There’s No F**king Excuse For This

AP (via TPM):

Last spring, with insurgents apparently holding three American soldiers in Iraq, it took the U.S. government more than nine hours to begin emergency surveillance of some of the kidnappers’ electronic communications.

The bulk of that time was spent on internal legal deliberations by Bush administration lawyers and intelligence officials, according to a timeline from the office of the director of national intelligence. One of the soldiers was later found dead. The other two are still listed as missing.

Read the whole thing.

In talking to veterans and military folks, the image of a bureaucratic, overlawyered war keeps coming forward.

I won’t lay the blame for causing this – entirely – at the feet of the Bush Administration. But I will say that it’s up to them to fix it.

65 thoughts on “There’s No F**king Excuse For This”

  1. A.L., Okay, so I am denser than the average person. I need help on this one. Since when does the AG need to sign off on surveillance of foreigners in a foreign country? I’m guessing here that the kidnappers where Iraqis and that they were in Iraq. How did the Justice Dept. even get involved? Wouldn’t this have been a purely MI operation? I’m eager to have this explained.

  2. mark, I could tell you, then I would have to kill you. There is a secret FISA court ruling that gets mentioned a lot in these discussions, the limitations it recognized on foreign surveillance are not known. I could only guess at a couple of potential issues: whether any part of the electronic surveillance takes place on U.S. soil and whether the surveillance equipment to be used has predetermined targets.

  3. The problem here starts with the 9/11 Commission and its refusal to recuse Gorelick. She shouldn’t be blamed for 9/11, but her role was key to understanding how these types of laws are executed.

    She developed a policy that maintained a wall between foreign and domestic intelligence that was higher than Congress had mandated. That meant that everytime an issue came close to the wall, the decision would already be made against security concerns. The policy is economical because it doesn’t require resolution of novel and complicated issues. You don’t have hours of bureaucratic infighting.

    This is not to demonize Gorelick. She just needed to be a witness.

  4. Maybe the terrorists used the soldiers to relay messages for the terrorist’s on the terrorist’s cell phones, instantly ending any collection attempts because it involved US persons, in this case the soldiers themselves.

    Hmm, that’s a novel idea isn’t it?

  5. Tollhouse, novel perhaps. But if that were the case who ever was listening in would only discover it AFTER listening BY listening. Right?

  6. As a former Army combat arms officer, I have to ask this question: Why would an Army (or Marine) field commander EVER have to ask for permission to begin electronic surveillance of enemy communications during active combat operations?

    The entire territory of Iraq is a combat zone. NSC, CIA, DIA, and theater-level intelligence should be monitoring all electronic communications as a matter of standard policy. Operational commanders at the corps and division level should have the ability to focus those strategic assets as necessary to supplement their internal electronic intelligence gathering capabilities on critical areas of the battle space. The tactical commanders at the brigade, battalion, and company level need this information as soon as possible to enhance the effectiveness of their troops.

    And it took more than nine hours to get _emergency permission_ to begin electronic surveillance when our soldiers had been captured by a bunch of Islamic militants? What did the attorneys and bureaucrats think the jihadis were going to do with our captured men? Ask them a few polite questions about their names, ranks, and serial numbers, and then invite them to eat Smoars and sing Kumbayah around the camp fire?

    This is as bad as the incident last year in Afghanistan (or early this year?) where over 100 jihadis were observed conducting a funeral ceremony for one of their figthers and a Centcom lawyer denied authorization to attack the jihadis with Predator drones.

    War is not law enforcement. It is also not a boxing match conducted according to the rules of the Marquis of Queensbury. If the Bush Administration does not understand this or if it is simply unwilling to curb the attorneys and the bureaucrats that restrict our military operations, it is not fit to lead our nation at war.

    _”Speed, mobility, and utter ruthlessness are the keys to victory. All else is subordinate.”_

    _General Thomas J. “Stonewall” Jackson_

  7. My experience in crypto collection in the military, was that once we identified one of the parties as a US person, we had to dump the collection.

    This was immediately prior to the Clinton admin’s reforms, so maybe they changed it a bit.

  8. _Fifteen minutes later, the OIPR attorney on duty attempted to reach the solicitor general, Paul D. Clement, who in Gonzales’ absence was acting attorney general. Clement had left for the day.

    Nearly two hours later_
    You know, this is as annoying to me as the 5 hour lawyer pause. What, no cell or pager for the acting AG? That’s just great.

