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My girlfriend, who is of Russian descent, tells me about a joke that went around Russia after the U.S. Embassy burned down in Moscow one year:

The U.S. Embassy burned down. The only injury was a KGB agent. He burned his ear.

If my house burns down tomorrow, will an NSA agent report a burned ear?

By now, it is nearly cliche to assert that the U.S. government has trampled upon the civil rights of its citizens in its prosecution of the war on terror. Old hat, cliche, and ridiculous in the opinions of some. Each revelation of a new program is met by howls of outrage ... then by grudging acceptance as it becomes clear that a line has been almost, but not quite crossed. Or if it has been crossed, the crossing was in a murky manner that might not be crossing.

This week, the New York Times outed a super-secret program under which the National Security Administration gained the power to snoop on phone calls and e-mails that originated or terminated in dirty phone numbers, and had somebody in the United States at the other end.

At first, I was ready to fly into a libertarian lather, but I thought, "wait, there was information shared, this worked, and it's being revamped in response to concerns." But still, I'm growing uncomfortable with the current government's propensity for crossing certain lines on domestic surveillance and warrantless searches.

The Washington Post's Barton Gellman and Dafna Linzer bring it all together in a news analysis. The recite the latest revelations -- the NSA wiretaps, the Pentagon protesters database, and the FBI use of national security letters, and their most telling finding is:

No president before Bush mounted a frontal challenge to Congress's authority to limit espionage against Americans. In a Sept. 25, 2002, brief signed by then-Attorney General John D. Ashcroft, the Justice Department asserted "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

This inherent authority, by the Bush administration's arguments, encompasses the power to spy on U.S. citizens because they are suspected of being foreign agents, in the executive branch's own, internal judgment. But doesn't the constitutional set of checks and balances prohibit such unilateral decisions? Isn't Congress supposed to provide more oversight regarding these sorts of programs? Moreover, considering the programs that have been revealed so far, does anybody else wonder what else the Bush administration might be up to, what other domestic surveillance programs we don't know about?

Not too long ago, such questions only had credibility when whispered in rooms lined with aluminium foil. After all, no American administration would dare to slice so far into the civil liberties that American citizens take for granted. But now? Now, I wonder if I should line my own home with foil.


Listed below are links to weblogs that reference Privacy??:

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» The Right Nation linked with The Real Scandal

» Stop The ACLU linked with Sunday Funnies

» ReidBlog linked with The Madness of King George

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Comments (67)

Interesting story. Many are... (Below threshold)

Interesting story. Many are down on Bush but I think many other countries spy as well, they have just not been caught yet. Is Bush the only Head of State to sanction spying? I believe not, and most likely you feel the same way. The recent spy case in Ireland has the reported ex-head of a major political faction on the run and in hiding, fearing for his life. Russia’s’ government is stacked with former KGB officers, Israel has been accused of bugging embassies in America, now there is evidence Britain may have spied on the Irish political party Sinn Fein. Is spying a necessity in today’s world?
Raymond B

You make me laugh. Do you a... (Below threshold)

You make me laugh. Do you actually believe that anyone would really cares what you have to say, other than to get a good laugh at your own self-importance? Your time would be better spent worrying about being struck by lightning, that's much more likely to happen than the government taking any interest in you.

I almost forgot to answer y... (Below threshold)

I almost forgot to answer your question about the foil. Yes, absolutely. Make a hat too.

Raymond B:Of cours... (Below threshold)

Raymond B:

Of course I'm not against spying per se, but the American system is built with certain safeguards, such as the warrant requirement, that are meant to prevent abuse of the power to spy.

What worries me is that the Bush administration is doing its best to circumvent those safeguards ... and I wonder if it simply disregards them elsewhere.


Unless you are willing to s... (Below threshold)

Unless you are willing to say that Bush was lying when he outlined the periodic (every 45 days) review of the NSA surveillance by the Justice Department, NSA lawyers and the FISA court and the dozen or so briefings of congressional leaders, I don't know how you can argue that the administration is doing its best to circumvent safeguards of civil liberties.

Unless you are willing to argue that Bush lied when he said that the targets of this surveillance had been identified as having ties to terrorist organizations identified by other intelligence, I don't know how you can to be worried that the NSA is tapping your phone.

