ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Tuesday, December 20, 2005

Wire Taps and "The Expectation of Privacy"

The Fourth Amendment (that we shall be secure in our homes and papers etc.) is a tricky rascal and one that I am a firm believer in. I am a true Libertarian about such things. Unless authorized the government shall not intrude. They need warrants supported by probable cause that a crime has been committed to break down your door and open sealed mail etc. Our rights under this amendment are basically described as being protected when we have a reasonable expectation of privacy.

Does that apply to cell phones?

A cell phone is basically a radio. If you say something over a radio do you have an expectation of privacy? That seems ludicrous on its face. You put the signal out into space and it can, and will, end up almost anywhere. Want privacy? Find another way to communicate, say a land-line or letter (not to be confused with email which has essentially the same problem as a cell phone).

I am assuming (never a safe thing to do) that most of these intercepts involve wireless communication. If that is the case, I think the government is completely within its rights to intercept them. I know I do not say or do anything I do not want the world or God to know over a cell phone or the internet.

This is not to say that I think the government should be involved in this sort of thing on a regular basis. For one thing, to do so in an untargeted manner would involve billions of bits of information and would be hugely wasteful and unproductive. Secondly it is a way of slouching toward Big Brother and that makes me nervous indeed. Should it be shown that sort of thing was going on, which I doubt is the case, we would need to look seriously at some new privacy laws, not to mention encryption technology. But given the current state of technology and the law, I fail to see a problem with what the government has done here insofar as I understand the issue.

Eavesdropping on Bin Laden and his little friends is impolite but not illegal.

Your Co-Conspirator,
ARC: MontereyJohn

Comments (23)
St Wendeler said...

Good post, MontereyJohn.

I agree that oversight is a requirement for this... if it ever came to light that this type of intercept was used to monitor political opponents, then impeachment would be in order.

If it's demonstrated that the targets for such intercepts involved suspected al Qaeda terrorists (or affiliated groups), then the Dems are in a pickle.

Stupid Country said...

What you evidently don't understand is that this issue of domestic wiretaps by the NSA is only peripherally about privacy. The heart of the issue is the President's seizure of unlimited, absolute authority, to the point now where he admits to plainly illegal acts. Bush may claim the Constitution gives him the authority to ignore the oversight responsibility of Congress and the Judiciary during wartime. He's simply wrong, as are the apologists rushing to his defense these days.

NSA does not have the authority to spy on Americans, period. The President cannot authorize any agency to wiretap Americans in the US (the fact that the calls are international and that they are cell phone calls is totally irrelevant) without a court-issued warrant. The FISA set up, for this specific purpose, a secret court that can approve such wiretaps up to 72 hours after they occur, so there is no legitimate argument that seeking the warrant would slow the process down. The court does have a responsibility to impose a standard of probable cause that could be an issue in certain cases where the administration has only a vague intuition that an individual might have terrorist links or some other reason to be of national security interest. Perhaps this is where we differ -- it seems to me (and apparently to most legal academics) that such a whimsical justification for spying on Americans without probable cause is not within the Constitutional authority of the President, by any reasonable interpretation, even in wartime.

The Republican Congress has utterly abdicated its oversight role with respect to this administration. If the President now subverts the Judiciary by simply ignoring the requirement that it subject its covert domestic spying activities to court scrutiny, then Bush has effectively seized dictatorial power. Regardless of how he justifies that coup d'etat, it is absurd for you to, on one hand, identify yourself as a libertarian and, on the other, accept this assertion of unchecked authoritarian control.

It doesn't matter whether the administration is liberal or conservative. A President who asserts that he is beyond the oversight of the other branches of government needs to confronted by Congress and the Supreme Court and set straight on this point.

A President who clearly breaks federal law in asserting unchecked authority needs to be impeached.


Brian said...

MJ, what if I encrypt my radio traffic? Does that mean that I have an expectation of privacy now?

If not, then what if my signals travel over my neighbor's wire, but encrypted? Do I still have an expectation of privacy? I encrypted it assuming that only I could decrypt it. Yet the NSA has super duper computers that can crack it.

Just some thought experiments. :-)

Of course the NSA wasn't doing these searches to prosecute someone. They were doing it to KILL terrorists. Thats the whole point with the argument with the war authorization act.

The democracts are still under the impression that we should prosecute the terrorists in Afghanistan, etc. Instead of just kill them.