    Interesting idea Tollhouse, but this is Justice department collection – which covers foreign agents in the US, not operating outside of it. Once the FISA warrant is granted, it can cover citizens if they come into contact with the target – even if they are being used as a relay.
    It was more likely collecting phone data processed through relays here, and they were looking to extend it to something more. I wonder where Iraq’s IXP is located – probably Egypt, but there’s a lot of traffic that bounces through peering too.
    These things – data passing through our country – is most likely what they were searching for with the FISA requests.

  9. Sheesh, I’m just failing at tags recently. If someone could, want to make everything between _ Fifteen and later _ italicized? And take care of this as well. GL!

  10. Oddly enough I just managed to catch this from Will the other day and was taken back that a lawyer had to approve or review all air strikes:

    Two and a half minutes. That is how quickly ground troops in Iraq can receive requested close air support from “the iron over head.” The request might pass from a ground unit to a forward air controller, to an intelligence analyst, to someone who does risk assessment (should air power be used against a sniper? A building? A city block?), to a combat lawyer who advises the commander if the risk is consistent with the rules of engagement and the laws of war. Based on that advice, the particular munition or angle of attack axis might be changed.

    I would have thought that the law enforcement view of prosecuting a war would have been left with the Clinton administration, it appears that it carried over with Bush as well. I can fully understand doing a little recon of a target before unleashing the hounds, but 5 hours is insane.

  11. WHY did it require a warrant application?

    Because a FISA court ruled that if ANY communication goes through a US wire (which in this case, it did) a warrant is required. Even if the targets are terrorists in Iraq holding US soldiers captive.

    ALL Dem candidates have rejected any measures to change this. Furthermore, they were asked the ticking-bomb question in the debate moderated by Russert. To a man and woman, including Hillary, they rejected ANY means of coercion and would sacrifice cities. Interestingly, Bill Clinton (who Russert quoted but not by name until later) took the opposite tack: he’d authorize anything.

    What we have is a fundamental abdication of responsibility and handing over decisions to a “process” in CYA. Using lawyers and “process” to evade responsibility. Furthermore intrusion of lawfare degrades the ability of the US to fight a war (intentionally) and as a side effect invites contempt for the law by applying it to places it cannot work: combat operations.

    This is *not* a Bush Admin problem. It is Congress and the allies in the Courts (liberal judges) and the Press (conducting witchhunts). The President is weak. He has no ability to fight for increased authority.

    Democrats are not stupid. They got *EXACTLY* what they wanted which was lawfare handcuffs around the military’s ability conduct warfare. This is because Dems are fundamentally hostile to conducting military operations of any kind other than extremely limited air/naval engagements. Protracted military engagements that kill people put their power and influence at risk and Dems love their own power more than their country.

    Cheney and Rumsfeld and others have argued against the FISA restrictions and lawfare approach but the President’s falling approval ratings, a Democratic Congress putting privacy of everyone including terrorists over anything else, the influence of Moveon etc. and the inability of anyone else to argue for less restrictions on the military inevitably results in this kind of thing happening.

    Yes of course you’ll have lawyers approving or disapproving air strikes on the Taliban. Because fail to CYA means Congress and the Press after your hide if the enemy produces a propaganda event. As a practical matter you can’t ask a military officer to risk his career in fighting the enemy. When Dick Durbin calls the troops “nazis” and John Kerry does the same, when Murtha calls the Haditha Marines war criminals, when the Fallujah Marine faces a courts martial for staying alive (and shooting a wounded jihadi on tape while engaged in house-to-house combat) this is exactly what we get.

  12. I read the other day that the DOD has 10,000 lawyers. Some time ago, I wrote that each fighting platoon would have its own lawyer (Comissar) to pontificate on every move.

    I also read that part of the communication touched the USA and therefore under the Judges or lawyers interpretation of FISA a warrant was required.

    During the recent FISA hearings McConnell (Sp) said that for each warrant his anylists spent 40 hours putting together the packages needed for the judge.

  13. bq. “I won’t lay the blame for causing this – entirely – at the feet of the Bush Administration. But I will say that it’s up to them to fix it.”

    *from AL article above*

    Yes, it may be, but I have always maintained that most in the US and especially the Liberals will get the *vapors* when the fix is applied. Now, who created this mess? Clinton surely did not help when he removed the ability of the covert intelligence community to operate properly. Carter? Most assuredly he gets some of the blame. Reagan may also. Nixon? Anybody back to the last real conflict that we could fight without the US public getting their panties all twisted up – Korea – and it may not even qualify come to think of it. If the US is not willing to fight these wars to a *successful* conclusion maybe we need to come home and just take our punishment.

    bq. “The opposite is true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death.”

    from the RealClearPolitics article linked by AL

    Oh, but then the RCP article makes this quote from the book being reviewed by Jack Goldsmith which pretty much shoots your theory in the hams, at least in my opinion. Bush and our military have had their hands tied by the (*spit*) *lawyers* because of stupid laws.