So stop hiding behind Henny Penny hysterics and either make the accusation or not.

Otherwise, save the tinfoil for leftovers.

Here's an interesting quest... (Below threshold)

Here's an interesting question, since you seem to take a "slippery slope" view of civil rights violations. How did you view the gun rights activists who were worried about mass confiscations back in the Clinton era? Were they paranoid delusionists, or people who were genuinely worried about constitutional checks and balances?

Your post is very similar to some of the stuff I read 10-15 years back.

I thought Hoover swept up t... (Below threshold)

I thought Hoover swept up those bugs years ago. Is Risen The Dirt Devil? Where is Kirby? Last I heard, he was distributing bugs on and under a Persian rug in Little Syria.

Stephen:At this po... (Below threshold)


At this point, I don't think I can justifiably make an accusation one way or the other ... but I can certainly signal my discomfort with what appears to be policy under this administration.

And I have an overall discomfort with how this administration has conducted its war on terror, esp. in teh realm of surveillance and detention of prisoners. Much of what I read screams to me "circumventing," "ducking," and "dodging."

I am also disturbed at future conditions. Will another president venture even further into the murky realm? Will a future president abuse the vast powers that the Bush administration claims under the rubric of "inherent authority?"


At the time, I don't think I would thought that. Then again, gun rights aren't my chief area of concern, so my personal alarm bells don't go off quite as easily over gun rights as they do over other issues.

Still ... I can certainly see the argument that there has been an erosion of gun rights over the last few decades. And I can certainly see where somebody would be alarmed. I'm not sure I buy the "government is going to take all our guns and oppress us!!" argument, but I could certainly see the argument that the erosion of gun ownership rights could lead to a more totalitarian state through the force of bureaucratic inertia, if nothing else.


Is just me or does anyone e... (Below threshold)

Is just me or does anyone else notice this--if you got rid of the words "but", "WMD" and "Iraq" all liberals would be speechless?

I personally trust this adm... (Below threshold)

I personally trust this administration to keep the scope of its "surveillance" to issues of preventing terrorism within the borders. At the same time I said this back when they started talking about the Patriot Act, I want this aspect of it *gone* someday. That will be the fruit of a successful war against terrorism.

Your constitutional questions are right on though. I am a little flummoxed as to what is going on here and will be watching to see what facts shake out of the rhetorical questions.

I don't particularly believ... (Below threshold)

I don't particularly believe in a right to privacy nor do I feel a need for it. What I do believe in is rule of law, so to me the question becomes whether or not what the administration is doing is legal.

I think that this had the best insight on that count.

Adam:I'm glad to s... (Below threshold)


I'm glad to see President Bush's view. Quite frankly, I'm waiting for a the Volokh Conspirator to write something, though. I trust them a bit more, since they're not stakeholders in the Bush administration or in the various "usual suspects" who oppose Bush policy. At least as far as I know.


If you have nothing to hide... (Below threshold)
bob jones:

If you have nothing to hide, then you have noting to fear (as long as they don't take my guns away).

From what I understand, thi... (Below threshold)

From what I understand, this was limited to international communication, wasn't it?

Pennywit: Yeah, I'm not wil... (Below threshold)

Pennywit: Yeah, I'm not willing to draw any conclusions myself. My feeling on the matter is that I don't particularly believe in a right to privacy, but I do believe in rule of law. If this is against the law, then they should not have done it. If it isn't, then I don't give a damn.

But I'm not familiar enough with the legal context here to say anything with any confidence one way or the other.

Pennywit, I don't think you... (Below threshold)

Pennywit, I don't think you answered Stephen's point. Based on the facts of the current situation, there is no evidence whatsoever that constitutional authority has been overstepped. So unless you make the accusation that the administration is lieing, nothing has been provided that demonstrates illegality or even unnecessary execution of constitutionally granted powers. To say otherwise is to jump on the cliche bandwagon and use your heart over your head. You say you're uncomfortable with the administrations anti-terror policies so far. Why? Without any proof of illegality, how can one conclude that any policy has been in the spirit of doing anything other than fighting terrorism as aggressively as possible within the bounds of the law? Are they getting closer to the line? Of course, but under threat of attack I kinda sorta want my government to do everything within their powers to combat the enemy. All of these measures were enacted FOLLOWING 9/11, not preceding. So to assume the motives of the administration are counter to the interests of the American people is a bit of a stretch. The strength of this country is that it has basic principles it adheres to but has a broader degree of flexibility so that it can respond to threats when they arise. If this nation stands still it will be picked apart.

