What Jane Mayer Tells Us about Warrantless Wiretapping

Jane Mayer’s excellent piece on Obama’s Executive Orders banning torture is about just that–the end of the torture regime. (Incidentally, kudos to Greg Craig, whom I beat up yesterday, for giving his first interview to Mayer.) But it offers some useful insight on a debate we’ve been having over the last couple of days–whether or not Obama could have intervened in the al-Haramain trial (and other pending litigation on warrantless wiretapping) in the same way he intervened in the pending habeas petitions.

First, off, Mayer confirms a point I made–that Obama was not about to take on the most politically charged legal decisions in his first day in office.

Moreover, Craig noted in his first White House interview that the reforms were not finished yet and that Obama had deliberately postponed several of the hardest legal questions. Craig said that, as he talked with the president before the signing ceremony, Obama was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”

Obviously, one of those questions is how to approach legal consequences for those who ordered torture–or warrantless wiretapping. The EOs Obama signed last week don’t commit him to an approach on that score. Furthermore, he seems inclined to insulate himself from such decisions by putting them in the hands of Eric Holder, to make it a prosecutorial decision. Though Holder has intimated he’d hold both the architects of our torture regime and of our warrantless wiretapping responsible (lucky for him, he could do it all in a giant 2-for-1 deal), I’m not holding my breath on that score. But we won’t know what he’ll do until he becomes Attorney General.

That said, Mayer makes it clear just how much lobbying has gone into Obama’s evolving policy on torture.  She describes a meeting that must have taken place in December 2007 or January 2008 with a bunch of officers–including four star Generals–at which the officers lobbied Obama to end our torture regime. That high-level lobbying continued up until last month. Mayer specifically describes the role of retired Marine General Chuck Krulak who promised to "fly cover" for the Obama Administration after they pushed this through.

Who, might I ask, is doing similar lobbying to restore civil liberties for Americans?

Oh, I know there has been similar lobbying–on the part of civil liberties groups, high profile individuals, and DFH bloggers like you and me. But do we have a Chuck Krulak who will take on those who insist the restoration of our civil liberties (and the prosecution of those who took those liberties away) will be big gift to Osama bin Laden?

And frankly, if there hasn’t been this kind of high level lobbying, what guarantee do we have that Obama is as cognizant of the proceedings before Vaughn Walker as he was of the timing of al-Marri’s case?

And finally, Mayer’s piece raises the question of who is arguing against the efficacy of widespread wiretapping and data mining? She describes a meeting at which high level intelligence advisors confirmed what we all know–that ending torture will not affect our ability to collect intelligence at all.

During the transition period, unknown to the public, Obama’s legal, intelligence, and national-security advisers visited Langley for two long sessions with current and former intelligence-community members. They debated whether a ban on brutal interrogation practices would hurt their ability to gather intelligence, and the advisers asked the intelligence veterans to prepare a cost-benefit analysis. The conclusions may surprise defenders of harsh interrogation tactics. “There was unanimity among Obama’s expert advisers,” Craig said, “that to change the practices would not in any material way affect the collection of intelligence.”

It’s not that we can’t make a similar argument about efficacy. Almost as soon as reports of the program came out, reports of the thousands of hours wasted on "Pizza Hut" leads came out.  The US doesn’t have the means to adequately sort through all the data they’re gathering, and they certainly don’t have algorithms that are effective at picking out the terrorists from the haystacks.

But who is making that argument with us?

And it goes without saying that the telecom lobby–which has made a bucketload of money illegally spying on Americans–will be hyping the efficacy of doing so on its part.

All of which goes to show that–even for the noted efforts with Obama’s own facebook infrastructure–we probably don’t have the political might yet that is behind the fight against torture. That may mean we’ll just have to wait until Obama gets around to it, or it may mean we will lose the fight. But we need to be cognizant of what has worked to get Obama’s opposition to toture where it is.

  1. Leen says:

    ew “Obviously, one of those questions is how to approach legal consequences for those who ordered torture–or warrantless wiretapping.”

    ew “The US doesn’t have the means to adequately sort through all the data they’re gathering, and they certainly don’t have algorithms that are effective at picking out the terrorists from the haystacks” Sounds like Amdocs, Comverse Infosys…Verint the Israeli based communication systems do have the “means”

    Eric Holder during the hearing before the inauguration “no one is above the law” Hoping

    • emptywheel says:

      Oh, you and me both.

      But I’m the sort who prefers to prepare for disappointment–not just because it forces me to keep pushing for something else, but because I’d rather be pleasantly surprised.