    I agree with James Jones and Gen. Jackson:

    bq. “Speed, mobility, and utter ruthlessness are the keys to victory. All else is subordinate.” – General Thomas J. “Stonewall” Jackson

    Before I answered this I had to step away from the keyboard so I did not us it as blunt object. AL, on this one, I think you are totally wrong in your conclusion quoted above. *It ain’t Bush’s fault! For once.*

    The Hobo

  14. Armed Liberal – “I won’t lay the blame for causing this – entirely – at the feet of the Bush Administration. But I will say that it’s up to them to fix it.”

    Once more I wish to call attention to George W. Bush’s unindited co-blunderers in the late, unlamented federal Republican legislative majority. They get so much less blame than they deserve.

    It was not George W. Bush’s job to fix a military legal environment poisoned by unsatisfactory legislation, it was theirs, and they failed in this as they failed in so much else.

    I think it will be a real problem for fair-minded historians to look back in fifty years or so and decide if George W. Bush deserves more blame because he had the support of a two-house Republican federal legislative majority, or if he deserves less blame because he really had the non-support of an astonishingly lazy and crooked legislature, one focused on incumbency and pork and not on achieving great things.

    And I think it’s still right to look first to a state’s law-makers to fix an unsatisfactory legal environment.

  15. It seems to me the apolitical solution here would be to arrange that iraqi telephone stuff doesn’t go through the USA and so isn’t bound by those laws. If you can get the lawyers out of it completely you do better than by changing the laws and giving them new laws to argue about.

    Another good approach would be to get the US military out of iraq, and then we can fix the laws at leisure. We made a good start by deciding that we no longer had to fight sunni militias for being sunni militias. Eliminating that strategic blunder made a big difference. If we chose to make peace with the sadrists that would remove similar problems for us. Our most important complaint with them is they say they want US forces to leave iraq. But unless we want a permanent presence there, we don’t have to fight them over that. Tell Sadr we want to accomplish a few things that he generally approves of before we leave and then we’ll go, and that we don’t particularly want to target him or his people, and we might get another big victory like anbar. Assuming he can believe us.

  16. J Thomas, I don’t think you understand the technology at issue. Your comment is not a solution because nothing stops US’s opponents from obtaining a satellite telephone whose service provider is US based.

  17. David Blue, given the ridiculous overwrought outrage about the mild provisions of just the PATRIOT Act, why would you blame the Republican Congress for not adopting a radical revision of FISA? And now that we see the posturing being done by the Democrats over FISA amendments, including Reyes’ ridiculous comments about this very incident, I’m not buying putting the blame on this on the Bush administration.

  18. It’s not clear to me that setting up surveillance of some of the kidnappers electronic communications would have helped the situation either way. Do we even have enough people in place to translate Farsi or otherwise decode the messages quickly enough? Is there a concrete example of such surveillance being used effectively in a war zone in an Arab country? How do you know that one of those “Phony Soliders” wasn’t in charge?

    There seems to be an inordinate amount of faith placed in this enforcement technique by the right wing. You only need to read Robins transparent effort to bring this all back to FISA and make it another political brickbat with which to beat on Democrats to see this. Really makes one wonder whether the concern is genuine, or just a red herring to justify politically motivated surveillance on English speaking opponents, something electronic eavesdropping has proven to be effective in doing. Because it sure don’t look to me like the Right wing cares one bit about either civilian or military citizens beyond their political utility.

  19. #20 from Robin Roberts: “David Blue, given the ridiculous overwrought outrage about the mild provisions of just the PATRIOT Act, why would you blame the Republican Congress for not adopting a radical revision of FISA?”

    Because they were there. It was their job. And it was and is a crisis requiring that people reach deep and do things they wouldn’t ordinarily do.

    Matt Farrell: You know, you probably shouldn’t antagonise them, seeing as they have these loaded guns.
    Lucy McClane: Why don’t you try to dig a little deeper and find a bigger set of balls, because you’re going to need them before we’re through.
    Die Hard 4.0 (2007)

    #20 from Robin Roberts: “And now that we see the posturing being done by the Democrats over FISA amendments, including Reyes’ ridiculous comments about this very incident, I’m not buying putting the blame on this on the Bush administration.”

