The Comey Testimony

What are your takes on habeus corpus, sending people to Syria to be tortured, and the other fine things they have been doing?

The FISA court is a rubber stamp. You simply can not trust these people when they think their plans would not even pass muster with this secret court.

Joe, I'm glad you've admitted what a number of us have been saying for a long time--that the current administration is more interested in playing politics than actual national security issues.

The fact is that we could have tried to work within or amended the current FISA guidelines to keep up with evolving technologies. Bush, instead, decided to play games and throw one of his famous temper tantrums when he got caught breaking the law. Someone needs to remind this crew that they swore an oath and the Constitution is bigger and more important than they are.

I agree with Glenn Greenwald:

***We should not have to speculate in this way about how the illegal eavesdropping powers were used. We enacted a law 30 years ago making it a felony for the government to eavesdrop on us without warrants, precisely because that power had been so severely and continuously abused. The President deliberately violated that law by eavesdropping in secret. Why don't we know -- a-year-a-half after this lawbreaking was revealed -- whether these eavesdropping powers were abused for improper purposes? Is anyone in Congress investigating that question? Why don't we know the answers to that?***

http://www.salon.com/opinion/greenwald/2007/05/16/nsa_comey/index.html

Who has been watching the watcher? It used to be no one. Now we assume it's FISA, after the law had already been broken.

These guys have been weasels. I still don't trust that they haven't found a way to do whatever they want even with FISA in place. What is the record of this administration when there's been no oversight? Abysmal. I think you're still being too credulous, Joe. I believe we still haven't gotten to the bottom of this...

Thanks for this explanation, Joe. With the GOP and its media allies acting so dysfunctionally, it's hard to evaluate programs like this, because you know they're willing to torture and violate the constitution if they think there's political gain in it. If by some accident they hit upon something useful, they'd be incapable of defending it.

Now, you wrote that it's "used to detect patterns of phone calls or emails coming into the US from known terror suspects overseas." Why wouldn't a warrant from the FISA court suffice? If they are known terror suspects, can't we get a warrant? What am I missing here?

I may sound cynical, but knowing what we know about this administration, I don't think we should assume anything...

Did anyone watch Frontline last night? If you had you would realize that this is not the only program out there. And that there is no way to know what this administration is up to.

Joe - Good post. I had come to the same understanding of how the NSA program worked and, if that truly is the extent of it, found it to be unfortunate but reasonable considering the threat. The main issue for me was that I wanted some form of Judicial Branch oversight and the FISA court seemed appropriate. I am glad that you were able to see past the initial Unitary Executive strategy (the Cheney Component) to the politicization (the Rove Component). The Cheney Component is the serious, rhetorical face that they put on any issue while the Rove Component is the arm-twisting, back-handed way to get as much power as possible.

You can see the same dynamic with the DOJ scandal. The Cheney Component states that the Legislative Branch has no power of oversight over the Executive Branch. The Rove Component says, 'just tell them you don't remember; or lie to them'. Meanwhile, pulic confidence in the Department of Justice is eroding while these political games continue. When that confidence is gone then people will seek other remedies outside our system of justice and society will further breakdown. If Bush cared about the institutions of the US government then this nonsense would stop, a new Attorney General would be appointed and the country would move on.

BTW: Much better picture.

Jesus, Joe, don't you get it?

This has been, from day one, about spying on their perceived domestic opponents, including the press.

They're spying on you, Joe.

Joe, what's "somewhat inaccurate" about the shorthand "illegal wiretapping"?

That's what three of the President's own political appointees thought it was: Attorney General Ashcroft, Acting Attorney General Comey and FBI director Mueller. That's what the only court to rule on the legality of the program so far concluded (even after adjustments were made that were sufficient for Ashcroft, Comey et al.). That's what most legal authorities not connected to the administration who have weighed in on the matter have concluded (including e.g. respected right wing blawger Eugene Volokh).

If there was a legitimate issue with FISA, the Bush administration should have made that case to Congress and got them to change the law. Indeed, they did exactly that in IIRC October, 2001 and got all the changes they requested as part of the Patriot Act. Congress did not deny them anything they requested and doubtless would have approved any plausibly reasonable request.

Still, the Bush administration decided to break the law in secret and only tried to get further changes to the law when their violations were leaked. That suggests that whatever it was they were doing, it was pretty bad, so bad that a post-9/11 Republican Congress would have rejected it. In other words much worse than your guess. Who knows for sure. But regardless there was no excuse whatsoever for breaking the law years after 9/11. (I might look differently at short-lived exigent violations right after 9/11).

You believe in data mining as long as it's carefully monitored.

Good heavens.

What planet are you living on? Why in the world would you trust these people?

I agree with Simels, this is just as much about spying on domestic opponents as it is on terrorism suspects. Get a grip.

"Did anyone watch Frontline last night?"

If you have broadband, you can see it online:

http://www.pbs.org/wgbh/pages/frontline/homefront/view/

(I haven't seen it yet, myself. But I plan to tonight.)

"The story became 'illegal wiretapping' in media shorthand (somewhat inaccurately)".

Bollocks!!!

The story remains illegal (domestic) wiretapping. It is beyond peradventure that an end run around the FISA Court is an attempt to circumvent and operate outside of the law.

Given the loyalty to the Bush adminstration by the current crop of US attorneys, even if there was probable cause to investigate Card and Gonzalez for their actions, you couldn't trust a US attorney to conduct a fair an inpartial investigation, much less return any indictments.

Talk about a stacked deck in favor of the adminstration.

There was virtually no coverage on TV last night. What do you think there will be for coverage tonight?

Given the loyalty to the Bush adminstration by the current crop of US attorneys, even if there was probable cause to investigate Card and Gonzalez for their actions, you couldn't trust a US attorney to conduct a fair an inpartial investigation, much less return any indictments.

Talk about a stacked deck in favor of the adminstration.

There was virtually no coverage on TV last night. What do you think there will be for coverage tonight?

> The story became "illegal wiretapping"
> in media shorthand (somewhat inaccurately),

Wiretapping? Yes.
Illegal? Yes (even Ashcroft thought so).

So could you please help me understand what was "inaccurate" about the characterization?

Cranky

Now here is the thing: does anyone outside the Washington DC traditional press corps think that the W Bush Administration was NOT using these same technologies to track and monitor their political opponents - including reporters for the traditional press?

Mr. Klein favors the NSA's (illegal) data surveillance operation because he thinks that _he_ will never be subjected to it, and it will never have any consequences for _him_. I strongly suspect he was and is wrong about that.

