Isn’t it the same thing?

by Ted on January 4, 2006

Law professor Glenn Reynolds quotes law professor Ann Althouse:

I wonder if those who screamed loudest about the Plame leak and national security are equally outraged about this new leak?

Pointing out this vile hypocrisy must be the zingiest zinger that ever zinged a zingee. They’re right, in way. Few of us who are upset about the outing of Valerie Plame are viscerally upset about the NSA leak, which we tend to see as a classic whistleblower scenario. As a dedicated Plame screamer, let me try to reply. (NOTE: Update below the fold.)


First, the people who leaked about the existence of the NSA warrantless wiretapping program believed that they were exposing unlawful behavior. (If so, they’d be in good company.) Orin Kerr, in his useful write-up of James Risen’s new book on the subject, quotes Risen as saying “[s]everal government officials who know about the NSA operation have come forward to talk about it because they are deeply troubled by it, . . . [t]hey strongly believe that the president’s secret order is in violation of the Fourth Amendment of the Constitution, which prohibits unreasonable searches.”

A few chuckleheads have tried to paint the Plame leak as an act of whistleblowing against the CIA. The Wall Street Journal and FOX News’ John Gibson have even proposed that Karl Rove deserves a medal for leaking her identity. But even in the worst scenario, Valerie Plame is simply accused of making a bad or nepotistic personnel recommendation to her superiors by suggesting her husband for the unpaid trip to Niger. If that were true, it’s not very admirable, but it’s not against the law. If I accept every word out of John Gibson’s mouth, I might accept that Plame deserved a reprimand. Maybe bad personnel recommendations should even be punishable by firing. But does anyone really believe that undercover CIA agents should be punishable by exposure? If so, isn’t it time that the White house reveal the identities of Plame’s superiors, the “desk jockeys” who actually sent Wilson to Niger? And who hired Plame in the first place, anyhow?

Second, this may be the partisan in me speaking, but I find it much easier to understand how national security was damaged by the Plame leak than the NSA leak. The Bush Administration’s defenders often point out that Plame was safely inside the US when her identity was revealed, which is probably true. But the leak simultaneously revealed the identity of any covert CIA agent associated with Plame’s cover firm. At the same time, it revealed that any foreigner with current or past ties to Valerie Plame, or to her cover firm, is a likely intelligence asset. Further, it deprived the US of the services of an experienced WMD expert, and probably convinced a few people in the CIA organization that their cover was cheaper than a few points in the polls. This is a steep price to pay for greater insight into the staffing decisions of the CIA.

In the case of the NSA leak, I’m afraid that I don’t understand how it compromised our national security. In this comment thread, Professor Althouse writes:

There is reason to be more outraged (by the NSA leak over the Plame leak), because of the actual damage to national security. Ever think about that?

Unfortunately, she doesn’t elaborate about how the leak compromised national security. It isn’t obvious to me; I don’t understand how it would help a terrorist cell to know that their communications were subject to monitoring without warrants, versus with warrants. It’s not as if the leakers revealed “specifics about TSA strategies…, including specifics about how terrorists tend to react to the types of questioning at issue,” for example.

I’ve written to Althouse to ask if she would explain, and I’ll update this post if she she does.

Finally, there’s the subject of “poetic justice as fairness.” The double-standard in question is exactly mirrored by most of the Bush-backers. Are there any points to be deducted from people like Glenn Reynolds? He dismissed the Plame scandal as “officially bogus”, but demanded the heads of the editors at the New York Times for the NSA leak. Ann Althouse couldn’t care less about Valerie Plame, but is furious about the NSA leak. Powerline, same thing. I could go on. I realize that it’s only hypocrisy if the other guy does it, but come on. Is this where you want to hang your hat, guys?

UPDATE: Orin Kerr offers a reasonable explanation of why the administation wanted the program to be kept secret:

The details of the program from Risen’s book arguably explains the national security interest in keeping the domestic surveillance program a secret. It’s not that terrorists may suddenly realize that they may be monitored; that argument never made much sense, as every member of Al-Qaeda must know that they may be monitored. Rather, I suspect the security issue is twofold. In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don’t happen to route through the U.S. And in the long term, some countries may react to the disclosures of the program by redesigning their telecommunications networks so less traffic goes through the United States. The more people abroad know that the NSA can easily watch their communications routed through the U.S., the less people will be willing to route their communications through the U.S. Cf. Bruce Hayden’s comment. No doubt it was a long-term priority of the NSA to ensure that lots of international communications traffic was routed through the U.S., where the NSA could have much better access to it. Indeed, Risen’s book more or less says this. The disclosure of the program presumably helps frustrate that objective.

The thing is, through no fault of Orin Kerr, this doesn’t touch on the controversial part of the program. It only explains why we’d keep secret the fact that we were monitoring calls that were routed through the US, but both placed by and received by people outside the US. As Kerr notes, these non-domestic wiretaps are not prohibited by FISA. If the program simply took advantage of foreigner-to-foreigner communications that happened to route through the country, there would be no criminal infraction, and probably no leak to discuss.

Rather, the controversy is about warrantless domestic wiretaps, which are obviously routed through the United States. If there’s a legitimate national security interest in keeping those wiretaps secret, I’m not aware of it.

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Crooked Timber » » This post is one of the biggest wastes of time of my lifetime…
01.12.06 at 12:11 am

{ 121 comments }

1

Mr. Bill 01.04.06 at 12:15 pm

Reynolds, Althouse, Hindraker, they have no Honor…

2

Sperm Donor 01.04.06 at 12:31 pm

So would it be safe to say that Althouse is just another right wing, partisan hack?

3

elliott 01.04.06 at 12:31 pm

But, but, but Althouse isn’t a partisan Republican hack. Just ask her she’ll insist she is independent.

4

creature 01.04.06 at 12:36 pm

I haven’t seen this editorial mentioned from New York Times. They do a good job of defending themselves.

When the government does not want the public to know what it is doing, it often cites national security as the reason for secrecy. The nation’s safety is obviously a most serious issue, but that very fact has caused this administration and many others to use it as a catchall for any matter it wants to keep secret, even if the underlying reason for the secrecy is to prevent embarrassment to the White House. The White House has yet to show that national security was harmed by the report on electronic spying, which did not reveal the existence of such surveillance – only how it was being done in a way that seems outside the law.

Leak investigations are often designed to distract the public from the real issues by blaming the messenger. Take the third leak inquiry, into a Washington Post report on secret overseas C.I.A. camps where prisoners are tortured or shipped to other countries for torture. The administration said the reporting had damaged America’s image. Actually, the secret detentions and torture did that.

Illegal spying and torture need to be investigated, not whistle-blowers and newspapers. [Emphasis added.]

It cannot be said enough, the President of the United States broke the law when he circumvented the FISA court and order domestic wiretaps without a warrant. The disingenuous outrage being spewed by the Bush administration toward the whistle-blower of this secret NSA program, and toward the NYT for reporting it, is laughable. Libby is a leaker, Rove is a leaker, most likely Cheney is a leaker. The brave person who went to the NYT with this story is a whistle-blower, a proud supporter of our democracy, and deserves protection under the law, not to be investigated by it.

Please read more, print this editorial out, pass it to your friends.

5

Brendan 01.04.06 at 12:40 pm

As Orwell once wrote, (more or less) the really depressing thing about modern intellectual life is not that our freedoms are being slowly eroded, but the new found love of totalitarianism and authoritarianism in the ‘intellecual class’. That an allegedly serious guy like Reynolds (who I’m sure is a lovely bloke to his wife and family) can seriously imply that when the President tramples on the constitution the problem is with those who brought this to the public’s attention, we are in serious straits.

Of course, this noble crusader for censorship and untramelled state power calls himself a ‘libertarian’.

