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Re: How Prosecutors Wiretap Wall Street
From: Rohit Patnaik <quanticle () gmail com>
Date: Sat, 7 Nov 2009 11:20:31 -0600

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 () tx rr com>wrote:

--On November 6, 2009 10:10:56 PM -0600 Rohit Patnaik
<quanticle () gmail 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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_______________________________________________
Full-Disclosure - We believe in it.
Charter: http://lists.grok.org.uk/full-disclosure-charter.html
Hosted and sponsored by Secunia - http://secunia.com/

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