lloydtown 

Electronic Surveillance, Privacy and Technology

I've been forced back to the American Con Law text I used last year.

It seems that since 1968, for normal, non-national security criminal cases, there is a procedure for federal or state authorities to be allowed to "[eavesdrop] on telephone conversations, face-to-face conversations, or computer and other forms of electronic communication." They must be investigating specific serious, covered offences; and they must apply to a court for a Title III warrant.

"This is the most stringent level of protection."

"On a lower tier, with respect to any criminal offence, federal law allows warrant-based access to telephone records, email held in third-party storage, and (after the Patriot Act) stored voice mail."

"Still more relaxed procedures apply to the government's use of trap-and-trace devices and pen registers that capture the source and destination of telephone calls (but not their contents). Those can be put in place on the government's certification alone, rather than the probable cause finding of a court, that the information will be relevant to a criminal investigation."

There was a debate as to how the 1968 Omnibus Crime Control and Safe Streets Act applied to national security cases. In 1978 the Foreign Intelligence Surveillance Act was passed by Congress. The special
FISA or FISC court "hears requests by the executive branch for warrants to conduct secret physical searches and electronic surveillance of [people working for a foreign power]."

All quotes from Mason and Stephenson.

Glenn Greenwald points out that while the President can authorize a surveillance of Americans, for national security purposes, for up to a year with no warrant, "the warrantless authorization applies only to foreign powers referenced in subsections (A)(1)-(3), and not to terrorist organizations, referenced in (A)(4)." (Link from Atrios). So far no one has pointed to legislation which would have authorized what Bush says he did.

Of course, Bush and his defenders will say this points to the larger problem they faced after 9/11: how to take action against amorphous international organizations, as opposed to "foreign powers"--meaning more or less sovereign governments?

UPDATE:

The early "electronic surveillance" cases had to do with telephones, and show a now touching naivete about technology. In Olmstead v. U.S. (1928), the Court upheld the use of wiretapping in investigating federal crimes. Since telephone wires were "not part of [a person's] house or office," they were not included in areas to be protected by the Fourth Amendment. (Taft for the 5-4 majority). Brandeis, who had famously published on "privacy" and even a "right to privacy" in relation to search and seizure, wrote for the minority:

The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect....They conferred, as against the Government, the right to be let alone--the most comprehensive of all rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

A second, slightly more abstract question is what, exactly, counts as an "international" communication these days. Previously, we're told, the NSA had only spied on wholly foreign conversations. They still (say they) don't do any wholly domestic surveillance. What's new is the intereception of phone calls and e-mails where one party is based in the U.S. and the other overseas. Except... how do we know?

FISA, which was specifically enacted in 1978 to clear up some of the questions left unresolved by the Supreme Court, allows warrantless surveillance of conversations between "foreign powers" (and their agents) only if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." We don't know all the details of how the NSA bugging plan operated, but it seems pretty clear that tapping conversations of "United States persons" was not only a substantial likelihood, but practically the whole point of the program.

Patriot Act and Domestic Spying

I for one don't know what the Patriot Act says, or how it would affect civil liberties in the U.S.

It counts for something when Orin Kerr says this about the Senate's failure to reauthorize the legislation (link via Instapundit):

For those of us who think of the Patriot Act as actual legislation rather than a symbol of the Bush Administration, this is rather puzzling stuff. The dirty little secret about the Patriot Act is that only about 3% of the Act is controversial, and only about a third of that 3% is going to expire on December 31st. Further, much of the reauthorization actually puts new limits on a number of the controversial non-sunsetting provisions, and some of the sunsetting provisions increased privacy protections. As a result, it's not immediately obvious to me whether we'll have greater civil liberties on January 1, 2006 if the Patriot Act is reauthorized or if it is allowed to expire.

The U.S. Ambassador

U.S. Ambassador to Canada David Wilkins has criticized Canadian politicians--almost certainly referring to Prime Minister Paul Martin--for using the U.S. government and its policies as a foil or target in a campaign.

The immediate issue was probably global warming--with Martin cricizing the Bush administration, while Canada actually has a worse record than the U.S.

Here is the part that got to me the most:

"What if one of your best friends criticized you directly and indirectly almost relentlessly? What if that friend's agenda was to highlight your perceived flaws while avoiding mentioning your successes? What if that friend demanded respect but offered little in return? Wouldn't that begin to sow the seeds of doubt in your mind about the strength of your friendship?" Mr. Wilkins said.

How Mean Have We Been to Dogs?

I guess this piece in Slate is an example of what people object to on the site: the snarkiness, the easy superiority. The piece is called "FrankenFido."

Jack Shafer insists on exposing the claim that a study of "man's best friend" is going to find cures for human illnesses.

