American Big Man Part VIII: The Higher The Monkey Climb

Is the more he expose.

So goes the common wisdom which was true when it was phrased as it is today. That the NSA has a record of almost any American who made a phone call should not come as a surprise to anyone who has been paying attention. The flagrant violation of the FISA laws by the Bush Administration did not come out of thin air. No. Instead I believe the FISA violations grew out of "lesser sins." IIn my mind the NSA tap is a classic example of power creep which began for us with the AUMF which authorized the president to use all appropriate and necessary force to capture and prevent another 9-11. What the Bush administration did was use the "War on Terror(tm)" to attempt to justify what the president sees as emergency powers. This is why we have the color coded threat chart which bounces between red and amber depending on what the president wants to authorize at the moment. See the problem with both FISA and Chapter 206 of Title 18 is the emergency provisions. In FISA the Administration can tap first and then offer reasoning after. in Title 18, relevant to the NSA we find:

(a) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—
(1) an emergency situation exists that involves—
(A) immediate danger of death or serious bodily injury to any person;
(B) conspiratorial activities characteristic of organized crime;
(C) an immediate threat to a national security interest; or
(D) an ongoing attack on a protected computer (as defined in section 1030) that constitutes a crime punishable by a term of imprisonment greater than one year;
that requires the installation and use of a pen register or a trap and trace device before an order authorizing such installation and use can, with due diligence, be obtained, and
(2) there are grounds upon which an order could be entered under this chapter to authorize such installation and use;
may have installed and use a pen register or trap and trace device if, within forty-eight hours after the installation has occurred, or begins to occur, an order approving the installation or use is issued in accordance with section 3123 of this title.
(b) In the absence of an authorizing order, such use shall immediately terminate when the information sought is obtained, when the application for the order is denied or when forty-eight hours have lapsed since the installation of the pen register or trap and trace device, whichever is earlier.
(c) The knowing installation or use by any investigative or law enforcement officer of a pen register or trap and trace device pursuant to subsection (a) without application for the authorizing order within forty-eight hours of the installation shall constitute a violation of this chapter.
(d) A provider of a wire or electronic service, landlord, custodian, or other person who furnished facilities or technical assistance pursuant to this section shall be reasonably compensated for such reasonable expenses incurred in providing such facilities and assistance.

Section 3123 states, in part:

§ 3123. Issuance of an order for a pen register or a trap and trace device
How Current is This?

(a) In General.—
(1) Attorney for the government.— Upon an application made under section 3122 (a)(1), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. The order, upon service of that order, shall apply to any person or entity providing wire or electronic communication service in the United States whose assistance may facilitate the execution of the order. Whenever such an order is served on any person or entity not specifically named in the order, upon request of such person or entity, the attorney for the Government or law enforcement or investigative officer that is serving the order shall provide written or electronic certification that the order applies to the person or entity being served.

So by making the "War on Terror" appear to be a case of ever impending death and destruction, the Administration claims that they can trap, trace and eavesdrop at will on any US person. The problem with all of this of course is the "criminal investigation" portion. The laws are pretty clear as to the fact that such investigations must be in support of criminal investigations. By obtaining the phone records of potentially millions of people (we are still finding out the details), the administration must, as I see it, show that these millions of people are subjects of criminal investigations AND must show probable cause. Dave Lindorf put the issue of probable cause front and center in his recent piece General Hayden's Constitutional Sedition
Rewriting the Fourth Amendment:

Asked by Jonathan Landay of Knight-Ridder about the Fourth Amendment's standard of "probable cause" for issuance of a warrant for a police search, Gen. Hayden disputed the standard.

"No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure." Hayden said, trying to correct Landay.

"But it does say probable" Landay tried to interject.

"No, the amendment says unreasonable search and seizure," snapped Hayden.

Now the problem here is that the General, who was running the National Security Agency as it has been operating a secret program, just disclosed by USA Today, that monitors the phone calling records of virtually all phone customers of AT&T, Bell South and Verizon, is selectively quoting from the Fourth Amendment.

In fact, what the Fourth Amendment says is:

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

I would hazard to suppose that ones phone records qualifies as 'effects." But I could be wrong. The inherent privacy of phone records can be seen in the fact that if you are online you must enter verifiable information in order to get your information. Your bill is mailed to you enclosed in an envelope. It could easily have been mailed as a folded over piece of paper for all to see, but it is not. The claim is that the conversation is protected but not the number you called or the location of the person you are speaking with. I do not agree with this accessment. If one wished to have a public conversation one would use a phone in a public location and have the conversation in a manner that any and everyone can hear (as any number of cell phone users now do). People in their homes expect that the entire process of making a call, including the number dialed remains private in so far as is necessary to place the call. That is the customer has a social (and possibly legal) contact with his or her phone company that their use of the "network" is a private affair between the customer and the service provider. I'm sure the law doesn't see it that way hence my charge that we are seeing a snowball effect of erosion of privacy that started a long time ago. This is only becoming apparent because the monkey has climbed so high that the ugly bottom is exposed and the assumptions that many people had about what is and is not "private" is coming to light.

Of course we get the complimentary argument that following the laws in "this age of terrorism(tm)" would give away the hand of the government to the terrorists. Well my problem with this line of thinking is that if following the law would give the governments element of suprise away, then such a statement implies that the government already knows who the terrorists are and therefore already has them under survelliance, etc. If this is the case, then there is no need for massive data collection of persons "effects" who are not under any specific criminal investigation. If they do not know who the "terrorists" are then they are saying that the government considers all persons within the United States to be under criminal investigation until the "war on terror is won(tm)".

Sure.

Anyone with half a brain, and has noticed how long "terrorism" has been occurring in the Middle East, would know that this circular argument will simply entrench unfettered power of the government into the personal lives of citizens. Ultimately I'm not as sure on the NSA front as to whether the collection of phone records constitutes an actual criminal act, but I still hold that the seemingly forgotten FISA violations are impeachable offenses and should be prosecuted.

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