WP: Administration, Congress Settle Dispute Over Surveillance

[ACW]

I think those who would grant the President unlimited powers are COWARDS. "Oh please, mister president, do whatever you need to to protect me, because I'm scared." Man up. This country is great BECAUSE we are free. If we give up freedoms, the terrorists HAVE won. :2cents:

[Larry]

I think those who would grant the President unlimited powers are COWARDS. "Oh please, mister president, do whatever you need to to protect me, because I'm scared." Man up. This country is great BECAUSE we are free. If we give up freedoms, the terrorists HAVE won. :2cents:

Just out of curiosity, did you read the thread?

[Burgundy Burner]

I'd go somewhat further than that.

Larry's opinion:

The Constitution forbids the government from conducting surveillance without a warrant against anybody, citizen or non-, foreign or domestic. (I think a case could, and has, been made that in times of war, surveillance on enemy citizens is a normal part of War, and are considered an implied power.)

OTOH, I also believe that the world has changed since the 18th century. And that surveillance, of a kind unimagined by the Founders, is now essential for national security.

What I'd like to see is a law, discussed in public, voted on my Congress, signed by the President, monitored by the courts.

The law would specify that certain government agencies (NSA, CIA, DIA) are classified as "National Security Agencies". They are allowed to collect any piece of information they can get their hands on, using any methods they possess. Once connected, they can do anything with the data they can think of. No limitations on their ability will exist (unless Congress should chose to specifically impose them.)

However, those agencies are not permitted to

act

on their information, unless they have "reliable information of a credible, imminent attack against the United States, (

not

"US interests"), of a military or paramilitary scale." They are forbidden from sharing their information (except with each other.)

"Law enforcement agencies" (FBI, DEA, Treasury, EPA) are still confined by the Constitution. (However, the National Security Agencies

are

allowed access to the information that was gathered through Constitutional means. Information passed from FBI to CIA, but not the other way.)

The analogy I use is: In Larry's World, the NSA is allowed to monitor every communication in the world. They can listen to phone calls, they can record every single e-mail, anything. If they discover that some guy in Cleveland is exchanging encrypted e-mail with a guy in Turkey, then they can put a flag on both guys, and intercept all of their communications. They can decrypt the e-mail. No warrant needed. Before or after.

If they discover that one of Saddam's former scientists is talking to Ossamma's procurement officer, offering to sell where the nukes are buried, then Mr. Clark is allowed to go make both of them disappear. (Hopefully

after

finding out where the nukes are buried.)

If they discover that it's two guys swapping kiddie porn? Then they can't do a thing. Not even an anonymous phone call to the Cleveland PD saying that they need to keep an eye on this guy.

IMO, really a law like that is unconstitutional. It really ought to be a Constitutional Amendment. But I'd be willing to live with it.

There are lots of things that I think are unconstitutional but I can live with, like searching people who want to get on an airplane.

I'm cool with this. I think the "compromise" that we have now comes as close to this scenario as we will ever get.

[ACW]

Just out of curiosity, did you read the thread?

:yes:

I just had to state that :soapbox:

[Redskins Diehard]

I think those who would grant the President unlimited powers are COWARDS. "Oh please, mister president, do whatever you need to to protect me, because I'm scared." Man up. This country is great BECAUSE we are free. If we give up freedoms, the terrorists HAVE won. :2cents:

Did anyone anyone fit your bill of a COWARD in this thread?

Do you think anyone should do anything to protect you? Or your less able to protect themselves countrymen?

[Redskins Diehard]

.

I've specified it. "credible information of an imminent threat against the United States, of military or paramilitary scale." (I've spent some time thinking about the language.)

(Of course, like anything political, the language will wind up being a compromise. That's why I want public debate in Congress. So the People can decide how much they trust their government. (Even though I'm firmly confinced that the People will give the government a lot more power than I would.)

(If the final bill says "US interests, then I'm gonna oppose it, because that phrase has been used too many times to mean "anything that affects corporate profits".)

Sorry. If some college professor is sending money to Hamas, then that's not good enough reason to exceed the realm of the Constitution and criminal law. If the FBI can catch him, and convict him, using Constitutional means, then he's all theirs. (Giving money to Hamas is a good enough reason for the NSA to use any means at their disposal to keep track of the guy. After all, he may graduate to something bigger, or they may just learn something from him. He may get a phone call from Hamas telling him to expect the arrival of two people who need a place to stay, quietly, or something.)

Will you define "military or paramilitary scale"? I am just not familiar with the terminology.

I think your law has to have a mechanism, some mechanism, through which intelligence data can be transferred to law enforcement data. It seems to me there isn't one. Intelligence data stays in the intelligence community until there is a credible and iminent threat at which time the intelligence community becomes the action community which will "disappear" someone. With what appears to be limited to no due process. And clearly parameters will have to be placed on what is "credible threat" and what is an "iminent threat".