6

Steve LaBonne 01.04.06 at 12:46 pm

Newfound love? Google “Julien Benda”.

7

DAS 01.04.06 at 12:51 pm

Ummm … wouldn’t a bunch of paranoids resorting to assymetric warfare because they feel America is way too powerful just assume that the US is managing to monitor everything they do?

So how does revealing what the US is doing ostensibly to spy on terrorists actually change anything?

Unless the issue is that this is revealing how bankrupt the US strategy is in which case terrorists might be breathing a sigh of relief.

But what does that say about BushCO?

8

Steve LaBonne 01.04.06 at 12:54 pm

It says they really think Bush became King George as soon as he announced a “war on terror”, and it says that their sycophants, such as Schmibertarian Reynolds, worship power. In other words, nothing we didn’t already know.

9

theodoric 01.04.06 at 12:55 pm

Reynolds’ employer is, with every passing day, more and more transparently exposed as a mere excuse for a football team.

It is highly disturbing to think that silly people like Reynolds and Althouse are teaching America’s next generation of lawyers.

10

Tom3 01.04.06 at 5:55 pm

[deleted by dd. Tom, it is probably true that you can post this crap faster than I can edit it – however your doing so only hastens my eventual resort to the permanent ban]

11

phein 01.04.06 at 12:57 pm

Even if V. Plame did propose her husband for the Niger trip, exactly what is not admirable about volunteering a family member for a thankless, unpaid trip to one of the world’s not-entirely-pleasant spots? A trip for which said family member was eminently, perhaps even uniquely, qualified by training, experience and association?

12

abb1 01.04.06 at 1:04 pm

That’s because any time the CiC is criticised at the time of war – it’s objectively treasonous. That’s Giving Comfort To The Enemies Of The People, Undermining National Security, Hating Our Freedoms. There’s not a iota of hypocrisy here, dammit. You, stupid liberals, you.

13

Ted 01.04.06 at 1:13 pm

I agree with your points, Phein. I don’t think that Plame did anything wrong by suggesting Wilson. I’m just temporarily stipulating all of the anti-Plame points because I want to argue that even if you judge her in the harshest light, it was still completely inappropriate to expose her.

14

dubya 01.04.06 at 1:14 pm

If they know it’s illegal wiretapping they can have their lawyers ready to get the evidence thrown out if they are arrested.

15

Major Danby 01.04.06 at 1:21 pm

“That’s because any time the CiC is criticised at the time of war – it’s objectively treasonous. That’s Giving Comfort To The Enemies Of The People, Undermining National Security, Hating Our Freedoms.”

Except when we’re talking about Clinton in the Balkans, of course. Then it’s OK.

16

Redleg 01.04.06 at 1:35 pm

Perhaps Althouse, Hinderaker, and Reynolds are pseudonyms of John Lott.

17

Jeff Boatright 01.04.06 at 1:39 pm

Althouse has a third-rate intellect. I read her pablum a few times. She can’t make a supportable argument. In this case, as you point out, she never explains how national security was compromised by the NSA domestic spying leak. Further, she provides no plausible scenarios in which this could be the case. The fact that she doesn’t do either indicates that she doesn’t really have a point to make other than the word “leak” should mean the same in every context. Clearly is does not, a final point that doesn’t bode well for her students. They should be advised to leave now and ask for their tuition back before we get too far into second semester.

18

abb1 01.04.06 at 1:40 pm

Except when we’re talking about Clinton…

Don’t even start with The Clenis, Desecrator Of The Oval Office.

19

Mooser 01.04.06 at 1:43 pm

Ask yourself this, libbies: Can Valerie Plame cut your taxes? Can Valerie Plame dispense Federal contracts for the flimsiest of security pretexts? Huh? can she? I think you’ll agree the answer is NO! Can George Bush and his policies do these things? You bet yer bippy he can! And if G. Bush were deposed, the books audited, and rational policies put into place, might your taxes get raised, and the largess be restrained? It very well might!

Now do you see why it doesn’t much matter what happens to V Plame and G Bush must be defended at all costs? Simple enlightened self interest, isn’t it, don’t ya’ know.

But you libbies wouldn’t know anything about that, you’re always carping about some national interest. Have you ever gotten a check from the national interest?

I think the answer is clear.

20

mike 01.04.06 at 1:43 pm

Wouldn’t the argument for why the leak was damaging rest not on the fact of warrantless searching but instead on the reason that the searches were warrantless? That is, one of the most common explanations for why the administration never sought warrants for this program is that it amounted to a vast fishing expedition that tapped large numbers of calls for short periods of time. So individual warrants didn’t really cover the scope of the program. But although the distinction between warrantless phone taps and secretly warranted phone taps wouldn’t be relevant to a terrorist, he might well not have contemplated a program like the one that was apparently being run. So explaining why individual judicial warrants were not feasible in this case would expose the nature of the program and potentially tip off terrorists to the danger.

I don’t know that I agree with the argument, and the fact that administration defenders have resorted instead to angry fulminations about treason and lame accusations of hypocrisy suggests that they may not be that confident in it either. But I suspect that something along those lines is what, if pressed, the administration would cite as the source of its national security concerns.

21

Lionel Hutz, attorney-at-law 01.04.06 at 1:51 pm

Smart libertarians like Reynolds, Alhouse et al. have long perceived the wisdom of a credit-based system of pooled aggregate totalitarianism similar to the “cap and trade” concept sometimes applied to air pollution.

Thus, in “lean” years, fulminating against all manner of government interference (be it taxation, gun control, multilateral “nation-building”, or corporate regulation) gives the well-prepared schmibertarian a valuable store of accumulated latitude for supporting our great Commander-in-Chief and backing clandestine autocracy at any cost when it becomes necessary to do so…during, say, Wars on Terror.

Let us, therefore, take pains not to confuse the right and proper saving and spending of said Fascism Credits with the reprehensible calumny of Rank Hypocrisy.

22

lower tiberius 01.04.06 at 1:53 pm

Althouse isnt a REAL law professor! geewhiz! peoples … I cant believe you fell for that.

23

Frankly, my dear, ... 01.04.06 at 1:53 pm

That’s because any time the CiC is criticised at the time of war – it’s objectively treasonous. That’s Giving Comfort To The Enemies Of The People, Undermining National Security, Hating Our Freedoms. There’s not a iota of hypocrisy here, dammit. You, stupid liberals, you.

The President is merely the most important among a large number of public servants. He should be supported or opposed exactly to the degree which is warranted by his good conduct or bad conduct, his efficiency or inefficiency in rendering loyal, able, and disinterested service to the nation as a whole. Therefore it is absolutely necessary that there should be full liberty to tell the truth about his acts, and this means that it is exactly as necessary to blame him when he does wrong as to praise him when he does right. Any other attitude in an American citizen is both base and servile. To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public. Nothing but the truth should be spoken about him or any one else. But it is even more important to tell the truth, pleasant or unpleasant, about him than about any one else.”
—Pres. Theodore Roosevelt, 1918, in his essay “Lincoln and Free Speech”. (The whole essay is available in his collected works, published in 1926 by Scribner.)

Emphasis added.

24

lower tiberius 01.04.06 at 1:55 pm

It begins to make sense when you realize … like a childs tea party … it’s all make believe. Althouse is merely asserting “She’ll be mother”

25

theorajones 01.04.06 at 1:57 pm

Atrios still has the question posted:

“Explain to me…how exactly it damages national security to reveal the fact that we spy on people without secret warrants instead of the fact that we spy on people with secret warrants?”

It’s a damn good question.

26

lower tiberius 01.04.06 at 2:00 pm

it’s THEE poinant question. After it’s asked all the other crap is snow and everyone knows it.

