Letters to the Editor

• Glenn:

  [Read the article: Democrats' responsibility for Bush radicalism]
  [Read more letters about this article: Here]

  I apologize for so blunt a request, but could you please weigh in on the issue I brought up in my last two posts? It's starting to knaw at me a bit, and I wasn't sure if you caught it. Perhaps you have some knowledge to add.

  (Really leaving now, but I'll be back.)

  Permalink Saturday, August 4, 2007 06:06 PM

• Glenn, Mona, and Karen M

  [Read the article: Democrats' responsibility for Bush radicalism]
  [Read more letters about this article: Here]

  Karen M -

  Your post about Blue Democrats was very encouraging, but not naive, and I appreciate that. I do think, even within our two-party system, there are significant ways to exert pressure on a party that has no reasonable chance of losing the electoral support of a given district or segment of the population, and what you wrote is a good illustration of one of those ways. I mentioned earlier that primaries are still a viable alternative, and the Ned Lamont campaign is instructive.

  Mona -

  This is Lederman later yesterday:

  2. The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas. As I asked yesterday, is that OK from a Fourth Amendment perspective?

  If this is what the FISA amendments mean -- and Marty is writing of being surveilled sans warrant or any judicial oversight -- then that is not ok. And is (or should be deemed), totally unconstitutional and violative of the 4th.

  I was scratching my head yesterday why you seemed so reluctant to believe that this bill would do the things that its very text suggested. I think there's a tendency, not necessarily irrational, for many people to assume that when "serious," seemingly rational people support something, this means there must be something we're not aware of, or have misunderstood, that makes that something acceptable. I admit to being pulled by that instinct at times, which is why I posed as an open question (not a presumption) my wonder about the current requirements of FISA regarding foreign-to-foreign communications being physically routed through the US.

  I have checked, rechecked, and checked again the current provision of FISA that defines "electronic surveillance" as would be subject to FISA court orders in all but certain instances (that is, anything not qualifying as "electronic surveillance" does not require a FISA court order). I cannot, for the life of me, find any reasonable basis in that definition to suggest that conversations exclusively between a person outside the US to another person outside the US, even if thos conversations are electronically routed through then intercepted in the US, would require a FISA court order. I have tried strenuously to find the basis for it, in good faith, and I have not been able to.

  Also, I wish I could actually read this secret FISA Court ruling that allegedly said such a thing, but obviously it is not available, and I am not simply willing to assume that politicians' or anonymous government officials' assessments of that decision are accurate.

  Here is the current FISA definition of "electronic surveillance," as would generally be subject to the court order requirement:

  "Electronic surveillance" means--

  (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

  -

  (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18;

  (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

  (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. [this does not apply to telephone communications, but "bugs" and similar listening devices]

  Note the inclusion of a person inside the US (not necessarily a citizen) in all the relevant portions of the definition of "electronic surveillance." I really would like to know, where's this "gap" relating to foreign-to-foreign communications that everyone was so desperate to fill? Am I missing something obvious? Something subtle?

  More on this subject in a moment, including my hypothesis on what's going on here - let me just put this post out there first.

  Permalink Sunday, August 5, 2007 11:20 AM