      • Leen says:

        The majority of the American public holding on by threads in regard to hope and belief in accountability. Well except for the peasants

    • MsAnnaNOLA says:

      I certainly think so. It seemed to have gotten Olbermann’s attention. It did mine as my dad is a newspaper publisher who has been jailed and had his life threatened.

      It certainly is disturbing to think that every journalist in the country has been tapped and added to the giant database in the sky. Come to think of it I might be in the group too because I am listed on the paper’s masthead as a contributor.

    • emptywheel says:

      Yeah, WTF is up with that???

      Apparently, only MSNBC journalists seem to give a damn that journalists are tapped. Journalists will go to the mat if Cheney mouthpiece Judy Miller has to reveal that Cheney was behind the outing of Valerie Plame.

      But they don’t blink when they learn it never mattered to those in power anyway.

      • Rayne says:

        Yeah, but you didn’t catch the concerned murmurings at CNN this weekend — wish the hell I’d taped it — about MSNBC going so far to the left, being a left-wing mouth piece.

        Apparently covering the death of the Fourth Amendment makes one a leftie yellow rag now.

  2. JTMinIA says:

    If all you do is report what they tell you (and you never bother to check if any of what they are saying is true), then why would it matter if they are also taping the call? Even more, in most places, it perfectly legal to keep a tape of your own calls.

    That’s why most of the M$M doesn’t care.

    • klynn says:

      Hmmm…Tice, Turley and EW in a meeting with Pres. Obama…

      And there’s the ticket. Intel on journalists was to check to make sure that they stayed to the narrative and to separate out those who were fact checking.

      • Leen says:

        I guess this could have been the way they kept the MSM in check before the invasion. Although journalist are not omnipotent and some obviously do have other agendas.

        Novak outing Plame…of course that went along with their agenda

        • klynn says:

          Staying the narrative with “official leakers” was equally as important as making sure potential “truth sayers” would be intimidated to leak.

  3. MadDog says:

    Nice penetrating analysis EW!

    Another typically superb Jane Mayer interview wrt Greg Craig. I watched her on a PBS “debate” program last night from about 2 years ago concerning Journalists, their duty to the 1st Amendment versus National Security held here in the Twin Cities. She does “get it”!

    Btw, I stumbled onto another set of interesting “questions and answers”.

    This time it is from Secrecy News and is the answers to pre-hearing questions from Adm. Blair for his nomination as Director of National Intelligence.

    I took note of this on Page 9 (something you’ve been vocal about since forever):

    C. What lessons learned do you believe a new DNI should derive from the experiences of the last several years concerning the implementation of Sections 502 and 503, including the decisions not to brief the entire membership of the congressional intelligence committees on significant intelligence programs at their inception such as the Central Intelligence Agency (CIA) detention, interrogation and rendition program and the National Security Agency (NSA) electronic communications surveillance program (often referred to as the Terrorist Surveillance Program or TSP)?

    Answer: Although I have had no access to classified information relating to these matters, as I understand it the Bush Administration utilized the so-called “Gang of 8″ procedure (rather than notice to the full committees) to notify of the CIA’s rendition, detention, and interrogation programs, as well as the NSA’s Terrorist Surveillance Program. All of these programs involved sensitive collection activities rather than covert actions. The “Gang of 8″ notice is available pursuant to section 503 only where notice of covert action is concerned, and its use in these programs was not expressly allowed. I believe it is also the case that these programs were less effective and did not have sufficient legal and constitutional foundations because the intelligence committees were prevented from carrying out their oversight responsibilities. If I am confirmed, I will urge the President to limit the “Gang of 8″ notice procedures to covert actions of extraordinary sensitivity, as the law expressly allows.

    There’s got to be more goodies in this 84 page PDF, but work beckons. *g*

    • Leen says:

      This is what I really don’t get. How in the hell can our Reps vote to give Telecoms immunity if the appropriate folks with that oversight responsibility do not know the full scope of a program?

      Seriously I could give a rat’s ass if they wiretap me or anyone else they believe may be seriously undermining National Security or about to do a lot of people harm. But if those (Reps) who are supposed to be in the know are not in the know and they (Bushies) are not willing to follow FISA. Something is up

  4. Loo Hoo. says:

    I want these criminals prosecuted. This, from Raw Story.

    The lawyer for the Mississippi attorney named by the House Judiciary Committee in an investigation into political prosecutions has asked the chairman to appoint a special prosecutor.

