Did Warrantless Wiretapping Ensnare AP Photographer?

AP Photographer Bilal Hussein has been accused of supporting terrorists and held in military custody in Iraq for 20 months.

On Sunday, December 9th, 2007, the US Military presented evidence against Hussein before an Iraqi Court.  The seven hour hearings were ordered secret, as was the material presented by the Military.  Hussein's lawyer, Paul Gardephe, was allowed to see some of the material, but was forbidden from making copies.

Gardephe has presented a detailed rebuttal of the public allegations against Hussein.  However, even after Sunday's hearing, no formal charges have been filed, and much of the Military's evidence remains secret.

The incredible 20 month delay just to present evidence and the secrecy of the hearings certainly raise questions about the evidence against Hussein.  

It seems reasonable to believe that evidence against Hussein includes monitoring of electronic communications as conducted by the Terrorist Surveillance Program.  He was a suspected terrorist, and therefore would have been a clear target for monitoring of communications under the Terrorist Surveillance Program.  It is almost unthinkable that an investigation of a suspected terrorist abroad would fail to include surveillance of electronic communications.

On January 17, 2007, AG Gonzales sent a letter (PDF here) to Patrick Leahy and Arlen Specter announcing quietly that the Terrorist Surveillance Program would be submitted to FISA Courts for review.  Thus, prior to January of 2007, The Bush Administration conducted the Terrorist Surveillance Program outside of the FISA court.  Therefore, any electronic surveillance of Bilal Hussein under TSP almost certainly would have been conducted without a warrant.

Because he was working as an AP photographer, Hussein's communications certainly would have included US citizens working as AP journalists in Iraq.  It thus seems certain that the collection of evidence in Hussein's case involved the warrantless wiretapping of US Citizens working abroad.

There have been many hypothetical examples (See Sheldon Whitehouse's Senate Speech of December 7, 2007) of how TSP and the Protect America Act fail to protect the Civil Liberties of Americans.  In the case of Bilal Hussein, I suspect we will have a concrete example of how US citizens abroad were wiretapped or monitored by our Government, without warrant.  This example raises 4th amendment issues, but also raises the specter of violation of the first amendment, freedom of the press.

I believe that the Constitutional issues at play are a central motivation for why the US Military and Government are enforcing absolute secrecy in the Hussein case.

Note:  See this diary yesterday that speculates that monitoring of press communications in Iraq may have raised FISA warrant issues in the May 2007 kidnapping of US Soldiers.

•  This seems so obvious

  If they thought he was a terrorist, they would have initiated TSP surveillance.  It certainly would have included his communications with other AP journalists, many of whom were certainly US Citizens.

  Should we ask Alberto Gonzales if those communications were "minimized" appropriately?

  by drational on Tue Dec 11, 2007 at 07:34:43 AM PDT

  •  Patrick Leahy - As slow as the military tribunal

    How can we get to the bottom of any of this if the Senate doesn't work faster?

    It's a lot easier for Bush's DoJ to depend on faltering recollections and disappearing evidence if defenders of constitutional rights do not get on the case quickly.

    by malharden on Tue Dec 11, 2007 at 07:36:42 AM PDT

•  I read a story last week

  I don't remember where... it was about how the US government has announced to the British and others that we have the authority to arrest (kidnap) anyone anywhere in the world if we think they're in violation of US law.

  I'm not surrpised whatsoever that we're not spying on people everywhere in the world. US citizens or not. Our government is tapping, entrapping, and arresting people... we won't know for decades how many people have been detained, and how many have "disappeared" under George W. Bush's government.

  They're doing this all in the names of America.

  by land of the free on Tue Dec 11, 2007 at 07:44:12 AM PDT

•  FYI - warrants weren't needed before or now

  "US persons abroad" never had the same protection as "US persons" within the US under USSID 18. Warrants were not required for them, even in the "good old days" when we had the rule of law.

  Also - the word "wiretap" is very outdated. There's absolutely no need to "wiretap" most communications these days, especially in Iraq, where everything is cellular (which is why we replaced the landline comms we bombed the hell out of with cell towers in the first place!) Electronic intercept works like a big vacuum cleaner.

  by Sharon Jumper on Tue Dec 11, 2007 at 07:59:56 AM PDT

  •  US citizens

    are protected by the Bill of Rights, whether at home or abroad.

    by drational on Tue Dec 11, 2007 at 08:01:52 AM PDT

    •  Read the USSID

      I used to work for NSA.

      by Sharon Jumper on Tue Dec 11, 2007 at 08:03:12 AM PDT

      •  You go back and read USSID

        and take note of the Foreign Power agency and consent clauses, 4.1 b and c.

        you are misinforming.

        by drational on Tue Dec 11, 2007 at 08:08:46 AM PDT

        •  Yes, let's read the USSID

          4.1 (S-CCO) Communications which are known to be to, from or about U.S. PERSONS oxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx not be intentionally intercepted. [1 line redacted.]

          
          b. With the approval of the Attorney General of the United States, if:

          (1) The COLLECTION is directed against the following:
          (a) Communications to or from U.S. PERSONS outside of the UNITED STATES, or

          This was the law, as passed in 1978...as amended in 1993...and as it currently exists.