[Popeman38]

You do not understand correctly. Communication that passes through US networks is treated that same as communication that is completely contained with the US...no matter where it originates or terminates.

You could not be more wrong. Transit traffic is completely different than domestic traffic. Where it originates and terminates is infinitely more important. For example, it is cheaper for some countries to route all their calls through the US because our infrastructure makes their infrastructure look like Legos and Lincoln Logs.

[Larry]

Will you define "military or paramilitary scale"? I am just not familiar with the terminology.

That's because I made it up.

I think your law has to have a mechanism, some mechanism, through which intelligence data can be transferred to law enforcement data. It seems to me there isn't one. Intelligence data stays in the intelligence community until there is a credible and iminent threat at which time the intelligence community becomes the action community which will "disappear" someone. With what appears to be limited to no due process. And clearly parameters will have to be placed on what is "credible threat" and what is an "iminent threat".

Yes, it's rather vague.

And it always will be. It's impossible for anyone to imagine every possible scenario and to create detailed instructions, in advance, for every one of them.

Nobody's ever explicitly defined "probable cause" either. But over time, a large amount of precedent has been established resulting in a pretty firm consensus of what is or isn't probable cause.

Yes, I observe that "Larry's Law" has a severe lack of due process. (Although I'd say that it only deals with what information the government is allowed to know or not know. I have opinions about the treatment of prisoners, too, but I thought that was a separate topic.)

Should there be some procedure for the Judicial branch to oversee whether "probable cause" (or some similar, broad, term) has been met? I certainly wouldn't mind such a procedure.

(BTW, what I'm also visualizing is that these rules be arrived at by consensus. There's certainly room for suggestions. It's not a "take it or leave it" deal.)

And yes, I specifically do not want information to pass from CIA to FBI. If it does, then we wind up with what some people claim is already going on. "Hey, we think this guy is a drug dealer, but we don't have enough for a warrant. Could you folks pretend he's a terror suspect, wiretap him without a warrant, and then just send us the tapes?"

IMO, you either have to block the CIA from giving information to law enforcement, or you have to demand that all intel agencies get warrants for any surveillance. The combination of "warrants not needed" and "once we've got it, then it's fair game for anybody to use the information" is too dangerous. Given those two choices (no sharing or warrants required), I think no sharing is the better option.

I'd rather have a CIA that knows everything, but can't do much, than a CIA that doesn't know much.

[Redskins Diehard]

You could not be more wrong. Transit traffic is completely different than domestic traffic. Where it originates and terminates is infinitely more important. For example, it is cheaper for some countries to route all their calls through the US because our infrastructure makes their infrastructure look like Legos and Lincoln Logs.

Transit traffic is treated the same by the law as domestic traffic.

http://www.newyorker.com/reporting/2008/01/21/080121fa_fact_wright

He said that federal judges had recently decided, in a series of secret rulings, that any telephone transmission or e-mail that incidentally flowed into U.S. computer systems was potentially subject to judicial oversight.

"He" is DNI Mike McConnell

[Larry]

You could not be more wrong. Transit traffic is completely different than domestic traffic. Where it originates and terminates is infinitely more important. For example, it is cheaper for some countries to route all their calls through the US because our infrastructure makes their infrastructure look like Legos and Lincoln Logs.

I'd wondered about that, myself.

Me, I'd say that if you care whether a call is considered foreign or domestic, then the locations of the endpoints is a lot more important than which route it takes.

(I'm not sure I care. IMO, the Constitution still requires a warrant, whether the call's foreign or not.)

[Redskins Diehard]

Yes, it's rather vague.

And it always will be. It's impossible for anyone to imagine every possible scenario and to create detailed instructions, in advance, for every one of them.

Define "probable cause". Heck, define "self defense". It's a legally recognized defense, but can it be specifically stated, in advance, exactly what is or isn't allowed?

Yes, I observe that "Larry's Law" has a severe lack of due process. (Although I'd say that it only deals with what information the government is allowed to know or not know. I have opinions about the treatment of prisoners, too, but I thought that was a separate topic.)

Should there be some procedure for the Judicial branch to oversee whether "probable cause" (or some similar, broad, term) has been met? I certainly wouldn't mind such a procedure.

(BTW, what I'm also visualizing is that these rules be arrived at by consensus. There's certainly room for suggestions. It's not a "take it or leave it" deal.)

And yes, I specifically do not want information to pass from CIA to FBI. If it does, then we wind up with what some people claim is already going on. "Hey, we think this guy is a drug dealer, but we don't have enough for a warrant. Could you folks pretend he's a terror suspect, wiretap him without a warrant, and then just send us the tapes?"