Cranky

Joe:

Thanks for bringing this up; the lack of urgency with which many of your colleagues have reported on this set of circumstances is troubling.

There is one question that bears clarifying on your part, though:

When you say "As I understand it, it works like this", exactly how and from whom did you obtain that understanding?

Without the source(s) of your knowledge of the NSA program's details set out explicitly, we have no way of determining the validity of your claims. What if your "understanding" was (unbeknownst to us) derived from extensive conversations with, say, Tony Snow? What if your sources' sources were (unbeknownst to you) off-the-record briefings from say, Michael Hayden?

If, as you say, most Americans would be likely to support a legal version of the program "if it were described to them in detail", isn't it absolutely incumbent upon you (and your colleagues) as a journalist to inform us in great detail as to how you came to know without a shadow of a doubt the exact logistics of this officially secret national security project?

Let's say that I had written this same piece, Joe.
Even if I had reached the same conclusions as you, wouldn't you be asking these questions of me?

This is just silly. The program wasn't put in place in contemplation of the 2006 elections. And if the administration is so smart that they can rely on Democratic over-reaction, why aren't the Democrats smart enough not to over-react?

BTW: I don't think "executive privilege" (with or without caps) means what you think it means.

There is nothing "outrageous" about the Comey story. The DoJ approved of a program and the administration relied on the approval and then, sometime much later, the DoJ changed its mind, giving one week's notice. It so happens that this was the week leading up to the Madrid bombings, which killed nearly 200 and wounded about 2500. As Comey recognized, that wasn't the right time to stop the program. There's nothing "outrageous" about recognizing the new but sincere concerns of the DoJ, as the administration did, while continuing to rely on other legal analysis.

"does anyone outside the Washington DC traditional press corps think that the W Bush Administration was NOT using these same technologies to track and monitor their political opponents - including reporters for the traditional press?"

I don't assume this. But I'm not happy having to make *any* assumptions. It's like Greenwald is saying, we should be confident that things like this *are not* happening because of adequate congressional oversight, which so far hasn't happened.

Remember this story about journalist Christiane Amanpour?:

http://www.thecarpetbaggerreport.com/archives/6251.html

The other outrageous part of this story (which comfortable media folks will never discuss) is the fact that the NY Times had this story before the 2004 election, but sat on it until almost a year later, because they didn't want it to affect the vote.

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/16/AR2005121601716_pf.html

http://www.huffingtonpost.com/arianna-huffington/the-times-remember_b_23914.html

Your "Liberal Media" in action...covering up for the Bush/Republican crime family again.

After watching these guys for six years, what evidence do you have that they would use this information for anything besides digging dirt on political enemies? And why doesn't the liberals' representative at Time see a need for oversight and transparency in government? If they want the program, it should be out in the open, with safeguards to insure it is used for the right purposes. They won't do that because they don't want to use it for the right purposes. They want another lever of power engaged in purely partisan exercises rather than the business of the nation.

You might have heard of the attorney purge. Interesting how these guys would not allot funds to find the killer of a Federal Prosecutor and instead demanded people's heads if they didn't frame innocent Democrats or drop investigations of guilty Republicans. Interesting, that. Our Judicial system, tasked with criminalizing participation in the democratic process on behalf of the wrong party. But I'm sure your faith in Rove's unrestrained ability to tap people's phones is not misplaced. He used the word "terrorist" after all, and what kind of centrist would you be if you didn't step in line every time you hear those words? Only extremists don't play Simon says when the big T word is used.

I also agree with steve simels. The abuse of any of the wiretapping programs for political benefit is exactly the Rove Component that I would hope for the Judicial Branch oversight to prevent. But when the Unitary Executive theory goes out and gets a guy like John Yoo to tell them that the Executive Branch does not need to go through the Judicial Branch then there is nothing to stop them. The Unitary Executive theory calls for way to much trust in any president and this one has proven that the trust would be misplaced.

A good analogy is one where I decide not to pay my taxes so I go out and interview tax lawyers until I find one that tells me I don't have to so I stop. Then when I am found out I simply state that I hold a different interpretation of tax law from the IRS so I shouldn't be punished. In the meantime I got away with not paying taxes.

Wasn't there an FBI wiretapping program that was recently found to have been abused? It is hard to keep all of these programs straight.

Joe, we're glad you're up front about your support of illegal Bush administration policies that violate the Constitution. At least we don't have to guess. You were laughably wrong in January 2006 about the Democrats who opposed the illegal NSA wiretapping -- that they would never reclaim a majority -- and now, again, you find yourself like the rest of the pathetic Beltway press on the wrong side of the issue again. Finally, there is nothing inaccurate about "illegal wiretapping". Wiretapping without consent from FISA is illegal. And that is what is going on. Glad that you're part of the pro-illegality crowd.

Christian in NYC - It is my understanding, and Klein's as well, that the NSA program has been placed back into the purview of the FISA court. I agree that it was illegal while it was outside of it but I think things are back on track.

I think Joe was seeking to be overly precise by not calling it wiretapping because supposedly the NSA was only tracking the calls made and not listening to the contents of the calls. I think that was part of the argument by Bush as to why the program was OK outside of FISA. Luckily, better minds prevailed.

If I am off on any of these things let me know.

It wasn't just overseas calls, and it's still not:
http://www.usnews.com/usnews/news/articles/060327/27fbi.htm

and: Bush Personally Intervened To Arrange Ashcroft Hospital Visit And Kneecap Comey -- http://thinkprogress.org/2007/05/16/bush-comey/

"I continue to believe in the importance of a carefully monitored, legal data-mining operation."

So do I. So I suspect do most Americans and probably every single Congressman. But that's not what we're talking about here, certainly not the "legal" part and likely not the "carefully monitored" part. If the law needs to be changed to accommodate reasonable surveillance, then the executive can make the case to Congress who can change it. Don't break the law and then lobby to change it after the fact if and when you get caught.

> Christian in NYC - It is my understanding,
> and Klein's as well, that the NSA program
> has been placed back into the purview of
> the FISA court. I

How do we know that? Who was the source? Was it an anonymous White House staffer? If so, what probability do we place on the truthfulness of the information?

In any case, the W Bush Administration has explicitly stated that they are not bound by court decisions they don't agree with (nor laws), in general if President Bush says so but in all cases involving anything they have defined as "national security". So even if the Bush Admin said this on the record I am a little unclear why anyone would believe them.