    Hiram C. Eastland, an attorney for jailed Mississippi trial lawyer Paul Minor, issued a letter to the Chairman of the US House Committee on the Judiciary, John Conyers (D-MI), asking for an independent special prosecutor to be appointed to investigate alleged political prosecutions conducted by the Bush administration’s Department of Justice

  5. Mary says:

    10 – And not even the Gang of 8, but a “made up” gang of 4ish or so. The vioaltions of the National Security Act, including the planting of domestic propaganda as came out in the Plame trial and the Rumsfeld Regenerals etc/ really should have had a Congressional reaction and a prosecutorial approach, but they didn’t.

    ew – that’s a nice effort to say maybe Obama just didn’t “get it” on the al-Haramain case, but I don’t buy that. With Kris as his nat security pic, there’s no way he hasn’t received thorough info on the status of the Walker case. By many reports,it’s been giving Hayden fits and it’s also not as if Feingold isn’t a readily available asset to Obama.

    All these issues (torture, military commissions, wiretaps, etc.) have been being addressed over months now and it wouldn’t have been that hard to have a gameplan ready. I know WO isn’t a fan, but I found Kris from his writings and transcripts of testimony to be smart, organized, pragmatic and impressed with (in the imprinted and the respectful sense) the need for law. He could have put a gameplan in place for Obama pretty easily.

    And as with al-Marri and the MCA cases, it wouldn’t really have required making the most politically charged decisions on day 1. He hasn’t done that in those cases and if he had just followed a similiar game plan (issue an EO to review the proper classification and national security impact of the document – then have counsel ask the court for an extension of time to respond to the turnover request) he could have moved everything out for month, then made accomodations on turnover and redactions.

    But the truth is that the Muslim *Charities* cases are going to be politically unpopular ones to use as the lynchpin in going after anyone for the illegal program. If you were to pick cases, one with the eavesdropping done on lawyers in the US and while there’s a criminal investigation ongoing and during the gap period are all great facts, but the fact that the lawyers were lawyers for the “bad guys” that St. Pat was pursuing, and that Punch’s evil Judy (as opposed to St. Pat’s good witch Judy from his Salah trial) was tipping off and who can probably have some hard trace ties to monies going where they shouldn’t go — those are bad facts. Not bad legal facts, bad political facts for someone who is kind of taken with being able to be ‘in’ and ‘cool’ with the spyguys anyway.

    • Leen says:

      Did Fitz ever get Judy “I was fucking right” Miller on warning those Islamic (one has to wonder) charities before the F.B.I came to get the goods?

      Mr. Sauber says he and his client worried that Mr. Fitzgerald might feel particularly antagonistic toward Ms. Miller because of the compromising of the raids on the Islamic charities. Some of that animus might rub off on Mr. Cooper if the two journalists mounted a joint defense in the Plame investigation and used the same lawyer. There was also the danger that judges who reviewed the leak investigation might look at Ms. Miller and the Times more skeptically because of the separate charities case.

  6. Hmmm says:

    In news from Upside Down Land, the House today takes up:

    H.Res. 31 – Expressing support for designation of January 28, 2009, as “National Data Privacy Day” (Rep. Price (NC) – Energy and Commerce)

  7. Minnesotachuck says:

    But do we have a Chuck Krulak who will take on those who insist the restoration of our civil liberties (and the prosecution of those who took those liberties away) will be big gift to Osama bin Laden?

    I’m not at all surprised at General Krulak’s willingness to stand up for what’s right; it’s in keeping with the truth-telling courage of his father, Lt. Gen. Victor Krulak, who died late last month at the age of 95. Here is a link to the eulogy given at his memorial service by Robert Coram, the biographer of a number of recent military figures. Here is a telling, and tragically amusing excerpt (apologies for the caps, but they’re in the original):



    This incident in all likelihood cost Victor Krulak, the obvious candidate, the appointment as commandant of the Corps promotion to four stars. But he lived to see his son assume and perform that job 30 years later.Here is his wikipedia bio.

  8. Leen says:

    Jane Mayer writes “Top C.I.A. officials have argued for years that so-called “enhanced” interrogation techniques have yielded life-saving intelligence breakthroughs.”

    Who, where are these “top C.I.A. officials” who have argued for using these techniques?

    I have not heard one of these “top C.I.A. officials” arguing for using these techniques.

    • Hmmm says:

      Further, how is that reconciled with the conclusion that PBO’s folks got from the same CIA? Are there camps? Wait, don’t even answer that.

