What a maroon!
Cheers,
Arne "Black Knight" Langsetmo said...
ReplyDeleteBart: On what basis would a foreign terrorist group bring a complaint against the NSA Program?
The ol' "straw man" fallacy, eh? Typical troll behaviour.
A strawman argument is when I raise a subject which you did not and knock it down. You were the one who claimed that al Qaeda has standing to go to court to challenge the legality of the NSA Porgram. I asked you to give us the legal grounds for this standing.
I haven't made any such claim about any "foreign terrorist group" (however, if a foreign group does have grounds to file suit in U.S. courts, there's no bar to that [see, e.g., the Bhopal victims], nor is there a bar to terrorists filing claims in U.S. court, although depending on the circumstances it might not be the wisest idea to do so).
You already made this claim. Apparently you, once again, cannot give us any legal authority for your silly claims.
Case closed. Claim dismissed.
We will move the court for attorneys fees and costs for yet another frivolous claim.
[HWSNBN]: Mr. Bush was the plaintiff in that case. He had standing because he was adversely affected by the lack of standards being used by the Donkey election officials in Palm Beach, Broward and Miami-Dade as they attempted to manufacture votes for algore.
ReplyDelete[Arne]: The person (at least until the sport Dubya v. Gore) for making an "equal protection" claim is the person whose "equal protection of the law" was allegedly violated. In the Dubya v. Gore case, that would have to be a Florida voter.
And the candidate receiving the votes.
Ummmm, nope.
Dubya has no "equal protection right" to any votes at all. It's not his votes. It's the people of Florida's votes. It is their vote that is allegedly being "diluted". That's the purported "equal protection violation" (although this concept of an "equal protection violation" is also a new one for the conservative majority there, adopted for the purposes of taking (and deciding) this singular case, and this case only ... another story.
Cheers,
jao:
ReplyDelete1) The DOJ, which has standing in the FISA courts, can simply apply for one or more FISA warrants based upon information derived from the prior warrantless surveillance purported to be lawful.
2) If the lower FISC court agrees with the government, that is all there is to it. The government would win.
That's essentially what Specter's original plan was; force the maladministration to "renew" surveillances under way, under the old rules as modified by Specter's bill.
Cheers,
Cheers,
WSNBN sez:
ReplyDeleteThis bright line distinction is critical because the courts have repeatedly held that intelligence gathering does not require warrants under the 4th Amendment while criminal evidence gathering does.
Nonsense. The law (you know, FISA, the law that Dubya's violating) says he does need a court order. And the case that the troll HWSNBN loves to cite dicta from in fact talks about the interrelatedness of foreign intelligence surveillance and criminal investigation.... But don't expect the troll to know that; he just read the couple sentences of dicta out of it that he liked.
Cheers,
HWSNBN sez:
ReplyDeleteal Timini then requested to vacate his appeal to allow him to file a post trial motion seeking to obtain copies of any other tape recordings of al Timini which may have been gathered by the NSA.
The gummint is required to disclose any such surveillance to be used or entered into evidence in a trial. See 50 USC 1806(c). If they didn't do so, they may be in trouble.
In general, a defendant is entitled to exculpatory evidence in the possession of the prosecution. al Timini will probably demand copies of all NSA tapes of his conversations which are exculpatory.
The defendant is entitled by law to know about FISA surveillances "used" in any trial. See above.
However, I don't see how the court can get into the legality of surveillance which was not introduced as evidence against al Timini at trial.
It can exclude any evidence derived as a result of an illegal wiretap as "fruit of the poison tree" (and does so for illegal wiretaps). In fact, if there's an illegal search, it's up to the gummint to show that any subsequently derived evidence of any kind would inevitably have been found even without the illegal search. This is what the defence here seems to be trying to establish. I'm a bit surprised to have to explain this in response to someone who allegedly worked in a prosecutor's office ... unless his duties consisted of keeping the lavatories stocked with TP.
If they do manage to exclude it, do you think the troll HWSNBN will shut his yap about this nonsense he's spouting? I doubt it....
Cheers,
The troll HWSNBN sez:
ReplyDeleteBart: On what basis would a foreign terrorist group bring a complaint against the NSA Program?
[Arne]: The ol' "straw man" fallacy, eh? Typical troll behaviour.
A strawman argument is when I raise a subject which you did not and knock it down.
