What the NSA is doing with warrantless searches

It's long, but I can strongly recommend the transcript of today's press briefing on the NSA warrentless wiretaps. It's rare to see the NSA speak about this topic.

One can read a fair bit between the lines. The reporters were really on the ball here, far more than one usually sees.

Particularly interesting notes include:

  • General Hayden of the NSA describes many reasons why they don't use the FISA court, citing mostly "efficiency"
  • Reporters ask if they are listening for the word "bomb" -- The AG says there is no blanket surveillance
  • The general states that the "physics" of the intercepts require one end be outside the USA

Independently, Senator Rockefeller's letter where he wrote that he felt he needed "technical" advice to understand the issues, and that it reminded him of Poindexter's TIA is very telling.

The efficiency claim is a smokescreen. They would not have taken this level of legal risk, no matter how much they feel what they did was legal, just to gain a little efficiency. It's clear to me that they are telling the truth when they say they could not use the FISA court -- they are performing surveillance that the FISA court would not authorize for them.

The question is, what? The AG says it is not "blanket" but clearly there is some fancy computerized surveillance going on here, something secret, beyond Carnivore. I can readily believe that all sorts of fancy broad surveillance could take place and not be considered "blanket" by the AG. (The AG actually says, "The President has not authorized blanket surveillance of communications here in the United states.") I certainly hope he has not authorized that. But has he authorized it on all communications coming in and out of the USA?

Or something less, like computer search of all E-mails or phone calls to or from entire towns or nations? Perhaps speaker recognition to look for certain people's voices on all international calls, no matter what number they use? Perhaps looking for all arabic calls, and then doing blanket surveillance on them?

So much is possible, and all of this would not be authorized by the FISA court.

They knew they would get in legal trouble, so it's also possible the intercepts, which the General says are on the international cables, are even placed outside the USA, either with or without the permission of foreign governments. (In extremes, they send submarines down to make taps.) Taps outside the USA are not under the rules of the wiretap act, though the 4th amendment still applies to US persons.

Spooky stuff. More to come.

P.S. If you have not been following it, it has now come out that the New York Times sat on this story for over a year, since before the 2004 election, whose outcome might have changed based on this news.


Listening to the debate over an abortion case in the Supreme Court recently, I believe it was Scalia who suggested that in the middle of surgery when the mother's life might be at stake, that a nurse could spare 30 seconds to call a judge who is always on call who would give a yea or nay over the phone to allowing aborting the fetus. The folks against this law sounded slightly flabbergasted, noting that there might be seconds to decide. Scalia was dubious--I mean, he has months to make life and death decisions, right? I started screaming at the radio. Yeah, I want a judge at 2 a.m. who is "always on call" to make a decision that a doctor needs to make.

So it's particularly amusing that Gen. Hayden cites efficiency (not expediency) in the FISA comment. I'd love to see Scalia justify that: "When life and death is on the line, they can't take 30 seconds to make a call to the FISA court!"


The NSA is listening to phone calls made by a suspected terrorist in Dubai. A connection is made and the conversation turns to a specific terrorist act planned for the US. Then, horrors! the listeners realize the other end of the conversation is a US phone number. Are the NSA supposed to stop, turn off the tap and run out to get a court order before continuing to listen? Get real.

They should not be listening on a call to the USA in the first place without a warrant. The warrants are not so hard to get, and in fact they can be gotten retroactively. Ie. tap, then get permission from the court within 72 hours or be ordered to stop tapping and not use the evidence.

However, you are not allowed to use evidence from an illegal tap to get a legal tap, of course.

We could catch more terrorists if we disregard all those annoying civil rights and that's worth it, is that what you're saying?

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