  9. Hmmm says:

    I had been hoping Sy Hersh would ride to the rescue right about now with fresh information about… well, about everything, but one of those things would have been Teh Program. If he eventually does, then maybe that could create a more visible rallying point that would give any Krulak-type figure waiting in the wings a chance to shine. I hope Sy is aware of the March 11 SoL problem.

    • Leen says:

      I am not Bull shitting. while I was in D.C. last week I ran into Sy Hersh in the Starbucks line at Union Station. I about went all week kneed he is one of my heroes. Able to have a conversation with Sy and his wonderful wife. They had just returned from Beirut. He had tried to push for getting into the Gaza. What a true patriot

        • Leen says:

          I was too star struck to think so clearly. Said a great deal to me that he and his wife would be willing to chat politics with a regular folk. Sy seems so down to earth.

  10. Mary says:

    22 – Miller and Fitzgerald seem to have been star-crossed somethingorothers. In addition to Plame and the charities cases (where they were/are contra) Fitzgerald had another case, Saleh, where Miller was HIS witness to the non-torture (when she was there watching) of a defendant who gave a confession to Israeli interrogators.

    I don’t know where request for journalist info on the charities calls stands. I know there was oral argument in a circuit court awhile back, can’t say when but it was long enough that there has likely been a ruling.

    On a slightly different but related front, Gonzales told NPR (this via The Swamp) that he’s not only pretty sure he’s not going to be prosecuted:

    “I don’t think that there’s going to be a prosecution, quite frankly.” Gonzales said. “Because again, these activities…. They were authorized, they were supported by legal opinions at the Department of Justice.”

    but also that Holder saying waterboarding is torture was bad for morale:

    Gonzales, in an interview airing on National Public Radio’s Tell Me More today, voiced his concern about “Making a blanket pronouncement like that.” He noted “the effect it may have… on the morale and the dedication of intelligence officials and lawyers throughout the administration.”

    I especially like the touch that lawyers in the Bush administration will be demoralized if they wake up and realize they’ve been working for torturers.

    Who knew you could demoralize the amoral?

  11. Minnesotachuck says:

    She describes a meeting at which high level intelligence advisors confirmed what we all know–that ending torture will not affect our ability to collect intelligence at all.

    Last Thursday night I had one of my frequent bouts of insomnia and, as I often do on such occasions, I turned on my radio to the local NPR station. It was broadcasting a BBC World Service interview with some American who was adamantly justifying the Bush-Cheney cabal’s use of torture, and who asserted with absolute assurance that tortuous interrogations had prevented several terrorist attacks. Needless to say the skeptical BBC interviewer kept leading him on and giving him more rope. When the interview was over I drowseyly heard the announcer rattle off his name, which I didn’t quite catch, and then say he was a former speech writeer for Bush. I think he might have said “Michael Gerson” but I can’t swear to it.

    I was quite stunned that this person, who had been in the administration, flat out admitted proudly that the BC admin had engaged in torture and was proud that they had served their country in doing so. I had never heard of any other person affiliated with the the Cabal doing so. Have I missed something?

    In any case, I spent a fair amount of time the next day trying to find the piece linked on the BBC website but to no avail. I thought I had found it listed the BBC/WS schedule on the website as having run at 0930 hours GMT on Friday, January 23, which was the right time. However when I listened to it, although some of the content was on the same topic, I didn’t hear the piece I heard (I think!) the previous night. Perhaps I was dreaming, but I don’t think so. Or maybe BBC scrubbed it at someone’s behest. I’m going to look again and post a link if I find it. What I remember was so explicit and so in-your-face that I would think it could be quite damaging if in fact it was someone as close to the center of the pit as Gerson. The search is not helped by the fact that the BBC/WS site appears to be under-servered and frequently times out.

  12. Mary says:

    But do we have a Chuck Krulak who will take on those who insist the restoration of our civil liberties (and the prosecution of those who took those liberties away) will be big gift to Osama bin Laden?

    Yep – Russ Feingold. He does it while being elected from that hotbed of radicalism, Wisconsin.

    Unfortunately, ever since the WI primary, Obama seems to have found it very easy to ignore Feingold’s existence.

  13. Mary says:


    Binyam Mohammed seems to think he’s going back to Britain.

    See also: http://www.independent.co.uk/n…..18231.html

    Not that anyone should think that the US would want to avoid having the High Court in GB rule on whether or not State Secrets can be used to cover up criminal behaviour, as it was showing game to do.

    Miliband conceded there was an “arguable case” that Mohamed had been subjected to torture and inhuman treatment, yet he has refused to disclose information about CIA practices.

