For a US person to be an agent of a foreign power, they basically needed to be engaged in some kind of espionage for the foreign power. So under FISA it was not the location of the US person but their status as engaged in espionage for a foreign power that made them able to be surveilled at all on less than criminal probable cause. A kind of chicken before the egg thing. The overseas argument wasn’t based on FISA, it was based on the argument that the Constitution cuts off at US shores vis a vis a US citizen and its gov. That argument is based on some search and seizure cases that are out there, but which – as I think the settlement in Horn demonstrates, are highly questionable in their application to a govt run surveillance program of a US person overseas, esp one where the surveillors are all sitting in the US and may be capturing from US switch locations.

Then you get to the other end of the call, the US end. There yes, you would have/should have minimization issues. I’d have to look, though, at the issue of the US person being active US military, bc I’m not sure that they have the same protections to be honest. In addition, I beleive the minimization orders do not necessarily have to say “don’t listen to or preserve ANY US end of any converation” so you’d need the order itself to see if it were complied with (or it if were constitutional in its requirements or lack thereof) I can certainly imagine situations where an order would allow for some type of info to be compiled and reviewed, and if that info were, for example, checking numbers against names, occupations, etc. I can also see that an initial call that indicated a member of the US military was making overseas contact with someone deemed an agent of a foreign power, I can se where they might get a modification of the order on the target or an order on Hasan as well.

In any event, here’s my kind of sinking feeling on the whole thing. That maybe the Bushies didn’t get a FISA ct order initially and never bothered to get such an order, even though they knew they had US persons in the US on the calls. Now – lookie – the telecoms and CIA and all have their “al-Qaeda calling” scenario. As things come out about the program and there is the brouhaha about the warrantless surveillance and massive telecom felonies, CIA turns over some of the communications between Aulaqi and Hasan to the FBI.

Two problems. First, the communications are all pretty innocent (as per Hoekstra). Second, they are not in a good position now to go to the FISA court to get more surveiallance both because the already captured communications are pretty innocent and – oh yeah, the FISA firewalls. The ones the court put up to keep evidence of the illegal program from being used in applications before the court. How do they say – we want to search and seize Hasan’s communications bc he’s been in touch with a US iman now overseas and that iman is an al-Qaeda figure – if the only way to say that is is say that you know about his contacts bc of your illegl program? We also know that the FBI/DOJ has already had its chain yanked by the FISA Ct at one point (before all the new Roberts appointments – who knows how they will/have changed things) bc it ignored the firewall and was laundering illegally captured info through the FISA ct.

And now withObama coming into office, the “disappear ‘em, torture ‘em, then find someone like Luttig to bless it all” program that they used for Padilla isn’t an option. File under “hard facts make bad law” if this one goes up or gets lots of focus, bc DOJ couldn’t have penned a better set of facts to frame their Executive powers based on war necessities arguments.

The fact that all kinds of things coulda, shoulda, been done re: Hasan won’t make much differnce to the framing.

I’m not sure on the US laws involved here, but in my country its still legal to tape a conversation when you participate in it, and you don’t have to tell the counterpart. then i send someone on the “old boys network” wokerbee typo out with recording device and pull a “reverce intogation” on him…you know kinda have a nice acidental informal conversation dangle the subjekt with a few nice bits then slowly move in to the things that he don’t wanna know cuz of “deniability” at the end of the conversation the trick is to go WHOOOOOOPS BTW you can’t mention none of this under the (what ever secrets act you ussing)QED you stopped the “politico” from running around doing crazy stuff.

Trust the human nature, they all fall in to that trap

Just my five cents worth

How do you know Alawki was using an US provider – how do you know a NSL would be effective?

Good point, and twould be an assumption.

If other than a US email provider, that would make the NSA’s task far more difficult.

Just like with monitoring all worldwide communication links, I rather doubt that the NSA has coverage for all non-US email providers.

With “friendly” countries, the NSA might get intercept breaks. Great Britain would be accommodating, but other countries probably less so.

I would note that many of the US email providers are global in their email provisioning, so it still is high up on my “usual suspects” list.

And a note for those inclined to laugh uproariously, Repug Senator Kit Bond is Jon Stewart’s “guest” tonite on The Daily Show.

Can’t wait for the asskicking!

Based on all the reporting we’ve seen today, assume, along with me, a couple of things.

1. The “target” of the communications intercept was Aulaqi.
2. The communications to be intercepted were emails (as opposed to blog comments such as this).

In order to accomplish this, the NSA had to do one or both of the following:

Option A. Have the email provider give the NSA all communications to and from a specific email account.

Option B. Monitor, and grab, all Internet communications for a specific email account.

Option B is not likely in this specific instance just because of the enormity of the task and the “unreliability” or perhaps better, the “impossibility” of ensuring that each and every email from and to that account was grabbed across the entire globe.

While the NSA monitors a great deal of worldwide communications, I rather doubt they can or do surreptitiously leech themselves onto every single foreign country’s telecommunications.

It is more likely that the NSA, and perhaps via an NSL, used Option A and identified an email account that Aulaqi used (perhaps the one listed on his website) and forced the email provider to give the NSA all the “to” and “from” email for that account.

I’m not suggesting that the NSA does not do Option B, but instead that they use that option to blindly search for “suspect” terrorism-related content.

When the NSA has a “known” email account, they go directly to the email provider to ensure they get all email to and from that account.

I would also argue that the NSA does indeed use both Option A and Option B methods because they believe they can ill afford to depend on just one method.

The NSA is thereby attempting to defeat former DoD Secretary Rumsfeld’s infamous allegory regarding “known knowns, known unknowns, and unknown unknowns”.

Option A is used for “known knowns”.
Option B is used for “known unknowns”.

I don’t think the NSA has yet figured out what to do about “unknown unknowns”. *g*

And this is why I think that EFF announcement I mentioned in my comment at # 33 has some “relative” importance.

I’ve maintained for some time, and do so here again, that amongst the corporate entities who lobbied so desparately for retroactive immunity were in fact email providers.

Not just Telcos, but folks who provide the email we all use. Folks like Google (Gmail), Microsoft (Hotmail), Comcast, Yahoo, etc.

I hope we shall see. *g*