And again: does the traditional media think that the Bush Admin is using this information to spy on its political opponents or not? Seems to fit quite neatly with everything else they have done, and there were some tantalizing hints during the Bolton confirmation (never followed up on, of course).

Cranky

"How is this not a major scandal on the level of the greatest presidential corruption and lawbreaking scandals in our country's history? Why is this only a one-day story that will focus on the hospital drama but not on what it reveals about the bulging and unparalleled corruption of this administration and the complete erosion of the rule of law in our country? And, as I've asked times before, if we passively allow the President to simply break the law with impunity in how the government spies on our conversations, what don't we allow?

If we had a functioning political press, these are the questions that would be dominating our political discourse and which would have been resolved long ago." --
http://digbysblog.blogspot.com/2007/05/basically-thugs-by-tristero-glenn.html

Joe: You are hopelessly pathetic.

Can you give us a single example, over the past six years, in which faith in the Bush Administration's willingness to play by the rules was justified?

Can you?

You are a disgusting, disgusting shill.

Joe: You are hopelessly pathetic.

Can you give us a single example, over the past six years, in which faith in the Bush Administration's willingness to play by the rules was justified?

Can you?

You are a disgusting, disgusting shill.

I look to Glenn Greenwald on this one, he's further out front on this story than anyone else in the MSM.

I look to Glenn Greenwald on this one, he's further out front on this story than anyone in the MSM.

Terrapin writes:

"It is my understanding, and Klein's as well, that the NSA program has been placed back into the purview of the FISA court. I agree that it was illegal while it was outside of it but I think things are back on track."

That's far from clear, especially when not narrowly interpreted as applying to the TSP.

Remember the domestic call detail database reported by USA Today? It involved details of purely domestic calls by tens of millions of Americans and was neither confirmed nor denied by the administration (they actually took the ludicrous position that they would not confirm that they had neither confirmed nor denied it, but I digress). As I've read them, statements by DOJ officials that they are now submitting to the FISA court are narrowly tailored and would not apply to that program or other programs than the one specifically admitted to by the administration.

They're still not doing any of it legally:

"Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January. Rather, they argued that the president had the constitutional authority to decide ..." -- http://select.nytimes.com/gst/abstract.html?res=F60F10FF3B5A0C718CDDAC0894DF404482&fta=y&incamp=archive:article_related

Note that they call it a "domestic wiretapping program" too.

Joe stated-"As I understand it, it works like this: it's a front-end computer program that is used to detect patterns of phone calls or emails coming into the US from known terror suspects overseas."

This is nonsense. Assuming that you are correct about how the program works, there would be no problem getting a warrant from the FISA court to monitor ALL communications to and from any known terror suspect. I think the most favorable view of what they were trying to do with this program is to monitor communications from a vast array of people not suspected of terrorism and then look for keywords that might connect them to terrorists.

Joe has a certain reading of what their motivations were for breaking the law, and what was done with the data during that period. He may be right. He may be wrong. There were no checks and balances in place to make it transparent and subject to review. It was just the executive operating on its own. So we don't know.

Once the camel's nose is in the tent, I would argue that this sort of thing becomes a different game. Once activities are underway, would they stop, cold turkey? Or would they find more ways to do what they were doing, with more creative legal justifications?

So what they were doing before bringing back the FISA court is not irrelevant. Joe's reading of the situation is very possible, but it's just one reading. We don't know what happened when the law was being broken, and when the congress was circumvented, because there hasn't been proper oversight.

Haven't we already had admissions that the FBI abused expanded powers granted to them under the Patriot Act in literally thousands of cases?

Wake up, Joe. It's morning!

Frankly, ignorant posts like this one make me think the Bushies already have the goods on Mr. Line. That's how they get him to post junk like this.

> [the traditional media] has a certain reading
> of what their motivations were for breaking the
> law, and what was done with the data during that
> period. He may be right. He may be wrong. There
> were no checks and balances in place to make it
> transparent and subject to review. It was just
> the executive operating on its own. So we don't
> know.

I would disagree with that. The traditional media has their "sources", who presumably are telling key reporters a story something like the one you describe. The traditional media reporters believe these sources. I (and most liberals) think there is a substantial probability that those sources are either lying, being misled, or just wrong. Occam's Razor applied over the last 6 years says that distrusting the sources is the best course of action, but the traditional media doesn't agree.

Cranky

"I favor the NSA's data-mining operation. As I understand it, it works like this..."

Joe, this is the key to the whole debate. You don't know how "it" works. I don't know how "it" works. We don't even know what the hell "it" is. The only court nio the nation that reviewed the programs declared them to be illegal, and this decision was based in large part on the government refusal to disclose much of anything about "it".

If you are willing to accept this Administration at only its good and honest word that this (or these) program(s) are not only Constitutional but are also closely monitored and limited in scope, then you are making a horrible misjudgment. I would not cede that level of faith in ANY president, but I would not trust this Administration to look outside and tell me that it was sunny outside.

Please explain the basis for your statements about the program's structure, if you can.

And there we have it:

http://www.commondreams.org/archive/2007/05/02/906/

> But on Tuesday, the senior officials, including
> Michael McConnell, the new director of national
> intelligence, said they believed that the
> president still had the authority under Article
> II of the Constitution to once again order the
> N.S.A. to conduct surveillance inside the country
> without warrants.

Note that is May 2nd. I am curious what Time's sources say about this.

Cranky

> [traditional media guy], this is the key to the
> whole debate. You don't know how "it" works. I
> don't know how "it" works. We don't even know what
> the hell "it" is.

Again though, the traditional media thinks that its sources _do_ know how the program works _and_ are being truthful to them about it. That is why the comments here don't register on the name posters - they believe they have an additional, deeper source of information/knowledge that we don't. We believe that source of information is not trustworthy. The cognitive dissonance is too great for the traditional media to handle.

Cranky

oh joe, you're so trusting and obliging, it's sweet. how you came to be a reporter remains a bit of a mystery though, there's not much of the skeptic in you and you seem to bark mostly at the blogs. for some real reporting, check this out:

http://www.salon.com/opinion/greenwald/2007/05/16/nsa_comey/index.html

"As I understand it"

You realize we all stop reading when you say that because we know a horrifying misinterpretation is soon to follow.

You like data mining because you think it makes you look like a "24" watching tough guy. There is no way you could understand the technology involved, the constitutional issues involved, or the realities of how it will be applied. You're out of your depth on this issue.