Which is what the troll in fact did. Here's what I said in response:
I haven't made any such claim about any "foreign terrorist group".
Here's what the troll says: "You already made this claim." But I didn't. He's a lying sack'o's**te.
Cheers,
JaO said...
ReplyDeleteWRT to the BellSouth denial. There is a follow-up. It now seems that Bell South denies any database link, as well...
WRT to the Bell South and Verizon "denials" about giving/selling our call records to the NSA, take their "denials" with a lot of salt!!!
Their statements have most certainly been vetted very carefully by their corporate attorneys to say only exactly what they want them to say.
As I would expect Glenn (and the other resident attorneys) to agree, lawyers take their wordsmithing very seriously! I would bet that the Bell South and Verizon attorneys chose the most innocuous weasel wording possible.
They claim not to have made this stuff available to the NSA, but those statements in no way negate giving/selling the info to other government agencies, and with those folks then simply handing it off to the NSA.
These "other" government agencies could run the gamut from the FBI, the National CounterTerrorism Center, the Director of National Intelligence, etc.
Once one of those agencies had the info, it surely wouldn't be a big deal if the NSA happened to borrow it and massage the data.
Here's a discovery plan to do an end run around Specter.
ReplyDeleteArne Langsetmo said...
ReplyDeleteBatrt: Mr. Bush was the plaintiff in that case. He had standing because he was adversely affected by the lack of standards being used by the Donkey election officials in Palm Beach, Broward and Miami-Dade as they attempted to manufacture votes for algore.
[Arne]: The person (at least until the sport Dubya v. Gore) for making an "equal protection" claim is the person whose "equal protection of the law" was allegedly violated. In the Dubya v. Gore case, that would have to be a Florida voter.
Bart: And the candidate receiving the votes.
Ummmm, nope.
Junior, you have been embarrassed about a half dozen times just today making up law.
From now on, post your legal authority after each of your statements or they will just be assumed to be lies.
Dubya has no "equal protection right" to any votes at all. It's not his votes. It's the people of Florida's votes.
He has an equal protection right to see that all votes for him are counted the same as all votes for algore. algore's attorneys did not dispute Mr. Bush's standing to make this claim and the Supremes ruled in Mr. Bush's favor.
Lie #7.
Arne Langsetmo said...
ReplyDeletejao:
1) The DOJ, which has standing in the FISA courts, can simply apply for one or more FISA warrants based upon information derived from the prior warrantless surveillance purported to be lawful.
2) If the lower FISC court agrees with the government, that is all there is to it. The government would win.
That's essentially what Specter's original plan was; force the maladministration to "renew" surveillances under way, under the old rules as modified by Specter's bill.
Lie #8.
The Specter bill did not require Justice to present any information gained in NSA intelligence gathering in one of their warrant applications to test the program.
The Specter bill would require the NSA submit its entire program to review at regular intervals.
Arne Langsetmo said...
ReplyDeleteBart: al Timini then requested to vacate his appeal to allow him to file a post trial motion seeking to obtain copies of any other tape recordings of al Timini which may have been gathered by the NSA.
The gummint is required to disclose any such surveillance to be used or entered into evidence in a trial. See 50 USC 1806(c). If they didn't do so, they may be in trouble.
Lie #9
At last, the blind squirrel blunders across a statute. However, the blind squirrel did not bother to read the statute.
(c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
This provision merely requires that the government timely disclose to the defendant that it intends to use evidence gained under FISA as evidence.
The government did disclose everything it used in the trial and the alleged NSA intelligence gathering not introduced at trial was not gained under FISA.
Bart: However, I don't see how the court can get into the legality of surveillance which was not introduced as evidence against al Timini at trial.
It can exclude any evidence derived as a result of an illegal wiretap as "fruit of the poison tree" (and does so for illegal wiretaps). In fact, if there's an illegal search, it's up to the gummint to show that any subsequently derived evidence of any kind would inevitably have been found even without the illegal search.
Lie #10. Read the Troung case.
Arne Langsetmo said...
ReplyDeleteBart: al Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering.
arne: Not true (as a general proposition, as the troll HWSNBN makes it here). Not to mention that it's more "circulus in demonstrando" in assuming his "conclusion"; that is, that all surveilled persons are in fact al Qaeda members or agents. But even if they were (such as self-proclaimed al Qaeda agent Moussaoui), that hardly precludes them from claims in U.S. court under the appropriate circumstances...
