One gets a pretty good idea of the degree of likelihood behind the phrase "a reasonable basis" by comparing the number of suspicions forwarded to the FBI (I seem to remember them complaining about "thousands") with the number of resulting indictments and convictions (at most a handful).  But according to General Hayden this is the same standard they use when deciding where to drop 500 pound bombs.  If so, no wonder they hate our freedom...

well, since Karl Rove has all but explicitely stated that democrats share a tooth brush with Osama bin Laden, I shudder to think of exactly how loose and expansive the administration's interpretation of words like "affiliation" and "associate".  Hell, even the Preznit himself has cautioned that we must mind the debate so that we don't undermine the war on terror and aid the enemy...

"Reasonable basis" here is in contrast to "probable cause" which is, in itself, a pretty lax burden of proof. So we're talking about a light standard here.

It doesn't matter how heavy the standard is if there's nothing to check it. Self-regulation, as we see in so many industries, is bullshit.

The Fourth Amendment is a direct outgrowth of the experiences of the Revolutionary War. Its creators didn't want future governments on the honor system.

<i<I can see the case that probable cause is too stringent a standard</i>

The Congress is without power to lower the standard below probable cause. Period.

The fourth Amendment to the Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Gen. Hayden seems to be relying on the phrase against unreasonable searches to justify a lower standard than probable cause.  That could be an reading of the Constitution if our jurisprudence recognized a reasonable search without a warrant, but it does not recognize that reading, except in exceptional cases spellled out in Supreme Court cases.  For instance, the SCOTUS has ruled that infrared seaches or other non-obtrusive external physical searches can not be performed without a warrant, but other kinds of non-warrant searches have bebeen recognized.

So, this may be a subject for further SCOTUS interpretation of searches without warrant.  The fact that existing law does not allow wiretapping (a non-physical search) without a FISA court approving a wiretap warrant would weigh heavily on such court interpretation in the future if faced with a case on this point.  

Potential Justice Alito may be faced with this decision on whether there is a reasonable wiretap search authority in the Constitution (somewhere), but clearly Congress cannot make this finding under the fourth amendment as it stands without SCOTUS approval and reintpretation of what the fourth amendment means as a protection of the liberty of our citizens.

Here's the bottom line that everybody is missing:

If you can put a PHONE TAP on someone's line, you KNOW where that line is terminated (including cell phones, folks, within X hundred feet.). You also know WHO you're listening to (in most cases.) In the case of cell phones, you can track down the phone's ID code and then program the cellular switches to track that code whenever it's in operation.

This is how the FBI caught Kevin Mitnick, the hacker. They traced his calls into computer systems into a cellular phone switch he had hacked, then tracked the radio calls back to his apartment, then fudged a warrant to allow them to get into his apartment. This is how police work is done. 

If you are picking up a conversation which is sufficiently EXPLICIT that you can determine that thie is related to a terrorist act, OR that it is related to a specific individual which you can identify as a possible terrorist, then WHY THE HELL ARE YOU RELYING ON A PHONE TAP?

If you are SERIOUS about catching terrorists and preventing terrorist acts, you get one of your little Three-Letter Agency boys to get off his dead ass and go down and personally start following this terrorist around until you have some actual physical observation as to what this person is up to.

THIS is how POLICE work - as opposed to general FISHING expediitions - gets done.  Cops tap phones only to gain some indication that something is going down - they don't rely on phone taps in court. They go out and EYEBALL the crime in progress using physical surveillance methods.

This whole notion that we can mass wiretap a bunch of people - even a relatively small bunch of people -  and get useful data which can allow us to intercept and roll up a terrorist cell iBEFORE it can conduct its operations s UTTER NONSENSE.

It works only if you've bugged their phones PHYSICALLY and bugged their residences PHYSICALLY and bugged their vehicles PHYSICALLY and are PHYSICALLY following them around. Random computerized tapping simply doesn't cut it.

WHY do you think the Mossad were PHYSICALLY following the 9/11 terrorists around the United States for months before 9/11? Because the Mossad is competent - they KNOW you have to be right on top of someone to find out what he's up to.

Trying to string together random verbal phrases and match it up with some sort of other loosely termed  "evidence" you might have laying around from other sources is a fool's game. It's the kind of incompetence that allows the FBI to have direct information about the 9/11 hijackers being in contact with their OWN informant and then iGNORING it.

Hayden is a liar. Period. He's bullcrapping people to prevent people from realizing that his little outfit hasn't a goddamn clue about who is a terrorist and who isn't in this country. He's also lying because he's been TOLD to lie. He also knows his job isn't secure unless he DOES lie.

It's that simple, folks.

Hayden claims that if they had been doing what they are doiong now before 9/11, they would have detected the hijackers. Hah! If they had paid any attention at all to the reports of their own agents and informants who were in daily contact with the hijackers, they might have had a clue. If they had rolled up the Mossad spy ring running around in broad daylight in this country for years before 9/11, they might have had even more clue.