    The high court judges have taken the extraordinary step of inviting the Guardian with other media groups to challenge earlier decisions to hold much of the court hearings on the case in camera.

    Meanwhile, Binyam Mohammed and others have a case due up for oral argument here in the states:


    Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as it’s also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

    It is scheduled for oral argument at the appellate level in Feb. and so far there’s no hat tip on any shift in policy for this case, although it’s still early days.

    Contacted last week by TWI, a Justice Department spokesman would not say whether the new Obama administration would change its position in this case. He confirmed only that oral arguments are scheduled for Feb. 9.

    Immunity, state’s secrets, enscapulated genitals complete with pictures, and swanky hotels with special “massaging those tortured kinks into you” services. Why does the lack of MSM coverage seem so odd?

    The silver lining is that maybe DOJ lawyers will have something to lift that gloom that descended on them when Holder reiterated the holdings of existing case law and the evidence of reason.

    Meanwhile, back at home, I got to listen to our local NPR station interview ex-Congressman Hostettler, as an expert, on GITMO.

  14. NorskeFlamethrower says:


    Citizen emptywheel and the Firepup Freedom Fighters:

    Thanx for the post, the analysis of the forces pushin’ against each other on torture is very telling and encouraging and if, indeed we hafta wait for action on wiretapping until Holder is confirmed ,well I’m willin ta wait. It seems clear that the forces of the Dark Side are fightin’ tooth and nail to hold up Holder until he “gives” on wiretappin’…and don’tchu believe for a minute that Alen Skellator is really concerned about the CIA and torture…the Sumo wrestlin’ behind the scenes is over the illegal surveillance and no one wants to debate that issue in public at ANY kinda hearings because the public will explode when they hear what’s really gone on and Democrats as well as fascists will feel the heat.

    thanx again and…


  15. AitchD says:

    We have to wait for Supreme Court retirements, hope for them like right now or tonight at the latest.

    Then, amazingly engaging exchanges in every sphere, and then, and then, Hearings! Hey, politics can compete with sports. Maybe.

  16. malcontent says:

    I am hopeful that the Tice narrative is just taking some time to sink in with the giant egos of our DC press corps.

    When you consider the real capabilities that are available to law enforcement today, including: cell phones as constant mobile microphones and GPS enabled trackers, use of credit and debit card transactions for financial profiling, email, chat, texting and telephone conversations for psychological profiling, etc., it is not unreasonable to expect journalists to continue ignoring this potentially life altering twist for a bit longer since their self centered focus is annoyingly consistent. The shock of fear must be numbing.

    Let them take the time to really digest the fact that everyone in the DC press corps and national news management was under CONSTANT surveillance for the past 7 years or more. Let congress critters get time to reckon that they too were under constant surveillance even when negotiating legislation and fundraising. Even when they were on retreats conducting informal business. Even during their down time.

    When they finally come around to realize their very careers have been stolen, perhaps they will be offended enough to do something about it. The capitalist ideal is based on the notion that when you know something that others don’t, you are an elite, an entrepreneur, so long as you stay within the rule of law. Whether it is a widget or a service, proprietary information only holds value for as long as you control its disclosure.

    Journalists have been playing with a stacked deck in the DC press corps for years now. Russell Tice just told them and world.

    The world has taken notice, these journalists will catch on soon enough. This is theft. This is also very personal. DC Press Corps is a collection of super-sized egos and as a result it takes a bit longer to see the damage and form an appropriately rage-filled response.

    Popcorn Index= Very High.

    • Hmmm says:

      Yes, a captive press can’t be a very good Free Press (in the First Amendment sense), can it? On the other hand, they are a captive press (are they not?), so how effective can we expect them to be in getting this message out? Conundrum.

  17. LabDancer says:

    I got a prediction.

    [Out of concern for those who could not care less about the basis for it, or just can’t stand my writing, it’s in the last two paragraphs.]

    I know William Ockham at least will recall this, but last year – – before the fall [and/or the Fall] and before Marty Lederman left Balkinization – Jack Balkin put up a series of posts considering AOT distinctions between the concept of the “Security State” versus the “Surveillance State” – including:

    how both were a fait accompli –
    that completely eliminating either was pure innocent fantasy –
    that we needed a serious public discussion about the distinctions and where we draw the lines –
    and arguing that in many ways the former at least is a ‘good thing’.

    There was an element of fatalism to his analysis – of course – but he pushed his propositions and the discussion in the directions of the acknowledging [and defining] what I’d call CORE PRIVACY.