Then Bart asks one more time: On what basis would a foreign terrorist group bring a complaint against the NSA Program?
Arne tries to avoid answering the question: The ol' "straw man" fallacy, eh? Typical troll behaviour.
Bart discarding the attempted change of subject: A strawman argument is when I raise a subject which you did not and knock it down.
Which is what the troll in fact did. Here's what I said in response: I haven't made any such claim about any "foreign terrorist group".
This is Lie #11.
You raised the subject in the post at the top of this sad litany of your bobbing and weaving.
Are you frigging 14 years old?
As an aside...
ReplyDeleteThe President is so panicked about the Donkeys discovering the alleged massive spying on innocent Americans that he just agreed to give the full intelligence committees full briefing about everything that NSA is doing.
Also, Libby's attorneys revealed to the court today that they are prepared to offer 6 witnesses who will testify that Joe Wilson told them that his wife worked for the CIA, they requested to bring in Joe Wilson as a witness to determine how many others he told about his wife's "classified" work, and intend to subpoena the notes of several reporters on the intelligence agency beat to find out when they first discovered what Plame did for a living, and will call Andrea Mitchell to testify about her on report that Plame's job was widely known among reporters.
Not surprisingly, Fitz is backing off from his original intent to imply that Libby blew Plame's cover in an attempt to have all this evidence come in at trial.
The reason that Fitz has not charged anyone with outing Plame is because what she did was common knowledge in DC and Joe Wilson lied again with this cock and bull story about the WH outing his wife.
Lord, I hope the judge allows Libby's lawyers to call Joe Wilson. They will shred him like so much lettuce.
shooter writes:
ReplyDeleteAfter all the haranguing about making the program legal, here you are ticked off, because that's exactly what's happening.
Yes. That's right. It was never the "legality" of these issues which was the real issue.
That's exactly what I have been saying all along.
We are way, way past the point in this country where "the rule of law", CJ Robert's favorite phrase, has anything to do with anything.
That's not what is happening here now.
Makes me re-consider about Sen. Feingold also.
"The President broke the law" and he should be censured for doing that? Ho hum, nice weather outside, pass the salt, please.
This is about a Fascist Dictatorship (and not one Dictator--they will be interchangeble from now on) and the "rule of law" was only relevant in a Consitutional Republic.
How did this happen?
The "Surveillance State" made it possible, that's how.
The country didn't resist the fucking beginnings, and now it looks like we are indeed stuck with the fucking ends.
Unfotunately, it's almost certainly too late now. The Constitution is a little late to this particular party.
Personally I have decided that the best thing to do is to simply adjust to the present reality.
Don't move.
Those who do not move are not aware of their chains.-Rosa Luxenberg.
I am not talking about this woman as a person, as a Communist, who she was, what she stood for, or any of that about which I know nothing.
I am simply pointing out that she was right when she made that statement.
BTW, she "moved", for whatever her reasons, right or wrong, and she was tortured and killed by a Fascist Dictator.
So much for "moving."
Lord, I hope the judge allows Libby's lawyers to call Joe Wilson. They will shred him like so much lettuce.
ReplyDeleteOoooohhh you're baaaad, aren't you?
I read that story about Joe Wilson also. Sounded pretty bogus. For example, the part about where Plame outed herself by listing her CIA cover company when she made a donation to Gore's campaign. I mean, really, that's the whole point of having a cover, isn't it.
At any rate, we'll see how this turns out. Either way there's a couple of things I know for sure:
1. Wilson was right, Bush was wrong.
2. Wilson showed true chutzpah when he stared down Saddam Hussein. Think you could have pulled that one off?
Now this is unique. Something I think deserves a serious discussion and consideration, even should Congress eventually take up its national security oversight responsibilities. Amitai Etzioni proposes citizen review boards of national security activities and programs:
ReplyDeleteTrust in the Bush Administration has fallen to such a low point that in order to restore at least some of it, we need a national civilian review board. The board will be composed of eminent Americans, of both parties, similar if not the same people who served so well on the 9/11 Commission. The board, equipped with security clearance, will determine whether our intelligence services are being used in line with the Constitution and our international obligations. The board will issue a series of reports about the ways that the government is using the vast arsenal of special powers it amassed since 9/11 without disclosing details about sources and methods. The board thus will act much like local civilian review boards that have formed in some 60% of our nation’s largest cities where the public lost trust in police departments after widespread corruption and abuse was revealed.