          There's plenty to "get" the Bush Administration on without having to be hyperbolic or make stuff up. For instance, look at the briefs and other things written by military lawyers who have refused to participate in Bush's kangaroo courts.

          by Sharon Jumper on Tue Dec 11, 2007 at 08:16:39 AM PDT

          •  Is this a law? I don't understand how you can

            redact a law.  Doesn't it negate the point of having it, if you don't know what's in it?

            It seems to me that the existence of a redacted law is itself worthy of investigation and highly suspect.

            Or is this something other than a law? If so, why does it have the force of law?

            by TheFatLadySings on Tue Dec 11, 2007 at 08:22:05 AM PDT

            •  that's a very good question (nt)

              by subtropolis on Tue Dec 11, 2007 at 08:43:50 AM PDT

            •  Bush decides what is law

              and Bush decides what is constitutional.

              He has declared the ability to override laws and regulations "in a time of war" as the Commander in Chief.

              it doesn't really matter what the letter of the law says. He'll do what he wants, and will let things to to his Supreme Court if necessary. He's declared power to be limitless.

              by land of the free on Tue Dec 11, 2007 at 09:04:49 AM PDT

          •  You are being Deceitful

            Please quote entire section:

            b. With the approval of the Attorney General of the United States, if:

               (1) The COLLECTION is directed against the following:

                   (a) Communications to or from U.S. PERSONS outside of the UNITED STATES, or

                   (b) International communications to, from, [1 line redacted.]

                   (c) Communications which are not to or from but merely about U.S. PERSONS (wherever located).

               (2) The person is an AGENT OF A FOREIGN POWER, and

               (3) The purpose of the COLLECTION is to acquire significant FOREIGN INTELLIGENCE information.

            Subsections 1, 2, AND 3 apply.
            The AG must make a determination of foreign agency.

            US citizen reporters in Iraq are entitled to 4th amendment protection.

            You are not honest, or correct.

            by drational on Tue Dec 11, 2007 at 10:29:26 AM PDT

  •  And use of "Warrantless Wiretapping"

    is for title space and broad colloquial recognition.  It does not reflect a naive understanding of technology.  Please refer to my diaries over the past 6 months.

    by drational on Tue Dec 11, 2007 at 08:04:03 AM PDT

  •  Thanks for the link but what is an

    intelligence directive? Does it actually supercede the Constitution or is it an artifice, sort of like a signing statement, that Congress has yet to stand up to?

    by TheFatLadySings on Tue Dec 11, 2007 at 08:11:20 AM PDT

    •  USSID 18

      Passed in conjunction with the Foreign Intelligence Surveillance Act of 1978, during the Carter Administration. Amended in 1993 (approved by Clinton - and it actually gave MORE power to intelligence operatives, by the way). Here's a link to information on USSIDs.

      USSID 18 was originally a response to Nixonian shenanigans involving monitoring of political opponents and dissidents INSIDE the US. Everyone involved in collection, analysis, and reporting of SIGINT was required to read and acknowledge USSID 18 procedures annually - including immediate destruction of inadvertent intercept of improper data. The Posse Commitatus clause of the Constitution was also invoked as a basis for USSID 18, to prevent the US Military (NSA is part of DOD) from spying WITHIN the US - but outside of the US, the restrictions were far more loose.

      by Sharon Jumper on Tue Dec 11, 2007 at 08:25:40 AM PDT

      •  You are misinforming on USSSID 18

        see above

        by drational on Tue Dec 11, 2007 at 10:30:16 AM PDT

  •  What about U.S. persons (like AP editors)

    in the U.S. communicating with an employee like Bilal Hussein in Iraq?  Wouldn't a warrant be required to intercept such communications?

    by lysias on Tue Dec 11, 2007 at 08:17:17 AM PDT

    •  NO

      Outside of the US, you can intercept "US Persons" with just the permission of the Attorney General's office. As noted, USSID 18 was initially implemented during the Carter Administration, and was amended (giving more power to intel agencies) during the Clinton Administration. What Bush did was turn the spy agency on "US persons" WITHIN the boundaries of the US.