27

abb1 01.04.06 at 2:00 pm

Let us, therefore, take pains not to confuse the right and proper saving and spending of said Fascism Credits with the reprehensible calumny of Rank Hypocrisy.

Exactly; my point exactly. Hypocrisy is a wrong charge; it has nothing to do with hypocrisy.

28

Sven 01.04.06 at 2:02 pm

As UC Law’s Geof Stone pointed out in a tussle with Victoria Toensing on the radio yesterday, the bottom line is this: If the surveillance program is illegal and/or unconstitutional (he concludes it is both), the leak is not illegal. In fact, if the program was designated classified to cover up its illegality, that is a crime in and of itself.

29

lower tiberius 01.04.06 at 2:05 pm

Teonsing and her ilk are criminals defending criminals …. even Al Capone had a lawyer. Why they’d pretend we all dont know the difference between right and wrong is the assumption that will bring them down.

30

fifi 01.04.06 at 2:14 pm

The world is a peaceful place compared to the last one hundred years (at least.) The threat of terrorism to national security is constant – and benign compared to conventional military tactics or for Christ’s sake the predatory practice and frivolous indulgence of our fabulous wealth — and it would be the same even if we did absolutely nothing about it. I wish I could say the same about the threat of gov’t and the hysterical imbeciles in the body politic that love war – there’s no two ways about it — for the meaning it gives their lives and importance it confers on them in the hierarchy of feces-flinging apes. They’re the fucking terrorists I’m worried about, not some guys living in a cave, for crying out loud.

31

california_reality_check 01.04.06 at 2:16 pm

Exposing a crime cannot be an illegal act. The taps are illegal. Impeach them ALL.

32

Singularity 01.04.06 at 2:33 pm

In response to Mike’s comment above:

First, I understand that you are framing an argument with which you don’t necessarily agree.

My problem with this argument is that the activity in question violates both the law and the Constitution’s guarantee of protection against unreasonable searches. Bush and his defenders may argue that the nature of the program precluded warrants, but in that case the program should never have been implemented. A program in which all Americans were required to submit to body searches each morning would certainly cut down on crime. It would also violate the Constitution. Thus such a program can never be implemented. Efficiency is never a defense for authoritarianism.

33

Ed Drone 01.04.06 at 2:37 pm

Seems to me the simplest answer to those who say it’s okay for the president to have this power is to ask, “Would you be willing for Howard Dean to have this power?” Or Al Gore? Or John Kerry?

If not, you’re in favor of men, not laws, and you’ll get what you deserve if you keep thinking that way. You’ll get someone truly nutsoid, or even empower a governmental agency (think “runaway NSA”) with no controls on it.

A whistle-blower leak trumps a self-serving leak; I’m in favor of leaking illegal acts, not using a leak as an illegal act. Think “Pentagon Papers” (then again, lots of these folks thought Nixon was in the right, too, so there you go).

Ed

34

Barry Freed 01.04.06 at 2:42 pm

Althouse shows once again that she’s dumber than a box of rocks.

35

Realist 01.04.06 at 2:49 pm

I was under the impression that Althouse was another phony “liberal” along the lines of Alan “Thank You, Sir – May I Have Another?” Colmes.

36

Jake McGuire 01.04.06 at 2:50 pm

It isn’t obvious to me; I don’t understand how it would help a terrorist cell to know that their communications were subject to monitoring without warrants, versus with warrants.

I don’t think it’s that unreasonable – there are always costs to improved information security, so people who don’t want to be listened on will do what they feel to be sufficient. One would probably think that having your notorious buddy in Germany buy a prepaid cell phone to call you no more than a couple of times, and at your mom’s house to boot, would do the trick. After all, your mom isn’t under suspicion, it’s a brand new phone, and by the time the feds get a warrant he’ll have bought a new one. Little did you know that because your friend called you two years ago, and you called your mom six months ago, all calls to her house are now being recorded.

I don’t think that the Plame leak or the NSA leak appreciably damaged national security, certainly not as much as the fact that we seem to have an administration that officially espouses the position that it doesn’t have to follow laws that it doesn’t want to. That’s a somewhat harder sell to make, because there are plenty of people who find the “we are stretching the boundaries to protect you” to be reassuring rather than troublesome, but what can you do?

37

Uncle Kvetch 01.04.06 at 2:52 pm

Althouse shows once again that she’s dumber than a box of rocks.

Heh, indeed. And if anyone out there still needs convincing of this, check out her thoughts on contemporary cinema.

38

shieldvulf 01.04.06 at 3:19 pm

Hey abb1!

If you promise to impeach him, I’ll blow him.

39

john m. 01.04.06 at 3:21 pm

“Explain to me…how exactly it damages national security to reveal the fact that we spy on people without secret warrants instead of the fact that we spy on people with secret warrants?”

“It’s a damn good question.”

No, it is not. It is an idiotic question that fails to acknowledge the fundamental protections of the US constitution.

As for one leak versus another surely the content of the leak is key to this? Not that it matters as the whole argument is a sideshow in any event – if everybody gets bogged down in the semantics of what is or is not a leak, it happily avoids having to deal with the content of or motive behind leaks. The Plame disclosure was irrelevant to the wider world, clearly identifying it as politically motivated (even now how many of you could pick her out in a line up if she had changed her hair style?) – it was the motive of disclosure that made it so clearly suspect. In the NSA case it was just another nail in the coffin of American freedom.

40

cs 01.04.06 at 3:22 pm

I think there might be something to jake mcguire’s point above: all of this attention being paid to wiretaps might make the alleged bad guys more careful about their communications.

In other words, it’s not the fact that they now know that it’s being done without a warrent. It’s that they were getting a little lax about their communication security, but now they’ve been reminded of the fact that the US government is working very hard to intercept their conversations.

Of course if that is the case, one could then argue that if the Administration had followed the law, this issue would not be getting attention.

41

john m. 01.04.06 at 3:23 pm

I think I should have read the original Atrios post as it is out of context and re-reading it, it may well be a rebuttal of an argument against the leak. Ooops.

42

feckless 01.04.06 at 3:24 pm

jake I know your’e just playing devil’s advo but the sticking point in the argument is:
“a brand new phone, and by the time the feds get a warrant he’ll have bought a new one.”

If they are monitoring your friend in Germany, FISA says can tap your mama and get permission afterwards, this has been stated ad nausea but it still isn’t getting thru. Time constraints are a false flag.
Having Billions of dollars to spend on security and 5 weeks of presidential vacation each year precludes me from believing the govt. doesn’t have the resources to pursue thousands of warrants monthly, if need be.

43

quxxo 01.04.06 at 3:28 pm

Ann is a hoot and a member of the “I am the true liberal!” false karass that contains Roger L Simon, Totten, Jarvis, Reynolds, and most of the winguts.

44

abb1 01.04.06 at 3:31 pm

In other words, it’s not the fact that they now know that it’s being done without a warrent. It’s that they were getting a little lax about their communication security, but now they’ve been reminded of the fact that the US government is working very hard to intercept their conversations.

Right, just uttering the word “wiretap” is already a treason. And also words “CIA”, “NSA” and “policeman”.

I call bullshit.

45

DAS 01.04.06 at 3:32 pm

Little did you know that because your friend called you two years ago, and you called your mom six months ago, all calls to her house are now being recorded. – Jake McGuire

But if said notorious buddy in Germany were really so notorious presumably his calls would already be under major wiretaps and this sort of thing would get picked up anyway — even without the whole easy for the gummint FISA system, this sort of warrant could obtain. And any terrorist presumably would know or at least guess this anyway. So I fail to see the difference — if anything, the real problem is that if you know every call is potentially monitored, you might figure out that the gummint might not have enough time to really monitor your call (which is why the righty-tighties may be right about this leak damaging national security … and why fishing expeditions such as this one make for bad security keeping in the first place).