For those who give themselves chills everytime they repeat the words "Bush personally granted the NSA the ability to spy on Americans" you are being incomplete at best, and probably closer to willfully dishonest. Then again, why bother with complex facts when you can throw around scary words?

BTW pennywit, that last par... (Below threshold)

BTW pennywit, that last part was not directed towards you at all.

Hey, PW,Can't you ... (Below threshold)

Hey, PW,

Can't you get a gig over at the "best blogs" on the web? Why are you wasting our time here?

Hike on, my friend.

we are in a war. I would s... (Below threshold)

we are in a war. I would shocked and pissed if the government wasn't conducting this intelligence operation. the only operative point is did the government operate within the law or not? so far there is no evidence to the contrary. what we do need is some espionage prosecutions for those who leak.

bob-How can they t... (Below threshold)


How can they take away our guns when we have all of them?

Pennywise,I am wea... (Below threshold)
Josh Davenport:


I am weary of the Patriot Act. (I am weary of RICO).

But what I am most weary of is our national discourse.

It's total crap. We are not getting synthesis from it.

We are at war, and that should carry some weight.
How much, I am having trouble determining. Since the left is currently a bunch of nut jobs, I don't trust any of their analyses.

And who has time to become a friggin expert on EVERYTHING.

We desperately need a LOYAL opposition.

I agree completely cubanbob... (Below threshold)

I agree completely cubanbob...in the history of this nation our government has been given the ability to operate to its full capacity to protect our nation in times of war without being whipped back from within. In this era, the administration is being held to a such an unreasonable hands-off standard that it's not only handicapping our ability to fight terrorism but is allowing our enemies to gain ground... all for the sake of partisan political gain. It amazes me that it's not coming from subversive political groups, but emanating from factions of our own government. I think it's disgusting, irresponsible, and criminal. I think in the past people were intellectually honest enough that they could look beyond their own politics to come together for the mutual benefit of our country when external threats emerged... but those times have passed.

Good God! A Wizbang poster ... (Below threshold)

Good God! A Wizbang poster that I agree with? What's the world coming to? I come here to have my opinions challenged, not confirmed.

Oh, one thing for some of Pennywit's more exreme detractors...I live in a country where you have to assume that every single thing you say to anyone, anywhere will be reported and put into an official file with possibly serious consequences - for you, or for someone else. Many of us out here have a great deal of respect for the theory of the US constitution. The real issue is the practice.

I just saw a question over ... (Below threshold)

I just saw a question over at Kos, and I'd like to pose it here, more for the sake of argument and discussion than anything else:

Would you trust President Hillary Clinton with these powers?


Would you trust Presiden... (Below threshold)
John Irving:

Would you trust President Hillary Clinton with these powers?

What, the power to issue executive orders in compliance with FISA and other intelligence gathering acts?

Yes. Without question.

Then I repeat, in what spec... (Below threshold)

Then I repeat, in what specific instance has the practice of the current administration overstepped the theory of the constitution? Perhaps I'm completely ignorant and naive, but the only thing I've observed is an administration using the tools at its disposal to combat an enemy that is seeking to exploit us. A lot of partisan politicians and pseudo-intellectuals throw words around in such a manner that makes everything the administration does sound scary and orwellian. If you actually look at what is being done in context it's pretty reasonable and logical in my opinion.

Also, I would trust Hillary Clinton with the powers of the current administration because by all accounts, to this point, they have been legal with significant oversight. What I wouldn't trust is for her to actually utilize those powers. National security was ineffective and unaggressive under the former Clinton administration and I would expect more of the same from another one. Some argue the only reason we're even in the state we're in at the moment is because of the Clinton administrations appeasement in the face of terrorism. I don't completely agree with that, nor do I completely discard it.