    [I can’t recall now but even the term might have come from him. In any event, he raised the concept of core privacy partly in contrast with traditional and historical conceptions of privacy – primarily on the basis that most of those are have been myths for some time].

    IMO the entire range of this discussion – and more, given his current job – is, without meaning to suggest PBHO read the series [If he did, would that surprise anyone here? Talk about ‘change’.] – very much within the ‘big think’ stuff that, from my reading of his two books

    [and consistent with the way his positions are expressed, from the caution shown in his interviews, to speeches so dense with all manner of references, they should come with footnotes, to the spareness shown in the end product of decision-making, and all of it suffused with a sense of pre-deliberated sure-footed elegance I can’t recall seeing in my life from politicians – stage magicians, okay – tho I’m a little too ‘young’ to have experienced FDR, leave aside Lincoln].

    I’m going to make a wee prediction: first on one aspect of his internal deliberations [easy, since it’s already so public] – then as to the outcome [which – I dunno – might rile up some folks] – – about the FAA [the FISA Amendment Act] in the course of which I raise a third reason why then-Senator Obama would flip-flop on that, the first two being respectively electoral convenience and the nature of his own style of “deliberative process” [which I’ll not dwell on here], that third reason being why IMO he’s going to delay action on what we all here surely realize is the effective implementation of the TIA by the BCAdmin, contrary to the clear PUBLIC expressions of the will of Congress [as if that meant anything to them].

    Many, perhaps most, certainly the lawyers here will know that the ‘nuts and bolts’ of a 4th Amendment challenge launched in the context of a suppression hearing very often boils down to the court being called on to consider how the 4th and the precedents of jurisprudence on the 4th suggest parameters for legitimate expectations of privacy, and applying that analysis to the peculiar facts of the case.

    I started practicing law before the FISA of 1978, but it’s non-existence then didn’t have any practical meaning to the vast majority of cases involving communications surveilled and intercepted by government investigators: there was already a long history resulting in voluminous jurisprudence on the 4th Amendment, a fair slice of which involved what we then [accurately] and today [euphemistically] call ‘wiretapping’ – it being then a generation before the appearance – to say nothing of the prevalence – of written e-communications over the Internet.

    A fairly recent post by Ms E Wheel provides a useful point of departure: the revelation by the office of US attorney Patrick Fitzgerald that the investigation into MacBlago has included surveillance on the outside entrances of places he is understood to conduct whatever it is MacBlago conceives of as his ‘business’, among other things, mainly we would suppose, in an effort to put – and prove – a face and a name to a disembodied voice that might be ‘intercepted’ in communication with one or more others while inside.

    For a long time since the ‘fruits’ of wiretapping began to be used in criminal cases, the courts have notionally extended the 4th amendment to our phone conversations [and then our emails], the same as if the communications in them were “in [our] persons, houses, papers, and effects” – – and it’s pretty easy, as well as completely publicly accessible, to see how that would have and in fact did come about.

    But not always, or universally. Some here [I’m one.] will recall the phenomenon of the “party line”, from when it wasn’t, like today, a specially set-up feature, for whatever purpose [mostly political and policy briefings, I’m sure], but the only form in which the telephone as a utility was available in some areas and contexts. And it played a part in the analysis I referred to, being: whether the two [usually it was two] participants in what was argued by one side as being a ‘private communication’, analagous to at least one form of intercourse that was/is typically assumed to occur within one’s own “house”, was, having regard to all that one might assume the participants actually knew, plus those the participants ‘must have’ known, conducted in ‘circumstances’ to which the law was intended to extend the ‘EXPECTATION of privacy’ implied in the 4th amendment.

    Ask yourself now what your own personal ‘expectation’ of privacy is, as to your reading of this response; as to my own ‘expectation’ of such in posting it; as to any response you might post to it here. ‘Extend’ that to your phone call later today to order a pizza; to your phone call this evening to one of your children away at college; to your email to one of the other members of your bi-weekly book club. Does it matter to you that each and every one of these communications is being ‘intercepted’ under some government program that might as well be called the TIA? More to my point: Does knowing that make a difference to your ‘expectation of privacy’?

    Like a number of the lawyers who post here, I’ve worked with the concepts of probable cause and spheres of expectations of privacy throughout my career. And all during that time, I’ve felt comfortable that I could rely on a body of reported, publicly-available precedents derived from years to decades, sometimes extending into centuries, making up a huge body of accepted jurisprudence, the vast bulk of which is irrelevant to the point of this comment, but ALL of which is subject to review, reconsideration and RE-STATEMENT to reflect modern reality.

