It really aggravates me when I’m pretty sure there’s something out there that I’ve seen before and I can’t get it again.

I really don’t think it would matter much to the DOJ crew whether or not there were American communications that would be captured IF the DOJ crew thought that they were doing something that was allowed by the FISCt orders bringing the program within the court’s order

I think we both focus on the fact of the FISCt denying a warrant (order). I guess what you and drational are saying is that you think this had happened earlier and with Comey testifying, no one at DOJ wanted to present any application (although by then they had to have presented a lot that were not denied) for fear it would be denied too and that would make them look bad later on their stats?

Maybe – I just think it would be something more and that’s why during the hearings I kept wanting someone to ask what seemed to be the legitimate follow up question to the whole AGAG testimony — which was WHAT did the FISCt do with his emergency application at the end of the applicable (or possibly non-applicable) emergency period and the resulting FISCt review. Seems to me the options there would be a thumbs up from the court, a thumbs down from the court, or a thumbs down from the court coupled with other action. But no one in the hearings ever went into that, even tangentially.

And I’m not sure it is clear, yet, whether the metadata from emails (which is a lot of what we’re talking about) equates to metadata from phone calls.

Here is EFF’s prior analysis of email metadate legality:

http://www.eff.org/deeplinks/2…..tic-spying

(The article also discusses collection of phone calls, cell phone logs, ip addresses and urls)

Email
The infobox incorrectly asserts that the subject lines of email are not “content,” and can be obtained without a warrant. According to the article, “[f]or an email, the[NSA’s] data haul can include the identities of the sender and recipient and the subject line, but not the content of the message.”

But this is contradicted by the Department of Justice’s own 2002 Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations manual, which states that “[t]he subject headers of e-mails are also contents.” Judges agree. See In Matter of Application of U.S. For an Order Authorizing the Installation and Use of a Pen Register and a Trap & Trace Device on E-Mail Account, 416 F.Supp.2d 13 (D.D.C. 2006) (”the stricture to avoid the contents of e-mail communications should be easy to comply with so long as the pen register and trap and trace processes or devices exclude all information relating to the subject line ….” (emphasis added)); In re United States for an Order Authorizing the Use of a Pen Register & Trap, 396 F.Supp.2d 45, 48 (D. Mass. 2005) (”information contained in the ’subject’ would reveal the contents of the communication and would not be properly disclosed pursuant to a pen register or trap and trace device.”)

In addition, the law requires legal process for the government to obtain the recipient and sender’s address.

….

Conclusion
The Wall Street Journal article provides important confirmation of the scope and extent of the Administration’s domestic spying program. As the article confirms:

telecom companies … are giving the government unlimited access to a copy of the flow of communications, through a network of switches at U.S. telecommunications hubs that duplicate all the data running through it.
Critically, the article clarifies that the spying is not limited to communications with terrorists overseas: “for instance … the government’s spy systems may be directed to collect and analyze all electronic communications into and out of the city [of Detroit].” As the article notes, “some intelligence officials now say the broader NSA effort amounts to a driftnet.”

However, the article appears to accept the NSA’s dubious interpretations of what is “content” under the law and those interpretations are just wrong in key ways that impact privacy. Rather than detailing what the government is doing that is legal, then, the article actually demonstrates the massive, illegal surveillance of millions of ordinary Americans, in violation of the law and the Constitution.

As Judge Walker noted when examining EFF’s allegations of dragnet surveillance: “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.” Nor can the NSA seriously contend that it can legally obtain dragnet information about Americans’ online searches, web browsing, email subject line, cell phone locations, et cetera, all without a warrant.

So while it’s possible that there’s all this other drama going on with the Iraq warrant, I think is unnecessary. As I’ve said, there are two clear prior problems: FISC rejecting a warrant that month, and the fact that they were tapping an area with tons of law-abiding US person soldiers in the way who were clearly not agents of a foreign power.

While there’s no proof that something more complex wasn’t going on, there’s absolutely no indication there was anything more complex, and all the evidence to explain it without those more complex stories.

comey wiretap kidnap iraq site:emptywheel.firedoglake.com

You did have soldiers missing.

You had a program that was now, at least, supposedly home free for the current and future by running through FISCt.

If what they wanted to do was as simple as conducting a surveillance (or acquistion) that was authorized under the program as it was safe harbored in the FISCt, I don’t think even Comey’s pretty riveting testimony would have made lawyers at DOJ suddenly feel like they couldn’t surveil through the FISCt safe harbor that the program was now in and had been operating in for about 4 mos. A lot of time and effort had gone into getting the safe harbor and I’m picking the phrase “safe harbor” advisedly.

I have to think that, with life or death on the line AND a by now well established FISCt safe harbor, they wouldn’t just freeze on making an application IF it was within the safe harbor. That’s why I’m thinking that someone wanted to do something outside the safe harbor and that is where the aspects of FISCt recourse against those involved shut down the process.

It seems the other time we hear much about not signing off was when when Thompson was (likely) being advised by (likely) Kris that the applications might put him crossways with the FISCt.

So that is just my gut, but I have to think that a legal request to FISCt within the FISCt safe harbor order and involving very possible life or death would have not caused people to sit around stewing all day, but instead would have been done the way Baker describes a lot of other FISCt applications in emergencies being done – 15 minutes maybe.

Unlike what Comey was describing in his testimony, they were operating wholly within FISCt, which would give lawyers a lot more confidence.

Unless they were wanting to go outside those safe harbors. At which point, I’d say the Comey testimony would definitely add more trepidation to stepping over that line under the old “CIC powers” rubric.

But who was willing to sign off on something that everyone else knew was not legal and likely set up violations of FISCt orders – there firewall orders, before?

I just get a deja vu-ish feel, of a DAG not signing off for fear of consequences with the court and Gonzales blithely ignoring the court out of a higher fealty to his George.

But it is all just what ifs.

Mr. Gonzales was at a meeting in San Antonio the day of Mr. Comey’s surprise testimony. “He didn’t have the decency to notify anyone what he was about to testify,” he said. “That was extremely disappointing.” Mr. Comey declined to comment.