The reason we targeted the dog genome for decoding is that it's useful for genetic research. The reason it's useful for genetic research is that dogs are neatly divided into breeds, each of which is plagued by specific diseases. And the reason dogs are divided into diseased breeds is that we made them that way. Dogs are the world's longest self-serving, ecologically reckless genetic experiment, perpetrated by the world's first genetically engineering species: us.

Please Mr. Sistani: Be Gentle

As Mickey Kaus says, the Grand Ayatollah Ali Sistani should be Time's "Man of the Year." "If we have any hope of achieving our goals in Iraq, it is thanks to him, no?"

And yet: Sistani's plans do not necessarily fit with Bush's plans, or with the promises Bush has made. Some day we will need a two-column table. Heading #1: Bush View. Heading #2: Reality.

As the San Francisco Chronicle says: "The recent traffic to the doorstep of Grand Ayatollah Ali Sistani in this southern shrine city leaves little doubt about who is really the most powerful man in Iraq."

The ascendance of Shiite Islamists has transformed Iraqi society, especially throughout the Shiite south. The Shiite parties successfully pushed through a Constitution that gives religion a greater role in government and paves the way for the oil-rich Shiite south to become an autonomous subregion.

In the south and in places like Baghdad's Sadr City suburb, Shiite factions have substituted Shiite militias for police forces, promoted religious courts to deal with family law, demanded that women wear the veil, and in many places have banned alcohol, dancing and concerts.

The main Shiite parties thoroughly dominate Shiite districts. Posters for secular parties like that of Nouri or former prime minister and U.S. ally Ayad Allawi are regularly torn down or spattered with black ink in Najaf and in Shiite areas throughout the country.

Raptors: Two Wins in a Row

I'm enough of a fair-weather fan that I'm not going to blog about the Raptors if they do nothing but lose.

But this weekend: two wins in a row! The first time that's happened since April 7-8, 2000! (As the summary helpfully points out, back when Chris Bosh was 16 years old). Still only three wins on the season, but the trend, as they say, is positive.

Last night may have been the sweetest yet: 95-82 over New Jersey. Former star Vince Carter was held to 15 for NJ; Jason Kidd led that team with 17.

Bosh dominated, and that may be obscuring questions about many of the other Raptor players: 29 points, 20 in the first half, 13 rebounds in a game when none of his teammates had more than 6. Peterson had a season-high 24 points; hot and cold rookie Charlie Villanueva had 12. Probably the best news is that after the Raptors led by as much as 10 points late in the third, and NJ tied it with 4:11 remaining, the Raptors took the lead again and held it.

Friday night, much more of a squeaker: 102-101 over Atlanta. Bosh 23 points, Villanueva 22 with 10 rebounds. Six players in double figures. Raptors squandered a double-digit lead in the fourth, but held on to win.

Stats:
Bosh 385 points, average 21.4
Mike James 267, average 15.7
Peterson 234, average 13.0
Villanueva 218, average 12.1
Jalen Rose 196, average 10.9

Rebounds: (still not enough charging to the basket?)
Bosh 181, average 10.10
Villanueva 112, average 6.2
Peterson 75, average 4.2
Rose 59, average 3.3
James 49, average 2.9

Noteworthy: Jose Calderon, played in all 18 games, started only 4: average 6.1 rebounds.

Oh Good: An Air War

Is the U.S. going to combine:
1. Withdrawal with
2. Building up Iraqi forces as quickly as possible (Iraqi-ization?) and
3. Bombing?

I'm like Atrios and Kos here: I didn't see the bombing part coming.

Sy Hersh is conveying the worries of Air Force experts that the targetting for U.S. bombs will be left to Iraqis--who will either be incompetent, and cause needless damage and resentment, or will target according to their own agendas, perhaps deliberately widening a civil war.

Could it be that we will yet see massive bombing of civilian populations in Iraq? It did, after all, work in Germany and Japan. But then, the main goal in those cases was to end or fatally weaken loyalties to totalitarian regimes that had become extremely powerful. "We" had to demonstrate our own enormous power, and our willingness to use it; the power of God, the arbitrariness of the Devil. See Yglesias here, linked here. See also here.

With Bush in office for three more years, is that the future for at least some Iraqi cities?

UPDATE Dec. 17: To my amazement, Jim Pinkerton has proposed the slaughter (by Iraqis) of most if not all Sunnis in Iraq in order to bring peace. Liberation, Jim? I used to think of him as so level-headed....

Toward an Overview of Iraq

This piece, even though it is from the Socialist International, actually seems like a good summary. The U.S. has created something of a monster in the present Shiite-dominated government in Iraq. U.S. officials recognize that fact--that the present government might worsen, rather than improve, relations with Sunnis--and that is why they are once again pushing Chalabi and Allawi.

