@emptywheel The IG report explicitly says (p 37) that in March OLC found Internet metadata illegal under FISA and Title III. Not 4A.
@charlie_savage Anyway, headed to bed. But MY point is that Goldsmith laid out precisely arg he got KK to use: Smith.
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@emptywheel Your pt was that Goldsmith cited Smith for 4A, so Congress is powerless. You are wrong bc Goldsmith ALSO said FISA/TIII trumped. -
@emptywheel What I don't understand is why he said that for Internet data, but was cool with phone data. Something about installing device? -
@charlie_savage Ergo no way to collect the info domestically w/o triggering FISA's definition of ELSUR -
@normative right but FISA is trumpable in other areas, the memo says, so why not here too? -
@charlie_savage because the AUMF is limited in scope -- which the content surveillance was, but the metadata collection wasn't -
@normative Agree that's a possibility. Still, he endorsed elastic relevance def, so why wasn't all data relevant to AUMF intel?@emptywheel -
@normative@emptywheel I also agree with Marcy that it's mysterious why the 2002 AUMF couldn't keep the Iraq TSP going on same theory. -
@charlie_savage I think that suggests the targets were not as easily defined as targets. Which is ... intriguing.@normative
End of conversation
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