2002:WHY DIDN'T BUSH... (Below threshold)
Les Nessman:

WHY DIDN'T BUSH CONNECT THE DOTS? You mean those Ay-rabs were taking flight lessons and our gov't wasn't watching them? Why the hell is Bushco following all these legal niceties when these people have declared war on us. They should have connected the dots.

You mean Bush is spying on terrorist phone calls? And sometimes those terrorists are talking to Americans? How dare Bushitler do that! Go get my pills, Martha; I'm getting the vapors!

[gives Les a high-five]... (Below threshold)

[gives Les a high-five]

"You mean Bush is spying... (Below threshold)

"You mean Bush is spying on terrorist phone calls?"

Les, you must know a whole different kind of Quaker than the Quakers I know. Or maybe they all conned me with their pacifist talk. Maybe they really wanted to blow you and me up.

Forgive me if I don't believe that.

PWIf your "ear" is... (Below threshold)


If your "ear" is listening to suspected foreign agents, and your "mouth" is helping coordinate, then yep, better break out the firstaid ointment.

And I damned well expect that.

But then, my theme song is not "Party like it's 9/10/01."

So cat, I wonder if your li... (Below threshold)

So cat, I wonder if your link 'nourl' is literal, or stands for something like "no understanding of real life?"

Certainly you are not a Friend, and neither are any AQ members, so the coherency of your last post is not apparant to me.

Oh, and regarding tin foil ... (Below threshold)

Oh, and regarding tin foil and all [apologies to bullwinkle], grounded copper mesh is a better barrier than aluminum foil. It is a little more expensive, but hey, when you have important delusions of grandeur you want to protect, why cut corners?

eromivus, I'm not an expert... (Below threshold)

eromivus, I'm not an expert on your constitution or your laws. You check them and decide for yourself. It's your country...and your business. I'm not going to interfere.

I will just point out one thing for anyone who thinks this subject isn't important. Where I live, the majority of people live their lives like anyone else in the world - worrying mainly about how to provide for themselves and their families. But countless numbers of other people here do not have that choice - they're incarcerated for expressing their beliefs and defending their rights.

Be careful you don't find yourself in the same situation.

Interesting, the communists... (Below threshold)

Interesting, the communists and marxists have the most fear of communist and marxist governments, or seem to, at least, be the most fearfully projecting communist, marxist characteristics onto defense policies and procedures by the U.S.

Another thing: any issue of discussion on KOS is not something I'd ever stoop to considering. Hillary Clinton won't ever be President and has already engaged in harassment and unreasonable use of federal agencies against citizens -- and what else, many of us continue to suspect -- so there's little point in speculating about Hillary being President and what she might do when. Just as it is to try and speculate what springs and lakes on Pluto would be like because there is no atmosphere on Pluto and isn't going to be one in which springs and lakes would exist as we define them and a supportable atmosphere to be.

The Democrats -- and some of our Republicans -- in current Congress need to be investigated for treason. As is the Publisher and Editor of the New York Times.

The country is at war. President Bush merits, deserves and requires the country's support but at this point, the Democrats have decided to support the enemy. Their loss.

Tin-Foil or Copper-Foil...w... (Below threshold)

Tin-Foil or Copper-Foil...won't bestow special properties when you refuse the reasonable:

Words and Music by Gram Parsons and Chris Hillman

This old town is filled with sin,
It'll swallow you in
If you've got some money to burn.
Take it home right away,
You've got three years to pay
But Satan is waiting his turn

This old earthquake's gonna leave me in the poor house
It seems like this whole town's insane
On the thirty-first floor your gold plated door
Won't keep out the Lord's burning rain

The scientists say
It'll all wash away
But we don't believe any more
Cause we've got our recruits
And our green mohair suits
So please show you ID at the door.

This old earthquake's gonna leave me in the poor house
It seems like this whole town's insane
On the thirty-first floor your gold plated door
Won't keep out the Lord's burning rain

A friend came around.
Tried to clean up this town,
His ideas made some people mad.
But he trusted his crowd,
So he spoke right out loud
And they lost the best friend they had

On the thirty-first floor your gold plated door
Won't keep out the Lord's burning rain

Copyright 19?? Irving Music, Inc. BMI

Reminds me of another old j... (Below threshold)

Reminds me of another old joke:

A Romanian jew is planning to migrate to Israel. At three in the morning he gets a knock on the door. "Who is it?" he says.