HWSNBN sez:
ReplyDelete[Bart]: Mr. Bush was the plaintiff in that case. He had standing because he was adversely affected by the lack of standards being used by the Donkey election officials in Palm Beach, Broward and Miami-Dade as they attempted to manufacture votes for algore.
[Arne]: The person (at least until the sport Dubya v. Gore) for making an "equal protection" claim is the person whose "equal protection of the law" was allegedly violated. In the Dubya v. Gore case, that would have to be a Florida voter.
Bart: And the candidate receiving the votes.
Ummmm, nope.
Junior, you have been embarrassed about a half dozen times just today making up law.
Not making it up. You're an eedjit (and don't know equal protection law) if you dispute this. Dubya would have to claim that only votes for him were being tossed (which he couldn't do), and even there it's arguable whose rights were infringed; those of the voter, or his right to have people vote for him (and actually they don't even vote for him anyway) under the Fourteenth Amendment. The latter is not a recognised right in court.
From now on, post your legal authority after each of your statements or they will just be assumed to be lies.
Why? You don't. I'd note that dicta doesn't count as "legal authority" (something that seems to escape the person here claiming to be a lawyer....)
[Arne]: Dubya has no "equal protection right" to any votes at all. It's not his votes. It's the people of Florida's votes.
He has an equal protection right to see that all votes for him are counted the same as all votes for algore. algore's attorneys did not dispute Mr. Bush's standing to make this claim and the Supremes ruled in Mr. Bush's favor.
I threw you a curveball, Mr. DePalma, and you swung at it and missed. Dubya's lawyers enlisted a couple Rethug voters in Florida and signed them on (pretty much as an afterthough, IIRC) so as to avoid the standing issue. Their main claim though was the Article II claim and the 3 USC 5 claim (both spurious and rejected by the Supes for good reason). But it was enough to get the case in the door. Had it been only an equal protection case, the standing issue likely would have received greater scrutiny (and someone might have pointed out the embarrassing fact that the real parties to the controversy should have been the patsy Florida Dubya voters and the election officials there and everyone else butt out).
I'd note that the Supes that voted for Dubya were nice enough in their untrammelled respect for the sanctity of the Equal Pritection clause of the Fourteenth Amendment to make sure that an "equal protection" violation did in fact occur: Undervotes (and even overvotes) were manually counted in some counties, and included in the certified results that the U.S. Supreme Court demanded be left stand. This insured that "different standards" would be be used county-to-county, something they pretended to be very appalled by. Their actions prove their dishonesty; can you think of a single case other than thhis where the remedy actually causes the "illegal" behaviour they are purportedly trying to cure?
Btu thanks, Bart: You were nice enough to show you're clueless on standing and equal protection issues.
Dubya has no standing to claim an "equal protection violation" (nor did he). He would have to have made a claim that he was more likely to lose if ballots statewide were manually counted, if he wanted to assert some injury. Of course, this is a pretty ridiculous claim, and he had no such evidence. Instead, the actual claim was some mealy-mouthed "vote dilution" claim on 'behalf of' some Dubya fans down there in Florida (from the brief in support of the emergency stay):
"This intentional discrimination among voters on the basis of their county of residence, or even the precinct in which they reside, violates the fundamental principole of equal protection that voters cannot be subjected to disparate treatment 'merely becaue of where they reside[]'" says the Dubya brief.
Sucka.
Lie #7.
Yours? I think the count is far greater.
Cheers,
HWSNBN lies:
ReplyDelete[Arne]: That's essentially what Specter's original plan was; force the maladministration to "renew" surveillances under way, under the old rules as modified by Specter's bill.
Lie #8.
The Specter bill did not require Justice to present any information gained in NSA intelligence gathering in one of their warrant applications to test the program.
