Date: Wed, 04 Nov 2009 17:42:37 -0600
From: Paul Schmehl <pschmehl_lists@...rr.com>
To: full-disclosure <full-disclosure@...ts.grok.org.uk>
Subject: Re: How Prosecutors Wiretap Wall Street

--On Wednesday, November 04, 2009 16:36:12 -0600 Valdis.Kletnieks@...edu wrote:

> On Wed, 04 Nov 2009 14:08:59 CST, Paul Schmehl said:
>> Please cite one proven instance where surveillance was done on anyone
>> without a FISA warrant - and lefty blogs filled with hyperbole don't count.
>
> It's kind of hard to cite a "proven instance", because all the people who
> tried were told to stuff it under the "state secrets" strategy:
>
> http://www.ca9.uscourts.gov/ca9/newopinions.nsf/99D0C2963ED15AB288257394007C1
> F36/$file/0636083.pdf?openelement
>
> I suppose a signed letter from the Attorney General saying "We won't do
> this anymore because we now have a valid FISA warrant" isn't an admission
> that the program *had* been doing it before.
>
> http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf
>
> And apparently, it *was* done, because:
>
> "Q General Hayden, I know you're not going to talk about specifics about that,
> and you say it's been successful. But would it have been as successful -- can
> you unequivocally say that something has been stopped or there was an imminent
> attack or you got information through this that you could not have gotten
> through going to the court?
>
> GENERAL HAYDEN: I can say unequivocally, all right, that we have got
> information through this program that would not otherwise have been available.
>
> Q Through the court? Because of the speed that you got it?
>
> GENERAL HAYDEN: Yes, because of the speed, because of the procedures, because
> of the processes and requirements set up in the FISA process, I can say
> unequivocally that we have used this program in lieu of that and this program
> has been successful."
>
> http://georgewbush-whitehouse.archives.gov/news/releases/2005/12/print/200512
> 19-1.html
>
> So there you have it - the Attorney General and the Deputy Director of
> National Intelligence saying flat out "We did this surveillance without a
> FISA warrant".
>
> But I suppose they were both lying through their teeth, and it never happened,
> and all this stuff on official White House letterhead is forged, and none of
> them said it.
>

No, they weren't lying through their teeth.  But you and millions of other 
people fail to grasp what they're saying.  The NSA is a *military* agency. 
It's charter allows it to do *military* surveillance.  The courts have always 
and routinely exempted that type of surveillance from the requirement of 
obtaining a warrant because it does not involve criminal justice actions 
against US citizens.  It involves surveillance of "foreign agents" (the legal 
term of art for spies) - persons working on behalf of the enemies of the US.

You and millions of others love to conflate those issues with warrantless 
surveillance of US citizens for the purpose of obtaining evidence in a criminal 
investigation and then scream bloody murder about warrantless surveillance and 
intrusions of our rights.

The latter is prohibited by law.  The former is permitted by law.  The purpose 
of the FISA law was to curtail the type of activity that the Nixon 
administration engaged in, namely the warrantless surveillance of US citizens 
for the purposes of obtaining evidence in a criminal investigation under the 
color of "national security", a perversion of the intent of the Constitution.

The courts have ruled that the primary purpose of the surveillance must be to 
"spy" on foreign enemies *and* their contacts within our borders.  So long as 
it complies with those strictures it is legal without a warrant, according to 
every court ruling that has ever been obtained on the matter.  When it involves 
a party within the US, a FISA warrant is required.  When it does not involve a 
party within the borders of the US, **even if it involves a US citizen (see 
Hamadi), no warrant is required (FISA or otherwise) nor has one ever been 
required.

And if you gave more than a second to the topic, you would readily see the 
stupidity of requiring the military to obtain a warrant to surveil the enemy in 
a time of war.

The NSA is not a law enforcement agency and cannot pursue legal action against 
US citizens.  That's the FBI's role.  There are laws that address what, if any, 
information that the NSA obtains may be turned over to the FBI.

You do realize that General Hayden was the director of the NSA when he made 
those statements, right?  And he was referring to a surveillance program that 
involved enemies of the US, even some of whom are US citizens?

That's a far cry from oh gee, they can snoop on my conversations any time they 
want to without going to the court first.

-- 
Paul Schmehl, Senior Infosec Analyst
As if it wasn't already obvious, my opinions
are my own and not those of my employer.
*******************************************
"It is as useless to argue with those who have
renounced the use of reason as to administer
medication to the dead." Thomas Jefferson

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