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Saturday, February 16, 2008

Do You Feel as Safe?

Nancy Pelosi say's that as of 12:00 this morning you were just as safe as you were at 11:59pm last night (Eastern Standard Time). However, that one minute was a big one. In that minute most of the intelligence collections folks in the US lost a lot of leeway in how they collect intelligence.

As I wrote last Monday, some Democrats, namingly Speaker Pelosi are more interested in protecting lawyers and terrorists than they are you. Evidently those Democrats are in the House, since the Senate passed a terrorist surveillence bill by a veto proof majority (68-29) earlier in the week, and sent it to the House. The Speaker refused to allow it to come to the floor, for a vote though. Maybe she's worried about being embarrassed by the outcome, which according to a number of Congressmen would have been along the same lines as the Senate vote.
The big sticking point for Pelosi, as I stated Monday, is the idea of retroactive immunity for the telcom companies, who in good faith provided information to the government before the current law was enacted. Pelosi wants the Senate bill stripped of both retroactive immunity, and future immunity. In other words, if your phone number showed up in a possible terrorist phone list, or as someone they might have contacted, you could sue to ask for proof there was no malice. The normal standard is the other way around, you sue to prove there was.

For those who think that the whole wire tap program was illegal to begin with, I'd say go back to my June 2006 post on the same subject, and look up the American Law Review article I referenced, and 2nd Circuit's 1984 decision in United States v. Duggan (which the FISA Court weighed in on). Both the decision and the Law Review article were written long before the Bush program went into effect.

The current law, which has expired, allowed for existing operations to continue for 1 year from it's being signed. However, no new surveillence can begin without warrants, (again, in direct contridiction to Dugan) and because of some 40 current lawsuits, it's not clear that the telecom industry would cooperate even if there was a warrant but not a court order to do so.

So, how does this cause a problem in practical terms? Supposed that Terrorist A is caught in the US, and his piece of crap disposable cell phone is taken away. In his notes are a list of half a dozen other numbers, all from outside the US. During interrogation he lets slip that a call from number 4 on that list is the "activation number", and his cell is supposed to go to work.

Currently, because that number is outside the US, intel agencies would begin monitoring it, and through cooperation with the telecoms, be told when it sends a call to the US and where it's going. Now, though, before you did that you'd go to FISA, with the attendant 100 or so pages of documents that have to be put together, brief a judge, and hope he or she says yes immediately. If they don't, you wait until Monday, or the next available date for a hearing before the panel, and outline the case, again.

So, if FISA say's yes, then you go to each of the major telecoms and ask for them to route all traffic from said number to the intel folks, so they can monitor it. But the telecoms may balk. What if it's an innocent number? What if your terrorist told you number 4 on his list and it's actually 6? Wait, we could be sued for giving you the names of the people they are calling, so please bring a court order in for the information, not just a warrant saying you can listen.

Unlike Law and Order, these things don't happen in 44 minutes plus commercials, you're talking about DAYS for each warrant and court order. Possibly longer if the phone companies decided they want to argue against the idea, in hopes that the Justice Department, or someone, will offer them an immunity deal (on a case by case basis) if they do cooperate.

Sorry, that's not the system I want to deal with when phone number 4 on that list suddenly starts hitting every number in it's speed dial. 20 members of the Democatic Party in the US Senate (40% of the total) thought it was a bad idea too, maybe Speaker Pelosi should listen to them, instead of the lawyers and activists she's currently latched onto.

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