St Wendeler said...

Stupid Country - Nice upside down flag... (Is that you, John Kerry?)

I suppose that Al Qaeda in Afghanistan is just busy ringing up your average Joe-sixpack, eh?

If the NSA is listening in to Osama's cell phone in Afghanistan and he's talking to someone in Pakistan, it's okay in your opinion to intercept that communication. If he then hangs up and calls up a terror cell here in the US to give the go-code for a terrorist act, you want the NSA to disregard such information...


Brian said...

continue the thought experiment Saint...

Osama calls al-Joe-Bob in East Tuscaloosa, who then calls Zarqawi in Iraq. SC, would believe that the NSA shouldnt be able to intercept that call.

Stupid Country said...

Begging your indulgence, I just want to add one more thing:

It's being argued that what Bush has done here is no different from what other presidents have done in seizing extraordinary wartime powers. But the supposedly precedent wars were different. A conventional war has a beginning, a middle and an end. Bush isn't asserting these powers in connection with the Iraq occupation alone -- this is about the "War on Terror." When does that end, signaling the president's relinquishing of extraordinary powers?

The War on Terror has no easily identifiable endpoint. We are going to be at this for decades. Bush's "war powers" essentially amount to permanent rejection of Congressional or Judiciary oversight by the Executive Branch. You libertarians are okay with that?

You're just being simple-minded by focusing on the specific instances where the calls involved actual al Qaeda contacts. Suppose some or most of them were. Are we so frozen by our fear of terrorism that we will happily boot away Constitutionally guaranteed rights to this degree, because this President claims to be motivated only by the desire to protect us from harm? If that's the case, then the War on Terror is over and we've already lost -- al Qaeda has literally transformed us.

I can't fathom why we're so blithely willing to trust this administration's intentions. I can't.


Stupid Country said...

OK, since people are taking me to task here, in all the scenarios you're kicking around, the FISA legal framework would enable the feds to monitor these calls and then go get the court's okay retrospectively. So there is nothing stopping the feds (even, potentially, the NSA, although I still believe they have no business doing this kind of domestic surveillance -- that's FBI's job), unless the link between the caller and the terrorists is so tenuous that the court would not find probable cause. In that case, no -- I would not be in favor of the wiretaps.



St Wendeler said...

So... you're saying that the Left doesn't take this War on Terror or (national defense) seriously?

I suppose if this were a criminal prosecution (ala John Kerry's preferred method of "fighting" this "war"), then this would be a concern... what information is admissable in court & all...

All I have to say is that if the call were between parties within the boundaries of the US, then there might be an argument... but if the call involves someone outside of the US who is a terrorist, then it seems to me that anyone conversing with them has lost their right to privacy.

Stupid Country said...

What amazes me about this exchange is that it's so counter to the way I usually hear conservatives speaking about centralized government authority. Why are you willing to trust Bush so absolutely? Is it impossible to conceive of the administration abusing these powers? You want no checks and balances at all?


St Wendeler said...

well, since the people on the list who have been intercepted is reviewed by the FISA court and Congress is briefed regularly as well, I'll assume that we're not talking about Bush using this to quash political dissent.

The War on Terror has no easily identifiable endpoint. We are going to be at this for decades. Bush's "war powers" essentially amount to permanent rejection of Congressional or Judiciary oversight by the Executive Branch. You libertarians are okay with that?

The War on Terror does have a beginning, a middle, and an end. Unfortunately, you haven't been paying attention to the various phases.

It started with the seizure of the US embassy in Iran and the idiotic response (or lack thereof) by Carter. Next came Lebanon... then disco bombings in Europe.... then WTC 1993... then Mogadishu, then USS Cole... that was all the "beginning phase". While you refer to such time as "the Decade of Greed" and "Peace and Prosperity" (seems they were both pretty greedy decades), we WERE at war.

The middle of the war came on 9/11.. and the attack on Afghanistan... and the attack on Iraq.

The end phase will begin with Iran's totalitarian and theocratic regime is upended (by popular will, hopefully). You will know when hostilities have ended when you see that Saudi Arabia and Syria stop supporting terrorism.

It will take some time... but it took some time for this mess to get started.

desert rat said...

Stupid Country and his fellow travellers in the Democratic Party still insist that the stuggle against Islamofascism is basically one of law enforcement. They fail to realize that we are in a war for survival.