OTOH, if the buddy in Germany is not that notorious, presumably this sort of listening could catch something that you couldn’t even catch with a FISA warrant. But then again, casting such a wide net is gonna give you so many false positives, you would still miss the needle of the call from the notorious buddy in Germany in the midst of all the hay generated in the fishing expedition.

*

In general, one disturbing “anti-scientific” trend in present society as exemplified by the Bush admin is the undermining of the concept of “peer review”. It used to be considered a good idea to have someone check your work. Now Bush & CO are claiming they can do a better job keeping us safe precisely by acting in a way that their work can not be checked? That people should agree that oversight does more harm than good is an ill omen — not just in terms of Bush & CO being more likely to make mistakes ’cause no-one is checking their work, but even more broadly in terms of undermining cultural acceptance of the scientific method which has given us all the technological goodies that really form a key basis of modern civilization’s creature comforts. Are we, as Margaret Mead feared, heading toward a new dark ages?

46

aaron 01.04.06 at 3:56 pm

Umm, why would a whistle blower leak to a reporter?

47

mawado 01.04.06 at 3:59 pm

I found it funny (funny odd, not funny ha-ha) that merely revealing the existance of a security process of the Bush administration was met with a fulisade of outrage. However, the HSA block grants have to have public, detailed, spending plans associated in the grant proposals.
That won’t tip a few hands in our cities, will it?

48

aaron 01.04.06 at 4:05 pm

The main difference between the two leaks seems to be that in Plame, the assumption is that the leaker was aware of the consequences and intentionally leaked out of malice. In the NSA leak, it is assumed that the leaker is altruistic and any consequenses are inadvertant.

49

Jake McGuire 01.04.06 at 4:10 pm

Sorry, I wasn’t clear. Your notorious buddy in Germany pays (or has a flunky buy) a prepaid cell phone. No one knows it’s him. He calls your mom. What’s different under the new regime is that the NSA has been listening to all of your mom’s phone calls, because your German buddy called you back in the day, and you call your mom on occasion.

Administration distractions aside, it looks like the problem was not so much that the FISA court was taking too long to get back, but that they were saying No when they did, or at least making the government change their requests, perhaps because there was no probable cause to believe that any random call to your mom was a matter of national security.

50

leant_a_babble 01.04.06 at 4:20 pm

I think the core problem is not that the program violates civil liberties (unless it actually violates the Constitution, which seems doubtful). Rather, it seems to violate the civil liberties protections enshrined in current law, and on the president’s unaccountable say-so. If Congress thought broader surveillance than the kind available under FISA was necessary, it could have authorized it. Bush has had four years to work out a compromise with them on this and has not. He didn’t just do this during a sharply demarcated moment of post-9/11 emergency; he has done it on an ongoing basis.

51

abb1 01.04.06 at 4:23 pm

What’s different under the new regime is that the NSA has been listening to all of your mom’s phone calls, because your German buddy called you back in the day, and you call your mom on occasion.

I fear Kevin Bacon’s phone has been tapped. Poor bastard.

52

Jake McGuire 01.04.06 at 4:26 pm

Just saw the update.

The (as yet uncontested) claim is that the calls in question were international with one endpoint in the US. And there’s a clear national security interest in keeping this monitoring secret – you want the people you are monitoring to think that their call is private, so they’ll tell each other the really juicy stuff.

Whether or not this national security interest outweighs following the law, following the constitution, or giving the executive branch hugely more power than the other two, is the question. I think the answer is “given the magnitude of the terrorist threat we face (i.e. not existential), not only no, but hell no.”

It may be that’s what Ted meant by “legitimate national security interest”…

53

a different chris 01.04.06 at 4:31 pm

Maybe I can clear this up:

1) Somebody who exposes somebody umpteen pay grades above them: whistleblower

2) Somebody who exposes somebody umpteem pay grades below them: not a whistleblower.

As Ted said, if the WH had a problem with Ms. Plame, well, the CIA is part of the executive branch, no? The WH is at the top of that particular pyramid, no? So why the hell do they need to go cry on Bob Novak’s shoulder? Fire her and anybody that looks like her, if you think she sucks.

But who exactly is in a position to walk into the Oval Office and say “Hey, I’m a guy down in C-7 and I don’t think you are following the constition!!” More to the point, if they don’t need the job it still doesn’t fix the perceived problem.

What is exactly so hard about this?

54

DAS 01.04.06 at 4:43 pm

Umm, why would a whistle blower leak to a reporter? – aaron

To whom else would they leak?

Anyone with the power to actually persue the illegal spying was/is in on it or at least, in the case of Congresscritters, is either completely powerless or a member of the President’s well organized (and remember what Washington said about organized political parties — I am tired of the media cooing over how well organized the Republicans are … won’t any of the “original intent” crowd point out that the Republicans are exactly the kind of political party Washington feared?) and disciplined political party.

At least leaking it to the media there is a chance the story would eventually get out (after all the news media is at least, though often at most, nominally in the business of reporting stories) and a chance that election year politics would eventually cause such a story to shame some people into doing at least something about it once the story was public.

55

sane 01.04.06 at 4:43 pm

“… you libbies wouldn’t know anything about that, you’re always carping about some national interest. Have you ever gotten a check from the national interest?

I think the answer is clear.” -mooser

Yes mooser, the answer is clear. Let’s have a look. By defending the national interest, we do get something – Our Great Nation. (strange that you didn’t see that).

56

Diane 01.04.06 at 4:44 pm

What people forget or refuse to acknoledge is the V. Plame’s identity was leaked on purpose, without regard for the consequeses for revenge by persons in the Bush administration.

There was no reason to disclose her name.

There is debate about the legality of what bush has done by evesdropping on Americans.
Even his attorney general did not agree with his power grab. That sounds like whisle blowing to me.

57

DAS 01.04.06 at 4:48 pm

Sorry, I wasn’t clear. Your notorious buddy in Germany pays (or has a flunky buy) a prepaid cell phone. No one knows it’s him. He calls your mom. What’s different under the new regime is that the NSA has been listening to all of your mom’s phone calls, because your German buddy called you back in the day, and you call your mom on occasion. – jack mcguire

If they are doing that — that’s a waste of time. How does that help the war on terror or whatever we’re supposed to call it nowadays.

As has been pointed out before … insisting on warrants isn’t only about preventing abuse of power. One of the key principles of the scientific mindset that has served civilization so well as that everybody’s work should be checked by an outside reviewer to make sure they are on the right track. Bush & CO’s insistence on absolutely no checks on their work either indicates they are fundamentally against the scientific mindset or they simply don’t care whether or not they are actually on the right track.

Both possibilities are frightening and both may very well be true.

58

Alan 01.04.06 at 5:28 pm

I suppose it might give the game away to Al-Quaeda that American intelligence has little or no HUMINT penetration of their organisation, and that’s why they have to resort to desperate fishing.

It’s that or they were deliberately listening in on conversations they knew it wasn’t kosher to tap.

59

Brendan 01.04.06 at 5:33 pm

Incidentally, the things you find on Kos. or

Why This Matters.

‘”When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief,” the Boston Globe reports.

“After approving the bill last Friday, Bush issued a ”signing statement’ — an official document in which a president lays out his interpretation of a new law — declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions.” (from Taegan Goddard’s Political Wire: originally the Boston Globe).

In other words, the great victory we all felt we had won when torture (!) was again declared illegal counted for nothing, because Bush believes that he is above the law.

Can Israeli style assassinations sorry mistaken killings of terrorist suspects be far behind?

And what will the increasingly risible ‘libertarians’ have to say about all this?