    I’m not putting the main blame for this on the Bush administration, that is the executive, either. I blame the legislature.

    Currently that’s the federal Democratic legislature, which is also corrupt, irresponsible and inept, and is also likely to qualify as “the late, unlamented” in future. But no matter how bad they are, this is their job.

    I just think complaints should be addressed to the correct branch of government.

  20. Let’s accept your point for the moment, David. After allocating some responsibility to those who did not press the point about ending these impractical restrictions, there must be some blame for those who demogoged it to death.

  21. #23 from Robin Roberts: “Let’s accept your point for the moment, David. After allocating some responsibility to those who did not press the point about ending these impractical restrictions, there must be some blame for those who demogoged it to death.”

    Truck loads. Train loads. Bulk shipping. On this and on many other issues.

  22. No apologies are needed. We all misunderstand each other frequently, especially on the Internet.

    It’s another reason the slur of “transparent” bad motives behind what somebody is saying is, by default, weak. A lot of the time, even with intelligent people on both sides trying to be clear and to read attentively, you don’t even know what the other person was saying or meant to say, much less why they “really” said it.

  23. Someone grab the smelling salts.

    Here’s Robins idea of “substantive”:

    bq. “Contrast this with all the hyperventilating done about the amendments to FISA recently…”

    bq. “…ridiculous overwrought outrage about the mild provisions of just the PATRIOT Act…”

    bq. “…posturing being done by the Democrats over FISA amendments…..”

    That about sums up her contribution to the thread.

    Another Rightwinger running from their own slanderous and shallow comments and trying to shift the attention toward their opponents. This tactic is amusing, glad I’ve provided the opportunity for it be seen in all it’s glory.

  24. Alan, you are projecting again. I run from nothing I’ve written here. As For “slanderous”:

    “You only need to read Robins transparent effort to bring this all back to FISA and make it another political brickbat with which to beat on Democrats to see this. Really makes one wonder whether the concern is genuine, or just a red herring to justify politically motivated surveillance on English speaking opponents, something electronic eavesdropping has proven to be effective in doing.”

    The reason that this incident happened, Alan, is because despite your slanders, the NSA actually considers the legal boundaries under which they operate very important. That’s because the NSA is now and has long been a very professional bunch. People who have actually worked with them know this. Those in Congressional select intelligence committees know this, which is why Rep. Jane Harmon, as an example, was actually quite sane on these important matters before Speaker Pelosi started undercutting her.

    It is silly comments like yours, claiming without any basis other than fantasy that the motivation for wanting to alter FISA to more clearly spell out that foreign targets of electronic interception are not required to be the subject of an individual FISA warrant process is really some secret Republican desire to eavesdrop on political opponents in Daily Kos conventions. Far from rebutting my point, you exemplify it.

  25. You might want to characterize my comments as “silly” Robin, but in doing so you are willfully closing your eyes and ears to a very real concern, not just from me, but from a substantial proportion of the US public at large, about how the current administration goes about its business.

    And of course you have done nothing to dissuade this concern (or to even try). Your responses give the impression that you believe that the way our Democracy is structured is silly, or that the concerns of taxpaying citizens like myself should be swept under the rug or hidden from view by my government. MY government. Which has very likely been operating illegal eavesdropping on US citizens for years despite the laws that are already in place to prevent this. Don’t get me wrong, I also am angry with the Democrats, but not in the same way Rightwingers like yourself are. I’m upset because they are not doing enough to take the matches away from the pyromaniacs that have been running the government for years.

  26. I don’t doubt the professionalism of the NSA, but it is also criminal for them to participate in a surveillance *under color of law* later determined to have been illegal.

    There’s a job I don’t want.

  27. Alan, your comment has inflammatory rhetoric ( often literally “…to take the matches away from the pyromaniacs that have been running the government for years…” ) but is based on demogoging the issue and nothing factual. You make allusions to bad faith eavesdropping but have no basis for it. As I mentioned, the NSA has worked for decades to maintain its reputation with Republicans and Democrats alike, Democrats have for decades been a part of the select intelligence committee oversight of the NSA and the associated intel community and there simply is no basis for your insinuations of bad faith. Frankly the only political eavesdropping we know of in recent years, had Republicans as a target and involved Rep Jim McDermott.

    You are still exemplifying my point perfectly.