Stupid Country said...

Excuse me? The whole point of this argument is that the administration went around the FISA court, and any other court, in numerous instances. That's what all of us who object to this sort of thing are referring to when we say Bush didn't bother to get warrants. That's where he most clearly broke laws. Try to stay with us on this.

While you refer to such time as "the Decade of Greed" and "Peace and Prosperity" (seems they were both pretty greedy decades), we WERE at war.

Huh? I don't remember using either of those phrases or even referencing those decades. Are you thinking of some other tirade?

The end phase will begin with Iran's totalitarian and theocratic regime is upended (by popular will, hopefully). You will know when hostilities have ended when you see that Saudi Arabia and Syria stop supporting terrorism.

By that time, Iraq may very well have collapsed into three distinct, if chaotic, nations, at least two of them theocratic and hostile to the US. Ditto the Palestinian Territories. Iran may no longer be our biggest issue at that point. As for Saudi Arabia, officially they don't support terrorism now. How will we know they've actually stopped doing so? Or Syria for that matter.

It will take some time...

I couldn't agree more. I'm staying with my estimate of decades, and my characterization of the assumption of Executive authority over the other branches of government as permanent. Are you going to like that when the administration is Democratic?


St Wendeler said...

Yes, I want checks & balances... and it appears that there are checks & balances in this case (ie notifying FISA court and Congress and reviewing every 45 days).

It is likely that the WOT will still be in its middle or late phase in 2008 and I would support the use of this tool by whatever president is elected at that time. Again, given the current oversight process is continued and assuming that the president feels a need to continue the program.

As if on cue.... NRO provides the wording from Jamie Gorelick (recently of the 9/11 commission) on the subject of Presidential powers:

"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

St Wendeler said...

As I mentioned in my original comment - "oversight is a requirement for this."

If more oversight is required (per Congressional decision), then let's add more oversight - but not at the expense of speed and flexibility.

Monterey John said...

My goodness, I turn my back and go to court for a few hours and look what I find when I come back.

What happened to my favorite Copperhead, Vallandigham? Licoln deported him to the Confederacy. They did not have any more taste for the Peace Democrat than Lincoln did. They deported him to Canada.

And what all does this have to do with wire taps?

Nothting at all, I just enjoy calling today's Peace Democrats "Copperheads." It's just so fitting.

And what did Franklin the First do during WWII. Oh, he and Earl Warren just rounded up a few hundred thousand Japanese Americans and put them in concentration camps. And what does that have to do with wiretaps?

Again, nothing at all, I just love reminding today's Democrats of their roots.

And now they are going ballistic over tapping the conversations of frickin' terrorists!


Nonetheless, I stand by our 4th Amendment protections, which I assert have not been violated by what the NSA has done insofar as I can tell.

Stupid Country said...

Ah yes, the irresistible Clinton. It always comes back to him, doesn't it?

If that was the Clinton Administration's position, and if the position was that "warrantless searches" were not subject to oversight by courts or Congress, then the Clinton position was equally wrong. It's not my responsibility to defend Clinton; prior administrations' similar transgressions aren't germane, as far as I'm concerned -- moonbat that I am, actually insisting that the rule of law might mean something.

And now they are going ballistic over tapping the conversations of frickin' terrorists!

Point is, since the administration pointedly evaded oversight for many of these wiretaps, we have no assurance the people subjected to this surveillance we terrorists, or were talking to terrorists. We have no clue who these people were, and there are no practical limits that prevent the Bush'ites from tapping the phones of political rivals. The conservative assumption is that Bush uses these techniques to undermine his political opponents -- if we were talking about a liberal, would you give him a pass on this?

I've had arguments via conservative blogs before; we may never see eye to eye, but I do appreciate that people on this one can actually put a coherent sentence together.


St Wendeler said...

I created a separate post on the subject, which links to this post by Jeff Goldstein (which received the following comment:

[...] An ex-NSA agent on CNN speculated this program was most likely an automated system, generated from a communication from a known terrorist and branching out to collect all the numbers that communication reached, then the numbers those numbers called, and so on. Hundreds of communications (or maybe just telephone numbers) intercepted, not all listened to. But too high volume and too instantaneous to make warrants feasible for each.