"its the postman" comes the reply.

So he lets the 'postman' in. The 'postman' says "we hear you want to migrate to Israel. Don't we feed here in Romania, don't we give you everything you need, why do you want to move to Israel?"

The Romanian jew says "cause in Israel they don't deliver the post at three o'clock in the morning".

Congratulations S, you are ... (Below threshold)

Congratulations S, you are a true Party believer. You would do well where I live. You would not be liked, but you would be successful - though not very successful - because you BELIEVE. You would rise through the ranks and have plenty of opportunities for bribes. But one day you would be found to be expendable. Then you would be executed. And who would mourn for you then?

cat spoken like a true Germ... (Below threshold)

cat spoken like a true German. getting in touch with your inner nazi. your comments prove the old adage "a thief views everyone else as a thief".

Hmmm.What complete... (Below threshold)


What complete drivel.

In case nobody has taken the time to actually look at this the whole point behind the NSA monitoring the phone calls is that these domestic individuals were directly tied to terrorists. I.e. either their phone number was found in a terrorist's little black book or they tried to call a phone number that was associated with a known terrorist.

The likelyhood that any one of you falling under this definition is pretty small. I.e. calling grandfather to tell him "Merry Christmas" won't get you noticed by the NSA unless grandfather happens to be UBL.

So what exactly is your objection then? That terrorists and their associates are monitored and that such conduct has nothing to do with you?

But doesn't the constitutional set of checks and balances prohibit such unilateral decisions?

What possible "checks and balances" can you offer that would prevent a sitting President *in wartime* from monitoring agents of foreign powers that are operating domestically?

Frankly either you haven't really thought this out or you're yet another knee-jerk libertarian

To all you left-wing moonba... (Below threshold)

To all you left-wing moonbats ignornant of the law, USC Title 50 Ch 36 Sub 1 1802 says:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year

So all this whining about what the Prez did being illegal is BULLSHIT. Read the law.

And to follow with Ed, sinc... (Below threshold)

And to follow with Ed, since it is a law, passed by Congress and signed by a president, then President Bush can follow that law up and until the time that law is repealed or declared unconstitutional.

Were the actions taken within that law? From what I have read, yes they were. The law appears to be narrowly tailored to a specific set of circumstances,and if those circumstances are met, well, it's legal, and likely constitutional.

Research has shown that alu... (Below threshold)

Research has shown that aluminum foil actually amplifies two specific frequencies reserved by the government:


Lead-lined sensory deprivation chambers are now preferred.

Ed:Thank you for p... (Below threshold)


Thank you for providing the law. For future reference, all you need to say is "50 U.S.C. § 1802." Title this, chapter that, isn't really necessary.

Your citation of this law is an excellent example of selective quotation. You quote a single paragraph and attempt to leave the rest of us with the impression that this extensive power of wiretapping is at the president's beck and call.

How uncharitable of you.

In the first place, you forget to mention that the attorney general -- not the president -- must certify a few conditions under oath. 50 U.S.C. § 1802(a)(1).

What are those conditions? Well, first, the surveillance must be directed at either communication that is between foreign powers or toward technical intelligence that is on property or premises controlled by those foreign powers. 50 U.S.C. § 1802(a)(1)(A).

Also, according to this law that you cite, there should be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" § 1802(a)(1)(B).

And don't forget the minimization procedures outlined in § 1802 (a)(1)(C). Or the reporting requirements in § 1802(a)(1)(C) and § 1802(a)(2). Or the reporting requirement in § 1802(a)(3). Of course, Ed, I assume that you were going to share all this information with us, rather than leave all of us with the distinct impression that the president has unlimited authority when it comes to warrantless wiretaps in wartime.

I will admit that it appears that, assuming that the NSA wiretaps at issue here were governed by this statute, then the Bush administration followed this procedure by making its reports to members of the relevant committees in Congress.

