IS IT IMPEACHMAS YET?Surveillance reserved for overseas?This bug's for you...

Great Debates
241

Here’s a good analogy.

Consider 18 USC § 4001(a):

Now consider the President’s decision to imprison a US citizen like Yaser Esam Hamdi.

Does the Congressional authorization for use of force permit the President to imprison Hamdi?

Remember that it says NOTHING in the Congressional authorization for use of force about imprisoning anyone.

So – did Congress give the President authority to imprison Hamdi whenit passed the authorization for the use of force? Does that act count as an “act of Congress” within the meaning of 18 USC § 4001(a)?

Answer: yes. Definitively. Not just my opinion. Fact. Yes.

EVEN THOUGH CONGRESS’ AUTHORIZATION DIDN’T SAY ANYTHING ABOUT IMPRISONING ANYONE. And even though members of Congress may now say, “We had no idea we were authorizing the President to imprison US citizens.”

242

I’d like to point out something else regarding this comment.

We’ve talked many times on this board about “substantive due process.” It is anathema to a textualist.

Now, if I said, “There is a substantive due process right to marry, even if a person has outstanding child support obligations,” what would you say to me? Would you sneer at me for not being true to textualism?

As a textulaist, of course, I believe reliance on substantive process is sorely misplaced. But nonetheless, reliance on substantive due process forms a body of authortitive case law. It’s not hypocritical of me to correctly describe the existing state of the law, or even to argue further from it, is it?

In this thread, I’m discussing the existing state of the law, and how it’s applied now. You cannot point at me and say, “Oh, what about textualism?” I’d be MORE than willing to accept textualist readings in this matter, if you are similaryl willing to accept them in all other matters. But it would be a huge disadvantage for me to accept textualist limitations only when it suits my opponents’ positions, and have to live with more expansive reading approaches when it does not.

In other words, the rules should be the same for either side. I’ll happily accept a discussion that pre-supposes textualism is the only way to go, but not only in cases when it hobbles me and helps the other side. Why should you gain the benefit of expansive reading when it suits you, and resort to my preference for textualism only when it does not?

243

Still another indication that theemphasis on intelligence gathering is misplaced. Over and over again, intelligence “failures” are shown to be failures in analysis, sythesis, imagination or coordination between various agencies.

I think the NSA gets so much electronic data now that their analyists are swamped trying to tie it all together. It is difficult to take a series of phone conversations and from them divine what the threat is, against what target, by what means and at what time. That’s where the problem always seems to lie.

However, we know how to gather intelligence and we don’t know how to do the synthesis of the data into something that you can act on with confidence so the gathering gets large resources and the analysis and synthesis goes begging.

This extreme procedure of being in such a rush to gather information that you can’t wait even one day for a warrant is unwarranted (heh, heh) and diverts attention from the real problem, that of figuring out what the data mean and what to do about it.

Sort of like having one guy put explosive in a show and from then on thousands of people at airports have to take off their shoes while airfreight packages go mostly unexamined.

244

Except that it appears to have been either deliberate, or a violation of the laws of physics, or they’re lying:

Bolding mine.

I’m going with both “deliberate” and “lying”, because the point has long passed when this crew deserves the benefit of the doubt.

245

Why not simply assume that Hayden was mistaken - or even lying, if you prefer - about the “physics” of the intercept? Is Hayden a technical person?

I have no idea what the “physics” of the intercepts are. But if purely domestic calls are monitored, and everyone involved is saying it was accidental, what evidence do you rely on to assume otherwise?

246

Did you miss the part where Hayden gave his “assurance”? Either he’s not telling the truth about the facts, or he’s giving misleading information about his ability to give such assurance.

You’re not in court here, counselor; you’re not the administration’s defense attorney; you don’t need to follow this approach of piling up nitpicks in the hope that they’ll constitute reasonable doubt. This is a debate forum on a message board about a political matter.

247

Nope, but the technical people in charge of this stuff used to report to him. So presumably he has some idea of what’s going on.