Joe,

Comey’s testimony contains a smoking gun but no one in the MSM has mentioned it.
If the Attorney General (AG) and the Department of Justice (DOJ) told Bush that his warrantless wiretapping program was unlawful, and Bush defied them and authorized the NSA to continue, then Bush may have committed a crime.
I'm no criminal lawyer, but a crime generally requires an act and intent to commit the act.
Up until now, I thought Bush was pretty shielded from any criminal charges because he had been operating under the guidance of his attorney at the time – Gonzales. But now we learn that he wasn't shielded. The DOJ was telling Bush it was unlawful.
The NYT (http://www.nytimes.com/2007/05/16/washington/16nsa.html?hp) has an article that states:

“President Bush intervened in March 2004 to avert a crisis over the National Security Agency’s domestic eavesdropping program after Attorney General John Ashcroft, Director Robert S. Mueller III of the F.B.I. and other senior Justice Department aides all threatened to resign, a former deputy attorney general testified Tuesday.
Mr. Bush quelled the revolt over the program’s legality by allowing it to continue without Justice Department approval, also directing department officials to take the necessary steps to bring it into compliance with the law, according to Congressional testimony by the former deputy attorney general, James B. Comey. “
They phrased the article as though President Bush’s authorization of warrantless wiretaps was just some sort of passive act, ( i.e., "allowing it to continue without Justice Department approval"), it was far from a passive act – it was an act in defiance of the opinion of the Attorney General, the Deputy Attorney General, the Director of the FBI, and other high ranking officials in the Department of Justice.
So, rather than characterizing Bush’s action as passive, it should be characterized as possibly being not just unlawful, but criminal. If Bush knew that the Department of Justice was objecting to such authorizations on the grounds that they thought such activity was (or could have been) unlawful, then the President’s subsequent authorization could constitute a knowing violation of the law.
Imagine if an average citizen wanted to undertake some activity that he recognized could be unlawful. Imagine further that person had occasion to ask the Attorney General of the United States whether such activity was lawful. Following consultation with attorneys in the Department of Justice – some of whom have tremendous expertise in prosecuting violations of federal statutes – the Attorney General determined that such action would be unlawful. Finally, imagine that the Attorney General verbally informed the average citizen that such activity was unlawful and that the Attorney General followed up by having a senior member of his staff send the average citizen the informed legal opinion of the Department of Justice.
Wouldn’t it be reasonable for the average citizen to assume that if he undertook the activity that was the subject of the inquiry to the Attorney General that the average citizen would (or at least should) become the target of an investigation by the Department of Justice and that if sufficient evidence arose the average citizen would be prosecuted? Wouldn’t it further be reasonable to assume that the trial court would be made aware that the average citizen had sought the opinion of the Attorney General, received notice from the Attorney General that such activity was viewed as unlawful, but that the average citizen proceeded to engage in such activity anyway?
Why should the President of the United States be treated any differently? Since we follow the rule of law in this country, anyone who is suspected of committing a crime, even a President should be tried in a court of law. Mr. Comey’s testimony seems to provide considerable evidence that the President knowingly authorized unlawful activities when he allowed for warrantless wiretaps after he had been notified by the Attorney General and the Department of Justice that it was their expert legal opinion that such activities were unlawful
If what Comey says is true, then Congress – and the Department of Justice – have an obligation to investigate to determine if the President violated a federal statute.

I don't know if someone already corrected Joe on this, because I skipped down to the bottom.

Joe, you miserable little bootlicker, you need to get your facts straight. You're so badly misinformed on the NSA warrantless surveillance that you should probably just apologize and STFU.

Joke Line said:
"Now, what would a reasonable President do? He would ask for a revision of the FISA law to include data-mining. Not Bush. He insisted--to the outrageous extent described by Comey--on his Executive Privilege to declare data-mining legal."

No he didn't, Joe, he went much further than that, and it's important to understand what he did in order to understand that President Bush himself knew what he was doing was illegal.

Senator DeWine actually introduced legislation that would loosen FISA regulations, and the Administration openly and publicly OPPOSED the new legislation on (get this) CONSTITUTIONAL grounds. Did you hear that, Joe? Not only did Bush secretly authorize an illegal program, but he opposed any efforts to legalize it because it may violate our Constitutional right to privacy. That's way more than merely *declining* to seek new legislation Joe, you a--hole, and you should be ashamed of yourself for not knowing this.

Joke Line said:
"The story became "illegal wiretapping" in media shorthand (somewhat inaccurately), and it's in the American DNA, conservative and liberal, to be sensitive about such things."

Joe, warrantless surveillance is illegal. Period. There is nothing "somewhat inaccurate" about that at all. FISA was passed in 1978, and modified several times since then (most recently in 2001, post-9/11). President Bush's warrantless surveillance program is illegal, and you're a lying s--t for playing word games on that.

Joke Line said:
"Quietly, with the election past in January, Bush put the NSA operation under the control of the FISA court."

No he didn't, f--kface. Alberto Gonzales has repeatedly said to Congress that he makes no assurance that all surveillance programs comply with FISA. So no, we do not know that all NSA programs comply with FISA, and given the past violations of FISA we can safely assume the opposite. Unless you're a worthless dumbf--k like yourself.

To the commenters, I apologize for all the rough language, but I feel Joe deserves it and much more on this issue. To Joe, go f--k yourself.

Joe,
I am glad you trust these guys with your information, but I don't...sorry!! You or I don't know what they are doing...you think you do which is dumb and dangerous....

Many Republicans already operate under the assumption that Democrats and terrorists are in a de facto alliance, at least in principle (terrorists want Dems to win elections) if not in practice.

So to me there is little doubt that wiretapping is being used by this Republican administration to spy on Democratic politicians and/or journalists or other individuals who may ultimately cause problems for Republicans at the polls.

It is consistent with their public behavior. It is consistent with their public statements. It is consistent with their political philosophy.

And it is illegal.

*Warrantless* wiretapping is illegal, just to be clear.

Ya know guys, I would like to yell at certain members of the traditional media as well - but I don't think it would (or does) do any good.

Just a thought.

Cranky

It wouldn't be at all surprising if journalists were targets of wireless wiretapping. This is by Scott Horton:

***America’s historical attitude has been tolerant, reflecting the values of the First Amendment. Reporters may be irksome and inconvenient – they may get in the way of the message the Pentagon and the White House want to get out. But historically the United States has respected that they play a legitimate role – a role that takes them out on to the field of battle to perform a difficult and dangerous job.