      Here's the deal - NSA's computers suck up all kinds of stuff. Humans rarely even see it, unless certain patterns or characteristics are present. Data is stored and can be retrieved after the fact if "something" happens (cf. all of the stuff they had stored on the 9/11 hijackers that they were able to go back and retrieve after the fact.)

      All in all, SIGINT is a very valuable intelligence tool, but it can be abused, like any other. The case the diarist is using is not a good one to use to show abuse of SIGINT collection, however.

      by Sharon Jumper on Tue Dec 11, 2007 at 08:31:26 AM PDT

      •  SJ, How does this USSID 18 connect...

          the Executive Order 12333 from 1981 that supposedly fills the gap for Americans abroad if our government follows this EO. I think this is the point that many have been making on the blogs is that Whitehouse recently pointed out that Bush has been ignoring EO 12333 and will continue to do so. You can see Executive Order 12333 here.
           Thanks for your input to the diary.

        by NC Dem on Tue Dec 11, 2007 at 09:03:39 AM PDT

      •  Um, may I point out what we are talking about

        here is not merely the collection of intelligence, but the use of intelligence to support incarceration.

        by Smallbottle on Tue Dec 11, 2007 at 09:31:01 AM PDT

      •  You are misinforming

        US persons can be surveilled, only if they are agents of foreign states.
        Please read the law you cite.

        by drational on Tue Dec 11, 2007 at 10:31:30 AM PDT

•  Why is the Press so dense on this issue?

  They are desirable targets for surveillance.  Via tipsters aren't they always just one or two degrees of separation from the insurgents?

  The old TSP, and the August 2007 PAA clearly let us tap them to "target" the terrorists, without warrant.

  And if a bit of information about domestic whistleblower sources gets acquired by accident, can we trust our Government to minimize that information?

  by drational on Tue Dec 11, 2007 at 08:00:31 AM PDT

•  I am no fan of the Bushies or their warrantless

  wire tapping programs. I am also a pretty big supporter of the rights of the working press however, this situation is a pesky one. The photographer is an Iraqi national who has been working with the AP for about three years. He is not a US citizen. It is not clear whether he is an AP staffer or a stringer. He is also working in a war zone within a country not protected by the rights guaranteed under the US Constitution. He is most likely credentialed by the Iraqi Government and the US military and must adhere to their rules. I think we need to know more facts here before reaching any conclusions. BTW, the US military conducts surveillance. No big secret there and the working foreign press knows this.

  by Bouwerie Boy on Tue Dec 11, 2007 at 08:03:21 AM PDT

  •  You miss the point

    I am not concerned about surveilling Hussein.
    He has no protections as a noncitizen.
    I offered him and his certain contacts with US press in Iraq as a segway to the larger question:

    I am concerned about TSP and PAA, which offer US citizens no constitutional protections abroad.  This includes working members of the Press.

    And because the press is tipped by insurgents or people close to insurgents, they are obviously high yield targets of NSA surveillance.  I'd surveill them if I was NSA, wouldn't you?

    The complication is that they have 1st and 4th amendment rights, and would need a warrant to be targets under old FISA, but not PAA.

    by drational on Tue Dec 11, 2007 at 11:11:17 AM PDT

•  I thought part of the rationale for side-stepping

  FISA courts was a need for speedy prosecution. Good catch on this one. It needs to see the light of day before they claim it as a "precedent." They seem pretty keen on rewriting the constitution through precedent.

  by TheFatLadySings on Tue Dec 11, 2007 at 08:08:22 AM PDT

•  I think you're confused

  Any communication by a US citizen with someone outside the US who is being investigated, is pretty much fair game.

  by subtropolis on Tue Dec 11, 2007 at 08:41:19 AM PDT

  •  only because of the program stuffed down

    our throats, and about to be reversed.

    by SmileySam on Tue Dec 11, 2007 at 08:55:43 AM PDT

•   The Gov.'s lies

  I am listening to the Sen. hearing right now, and the gov. has contimued to claim that the prisons are not tried in secret, the they are allowed access to the evidence. Clearly while they are careful in their claims, they border on perjury. The truth has died in our justice system and unless brought back to life facism will grow stronger daily.

  by SmileySam on Tue Dec 11, 2007 at 08:54:20 AM PDT

•  Ah the sweet fruit from Bush's Freedom Tree n/t

  by CitizenOfEarth on Tue Dec 11, 2007 at 09:18:42 AM PDT