Like Elvis said, we’re not in court here. But between this and National Security Letters and the military spying on gay and vegan groups as it looks for terrorist threats, it’s funny how the ‘mistakes’ are running in parallel.

Not to mention, you and others,including people in the Administration, are claiming Bush had the authoritay to spy on whoever he pleased, since it’s The Forever War and all that. If he actually did so, why in the world should I think it was an accident?

248

Because, other than your speculation, there’s no evidence for it.

We’re not in court, but we are in GD. Your unfounded speculations might be right at home in IMHO or MPSIMS. In GD, an assertion requires some evidence.

249

I would not have guessed. (when/why did you go over to the dark side?)

BTW–now that we’ve established your bona fides, did you ever get instructions like that on reasobnable doubt? It’s more like a summary judgement standard as you set it forth. Tell me what judge instructed the jury that ANY hypothetical secenario that could NOT be eliminated would be sufficient to rise to reasonable doubt?

As to the specific intent issue, the law (fisa)does not attach an intention to the unlawful intercept–it turns on the act itself. Where do you see an element of intent in the crime? Whether Bush thought he was acting legally or not, is about as relevant as someone driving 100 with a speedometer that reads 50. Hard cheese.

And, with deepest respect, (out of curiousity) what percentage did you walk?

250

It looks like, in at least one case, one end was using an international cell phone inside the US, which fooled 'em to thinking it was overseas. Dastardly!

251

Kindly read what I actually said. What evidence is missing? Looks complete to me.

252

Yup. And you’ll be providing yours any moment now, of course. All you’ve done so far is handwave and deny.

253

I apologize for being cryptic. It was a moment of weakness.

What I asserted was my considered judgment. And believe it or not, I can offer that in GD, if it’s couched as such.

What it’s based on, if you want to know, is watching this crew in action for the four years since 9/11. When have they failed to press the envelope in practically every way - they lied to us to get us into a war in Iraq, they went in on the authority of a U.N. resolution that didn’t give them that authority, they got inspectors into Iraq under U.N. auspices, but then pulled them when it looked like they were coming up with the wrong answers, they set up secret prisons all around the world, they kept people captive without any evidence, including after they had verified that there was no evidence, they spied on all the usual liberal groups they didn’t like, from gays to vegans to PETA to Catholic Workers to who knows what, they defined torture so that only organ failure or life-threatening physical assaults would qualify, and on and on.

Pressing the envelope is what these guys do.

Of course, that’s not (court) evidence that they deliberately did so in this case, but by any commonsense standard, anyone who is shocked or surprised to find later that NSA surveillance of purely domestic contacts wasn’t an accident at all can be written off as hopelessly naive. The reasonable expectation is that the conduct of people in the future will resemble what they’ve done in the past. And we can include “stuff they’ve done in the past that we won’t find out about until the future” in with the ‘future’ side of that maxim.

254

Isn’t it interesting how accidently this “accident” resulted in a further overreaching of authority and not a falling short of it.

Accidents of this sort are pitifully easy to arrange.

255

LOL!

I don’t think I have ever told that story here. Perhaps someday I will. But it’s fair to say that I had a certain idealism at the beginning of my job that was worn away at the end of it. I still resolutely support the idea that every person is entitled to the best, most vigorous defense the law allows (even Presidents!) but I found I could no longer handle providing it.

More on that if I ever post after three or four simgle-malts.

If you’ll go back, I said:

That’s precisely the definition of reasonable doubt. See, e.g., Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984); see also Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29-30 (1963) (“It is not sufficient that the evidence create a suspicion of guilt, however strong, or even a probability of guilt, but must exclude every reasonable hypothesis save that of guilt.”)

On the contrary, due process requires that the law give notice of precisely what conduct is prohibted. Excluding strict liability crimes, his mens rea is very relevant. “Ignorance of the law is no excuse” is an oft-repeated mantra, but it’s not strictly true. Everyone is presumed to know the law as a general proposition; when the law is ambiguous it’s void for vagueness, because everyone has a due process right to know exactly what conduct is prohibited so that he may conform his conduct to the law.