Under the Bush Administration, and particularly under the Neocon idealists who have seized the machinery of war, the historical view has been warped and subverted and something quite sinister is emerging in its place.

The notion of “communications” plays a crucial role in the Department of Defense’s last Quadrennial Review. The focus of the discussion of communications is not signals or dealing with allies, but management of the media – and particularly of the media message concerning the conduct of the war beamed back home to the United States. In the view of Neocon theorists like Stephen Cambone and Douglas Feith, the media affords access by the “enemy” to the “soft underbelly of the democratic state.” The war effort can be undermined and the will of the people to fight can be eroded. To most Americans, this would be called “democratic process,” namely the right of the people to be freely informed and to decide to authorize or reject the conduct of war as a part of their essential franchise. But the Neocon theorist has been ever mindful of the “weaknesses” and “vulnerabilities” of democracy, and frankly never so enamored of democracy.

While working in Iraq last year, I was warned repeatedly that journalists were targeted and that documents existed establishing this. I was also warned that by defending journalists, I would myself become a target.

Even more chilling: in a series of speeches given across the country, Secretary of Defense Rumsfeld has assailed journalists and suggested that Al Qaeda and other terrorist organizations are successfully infiltrating media organizations and controlling their message.***

http://harpers.org/archive/2007/05/horton-20070504cryp

Just one example of this attitude. Noah Shachtman:

****To the Army's 1st Information Operations Command, the "media" is just another threat -- along with "al Qaeda," "hackers," and "drug cartels."****

http://blog.wired.com/defense/2007/05/army_milbloggin.html

(Maybe the 1st Information Operations Command is a ways away from the NSA. But it's not out of the realm of possibility that this kind of culture has trickled down...)

This post by Joe reminds of the Michael Kinsley Swampland post where he conceded that the Bush administration lied a lot. Presumably he (and Klein) would also concede that the Bush admin is obsessive about secrecy. Yet somehow there is this view that all these lies and secrecy are almost pointless. Kinsley and Klein seem to think that at bottom, the Bush administration are doing honorable things that could be done honestly with some minimal inconvenience but they just perversely insist on falsehood and secrecy.

This comment at TPM rebuts that mindset nicely for the incident Comey spoke about:

"I think it’s safe to assume that whatever they were fighting over, it was a matter of substance. When John Ashcroft is prepared to resign, and risk bringing down a Republican administration in the process, he’s not doing it for kicks. Similarly, when the President sends his aides to coerce a signature out of a desperately ill man, and only backs down when the senior leadership of a cabinet department threatens to depart en masse, he’s not just being stubborn."

Source:
http://www.tpmmuckraker.com/archives/003232.php#more

PBS: Spying on the Homefront -- http://www.pbs.org/wgbh/pages/frontline/homefront/

Cranky, Klein is spreading obvious misinformation about these programs and who they target. Since his editors obviously don't correct it, and he doesn't Google at all to check himself, who is there?

Hey I watch 24.

I think all this NSA stuff is hugely against the law. I just finished listening to Bob Dylan's "Masters of War". Very appropriate.

So can I still watch 24?

Thanx

Joe - I really think you need to do a little research on data mining. It is not about looking KSM's call records. That would be part of an investigation and I am sure a warrant would be easy to obtain. Data mining is collecting massive amounts of data from many sources (i.e. Google searches) and trying to establish patterns etc. You run queries against a mountain of data and look at the results. For example insurance companies use data mining to determine how many broken arms they can expect in a given region. There is a lot of data mining already done on publicly available information. The techniques can be quite sophisticated and the results of which would shock you. Call around learn about it before blindly supporting it. The problem is the government is collecting data that would usually require a court warrant and they are collecting it on all of us not just terrorists. In relation to this program there were several stories about large telecommunication and internet companies turning over their records to the US govt. (I think I remember only Google resisting).

I can see why some would think we need this but we need to understand what we are signing off on. That data could be mined for all kinds of useful information for many years. Data mining results are not perfect and could open the door to investigating innocent U.S. citizens. A program like this needs a lot of oversight. Comey's testimony would seem to indicate that Gonzales doesn’t really care much for oversight or the rule of law.

They're not listening anyway, Cranky, so it doesn't really matter.

If after all this time (years!) and all the links to Greenwald, who I'm sure Joe knows of, he can still claim to have any real (or imagined) understanding of how the NSA domestic spying programs work, and not only that but support them as he formulates them, then it's a lost cause. He's drunk the Kool-Aid.

"Warrantless" wiretapping isn't technically illegal; they have 72 hours to retroactively get a warrant, or stop. If they don't do that, THEN it becomes illegal.

Sourcewatch has some interesting articles:

"Firstfruits" was "part of a Director of Central Intelligence (DCI) program that was maintained at least until October 2004 and was authorized by then-DCI Porter Goss. Firstfruits was authorized as part of a DCI "Countering Denial and Deception" program responsible to an entity known as the Foreign Denial and Deception Committee (FDDC). Since the intelligence community's reorganization, the DCI has been replaced by the Director of National Intelligence headed by John Negroponte and his deputy, former NSA director Gen. Michael Hayden," Wayne Madsen wrote in the December 29, 2005, Alternative Press Review.

"Firstfruits was a database that contained both the articles and the transcripts of telephone and other communications of particular Washington journalists known to report on sensitive U.S. intelligence activities, particularly those involving NSA. According to NSA sources, the targeted journalists included author James Bamford, the New York Times' James Risen, the Washington Post's Vernon Loeb, the New Yorker's Seymour Hersh, the Washington Times' Bill Gertz, UPI's John C. K. Daly, and this editor [Wayne Madsen], who has written about NSA for The Village Voice, CAQ, Intelligence Online, and the Electronic Privacy Information Center (EPIC)."

http://www.sourcewatch.org/index.php?title=Firstfruits

A lot more at Sourcewatch here:

http://tinyurl.com/yqwbtp

How long until we find out that Joe Klein's favorite data mining operation, the illegal eavesdropping on American citizens and others and other Big Brother surveillance techniques are being used on law abiding citizens who oppose the Bush Command?

Remember, "What you've got is everything, and I mean everything, being run by the political arm. It's the reign of the Mayberry Machiavellis,"said John DiIulio

These peple don't mind abusing the Justice Department and American jurisprudence to get their way. Why do you think, Mr Joe Klein, they would not abuse these (illegal) surveillance powers for partisan gain?

