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Post by robeiae on Mar 14, 2017 9:47:25 GMT -5
How do you know this: Your evidence is as non-existent as mine. We're both assuming. But I think my assumptions are based much more on common sense than are yours. "Bulletproof"? Come on. If the cases were bulletproof, they wouldn't need the warrants; they'd have sufficient justification for arrest. Out intelligence community has--across the last couple of decades--proven that it can make YUGE mistakes, that it can miss stuff and get its facts wrong. And the NSA and other orgs have demonstrated that they have no problem crossing some lines, when it comes to surveillance. Yet we're supposed to believe that FISA warrants only get issued in limited cases where the government has absolutely certainty? Naive. If this were the case, admin's would be trumpeting about the THOUSANDS upon thousands of arrests made from these warrants: More: epic.org/privacy/surveillance/fisa/stats/Note the post-9/11 spike and the drop-off when Obama took office. That's indicative of something, I think. Yet under Bush, the approval rate was still ridiculous. The idea that the requirements here are just sooooo high is, I think, not reasonable in the least.
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Post by Amadan on Mar 14, 2017 10:21:11 GMT -5
How do you know this: Your evidence is as non-existent as mine. We're both assuming. But I think my assumptions are based much more on common sense than are yours. "Bulletproof"? Come on. If the cases were bulletproof, they wouldn't need the warrants; they'd have sufficient justification for arrest. Actually, no. I am not just assuming. And a FISA warrant rarely leads to an arrest. FISA warrants are used when law enforcement or intelligence agencies want to conduct surveillance on US citizens, or persons within the US for intelligence purposes (as opposed to a regular police wiretap seeking to uncover domestic criminal activity), which is prohibited without a warrant per the Foreign Intelligence Surveillance Act. In other words, let's say the FBI or the NSA suspects that someone in the US is a Russian spy. They can't monitor his communications without a FISA warrant. The purpose of the warrant would often be counter-intelligence, rather than just trying to arrest the spy. Making huge mistakes, yes. "Crossing lines" is arguable, at least since the Church commission. Do you actually know what the requirements are? Do you have any knowledge of the process beyond your "common sense"?
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Post by robeiae on Mar 14, 2017 12:04:31 GMT -5
I do. Not only that, I know the actual history here, why there is a FISA court: www.thepondsofhappenstance.com/2013/06/the-legal-scholar-and-fisa-court.htmlThe requirements come nowhere close to being "bulletproof." Here they are: www.law.cornell.edu/uscode/text/50/1804Where's the "bulletproof" part? Mostly, a "belief" that the target of the surveillance is a "foreign power" or an agent thereof is what is needed. There really aren't evidentiary requirements at all, apart from affidavits confirming the "beliefs" for the need of the operation. My common sense is a product of the past complaints about FISA warrants--many of which are coming from the same people who are now assuming what you are assuming: that the warrants are ALWAYS justified by a truckload of cold, hard facts--along with the recognition that intelligence agencies are not always confirming what they know, but are often seeking new information.
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Post by Amadan on Mar 14, 2017 13:12:02 GMT -5
Your blog post has a few inaccuracies, and you still haven't explained where you think the FISA courts have failed. I mean, if you believe agencies just go on blind fishing expeditions and judges rubber stamp them without oversight, then we're in the same space as people who believe Obama was tapping Trump's phone line. The requirements for a FISA warrant are that the certifying official must provide the basis for their belief that the subject is an agent of a foreign power, and everything has be spelled out in detail - why, how, for how long, how they will avoid infringing on the 4th Amendment rights of US persons, etc. You can certainly believe that this is all just a formal smokescreen done with a wink and a nudge, but if that's the case, then it really doesn't matter what the law says, since the federal government is ignoring it anyway.
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Post by robeiae on Mar 14, 2017 13:34:58 GMT -5
Well, the whole metadata deal was a massive fail. It represents the government doing exactly what FISA and the FISA court were supposed to prevent: widespread collection and retention of data on actual citizens. If the NSA can get FISA court permission for such an expansive open-ended action, what is actually off the table, as it were, when it comes to the FISA court?
And I don't believe that every FISA authorized warrant is over the line, at all. The point is that the existence of a FISA warrant is not, in and of itself, evidence that a target of the same is automatically guilty of something or otherwise in cahoots with a foreign agent/power. The point is that your imagined high threshold for obtaining a FISA warrant is nonsense. As you just noted, as I said, all that is really needed is a belief that so-and-so is a foreign agent and that therefore surveillance of so-and-so--even when it involves contact with US citizens--might yield intelligence that could have not otherwise be obtained.
Explain to me how this makes all FISA warrants "bulletproof," please.