It required an application for "renewal" of the TSP within 45 days, and of "any other" surveillance programs in existence at time of enactment that weren't done under FISA within 120 days of enactment. See section 702(e)(2) of Specter's proposed bill:
"(2) EXISTING PROGRAMS.— Not later than 45 days after the date of enactment of this title, the Attorney General shall submit an application under section 703 for approval of the electronic surveillance program sometimes referred to as the ‘Terrorist Surveillance Program’ and discussed by the Attorney General before the Committee on the Judiciary of the United States Senate on February 6, 2006. Not later than 120 days after the date of enactment of this title, the Attorney General shall submit applications under Foreign Intelligence Surveillance Act (18 U.S.C. 1801 et. seq.) for approval of any other electronic surveillance programs in existence on the date of enactment of this title that have not been submitted to the Foreign Intelligence Surveillance Court."
The troll HWSNBN is full'o'sh*te again.
Under normal circumstances (or in a court of law), the troll HWSNBN would be dismissed with prejudice. Here we have to suffer through him makeing the same basic misstatements of fact and law over and over again. I think that it's time that HWSNBN be encouraged (ikn as forceful a manner as possible) to get his own blog and talk to whoever wants to read his tripe over there. At the very least, a move to hold him to one post a day to make his (alleged) 'points' ought to be within the realm of reason, particularly when he makes the same damn 'points' day after day as if repetition is some substitute for logic and accuracy.
Cheers,
HWSNBN dishinestly accuses someone else of lying:
ReplyDeleteBart: al Timini then requested to vacate his appeal to allow him to file a post trial motion seeking to obtain copies of any other tape recordings of al Timini which may have been gathered by the NSA.
[Arne]: The gummint is required to disclose any such surveillance to be used or entered into evidence in a trial. See 50 USC 1806(c). If they didn't do so, they may be in trouble.
Lie #9
At last, the blind squirrel blunders across a statute. However, the blind squirrel did not bother to read the statute.
Now that's a lie. Just for the information of all the lurker out there that wonder at how dishonest HWSNBN can get....
[HWSNBN quotes the staute I cited]: (c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
Yep. As I said. The troll HWSNBN thinks that people don't know how to read.
This provision merely requires that the government timely disclose to the defendant that it intends to use evidence gained under FISA as evidence.
Nope. See the language: "enter into evidence" or "otherwise use". Pretty damn obvious. Pretty damn apparent who the clueless berk is here.
[HWSNBN stumbles on]: The government did disclose everything it used in the trial ...
Apparently, they didn't.
... and the alleged NSA intelligence gathering not introduced at trial was not gained under FISA.
Oh, so they did break the law. See 50 USC 1809.
Cheers,
HWSNBN is clueless:
ReplyDelete[Bart]: al Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering.
[Arne]: Not true (as a general proposition, as the troll HWSNBN makes it here). Not to mention that it's more "circulus in demonstrando" in assuming his "conclusion"; that is, that all surveilled persons are in fact al Qaeda members or agents. But even if they were (such as self-proclaimed al Qaeda agent Moussaoui), that hardly precludes them from claims in U.S. court under the appropriate circumstances...
Then Bart asks one more time: On what basis would a foreign terrorist group bring a complaint against the NSA Program?
[Just for reference purposes, HWSNBN's original statement: "al Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering." Notice any elision of the language here between the two supposed iterations? Nope, HWSNBN wouldn't be that dishonest, would he?]
HWSNBN ignores what I said. I made a statement about the truth of the general proposition that al Qaeda is in some way specifically banned from U.S. courts (and this is the implication that HWSNBN gives in naming them rather than saying more generally that all persons are barred from specific suits against the NSA). I clearly disputed that al Qaeda (or anyone) is categorically barred from suits in U.S. courts by virtue of being al Qaeda. I pointed out that foreigners can bring suit in U.S courts, and I pointed out that nothing bars standing to allege a complaint to even terrorists or al Qaeda specifically (much less file a motion for supression of evidence [an "objection", if you will] in a criminal case where "standing" is not in the least an issue), and tossed in a comment about HWSNBN disingenuously assuming his conclusion that anyone surveilled must in fact be al Qaeda. Just a check of the previous post will easily confirm that I am correct. As for whether it is possible for anyone who is injured by a violation of 50 USC 1809 or the FISA law in general to "have standing in our courts to object to being the objects of our intelligence gathering": It is true that a "foreign power or an agent of a foreign power" has no statutory civil remedy under 50 USC 1810 for violations of 50 USC 1809, but that hardly means they have no standing to "object to being the objects of our intelligence gathering". For one thing, in any criminal trial such alleged "terraists" may very well file a motion for exclusion of evidence (and this may indeed happen shortly, or has already happened]. In addition, the matter of whether someone is a "foreign power" (or agent thereof) is a factual one, and needs to be decided in court (and not just on Dubya's say-so), so that at least a preliminary determination of the facts would have to be done by the court.