    I’m thinking that this, among many other things of course, is pretty much what President Obama is thinking about when he considers the reality and the effects of what the Bush administration has brought about with its illegal expansion of government surveillance of the citizenry.

    No one can predict with any precision where President Obama will end up on this – or indeed whether where precisely he ends up on this will be deferred to in Congress [though pretty clearly Congress and even some judges, including one entire court, have deferred to much of the said Bush illegality, whether they admit so or not] – but I think he’s deferring coming to a decision until he knows what all this entails, which obviously will take time [and the assistance of a guide: how about Mike McConnell? Oh: he’s now working in the WH you say?].

    Nonetheless, I predict that, when he’s done thinking [and when he thinks his administration can bear it], we will see a brand spanking new conceptualization of whether and how those words in the 4th amendment – “[our] persons, houses, papers, and effects” – apply in this Age of Communication, that will reflect far more accurately, and far less idealistically, what the government is already doing.

    [I would LIKE to think we’ll hear from him on his views as to how probable cause operates in relation to chasing foreign communications into the domestic sphere – but I have no clue whether he might see that the way I do, and I very much doubt his day involves lurking here.]

    • Leen says:

      “but I think he’s deferring coming to a decision until he knows what all this entails, which obviously will take time [and the assistance of a guide: how about Mike McConnell?” ALL THE ENTAILs…makes sense.

      Before Fisa was it a requirement to get a warrant and alert the appropriate Reps in congress of the wiretapping?

      I remember party lines. So did Lilly Tomlin as “Ernestine” One ringy dingy

    • john in sacramento says:

      Ask yourself now what your own personal ‘expectation’ of privacy is, as to your reading of this response; as to my own ‘expectation’ of such in posting it; as to any response you might post to it here. ‘Extend’ that to your phone call later today to order a pizza; to your phone call this evening to one of your children away at college; to your email to one of the other members of your bi-weekly book club. Does it matter to you that each and every one of these communications is being ‘intercepted’ under some government program that might as well be called the TIA? More to my point: Does knowing that make a difference to your ‘expectation of privacy’?

      Reminds me of this video

      “Does it matter to me?” Yes

      “Does knowing that make a difference to your ‘expectation of privacy’?” I don’t know what you mean, exactly. It makes a difference to me. I’ll give you a for instance …

      A little over a year ago I typed out this blog which was inspired by comments in one of EW’s posts. I’ll easily admit that I don’t have anywhere near the technical abilities of many of the readers here, mad dog comes readily to mind, but anyway I googled a lot of what I wrote and was in the process of the fifth rewrite (it takes a lot of work sometimes, just ask EW and Jane and Christy and …) anyway, so I’m working on this and all of the sudden I get kicked out of the website … I can’t do anything. I hit edit and I go back to the frontpage. I hit review and go back to the frontpage. I go to a different computer, (I was at the local college library) can’t log in at all. The next day I posted it here, guess what? No problem whatsoever. Also the next day I had my friend Bill who is the administrator of our website post it to my blog under his login and guess what? It worked.

      This has never happened before or since.

      Does that mean it was just a glitch in the server? I don’t know, but after all I’ve read, what we’ve learned and what has come to light, it was awful coincidental

      If Obama proposes to continue the program I’m going to go as hard against him as I have against Bush. I will not let this country turn fascist without a fight no matter who the political party in power is.

      • LabDancer says:

        Hey – pretty nice linkies.

        As to ‘reasonable expectations’, well … it’s sort of like something Rush Limbaugh would love: The legal question isn’t what your expectations in fact are [though that’s a factor]; or “the way things oughtta be” – i.e. ideally, to you at least [Rush might be thrilled.]; but what reasonable suppositions are out there to be drawn on.

        There may be some parallel to what happened to Arthur Dent at the beginning of The Hitchhiker’s Guide To The Galaxy: Whattya mean no one told you about the new thru-way, necessitating the destruction and removal of your abode? There’s been a public warning on Authority’s intentions pinned on the notice board at the local post office for 3 months now – – down there near the left hand corner; just lift up the edge of the “will babysit” notice; and there it is.

        This conceptualization threatens to implicate the “legality” of both domestic non-FISA wiretaps & ‘extensions’ of FISA wiretaps into the domestic arena – – though I would expect, unlike with BushCo, in somewhat different ways. It’s possible PBHO & Congress will act to return the former to something along the lines of the “classic” i.e. strictly legal test; though I really don’t think so, because it’s so much easier to reconcile the two arenas each to the other otherwise, and I actually have no doubt whatsoever that SOME legal accommodation to the latter is coming. Well, it’s here already, isn’t it? and has been, in one form or another, usually more than one at a time, for decades. Plus there’s the ’slippery slope’ effect, which also has been acting on the landscape for many, many years.

