Say Anything Blog

In October of last year I wrote about the inadequacies of lawfare in the current war against mohammedean war criminals. The wisdom of this approach has not improved in the intervening four months. While things have noticably improved on the ground in both Iraq and Afghanistan, various and sundry lawyers continue to make the courts a more friendly place for terrorists.

Lets start by reviewing a few basics before we catch up on current events.

War and Foreign Policy (to include the drafting, signing, and enforcement of treaties) are the responsibility of the Executive branch of our government. The House of Representatives role is limited to the declaration of, and funding of, war. The Senate’s role is limited to ratification of treaties signed by the President in order for them to have the force of law. The collection of Foreign Intelligence is not directly addressed by the Constitution, but has been treated as an executive function since the founding of our Republic.

The collection and analysis of Foreign Intelligence remained an Executive branch activity with minimal Congressional and Court interference for the next 195¹ years.

The aftermath of the Watergate scandal put an end to that in 1978, when FISA was adopted into law by Congressional override of President Ford’s veto. As adopted “It allowed warrantless surveillance within the United States for up to one year unless the ‘surveillance will acquire the contents of any communication to which a United States person is a party’. If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.”²

Communications technology has changed a lot in the intervening decades. In 1978 most long distance communications were analog across copper, dedicated point to point microwave, and sattelite (Earth Station to sattelite to Earth Station) microwave transmissions. Today most communications are digitized and packetized. More importantly, most of the world’s digital packetized data (comprising voice and data) passes through networks and network equipment located within the United States.

Current Events
When the New York Times published their article on the NSA‘s terrorist surveillance program in December of 2005³ they strongly insinuated that the program was collecting data on United States persons, and gave scant attention to the fact that the program focused on communications where one terminus was a known terrorist or terrorist entity. Nor did the New York Times explain the legal theory under which communications with known enemies of the United States during time of war was a Consititionaly protected Right⁴.
Legal challenges to the program have, to date, failed without exception as no party has been able to demonstrate standing as a party damaged by the program.
FIS Court
Following the furor over the New York Times article on the terrorist surveilance program, the Bush Administration moved to brief the court established under the 1978 FISA act on the program. They also began applying for warrants where one or more parties to a communication were United States Persons. While awkward, this proved manageable, until 2007:

Profiles in Cowardice
by Andrew McCarthy


Human Events02/15/2008



In 2007, a ruling of the court created by the ill-conceived 1978 Foreign Intelligence Surveillance Act (FISA) required the intelligence community to seek court permission before monitoring terrorists operating outside our country—that is, outside the jurisdiction of United States courts.



Let’s say al Qaeda operatives in Iraq captured a U.S. marine. In effect, our military and intelligence services, while desperately trying to rescue one of their own, would now have to seek court permission in order to eavesdrop on the foreign terrorists who carried out the capture—alien enemies who have no conceivable privacy rights under the Fourth Amendment. Such was the conclusion of an unidentified federal judge, in a ruling that radically altered three decades of FISA theory and practice, a ruling the American people have not been permitted to read. (Just imagine the hue and cry if George W. Bush had secretly reversed the foundations of surveillance law. Here, where the sea-change benefits al Qaeda rather than the American people, the silence is deafening.)

One of the fruits of this decision was the loss of a captured soldier:

‘WIRE’ LAW FAILED LOST GI


10-HOUR DELAY AS FEDS SOUGHT TAP TO TRACK JIMENEZ CAPTORS IN IRAQ


By CHARLES HURT, Bureau Chief | New York Post



October 15, 2007—WASHINGTON - U.S. intelligence officials got mired for nearly 10

hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year, The Post has learned.

Contrary to the expressed opinions of several of our local military experts, this delay was not the consequence of administration ncompetence, but of judicial interference with the executive’s war fighting powers. Interference which contributed to the death of Alex Jimenez.

Footnotes



¹ 1783-1978, inlcluding all of America’s wars except the Revolutionary War, the

tail end of the Cold War, and Gulf Wars I & II.


² As ammended, any such communication which either begins or ends with a non United

States Person (i.e. communications not purely between U.S. Persons) is not protected by FISA safeguards.



³ Despite the direct request of President Bush that they not publish.



⁴ Nor has anyone else as of this writing.