60

Gary Farber 01.04.06 at 5:37 pm

I’m kinda wondering, Ted, if you got the e-mail I sent you with a link to this post regarding “wiretaps,” (sigh). It would have fit in nicely with this post, and been extremely apposite. As it is, all I can do is point to it (and the other posts linked therein, and the links in those posts), again.

That you write “Orin Kerr offers a reasonable explanation of why the administation wanted….” suggests to me that you’ve never before heard such an explanation, and therefore didn’t read the post I wrote you about, or any of the posts I’ve written on the topic in the past month (which is fine; no reason you should; it’s a huge internet, and none of us can keep up, and there are a zillion better bloggers than me; I only ask due to the e-mail I sent you at three multiple addresses yesterday; but, there, too, I perfectly well understand not being able to keep up with e-mail, let alone then reading long long posts with lots of links, and then linked posts with yet more links; this is not a complaint; just a pointer, again; I like to think that you might agree that what I’ve been saying is entirely relevant to this discussion; and if not, not.)

Also, from today, here are a number of apposite quotes from Risen’s book, with a link to a longer excerpt.

“In the case of the NSA leak, I’m afraid that I don’t understand how it compromised our national security.”

Complete agreement on that. And also the points about the right blogosphere and Plame, of course.

61

Brendan 01.04.06 at 5:40 pm

Sorry to be tedious but I hunted down the actual Boston Globe article. The whole thing is worth reading, but this bit is particularly interesting.

‘Elisa Massimino, Washington director for Human Rights Watch, called Bush’s signing statement an ”in-your-face affront” to both McCain and to Congress.

”The basic civics lesson that there are three co-equal branches of government that provide checks and balances on each other is being fundamentally rejected by this executive branch,” she said.

”Congress is trying to flex its muscle to provide those checks [on detainee abuse], and it’s being told through the signing statement that it’s impotent. It’s quite a radical view.

In other words, when all the fine words are done away with, Bush is attempting to create something that is without parallel in the West since ’45: an elected dictator. He is also trying to fundamentally rewrite the rule book on democratic practice in the US. Nixon didn’t go nearly this far. Not even close.

62

Gary Farber 01.04.06 at 5:42 pm

Shoot, shoot, shoot. I gave the wrong link. (Although the two I gave are relevant. This is the critical post. Please adjust your reality according. This is the post I’d like everyone to read, (if you feel like spending the time). (And the linked posts and linked documents, insofar as time allows.)

Apologies. I blame George Bush.

63

jethro 01.04.06 at 5:45 pm

the damage to national security is obvious.

OBL had been using a phone that was only secure against warranted secret wiretaps, but after the leak he switched to a phone that’s secure against illegal secret wiretaps as well.

64

cal 01.04.06 at 6:27 pm

The argument that leaking the fact that the NSA eavedrops on electronic communications is a revelation is ridiculous.

News stories not long after 9/11 revealed that the NSA had a number of revealing transcripts of wiretaps that could have possibly exposed the plot. As I remember, the transcripts were not examined on a timely basis and were only examined after 9/11.

The fact that the NSA eavesdrops on US communications has been widely known for some time.

The idea that our enemies didn’t know we were spying on them until the Times’ story broke is beyond stupid.

I don’t believe that Reynolds and Althouse are that stupid. They are however vile fascists to the core.

65

nick s 01.04.06 at 6:32 pm

In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don’t happen to route through the U.S.

Well, that’s total bullshit for starters. ECHELON has existed for a while, and that covers the Big World Outside The US, meaning that stuff routed elsewhere goes to the NSA in Menwith Hill or Shoal Bay or Misawa, without any worry about FISA or Fourth Amendment.

US-HELON was just a way to domesticise that practice.

66

nick s 01.04.06 at 6:38 pm

I suppose it might give the game away to Al-Quaeda that American intelligence has little or no HUMINT penetration of their organisation, and that’s why they have to resort to desperate fishing.

We have a winner. Terrorists now know that their communications might be plucked out of a haystack.

M-x spook-tastic.

67

aaron 01.04.06 at 6:56 pm

The most obvious answer is usually the right one. Wilson’s wife was mentioned to drive home the point that Wilson was a joke. And the leaker probably had no idea she was considered covert and it was probably meant to be off the record, simply to let the person no that there was no story in Wilson.

68

aaron 01.04.06 at 7:00 pm

Sorry for the typos/grammar.

The leaker probably didn’t know she was considered covert. They probably also didn’t expect it to be reported, they were simply driving home the point that there was no story in Wilson.

69

aaron 01.04.06 at 7:07 pm

“Hmmm, I guess we better get all of congress together so we can get rid of that FISA law and start our secret important surveillance.”

70

aaron 01.04.06 at 7:10 pm

“We could just send an additional couple hundred to a thousand warrent request throught the secret court every day. It’s secret no one will notice.”

71

Thers 01.04.06 at 7:43 pm

Aaron’s snark would be better taken if he knew what the hell he was talking about.

72

Barbar 01.04.06 at 8:02 pm

Yup aaron it’s so simple. Your theory also explains why the leakers were so careful to cover their tracks, doesn’t it? Oh yeah, because it would mean political doom for Karl Rove to get caught calling Wilson a joke.

And of course it wasn’t possible to call Wilson a joke by pointing to his horrible resume, a resume that reveals that he had only travelled abroad for vacation and that the former President Bush soundly condemned him for his work in Iraq. Oh no, it was absolutely crucial that the fact that HIS WIFE SUGGESTED HIM FOR THE JOB OH SNAP HE’S SUCH A LOSER be revealed.

73

Barbar 01.04.06 at 8:17 pm

And I see that aaron also understands that every successful counterterrorism operation that the US conducts is ILLEGAL — because if it was legal, then the terrorists would know about it, and then it couldn’t work then right?

Aaron opposes the Patriot Act, not because he cares about civil liberties, but because he realizes that there is no way to protect America through “laws” and “rules.” Why is there even a discussion of the Patriot Act — we cannot let our enemies see what we do.

Aaron opposes the separation of powers, because common sense dictates that a house divided cannot stand. Disagreement about what the government should do paralyzes America and exposes us to terrorists flying planes into buildings.

Also, police transparency is generally a bad idea, and only serves to strengthen criminals by giving them insight into how the police work. It is best for the police to operate without supervision. They can be trusted to focus on fighting crime, and if you’re not a criminal, you shouldn’t worry.

Please share more nuggets of wisdom, Adam.

74

Gary Farber 01.04.06 at 9:12 pm

“OBL had been using a phone that was only secure against warranted secret wiretaps, but after the leak he switched to a phone that’s secure against illegal secret wiretaps as well.”

You’re misinformed. This is an urban legend.

75

Gary Farber 01.04.06 at 9:17 pm

This isn’t my day for posting correct links to CT, somehow. Let’s try again. That is an urban legend. It, as we say, turns out not to be true. (But this only came out on December 22nd, so it’s understandable that you and most people haven’t yet heard.)

76

Luc 01.04.06 at 9:19 pm

A short question for the paranoid amongs us.

Normal wiretaps work by simply taping all conversations for a given phone line.

Echelon worked by real time scanning.

Why would current NSA wiretapping be following Echelons workings instead of the ordinary method?

You can save ALL of the international calls made from and to the US for substantially less then $100m for a whole year. ((300m people * 100 calls/year * 5 min * 1kb/s) @ about 2-5 m$ per petabyte)

And if you assume this (which is a big if) then it would follow that they would want to keep as much as possible about it secret. Even if they only saved a limited set of calls (i.e. to Afghanistan, Pakistan etc.)

