Imagine that the United States is intercepting al Qaeda communications in Yemen. Its leader there calls his weapons expert and says, “Our agent in the U.S. needs technical assistance constructing a weapon for an imminent operation. I’ve told him to use a throw-away cell phone to call you tomorrow at 11 a.m. on your throw-away phone. When you answer, he’ll give you the number of a second phone. You will buy a phone in the bazaar, and call him back on the second number at 2 p.m.”
Now, this is pretty good improvised tradecraft, and it would leave the government with no idea where or who the U.S.-based operative is or what phone numbers to monitor. It doesn’t have probable cause to investigate any particular American. But it surely does have probable cause to investigate any American who makes a call to Yemen at 11 a.m., Sanaa time, hangs up after a few seconds, and then gets a call from a different Yemeni number three hours later. Finding that person, however, isn’t easy, because the government can only identify the suspect by his calling patterns, not by his name.
Excerpt Two
The technique that squares that circle is minimization. As long as the minimization rules require that all searches of the collected data must be justified by probable cause, Americans are protected from arbitrary searches.
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But for those who don’t like the alternative model, the real question is “compared to what?” Those who want to push the government back into the standard law enforcement approach will have to explain how it will allow us to catch terrorists who use half-way decent tradecraft — or why sticking with the standard approach is so fundamentally important that we should do so even if it means more acts of terror at home.
My argument in favor of the standard approach is that acts of terror at home are infrequent, and, taken on the whole, are not terribly destructive. Yes, people die to them on occasion, and that's a tragedy – however, many, many more people die to drunk driving in a decade than will likely ever die to acts of terror on American soil.
The reality is that a billion dollars spent to reduce drunk driving will save many, many more lives than a billion dollars spent to prevent terror attacks on US soil.
…and that's without even touching the argument about whether or not erosion of civil liberties in the US is or is not a direct terrorist goal.
The Volokh Conspiracy » The FISA Court Order Flap: Take a Deep Breath
Tapped phone. [T]his is not some warrantless or extra-statutory surveillance program. The government had to persuade up to a dozen life-tenured members of the federal judiciary that the order is lawful. You may not like the legal interpretation that produced this order, but you can’t say it’s …
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