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December 16, 2005

NSA begins spying on sheeple in the U.S.

The New York Times is reporting that the spooks at the National Security Agency(NSA) have begun clandestinely eavesdropping on U.S. citizens. The NSA is a group that is so secretive that, up until recently, most people had never even heard of the agency. Basically, it's a bunch of cryptographic, geek spooks that work on cracking codes and eavesdropping. Glen Reynolds, at Instapundit, describes this as a "major shift in U.S. surveillance policy". It may possibly be a shift in policy, but it's not a shift in in their defacto operational tactics. In fact, the NSA has been illegally eavesdropping on phone calls in the United States for a long time, accroding to the book The Puzzle Palace by James Bamford.

According the Bamford, all the NSA did was go to the phone companies and say "we want to tap into these phone calls surreptitiously" and the phone companies said "OK". So, maybe what's different is that the NSA has the president's permission now, but the NSA has been secretly recording and eavesdropping on our communications for decades.

Michelle Malkin justifiably questions the timing of the story in the New York Times, as it just so happens to fall on the day after the elections in Iraq. Hardly surprising in this weather.

Reason is reporting that:

Then post 9/11 -- as has been well-documented -- everything changed. President Bush gave the NSA a secret OK to directly spy on international communications from the U.S. without even troubling the rubber stamp that is the Foreign Intelligence Surveillance Court.

I, for one, welcome our new NSA overlords. I just hope that they can coexist peacably with our other overlords at the TSA, BATF, CIA, FBI, INS, DEA, police, sheriffs, national guard, and of course, the U.S. military.

Update: There seems to be some confusion among the attorneys as to the constitutionality of governmental spooks eavesdropping on the private communications of individual citizens. This can only be confusing to people who have spent a lifetime parsing the Bill of Rights and debating each clause and subclause until we can no longer be sure what the meaning of the word "is" is. These same individuals are unduly fettered by stare decisis, that they spend lifetimes digesting the abominations of case law, extruding tortured conclusions from the blighted, putrid rulings of our embarrassing jurisprudence.

The 9th amendment makes it very clear to me, both in letter and intent, that people are assumed to have all rights by implication, not merely those enumerated in the Constitution and the Bill of Rights. Among those rights, would certainly be the right to a private conversation without any meddling by the government. In normative jurisprudence, the average citizen would have little trouble in discerning this and arriving at the same conclusion. It's only the nanny-state Dimocrat lawyers and governmental bureaucrats that seem to be confused over whether we have the right to have private conversations amongst ourselves.

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Posted by Peenie Wallie on December 16, 2005 at 10:00 AM


I, for one, welcome our new NSA overlords. I just hope that they can coexist peacably with our other overlords at the TSA, BATF, CIA, FBI, INS, DEA, police, sheriffs, national guard, and of course, the U.S. military.

We may not have Big Brother watching us, but we are definitely being watched by Lots Of Little Brothers (some bigger and more equal than others).

Posted by: Robert on December 16, 2005 at 11:23 AM



I'm still hoping for a lengthier analysis by Orin Kerr. I've taught FISA in the past, but it's been a couple of years and I'm busy grading Administrative Law exams. Of course, Orin's probably got his own stack of bluebooks. In the post of Orin's that I linked to before, he noted that the area is very complex and unclear, and suggested that people read this District Court opinion. But note that it's only a District Court opinion.

It's also worth noting that there are two distinct issues here: Whether the wiretapping (or other interception) was legal, and whether the leak was legal. The leak almost certainly violated the law. The wiretapping is not so clear: Most people fail to appreciate how limited their protection against government surveilliance is, both under statutes and under constitutional law. And that's doubly so where international communications are concerned. (And, except for the small possibility of a constitutional-tort action, the main remedy for unconstitutional surveillance can be found in the exclusionary rule, which only comes into play if someone is prosecuted and the government tries to introduce the surveillance into evidence -- meaning that, as with the exclusionary rule in general, the remedy is worthless if you're never charged with anything, say because you're innocent.) Nor is this a phenomenon that can be blamed on the Patriot Act or the Bush Administration, particularly -- the protections are just quite limited indeed, and prone to technical parsing on such questions as whether the communications were "stored," even momentarily, en route. You may find these legal interpretations offensive -- I do -- but they're the law as it is.

And this observation seems to be correct: "What is clear is that this is not some Watergate-type rogue operation, as seemingly hoped by some. In addition to repeated congressional notification, the program has been heavily lawyered by multiple agencies, including the Department of Justice and NSA and White House, and is regularly reviewed. Attorney General Alberto Gonzales and Secretary of State Condi Rice have both insisted that program is legal. The fact that some might disagree with whatever legal advice and conclusions the president has received does not make them right or the program illegal. But at this point, we, the public, don't really know what these news stories are really about, do we?"

posted at 04:46 PM by Glenn Reynolds December 17, 2005

Posted by: Robert on December 18, 2005 at 08:23 AM

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