The NSA in action

Excellent story on the NSA's monitoring of communications. It spells out what is known about NSA programs.

WASHINGTON, D.C. -- Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans' privacy, even after the Sept. 11 terrorist attacks.

But the data-sifting effort didn't disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.
(read more at the Wall Street Journal)

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Blumner blue in the face over the NSA

It appears that the pinata of the St. Petersburg Times, Robyn Blumner, would rather die than give up turning the United States Constitution into a suicide pact.

Blumner's latest editorial column finds her in a panic over the claims of former AT&T employee Mark Klein.

In his weekly radio address, Bush said he had ordered the NSA "to intercept the international communications of people with known links to al-Qaida and related terrorist organizations." And he promised that "before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks."

The president was essentially saying that only Americans in overseas communication with known terror suspects would have their privacy invaded.

But as with so much of what Bush says, this does not pass the pants-on-fire test.

Former telecommunications technician Mark Klein worked for more than 22 years for AT&T before retiring. He knows the specifics of Bush's program and witnessed "the NSA's vacuum cleaner surveillance infrastructure." He calls it "a vast, government-sponsored warrantless spying program," and has detailed internal documents to back up his claims.

(St. Petersburg Times)

Blumner apparently makes no effort to distinguish between data-mining and wiretapping, and for that reason her "pants-on-fire" jab at President Bush probably has no legs. The NSA probably uses data mining to figure out when suspects have changed cell phones, as they routinely do to avoid government eavesdropping. Blumner would make it easier for terrorists to do that, if she could, because she doesn't want the government to overhear the time of her manicure appointment (or whatever she does with her time).

In short, the government in part probably uses the data mining to establish the clear links. After that they go after the conversations. The Ninth Circuit (one of the most liberal in the nation) gave it their OK.

Apparently not even a court ruling makes it legal in Blumner's eyes.

McKeown took pains to say that the 9th Circuit had carefully scrutinized the government's assertions.

She said the judges had taken "very seriously our obligation to review the documents with a very careful, indeed a skeptical eye, and not to accept at face value the government's claim or justification of privilege."
(LA Times)

I'd sure like to know the context of Klein's statements. Just to see if they jibe with the way he was quoted by Wired.

Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the internet -- whether that be peoples' e-mail, web surfing or any other data.
(Wired)

And if they're capable of doing it then they are actually doing it.

Right, Ms. Blumner?

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Sixth Circuit Court of Appeals overrules Judge Anna Diggs Taylor's NSA decision

The 2-1 decision by a Sixth District panel found that the plaintiffs did not have standing.

Good decision, though it leaves the NSA program itself without a judicial ruling.

Here's the opinion in .pdf form.

A kinder view of the NSA decision

While researching a reply to Barnum's Baileywick, I ran across a University of Chicago Law School faculty member who more-or-less heaps praise on the decision of Judge Anna Diggs Taylor.
Geof Stone wrote:

Regular readers of the University of Chicago Law School Faculty Blog will not be surprised to learn that I applaud Judge Anna Diggs Taylor's August 17 decision declaring President Bush's NSA surveillance program unlawful. Judge Taylor ruled that the President's secret directive to the NSA to engage in warrantless electronic surveillance of telephone calls and emails involving American citizens on American soil violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution. On several occasions, I have posted entries on this site arguing for those conclusions (read more)

The first three comments (there are only three thus far) lay emphasis on the lack of solid reasoning in Judge Taylor's opinion.

Hugh Hewitt has noted that no Democratic Party leader has criticized the decision.
See Hewitt's blog post, Any Vote For Any Democrat Is A Vote Against Victory And A Vote For Vulnerability.

It's early. Maybe some prominent Democrats will speak out against the decision.

One interesting trend (which came up during a segment of Hewitt's radio show featuring Fred Barnes and Mort Kondracke) is that Democrats are applauding the decision while also saying that they support the wiretaps--it's just that they think the way Bush did the wiretaps is illegal. This reasoning seems to implicitly concede the administration's argument that surveillance of enemy forces is an inherent aspect of war powers. These few Democrats are saying that it is a great idea to proceed with a program like that of the NSA. Unfortunately, they forgot to specify that when granting Bush war powers to oppose terrorism, and Bush is presumed not to possess such powers unless the Congress gives a specific OK.

Washington Post slams NSA decision by Judge Taylor

Hat tip to Power Line.

THE NATION would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Administration's program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful or scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work--that is, as a guide to what the law requires and how it either restrains or permits the NSA's program--her opinion will not be helpful.
(read the rest)

Judge Taylor was a Carter appointee, for what it's worth.

Federal judge rules NSA program unconstitutional

John Hinderaker at Power Line suggests that Judge Anna Diggs Taylor ignored precedent in reaching her decision, and notes the weakness in the federal court system that allowed the ACLU to shop around in order to increase the chance for a sympathetic judge.

Hinderaker also notes that Judge Taylor was in on the judge-shopping scandal concerning the racial preferences issue at the University of Michigan.

Finally, Hinderaker says that it's likely that Judge Taylor will be reversed by a higher court--one that pays attention to precedent.

Power Line is one of the best blogs for these types of stories, since it's a group blog by lawyers.
The text of the decision is here (.pdf).