It’s not really a gray area, though, It’s cowardly fear of penalties.

Expanidng wiire-tapping measures is dangerous because of the danger of misuse is great.
Long before the WOT, the government misused its power by bugging phones of such threats as Coretta King. How much the field of potential misuse has expanded since then!

It’s a mistake to imagine that the people caught in the web will always be some miscreant “they’, and that we, the good guys can count on always being immune. The past teaches us otherwise.

I don’t see any imaginable situation that couldn’t be handled with the stricter FISA restricions, and my opinion does not depend on the compromises Congress reaches or what Congress does in regard to any issue at all.

Apply the same logic to interrogation procedures. Should we not have boundaries to specify which procedures are acceptable and which are not? And then once those boundaries are written into statute, would you similarly argue that the military interrogators should just disregard them, as long as they feel they’re operating in the spirit of the law or as long as they feel there’s an emergency which requires an exception?

We already do have laws in place to cover these things, and in the case of FISA there is a known problem in one of the laws. Why would anyone oppose fixing that problem, and instead advocate that the people in the field should just ignore it and risk serious penalty for doing so? If you assume that no one is really going to punish them, then if that’s true then the same people who wouldn’t punish could also just prevent the whole mess in the first place by changing the law. This isn’t something that’s a judgement call on a case by case basis- it can easily be handled by having the existing law stop treating calls that route through the US (those that are really foreign-foreign calls) as domestic communications.

And Congress has already come to an agreement on that change, so I’m not sure why you still want to argue against it.

You’ve turned what I’ve said around 180 deg.

We need laws. Laws need to be restrictive to prevent abuse due to lax or vague language.
No law can cover every emergency or every complication, however, or every law would turn into into a multi volume book collection, too cumbersome for anyone to read or comrprehend.

A good commander or leader will be able to respond in an emergency within the SPIRIT of the law, even if he is not sure how the letter of lthe law will apply when examined later. The spirit of the law matters, and it never evaporates.

Putting concern for penalties above reacting to or being intellectuallity prepared to deal with situations of emergency or exceptions is the sign of an unqualified leader. No law could be specific enough to cover his butt 24/7.

f we pick any war or any battle, we’ll be able to find
commanders by the truckload, but few would be found paralyzed in the face of the need to act, because of concern for pernalties.

These arguments sound as if complex and compelling situations in war, or peace, were never encountered befoire.

Do you think soldiers have refrained from stealing a chicken if hungry just because the rules said they shouldn’t? How many of those do you think have been court martialed for theft? We haven’t needed elaborate laws describing exactly when a chicken could be legitimately stolen, or laws specifically naming chicken theft as a means of survval. We’ve got along just fine without such laws.

IMO this is just an attempt to nitpck in order to discredti FISA provisions.
I see no real life situation that couldn’t be handled with the provisions as they are.

It just seems altogether too convenient for those who have misrepresented information as they needed for 6 years to have this come to light. But I’ll be reading on this as more info comes to light.

Sam,
If you do read up on this, you’ll see that this loophole has been discussed and debated for a long while now- the loophole being that the old FISA law didn’t allow for warrantless taps on foreign-foreign communications if they were routed through hubs in US- because the old law didn’t take into account the new technology and the way the global system is routed. A certain category of foreign-foreign calls were not able to be tapped into under the normal rules that would logically apply to them, because of this routing.

The fact that some people haven’t reported it that way (because some people seem to think that everything the Bush administration says has to be taken as the opposite of the truth), doesn’t mean that this isn’t so. Do some checking and I think you will see.

However, from what I can see, both the Dems and the GOP both now acknowledge that this is a problem and are in agreement about changing it. THere are other details that are still in dispute (mainly whether or not to retroactively exempt phone companies from penalty for having turned over call records, I think).

Doma: Yes, good plan. Let’s not make any laws about what the rules of engagement are, or if the laws prohibit a certain activity, let’s tell the soldiers and their commanders that they are wrong to follow the law and they should just use their judgement and worry about whether their activity was legal or not later.

It just seems altogether too convenient for those who have misrepresented information as they needed for 6 years to have this come to light. But I’ll be reading on this as more info comes to light.

Right. And if they use theri heads, they won’t, if there is an emergency.

This isn’t about lawyers. This is about guidelines for what to do in emergency situations.
The military and/or the DOJ don’t have that covered? That’s either laughable or another sign of incompetence.

People in command and with authority are duty boung to exercise it. No one said authoriy and power are risk-free. Using personal jusdgement is part of the job description in emergency situations. Having pre-thought out guidelines of how best to discharge their duties in emergency situations is a sign of xompetence.

To resolve all these ‘worries’, all it takes is one comaander to exercise his authority and to employ his best judgment, according to guidelines. Risk of penalties should be way, way down the list of his concerns, if he’s worth his salt.

(from the comment section of this post at SF):
Is there a penalty if the AG turns out to be wrong?

Yes. The penalty for engaging in electronic surveillance “under color of law” outside of the very specific statutory authorization and without a warrant is “…a fine of not more than $10,000 or imprisonment for not more than five years, or both.” PER OFFENSE. There is a specific set of procedures and certifications that must be adhered to before an authorization can be issued. Do it any other way than by the book, and you have violated the statute. The “emergency” provisions have major gaping holes, including a lack of coverage for organized non-state actors. You know, like terrorists.