So HWSNBN is just plain wrong here. Nothing unusual. More mangling of the law by HWSNBN....
Cheers,
HWSNBN is seeing double (and drinking themn too, apparently):
ReplyDelete[From my first post, for reference purposes]:
[HWSNBN]: al Qaeda and its agents have no standing in our courts to object to being the objects of our intelligence gathering.
[Arne]: Not true (as a general proposition, as the troll HWSNBN makes it here). Not to mention that it's more "circulus in demonstrando" in assuming his "conclusion"; that is, that all surveilled persons are in fact al Qaeda members or agents.
....
Now to the more recent posts:
[HWSNBN]: On what basis would a foreign terrorist group bring a complaint against the NSA Program?
[Arne]: The ol' "straw man" fallacy, eh? Typical troll behaviour.
[HWSNBN]: A strawman argument is when I raise a subject which you did not and knock it down.
...
and we get to the point where HWSNBN is cutting'n'pasting dishonestly:
[Arne]: Which is what the troll in fact did. Here's what I said in response:
I haven't made any such claim about any "foreign terrorist group".
Here's what HWSNBN snips this "discussion" down to:
[Arne]: Which is what the troll in fact did. Here's what I said in response: I haven't made any such claim about any "foreign terrorist group".
As is obvious to those that can read, I never said anything originally about "foreign terrorist group[s]" complaining about the "NSA program". That was a "straw man" that HWSNBN dishonestly threw in, changing the statement under discussion from what I'd originally disagreed with.
This is Lie #11.
More like HWSNBN's double shot #11. And HWSNBN's umteenth misunderstanding (or outright lying). Give it up, troll, you're slipping.
You raised the subject in the post at the top of this sad litany of your bobbing and weaving.
I raised one dispute with HWSNBN's original statement. HWSNBN changed the subject and the language of the statemet allegedly under dispute in mid-stream. That's a "straw man".
Are you frigging 14 years old?
Is Mr. DePalma an eedjit? Or just an incompetent at using Google and/or Medline and/or any other reputable search tool. I vote both.
But one thing is clear: I'm not a lying piece'o'cr*p like Dubya-b*tt-sucker Mr DePalma here.
Cheers,
HWSNBN:
ReplyDelete[HWSNBN]: However, I don't see how the court can get into the legality of surveillance which was not introduced as evidence against al Timini at trial.
It can exclude any evidence derived as a result of an illegal wiretap as "fruit of the poison tree" (and does so for illegal wiretaps). In fact, if there's an illegal search, it's up to the gummint to show that any subsequently derived evidence of any kind would inevitably have been found even without the illegal search.
Lie #10....
Yeah, the troll HWSNBN's.
Read the Troung case.
The exclusionary rule is a basic concept in criminal law (which HWSNBN ought to be familiar with if he's not a lying sack'o'sh*te when he says he used to be in the prosecutor's office ... unless he's such an incompetent they fired him for this lack of legal acumen amongst others). If he wants to cite Truong in support of some apparent exception to the "exclusionary rule", he ought to cite the Truong holding and explain how it pertains to such a situation as we have here. He won't, of course. The court ruled the wiretap (pre-FISA) to be legal, so hardly a case for the "exclusionary rule" to apply. Just in case he gets into some strange frothing about "Fourth Amendment searches" and such, I'd note that the "exclusionary rule" is a more general rule and operates more widely that on just the fruits of illegal searches (for instance, forced confessions, etc.).
Cheers,
Cheers,
HWSNBN misses the point:
ReplyDeleteAlso, Libby's attorneys revealed to the court today that they are prepared to offer 6 witnesses who will testify that Joe Wilson told them that his wife worked for the CIA, they requested to bring in Joe Wilson as a witness to determine how many others he told about his wife's "classified" work, and intend to subpoena the notes of several reporters on the intelligence agency beat to find out when they first discovered what Plame did for a living, and will call Andrea Mitchell to testify about her on report that Plame's job was widely known among reporters.
