Message-ID: <C6C79A0AF76811AA34B3BD13@Macintosh-2.local>
Date: Fri, 06 Nov 2009 20:56:41 -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 November 6, 2009 6:07:17 PM -0600 Rohit Patnaik <quanticle@...il.com> 
wrote:
>
> You say that claims about the NSA conducting warrantless wiretaps
> against US citizens are unsubstantiated.  That is totally and blatantly
> false (http://is.gd/4PcWV).

Right.  The New York Times prints an article claiming that a 
"whistleblower" has revealed the content of a secret Executive Order.  The 
Washington Post then repeats that claim, without any substantiation other 
than the supposed statement of an anonymous informant and unnamed 
"administration officials" quoting "classified information" without 
quoting anyone who can be questioned.  And you call the claim that it's 
unsubstantiated "totally and blatantly false".

Produce the Executive Order and we can call it substantiated.  Otherwise 
you're doing nothing other than blowing the same smoke that everyone else 
is.  The President (who should know) has stated publicly that he 
"authorized warrantless surveillance within the United States".  Note that 
he did not say "warrantless surveillance ***of US persons*** within the 
United States".

Attorney General Gonzales stated that the intelligence program involves 
“intercepts of contents of communications where one . . . party to the 
communication is outside the United States” and the government has “a 
reasonable basis to conclude that one party to the communication is a 
member of al Qaeda, affiliated with al Qaeda, or a member of an 
organization affiliated with al Qaeda, or working in support of al 
Qaeda.”  (You really should read what you link to before using it as 
proof of your claims.)

Neither the President nor the Attorney General stated "we are spying on US 
persons without a warrant".  That claim is made by unnamed persons who 
cannot be questioned and reporters who repeat the claim without verifying 
that it's true.  If you want to believe that reporters never stretch the 
truth or make up facts, go ahead.  I know better.  I've been interviewed 
numerous times.  What reporters tell the public is a far cry from what 
their interviewees tell them.

Now it *is* reasonable to believe that terrorists outside the US might be 
talking to persons inside the US who are either involved in terrorism or 
considering being involved in terrorism.  It's also reasonable to believe 
that some of those persons might be US persons (a legal term meaning they 
are citizens or resident aliens), but that is a far cry from "Egads! 
They're spying on US citizens without a warrant!  Our rights are in 
jeopardy!"

If a US citizen is communicating with terrorists, then I have no problem 
with the NSA intercepting those communications.  Nor should you if you 
have a brain in your head.  OTOH, if the *FBI* wants to pursue legal 
action against that same person, then they are required to show probable 
cause and obtain a warrant.  But they can't get their evidence from the 
NSA.  The NSA can only supply the FBI with the information that there is a 
person of interest that they might want to open and investigation on. 
They cannot give them details and they cannot give them the intercepts. 
The FBI must then follow the normal course of law enforcement 
investigations, including probably cause, warrants, full protections of 
the Constitution, etc., etc.

> The linked article clearly states, "Mr.
> Bush's executive order allowing some warrantless eavesdropping on those
> inside the United States - including American citizens, permanent legal
> residents, tourists and other foreigners - is based on classified legal
> opinions that assert that the president has broad powers to order such
> searches, derived in part from the September 2001 Congressional
> resolution authorizing him to wage war on Al Qaeda and other terrorist
> groups, according to the officials familiar with the N.S.A.
> operation." 
>

Yes, and no one has ever seen the source documents.  If you want to take 
someone's opinion that it's true, feel free to do so.  I do not.  If the 
New York Times want's to publish the Executive Order that they claim they 
know the contents of (as they did the Pentagon Papers years ago), then we 
can read it and see what it really said as opposed to what people opposed 
to the use of any surveillance at all claim to know about it.

> And, in case you don't believe the other article, here
> (http://is.gd/4Pd1C) is a Congressional Research Service article that
> goes into more detail about the legal rationale behind the warrantless
> wiretapping program.
>
> As the two links above show, the warrantless wiretapping program is
> real, and was at least active throughout the term of the Bush
> administration.  Whether it is currently active is a matter that can be
> debated, but the fact such a program existed and did spy on American
> citizens is well substantiated.
>

The first part of your statement is true.  The second part is 
unsubstantiated.  All we know for certain is that people in a position to 
know and willing to be quoted on the record have stated that calls between 
persons affiliated with terrorists and other persons were intercepted.  We 
don't know the status of those other persons.  We can only presume.

> As your own signature states, "It is as useless to argue with those who
> have forsaken reason as it is to give medicine to the dead." Part of
> using reason is acknowledging when there is substantiated evidence for
> the opposing point of view.
>

Yes, and when there is, I will agree with you.  Opinions and un-attributed 
claims are not substantiation.  Reason does not fall prey to opinion, even 
when those opinions are shouted loudly and any opposition to them is 
ridiculed.

Paul Schmehl, If it isn't already
obvious, my opinions are my own
and not those of my employer.
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