But, please, let's not pretend that there's an unfettered power at work here, OK?


you just can't confuse left... (Below threshold)

you just can't confuse leftist with the facts. it's pointless to show them that the administration is operating within the law and the law is presumed to be constitutionally valid unless the US Supreme Court rules otherwise. that would be too logical and would conflict with their carefully constructed world view.
like I said before, if the administration wasn't conducting these operations, I would be shocked and would demand their impeachment for gross dereliction of duty. perhaps the reason we haven't had a Bali, London or Madrid bombings at home to date is in large part due to surveillance at home plus killing the enemy in Iraq.
some leftist fool posits if Hillary were president would I or the conservatives trust her with this power? frankly given her past, no. however if she were president under the same set of circumstances I for one would expect her to do her duty as president and do the same, within the parameters of the present administration. but her presidency is a straw man argument, the likelihood of that happening is only slightly higher than me elected president which is to say none at all.
a more plausible argument for the lefties to ponder, suppose Cambridge Mass., San Francisco and either Berkley CA or the upper west side of NYC or Beverly Hills were bombed, would you still be against the surveillance? or the Patriot Act? still be pimping for Saddam and the Z man?

Cuban:Are you aski... (Below threshold)


Are you asking me, specifically, what I would think or do? If so, I'll answer. If Berkeley, et. al., were bombed:

1) No, I would not support the Patriot Act.
2) Yes, I would still raise concerns about surveillance.
3) As far as I know, I never did "pimp for Saddam Hussein or the Z Man," whatever that means.


Pennywit: You won't get far... (Below threshold)
Carrick Talmadge:

Pennywit: You won't get far with that point. The attorney general is appointed by the president and falls under his authority. It would be a hard slog in the court of law to say it's ok for the attorney general to approve of a wiretap but not the president. At best, this provision spells out the minimum level of authority needed to order a wiretap.

I think you've also miss the main issue with invoking the FISA, section 1802 clearly makes an exception for foreign terrorists, namely that a court-ordered warrant is needed in that case. I don't see any wiggle room on that one, unless congressional action has recognized al Qaeda as the equivalent of a foreign government.

I agree about the reporting requirements for the FISA, which require annual reports to the Senate & House intelligence committees. Based on Bush's comments, he is not following these reporting requirements (reporting instead to leaders of the House & Senate, including Harry Reid), This would tend to verify that Bush felt he needed extended authority beyond FISA for ordering the warrant-less wiretaps.

Look out, a terrorist! Man... (Below threshold)

Look out, a terrorist! Man, I bet half you dimwitted, right wing whack jobs just soiled your panties. When did we become a country of such gutless, whiny cowards? Everybody's a terrorist, everywhere's a threat. The sky is falling, the sky is falling! Christ almighty. Buck up sissy boys. Mohammad's boys won't be making it out to whatever, god-forsaken, white trash trailer park you're cowering in.

Carrick:Except tha... (Below threshold)


Except that FISA specifically excludes "United States persons" from its purview ... and what we have learned so far about the surveillance is that it does involve surveillance of U.S. citizens making int'l calls.

I, like hundreds of others, am waiting for the Volokh Conspiracy's Orin Kerr to make a pronouncement. He seems to be the best blogospheric authority on this sort of thing.


Remember everyone, it's O.K... (Below threshold)

Remember everyone, it's O.K. if W.J. Clinton spys on Americans, using Echelon, but it's not O.K. if G. Bush does the same thing against Americans talking to potential terriorists outside of America. But if he does not, then he wasn't protecting us, (just like the nine months before 9-11)and if he does, then he's violating our freedoms. Sounds like a recursive do loop to me! Last time I checked, the Terrorists were the bad guys. I thought we weren't supposed to be talking to them? Maybe we are getting recipes for goat or hummus?

Al-Zarqawi did have a recip... (Below threshold)

Al-Zarqawi did have a recipe for Goat's Head Soup in the latest issue of Terrorist Monthly that was simply delectable!

Penny:I've been re... (Below threshold)
Peter F.:


I've been reading your thread with Ed and Carrick regarding FISA, I think you're being uncharitable in your quotation as well because it doesn't go far enough. You state:

Also, according to this law that you cite, there should be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" § 1802(a)(1)(B).

You then go on to cite the procedures the attorney general has to go through in order to obtain warrants. But what you do not go on to state is:

Go to section 1801, subsection (i): (i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

Essentiallly, that's any and every United States citizen, you and me. BUT...