        The problem is that there’s this nagging, undeniable, fact out there [facts being typically so very difficult to get ’round]: the ‘new improved’ version of al Qaeda, which is the model toward which the Taliban and other such Pakistani-based & other ME-based Restore the Caliphate organizations are morphing, are all of them very easy to sell as continuing threats to national security based critically on their proven abilities to exploit modern means of communication: for propaganda, for recruitment, for support, for funding, for training, even for particular operations. Now, they’re limited in many ways, and they don’t have anything approaching the sort of minimum standards of efficacy and reliability we project on national armed forces – – indeed, in the course of acting on some ‘mission’, the typical individual is far more likely than not to ’succeed’ in disabling or killing only himself [typically ‘him’], as opposed to inflicting damage on some third party ‘target’, human or otherwise [Mumbai, IMO, was an aberration, just as 9/11, and Madrid – except after a time, there are so many attacks coming so often, even aberrations start to pile up.].

        That the MSM is no longer interested in focusing on the two actual wars & is still bedazzled by Bush’s legacy WOT doesn’t render all the daily violence & carnage less real – & that’s what’s being used to keep alive the fantasy of the collapse of America, and of the western European democracies – though in the case of the latter, it’s not just more immediate, but less fantastical.

        So I hear the new President, and I fully expect he’ll act in ways that are far, far more likely to be tolerable in maintaining the state & in sustaining, even nurturing, the democratic ideal & in advancing equality of status & treatment under law – – but he – we – still must deal with the fact of that threat, and the idealized pre-FISA model simply doesn’t work to deal with it.

  18. GregB says:

    I don’t even know how those warped rightwing minds work anymore. One moment they talk about how we “must use all the tools in the toolbox” and not mollycoddle terrorists…the next moment they are bragging about how Guantanimo has wonderful accomodations and delicious rice pilaf.

    Mental cases to the last.


  19. malcontent says:

    It may take something as repugnant as PBHO using this unprecedented operation himself to nudge the authoritarian defenders to understand the “full view” of this issue.

    That is, use it with deliberacy for the purpose of understanding why this is never a good idea.

    He could kick Krauthammer out of his closet for starters…

  20. Valtin says:

    Re Chuck Krulak… this Cold Warrior received the 1998 Defender of Freedom award from Ollie North’s “Freedom Alliance”. (The current recipient… John Bolton)

    The fawning over the military brass is beyond me, having come of age during the Vietnam War period and knowing very well how conservative and reactionary these people can be.

    If General Jack D. Ripper were advising Obama, we would all be sagely nodding our head at the fact our new telegenic president had the advice of a “square-jawed certified patriot” full of “concern for the American people”.

    Whatever color a person looks who is filled with disgust, color me that.

  21. perris says:

    All of which goes to show that–even for the noted efforts with Obama’s own facebook infrastructure–we probably don’t have the political might yet that is behind the fight against torture

    late to this thread but I need to make an important point which cannot be understated;

    the “powerful force” that is behind the push toward indorcing torture is cheney/rove(bush) and their fear of prosecution

    he has their entire arsenol of corporate propagandist hacks doing every thing possible, they need to get public acceptance of torture mainstream

    it is our job disabusing them of their meme, torture PREVENTS us from gathering inteligence it does not facilitate, torture CAUSES terrorist events it does not prevent them, torture EMBOLDENs our enemy it does not discourage our enemy, torture CONVINCES more terrorists it does not disuade them

    • Hmmm says:

      Yup. I fully expect we’ll see the old trope — the one about how US citizens who seek to use “legalisms” to stop the very brave heroes from doing the very brave but technically illegal things that need to be done are the real terrorists — rolled out again any minute now. (That means us, if you didn’t catch it.)

  22. pmorlan says:

    “That said, Mayer makes it clear just how much lobbying has gone into Obama’s evolving policy on torture. She describes a meeting that must have taken place in December 2007 or January 2008 with a bunch of officers–including four star Generals–at which the officers lobbied Obama to end our torture regime. That high-level lobbying continued up until last month.”

    It sure would be nice to have a president who did the right thing on torture without being lobbied to do so but I guess we will have to settle for one who at least listens and can be persuaded to do the right thing.