AFAIK such a scheme wouldn’t fit in with any acceptable regulation. But given the various research projects (data mining stuff etc.) and opinion in the US (computers don’t violate privacy) it isn’t unthinkable.

77

Barry 01.04.06 at 9:39 pm

One think that I don’t think has been harped on nearly as much as Reynolds and Althouse deserve – they’ve spent the last two years carrying the administration’s water on the Plame affair. IIRC, Glenn ‘Allegedly a Law Professor’ Reynolds claimed that the Plame affair was too complicated to figure out. Not a bad thing for a non-egotistical lawyer to say, but Glenn’s fame comes from being an egotistical jerk with a quick opinion on anything.

78

Rich 01.04.06 at 10:00 pm

Sillies.

The program is super-secret because we need to be sure that our enemies actually think we obey the rule of law. That way, they can assume we’d never survey domestic communications without a warrent.

But you see, we will!

And it’s super-secret because anyone found out we were doing anything illegal, well, we’d be up shit creek. I’m using the royal “we.” Kind of imperial. Like our president. Who’s up shit creek.

79

y81 01.04.06 at 10:28 pm

Well, having read all 78 comments, I could understand that Prof. Althouse would decline to respond in THIS forum. What is the point of all the “dumb as rocks,” “chimperor” etc. rhetoric except to degrade the discussion to the point that only the most juvenile remain? Let me remind you all that most people judge a point of view by its adherents, and that Prof. Althouse’s rhetorical quality far outshines that of the commentators here.

Also, sexually tinged insults, like no. 23, are especially offensive to grown-up men and women.

80

Thers 01.04.06 at 10:42 pm

Well, Ann Althouse has declined to answer as of yet, but Ann Altmouse has picked up the gauntlet.

Number 23 is shocking, just shocking. Eeeek.

81

Barbar 01.04.06 at 10:50 pm

Ooooh, sexually tinged insults!

Wait… “she’ll be mother”? At a child’s tea party?

You’ve got to be kidding me.

And forget about the complete disregard for logical argument. The original post makes a sustained argument against points that don’t even merit such a response, and you choose to focus on a single “Chimperor” comment, taking that as an excuse for not having to deal with logic at all.

As far as the comments about Althouse being as dumb as rocks, I am sorry to say that she has advanced numerous arguments that make that a quite reasonable thing to say. After hearing the likes of “Bob Dylan didn’t mix art with politics, which makes him right-wing” and “Lewis Libby is an unfairly prosecuted whisteblower,” I’m not sure what else there is to say.

Of course you seem to share ideological sympathies with Althouse, and I can see why you would want to grab onto the supposed rudeness of her critics. When there are no logical arguments to defend, best to take pride in being polite and rhetorically sound. Hold your head up high.

82

Gary Farber 01.04.06 at 11:20 pm

“Of course you seem to share ideological sympathies with Althouse….”

That’s remarkable mind-reading, given that it is based solely upon someone’s accurate observation that personal insult and the like is neither informative nor courteous.

83

Matt Weiner 01.04.06 at 11:40 pm

Gary, in re 74 and 75, I think it was a joke.

84

Barbar 01.04.06 at 11:47 pm

Gary,

Thank you, but it’s really not so remarkable.

See, it’s one thing to point out that personal insult is neither informative nor courteous. That’s basically what you’re doing. I personally tend to think that a merited personal insult can actually convey some information, and more importantly can be a useful orienting device, but it’s the type of thing that is easily abused so I won’t belabor the point.

But I’m calling it as I see it. To draw attention to a “Chimperor” comment that actually sticks out like a sore thumb in this thread… and to complain about the “she’ll be mother” comment… well, that’s the type of thing offered as a substitute for logical argument. And why would someone be motivated to do that? Ideological sympathy.

That’s just the truth. It’s not a rare occurrence, it explains most of the “conservative debate” that I encounter. Logic and principle pale next to partisanship. I don’t think it serves anyone well to ignore this fact, and treat the concern about the “Chimperor” comment as anything more than a diversion.

And if y81 wants to come back and make a single reference to the substance of the argument here, he’s free to do so. That is, if “tom3″ didn’t permanently scare him away. Oh I wonder.

85

Mr.Murder 01.05.06 at 1:36 am

” Oh no, it was absolutely crucial that the fact that HIS WIFE SUGGESTED HIM FOR THE JOB OH SNAP HE’S SUCH A LOSER be revealed.”

This is why neocons outed Wilson. He was a merit selection. Can’t have the most qualified person making field assessments. The truth might get out.

As for Glenn. Maybe he can just post his name, phone number, social security number, and other personal information for all to see. Including detailed medical information because women should have no right to privacy.

Why should he?

86

nick s 01.05.06 at 4:21 am

This is why neocons outed Wilson. He was a merit selection. Can’t have the most qualified person making field assessments.

The standard response to the wingnut line about Wilson — ‘his wife got him the job’ — is to ask for the list of better-qualified US citizens with experience of both francophone west Africa and Iraq.

Well, having read all 78 comments, I could understand that Prof. Althouse would decline to respond in THIS forum.

Quite. One would expect La Althouse to blog about this thread without actually having read it.

87

Daniel 01.05.06 at 4:34 am

just on the topic of “Chimperor”, etc; I have made this point elsewhere on a few occasions, but the guy actually does have a face which resembles that of a monkey. Given that he’s president of the USA and he looks like a monkey, I would far rather live in a society where this fact was regularly mentioned and mocked than one in which everyone felt unable to do so.

88

abb1 01.05.06 at 4:47 am

Given that he’s president of the USA and he looks like a monkey, I would far rather live in a society where this fact was regularly mentioned and mocked than one in which everyone felt unable to do so.

Not in the time of war, dammit, when we are engaged in a monumental fight against terror and tyranny on a global scale. September 11, September 11 – how soon we forget…

89

abb1 01.05.06 at 5:30 am

90

soru 01.05.06 at 6:30 am

News stories not long after 9/11 revealed that the NSA had a number of revealing transcripts of wiretaps that could have possibly exposed the plot. As I remember, the transcripts were not examined on a timely basis and were only examined after 9/11.

The conclusion to be drawn draw from that is that the 9/11 attackers found phones too essential to avoid using despite the known risk of being bugged. So they relied on the fact that, pragmatically speaking, it is impossible to intelligently monitor every phone call.

In that particular case, they stayed outside the parameters that would have got them caught – plenty of other potential attackers didn’t.

If that’s true, knowledge of the limits and capabilities of phone monitoring is something that would greatly increase the chance of future terrorists emulating the success of the 9/11 attackers. That motivation is strong enough that the UK does not permit any kind of phone tap evidence to be used in court, precisely because any open legal discussion of the limits of such evidence would, in the judgement of those who know most about how it works, have a greater cost than the benifits of locking up a few extra bad guys.

The myth the Republicans are trying to sell is that the main constraints on phone taps are legal, that those same activist judges who are going to ban christmas are conspiring to frustrate efforts to find Osama. Maybe one day soon, elite liberal lawyers will replace Christmas with Osamamas…

The fact that they claim such idiocy is no reason to believe something equally but oppositely stupid, that there are no limitations, or that the limitations are irrelevant.

soru

91

Dominion 01.05.06 at 6:50 am

Here’s a tasty treat. Yesterday after reading the above I took a trip over to Ann’s site. While there I was compelled to leave a comment, something along the lines that I could imagine all sorts of harm that the Plame leak did, but for the life of me I could not think of one harmful thing that would come about by leaking the information that the POTUS had allowed American citizens to be spied on sans warrants.

For example, in Plame’s case, there is the exposure of foreign agents she might have worked with, the exposure of her employer as a CIA front, blowing the cover of American agents overseas that she worked with…I mean, it is not very hard to come up with a short list. With a bit of research I am sure that I could come up with more. Now I have no proof that any of this was actually harmful but at least I could come up a list. I challenged Ann to come up with a similar list or admit she was talking out her ass once again.

