ECHELON!?!!

Dean over at Dean’s World suggests that the great huff in the US about warrantless wiretaps is actually about Project ECHELON.

TM Lutas says it very well: Essentially, what the executive order did was change the rules for which intercepted conversations were subject to human scrutiny. It’s absurd to think that already intercepted conversations cannot be listened to by agents of the executive absent a warrant. What is going on is not a new search but rather analysis of an already ongoing search, a search that’s been continually conducted in the world for decades. So if this search was OK during the Clinton administration (ECHELON far predates it) during peacetime, the exigencies of wartime mean we should blind our existing eyes? What kind of nonsense is this?
Dean’s World

What Lutas is suggesting is that the net move by Bush consisted of saying that human agents rather than machines could listen to the intecepts which were being made in any event. Trivial hardly begins to describe the distinction.

Written by jay on December 20th, 2005 with 15 comments.
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Get your own gravatar by visiting gravatar.com Alan
#1. December 20th, 2005, at 6:35 PM.

The distinction is that what Bush is doing is likely a felony as it is barred by statute and the constitution. I listened to a very interested in phone-in on WBZ Boston with a constitutional law professor Pyle or Pile from Mount Holyoke last evening who was very blunt about it. Apparently Truman in 1950 tried the same thing and was stomped by the Supremes. Further, the 1978 law in question was created to deal with Soviet agents in a battle involving thermo-nuclear weapons, a far more dangerous time than now. It is irrelevant that technology allows the spies to do more - that is nothing but Cory Doctorow yappetry over taking the artisitic works of others despite copyright law. The law prohibits use of processes other than the one set out in the law but that is exactly what the administration has done.
Why no prosecution? The Republican Congress would have to appoint a special prosecutor. Like the Canadian conservatives have recognized, it is time for an independent body to be created over government crime.

Get your own gravatar by visiting gravatar.com Flea
#2. December 20th, 2005, at 6:50 PM.

It is my impression, and I may be overly cynical here, that Echelon largely works because Anglosphere countries can do the spying on each other that each government is barred from doing on its own citizens. So, Canada’s CSEC intercepts foreign communications in the US while the NSA would do the same in return for its neighbour to the north. If I am correct in my cynicism; the difference between the Clinton and Bush administrations is the current one is engaged in warrantless searches of domestic intercepts. This would appear to be illegal.

Not that I understand why the Americans are so particular about their spying/law enforcement distinction. In the UK, MI5 regularly spies on British citizens at home. They do make use of a warrant to do so but these warrants are not issued by a court but by the Home Secretary. The equivalent would be the US Secretary of the Interior or some such rather than having the President himself authorize the job. And yet strangely there are no protests in the streets at the thought.

Get your own gravatar by visiting gravatar.com Alan
#3. December 20th, 2005, at 7:37 PM.

As full disclosure, I was the most intercepted person in Central Nova Scotia in the late 70s according to an RCMP officer in Dad’s church. I regularly got mail delivered in clear plastic bags due to my interest in shortwave radio schedules from beyond the Iron Curtain.

Get your own gravatar by visiting gravatar.com jay
#4. December 20th, 2005, at 11:49 PM.

ECHELON has been around for donkey’s ages. You don’t even have to be a spy buff to know that the various agencies including the RCMP Security Service (when it was not monitoring Alan’s very doubtful ham activities or burning down barns) and its successor, CSIS (when not losing/destroying evidence in terror cases) have made full use of it.

If, as Lutas suggests, Bush’s Order was to allow human agents to listen to or view raw product in the wake of an attack on the United States and in an attempt to prevent further such attacks it is not a felony: it is a postive duty of a wartime president.

Flea, you say, “the difference between the Clinton and Bush administrations is the current one is engaged in warrantless searches of domestic intercepts.” Er, no, the principle difference is that the continental United States was attacked during the Bush administration.

Again, I think it was more than a little dumb for the Bushies not to have their day in secret court on each of these intercepts; but if Lutas is right the dumbness lead to very little actual harm to the civil rights of anyone and that harm needs to be weighed against the threat and the apprehension of that threat post 9/11.

Get your own gravatar by visiting gravatar.com keving
#5. December 21st, 2005, at 12:15 AM.

Wheeee! It’s just like sledding, but with civil liberties, what fun.

Get your own gravatar by visiting gravatar.com Alan
#6. December 21st, 2005, at 12:28 AM.

The state of war does not change this legally, Jay. And even if it does morally how come it did not in the Cold War when the risk was massively.

Get your own gravatar by visiting gravatar.com Alan
#7. December 21st, 2005, at 1:15 AM.

…(waiting for my last word up there, aren’t you)…

greater.

Get your own gravatar by visiting gravatar.com Alan
#8. December 21st, 2005, at 1:23 AM.

Does it help or confuse to add these two links as well?

http://gayorbit.net/?p=3866

http://www.boingboing.net/2005/12/19/big_controversy_over.html

Isn’t there also a cumulative effect that is going to assist in the backlash sooner or later? Or is it all “fog of war”?

[Note: asking and not accusing]

Get your own gravatar by visiting gravatar.com jay
#9. December 21st, 2005, at 3:10 AM.

Alan, we might disagree as to the size of the threat: the Russians, after all, had a pretty clear grasp of what would happen to them in the event Seattle was turned to glass and it did not involve 72 virgins (or raisins).

Having read through a number of the legal blogs in the States I would say Bush was on shakey legal ground. However, when it comes to a technical violation of FISA versus the war powers of the POTUS with a Congressional resolution backing him up and briefings to the oversight committees, I am not at all sure a judge would rule this a felony. Prima facie it almost certainly is; the question is whether the inherent power of the President in time of war will save him.

