TELECOM Digest OnLine - Sorted: Re: Public Wants Court to Okay Wiretaps

Re: Public Wants Court to Okay Wiretaps

Fred Goldstein (
Sun, 15 Jan 2006 19:56:44 -0500

On Sun, 15 Jan 2006 01:48:06 GMT, Michael Chance <> wrote,

> Let me pose the problem: We have a recognized leader of such an extra-
> national group, which has publically declared "war" against the U. S.
> using (among other methods) terror attacks against civilian targets --
> let's call him Jafar al-Vizier -- who is currently residing in a foreign
> country, say, the Sultanate of Agrabah. The NSA is monitoring, legally,
> all of his conversations -- landline, wireless, satellite, Internet, etc.
> One day, al-Vizier makes a phone call from Agrabah to a previously
> unknown associate -- let's call him Iago Parrot -- who is located in the
> U. S. Under your "no wiretaps without a court order" view of the world,
> the NSA would have to immediately stop monitoring the call, and initiate
> proceedings for a FISA warrant, which will take days to obtain, if not
> weeks.

I don't know whose "no wiretaps without a court order" you're talking
about, but it's not the FISA law. First off, the NSA is not violating
US law when it monitors foreign conversations. Second, when there is
a need for FISA warrants, they are obtained *after* the fact. FISA
allows the warrant to be obtained up to 72 hours after wiretapping
begins. The FISA court is not exactly tough on requests, either. It
has rejected *six* out of about 16,000 requests in 26 years of
existence. Less than one in two thousand. And it's after the fact,
so there is no imminent-risk issue. Now let's say that the
rubber-stamp FISA court said "no". In that case the wiretap would
have to end. But they certainly give a lot of leeway.

If Bush, Cheney, Libby and Rove were so wary of going to *that* court,
just *what* were they doing? It sounds awfully Nixonian to me.
Without supervision, they could be wiretapping political opponents.
That's the obvious answer.

> However, since this is a MILITARY situation, not a civil one, this
> isn't a 4th Amendment "unreasonable search and seizure" sitation, but
> an Article II, section 2 situation, with the President acting as
> commander in chief of the military, authorizing a military operation
> to prevent an attack on the country.

Uh, no. The point of Article II section 2 is to put the military
under civilian control, not to impose martial law on the country and
suspend the rest of the constition whenever the president feels like

> And there is historical precedence for the U. S. engaging in military
> action against an extra-national para-military organization: The
> Barbary "pirates", during the years 1801-1815.

Nobody said that there was no legal basis for acting against
para-military organizations. Again, you are doing the Fox routine
again, bringing up straw horses in order to knock them down. WAR ON

> As a side note, it is the 1796 treaty with these "pirates" that
> supposedly contains the phrase "the government of the United States of
> America is not in any sense founded on the Christian Religion", which
> is often used to justify all manner of elimination of religion from
> the public sphere. In fact, that phrase does not appear in the
> original Arabic version of the treaty, but was inserted in a
> translation by Joel Barlow, the U. S. Consul General at Algiers.

Actually, I thought it was the First Amendment that was meant to keep
the country from becoming an ecclesiocracy. Silly me. But I guess
the O'Reilly Factor, or whatever, can come up with these comforting
factoids to distract the faithful when reality goes so clearly against

Fred Goldstein k1io fgoldstein "at"
ionary Consulting

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