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Post by Amadan on Mar 14, 2017 13:58:42 GMT -5
Well, the whole metadata deal was a massive fail. It represents the government doing exactly what FISA and the FISA court were supposed to prevent: widespread collection and retention of data on actual citizens. If the NSA can get FISA court permission for such an expansive open-ended action, what is actually off the table, as it were, when it comes to the FISA court? You know that metadata is stuff like "This phone number called that phone number at 3:14 pm on January 5," right? There's no content there, and even that much requires a FISA warrant to actually look at. There were some problems with the metadata collection (mostly the lack of transparency behind the project), but it didn't break any laws. It was not retained indefinitely - there are strict rules about how long any collected data can be retained (for metadata, it's five years). Of course not. Any more than a search warrant is evidence that the target of the search is automatically guilty of a crime. But if you presume a lack of good faith on the part of government agents requesting and executing such warrants, then again, the law is irrelevant anyway. In that world, the government is doing whatever it wants to do with or without a warrant. if you want to nitpick "bulletproof" then I will retract the term, but I maintain that FISA warrants are not brought before judges without a very high level of certainty in what they allege. The bar is higher than that required for a regular search warrant (which, after all, only requires a belief that so-and-so is guilty of a crime and convincing a judge that a search will find evidence of this).
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Post by robeiae on Mar 14, 2017 15:06:26 GMT -5
The bar is higher than that required for a regular search warrant (which, after all, only requires a belief that so-and-so is guilty of a crime and convincing a judge that a search will find evidence of this). I disagree. The bar is somewhat different, but it's not higher as a matter of course. The statements from you that started this angle: And to be fair, you're far from the only one saying this sort of thing. But again, it's incorrect. A "properly executed FISA warrant" doesn't mean there is evidence, enough or otherwise, in this regard. It can mean--per the actual requirements that I linked to above--that a FISA judge accepted the AG's belief that someone is a foreign agent (might be a foreign agent, really) and that surveillance might yield good intelligence. That's all. Think through the metadata collection again, as authorized by the FISA court. That's the definition of fishing (which of course goes to the point I made in my blog post: the FISA court is being used to do exactly those things that FISA was enacted to prevent, i.e. it's no longer the check on government power that it was supposed to be). All that said, it certainly is possible--if there is/was such a warrant for Trump Tower or someone therein--that it was supported by real evidence. Hence my initial reply to you, ala "yes and no." It's possible, but it's not a given, because again FISA warrants aren't nearly as difficult to get approved as you--and many others--are supposing.
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Post by michaelw on Mar 14, 2017 17:32:30 GMT -5
Interesting discussion. I'm curious: what do you guys think of the fact that the Obama admin. tried to get a FISA warrant and apparently got turned down, before it finally got approved? Is there any significance there? Maybe they were in such a rush to get the warrant they didn't put together a strong case?
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Post by robeiae on Mar 14, 2017 18:41:45 GMT -5
Well, I'll give credit where credit is due: one can't really "judge shop" with the FISA court. The party requesting a warrant gets the judge they get. If the judge denies the warrant--which just doesn't happen, for the most part--that's it. That request cannot be resubmitted to a different judge in the hopes of a better ruling. But again, the requirements--that I linked directly to above--are just not all that daunting for a government intelligence agency or for the AG. There's plenty of room here. In fact, the paths got wider in 2008 when Congress passed the FISA Amendments ACT of 2008. FYI, prior to this, the metadata shit would have been expressly illegal (as would other things that now only require a warrant). You know, I'm down with the reality of a need to have intelligence agencies, to sometimes spy on people, even US citizens. But again, the whole point of FISA and the FISA court was to provide a check on such activities. And it's done the exact opposite: created a simple path to easily do things that should rarely happen. And the growth of FISA warrants reflects this, quite clearly. As does the expansion of exceptions to FISA.
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Post by Amadan on Mar 14, 2017 18:56:18 GMT -5
But again, it's incorrect. A "properly executed FISA warrant" doesn't mean there is evidence, enough or otherwise, in this regard. It can mean--per the actual requirements that I linked to above--that a FISA judge accepted the AG's belief that someone is a foreign agent (might be a foreign agent, really) and that surveillance might yield good intelligence. That's all. I'm not sure what you are suggesting as a hypothesis here. Per the actual requirements, the requesting official needs to certify as to his belief that someone is a foreign agent, and provide the facts that give him reason to think so. If the AG can go to a judge and get a FISA warrant on really thin grounds ("We don't know that Donald Trump's friend Steve is working with the Russians, but he might be, and we'd like to read his email to find out") then that would indeed be a problem, but I hope (and believe, with reasons for believing so) that the FISC is not that loose about granting FISA warrants. This is really a technical issue - both technologically and legally. Conceptually, there is this collection of data one can sift through to find phone numbers, email addresses, etc. Of course the government is not allowed to go looking through it to spy on US persons. But presumably we would want them to be able to look through it to find identifiable foreign agents, terrorists, and the like. How to do so without violating the Fourth Amendment? What the NSA did was to collect the metadata, observing legal restrictions on retention, and when they have a specific target (e.g., a known terrorist), apply for a FISA warrant saying "We would like to look through our collection of metadata for email address ahmedthebomber@jihadis.r.us. Here is our evidence that gives us confidence that the owner of that email address is not a US person, is not in the US, and is a terrorist." Now, there are reasonable arguments to be made that this should or shouldn't have been permitted - but certainly the NSA believed it was legal, and they didn't just assume they could do it, they do have legal oversight. Congress is free to change the law, and the courts could rule that it did, in fact, cross a legal line. (Note: So far, that has not happened. No one claiming what the NSA did was "unconstitutional" has offered anything other than their personal interpretation of the Constitution, with which, obviously, lots of government lawyers disagree.) Again, if you flat out don't believe the government when they say they didn't trawl willy-nilly through the data to look at anything they want whenever they want, then legal restrictions are kind of moot since you're basically taking the position that major government agencies ignore the law when it suits them. In which case, more laws won't help. If you can show me an example of a FISA warrant granted on a shoestring justification, I'll take that concern seriously. Having some knowledge about the process, I am skeptical that the AG just asks a judge to let the CIA spy on Trump Tower and gets permission because hey, they talk to Russians sometimes.