That you would still give George Bush the benefit of the doubt after all we've learned is to your great and lasting discredit.

The FISA court already has the power to issue *retroactive* warrants. If there was a reason to suspect they had a terror financier's cell phone number, then they *already* had the power to legally monitor them.

So why are they fighting so hard for a right they already had?

It's about domestic spying, Joe. They truly want to eliminate the 4th Amendment. And you are standing proudly with them.

What a lovely niche you're carving out for yourself in history.

Joe, one of your "parasite" bloggers (yes, blogs depend on reporters, but surely there's a better word to describe them) has just posted a video transcript of the Comey testimony:

http://www.talkingpointsmemo.com/archives/week_2007_05_13.php#014173

You're hypothetical example is not one of data mining at all. If a terror suspect is known there is no need for "data mining" to identify a pattern of calls to a third party, simply reviewing phone records - with a warrant - is sufficent.

> They're not listening anyway, Cranky,
> so it doesn't really matter.

liberalrob,
I agree they aren't _listening_, yet (and maybe never). I think they do scan the comments from time to time. I don't know anyone who thinks they deserve to be called a stupid jerk, or who is more likely to pay attention if you do call him that (even the stupid jerks). If we want the names here to start thinking about these issues rather than steno'ing the latest White House sources, we have to avoid namecalling I think.

> How long until we find out that Joe Klein's
> favorite data mining operation, the illegal
> eavesdropping on American citizens and others
> and other Big Brother surveillance techniques
> are being used on law abiding citizens who
> oppose the Bush Command?

AlphaLiberal,
Seems that an organization with real reporting resources, credibility, etc. could dig into that. I hope one does.

Cranky

"Seems that an organization with real reporting resources, credibility, etc. could dig into that. I hope one does."

That's why this is all so shameful. Time could be doing all of that, but hasn't been, and continues to misrepresent and lie about what these programs are actually doing and who they are targeted at.

Joe's 'group' uses the collective Universal consciencenous to believe in the whole fear package and the underlying goodness of this administration to 'protect us' against the bad guys. Warrantless wiring taping will never be used against them because they are 'good' and march with the 'patriot police'.

Many others use our collective Universal consciencenous to believe that where there is smoke there is fire. That what can be used against a few, can be used against all. Especially, those who seek knowledge, using intellectual curiosity and refuse to willingly suspend disbelief to form an opinion.

Joe, we are talking a matter of faith. We are talking a matter of fact. The lamb's blood is the balance of power and a transparent government of the people, by the people, for the people. While I agree that there is a need for top secret, the abuse of this administration's discretionary use of 'top secret', 'executive power', and decision making bottomline s***s.

They lied us into war, and they are lying to keep us there. Their lies and the means they have used to protect their lies threatens us all yesterday, today and tomorrow.

This is the board that Lanny Davis just resigned from: "The first public meeting of a Bush administration "civil liberties protection panel" had a surreal quality to it, as the five-member board refused to answer any questions from the press, and stonewalled privacy advocates and academics on key questions about domestic spying.

The Privacy and Civil Liberties Oversight Board, which met Tuesday, was created by Congress in 2004 on the recommendation of the 9/11 Commission, but is part of the White House, which handpicked all the members. Though mandated by law in late 2004, the board was not sworn in until March 2006, due to inaction on the part of the White House and Congress.

The three-hour meeting, held at Georgetown University, quickly established that the panel would be something less than a fierce watchdog of civil liberties. Instead, members all but said they view their job as helping Americans learn to relax and love warrantless surveillance.

"The question is, how much can the board share with the public about the protections incorporated in both the development and implementation of those policies?" said Alan Raul, a Washington D.C. lawyer who serves as vice chairman. "On the public side, I believe the board can help advance national security and the rights of American by helping explain how the government safeguards U.S. personal information."

Board members were briefed on the government's NSA-run warrantless wiretapping program last week, and said they were impressed by how the program handled information collected from American citizens' private phone calls and e-mail. ..."
--- http://www.wired.com/science/discoveries/news/2006/12/72248

Note the "information collected from American citizens' private phone calls and e-mail."

Talking Points Memo had something on Lanny Davis as well:

http://www.tpmmuckraker.com/archives/003217.php

Here's Bush lying about the program and about consulting Justice beforehand: http://blog.wired.com/27bstroke6/2007/05/news_from_bizza.html

"... Here's the president in 2006 talking about how he only launched the NSA program after consulting with his AG and Justice.

But before I implemented the program -- I'm mindful of the fact that I took an oath to uphold the Constitution and the laws of the United States. So I had lawyers -- the Attorney General and the Justice Department look at what I was doing. ..."

He didn't do any of that.

cranky, I understand where you're coming from, but I've pretty much gotten to the point where Joke Line is a lost cause. If after all this time and all this factchecking (with no true corrections or retractions from Joker), he STILL insists on willfully obtuse and factually challenged posts, then he really is a stupid jerk.

I'm sorry, but at a certain point in time, we all must make judgments about people, even people we've never met. I mean, haven't we all made a judgment about what kind of person George W. Bush is? We make these judgments from afar and with imperfect information, yet we make these judgments nonetheless. I've had it with Joker, and I've made up my mind. He's a narcissistic a--hole that is more interested in political play-by-play and word games than good governance and adherence to facts.

I have no interest in being civil to Joke Line, because he's abused that privilege. He doesn't deserve civility. F--k him.

How many weeks (days?) are we from the "president" declaring all dems "enemy combatants" and the only rep's are left to run for the office? And it would all be "perfectly legal"!

"... In other words, even after the outcry over publication of details about this program in December 2005, even after the Administration came up with changes in the program to appease Congress, even though some amazingly conservative people stood with Comey when he opposed the program in 2004, the Administration just reasserted its willingness to wiretap Americans without a warrant, regardless of the law. ..." -- http://www.firedoglake.com/2007/05/16/illegal-domestic-wiretapping-bush-just-did-it-again/

I'm just glad Joe was able to explain certain details of this "data mining" program that the Bush Administration itself has never, to my knowledge, explained to anybody. Do you have sources for this info, Joe, or are you just guessing the "best case" that fits your viewpoint that the NSA domestic phone tapping (and/or data mining) is no big deal? Please advise.

Wow, lots of good posts on this subject. I was off watching the Frontline show on domestic surveillance - good stuff.

