From: Mike Lorrey (mlorrey@datamann.com)
Date: Mon Apr 29 2002 - 12:37:05 MDT
Hal Finney wrote:
>
> Mike Lorrey writes:
>
> > A wire-tap is a data shunt attached to a line by a third party who is
> > not authorized by both parties involved in the contract for that line.
> > For the government to do so within its own jurisdiction is ONLY illegal
> > in that evidence gathered by wiretaps not authorized by a judge is
> > inadmissibile in court (as is any evidence derived from that gathered by
> > the tap).
>
> I'm not sure about this, I thought there was a presumption of privacy
> which would restrict what the government could do without a court order.
>
> > This distinction is of primary importance in the intelligence community.
> > When it comes to intelligence operations which are going to result in
> > covert action rather than criminal charges levied in court, an
> > intelligence agency has no legal need to obtain a court order for a wire
> > tap.
>
> But you're saying that if they don't intend to use it in court, any
> government agency can wiretap anywhere in the U.S. without restriction?
No. The FBI counterintelligence can wiretap anywhere in the US without
restriction (but nobody else) IF they are not going to use the evidence
gathered from it (or derived from it a la the 'poisoned vine' principle)
in legal proceedings. This includes mere suspicion, i.e. if there was
otherwise no reason to suspect you of anything prior to their tapping
you in their electronic sieve-net, then ANY evidence they gather as a
result of that new suspicion is tainted. The only legal proceedings
exempted from this are immigration/deportation proceedings.
>
> > Where the law comes into play on the domestic scene is that the only
> > federal agency empowered to wire-tap within the territorial US is the
> > FBI, since they are in charge of domestic counter-intelligence. The
> > CIA/NSA/NRO/DIA/etc are all banned by post-Watergate/ABSCAM era laws
> > against spying on American citizens within our borders. They are free to
> > eavesdrop on anybody they want outside our borders, and require no court
> > order to do so. This situation is reciprocated by the British.
>
> So now you are saying that only the FBI can wiretap in the U.S.? But
> if they are not going to use the results in court, do they need a court
> order or not? Earlier you said that the government does NOT need a court
> order to wiretap if they aren't going to use it in court.
No court order for domestic wiretapping that is not intended to be used
as evidence or to generate leads to produce evidence. This applies to
the FBI. Everybody else can't tap American citizens. Note that this
leaves open non-citizens to wiretapping.
>
> > As a result, the British spy on American citizens for the US government,
> > and the US govt spies on British citizens for the British government.
> > Just part and parcel of the 'special relationship' we have between us.
>
> Now this doesn't make any sense at all, given the above. Either the
> data is going to be used in court or not. If not, you said above the
> the U.S. government can wiretap on its own citizens with impunity.
> So there would be no need to use the British. If the data is going to
> be used in court, are you saying that the government would walk in and
> say, we couldn't wiretap this American citizen, so we got the British
> to wiretap him for us, and here is the result of this British wiretap
> on American soil? That's hard to believe.
Okay, lets try some scenarios to straighten this out:
You've got al Quaeda HQ in some cave in Lesser Al Cumquat, Dontundastan.
They are using satellite phones, CB radios, cell phones, short wave
radio, and even human couriers to direct a terrorist cell in the US made
up of non-citizen, illegal immigrants from Saudi Arabia, Egypt, and the
Islamist Republic of Britain. Al Qaeda HQ recently decamped from a
bombed out cave in the Khost region of Afghanistan, where they abandoned
a lot of information, including telephone numbers of the cell members in
the US as well as other cells whose members are planning to attack US
owned oil rigs in international waters.
So, we've got this intelligence that says that Ali Al Whack, Jumail el
Butface, and Aziz bin Smeghed are illegal immigrants in the US, are
members of al Qaeda, and as such are illegal combatants under the Geneva
Conventions. Under the Laws of War, the FBI could, legally, arrest all
three of them and execute them in the street under Summary Justice.
But the FBI and the DoD are a little smarter than that, since summary
execution would be letting these slimeballs off easy. Cursory
examination of telephone records shows that our buddy Jumail has been
making a lot of calls to Ottawa, Canada. Since Ottawa is tentatively not
part of the US (yes, its a courtesy thing...), the NSA is tasked to
Echelon the phone lines of our Jumails associates to the north, without
a warrant, and determines that there is another cell there that is
planning on attacking the US Embassy in Ottawa tomorrow. With not enough
time to go through diplomatic channels to stroke the sensitivities of
our Canadian neighbors, the US sends in a SEAL team to wipe out the four
baddies in their safe house, sweep up any useful evidence, and plant a
bunch of hashish to make it look like a minor drug gang rivalry
skirmish. SEAL's exfiltrate to Montreal, where they whoop it up on St.
Catherine Street for the night, then hightail it back across the
border...
But what to do about this domestic cell? Well, none of them are
Americans, so tapping communications between themselves and any foreign
phones is legal without a warrant, but there is the threat of
accidentally tapping a phone call made to the local Dominos Pizza by
Aziz for the Halel Pizza Special, so the FBI could cover it's behind by
getting a warrant for the wire tap just in case, but you never know what
do-gooders or Islamic Fundamentalist sympathizers may work at the
courthouse. So to be on the safe side, the FBI asks their British
Echelon counterparts to Echelon up the phone lines of Aziz, Jumail, and
Ali and forward to them only those calls belonging to non-citizen
immigrants or which are located in foreign countries, and to give them a
list via 'anonymous phone tip' of other calls made to American owned
phone numbers which might be of interest to tap under a properly
warranted wiretap.
So far, no laws have been broken. Now, another thing the FBI could do is
to check the criminal and immigration backgrounds of all owners of phone
numbers called by our intrepid three suspects. There is no suspicion of
any involvement in terrorism by these third parties, but if there are
outstanding warrants, expired visas, or employment in sensitive
positions (i.e. nuclear plant guard, secret service agent, postal
worker, etc) by these people, then they could become suspects worthy of
lawfully warranted wiretaps by court order, since they are either
already criminals, or else are under security restrictions that prevent
them from associating with the likes of Ali, Aziz and Jumail.
So far, no laws broken, no poisoned vines of evidence.
Now, if I were being extra sensitive to the tender feelings of the
immigrant community, I might just do the following: I'd first find out
everybody in the cell network. Then I'd tap every one of their phones,
put agents in their mosques, and try to get them recruited into the
cells. Then, whenever any of them were going to stage a terrorist
attack, I'd put out a national security alert, warning of a potential
attack in such and so region of the country targeting such and so type
of facilities or individuals.
Thus, I deter every attack by announcing ahead of time that I'm aware
that they are going to attack (thus eliminating their presumption of
surprise) and how. Gee, that sounds familiar....
After 6 months to a year or so of this, I've gathered enough evidence to
illustrate the entire worldwide network, including the individuals and
government agencies in foreign governments which are sponsoring it all.
I then let the dogs loose and roll it all up in one fell swoop, and bomb
the bejeezus out of the sponsoring governments, including those who
claim to be our friends but send hundreds of millions of dollars to the
families of 'martyrs'....
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