That’s before you consider the major political penalties. Penalties that have been continually paid over the last few years, and are still being continually paid, and have provided much fodder for much hyperbolic ranting.

Is there a provision requiring him to submit a complete brief? Or is it just a requirement to certify that he have a good faith belief that there’s probable cause?

In order, yes, and somewhat, but it still requires a certification justifying probable cause on very limited grounds. Grounds that do not extend to organized non-state actors. Grounds which are a little tough to prove instantaneously from the other side of the world. There is no “tap now and jump through hoops later and just say OOOPS! if we’re wrong” proviion to exempt the AG or anyone else from the statutory penalties. Still gotta jump through those time-eating hoops.

Soldiers in the field should not have to ask the AG in Washigton for emergency warrants to wiretap enemy communications in the field in the first place.

If finding a captured soldier is at stake, all it takes is a rational response to a phone call up the chain of command, and no lawyers are required!

I don;t think soldiers need consult lawyers in tricky battle situations to find out exactly what the rules if engagrement say to cover a present complex situation.

.

Also, whats the penalty for having a wiretap up then getting it yanked in 3 days after its been reviewed and found not valid? Also, FISA has withheld what, 12 out of 20,000 warrant requests back? I seriously doubt they have a dire fear of consequences of an invalidated warrant. It sounds like you’re saying the FISA laws weren’t holding this back, but CIA lawyers too chicken to process the warrant even though troops were on the line?

The story had its facts wrong.

The father of the NY post: Murdoch
The father of FOX, WSJ et al: Murdoch

The danger of one man or conglomorate controlling so many news outlets is obvious.

The reaction in Washington: silence

Second, there is a consensus among Democrats and Republicans that foreign to foreign calls routed through the U.S. should not require warrants.

It does seem that the consensus has been reached on that issue, Chris- and yeah, it’s really annoying when politicians create the false impression that their opponents are blocking something that they really are not, isn’t it? (cough, cough…SCHIP coverage for the children that it was originally intended for).

First, in a pinch, you can wiretap for 72 hours before you need to actually get a warrant under the current laws.

Second, there is a consensus among Democrats and Republicans that foreign to foreign calls routed through the U.S. should not require warrants.

I don’t understand why Iraqi cell phones should use US “hubs”. Nor, like Shaun, do I find the time issue convincing.

But using a dead American soldier…who was likely tortured and mutilated…to front a campaign is absolutely morally repugnant if the claims are not substantiated.

I disagree with Shaun’s conclusion…this is not about Malkin swiftboating…this is about the WH. The claims should be investigated.

But if they are bogus BS, someone should be roasted in hell. Using a dead US soldier as campaign fodder is appalling IMHO.

Personally, I rather doubt time factored significantly here. But it seems nothing can be done legislatively today in America without fronting the campaign with a boy, an infant, or a fluffy bunny.

I think the real story here, as Shaun implies, is about this infantalization of American politics.

Also, I don’t think we should ignore how legal red-tape can bog down close pursuit. I recall how early in the Afghanistan campaign a Predator on patrol sighted bin Laden and its operator requested firing authority…which was relayed to the Pentagon, but it was evening, and as hostilities had not opened in Afghanistan legal counsel delayed the decision to consider the implications of violating Afghan sovereignty with a military strike…by the time it reached Rumsfeld who gave authorization a strike was no longer an option.

While Shaun cites Verizon, who was willing to make exceptions, he should also cite Qwest which wasn’t.

Also, these carriers opened themselves to legal jeopardy in complying with government requests. Liberal activists are foaming at the mouth to file lawsuits…and are also currently lobbying to block retroactive protection legislation in Congress.

A week or so back there was the story from Iraq of a soldier planting evidence on insurgents who were killed in battle to make doubly sure that no one in the US could sue him for violating their rights.

This is a strange war…where those trying to defend the US live in fear of lawsuits by liberals opposed to the war.

I no longer think the US can win this long war. When monitoring foreign2foreign calls becomes a line-in-the-sand for opponents of the war, it does not bode well for success.

I may have written more about the Jimenez abduction and search than any non-military blogger (at least 15 posts) and I know a fair amount about the region. I cannot for the life of me fathom how intercepting insurgent cell-phone communications — whether they went through U.S. hubs or any other hubs — would have made a difference.

Time was of the essence, of course, but as has been the case from the outset of the war, U.S. forces and intel assets were spready extremely thin. This is a reason why the insurgents were able to pull off the ambush in the first place.

As it was, it took several hours to seal off the area to try to keep the insurgents from escaping with Jimenez and his mates. I don’t think they and their abductors got very far. One of the two other soldiers was found floating in the Euphrates about 30 miles downriver and I think we have to take Al Qaeda in Iraq at its word that Jimenez and the third soldier were executed and buried — I suspect not far from the ambush site.

I am aware of instances in which intercepted cell phone communications led U.S. forces to high-priority individuals, but these were not spur-of-the-moment situations.

I wrote only what I have read and myself know, but it is my supposition that the entire tack that The Post is taking is, as Colonel Potter would put it, pure unadulterated horse hockey.