In a stunning act of intellectual bravery Ann deleted my comment. And I don’t think the reason was that I used the word ass. :)

Now don’t get me wrong, she can delete any damn thing she wants, it’s her backyard. Still one can’t help but admire the decisive way that Ann fled the question. The truth must really really hurt!

92

abb1 01.05.06 at 6:56 am

That motivation is strong enough that the UK does not permit any kind of phone tap evidence to be used in court, precisely because any open legal discussion of the limits of such evidence would, in the judgement of those who know most about how it works, have a greater cost than the benifits of locking up a few extra bad guys.

The whole point of all this is that the fact that the administration refuses to obtain court warrants does not qualify as a “discussion of the limits”; underlying assumption here being that the court would never deny any reasonable request for a wiretap.

What we learned from this leak is that the administration is either doing unreasonable wiretaps or is too arrogant to follow the law or both – but that’s nothing new.

93

soru 01.05.06 at 7:37 am

The whole point of all this is that the fact that the administration refuses to obtain court warrants does not qualify as a “discussion of the limits”; underlying assumption here being that the court would never deny any reasonable request for a wiretap.

That may be the overall point of the whole scandal, but I was just adressing Ted’s claim that there was no possible harm involved in this issue becoming a big scandal.

I think there is definitely potential harm, the political question is whose fault that harm is, the leaker or the lawbreaker.

But, I come from a country that has a government assassin from the secret police as it’s national film hero, so what do I know?

soru

94

abb1 01.05.06 at 7:51 am

James Bond?

95

Steve 01.05.06 at 7:57 am

“Rep. Jane Harman, ranking Democrat on the House Intelligence Committee, Dec. 21:

As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities.”

Those damn democrats-always suppressing our democratic rights to turn Bush into an extra-legal emperor!!!!

96

abb1 01.05.06 at 8:16 am

Fair enough, she thinks that disclosure has damaged critical intelligence capabilities. However, as far as Bush being an extra-legal emperor, the mediamatters reports:

…However, the article omitted a crucial caveat from Harman’s press release:

As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities.

Due to its sensitive nature, I have been barred from discussing any aspect of this program, and until the President described certain parts of it on Saturday, I have made no comment whatsoever.

Like many Americans, I am deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed.

Harman was also one of five House Democrats who signed a December 18 letter requesting that Speaker of the House J. Dennis Hastert (R-IL) “take steps immediately to conduct hearings on the scope of Presidential power in the area of electronic surveillance.” The letter stated that the signatories “believe that the President must have the best possible intelligence to protect the American people, but that intelligence must be produced in a manner consistent with our Constitution and our laws, and in a manner that reflects our values as a nation.”

97

Frankly, my dear, ... 01.05.06 at 9:02 am

That motivation is strong enough that the UK does not permit any kind of phone tap evidence to be used in court, precisely because any open legal discussion of the limits of such evidence would, in the judgement of those who know most about how it works, have a greater cost than the benifits of locking up a few extra bad guys.

While I have you on the line, is that the real reason that the CPS declined to proceed with the prosecution of Katherine Gun?

CPS said they dropped it because they had little expectation of a conviction. Anit-war groups claimed it was because a prosecution would have had to go into the legality of the invasion of Iraq. But is it possible that CPS just didn’t want to have to go into the limits of its wiretap capability?

And it is too on topic because it’s about whistleblowers.

98

soru 01.05.06 at 9:23 am

94: yes.

97: dunno.

soru

99

Bumpa 01.05.06 at 10:06 am

The NSA’s spying on citizens without a warrent is an affront to all Americans. By doing this the (current) president is saying that the Constitution is no longer a viable document. He is saying that Americans must accept “Safty” instead of “Liberty.” and this attitude creates a tyranny beyond the threat of any terror.

It is the Constitution that gives this county it’s greatness and uniqueness among other nations, to give all that up so that Americans can “feel” safe from terror is the greatest mistake we could ever make. Our government should know better.

100

theorajones 01.05.06 at 10:56 am

And for the billionth time, no one has any real response to the question of how our national security is endangered by learning that our government illegally spies on its citizens [i]without[/i] a secret warrant as opposed to legally [i]with[/i] a secret warrant.

Game, set, and match.

101

Brendan 01.05.06 at 11:29 am

I think we have (or should have) gone way beyond the issue of whether or not national security was endangered by the whistleblowers. The 2 remaining questions are, surely:

1: Was this action (i.e. the wiretapping) legal and if not

2: Is this grounds for impeachment?

102

Jake McGuire 01.05.06 at 6:39 pm

And for the billionth time, no one has any real response to the question of how our national security is endangered by learning that our government illegally spies on its citizens [i]without[/i] a secret warrant as opposed to legally [i]with[/i] a secret warrant.

It’s real simple. You can’t get a warrant to listen to phone calls if you don’t have probable cause to believe that there’s going to be something of interest in them. For instance, you can’t legally tap the phones of everyone someone you think might be a terrorist ever talked to. The FISA court won’t let you, and rightly so. Bush told the NSA to do it anyway. Knowledge that this is being done raises the bar for responsible communications security practices, making the practice less effective.

It would greatly help law enforcement if we made everyone have their fingerprints and a DNA sample taken at age 12, but we don’t do it for other reasons. Which is also why we shouldn’t tap the conversations of Americans (arguably everyone) who might possibly be doing something shady, or knows someone who might. Not because it wouldn’t help, but because there are things more important than the incremental gain in national security.

103

corwin 01.05.06 at 6:39 pm

Some interesting and some comments that seem shallow For instance,I don’t know who #37 is offering to blow.If it’s Cheney(see Wonkette),thatd be quite a challenge.Just had to say it.
I don’t believe the whistleblower statute is valid in classified documents.Could someone who has had a security clearance please comment.
Brendan raises the interesting qquestion of grounds for impeachment.Has any one serious (ie not someone like John Conyers proposed it .)I think that would be the route to take.

104

aaron 01.05.06 at 9:38 pm

They are to go to congress intelligence committee, never go public.

105

abb1 01.06.06 at 3:07 am

It’s real simple. You can’t get a warrant to listen to phone calls if you don’t have probable cause to believe that there’s going to be something of interest in them. For instance, you can’t legally tap the phones of everyone someone you think might be a terrorist ever talked to. The FISA court won’t let you, and rightly so. Bush told the NSA to do it anyway.

Well, Jake, first of all this is inconsistent with your previous comments where you were saying that it’s not only “everyone someone you think might be a terrorist ever talked to“, but their mothers too.

Second, what’s your evidence that FISA wouldn’t let you tap phones of “everyone someone you think might be a terrorist ever talked to“? I think it certainly would. And I’m sure the FISA would even allow you to tap their mothers’ phones — if you can explain why it makes sense.

And finally, I’ve never heard so far the Bushies defending this thing by arguing that they were unable to get a court order. Mr. Bush said: “in other words, the enemy is calling somebody and we want to know who they’re calling and why“. Clearly in this case there wouldn’t be any problem in obtaining a court order. So, again, he either lying or arrogantly ignore the law or both.

106

quxxo 01.06.06 at 1:38 pm

Ann says you’re a big old meanie. Nyahh!

107

Gary Farber 01.07.06 at 11:20 am

“So, again, he either lying or arrogantly ignore the law or both.”

Blue in the face.

108

abb1 01.07.06 at 1:32 pm

…bottom line: if you’re doing a multiplexdata-mining pattern analysis on tens of thousands or more people, shifting by possibly tens of thousands of people per day, or more, you can’t get warrants. It’s not humanly possible.