  28. Alan —

    No one takes Democrats seriously on privacy because they have no real interest in it: Google hands over Chinese democracy activists to the Chinese gulag and there are no consequences. As there are no consequences for Google, Visa, or Microsoft taking personal data and selling it or using it in whatever manner they choose.

    Meanwhile real issues of preventing murderous, and potentially mass-casualty terror attacks, through the only means possible, i.e. electronic surveillance, is kept off the table through over-lawyering and legalistic restrictions of the President to intercept communications of terrorists intent on killing us.

    This is not a constitutional question, it is a political question.

    Very well, Democrats deserve AND WILL GET the blame for not stopping the next mass casualty terror attack up to and including the nuking of an American city.

    Democrats have made their position clear: they will sacrifice the ability to intercept terrorist communications to maintain the privacy of all people (including those of terrorists abroad) over protecting lives.

    While of course caring nothing about private sector privacy violations from politically correct anti-American companies that donate money to Democrats.

    Democrats can’t take this back. They’ve set in stone their political judgment that they care more about privacy than saving American lives. If say another plane is rammed into a building, or a stadium, Democrats WILL get the blame for not stopping it.

    And NO ONE will listen to ANY restrictions on the ability of the government to intercept communications. This is the bet Democrats placed and they have to live with ALL the consequences.

  29. _Democrats deserve AND WILL GET the blame for not stopping the next mass casualty terror attack up to and including the nuking of an American city._

    You’ve got to be joking. Until this year we had a Republican president and a republican congress. They ignored democrats except to heap scorn on them. They did whatever they wanted. Bush has repeatedly done “signing statements” where he claims he has the right to ignore any parts of congressional bills he doesn’t like.

    And now you say if after getting a completely free hand, every Bush failure will get blamed on democrats? Ha ha.

  30. J Thomas, you are exaggerating again. The Bush administration did not ignore Democrats before they had a majority. Indeed, on many issues the Bush administration attempted bipartisan efforts and won the cooperation of Democrats. Examples such as the PATRIOT Act, the Iraq war authorization, as well as education bills, immigration bills etc. saw the Bush administration reach out for bipartisanship.

    The issue of signing statements seems to especially confuse you. The Bush administration did not invent signing statements and does not claim the “right” to ignore any parts of bills it does not like. What the Bush administration claims, as have previous administrations, is that congressional bills that exceed the Constitutional powers of Congress will not be enforced to that extent.

  31. Isn’t there a 72-hour grace period where surveillance can be conducted while the paperwork is in process?

    Who knows why the Administration screwed up (ask New Orleans) but once they did, it’s surprising they didn’t also blame the Demcorats’ failure to privatize Social Security.

  32. Robin, although I can’t say that you’ve shown yourself to be anything but a tenacious partisan, and therefore see no reason to waste energy trying to rebut the multilayered argument you’ve constructed using nothing buy tired and discredited talking points, I can at least acknowledge that you’re amusing (although not quite to the degree as Jim Rockford) in your self-righteousness. Thanks for the chuckle.

  33. Alan, I’m amused to see you use partisan as a slur; I genuinely think there are interesting issues here and wish you’d been willing to go past the tired ‘right wing=bad’ points you’ve laid out.

    A.L.

  34. I think the outrage on this is rather overdone.

    Let’s be realistic. The law is a rough instrument, and there will always be exceptions where the rules don’t work as we would like (unless you support the extremes: unlimited intelligence gathering everywhere or no intelligence gathering anywhere).

    So, if we are in support of a policy that imposes some limits on intelligence gathering, we also have to accept that on occasion, people will suffer for lack of intelligence gathered *and* people will suffer unacceptable privacy violations.

    One can certainly argue that we need to swing the law towards greater freedom in intelligence gathering, but if you are being intellectually honest, you must then acknowledge that there will be more cases in which there will unacceptable violation of privacy (unless you are at the extreme end of trading any liberty for security).

    War is not law enforcement. It is also not a boxing match conducted according to the rules of the Marquis of Queensbury. If the Bush Administration does not understand this or if it is simply unwilling to curb the attorneys and the bureaucrats that restrict our military operations, it is not fit to lead our nation at war.

    Ah, there’s the rub. I strongly suspect if the administration *did* treat this as a war, the administration would have lost all support (and the last election). Outside of a small hardcore group (well represented here), support for the war is contingent on it not having any major repercussions on the “real world”.

    Removal of attorneys and bureaucrats (obstructions to successful prosecution of the war) *will* result in removal of obstacles that prevent corruption and loss of rights. In a war of survival, people are willing to make that trade-off. In this war… not so much.

