Date: Fri, 06 Nov 2009 23:42:45 -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 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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