HWSNBN must be advising the Libby defence. Libby isn't being charged with outing Plame. He's being charged with lying. Even if they can dredge up five good stooges to testify to this "defence" of Libby (like the old codger that was finally found that "saw" Dubya in Houston when he wasn't there and testified that he wa reading ... get this! ... flight safety reports [obviously stuffed in the folds of a Penthouse magazine to avoid any embarrassment]), it doesn't change the fact that Libby lied ... and by his own later admissions apparently, outed Plame. The "tu quoque" defence just doesn't cut it in a court of law.
Cheers,
Conservatives know change and progress are inevitable and are usually content to just slow it down. Apply the brakes, so to speak, so in that sense they are reactionary. Today's "conservative" is a proactive radical not interested in applying the brakes. In fact, they have removed the brakes and all the forward gears, leaving just reverse gear, and intend to drive us back to before the Magna Carta and beyond. Full steam behind.
ReplyDeleteSpecter proves once again he is not to be trusted. He is not a friend of progressives. He is a self-serving right-wing standard bearer whose chicanery is designed to prolong his political power.
ReplyDeleteThis is unsurprising and no good. Recall that the security people in this country have always considered FISA and its court an unacceptable intrusion on their powers and with great help from their friends (FISA eminence griese Kornblum and some people in Congress) managed over the years to significantly weaken that institution.
ReplyDeleteFor all its shortcomings Specter's original bill was at least going in the right direction. It was restoring some power to the court and for the first time created a situation where security agencies would be required to submit ALL their present and future domestic programs to the FISA court to ascertain their legality and to ensure that they not unduly compromise civil rights of US citizens.
All this is history now and we are back to the situation where the oversight is back in the hands of a few selected tools in Congress.
That is to the situation where the only realistic way to rein in the security apparatus or executive is to wait for some suitable case to emerge so courts could be engaged. But, as Greenwald points out, the executive already knows quite well how to handle that - make everything totally secret first and if something gets exposed kill it immediately with the "state secrets" privilege.
Back to square one. Hoover looms large.
Jack Balkin has an exceptional piece on his blog today where he discusses this in the context of larger changes in the legal system of this country.
ReplyDeleteThe story surrounding the story from USA Today continues to get stranger and stranger. There are several theories about how Verizon and Bell South could have some level of deniability regarding giving customer records to the NSA.
ReplyDeleteDefense Tech is tracking the various theories, which may not necessarily contradict each other:
[Quoting ericumansky] BellSouth subcontracts with an Israeli company known as Amdocs to handle its billing, as do several other U.S. phone companies. In 2001, U.S. intelligence officials were on record as saying that the information that Amdocs handled was so valuable that a great deal could be learned if sophisticated data-mining techniques were used against that information.
There's also the breaking news that the judge in the AT&T case has refused to return secret docs to AT&T.
ender:
ReplyDeleteI am going to take a nap - somebody wake me up when the majority of you realize that debating people like Bart is a worthless endeavor.
OK. Here's something on a different note:
NSA has long been interested in SS7 (the advanced digital telephony) switching capability. They ordered one of the boards I did software for many moons ago.
One of the big companies doing mainly defense/mil/gov't contracts in the Washinton beltway also had SS7 equipment (I had to go and visit them and get it working once time, but they wouldn't/couldn't show me the "user manual" for the end product they were putting it into so as to give me an idea of what it was they wanted it to do. And they made a requests for an unusual custom mod to the software.
One of the big telcos called a while back and asked for some custom mods to "passive monitor" software (essentially a software-implemented "T" combined with some filtering capability) ... to resolve an issue that showed up on satellite links (PCR type links).
All of this well before 9/11.
I don't how much of this was destined for foreign soil (I got the impression that the second was destined for the U.K., but they weren't going to tell me any such thing outright).
But the agencies, the government, and the telcos have all been interested in what looks to me like SS7 -- that is to say, "call data" or "pen register", although you would need the call data to know where to tap the call content (i.e., voice) as well -- snooping for quite some time. Which shouldn't be much of a surprise (except the third one; which kind of floored me). Needless to say, technology has marched on. But I suspect the "need" -- and the capability -- for such has remained and even grown.
armagednoutahere:
ReplyDeleteHey, you seen my pics?
Now they're "funny". Ummm.... I mean "strange".
Cheers,