Re: [Full-disclosure] How Prosecutors Wiretap Wall Street

--On November 7, 2009 11:24:55 AM -0600 Valdis.Kletnieks@xxxxxx wrote:

On Fri, 06 Nov 2009 23:42:45 CST, Paul Schmehl said:
communications as well. Under existing law (if you believe that FISA
applies) they would have 72 hours maximum to submit the necessary
paperwork and obtain the necessary approvals to go before the FISA
court and obtain a warrant. Otherwise they would have to cease all
surveillance. Meanwhile the terrorists aren't going to sit around
waiting for the warrant to be issued to continue their plans.

Actually Paul, you have that bass-ackwards, and it's important.

No, actually I don't. I just did a lousy job of wording it.

They are allowed to start wiretapping immediately, and then have 72 hours
*after they already started listening* to find a FISA court judge and
do the paperwork. So yes, the terrorists don't wait for a warrant, and
the NSA doesn't need to wait either.

That's only true if they can get the paperwork done and obtain the warrant
within 72 hours. Otherwise, at the 72 hour mark all monitoring must
cease. And guess who knows that? We don't exactly keep our operational
strictures secret, you know. And to think that terrorists aren't aware of
the rules within which we operate is to display profound ignorance. They
have taken clear advantage of our restrictive Rules of Engagement in Iraq
and Afghanistan to inflict more casualties on us than we might otherwise
have suffered.

So let's see.. You're the NSA. You develop a person of interest. You
start wiretapping the crap out of this guy. You now have 72 hours to
call the FISA judge you almost certainly have on speed-dial. The request
will almost certainly be granted (one source list 18,761 FISA warrants
requested from 1978 up to the end of 2004, of which *4* were rejected -
but then granted after modification).

From what I've read getting a warrant in 72 hours is almost impossible.
Remember they first have to gather sufficient data to convince a judge
that they have sufficient probable cause to conduct the surveillance. And
they have to do that separately for every device the terrorist might use.
(That's been changed now, but even that some of the privacy advocates are
opposed to.) Then they have to put a legal brief together, obtain the
Attorney General's approval and signature and then contact the court for
the warrant. Then the court needs to read the brief, and if the judge has
questions, they must obtain the answers to those before they can get the

It's not quite the same as dropping by Human Resources to pick up a copy
of your Benefits Handbook, as you imply.

But even *that* is apparently too onerous. The only reasonable
conclusion is that you wanted to wiretap people that even the fairly
lenient FISA rules wouldn't get you a warrant. And that's important,
because the entire reason the FISA court was created in 1978 in the
*first* place was because Nixon got caught using government agencies to
illegally spy on political enemies and activists.

Yes - political enemies and activists - not terrorists.

It seems particularly peculiar to me that people get all hot and bothered
about this issue given that a plausible scenario has a terrorist in
Pakistan contacting a party in the United States (sleeper cell? lone
actor?) who may or may not be a US person, and that the intent of the
monitoring is to find out what they're doing or planning to do so that we
can prevent terrorist acts, not to convict US persons of a crime.

As I've pointed out now several times, it's analogous to people that get
all hot and bothered by the fact that admins have access to the data on
their computers. You, of all people, know what a bogus concern that is.
Admins could care less about the data on your computer, much less have the
time to go rummaging around through all that data looking for something
interesting. They just wish you quit getting your computer infected all
the time.

Paul Schmehl, If it isn't already
obvious, my opinions are my own
and not those of my employer.
WARNING: Check the headers before replying

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Relevant Pages

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