Cranky, Crust and others - You are absolutely right. Given the erosion of confidence in the DOJ caused by the sheer incompetence of Gonzales, it would be folly for me to trust that things are going well. I guess what I should have written was that I would be satisfied with FISA court oversight if that is what they are doing. But given this administration's belief in unrestricted Executive Branch power (Unitary Executive Theory) I cannot say for sure that FISA is being obeyed.

So where does that leave me? I guess that leaves me suspicious of my own government until I can elect an administration that does not subscribe to Unitary Executive Theory. But I cannot fault Joe Klein for what he wrote because I had come to the same understanding of the program and how the FISA issue had been resolved.

Still, I'd like a handy chart of all of the surveillance programs and from which agency they are being run. IIRC the FBI abuses occurred in a different program (the FBI program, I think).

Uhmm...

Wasn't FISA updated in 2001 to deal with all those new techonological problems?

Let's remember this Joe Klein scolding on the need for Dems to STFU about abuses of government authority :

"But there is a difference. National security is a far more important issue, and until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country."
http://www.time.com/time/columnist/klein/article/0,9565,1147137,00.html

Hey, Joe, looks like you got that one wrong! Instead of urging fear of principle, why not just advocate plain old American values, which don't include turning this society into a police state?

Klein is an effing nut. Do you also support the fact that we swooped up and took KSM's children and tortured them in front of him to try to get him to break ???

Anything goes, apparently.

Nice rule of law world you inhabit.

Yeah...uhm...

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107

So why did the President need to break the law again?

"Wasn't FISA updated in 2001 to deal with all those new techonological problems?"

Yes, looks like it was amended in 2001 under the USA act and the PATRIOT ACT. If the administration needed more, why didn't it deal with FISA then? (Do a search on this page for FISA.):

http://en.wikipedia.org/wiki/Section_summary_of_the_USA_PATRIOT_Act,_Title_II

JJ,

So, in essence, Klein is completely wrong about 'new technology'. That's how I'm seeing it anyways.

"I was off watching the Frontline show on domestic surveillance - good stuff."

They've been the only media outlet to expose all this stuff--just excellent reports on everything. And Moyers has a new weekly show and blog too-- http://www.pbs.org/moyers/journal/blog/

It's absolutely pathetic that if we had to rely on Time and its media cousins, we'd know nothing at all at best, and lies at worst.

The notion of FISA collecting dust on a shelf somewhere not touched since the age of disco and verging on blue law status sounds suspiciously like a Republican talking point to me.

Joe, you should track down where that talking point came from and cross it off your list of reliable sources.

Here's the problem with what you say: You purport to "favor" the "program," so long as we stipulate that the "program" is what you speculate it is. Isn't the very first order of business to find out what the hell the Administration has done, and only then to evaluate it? But, until yesterday, no one had really advanced the story beyond the original (and belated) NYT scoop, and Congress has done no public oversight. You came out early in "support" of this program. Aren't you a little concerned that something was going on that nearly resulted in John Ashcroft's resignation?

amberglow - "They've been the only media outlet to expose all this stuff--just excellent reports on everything."

Completely agree. And the fact that it is all available online for free speaks highly of how seriously PBS takes its mission to educate this nation's citizens. If only I had more hours in the day to soak all of this up.

I encourage everybody to go to the website and make use of this wonderful resource.

Ben, I remember your logic being applied by somebody else on Friedman and Joke Line's support for the Iraq War. It goes something like this:

1. I will only support action X if conditions Y exist.
2. Conditions Y don't exist.
3. Therefore, I support action X.

Huh? As some blogger smarter than me noted, if these guys thought this way about sex, they'd all have herpes:

1. I will only have sex if I have a condom.
2. I do not have a condom.
3. Therefore, I will have sex.

Good times...

Mr. Klein
You argue "Now, what would a reasonable President do? He would ask for a revision of the FISA law to include data-mining. Not Bush. He insisted--to the outrageous extent described by Comey--on his Executive Privilege to declare data-mining legal. Why did he do this?
Because he believed the power of the President had been eroded and he had to make a firm Executive Privilege stand? Perhaps, initially. But ultimately this was politics: He and, no doubt, Rove figured the Democrats would make a civil liberties squawk and they'd be able to make the soft-on-terrorism argument in the 2006 elections, diverting attention from Iraq and all the other failures on his watch"

So you are arguing that Bush (and Rove)'s motivation to deliberately break the law starting in 2001 was so that they could use this as an issue to beat the Democrats in a congressional election 5 years later.

Can you please tell us then why Bush chose not to bring up this issue in the close 2004 Presidential election?

Mr. Klein,

I'm afraid you're slightly incorrect. The Bush admin did ask Congress to further expand FISA back in 2001/2002. They were rebuffed.

They were rebuffed and then decided to go ahead anyway even tho they'd be breaking the law, which they decided on their own didn't apply to them. The courts later proved them wrong but they continued and they're still not following the law--as they admitted just 2 weeks ago.

Joe:

Bob and a few other commenters have already raised one of my points: what you describe is not data mining. Finding out who someone has called, and who they called, and so on, is simply detective work, and is perfectly legal when done with a warrant. Anybody who has "explained" data mining to you in this way was obviously trying to mislead you.

Data mining is a set of statistical tools designed to comb through massive amounts of structured data, looking for significant patterns. I could speculate further about what sort of structure and patterns the illegal wiretapping program employs, but I won't. I can tell you right now, with some authority and with the math to back me up, that data mining for terrorists will never work. There simply aren't enough terrorists.

Here's a scenario: let's suppose that there are 10,000 terrorists in the US making phone calls. Let us further suppose that the data mining algorithms are spectacularly effective, with a false negative rate of 0.1% and a false positive rate of 0.01%. In English, that means that if a terrorist is "tested", 99.9% of the time, they will be correctly identified as a terrorist, and if an ordinary citizen is tested, they will be incorrectly tagged as a terrorist only 0.01% of the time. As I mentioned above, these rates would be spectacular for any data mining program. (My own work is considered successful if I can get to 10% false negative and 2% false positive, but I work on unstructured data.)

So pick a random person in this scenario. What is the probability that they will be classified as a terrorist? Well, the math is pretty simple: any random person has only a 1/30000 chance of being a terrorist (based on a US population estimate of 300,000,000). So what's the chance that the test will come back as "Terrorist"? Well, it's the sum of a few values: P(Ct, T) + P(Ct, ~T) = P(Ct | T)P(T) + P(Ct | ~T), where 'Ct' is the event that the test returns "Terrorist", 'T' is the event that the individual is actually a terrorist, and '~' is the standard "not" symbol.