IMO, you either have to block the CIA from giving information to law enforcement, or you have to demand that all intel agencies get warrants for any surveillance. The combination of "warrants not needed" and "once we've got it, then it's fair game for anybody to use the information" is too dangerous. Given those two choices (no sharing or warrants required), I think no sharing is the better option.

I certainly do not want to be the action officer trying to protect and defend my country by "disappearing" a bad guy only to find charges of Treason waiting for me at the other end if I misinterpreted the vague, by design, definitions.

In the last paragraph would you consider a provision that stipulates(and this is very raw) that the CIA has informationthat they believe would be of use to the FBI. The information then goes through the judicial review process to see if it can be shared. Important to consider is that a lack of information sharing within the intelligence and law enforcement community(an aside is that the FBI as it currently stands falls into both categories) was exploited by the 9/11 perps(And I recognize that that does not automatically mean anything and everything that could have prevented 9/11 should be implemented)

[Redskins Diehard]

I'd wondered about that, myself.

Me, I'd say that if you care whether a call is considered foreign or domestic, then the locations of the endpoints is a lot more important than which route it takes.

(I'm not sure I care. IMO, the Constitution still requires a warrant, whether the call's foreign or not.)

I'm not saying that as a matter of personal opinion that they are the same. Or that they should or should not be the same. That whole tangent originally started in response to another post talking about gathering intelligence on foreign communications. as far as the LAW is concerned, a communication that passes through a US communication network is treated the same as a communication that is purely domestic.

[Larry]

My counter assertion, though, would be that in my scenario, the 9/11 information would have been shared. The CIA would have had access to all of the information.

Sorry, but it's impossible to anticipate all possible scenarios in advance.

Please consider this my third request for your suggestion of how to make it better.

Like I've said, I have a problem with the creation of an agency that has unlimited authority to conduct unconstitutional searches, and then hand the information over for law enforcement use. If it happens, then the 4th Amendment is useless. And the standard the 4th requires is (going from memory) "probable cause, based on oath or affirmation", not "may be of use".

I can live with FISA, too. Simply require warrants for all surveillance. I think it might, theoretically, be too limiting, but I can see the claim made that it's working. To me, that's another way to make things more reasonable: Spread the decision around. After all, that's the way we currently determine, domestically, if the cops have a good enough reason for a wiretap: Show the evidence to a judge. If the judge agrees, then yep, you had probable cause.

[Redskins Diehard]

My counter assertion, though, would be that in my scenario, the 9/11 information would have been shared. The CIA would have had access to all of the information.

Sorry, but it's impossible to anticipate all possible scenarios in advance.

Please consider this my third request for your suggestion of how to make it better.

Like I've said, I have a problem with the creation of an agency that has unlimited authority to conduct unconstitutional searches, and then hand the information over for law enforcement use. If it happens, then the 4th Amendment is useless. And the standard the 4th requires is (going from memory) "probable cause, based on oath or affirmation", not "may be of use".

I can live with FISA, too. Simply require warrants for all surveillance. I think it might, theoretically, be too limiting, but I can see the claim made that it's working. To me, that's another way to make things more reasonable: Spread the decision around. After all, that's the way we currently determine, domestically, if the cops have a good enough reason for a wiretap: Show the evidence to a judge. If the judge agrees, then yep, you had probable cause.

I have given a couple of suggestions. I have not analyzed Larry's law for long. I think it is not that fundamentally different than what is actually in place now. Just what in place now has not gone through the process that you want.

My biggest problem with it is that in your law the intelligence community has no mechanism to transfer information. I have not come up with a method that fits into your system....I'll get a staffer on it.

[Larry]

I'm not saying that as a matter of personal opinion that they are the same. Or that they should or should not be the same. That whole tangent originally started in response to another post talking about gathering intelligence on foreign communications. as far as the LAW is concerned, a communication that passes through a US communication network is treated the same as a communication that is purely domestic.

I guess one of the arguments that I wonder if people made involves those words I see a lot, "the expectation of privacy".

IMO, if a guy in France calls a guy in Canada, then he knows he's in France, and he knows he's calling Canada. He doesn't know which route his call is taking. I'd claim that his "expectation of privacy" can only be based on where he is, and where he's calling. That he cannot be entitled to privacy today, but if he makes the same call tomorrow, then he may not.

Don't know if that reasoning would actually work. Just doesn't feel right to me. (Although recognizing that the universe doesn't care if I think it feels right.)

[Redskins Diehard]

I guess one of the arguments that I wonder if people made involves those words I see a lot, "the expectation of privacy".

