Centerfield

One thing I find intersting in the portion of the judge's defense that you quoted is the discussion on the nature of privacy. I hear a lot of people talk about their privacy being in question when information about them is stored as searchable data on computers, or when video cameras are placed on street corners.

When I hear these things, it seems to me that these things are no more invasions of an individual's privacy than is another person's being aware of that individual's existence, or that the individual exists at all.

For someone to seek out your information in some vast database of unconnected people's information, that person would already have to know who you are and something about you. That's not to say that your privacy could not be invaded through such a search, but that the existence of the data and ability to perform a search of it does not, in and of itself, constitute an invasion of privacy. Claiming otherwise is sort of like saying that, because you have an address, a name, a face, a telephone number, a body, a voice, and that you are visible and possibly smell funny your privacy does not exist.

You are no less anonymous because your information is in some database or on some network than because you can be picked out at random in a large crowd walking down the street.

To the extent that Posner is correct about these programs being ways to fill the gap, I agree with him that we need do it on a less ad hoc basis and set up more institutional ways of doing this. I agree that I don't think these agencies have much interest in snooping in my personal life. I also recognize the many gray areas that exist in distinguishing between foreign and domestic intelligence gathering.

But I'm not as sanguine as Posner that we shouldn't be concerned about these programs, not least because they aren't authorized by law. I'm not naive--there is always going to be some "under the table" stuff that is a part of the real world. But saying that agencies are just filling in the gaps with no real guidance as to how far they can go seems dangerous. It's easy for Posner to say that an administration couldn't use this to surveil its political enemies, but it's been done before. Certainly, mass collection of data probably poses no specific threat to legitimate privacy interests, but who is to say that an unregulated program can't expand to fill whatever perceived need exists. The people who complain about bureaucrats aggrandizing power to themselves with respect to domestic social programs should, it seems to me, be equally concerned with the ability of national security bureaucrats, no matter how well meaning, to take undue power upon themselves.

And while the terrorist threat is clearly real and probably growing, I'm afraid that justification can easily become a license for unlimited powers--as the Bush Administration seems to be asserting now-to fight the threat. If the terrorist threat is that unlimited, why bother with civil liberties at all? I think there are some people who would go that far--I once argued that point after Sept. 11 with my former sister-in-law who was pretty much ready to deport all foreigners.

I agree that the executive likely has a better understanding of the real dangers we face than Congress and certainly the public. I think we need to accept that the times are different and we cannot ignore the realities. I have said before that I think liberals, in particular, have shirked their responsibility in this matter and need to help develop a positive response to the problems we face, rather than pretending these problems don't exist. But, having said that, I can't agree with Posner that unregulated activities by the security/intelligence agencies don't pose a threat.

The conundrum: most of us have no problem with such programs being used. This is wartime. We have a big problem with the idea that such a program can be abused. I'm not bent up about the current flap because I haven't seen any evidence of abuse, and I've seen evidence that they went to great lengths to avoid abuse. But that's today, and this administration. When FDR gave J. Edgar massive authorities in intelligence surveillance, he probably didn't think that it would end up with microphones under Martin Luther King's love nest mattress.

I'm certainly not going to demand that a useful "black ops" program saving American lives be destroyed to satisfy a howling partisan mob. On the other hand, now that it's been partialy exposed, it's a good time for the FISA Review Court to maybe get a better briefing and a chance to review specifics, and for the respective senior committe members to get one as well.

Immediately throwing such a thing out to Congress to play with is the same as publishing it as a Sunday supplement in the NYT. Congress leaks like a sieve. And oh yeah, I want the people who leaked this--ALL of them--to pay some price. I don't give a damn if they're sitting in Congress right now. We're at war, and leaks can kill Americans. Those who leak deserve public exposure themselves, AT LEAST.

Tully:

Your suggestion about direct link to John Scmidt's article yesterday is well taken. I had linked John's comments because I thought the were relevant to the topic.

This may be redundant, but his lengthy post today explains in detail why the program would be legal. I am not an attorney but I found it extremely interesting.