Slippery slopes indeed Kevin. Icy in places. And absolutely sheer if the Bushies were tapping individuals who merely dissented from the bush policy rather than were actively engaged in war against the United States. I’d be the first to push Bush off that particular cliff. But I can’t get very excited by ECHELON intercepts being read by American agents rather than American computers or Canadian or British agents. Sorry, I just can’t.

Get your own gravatar by visiting gravatar.com jay
#10. December 21st, 2005, at 8:16 AM.

Excellent summary post up at Protein Wisdom…

Money quote, “the divisions we’re seeing in the debate over executive authority to authorize domestic surveillance is a function not merely of politics, but also of the paradigm through which one choses to view the authorization itself. Those who are committed to the civil / criminal paradigm—while in some cases conceding that the President probably has the Constitutional authority to authorize wiretaps —nevertheless seem to believe, with profs Jonathan Turley and Orin Kerr, that it is likely the President has admitted to committing a federal crime (which, to some particularly rabid partisans, rises to the level of an impeachable offense). Those, however, who are committed to the wartime / military paradigm believe, along with AG Gonzales and prof Paul Rothstein, that the President’s actions were both Constitutionally and statutorily permissible , that FISA was (theoretically, at least) inapposite, and that the bipartisan resolution authorizing the use of force against al Qaeda—tantamount to a declaration of war—gives the President the war time powers that allow him to circumvent certain FISA requirements”

I’m guessing I am on the wartime/military page whereas Alan is looking at the question through the civil/criminal lens.

Get your own gravatar by visiting gravatar.com Alan
#11. December 21st, 2005, at 8:30 AM.

Could be but I do question the degree of wartime you have four plus years after an attack. Obviously something is happening but, for me at 42, it is nothing like the Cold War and nuclear fear or the risk we faced from the Soviets - even with MAD. This link takes you to some of my thoughts in the past on the comparison: http://www.genx40.com/archives/2004/october/fearagain.

Get your own gravatar by visiting gravatar.com Flea
#12. December 21st, 2005, at 8:34 PM.

Calling this situation a “war” is useful in so far as it underlines its seriousness. For a “war” as a fact of law simply calling it does not make. Yoda, channelling I am.

Yes, Jay, the United States was attacked on September 11, 2001 but this is not the distinction at issue. The Bush administration chose chose not to seek FISA warrants (with good reason, in my opinion) but neither did it act to change the law regarding the matter these last four years. It chose instead to do its apparently illegal work and hope nobody leaked the news. Now the news it out they are claiming hand-wavey executive authority.

To sum up: I think the FISA provisions are antiquated and should be changed; I think the US distinction in this issue is often so much hand-wringing in comparison with the more robust/arguably less civil liberties minded UK model; and I think the security services were right to use the tools at hand in pursuit of those folks who quite single-mindedly are trying to detonate nuclear devices in the United States (or just as cheerfully in Toronto).

But having said all this there are points of law that are not incidental, primarily that the President should be upholding them. Simply because his actions are sensible and in some sense reasonable does not make them legal or any less impeachable. Not that he will be, of course. The sensible and reasonable part, combined with a Republican Congressional majority, almost certainly outweighs the illegal part.

Certainly, Congress granted the President authority to use force is specific contexts and beyond that the President has broad ranging executive authority. But I would still be grateful if you might explain to me how a President can claim war powers when no declaration of war has been made.

Get your own gravatar by visiting gravatar.com jay
#13. December 23rd, 2005, at 1:13 AM.

Flea, no declaration of war could have been made simply because there is no entity at law against which such a declaration can be made. A declaration of war is, formally, a statement by one soverign that a state of war exists with another soverign. Unless we are willing to concede that OBL and al-Qaeda (and its hundreds of loosely affiliated organizations) is a soverignty - which would be absurd and dangerous in the circumstances - no declaration can issue.

However, an act of war did occur. The obligation of the President is to defend the Republic and, in pursuit of that objective, the President does indeed have far reaching powers.

As I said earlier, I am inclined to think it would have been wiser to, even ex poste, go to secret court for warrants. And I also think the Presidents inherent and informal powers wane as we move further from 9/11. But I don’t think that the formalism of FISA should be allowed to stand in the way of the more critical objective of protecting the United States from a very real threat.

Get your own gravatar by visiting gravatar.com Alan
#14. December 23rd, 2005, at 2:18 AM.

How can an act of war occur when there is no one to have war with? I know this is not really important but it is a conundrum.

I think it is more important (at least for my recreational purposes) to realize there is potential for an honest to goodness “BUSH LIED” moment here: http://www.boingboing.net/2005/12/22/moment_of_presidenti.html. If the world gives out impeachment proceedings for a lie over a BJs it would be nice to see one for a lie over the constitutional need to get warrant.

Get your own gravatar by visiting gravatar.com jay
#15. December 23rd, 2005, at 2:50 AM.

Alan, that is the crux of the dilemma posed by al-Qaeda. (Well that and coming up with an agreed upon spelling.)

The US is faced with an enemy which operates without soverignty. So it is, as a matter of international law, problematic as to how one might declare war - or, more optimistically, conclude a peace.

That said, the only other way of dealing with al-Qaeda would be as an international criminal organization.

However, I wonder if the President’s war powers derive from the Congressional Declaration of War or, in the event of an attack, are inherent in the President’d duty to defend the Republic and the Constitution?

Hours of legal fun for our friends down South.

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