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Saturday, January 21, 20061137890400

Gentleman Don't Read Each Other's Mail. Warriors Do.

"Warrantless Searches and the Parameters of Presidential War Powers," by Mark Safranski, ZenPundit, 21 December 2005, http://zenpundit.blogspot.com/2005/12/warrantless-searches-and-parameters-of.html.

"Hitler on Line One: There's a Long History of Intercepting Foreign Communications, and Some of It May Have Been Legal," by Robert X. Cringely, I, Cringely, 19 January 2006, http://www.pbs.org/cringely/pulpit/pulpit20060119.html (from Slashdot).

"Google shares fall nearly 8 percent," by Eric Auchard, Reuters, 20 January 2006, http://today.reuters.com/investing/financeArticle.aspx?type=hotStocksNews&storyID=2006-01-20T194115Z_01_N20177562_RTRUKOC_0_US-GOOGLE-STOCKS.xml (from Slashdot).

In spite of the Justice Department, we may still win the Global War on Terrorism. Somehow.

Not a Joke

Two news items, which demonstrate how President Bush's wise counter-terrorism measures continue to be undercut by his Attorney General.

Robert X. Cringley is a highly respected technology columnist. Famous for a history of the early PC industry, he takes a long view and is able to see trend lines much better than most.

Therefore, Cringley's explanation of President Bush's anti-terror espionage is important.

After giving a technical analysis of different methods of eavesdropping, and saying that he doesn't know whether to be outraged or bored, Cringley notes

Given that this is all about National Security, we'll probably never know the full answer. Even if the proper research is conducted and answers obtained, they won't be shared with you or me. But here's a hint from a lawyer who used to be in charge of exactly these compliance issues for one of the largest RBOCs: "While it is true the FISA court approves nearly all applications submitted to it, this is due primarily to the close vetting the DOJ attorneys give to applications before they are submitted to the court. In fact, the FISA appellate court noted that the DOJ standards had been higher than the statute required. I am unaware that the court has 'retroactively' approved any electronic surveillance that was not conducted in an emergency situation. There are four emergency situations enumerated in the statute. Even in an emergency, the government has to apply for approval of what they have already started or in some case finished and these applications have to meet the same strict standards as any other application."

So the probable answer is that the several hundred NSA communication intercepts wouldn't have qualified for submission by the DoJ to the FISA court, and some of those might not have qualified for FISA court orders even if they had been submitted. It looks like the difference between using a rifle or a shotgun, with the Bush Administration clearly preferring the shotgun approach. Only time will tell, though, if what they are doing is legal.

The criticism of the wiretapping is mostly legalistic anti-Bushism wrapped up in a Constitution dress. The precise, technical method that we get information on al Qaeda doesn't matter. That we get it matters. We face a huge problem, of both terrorists and terrorist-sympathizers, and the dynamic wiretaps are a way to help fix it.

These concerns aren't academic. Important American institutions have been subverted by our enemies. The Communist subversion of many American institutions is well known. But even the Nazis made real headway

The computer monitoring of cell phone conversations pales in both scale and significance. One fun fact from that monitoring: The CEO of International Telephone & Telegraph (ITT) reportedly spoke with Adolf Hitler on the phone from New York City every week of the war. According to the book The Sovereign State of ITT, the call was placed from New York to South America, and then used a cable from South America to Berlin. Key companies that maintained the German telephone network were ITT subsidiaries at that time, and communications were obviously of strategic importance for Germany; thus Hitler needed to speak with the CEO every week. ITT never stopped running the German phones during the war and were evidently allowed to continue doing so to gather just this sort of intelligence (that's me putting a positive spin on a disturbingly ambiguous relationship). So information technology's ability to eliminate borders in warfare is nothing new, even though it seemed to take the New York Times by surprise!

We can lose this Global War on Terrorism. Terrorists can blend into our society. We must know where potential terrorists and collaborators are, and what they are doing, even when they are inside our borders.

Eavesdropping is important. It can be vital to national interest. Which is why stories like Justice Department strong-arming of Google are so alarming:

Another issue is the brewing controversy between Google and the U.S. Justice Department. Google is resisting a request by the government for Web search data to help the United States make its case in support of a federal online pornography law.

"There are potentially concerns that Google could be in the cross-hairs of the Justice Department," Kessler said.

I won't address the legitimacy of a national government concerned about whose reading Slustler from Second Life, Sociolotron, or even playmate kajirae.

