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Optical/IP

Tap Dancing

9:25 AM -- It's too much trouble for the NSA to obtain warrants before eavesdropping on possible evildoers, Attorney General Alberto Gonzales told the Senate Judiciary Committee this morning, describing the Bush Administration's secret warrant-free wiretapping program to an audience of hostile Senators from both sides of the aisle. Calling such legal niceties "cumbersome and bothersome," Gonzales was there not to debate the legality or efficacy of the program, which has been declared unconstitutional by just about every independent legal expert who's examined it, but simply to repeat what President Bush already said in his State of the Union address last week: It's legal because we say it is.

It goes without saying that the dangers of government eavesdropping (not to mention listening-in by other nefarious characters) escalate disturbingly as we move to a wirelessly networked society. Think that's alarmist? Consider a few news items from just the last couple of days:



It's going to get worse before it gets better -- while the executive branch assures us that it's okay, we know what we're doing, trust us.

— Richard Martin, Senior Editor, Unstrung

paolo.franzoi 12/5/2012 | 4:07:08 AM
re: Tap Dancing
-º 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court


Release date: 2005-03-17

(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath thatGÇö
(A) the electronic surveillance is solely directed atGÇö
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney GeneralGÇÖs certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unlessGÇö
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier toGÇö
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

seven
Larry, Monkey 12/5/2012 | 4:07:07 AM
re: Tap Dancing Unsurprising the AG should find the Constitution "cumbersome and bothersome."
This is the same guy who found the Geneva Convention interrogation regulations to be "outmoded and quaint."
paolo.franzoi 12/5/2012 | 4:07:06 AM
re: Tap Dancing
I guess reading my post was too much but the title of section 1802 is called......
--------------
-º 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court
--------------

I guess following the law is simply too hard for you. Perhaps instead of reading hype, you should try to evaluate the facts.

seven
spc_burn00501 12/5/2012 | 4:07:06 AM
re: Tap Dancing Seven,
Perhaps you missed this little tidbit:

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

This is the entire argument as to this being illegal - that GW is wire tapping US citizens - not foreign agents - even if they are suspected terrorists...
paolo.franzoi 12/5/2012 | 4:07:01 AM
re: Tap Dancing
That is the point:

Is a US citizen actively planning to bomb the US at the behest of a terrorist organization a US Person by statute or an agent of a foreign power by statute. This is clearly ambiguous under section 1801 of the statute.

You have finally noticed the rub. The whole court bit is a fallacy. I am certainly happy to debate the other point at length.

US person is defined as follows:

(i) GÇ£United States personGÇ¥ means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

You should now keep reading the statute. Because now we can argue whether belonging to Al Qeada is an association with a Foreign Power. This is certainly all valid discussion.

seven
RBMartin 12/5/2012 | 4:06:52 AM
re: Tap Dancing Have to say I'm not really following the argument here. The question is not whether FISA allows the type of surveillance carried out by NSA; they bypassed FISA entirely, and certainly did not inform the appropriate congressional committees as required in 1802(A)(2).

See the EFF's FISA FAQ:

http://www.eff.org/Censorship/...

& Stewart Powell's excellent story in the Seattle Post Intelligencer:


http://seattlepi.nwsource.com/...

Am I just being dense here?
spc_burn00501 12/5/2012 | 4:06:46 AM
re: Tap Dancing Well, the thing that is annoying, and that I don't understand, is that there is ALREADY a secret judicial court that grants warrants such as these. Why does Bush feel he must go around a court designed to keep these matters secret, but legal?

I don't much care about who is what and the legal jargon. There is already a provision to secretly tap US citizens - why not use it?
RBMartin 12/5/2012 | 4:06:35 AM
re: Tap Dancing Exactemente.
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