    Democrats have made their position clear: they will sacrifice the ability to intercept terrorist communications to maintain the privacy of all people (including those of terrorists abroad) over protecting lives.

    As for blaming the Republicans or Democrats, it seems pointless. There is general wide-spread support for the protection of privacy by the polity, and yes, that means that lives may be endangered. There’s an apparently acceptable trade-off there that is likely to remain until Americans feel their very survival is threatened.

    Of course, if something bad happens, people may find a scape-goat in either party, but let’s get real. The government is essentially giving the people what they want, which is a trade-off weighted towards privacy.

  35. #42 from Tom West:

    “Outside of a small hardcore group (well represented here), support for the war is contingent on it not having any major repercussions on the “real world”.”

    On of the main reasons I call George W. Bush a co-blunderer with the principal politicians who made up the late, unlamented federal Republican legislative majority is that he did everything to set that expectation, that condition, that contingency, himself.

    From his inadequate first speech after the events of 11 September, 2001 onward, George W. Bush did what he could to change and soften the will of an angry nation, to demobilize those mobilized by events and a warlike will, to send everybody back shopping, to get the populace to leave it to the professionals.

    Well, the professionals can’t handle it, and they never could.

    Without mind, the body is but a log, and without will, a powerful military machine is just a neutral resource that can be turned to any purpose including serving the interest of outright enemies such as Saudi Arabia. Without a warrior spirit, the tools of war are just dangerous devices for lawyers and perhaps occupational safety professionals to haggle over, and the acts necessary to win at war are criminal violations of the soft routines of peace.

    The army, the principle manager of the chances of war, can’t win without the people, the principle engine of the will and attitudes of war.

    But George W. Bush sent the people shopping, and tacitly created a bargain whereby the people never ask for the results that an aroused people would demand in a real war, like that Saudi Arabia would at minimum be forced to change its ways, pronto, and in return the professionals don’t ask the people what can only really be asked of the aroused populations of nations at war.

    Which has created unfavorable conditions for removing obstacles to real war-fighting.

  36. AJL: _Isn’t there a 72-hour grace period where surveillance can be conducted while the paperwork is in process?_

    The 72 hour emergency surveillance requires the A.G. to first make a determination that an emergency exists and the factual basis for a FISA surveillance warrant exists.

  37. Exactly, PD Shaw, which is what took so long in this incident.

    pacific_water, does your comment actually relate to the thread here? The discussion is about the applicability of the FISA law to surveillance occuring in Iraq of people who took US soldier captive.

  38. What I don’t understand here is why the Bush administration delayed surveillance and risked the lives of US servicemen (all of whom are now dead or presumed dead) — to make this political point.

    It’s outrageous.

  39. *PD Shaw*
    _The 72 hour emergency surveillance requires the A.G. to first make a determination that an emergency exists and the factual basis for a FISA surveillance warrant exists._
    and *Robin*
    _Exactly, PD Shaw, which is what took so long in this incident._

    Actually, it’s not. On May 14th – 2 days and presumably some hours after the solders’ capture – there was a FISA warrant granted(let’s assume phone for the time being). On may 15th, the NSA realized they would need another one (let’s say internet traffic and VoIP) – and for some reason, it got caught up in lawyerese. Unless it was substantially different from the day before, I’d be hard pressed to believe that they AG couldn’t fast track it with the existing Emergency request. Then again, we won’t know for another 20, 30 years when the classified shield drops.

    _to make this political point._
    *J Thomas*, I don’t believe anyone is saying this, and I think it’s improper to do so – at best. You could easily argue that people used it to score points afterwards, but not that this was determined to be used that way throughout. The Bush administration used this as their centerpiece (FTA) in order to shield themselves from their own egregious error – at least in part.

    What we’re doing here is bypassing 1 important point. It is that there should be a near automatic process to begin surveillance when a soldier goes MIA, since even pictures of a crashed plane being sent around could give information. Since we’re fighting an enemy known to use electronic correspondence for their own propaganda – this makes sense to do, especially since the emergency provisions of FISA should allow it.

  40. Dave, I don’t believe that a FISA warrant was issued on May 14th, but on that date the FISA court agreed to amend a standing “order with some bearing on the hostage situation.” “(Timeline)”:http://www.talkingpointsmemo.com/docs/fisa-timeline/?resultpage=3& I suspect this has to do with a secret FISA court ruling pertaining to issues of technology, not the specific leads in this case.