My best year, I had thirty-one trials. Nineteen walked on the top count of the indictment or information, which was the best record in the office for that year. Eleven were outright acquittals, all charges dismissed, away you go.

Given the material I had to work with… that wasn’t too shabby.

Those stats obviously exclude plea bargains where very good deals were made for my clients (and, I suppose, in fairness I have to say it also excludes plea bargains where the deals weren’t all that great… but we never kept “victory” stats on cases that plead out).

256

How would we possibly know that?

In other words, if an accident happened that left them unaware of a particular conversation that should have been brought to their attention… how would they know? That would be an accident that resulted in a falling short of their monitoring, not an overreaching… but no one would know. So if mistakes are made in both directions, only those of the first nature are reported.

Fair enough.

Well, it’s my considered judgement that it was simply an honest accident.

I think you are predisposed to believe wrongdoing, and that colors your judgement. I am perhaps perdisposed to give the benefit of the doubt, and that colors MY thinking.

But it’s always for the person offering the assertion to provide evidence.

257

http://www.schneier.com/blog/archives/2005/12/nsa_and_bushs_i.html

http://www.defensetech.org/archives/000752.html

Widespread speculation implicates some hitherto unavailable technological advance as driving the FISA avoidance regime. Could voice recognition technology be involved? Suppose Habib gets a call at home from a watched numbert in Karachi. Knowing it is probably watched, he hangs up, and goes down to the corner pay phone to call back. At this point the only fix on Habib is his voice, and his geographical locus. The NSA now turns Echelon loose on the forty or fifty exchanges that serve the twenty miles around Habib’s last known location, and they sweep everything into a hopper, where they screen for Habib’s voice. Ditto for anyone (foreign or domestic) who Habib calls from now on. This fits the model of a program which would not stand FISA scrutiny, and which if presented for congressional debate might screw the pooch insofar as alerting otherwise hip but in this case clueless terrorists in re:voice recognition technological advances.

258

see also

http://www.secondaryscreening.net/

"When asked why the president didn’t ask for Congressional authority for this wiretapping, Gonzales said:
We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that was not likely to be – that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program.

Terrorists and dictators already know their communications can and will be tapped. But what technology don’t they know about that the NSA is using here?

Hayden also hinted today that the wiretaps involved suspicions below the level of probable cause.
And here the key is not so much persistence as it is agility. It’s a quicker trigger. It’s a subtly softer trigger. And the intrusion into privacy – the intrusion into privacy is significantly less. It’s only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order.

And is the period of time shorter in most cases, because the net starts very wide and then is narrowed as the eavesdropping continues?

And what does that “softer trigger” mean? That the program relies on some standard much lower than probable cause as applied to an individual? Maybe something like probable cause to believe someone from the state of Virginia is calling a terrorist?

So does the executive order turn the NSA’s ears, data-mining supercomputers and real time transcription powers on ALL calls leaving the U.S. that are bound for Pakistan, Afghanistan, Iran, Somalia and Iraq?

If that’s the case, then that’s the equivalent of the Catholic Church revealing that for the past three hundred years, the Vatican hasn’t believed in the Pope’s infallibility.

Rule number one at the NSA is don’t spy on Americans.
Rule number two at the NSA is don’t talk about the NSA.

This story broke because some at the NSA broke rule number two because they think that rule number one was broken.

The other possibility, suggested to me by someone with experience with wiretapping, is that the NSA may have compromised a hardware manufacturer – say Motorola or a satellite phone manufacturer, a telecom carrier or a satellite(s).

In any of those scenarios, the NSA would not have to intercept any signals since they would be diverted at the hardware level to the agency. Such power might also give the agency the ability to conduct man-in-the-middle attacks on encrypted communications."

259

As has been said by others before me, history, history, history.

Why should I believe anything done by the present executive branch is innocent?

After a certain number of incidents I think the burden of proof shifts.

And exact knowledge isn’t necessary for me to be leery of such “accidents.”

260

PS

I think there is a prima facie case that the chief executive is untrustworty.

Even in court doesn’t this shift the burden of proof in some instances?