Re: Is The FBI Within The Law In Its Spying On Reporters?

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I think the problem we're going to run into here is "clandestine intelligence activities" This administration classfies information willy nilly, and anytime these leaks or stories involve classified info, they're going to claim it involves "clandestine intelligence activities"


Posted by: gswift | Link to this comment | 05-16-06 8:43 AM
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I don't think that's a fair reading. The investigation isn't of 'clandestine intelligence activities', it's of the public exposure of classified information. The language as written looks to me to unambiguously pick out investigations of spying on the US, not the open leaking of US information.


Posted by: LizardBreath | Link to this comment | 05-16-06 8:46 AM
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These are whistleblowers and reporters, not terrorists and spies

I think you had it right the first time: same thing, as far as the administration is concerned.


Posted by: JL | Link to this comment | 05-16-06 8:48 AM
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If it turns out that it was an improper use of NSLs, is there any recourse? Since, as you note, it's not subject to review by a court, it's almost as if the very issuance of the NSL makes it legal, even when it perhaps shouldn't be.


Posted by: Matt F | Link to this comment | 05-16-06 8:53 AM
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Which is what makes the PATRIOT Act a very, very, very bad law, at least in this regard. I wouldn't say 'makes it legal'; if my reading of the law is right, it's not legal. Instead, I would say 'there is no remedy for its illegality'. Very bad law.


Posted by: LizardBreath | Link to this comment | 05-16-06 9:03 AM
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#2

I agree. But I bet they'll use that justification all the same.

"We needed those records, they reveal classified information involving clandestine intelligence activities."

"What? How the hell does an article on secret prisons constitute clandestine intelligence activities?"

"We can't tell you that. It's classified."

And round and round we go. Then if by some miracle the DOJ tries to investigate, they'll get denied the necessary security clearance to view the files, and they'll just slink away.

God I'm sick of this banana republic bullshit. Any real opposition party would be on TV every night telling the country to vote them back into the majority so they could impeach this motherfucker.

Instead, we have the Democrats.


Posted by: gswift | Link to this comment | 05-16-06 9:07 AM
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Re: 4,5. See my update. It looks as though there is a civil remedy for violations of the law.


Posted by: LizardBreath | Link to this comment | 05-16-06 9:13 AM
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Ah, civil remedies. Here's a preview of how that will go.


Posted by: gswift | Link to this comment | 05-16-06 9:21 AM
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Keep in mind that it's a crime to use the government classification process to cover up government crime. Accordingly, if someone is blowing the whistle on a government crime (and maintaining secret prisons in Europe constitutes both a U.S. crime and a war crime, I believe), the fact that the information they give the media is classified isn't a defense.


Posted by: Lex | Link to this comment | 05-16-06 9:29 AM
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Keep in mind that it's a crime to use the government classification process to cover up government crime. Accordingly, if someone is blowing the whistle on a government crime (and maintaining secret prisons in Europe constitutes both a U.S. crime and a war crime, I believe), the fact that the information they give the media is classified isn't a defense.


Posted by: Lex | Link to this comment | 05-16-06 9:30 AM
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I suspect the question is going to be whether the "against" is distributive.


Posted by: SomeCallMeTim | Link to this comment | 05-16-06 9:46 AM
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Now that is clever. My suspicion is that it won't stand up, because you have to make a choice -- the 'against' is either distributive or it isn't -- and if it isn't then you can't get an NSL to investigate someone else spying on us, if there's no terrorism connection. That seems like a far less likely interpretation than the distributive 'against', but you're right, it is possible.


Posted by: LizardBreath | Link to this comment | 05-16-06 9:52 AM
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11. Yeah. I read it as "protect X or clandestine intelligence activities." If that's right, then the leak investigation is going on to both punish the leaking of info that threatens the usefulness of clandestine intelligence activities (so they claim) and as a deterrent to other would-be leakers. So, if it's the case that more leaks could further harm these "clandestine intelligence activities", and this investigation is a plausible deterrent, then they might have some wiggile room.


Posted by: Michael | Link to this comment | 05-16-06 9:53 AM
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Again -- that only stands up if the administration is willing to say that NSA's are not available in espionage investigations (and if the legislative history, which I haven't looked at, supports that proposition). It's possible, but I think unlikely.


Posted by: LizardBreath | Link to this comment | 05-16-06 9:57 AM
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Gotcha. I seems likely my first reading was too much in the context of the rest of the post, skewing my interpretation.


Posted by: Michael | Link to this comment | 05-16-06 9:59 AM
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So they didn't have a court order.

I find any argument that "X is legal under the Patriot Act" weak on its surface, because of what you're saying in 5, LB. It seems to me that the PA, as I understand it blah blah IANAL, is terrible law and in some aspects probably unconstitutional.

God, I hate these people.


Posted by: bitchphd | Link to this comment | 05-16-06 10:05 AM
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I am nothing if not a silly, silly little person.


Posted by: nicht | Link to this comment | 05-16-06 10:43 AM
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Dude, I cannot make sense of 17. Well played! Well played indeed.


Posted by: Michael | Link to this comment | 05-16-06 10:59 AM
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Oh my word. Is this the legendary Troll?


Posted by: Chopper | Link to this comment | 05-16-06 10:59 AM
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Do we really need to be encouraging him? How was abc last handled?