Does one forgo their rights when they collaborate with terrorist organizations or, to be relevant, their phones numbers in the US pop up on AQ captured computers overseas? Yup, under 1801 (b)(2)(2) it states that anyone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;" it is a violation against the United States. (And yes, al Qaeda is considered a foreign power under 1801 (a).). Therefore, surveillance is warranted and legal, particularly if the AG is following the rules according to the act, which it appears he has so far.

If anything, it seems like fettered power is at work here, and that's not an altogether bad thing.

Clever, Peter F., but not c... (Below threshold)

Clever, Peter F., but not clever enough. Your definition of an "agent of a foreign power" (contained in § 1801(b)(2)) is correct. However, § 1802 still orients not on "agent of a foreign power," but on "United States Person," effectively nullifying your argument.

There are other laws and pr... (Below threshold)

There are other laws and precedents Pennywit. For example U.S. v bin Laden. See http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/binladen_12_19_00.pdf

Circuit courts applying Keith [FISA] to
the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the
warrant requirement for searches conducted within the United States which target foreign powers or
their agents.

Or Executive Order 12333

Do your research.

Ed:I am quite awar... (Below threshold)


I am quite aware of the bin Laden decision, thank you very much. Moreover, I would point you to the section of that ruling that purposely narrows it only to the surveillance of foreign nationals on foreign territory. I would also caution you that bin Laden is based on Fourth Amendment jurisprudence and on the very law that we have been debating here.

Second, I caution you in two regards in your reliance on the executive order.

In the first place, the current issue is whether the executive has unfettered power to set surveillance policy. Considering that executive power is the issue here, relying on an executive order is a grand bit of circular reasoning.

Second, you direct me to a rather lengthy order and tell me that your case is supported in there. Somewhwere. Unfortunately, you don't make your case very well. If you're going to cite the executive order for authority, please do me the courtesy of citing specific paragraphs of it so that I can analyze your argument.

I await your response.


Penny:I'm too slow... (Below threshold)
Peter F.:


I'm too slow to be overly clever! LOL.

Second, yes, I agree that 1802 orients toward a person of the United States but I don't believe it is necessarily exclusive in that regard.

For example, how is (a)(A)(ii) not applicable or nullifies my argument, as it states that AG "certifies under oath that...":

(A) the electronic surveillance is solely directed at— ...

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

And it links directly back to the definition of a "foreign agent". (I do realize the "United States person" section comes immediately after this section.)

Question: How could the law not include a stipulation or scenario where an American citizen is acting in concert or is in communication with a foreign agent (i.e. an AQ member) and not be subject to surveillance? I would think that would be a huge oversight on the part of lawmakers, would it not? I don't believe the government or the NSA would allow for such a loophole to exist.

I ask all of this out of polite intellectual curiosity.

Hoo-boy. First, t... (Below threshold)


First, the paragraph you quote isn't (a)(A)(ii). It's (a)(1)(A)(ii). Also, note that (a)(1)(A)(ii) refers not to persons, but to "property or premises." "Property or premises" does not include "people."

Further, note the construction of the statute.

The surveillance must meet the following criteria:

(Condition (a)(1)(A)(i) OR Condition (a)(1)(A)(ii)) AND Condition (a)(1)(B) AND Condition (a)(1)(C).

Which means that even if you meet condition (a)(1)(A)(ii), which you cite, you still have to meet the terms of (a)(1)(B), which requires:

[T]here is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party


Consider this from 1801, to... (Below threshold)
Peter F.:

Consider this from 1801, too:

(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—

(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.

Emphasis added. I believe this makes the argument that conducting surveillance on a person of the United States is legal when warranted.

I'm not a lawyer (fortunate... (Below threshold)

I'm not a lawyer (fortunately). I'm an informed layman. I can read the law just as well as any lawyer. I also happen to know the context in which the "spying" was performed. Given the vast resources of the Justice Dept. and the NSA, I would say if their lawyers feel the law is ambiguous and grants authority to the Executive branch in time of war against foreign powers/agents, I have no problem with that. Until the law is repealed or found unconstitutional, the President, in a time of war, gets my vote of confidence. Interpretation by ACLU-types be damned.