In our scenario, that sum comes out to P(Ct) = 0.00013329967, meaning that for any random check, there is only a 0.01% chance that it will return the label "Terrorist". Sounds pretty cool, huh? Except that means that, over the entire operation, our spectacularly accurate data mining operation will return approximately 40,000 "Terrorists". That's about one terrorist nabbed for every three innocents falsely accused. Now let's drop the number of terrorists in the country to 1000. How does that affect our data mining? Well, it'll now return about 31,000 hits, which is one terrorist nabbed for every thirty innocents.

The fact is, terrorists are extremely rare, and mistakes are common. Data mining can work for scenarios in which patterns being sought are uncommon, but not rare, e.g. credit card transaction fraud, but it works best at tweaking interesting relationships out of everyday events.

Keep in mind that every false positive in our terrorist scenario is not only an innocent, but is a false alarm which occupies our actual law enforcement officials. And also keep in mind that I've been incredibly, unrealistically generous to our NSA data mining spooks.

This surveillance program, besides being unethical, unmanagable, and illegal, is also a tremendous waste of our time and money. By overloading our law enforcement officials with garbage data, it actually increases our risk.

i see the changed klein's mug shot on the home page. restoring the top of his head does not seem to have restored his mind.

klein is a stooge of the highest order -- a weather vane wrapped in a yard of GOP talking points fax paper. he has nothing original or incisive to say. he is the ultimate MSM poltroon.

Just to add a few points to my above comment:

I advanced the hypothesis that any data mining operation with a very small target group relative to the overall population would lead to an unmanageable number of false positives. A quick google search led me to this article: http://www.nytimes.com/2006/01/17/politics/17spy.html?ex=1295154000&en=f3247cd88fa84898&ei=5090&partner=rssuserland&emc=rss, which supports my hypothesis quite well.

Another objection might be of the form, "John, with such an elite group of experts as is gathered at the NSA, how would so fundamental an objection be ignored?"

Well, in my experience, it goes something like this: a researcher comes up with a cool idea like, "Hey, why don't I see if I can mine social networks for terrorist activity?" Working with a small data set, they are able to demonstrate impressive results. Some manager notices these results, is wowed by them, and brings them to the attention of some other managers. They are wowed by the mystical aura of data mining, and throw money at the researcher and his manager. Before you know it, the entire project has snowballed, with anybody who raises questions getting pooh-poohed. After all, the initial results were good, and data mining is magical, right?

Look at the post-9/11 rush to install face detection technology in hot spots like airports. It's a very similar problem, and vendors were very careful to avoid disclosing false positive statistics. Magical technology would solve our terrorist problem by picking them out the crowd!

End result: millions spent, nobody nabbed, and hundreds of innocents harassed. The systems are being shut down at the request of the security departments, who spent way too much dealing with garbage data.

It sounds like a good idea, unless you are able to sit down and work through the numbers. Nobody wants to listen to the people who do, though. They'd rather believe in magic.

Joe,

Comey tells us that the program was so objectionable that he, Ashcroft and FBI Director Mueller were willing to resign in protest, rather than sign off on it.

Hello?! Even Ashcroft was willing to resign! WTF?!

You just simply don't get what we're dealing with here.

John, thanks for the primer on data mining and false positives and dealing with garbage data. Your nutshell tutorial is very helpful.

Shorter Joe Klein:

Nothing this President would do would cause me to advocate for impeachment. Nothing.

The main character of Terry Gilliam's "Brazil" was a false positive.

Actually, I take that back. He was trying to *fix* a false positive and essentially became one in the process. "Tuttle", "Buttle" the system didn't care.

Hah. Found it on You Tube:

http://www.youtube.com/watch?v=291QciJA2Wo

Joe: Take a look at Marty Lederman's last three posts over at Balkinization, and see if you're still so confident that you can express "support" for this "program."

There was a great moment on the Sopranos last season when Dr. Melfi said something to Tony along the lines of: "You don't have to eat every bowl of ziti."

To which I'd add: You don't have to express an opinion about everything before you know what you're talking about.

The portrayal of the NSA surveillance program as "data-mining" is entirely novel to me.

The Bush Administration *itself* explicitly characterised the program as "intercept[ing] international communications into and out of the United States."

http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf

I don't understand how "intercept" can be construed as meaning anything OTHER than wiretapping.

Am I missing something here?

It's pretty clear that, if all those senior DoJ officials (who are pretty damn far to the right themselves) couldn't stomach whatever was going on to the point of threatening mass resignations, it must have been something staggeringly illegal. Which is why they didn't ask to have the law changed. They knew that what they were doing was so blatently illegal that it had no chance of passing muster. I suspect domestic surveilance of political enemies, anti-war groups, protestors, etc.

Valentinian:

http://news.com.com/2100-1028_3-6071780.html

John: :) Note the 'disposable cell phone' comment. I believe every drug dealer, gang banger, fake ID seller and whatever figured this one out a very long time ago. Do ya' thing the big time terrorists have a clue, too?

The Fort Dix Pizza Six makes me wonder why the FBI isn't following the 'gun show' trail for real leads?

John, it's the "not only... but also" part that I get hung up on.

Klein seems to be confusing the "but also" with the "not only" when he talks about "illegal wiretapping" as "media shorthand (somewhat inaccurate[])."

The link you posted seems to confirm that there was both illegal wiretapping AND data mining.

That's all I'm trying to say.

Thanks.

Valentinian:

I certainly agree that there has been a popular conflation in this case of the terms "surveillance" and "data mining". It's been fueled by the administration, who would rather that people think like Joe: "Hey, they're just listening to the phone calls of the bad guys..."

But the issues are not separate in this case, based on what I can see. Most reasonable people will not disagree with the ability of law enforcement agencies to conduct wiretaps of suspected terrorists. But the key question becomes: who is suspected?

The data mining program presumably offered a magic solution: anybody it picked out of mountains of phone data was a suspect. The calculations I provided above can illustrate the legal problems with obtaining FISA warrants for surveillance. One hundred wiretaps of suspects gathered through solid detective work are probably not going to be an issue. Thirty-one thousand warrants, each based on the same P(T | Ct) = 0.03 chance of being a real suspect, might be more of a problem.

The data mining fed the illegal wiretapping, by encouraging both an extremely low standard of evidence and by providing an extremely large sample space.

Quis custodiet ipsos custodes?