    I agree with your point that “there should be a near automatic process to begin surveillance when a soldier goes MIA.” My first preference would be a theatre of combat exception. Barring that, it would be to remove the A.G. from the equation. The A.G. is not involved in developing the case, is a generalist, not a specialist, and is typically the most political partisan hack in any given administration. As I see it, the arguments for the A.G. making the emergency determination is greater accountability and also because the A.G. is confirmed by Congress.

  41. Dave, suppose that they saw that the soldiers were in danger and they *broke the law*. Suppose they did surveillance to save the soldiers and for no other purpose, and saved information that might save the soldiers and no other information, and they got their permission later. They turn themselves in for doing it. Do they get prosecuted? Do they get a demerit in their public files? Do they get a scolding from their superiors? Should they care?

    If the Bush administration has created a climate of fear in the NSA, so that they are hidebound by stupid rules when they know lives are immediately at stake, whose responsibility is that? And then they *use* it, intending to get permission to do whatever they want because otherwise they won’t do what needs to be done….

  42. J Thomas, you can’t seriously suggest that it is the fault of the Bush administration that the NSA will not break the law in this situation. You can’t say that and expect to be treated seriously given the history of frothing seething among Democrats about this issue. Neither can you seriously suggest that the Bush administration went through the bureaucratic steps to satisfy the requirements of FISA as the FISA court has been interpreting it solely to make a political point.

    Your comments are simply not serious attempts to discuss this issue.

  43. #50 from J Thomas: “Dave, suppose that they saw that the soldiers were in danger and they broke the law.”

    Then more soldiers would die in future.

    To the extent that the system works, if does so because everybody plays their part. To go wild in a way that invited or effectively demanded further supervision and rigid control would make things worse.

    The solution for an over-lawyered war is for everybody to support better laws, and for the law-makers to make them.

  44. Responsibility for this falls heavily on the federal legislature, and on those who in the past have demagogued to death efforts to un-lawyer war-making.

  45. Robin, who would you blame it on?

    If the NSA bent this law to directly save the lives of US servicemen — not maybe/somehow make it more likely that they avoid a future ambush or something, but find men who are captured by terrorists — can you imagine the Democrats gaining anything by objecting?

    But no, these are people sitting in comfortable offices who won’t risk their jobs or their pensions to save lives. Why not? Has the Bush administration made them that fearful? “I don’t care whether it’s a ticking nuke in NYC, if you get caught breaking FISA it’s 30 years hard labor and no pardon for you, buckyboy!” Or were they just chickenshots to begin with?

    We’re at war, our soldiers have been captured by the headchoppers and they won’t break the law and take the consequences to save them?

    I can see one way it makes more sense. That’s if they had strong reason to think it wouldn’t do any good anyway. So they sat back and let the gears grind slow while they did other work that had a higher priority, that might actually do some good. And then Bush’s PR boys have been telling the story ever since, The NSA can’t do their job because they have to get approval! You *just have* to let them bug anybody they want to without any supervision, or our brave soldiers will be killed!

    But from there it’s only a small step to making up the story from scratch and faking the records.

  46. J Thomas, your comments on this are really baffling. I am afraid that I doubt you are taking this at all seriously. You’ve missed the many times that the idea that bending or breaking a law would save lives has been dismissed by the administration’s political opponents and the administration attacked for suggesting even modest modifications to the laws.

    And yet, you actually write here that it is your belief that the administration should have just ignored or broken the law ( or in this case, the tortured definitions that the FISA court has been imposing on the administration and past administrations ).

    Nope, can’t see that you are taking this seriously at all.

  47. Robin, I have all along suggested this approach for torture. If the man on the spot thinks he absolutely needs to torture somebody, he should go ahead and do it to get his results, and then turn himself in. If he can make a good case that it was justified this time, then he has a good chance of escaping punishment. If he does get punished then still it’s his responsibility to do it and get punished. In wartime, doesn’t it make sense to take that chance for your buddies? They’re out there taking a chance of getting killed or maimed, doing the mission. If this particular torture is truly worth doing, shouldn’t you take a chance of a 20 year prison term and do it?

    If it’s a ticking bomb situation, how could it be otherwise? “They’re going to blow up NYC unless I torture this terrorist, but I won’t do it because it’s against the law. I could be punished for it. No, NYC will just have to get nuked.”

    Same thing with eavesdropping but more so, since you aren’t actually torturing anybody. If it’s a clearcut case, it needs to be done, do it and take whatever consequences come. It’s the patriotic thing to do. Like being in combat and taking the chance of getting shot, except you won’t get shot.