Well, Gary, once again: if this is true, if that’s the argument, why aren’t the administration officials making it? Or did I miss it? Give me a link.

Thanks.

109

Functional 01.07.06 at 5:02 pm

Theora: And for the billionth time, no one has any real response to the question of how our national security is endangered by learning that our government illegally spies on its citizens [i]without[/i] a secret warrant as opposed to legally [i]with[/i] a secret warrant.”

Oh how clever, to repeat something you saw on Atrios.

Problem is, neither you nor Atrios show any sign of understanding the issue. The harm is not merely that the public knows that the government was monitoring without a warrant. The harm is in the deductions that one can make from that fact. One asks oneself (if one is intelligent, that is), “WHY is the government monitoring without a warrant? Perhaps that might be because they are doing some sort of data collection that wouldn’t justify a warrant in any particular case.” And then, with the further information that inevitably has come out, one finds that this is indeed the case. And THIS is what gives potential terrorists the knowledge that 1) they shouldn’t call certain numbers in a particular pattern; 2) they should be sure to route their communications through off-shore switches, or stop using phones altogether; etc., etc., etc.

None of that is to say that the monitoring is a good thing. Let me repeat for the stupid: None of that is to say that the monitoring is a good thing. It’s probably illegal, as far as I can tell. But at the same time, publicly revealing the nature of the monitoring IS obviously a security risk. That’s not even a hard question.

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abb1 01.07.06 at 5:57 pm

This is a very, very thin argument, I must say.

Tell me what certain numbers you would now avoid calling in what particular pattern – based on the information that has come out so far.

Why wouldn’t they try to route their communications in the safest way possible and avoid using phones where possible before any of this has come out?

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Gary Farber 01.07.06 at 9:26 pm

“Well, Gary, once again: if this is true, if that’s the argument, why aren’t the administration officials making it.”

Because they are schmuks who should be impeached.

Read harder.

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Pooh 01.07.06 at 9:36 pm

Actually, functional may have a point. For example, suppose there is something to the recent Ammanpour bit – now the relevant baddies know she is compromised and will no longer talk to her. This is bad for Ammnapour, (not that I care especially, but it sure does make a heck of a way to neuter a critical journalist…) But in addition to that we lose the capability to track them that we may have otherwise had.

But that is more related to a specific revelation rather than the “NSA knows everything” revelation from pre-Christmas.

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Thers 01.08.06 at 3:19 am

functional, are you ill? Take some fluids.

The simplest deduction following from knowing that the Bush administration is monitoring without warrants is that they are a damn pack of arrogant fools. They could use the existing law’s exemptions or go get a better law. Anyhoo, the “arrogant fools” explanation is most likely to have been right.

As for why you think terrorists would not have been sneaky as possible with telecomminications before the NYT story… well, that might have something to do with you being a cretin.

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Functional 01.08.06 at 5:09 pm

Oh, right, I forgot that terrorists are all omniscient, and that they have already perfectly anticipated every conceivable system that might be used to detect or monitor their communications.

Here’s an easier way to explain the problem to the likes of Theora Jones: The recent revelation is this: “The NSA has been doing {X} without a warrant.” Theora deftly points out that it doesn’t harm national security for terrorists to learn the “without a warrant” part of that sentence. No shit, Sherlock.

But if you exercise your short-term memory, you might recall the earlier bit of that sentence: “The NSA has been doing {X}.” THAT leaked portion of the sentence is what can harm national security.

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Functional 01.08.06 at 5:12 pm

Obviously, my comments are directed at Ted as well, whose original post above includes this line: “I don’t understand how it would help a terrorist cell to know that their communications were subject to monitoring without warrants, versus with warrants.”

Not the point at all. What helps a terrorist cell is knowing that particular types of communications are being monitored in particular ways. The warrant/no-warrant question is a red herring.

That shouldn’t be so hard to understand.

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nick s 01.08.06 at 11:23 pm

Not the point at all. What helps a terrorist cell is knowing that particular types of communications are being monitored in particular ways. The warrant/no-warrant question is a red herring.

And what particular ways are those?

One presumes it’s ways that have been deployed against non-‘US persons’ and/or those outside the borders of the US for a while, where no such constitutional limits exist. After all, the US is very big on its appropriation of sites of dubious national jurisdiction. Ask the MPs who try to visit ‘RAF’ Menwith Hill.

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abb1 01.09.06 at 3:30 am

Functional,
Here’s an easier way to explain the problem to the likes of Theora Jones: The recent revelation is this: “The NSA has been doing {X} without a warrant.” Theora deftly points out that it doesn’t harm national security for terrorists to learn the “without a warrant” part of that sentence. No shit, Sherlock.

But if you exercise your short-term memory, you might recall the earlier bit of that sentence: “The NSA has been doing {X}.” THAT leaked portion of the sentence is what can harm national security.

But before the recent revelation the common perception was: “The NSA has been doing {X} WITH a warrant.” Thus the only new piece of info here is “without a warrant”; “the NSA has been doing {X}” part has not changed – thus nothing of value has been revealed to the bad guy to prompt him to change his behavior.

Correct?

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Functional 01.09.06 at 9:46 am

But before the recent revelation the common perception was: “The NSA has been doing {X} WITH a warrant.” Thus the only new piece of info here is “without a warrant”; “the NSA has been doing {X}” part has not changed – thus nothing of value has been revealed to the bad guy to prompt him to change his behavior.

Huh? Have you read nothing at all about the NSA program? Everyone who has written about it points to all sorts of interesting details indicating that it is something truly new. (See Orin Kerr’s posts.) I’ve never heard of anyone who thinks that the program was just some routine thing where the NSA simply forgot or decided not to get a warrant.

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abb1 01.09.06 at 12:31 pm

Functional,
could you post a link and, perhaps, a summary of what these interesting details are? My impression is that apart from it being called ‘secret NSA program’ there’s nothing new there other than warantless wiretaps.

And if you think that data-mining and technics like scanning for key-words in phone communications is something new – I think it was described in some TV series I watched a couple of years ago.

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Tom Maguire 01.09.06 at 1:02 pm

Switching to the Plame angle for a moment; from the original post:

A few chuckleheads have tried to paint the Plame leak as an act of whistleblowing against the CIA.

I don’t know if Josh Gibson is the most credible person on this point. But how about this hypothetical exchange:

Reporter: How about those gripping revelations about White House malfeasance from Joe Wilson?

Harried WH Staffer: Smell the coffee – when Joe Wilson tells you that, in the intel dispute between the White House and the CIA, the CIA was right, you ought to realize – his wife is at the CIA, in the area that sponsiored his trip. In fact, she may have sent him on the trip. Whose side do you think he’s on? Is he really going to tell the press that his wife’s department screwed up? In fact, here’s your headline – “CIA Spouse Vouches For CIA in Dispute With White House”. Pretty strong.

Now, that more or less catches the spirt of Rove’s “Don’t get too far out on Wilson” remark. Pincus said that his leaker was trying to steer him off of Wilson, not towards a story. Woodward probably got his leak from the State Dept., and is deeply skeptical of the WH conspiracy theory.

So if Risen’s characterization of his leakers is dispositive, why can’t we rely on Pincus and Woodward in the Plame case?

I don’t know about whistleblowing against the CIA, but it might have been a useful reminder to the media to check their sources. for hidden agendas.

Or does anyone think that Wilson’s wife being in the area that was central to the dispute does not suggest anything whatsover about Wilson’s motives in leaking?

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Functional 01.09.06 at 6:54 pm

Abb1:

Does your version of the Internet not come with Google? Anyway, here’s one post that you might check out. Keep in mind that someone who gains his knowledge from TV is hardly in a position to analyze any level of harm or non-harm to national security.

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