Here it is, if anyone is interested.

http://powerlineblog.com/archives/012631.php

I think when the Pentagon is investigating various groups concerning terrorism, including a bunch of old Quakers as pointed out in Countdown last week, and when the list of groups investigated contains no right wing milita groups or any others on the far right, then such survellance has become a political animal.

That's the real risk to all this. Without adequate oversight such government activity is used as it was in the 60's to supress or damage dissent, to go after individuals who's only threat is to the political security of those in power not the security of the nation.

Posner offers no real safeguards. Nor are there safeguards offered in what could be a "war without end". Whatever reassurances he offers have yet to really be borne out. In the software industry we call that "vaporware". When there is one party rule, accountability flies out the door. The press itself is hamstrung, either by threats or promises of highly valued access to political insiders, for news is now a profit center, not a public service (re:"Network"), or because companies themselves are vulnerable to the political whims as the government regulations they operate under. There are few limitations as we've seen.
Much has been made of Clinton's and Carter's use of surveillance laws. The difference is that unlike this administration, they actually took time to cross the t's and dot the i's.It had no adverse effect on the intelligence gathered for the particular instances.

I am reminded yet again, and frquently these days, that those who are willing to trade freedom for security deserve neither. Why people, liberal or consevative, are all too willing to lay down and be run over without so much a peep is beyond me.
Posner, as far as I'm concerned, besides being very partisan in his outlook of the law, would have been much happier living in Soviet Russia.

No secrets concerning matters that would interest the public can be kept for long.

There is absolutely no way to prove that statement is true. Maybe so. Maybe not.

I hope Tully is right that this program has not been abused, but nothing about the Bush administration (let alone the history of government) makes me trust them. A little torture, anyone?

And I must disagree with Mr. Tully that revealing the program has somehow benefitted the bad guys. NSA already had the power to secretly monitor anyone in the U.S. -- sometimes they just needed a FISA warrant to do it.

NSA can't monitor you until you pick up a phone or send an email. And if they find anything interesting enough for investigation that's domestic/criminal, and not military/national security, they have to refer it to the FBI for the FISA application and investigation--or a regular warrant application. After that it's the FBI watching you.

I don't know that the program HASN'T been abused, but I have seen no indication at all that it has and several indications that it was tightly safeguarded to contain it to the stated (military/national security) intel objectives. It's the capability that's scary. But the capability will remain regardless of what laws we pass, unless we want to throw away all our technology. That capability has been there for over a decade.

There's buzz going around right now that the NSA intercept program is what led to the arrest of the would-be Brooklyn Bridge bomber, Iyman Faris, and the prevention of the bombing. No verifications yet.

That's the rub, isn't it? You can't obtain a warrent based on information gained from a warrentless wire type. Fruit of the poison tree and all.

It's the reason a FISA Judge resigned, and yet no one here has even mentioned that, although there is a post about a judge defending the wiretapping. I find that interesting.

Resigned? Now there's an Inactivist Judge.

ROFLMAO! "Inactivist judge." Like Rehnquist today.

Yasser Arafat remains in stable condition after dying at a Paris hospital...and Generalissimo Francisco Franco is still dead.

You can't obtain a warrent based on information gained from a warrentless wire type.

I don't believe that's accurate. Evidence gained from a warrantless electronic surveillance is generally not admissible in US criminal trials unless the hoops have been properly jumped through. But once you've "tagged" a target for observation, all it takes is watching them long enough and in the right ways to establish some probable cause for warrants. Just because you found out about them without a warrant doesn't mean you have to ignore them, any more than you have to turn a blind eye to a street tip from an informant. Warrants are issued all the time on informant tips.

Why the judge resigned is problematical. He didn't resign his position on the circuit court, I note, just on FISC.

Tully said:

and I've seen evidence that they went to great lengths to avoid abuse.

I doubt it.

If they wanted to avoid abuse they would have applied for the warrant. They didn't. Can't get much more straight forward.

If you want to abuse a system, you don't notify a relevant court and the opposition leaders in Congress of what you're up to, or file record certifications, even sealed ones.