Does Hayden expect us to believe that the 9/11 hijackers were regularly discussing running planes into the WTC IN THE CLEAR ON A PHONE?

Ruminant evacuation. He's lying through his teeth and relying on the inability of the average American to comprehend the methods of either tradecraft or standard police work.

I have to say that it is scary to be here because subsets are be habituated to drawing UNWARRANTED CONCLUSIONS and obsessing  over others. Those folks need protections from SOMEBODY. 

Have you ever been addressed as someone who as an ALIEN? I'm being a little facetious here. But as there are such unusual accounts about 9-11, I can see that it sharpens the 'us and them', among different groups. 
Nonetheless I do pay attention to who is planting the seeds of suspicion and who is obsessing over whom because the role of those activities  are the clues to how stereo-types develop and how misinformation is spread, and how demonization & violence generated.  

McNulty should get on the horn to his guy in the bureau (FitzHugh?) and get in on this.

I've asked this a few places, and haven't gotten an answer yet.  The FISA court received a briefing on this program over a week ago.  There's been ZIP coverage of this.

What questions / concerns were raised by the FISA court judges?  Were the questions answered?  Were the judges satisfied?

Is the FISA court still granting warrants?  Is there anything the FISA judges wanted follow-up / clarification on?

Has the administration agreed to allow the FISA court to review the program in more detail?

Is the FISA Court confident that results of the NSA program were not used to later obtain FISA warrants undermining the legality of the FISA warrant? 

Why isn't anyone following up on this? 

It's a secret court - how much can one follow up?

I was listening to Larry Johnson talking on the Ed Schultz show last week, and he said he didn't think the problem was with data-mining. He believed that the Administration wanted to get warrants based on info taken from torture victims in those foreign prisons we're running. I haven't seen Johnson post anything about this on his blog yet, but it might be worthwhile asking him to write up his thoughts. I know he writes for TPMCafe sometimes.

The history of secret police activity always ends up as spying on domestic opponents. Those in power end up believing that only they can solve the world's problems and thus, the end justifies the means. The end being that they need to stay in power.

So, in answer the the questions posed here and by Josh at TPM, the simplest explanation is also the most probable.

The wiretaps (not data mining, which may have been going on at the same time) were without warrants because no judge would grant them. No judge would grant them, because the targets were obviously not related to terrorism. We already know of spying on the ACLU, PETA and the Quakers, so how hard is it to extend this to the DNC or John Kerry's campaign?

If you assume this line of thought then Bush's outrage at the disclosure becomes clearer. All "terrorists" expect attempts at spying on them and use of data mining techniques. So nothing was being revealed to the enemy. Political groups, however, don't and the fact that there are wiretaps without authorization can and did tip them off to the illegal domestic behavior.

someone may have said this already, but probable cause requires specificity--who is being tapped.  FISC may have said fishing expedition data mining doesn't meet that standard, or DOJ may have been afraid it would do so and decided to bypass FISC.  Countering this point is that the FISC had typically been a rubber stamp.  BTW, the standard under FISA is probable cause and is reasonable suspicion is a pretty narrow exception to the rule of probable cause and a warrant.  Hence, either Hayden is ignorant or he was stating the exception to the rule as the rule, which is misleading to say the least.

It's irrelevant whether the phone is throwaway. A one-time use phone may approach the value of a one-time code pad but if you can't track the phone at all, then again WHY use this technigue?

The bottom line is, either way, the technigue of mass phone tapping or even the so-called "targeted" phone tapping that Hayden claims he's doing is simply ineffective.

Either you have a persistent phone to tap - which means you can find the person involved - or you don't - in which case whatever data you glean from the phone conversation is almost certainly worthless.

Terrorists are quite well aware that the technology exists to detect and record their phone calls even on a throwaway phone. They are NOT going to violate operational security to the degree that you care going to get useful data off a phone call - unless you have a particularly stupid terrorist on the line (and I'm not saying they don't exist - even the Mafia made a lot of mistakes talking over open phones.)

The most you're going to get is the odd comment about financing or transportation or some other logistical data which, in the absence of any clue who or where the target is, is virtuallly worthless. If you hear someone saying that so-and-so is coming in on Flight whatever at Kennedy tomorrow, that might be useful.  But only if you put a body at that location at that time to prove it. The simplest coded method of using a fixed alteration of the details - the flight is always one day off for example - can wreck that procedure beyond repair. Terrorists routinely do this stuff.

The only way phone taps can be useful is in tapping organizations in the US known to have direct connections to terrorists, and then using those taps to coordinate physical surveillance.

The best way of detecting and rolling up a terrorist cell is the way the Mossad and others do it - infiltration by a double agent. Unfortunately, the FBI doesn't have many non-white, Arabic-speaking double agents hanging around - as a reult of the their anti-minority stance they've consistently pursued since the days of Hoover, what Muslim would want to work for them?