Not a Reason to Spy

Instead, I will quickly quote Mark Safranski of ZenPundit

The American people want to hear that warrantless surveillance is an action the Federal government takes only in extremis to prevent acts of catastrophic terrorism and to prosecute the war against al Qaida- any appearance of lazy and unjustifiable" fishing expeditions" will - correctly in my view- raise a political firestorm. Absent the need to protect exceptionally delicate sources or methods or stop an imminent disaster, going to the FISA court should be the first choice because of the political and moral dividends of being able to point to a systemic check and balance on such an awesome power.

I disagreed with Mark on whether or not warrantless searches hurt the will of the American people, but the essential point is that it is vital not to undermine our war effort by disillusioning the American people.

The distinction between spying on terrorists and spying on civilians is critical -- court order or not. As Attorney General John Ashcroft once said, we need to run interference against the terrorists -- make every little thing harder for them. But when the government seeks expanded powers both against terrorists and against Americans, the State runs interference on itself -- makes every little thing that much morally harder on it and the American people.

George Bush is right to spy on terrorists. The American people will rally behind any leader who fights terrorists.

But the Justice Department is wrong to try to spy on the search records American civilians. The American people will reject any leader who once to make them live morally -- who wants to socialize virtue.

We can not risk rejection of our leadership because its Justice Department insists on carrying out a virtue crusade. States should avoid criminalizing as much as possible, because the more friction we generate nickle-and-dimeing social policy, the more heat we get in trying to stop a threat to our civilization.

Win the Global War on Terrorism. Spy to stop terrorism. Not to spread "virtue."

18:40 Posted in Law | Permalink | Comments (7) | Tags: zenpundit, wiretaps, surveillance


Good post Dan. Solid boydian reasoning on moral conflict.

Our elites are disconnected from the core constitutional values of American society. This includes the Bush administration though obviously in a different way than the anti-war left politicians like Kennedy and Pelosi. Here, in the midst of a war with fanatics who boast about their desire to incinerate or poison 50,000 Americans, the scarce resources of the DOJ are put in service of the Elmer Gantry set who are overwrought that adults - and the behavior of adults is what is being targeted here - might use the internet to look at a nice pair of tits. Really, who gives a flying f***k ? All things considered, how could this possibly be important ?

It is an insane shift of priorities away from national security to pursue the obsessions of a small but loud faction of authoritarian activists who found antique neoclassical bronze nude statuary at DOJ so dangerously arousing that they had to be covered with a canvas curtain.

Posted by: mark safranski | Saturday, January 21, 2006

I agree that the distinction is important, but am not convinced that the warrantless wiretaps are golden. I hate "slippery slope" arguments; but, I doubt that you and I and the average American are going to have access to factual data proving the limited scope of the Administration's spying. It is good for them to say that they are doing it to fight al Qaeda; it is useful for fighting terrorists and, preferably, for averting disasters; but how are we to know that is all the wiretaps are *for*? The very same moral defeat that the DOJ invites by targeting viewers of pornography is invited by GWB's ultra-secretive warrantless wiretapping, if Americans can't be confident of the difference. Warrantless wiretapping will tend to be judged, "unwarranted."

Posted by: Curtis Gale Weeks | Sunday, January 22, 2006


Clearly people can become paranoid, and they can believe the government's police powers are much greater than they are. That's doubltess already happened to these people. [1] And to these [2].

However, you don't see such hostile, self-referential OODA loops much. However, you do have a firm trust that the government is doign all it can against foreign enemies. Domestic NSA wire-tapping was briefly mentioned in the movie, "Enemy of the State." [3] In our world, Predator/Eschalon has been widely known in the IT community for years. [4]

Regardless, if one joins the paranoid, then the formal process of warrents doesn't help much. After all -- perhaps the Judges are in cahoots with the administration? (See the RX Cringley article for a serious exploration of this). And remember the Google case -- the DOJ did real harm to Google (effected an 8% slide) without a warrent, merely by leaking Google's noncompliance with its whims.

People want to live, and they don't want their actions used against them. NSA wiretaps help achieve both these goals, because by their very nature intelligence espionage is not policework. But the strong-arming of Google fails this test, because DOJ by its very nature is policework.


The reason for GOP cultural disconnect has changed dramatically in the last 15 years. It used to be a WASPish power base. It is now the Familial/4th Generation [5] support of the Christian Right. I'll try to tie this into my comments on liberal education [6] [7] later today.

