Sunday, September 09, 2007

German Islamist terrorists and telecom surveillance

From Powerline, here, and also remarked in the WSJ editorial of Saturday-Sunday, Sept. 9, 2007:

Der Spiegel has interesting information about the terror bust in Germany; as usual, however, you have to read between the lines:

"Three suspected Islamist militants who were planning to attack U.S. installations in Germany had orders to act by Sept. 15....According to surveillance details published in Der Spiegel magazine, the men had been given a two-week deadline for their planned strikes in a late August call from northern Pakistan that was monitored by German police."

So al Qaeda's top leaders were anxious to precipitate an attack on Americans by September 15. Why? That's the date on which General Petraeus will deliver his report to Congress. Al Qaeda, as always, was playing to the Democrats in Congress, the press, and the American people. Undoubtedly, similar orders have gone out to al Qaeda's agents in Iraq and around the world.

Note, too, how German authorities found out about the planned attack. They eavesdropped on a phone call from Pakistan to Germany. This is the exact equivalent of the NSA program that is ritually, but inaccurately, described in the press as "domestic spying." Most Democrats denounce the program as unconstitutional.

Further, it was the NSA program that brought the German terrorists to light:

"The arrests were the culmination of an investigation that began a year ago, when U.S. officials alerted German authorities to e-mails intercepted from Pakistan."

If the Democrats get their way, the NSA will not be able to use this tactic unless it has enough knowledge, enough days in advance, to get an order from a FISA judge.


Marty Lederman said...

Ken: Come on. I don't know of a single Democrat, let alone "most Democrats," who "denounce the [NSA program] as unconstitutional." Did it violate FISA? Absolutely. Should it be subject to judicial review and some FISA-like protections against indiscriminate abuse? Yes. Might the Fourth Amendment require some protections for the *domestic* end of U.S.-to-overseas communications? Possibly. (Tough question, depends a lot on the facts.)

But no one -- no one -- thinks that the NSA should not be able to intercept foreign-to-domestic calls of suspected terrorists.

More to the point -- if the German arrests were the result of an NSA intercept of calls from *Pakistan to Germany* (as the Powerline post suggests), then, again, *no one* thinks the NSA should not be able to intercept such calls without a FISA court order. The Democratic bills that the White House rejected would have provided for exactly that. The Powerline/WSJ line about how the Democrats want to disempower the NSA from doing what it (allegedly) did in this case is, frankly, the worst sort of ugly and unsupportable partisan distortion. The debate currently ongoing is simply about what the NSA should have to show in order to intercept, read, maintain and share the *domestic* end of U.S-to-overseas calls, where there is no demonstration that the U.S. person involved in such calls is an agent of a foreign power.

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