The other evening I was reading Cannonfire’s post “Hell of a footnote…” which takes a look at the differing opinions of two judges who recently ruled on NSA’s giant sucking up of information.
In case you were too busy drinking holiday wassail to keep up on this stuff, I’ll recap. On December 16th Judge Richard J. Leon concluded in Klayman vs. Obama that NSA’s activities are “almost Orwellian”. On December 27th Judge William H. Pauley concluded in the case of ACLU vs. Clapper that NSA’s activities are legal.
Judge Leon demands proof that NSA’s surveillance thwarted terrorist attacks and doesn’t get it. He wrote in a footnote to his decision (specifically footnote 65) that,
“The Government could have presented additional, potentially classified evidence in camera, but it chose not to do so [“In camera” means in private”]. Although the Government has publicly asserted that the NSA’s surveillance programs have thwarted fifty-four terrorist attacks, no proof of that has been put before me.”
In contrast U.S. District Judge William Pauley claims that rampant NSA surveillance “represents the government’s counter-punch” to rampant conniving among terrorists.
Then I read “Judge on NSA Case Cites 9/11 Report, But It Doesn’t Actually Support His Ruling” by Justin Elliott at ProPublica.
“In his decision, Pauley writes: “The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.”
As his source, the judge writes in a footnote, “See generally*, The 9/11 Commission Report.” In fact, the 9/11 Commission report does not detail the NSA’s intercepts of calls between al-Mihdhar and Yemen.”
It’s well-established that known bad guy al-Mihdhar had entered into the U.S. pre-911 and it’s established that his activities were in fact conducted under the watch and awareness of the CIA. Despite the best efforts of Diane Feinstein and affiliated, it’s widely understood that the CIA accidentally and/or deliberately did not put al-Mihdhar on a watch list or notify the FBI when the CIA learned Mihdhar had a U.S. visa – info which IS attributed to the 911 commission report.
It is perplexing to see this case of deadly inaction in response to properly collected terrorist information be used by a Judge to justify MORE collection of information. MORE INFORMATION WOULD NOT HAVE HELPED. What was needed in the case of al-Mihdhar was professional and appropriate ACTION.
A person’s perplexity turns into a case of full-on W.T.F. with the realization that Judge Pauley’s citation on al-Mihdhar is not even valid.
(For more on the accidentally and/or deliberately part, see German’s “No NSA Poster Child: The Real Story of 9/11 Hijacker Khalid al-Mihdhar” and “Former Counterterrorism Czar Accuses Tenet, Other CIA Officials of Cover-Up” by Gosztola .)
Excuse me? “See generally”?
To be sure I understand what “see generally” means in legalease I did some searching and wound up at Cornell’s web site. It refers to “A signal indicating that the cited source contains helpful background material. In this way, a reader searching for an overview of the general topic under discussion can know a good place to look.”
This is insulting half-ass nonsense. The American public deserve more than a “hey, look in that general direction for something” when it comes to this tale about Mihdhar and when it comes to approving of wholesale domestic surveillance.
Back when I had a job which had me facing people who routinely lied to get out of trouble, I would get my angriest when the liars wouldn’t even bother to come up with a good story. That’s how I feel about Judge Pauley right about now.