    And if it isn’t ka clearcut case and you do it, we can have a trial and hash out the details of how important it has to be, and that will likely result in a better law.

    In wartime very often we’re tempted to try the chicken soup approach. (The chicken soup approach: A hit-and-run car hits a pedestrian. The man is moaning on the ground. The police have come and the paramedics are on the way. A woman rushes up and starts spooning something into the man’s mouth. The policeman says, “Lady, what the hell are you doing?” “I’m giving him chicken soup.” “He has a broken leg!” “It can’t _hurt_.”) Let’s drop cluster bombs on these civilians. Let’s drop leaflets telling them their leader is a pottyhead. Let’s drop thousands of hibernating bats with tiny firebombs strapped to them to start random fires. It can’t _hurt_ the war effort.

    That’s a slippery slope, and at the bottom it turns into “Unless you give me everything I want I will kill this kitten.”

    We have no particular reason to think that listening in on ten thousand random phone conversations in iraq would have helped those soldiers. There is no particular reason to think we *didn’* listen in just in case, and it didn’t help. Making a big fuss about it now gets several results. It helps stir up more froth among the remaining dittoheads, and it helps pressure Democrats to support unlimited surveillance, and possibly some iraqi insurgents will believe that we’ll miss their phone calls and use the phone when they shouldn’t.

    But it’s silly to take the argument at face value. This is propaganda, likely black propaganda. Told by liars. Why would you believe it?

  48. #56 from Robin Roberts: “Notice that I was good …” (etc.)

    Let the record show … (etc.)

    This conversation has ground its way to a halt.

  49. Even as a liberal, I have no problem listening in to all electronic messages in a “war zone”, as long as that information is used strictly for protection of american troops. If this is within a civilian population, as in Baghdad, there also should be a regulating group that oversees this infomation AFTER if is received, just to make sure we’re not using the information for pollitical gain (ie feeding information to a favorable politician).

    if there is a problem here, the Bush administration needs to come forward and address these issues with the legistlative body. The problem is, nobody knows what the laws are anymore. Legal experts can’t even agree on what the last wiretapping law “changed”:http://www.slate.com/id/2172952/entry/2172953/ , because they have no idea how the original laws are currently enforced, or how new technology applies to or negates those laws. Furthermore, this administration has saught to evade the few laws that are understood under “emergency” statutes. If there truly was an emergency, that this makes sense.

    However, the real problem is: No one understands the laws anymore. How can we clarify laws when we don’t even know what they are in the first place?

    So really, the legistlature and the Bush administration are to blame for these problems. You know how the Bush administration could help? By opening up their files to the legislature and starting an honest discussion about what is needed to move forward.

  50. If no one understands the laws, its because they have been written in such a fashion as to be intentionally ambiguous and difficult to interpret. Furthermore, the courts have taken it upon themselves to move far past ‘interpreting’ the law and in many instances into rewriting it themselves.

    What boggles my mind, is how does US law even apply in a war zone when it comes to electronic surveillance and counterinsurgency work. By todays standards, the cracking the enigma machine and intercepting Japanese communications prior to Midway would have been illegal.

  51. _By todays standards, the cracking the enigma machine and intercepting Japanese communications prior to Midway would have been illegal._

    I strongly doubt that.

  52. _What boggles my mind, is how does US law even apply in a war zone when it comes to electronic surveillance and counterinsurgency work_
    Well, that goes back into “data stored/transmitted through the US”, such as phone and internet information. Go check out the permanent back doors that are wanted into things like Gmail, YahooMail – “which may have already been given”:http://blog.wired.com/27bstroke6/2007/10/iraqi-spy-warra.html

    _By todays standards, the cracking the enigma machine and intercepting Japanese communications prior to Midway would have been illegal._
    _I strongly doubt that._
    Seconded – there used to be a hole in this for if was “Japanese communication using American nationals”, but that was fixed 10, 15 years ago I believe – and even then, if the NSA found this sort of thing out, they kicked it over to the UK to do it for us (spy on our own citizens) if it is important enough.
    The Patriot Act and FISA reforms ‘fixed’ it more.

  53. I’m going to have to search my library to recall where I saw it, but I have seen at least one historical reference to a statute that made the US military’s interception of Japanese diplomatic messages prior to the outbreak of WWII illegal.

  54. David Kahn’s book The Codebreakers mentions that the interception of Japanese diplomatic traffic was considered illegal under the FCC Act of 1934 but that Gen. George Marshall overrode that concern.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>