Look how Sibel Edmonds was treated as a mere translator for the FBI. When she reported severe problems with the translation department and serious security breaches within the operation, she was harassed and fired, and then gagged from talking about it by Ashcroft personally.

If this is the way the FBI handles severe security breaches within their own organization, how likely is it that the NSA is going to be successful in using mass wiretapping to roll up terrorist cells?

to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

Boundries?  "Tear down this wall"

Is the NSA patterned after the KGB?

Doesn't it sound like a movie,  a western. " Warrants,  we don't need no stinkin Warrants"

Wasn't there a secret police in Russia, I don't know how to spell it though  The Stahzi something like that

I don't like the idea of a secret police. Bust this Dictator before it's to late.
 

 

I do have considerable concerns over the program, not so much that I don't understand fully that COMINT is inherently sensitive, but at the lacks of checks and balances. At a minimum, I'd like to see a external review group, which NSA has done in the past, prepare a report that is given to one or both congressional Intelligence Committees. Such a report would focus less on the methodology than on the potential risks and benefits. This was done, for example, to deal with the questions of possible back doors into DES encryption.

Let me suggest a hypothesis in which they could be getting data from throwaway phones: traffic analysis based on voiceprint signatures. Essentially, once you have the voice signature of one suspect, you scan for that pattern talking to anyone else. You then begin to scan for the patterns of those other parties. You are not especially concerned with what they say, but simply who is talking to whom, and, to a reasonable extent, where the parties were when they talked.

How much real information can be gained from this is something for which I'd want an external, classified but trusted, review. There's no question that some pizza delivery services and the like would wind up being targets.

Another thing, especially for potential pizza targets, for the independent review panel to examine is the degree to which the collection and processing methods violate USSID 18, and, if and when they do, the justification -- and why those violations cannot be reviewed by FISA. Indeed, an independent panel might even recommend changes in FISA, USSID 18, etc,

The Stasi was the East German secret police. At various times, the Soviet secret police was named the Cheka, OGPU, GUGB, NKVD, KI, MGB, and KGB. Soviet organs of security also existed in the military and the Interior Ministry (MVD).

Let's not overdramatize. Even assuming NSA wiretaps are widespread, communications intelligence was just part of the KGB (8th Chief Directorate and 16th Department).

There's quite a bit of distance between what happens at Fort Meade and what went on at 2 Dzerzhinsky Square. If you are going to talk about the threat of a US secret police, I suggest you become more familiar with the organization of the US intelligence community. At the very least, such an organization would touch on FBI or possibly (illegal) CIA domestic operations.

I didn't say that safeguards were fully working. I did say, however, that you apparently do not understand the organizational roles of either the US or fUSSR intelligence communities, nor of historical secret police organizations.

It's my practice, when speaking of potential violations, to be as precise as possible, and not to get my information from movies.

If you are going to talk about the threat of a US secret police, I suggest you become more familiar with the organization of the US intelligence community.

Do you consider Russell Tice, the NSA whistleblower, familiar enough with the U.S. intelligence community? He worked for the D.I.A. and NSA a total of about 20 years. He makes comments similar to chuckie in an interview with Amy Goodman of Democracy Now:

"...our nation has decayed into a police state."

National Security Agency Whistleblower Warns Domestic Spying Program Is Sign the U.S. is Decaying Into a "Police State"

The NSA program is also secret.  In December there were ascertions/threats if FISA wasn't satisfied with the answers about the program the court could dissolve.

"The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court."

...

"I need to know more about it to decide whether it was so distasteful," Benson said. "But I wonder: If you've got us here, why didn't you go through us? They've said it's faster [to bypass FISA], but they have emergency authority under FISA, so I don't know."

...

"Why didn't it go through FISA," Kazen asked. "I think those are valid questions. The president at first said he didn't want to talk about it. Now he says, 'You're darn right I did it, and it's completely legal.' I gather he's got lawyers telling him this is legal. I want to hear those arguments." Judge Michael J. Davis of Minnesota said he, too, wants to be sure the secret program did not produce unreliable or legally suspect information that was then used to obtain FISA warrants."

There's a story here.  Were the judges satisfied with the briefing?  Have all of the judges clammed up?  Were there any unanswered questions?  Are their still concerns that warrantless wiretaps may have been used to justify FISA warrants, or any other "fruit of the poison tree" issues?  Has the program been suspended?  Does the FISA court continue to operate, or has it been secretly disbanded?  Do the FISA judges now support the program?  Have any other FISA judges resigned from the FISA court?

I called Carol and left a message inquiring about the lack of a follow-up article.  She's written a series of articles on this issue.  I'm sure the answer probably is "all clammed up".  But that's news also, isn't it?

Just because people don't answer doesn't mean we don't keep asking questions.  I wonder if the judges are simply waiting for more information, waiting for the NSA hearings, something else?

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