To the extent that really nasty insurgents, or their strongholds, can be identified, the violence of the stick must still be used and is still being used. The Iraqi government is already going farther, however--killing Sunnis who might help with peaceful development, and trying to strengthen a mullah-dominated, pro-Iranian regime. Death squads are reminiscent of previous U.S. operations; torture goes on much as it did under Saddam, before "liberation." Perhaps the cast of victims has changed, or reversed.

Kevin Drum presents two reports: Allawi fears that the new government is out of control; Abdul Aziz Hakim, the leader of the main Shiite party, says, in Drum's paraphrase, "you ain't seen nothing yet."

UPDATE: Then there is Ahmed Chalabi, during his recent visit to the U.S. His conversation over dinner with Arianna Huffington is more interesting than anything he said "officially":

Chalabi definitely wants American troops to stay in Iraq -- even though he had a lot of horror stories about the way the U.S. military is operating "with total immunity and impunity."

"American soldiers," he said, "are breaking into people's homes and are arresting and detaining Iraqi citizens without charges. Even if they run over an Iraqi and kill him they will not be charged with a crime, because they are above Iraqi law."

"Isn't that proof," I kept asking, "that the presence of the military is fueling the insurgency, and that your job would be easier if the Americans left?"

"No," he kept insisting, "we need the Americans to protect us from our neighbors. From Syria, from Saudi Arabia, from Iran."

That's obviously one of the main objectives of his current trip. He's convinced that the administration, for political reasons, is looking for a way out of Iraq. And he wants to make sure that doesn't happen.

But his other objective, which he told me he was planning to discuss with both Rumsfeld and Cheney, is to change the way U.S. troops are operating in Iraq. "America," he said, "has a Status of Forces Agreement (SOFA), which governs how U.S. forces operate inside a sovereign nation, with over 100 countries. But the Bush administration refuses to have one with Iraq -- and, as a result, the U.S. Army is operating outside the law. Rumsfeld feels that a SOFA will tie the hands of the U.S. military and not allow it to fight the insurgency. Of course, the lack of such an agreement has the opposite effect since it causes great resentment towards the U.S. among the Iraqi people."

Another thing made clear through the night was how much Chalabi hates Paul Bremer and what the Coalition Provision Authority did in Iraq. So much so that he's willing to praise Henry Waxman, who has criticized him harshly, but who, according to Chalabi, has done the most thorough work on what he regards as "the tragic waste and abuse of billions of dollars that belonged to the Iraqi people."

"The administration wants to cover this up," he told me. "Let's hope Waxman won't let them."

Canadians in the News

1. Former Canadian Minister Of Defence Asks Canadian Parliament To Hold Hearings On Relations With Alien "Et" Civilizations

To paraphrase an old joke by George Stephanopoulos: There are aliens among us. Paul Hellyer proves it.

2.Black wants citizenship back
"Could allow transfer to Canada if he's convicted in U.S."
"Renounced country in 2001 to join British House of Lords"

Bwahahahaha.

Black founded the National Post, which in a way exemplified his love of words and writing, his sense of his own importance, and his desire to shape events in, yes, Canada. The editorial slant of the paper was satirized, I think by the lamented Frank magazine, as "Canada sucks."

He renounced his Canadian citizenship specifically to get into the House of Lords, but it was also consistent with his long-standing desire to be a big shot in both Britain and the U.S., leaving Canada in his wake.

And now this. Is he worried about spending time in a prison in the U.S., that paradise of meritocracy? "I want to take my stand in a country where I will be judged strictly by my own merits--where a man can climb as high as he wants and is able, but the same man might fall just as far--and learn to take it like a man."

"I don't want security blankets or safe landings. I hate them. They are what make social democracy--and that declining backwater, Canada--so contemptible in the eyes of thinking, resourceful, piglike yet strangely beautiful people throughout the English-speaking world, and indeed the entire right-thinking hemisphere of the globe."

Bwahahahaha.

The Toronto Star does this up nicely because they are so full of venom towards Black.

Black, who in a speech four years ago called his Canadian citizenship an "impediment to my progress in another, more amenable jurisdiction (Britain)," now contends the government should grant his request because his parents were born in Canada.

Reconciliation for Insurgents

Factions in Iraq agree:

The final communique, hammered out at the end of three days of negotiations at a preparatory reconciliation conference under the auspices of the Arab League, condemned terrorism but was a clear acknowledgment of the Sunni position that insurgents should not be labeled as terrorists if their operations do not target innocent civilians or institutions designed to provide for the welfare of Iraqi citizens.