Posted by: SomeCallMeTim | Link to this comment | 05-16-06 11:06 AM
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Don't look directly into his eyes.


Posted by: Sam K | Link to this comment | 05-16-06 11:07 AM
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ogged asked abc to leave.


Posted by: Standpipe Bridgeplate | Link to this comment | 05-16-06 11:08 AM
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Russell sucks, by the way.


Posted by: Standpipe Bridgeplate | Link to this comment | 05-16-06 11:09 AM
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We have a new, ToS only comment editing policy. This applies only to the ToS -- everyone else's comments will be respected. He's just too boring to be allowed to comment unmolested.


Posted by: LizardBreath | Link to this comment | 05-16-06 11:11 AM
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I don't intend to encourage him, and am done discussing him or engaging him in any way, other than to note that I strongly vote for doing whatever it takes to make him go away, either through technological solutions, polite requests, whatever.

There is zero need for tolerance, as he's already demonstrated elsewhere that he can't be constructively engaged.


Posted by: Chopper | Link to this comment | 05-16-06 11:12 AM
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25 to 20, prior to 24. Yay, LB!


Posted by: Chopper | Link to this comment | 05-16-06 11:13 AM
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Heads up, y'all. Kevin Drum has linked to this post.


Posted by: My Alter Ego | Link to this comment | 05-16-06 11:17 AM
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Why not just delete?


Posted by: bitchphd | Link to this comment | 05-16-06 11:28 AM
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Just because Drum linked? That seems disproportionate. No, seriously, woohoo!


Posted by: LizardBreath | Link to this comment | 05-16-06 11:30 AM
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27: Dear god. The comments over there make me despair of my countrymen. (And, to a lesser extent women, although Drum's place seems pretty free of asinine women.)


Posted by: bitchphd | Link to this comment | 05-16-06 11:30 AM
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Quine was from Akron. [edited for clarity]


Posted by: .............. | Link to this comment | 05-16-06 12:15 PM
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ToS?


Posted by: Michael | Link to this comment | 05-16-06 12:50 PM
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abc was enouraged to spew crazy shit for our amusement until he began espousing some racist stuff, which was the point at which Ogged asked him to quit commenting.


Posted by: Michael | Link to this comment | 05-16-06 12:54 PM
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27:I noticed. Scarey. Pretty soon petey and cranky and pgl will be showing up and I will need to find a smaller quieter place to comment. Aspberger's, ya know. At least so Gary tells me.


Posted by: bob mcmanus | Link to this comment | 05-16-06 3:53 PM
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Nice catch LB. It looks as though whoever tipped off the reporters had his facts wrong. If the FBI is only interested in old calling records, then a trap and trace isn't going to be of any use, which makes the Pen Register Act useless, I think, and the use of an NSL here practical. So far as the legality of the NSL here goes, I share the reservations about whether Patriot's broadening of their use is wise, but imho this is a legal use of an NSL.

The FBI cannot assume at the outset that the leak was perpetrated by an otherwise loyal whistleblower. All they really know is that an extremely sensitive and very compartmentalized program was breached and disclosed to the media, thereby placing the program in jeopardy and likely having other harmful effects on national security as well. Such a breach calls for a counterintelligence investigation, and obviously the journalists' phone records are relevant to that investigation. So 2709 applies.


Posted by: Andrew | Link to this comment | 05-18-06 12:59 PM
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What you're saying, if I understand you, is that NSLs are properly limited to investigations of [terrorism and] clandestine intelligence activities against the US, and that they were justified in this case because the FBI was, in fact, actually investigating the possibility of espionage against the US rather than simply investigating the leak to the newspapers. The latter clause seems unlikely to me, but I suppose not impossible.


Posted by: LizardBreath | Link to this comment | 05-18-06 1:07 PM
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Put differently, how could anyone know, prior to investigating, that the leak was not perpetrated by or connected with a foreign intelligence operation? Wouldn't a cautious counterintelligence department treat all breaches of classified material as related to a foreign intelligence operation, until an investigation shows otherwise?


Posted by: Andrew | Link to this comment | 05-18-06 1:44 PM
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Well, offhand? I would expect that well-functioning espionage operations generally strive to keep their existence, you know, clandestine. And don't publish the information they collect. I would take the fact of newspaper articles detailing the leaked information as strong evidence that the leak was not connected to clandestine intelligence gathering.


Posted by: LizardBreath | Link to this comment | 05-18-06 1:48 PM
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Yes, but to my amateur eyes, foreign intelligence operations may be directed as much at sabotaging US operations, or otherwise damaging US power and influence, as at collecting information. And certainly leaking this information to the press accomplished both.

I do agree that it's more probable that this is a concerned whistleblower though.


Posted by: Andrew | Link to this comment | 05-18-06 2:08 PM
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And of course, there's a real fact question here -- the FBI (from their own point of view) either was or wasn't investigating espionage in this case, whether or not they might have been justified in investigating espionage. If they were not, then the NSLs are unjustified.


Posted by: LizardBreath | Link to this comment | 05-18-06 2:20 PM
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True. But I'd be willing to give good odds that the counterintelligence division at the FBI is given responsibility for investigating all such security breaches as a matter of routine.


Posted by: Andrew | Link to this comment | 05-18-06 2:27 PM
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