Penny,No need for ... (Below threshold)
Peter F.:


No need for the exasperated "hoo-boy", I do have some intellectual capacity! lol

I absolutely read the construction of statue and am keenly aware of the conditions that must be met. I'm also in absolute agreement with you on them. But you seem to making the point that (a)(1)(B) trumps everything and includes all person in the United States no matter who they are, irregardless of their activities. To a point that's true, but it's not exclusive per 1801 (e)(1)(b); it simply can't be dismissed because it is essential to define who and who is not acting as "a person of the United States."

Section (f) in 1801 is also rather interesting in regards to "property and premises", too.

I'm not worried about your ... (Below threshold)

I'm not worried about your intellecutal capacity. I'm worried about my own. I haven't done heavy-duty statutory interpretation in a while.


Those of you dueling with m... (Below threshold)

Those of you dueling with me over statutory interpretation might be interested in Orrin Kerr's analysis.


Thanks for the link to Kerr... (Below threshold)
Peter F.:

Thanks for the link to Kerr's analysus, penny. It's definitely helpful!

While this is a bit off of ... (Below threshold)

While this is a bit off of the "did the administration break the law" topic, I'm curious...

Why is snooping voice and/or data traffic any different than say, monitoring tail numbers and passengers' destinations on airplanes for air traffic?

How is it different than monitoring contents and the origins / destinations of cargo on railway or shipping manifests?

I heard that during the D.C. sniper shootings, infrastructure equipment vendors were asked to help operators to help law enforcement agencies. Without knowing all of the specifics nor the whole story, I do know that several equipment vendors were able to collect location data based on information gathered legally from the phone switches (not necessarily voice or data traffic intercepts from the phone/data calls themselves, but statistical data) to try to assist. Although this didn't play a direct part in apprehending the shooters, it was done.

Does it really make people feel that uncomfortable knowing that law enforcement agencies could intercept your 'personal' information from a phone call or data request? If so, why do so many people post so much information on blogs - or via e-mail to one another or use a telephone in public all the time? When people make phone calls, do they realize or care that where the voice circuit resides may be in the hands of as many as half a dozen (or more) operators' equipment?

I suppose that I am glad that there are standardized mechanisms in place for such surveillance such as CALEA for mobile telephony, which is actually nothing new. However, if folks seek privacy, then the Internet or telephone networks are inherently not very private - just ask those who have been litigated against for downloading music illegally. Most certainly, you can be assured that an international call or e-mail is much less private.

I'm really not looking for a stance one way or another - but I thought I'd pose those questions since I haven't heard them yet.

I do know that lining the inside of your microwave oven with tinfoil to prevent the government from knowing what you eat is probably not a good idea.

Here's a question:... (Below threshold)

Here's a question:

You may or may not have terrorists living among you. Find them before another building falls while keeping everyone's privacy 100% intact.

How do you propose to do that?

I hear too often people complaining about the loss of privacy or freedom of speech, but we are at war with an enemy who has no state, no uniform, and hides among regular civilians. How do you propose to combat them? Or do you just throw your hands up and claim that we can never win, that we should not win, like Dean?

How do you propose to do... (Below threshold)

How do you propose to do that?

They need to start with the NYT.

...but we are at war with an enemy who has no state, no uniform, and hides among regular civilians.

Again, sounds a bit to me like the NYT.

I'm glad to point people to... (Below threshold)

I'm glad to point people to Orin Kerr. And rather than battle further over statutory interpretation here, I would probably defer to Prof. Kerr's analysis, as he's the real live legal export to my wooden marionette, and he explains these things far better than I can.


I hear too often people ... (Below threshold)

I hear too often people complaining about the loss of privacy or freedom of speech, but we are at war with an enemy who has no state, no uniform, and hides among regular civilians. How do you propose to combat them? Or do you just throw your hands up and claim that we can never win, that we should not win, like Dean?

Good point. However I would have to ask.. if the excuse for this is "we are at war" then when will we achieve victory in this war? How do we determine terrorism has been defeated since terrorism is a tactic and an ideology? I think it's safe to say we will be fighting this "war" for a very very very long time. So the executive gets these special powers from now till...?






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