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Post by robeiae on Mar 14, 2017 19:15:30 GMT -5
Well, the FISA court is a SECRET court (which is hysterical, insofar as Obama once proclaimed that the FISA court was a key to transparency). It's going to be tough to show you evidence. But you have the same problem: can you show me evidence that the approved warrants are all backed by solid evidence? No you can't. And FYI, the required facts (and "circumstances," on obvious opening) are simply those that support the belief. That's no different, really, than a typical warrant. Again, there's no higher bar here. And hey, here's the FISA approval of the demand for metadata from Verizon: www.theguardian.com/world/interactive/2013/jun/06/verizon-telephone-data-court-orderImo, that order very obviously violates the Fourth: no probable cause, no specificity of persons. As to what metadata is good for, well it can be used to find and target people for additional surveillance, even if they haven't broken any laws. Like Paul Revere. But that's all neither here nor there. Again, my central point is that the existence of a FISA warrant isn't evidence that the target is guilty of conspiring with foreign agents. Intelligence agencies still fish and the FISA court gives them license to do so when they ask, far more often than not. ETA: Oh, and also that if--a really big if, imo--there was a FISA warrant issued for electronic surveillance of Trump Tower during the election season at the behest of the AG, it's Obama who is going to look bad, unless someone offers some real evidence to show show Trump was in cahoots with the Russians.* * Again, I still think Trump is full of shot in this, but things will be spun as they are spun.
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Post by Amadan on Mar 14, 2017 19:38:31 GMT -5
I do have issues with the lack of transparency. That is where the NSA has screwed up.
It's kind of a catch-22, because of course a lot of the information the government uses to justify a request for a FISA warrant is classified. Which is the point of having a secret court. Total transparency would mean that everything goes into the public record, which is problematic if some of it is classified information that we'd rather the people and foreign powers being targeted didn't know about. But that leaves the government saying to the public, "Trust us (and the FISC judges)." I understand why that is also problematic. I am not sure what a perfect solution would be, but I do think a movement towards more transparency, rather than less (and yes, Obama dropped the ball on this) would be preferable.
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Post by nighttimer on Mar 16, 2017 15:27:30 GMT -5
Who's the " bad, sick guy" NOW? Or to put it another way, Donald Trump is a lying-ass sack of shit. Knew that already.
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Post by poetinahat on Mar 16, 2017 19:24:42 GMT -5
Maybe the most disturbing thing for me about the whole Trump Presidency thing is how all those Republicans who ridiculed and excoriated Trump so fiercely during the Primaries are now falling in line - and how quickly.
Similarly, how this man - and all his odious, mendacious behaviour - has somehow become the champion of so many who identify as Christians.
Nothing anyone says means jack, does it?
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Post by maxinquaye on Mar 16, 2017 21:57:41 GMT -5
It was always going to happen. People like Trump (and his followers) don't actually care about anything. They'll say and do things to get what they want, and they will say and do things that work in their particular milieu. If one needs to hypocritically cite bible passages to get an edge, they will do so.
It's not us they're talking to, but whoever empowers them. Well, at least they're not talking to a jaded European homosexual with socialist thoughts… I'm probably Satan to them. Weak and decadent and a danger to children. Anyways, I'm straying. These people will say things to ensure that the right people keep opening their wallets, or giving them influence, or give them status.
It seems that in the USA Reverands and Pastors have a lot of status, and people defer to them. I don't understand why, to be honest. People keep opening their wallets, and tuning in to their shows. So, they have an interest in appearing pious in a way that facilitates a continuation of that.
If they have to follow a degenerate like Trump in order to enshrine their own status, it was always going to be like that.
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