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  • Monday, December 26, 2005


    Which Hunt

    She turned me into a newt... Posted by Picasa

    Powerline now:

    Normally, it's front page news when Colin Powell, or someone who knows Powell, criticizes any aspect of Bush administration policy. But I didn't see anything on the Post's front page (or anywhere in its news section) about Powell's support for Bush's policy with respect to electronic intercepts of terrorist communications. Powell told ABC's This Week that "I see absolutely nothing wrong with the president authorizing these kinds of actions. . . .He was trying to protect the nation. And we have done things like this in the past."


    UPDATE by JOHN: Michelle Malkin has much more on the Times' latest leak. It sounds to me as though the data-mining project that is the subject of today's story is something quite different from the much more limited surveillance that was described in the Times' original stories. Both, I think, are good ideas. The data mining project is reminiscent of Able Danger, and it sounds exactly like the Echelon program that briefly stirred controversy during the Clinton administration. I think the NSA intercepts that are the subject of today's article have been going on for years, if not decades.


    Undoubtedly NSA vacuums up enormous amounts of communications traffic outside the US in a fairly indiscriminate manner and then analyzes it with powerful software (think Able Danger) for relevance and for more directed targeting. By targeting those non-USPER operatives NSA may learn the identities of al Qaeda operatives within the US. Those operatives within the US may or may not be USPERS--citizens or resident aliens who acquired their status without fraud (for example, not by lying about their hostile intent toward the US) qualify, but no other categories of persons within the US qualify.

    If the operatives that are discovered within the US turn out to be non-USPERS, then NSA can continue surveilling them when they communicate with persons outside the US. If, by further investigation, it is determined that the surveillance has identified USPERS within the US and that it is desirable to "intentionally" target those USPERS within the US, then of course FISA comes into play--usually through or at the instigation of the FBI, our primary Counterterrorism and Counterintelligence agency. It seems to me that something like this would be the overwhelmingly most likely scenario, and that the authors of FISA recognized and allowed for this type of situation--while not necessarily foreseeing the specific circumstances of the GWOT.


    PAUL adds: This is an excellent analysis of 50 U.S.C. 1801(f)(1). If the activity at issue constitutes surveillance under FISA, it more plausibly does so under section (f)(2), which encompasses

    the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

    But the NSA intercepts avoid this prong to the extent that the acquisition of the wire communication can be said to occur outside the U.S.


    I'm still trying to reach firm conclusions on the legal issues surrounding President Bush's decision to have the NSA conduct, without court approval, electronic surveillance of communications between foreign terrorists and Americans (who might also be terrorists). I've reached the firm conclusion that the Fourth Amendment does not blanketly prohibit search searches. As John has noted, the Fourth Amendment prohibits unreasonable searches, which is not the same thing as searches without warrants. There are clear exceptions to the search requirement. For example, as Bill Otis notes, "exigent circumstances" will justify searching without a warrant in ordinary criminal investigations. So it can certainly justify such searches, under certain factual circumstances, when it comes to figuring out how al Qaeda plans to attack this country.

    It also seems clear that the president has the inherent authority to authorize warrantless searches where necessary to protect this country from foreign enemies. This appears to have been the holding of every court of appeals that has considered the question. I haven't seen any contrary authority.

    Power Line then:

    JOHN adds: I enjoyed the film for its excellent jazz music, its lovely black and white aesthetic, and its portrayal of 50s vices. (At one point I wondered whether the audience was supposed to be aware of a certain parallel between Murrow's smoking himself to death and McCarthy's drinking himself to death.) And to its credit, the film does briefly acknowedge the existence of actual Communists in the federal government, specifically Alger Hiss. On the whole, though, the movie's perspective was too cartoonish to be very informative, or to generate much sense of conflict.

    One of the things I can't figure out is how the McCarthy story is supposed to have anything to do with today's issues. George Clooney clearly thinks that it does, and there are a couple of portentous moments in the film that indicate that we are supposed to draw some kind of a parallel. But what is it? The closest potential parallel would be if there were a "witch hunt" for suspected Islamic terror supporters going on. For better or worse, however, there isn't. Maybe the parallel is supposed to relate to the abuse of Congressional committees. But who has been unfairly hauled in front of a committee in recent years? The closest "witch hunt" analogies I can think of are Ronnie Earle's persecution of Tom DeLay and other Republicans, and the special prosecutor's hauling of Karl Rove, Scooter Libby and many others before a grand jury to investigate the Plame pseudo-story.

    But somehow I doubt those are the parallels Clooney had in mind.
    (my emphasis)


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