IMO, if a guy in France calls a guy in Canada, then he knows he's in France, and he knows he's calling Canada. He doesn't know which route his call is taking. I'd claim that his "expectation of privacy" can only be based on where he is, and where he's calling. That he cannot be entitled to privacy today, but if he makes the same call tomorrow, then he may not.

Don't know if that reasoning would actually work. Just doesn't feel right to me. (Although recognizing that the universe doesn't care if I think it feels right.)

A FISA warrant is required for surveillance on that phone. I put in a link to the New Yorker a few posts back which addresses it some. I believe the problem/challenge is more prevalent in data comm's than voice comm's. E-mail servers, chat rooms, message boards:) are typically located on a server that remains in the US.

Extremeskins is just as protected for a couple of people posting from Yemen as it is for you and I. Which I am not saying is necessarily or entirely a bad thing.

[Popeman38]

I'm not saying that as a matter of personal opinion that they are the same. Or that they should or should not be the same. That whole tangent originally started in response to another post talking about gathering intelligence on foreign communications. as far as the LAW is concerned, a communication that passes through a US communication network is treated the same as a communication that is purely domestic.

From the link you provided is the word potentially. That is a HUGE word/loophole. Potentially, an asteroid could hit the earth and make humans extinct. Until it happens, it hasn't.

There has been no decision to treat transit traffic as domestic, and if you search for rules made after 2005 you would see that decisions have been made with bipartisan support by both the Senate and the House to specifically designate transit as different than domestic. http://thomas.loc.gov/cgi-bin/query/D?c110:3:./temp/~c110wdAwVa::

EDIT: When you open the link, it will fail. Add two colons (: to the address and it will work.

[NoCalMike]

I think the main thing some people are forgetting is that basically, anyone can be wire-tapped or monitored as long as they get a warrant the purpose of getting a warrant is to ensure that they are monitoring someone for kosher reasons. You can even start the monitoring first and then go afterwards and get the warrant. So, in other words, it's really not that hard to get approval for wanting to monitor a "terror suspect"

What has me worried is why the administration is not wanting to go and get a warrant. In other words, they want to spy and spy and spy and never answer to anyone as to why they are doing it.

If you trust the the government that much then fine, but would you be so trusting if it was a different President, or is it just another case of "Bush can do no wrong" from the last 20% left of people that actually think this guy is doing a good job?

Whether or not you agree with this policy or not, surely you cannot claim that it isn't violating the constitution. It doesn't matter if they aren't spying specifically on me, or you, or our neighbors.

[Redskins Diehard]

From the link you provided is the word potentially. That is a HUGE word/loophole. Potentially, an asteroid could hit the earth and make humans extinct. Until it happens, it hasn't.

There has been no decision to treat transit traffic as domestic, and if you search for rules made after 2005 you would see that decisions have been made with bipartisan support by both the Senate and the House to specifically designate transit as different than domestic. http://thomas.loc.gov/cgi-bin/query/D?c110:3:./temp/~c110wdAwVa::

EDIT: When you open the link, it will fail. Add two colons (: to the address and it will work.

"He said that federal judges had recently decided, in a series of secret rulings, that any telephone transmission or e-mail that incidentally flowed into U.S. computer systems was potentially subject to judicial oversight. According to McConnell, the capacity of the N.S.A. to monitor foreign-based communications had consequently been reduced by seventy per cent."

I think a 72% decrease indicates some impact. I think that that indicates it has happened.

I never claimed the judgement was made by the Congress to treat it similarly or differently...I spoke reference to a judicial decision.

Are you disputing McConnell's claim?

[Popeman38]

"He said that federal judges had recently decided, in a series of secret rulings, that any telephone transmission or e-mail that incidentally flowed into U.S. computer systems was potentially subject to judicial oversight. According to McConnell, the capacity of the N.S.A. to monitor foreign-based communications had consequently been reduced by seventy per cent."

I think a 72% decrease indicates some impact. I think that that indicates it has happened.

I never claimed the judgement was made by the Congress to treat it similarly or differently...I spoke reference to a judicial decision.

Are you disputing McConnell's claim?

Did you go to the link? Congress made the Fed Judges ruling irrelevant.

[Redskins Diehard]

Did you go to the link? Congress made the Fed Judges ruling irrelevant.

The link didn't work. And I tried modifying colons a number of different ways.

[Popeman38]

The link didn't work. And I tried modifying colons a number of different ways.

Try this:

http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s1927

When it pops up, place a : after the s1927. Click on the link to the text of the bill.

[Redskins Diehard]

Try this:

http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s1927

When it pops up, place a : after the s1927. Click on the link to the text of the bill.

That bill appears to have been passed in April of 2007. McConnell statement was in January 2008. It seems if that bill made the court ruling obsolete then he would have known about it.

I read the bill and do not see how it differentiates between the two types of communication that we are discussing here.