Date: Sat, 7 Nov 2009 11:20:31 -0600
From: Rohit Patnaik <quanticle@...il.com>
To: Paul Schmehl <pschmehl_lists@...rr.com>
Cc: full-disclosure <full-disclosure@...ts.grok.org.uk>
Subject: Re: How Prosecutors Wiretap Wall Street

The direction of the association doesn't matter. It doesn't matter if the
"terrorist" is contacting me, or if I'm contacting the terrorist.  In either
case, the US government should get a warrant before they spy on me.  Also,
this executive opinion doesn't just apply to the CIA and the NSA.  It
applies to the entire executive branch, including law enforcement.

Secondly, we seem to have a general disagreement about the intent of the
laws regulating the intelligence and law enforcement apparatus of the
state.  My opinion is that the restrictions placed on these agencies were
intentional.  They were created by a Congress that was disgusted by the
rampant abuse of executive power that occurred during the Nixon
administration.  They were strengthened when Reagan found loopholes in those
restrictions.  As such, I don't think its Constitutionally valid for the
President to unilaterally ignore those restrictions.  Yes, I'm aware of the
use of force resolution that was passed shortly following the Sept. 11th
attack.  However, I don't think the language contained therein represented a
rollback of over 30 years of legislative history.  If it is really necessary
for the intelligence agencies to have these unprecedented powers, then they
shouldn't be hesitant in presenting their case before Congress.

--Rohit Patnaik

On Fri, Nov 6, 2009 at 11:42 PM, Paul Schmehl <pschmehl_lists@...rr.com>wrote:

> --On November 6, 2009 10:10:56 PM -0600 Rohit Patnaik
> <quanticle@...il.com> wrote:
>
> > If it is so clear that a US citizen is involved in terrorism and is
> > communicating with terrorists beyond our borders, then why is it so hard
> > for the NSA, CIA, FBI or Homeland Security to get a warrant?
>
> First of all, the NSA and CIA don't pursue criminal cases against US
> persons.  That's the job of law enforcement.  The NSA is a military
> agency.  Their job is to protect the US against its enemies by providing
> the military with intelligence that helps in planning and the conduct of
> operations.  The CIA is a civilian agency tasked with the job of gathering
> information about what other countries are doing, both friends and
> enemies.  Homeland Security's job is, well, who the hell knows?  It's a
> huge ponderous agency that, in my view, represents a much greater threat
> to us than the NSA or CIA.
>
> But your question reveals a view of the issue that doesn't align with the
> facts.  The NSA isn't listening to US citizens' communications to detect
> any communications with terrorists.  They're listening to terrorists'
> communications which sometimes are to US citizens.  When that happens, of
> course the NSA is going to intercept to determine if it's an innocent call
> or something more.
>
> >  After
> > all, its not like they can claim that there wasn't time to get a warrant
> > - the pre-existing law allowed them to put in expedited requests for
> > warrants after the actual wiretap started, in addition to allowing
> > continued use of wiretaps while the warrant is being considered by the
> > FISA court.  Secrecy isn't a concern either - all proceedings of the
> > FISA court are classified.  By what reasoning do these security
> > agencies wish to further expand their already considerable powers?
> >
>
> The claim that is being made is that the existing law, written in 1978
> (before the IBM pc was even born), is unable to cope with the speed and
> variability of internet communications today.  If a terrorist whose
> communications are being intercepted "speaks" to someone (email, im,
> twitter, blog, forum, whatever) and tells them to contact a third party to
> conduct an operation, the NSA would want to intercept the third party's
> communications as well.  Under existing law (if you believe that FISA
> applies) they would have 72 hours maximum to submit the necessary
> paperwork and obtain the necessary approvals to go before the FISA court
> and obtain a warrant.  Otherwise they would have to cease all
> surveillance.  Meanwhile the terrorists aren't going to sit around waiting
> for the warrant to be issued to continue their plans.
>
> > It seems to me that it is already far too easy for our national security
> > apparatus to spy on us without our permission or knowledge. The last
> > thing I want is to make such spying even easier for them.
> >
>
> They're not spying on us.  Intelligence agencies don't spy on us.  Law
> enforcement does.
>
> I was involved in (signals) intelligence years ago.  I can assure you we
> could have cared less what US citizens were doing *unless* what they were
> doing involved working for a foreign power to steal secrets or undermine
> the US government or similar spy type activities.  Sure we could "see"
> what everybody was doing.  But we only cared about the enemies of our
> country (at that time the Russians and others).  IOW, we were "looking"
> away from the US.  If you came into our view it was because you were doing
> something suspicious in the context of foreign power surveillance.
>
> Personally I believe the President has inherent Constitutional powers that
> authorize him to do what President Bush did (and many others before him
> have done) and what President Obama is probably doing now.  The courts,
> although they have never directly addressed the issue, appear to agree.
> In a case in 2002, the United States Foreign Intelligence Surveillance
> Court of Review wrote, in part, "Even without taking into account the
> President’s inherent constitutional authority to conduct warrantless
> foreign intelligence surveillance", which is an admission of the
> President's power to surveil the enemies of this country without having to
> jump through legal hoops to do so.
>
> It would be quite interesting to have the FISA law be considered by the
> Supreme Court to determine if it really is a constitutional law.  I doubt
> that will ever happen, because, despite all the political rhetoric, no one
> really wants to go there.  They'd rather pontificate about it and try to
> score political points with it.
>
> Paul Schmehl, If it isn't already
> obvious, my opinions are my own
> and not those of my employer.
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