While I'm typically of Ashcroft -- his espionage on a Lousiana bordello was an "insane shift of priorities" -- I'm sympathetic to him on the statues. My hometown of Sioux Falls famously has one of the truest reproductions of the Statue of David in the world. And it's caused problems ever since the city acquired it. It doesn't fit the traditional art of the settlers, it does't fit traditional Sioux aesthetics, it doesn't fit naturalism in our state (the climate and flora of South Dakot would discourage nudity), it doesn't fiti the local understanding of King David, it doesn't fit the city's culture. Yet attempts to rationalize the statue, or reduce its friction to the population, are criticized as anti-art. [8]

If the Attorney General wants to dress a nude statue that appears with him in press statements, that's a qualitative decision he can best make. But just dont let the AG cover blog playmate kajirae. ;-)

[1] http://www.prisonplanet.com/
[2] http://democrats.com/
[3] http://www.greencine.com/webCatalog?id=7223
[4] http://en.wikipedia.org/wiki/Eschelon
[5] http://tdaxp.blogspirit.com/archive/2005/05/17/pmp_4gp_fusion_the_christian_right.html
[6] http://zenpundit.blogspot.com/2006/01/counterinsurgency-is-doable-series-4gw.html#113777929004865553
[7] http://globalguerrillas.typepad.com/johnrobb/2006/01/validity_of_4gw.html#comment-13053324
[8] http://news.minnesota.publicradio.org/features/199910/22_hetlandc_statues-m/

Posted by: Dan tdaxp | Sunday, January 22, 2006

I understand your point about clashing aesthetics in Sioux Falls but the dominant architectural style in DC for public and many private buildings is *neoclassical* ( some exceptions like the Smithsonian, the Holocaust Museum, the Vietnam Memorial exist ). The statues blended in to the point that attention was only called to them by covering them up

Posted by: mark safranski | Sunday, January 22, 2006

Dan, I live in the state that voted for a dead man over Ashcroft. I also live near the city which claims Ashcroft -- which also is home to the Assembly of God National Headquarters, Ashcroft's church. The area is very socially conservative. GWB has had a lot of support in southwest Missouri, and many people will no doubt put their blind faith in GWB; however, because this is the "hillbilly" Ozarks, many residents are quite suspicious of government intrusion, preferring privacy. This is also the "Show-Me State."

I think that suspicion of government excess is not restricted to southwest Missouri and in fact does not require radical paranoids to have its effect. What many do not understand about the current subject is *why* the FISA court had to be by-passed: we may not be paranoid enough to suspect every legislator, executive, and judge of overstepping Constitutional authority, but we want Bush to "Show Me" why all but the executive should have been by-passed in the effort to spy on Americans. In fact, it would appear the GWB is the one who is paranoid of judges and legislators. (The fact that these "Americans" are only those suspected of ties to terrorism helps the president, but the gnawing reality that we'll just have to take GWB's word for this is troubling. And, as you pointed out, the DOJ's recent efforts lend credence to the charge that the present administration is limiting its spying to those suspected terrorists...)

Posted by: Curtis Gale Weeks | Sunday, January 22, 2006

er, that is, "is not limiting" ....

Posted by: Curtis Gale Weeks | Sunday, January 22, 2006


I grant the point on architecture. However, I feel about Ashcroft and the statue the same way I feel about Clinton coming to work in casual dress. They should work in an environment that bests suites them, if they can do the job.


I'm not sure what electoral sympathy for a widow proves, except that such sympathy combined with extended deadlines for heavily democratic precints can form a narrow majority.

You are right that DOJ is handling the Google case badly, but people recognize the difference between police work and national security. National security increases their security, while police work often decreases it. As long as the DOJ doesn't do something absolutely idiotic, such as warrantless wiretaps for IRS investigations, the distinction will remain safe.

Indeed, it's been the great hope of Democrats (such as former Senator Tom Daschle and former Senator Max Cleland) that Americans will lose the distinction between security and domestic politics. Such wishes have been in vain.

Appeals for the President to "show" his justification in any detailed sense is unreasonable -- as Cringley wrote, "Even if the proper research is conducted and answers obtained, they won't be shared with you or me." Alternatively, if you want general explanations, the President have provided them. Alternatively, check out Barnett's

Certainly the GWOT Joint Congressional Resolution, the past few decades of wiretaps, etc, create an interesting quilt of precedents on which one can quibble with legalisms. The refrain of "overstepping Constitutional authority" sounds like the "legalistic anti-Bushism wrapped up in a Constitution dress" I mentioned. If the largest opposition party wishes to implode by ignoring the war and instead concentrate on peace-time processes, too bad. A healthy, constructive opposition party would have been a good thing.

Certainly the PrisonPlanet website is what's considered "paranoid" in normal conversation. Democrats . com is probably closer to "fellow traveler" (as are elements of the Kos readership [2], for that matter). I don't see how accusing Bush of paranoia is constructive. War-focused, perhaps...

[1] http://www.thomaspmbarnett.com/weblog/archives2/002780.html
[2] http://www.dailykos.com/poll/1137742415_nANToluZ

Posted by: Dan tdaxp | Sunday, January 22, 2006