Just as a warrant wasn’t issued for all emails in Echalon, a warrant wouldn’t be issued for all of the communications in the new program. Graham could easy see this as a new technology rather than a new policy.

And no, the introduction of Clinton-era decisions was not intended to force you into defending the Clinton administration.... It was merely to make the case that such National Security arguments are not unique to Bushco... and due to the fact that we're talking about intercepts of international communications, it will be difficult for the Dems to assert that the President is acting illegally or unconstitutionally.

If they were going to be used for prosecution in a court of law, these intercepts would be inadmissable. However, we're actually killing these @#$ing bastards, so... no need for a "warrant".

IE, if a marine in Fallujah suspects a terrorist hideout in a building, does he seek a warrant before entering? If he finds a live radio in the hideout (or a laptop with information on it), does he wait for a warrant before getting in his APC and going where the intelligence leads him? No, it's time for him to lock & load...

St Wendeler said...

Forgot to mention.. thanks for commenting and arguing forcefully and rationally. Sometimes all we get is references to Rove, BFEE, etc, etc. Gets tiresome.


Stupid Country said...

OK, it's been a long day. My ultimate point is that I'm not ready to just accept the assumptions that some are making here that the wiretaps, or intercepts, or whatever you want to call them, are all connected with terrorists or their friends and sympathizers. All this speculation as to the nature of these communications glosses over the fact that there is no way to know who was tapped in the instances where no court ever had the opportunity to review the operation.

You can't start ascribing noble intentions to these activities when you have no way to know their extent or objectives -- except by taking the President at his word. As you might guess, I'm not ready to do that. My habit is to assume the basest of all politicians. Hence my alarm at the current administration's seizure of unchecked domestic spying authority.

Once again, guys...this is not a short-term condition. If we accept this, we're authorizing not only this but several future administrations' assumption of supremacy over the other branches -- we might be setting a precedent that establishes this supremacy as permanent. Not a good idea, people.


St Wendeler said...

I believe that the NYTimes story mentioned that the FISA court was involved in the reviews that occurred every 45 days...

And as I say in my original comment (I'll refer to it a SECOND TIME), if we need more oversight, let's get some... but not at the expense of speed or flexibility.

Monterey John said...

SC, your last post made good sense. I too am concerned about a precedent that opens the door to uncontrolled monitoring of communications by the government a la Bobby Kennedy's authorizing taps of Martin Luther King's phone calls when Kennedy was the Attorney General. That's dangerous territory.

But this is war. Flexibility and speed are everything. A balance needs to be found.

Anyway, a worthy discussion.

By the way, I would suggest you lose the upside down flag. The message is one of distress to the point of surrender. It really is off-putting and detracts from some good points that you are making

Stupid Country said...

I keep coming back here because the tone is civil and I don't think we're as far apart as our rhetoric might seem to place us, but...

But this is war.

OK, I feel as though I've unduly belabored this point, but when is it ever not going to be war? In you lifetime, or mine? If conversation with some people gives you the feeling they're ambivalent about the "War on Terror," it isn't that they're faint-hearted. It's the opposite; I can tell you I'm ambivalent about the term, because this just doesn't feel like a state of war -- the hostility we're experiencing now is what peace is going to be like from here on.

Why are we letting our whole culture be transformed by it? The French and Spanish have had terrorism on their own soil for decades and they just go on being who they are. Why are we willing to twist the composition of our democracy to feel safer? When did we become such cowards?


St Wendeler said...

I don't think you could characterize offensive action against the source of terrorism as "cowardly."

relenting to terrorist acts and attempting to accomodate the aims of the terrorists (ala the French and the Spanish) certainly could be considered cowardly - at least I would forcefully make that argument.

This war will end... but it will take a significant amount of time.

In all likelihood, a President will be elected that does not recognize the threat that Islamofascists present to our country. The US will once again become complacent and while we will have had many successes in the war up to that time, they will be ignored. We will return to the days of realpolitik, seeing in countries only what benefit they can bring to the US - and preferring the status quo to the spread of liberty.

So, to answer your question... this war will end. But not with a bang or with a ticker-tape parade. No, it will most likely end with a whimper... the calm complacency of the next Britney Spears copycat and the latest Hollywood gossip.

Fortunately, we know that that won't happen until sometime after Jan 20th, 2009...

Unless of course the Dems go all medieval and impeach W after '06.