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WASHINGTON, Dec. 15 ­- Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

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Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.

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Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court.

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The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant ­ intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups ­ and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.

Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.

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Several senior government officials say that when the special operation first began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

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Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA Patriot Act, which is up for renewal.

...

Bush administration officials argue that the civil liberties concerns are unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A. to target Americans. "Nothing could be further from the truth," wrote John Yoo, a former official in the Justice Department's Office of Legal Counsel, and his co-author in a Wall Street Journal opinion article in December 2003. Mr. Yoo worked on a classified legal opinion on the N.S.A.'s domestic eavesdropping program.

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The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses."

Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, noted "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."

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Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the U.S. response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same -- the president can do whatever the president wants. Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime -- even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished."

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Bush defended signing the order by saying that two of the September 11 hijackers who flew the plane into the Pentagon -- Khalid Almihdhar and Nawaf Alhazmi -- "communicated while they were in the United States to other members of al Qaeda who were overseas, but we didn't know they were here until it was too late."

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In acknowledging the message was true, President Bush took aim at the messenger Saturday, saying that a newspaper jeopardized national security by revealing that he authorized wiretaps on U.S. citizens after September 11.

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If impeachment were an option, I'd be happy with that too.

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In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that:

On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following: (1) the nature and details of his relationship with a subordinate Government employee; (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him; (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.

In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.

Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

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The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, the officials said.

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from the NYT:
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

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In regards to following a person of interest within the US, their is a procedure for that which can be done without a warrant, or with secret warrants (FISA), and it is unclear how or if FISA ever came into play in this case. Moreover, if congress was advised, as the administration contends, then the individuals could have been added to the federal International Watch list, which would allow the CIA to track them domestically as part of their charter; this same guideline allowed the CIA to work the Olympic games in Atlanta and LA as part of the IOC's request for prevention, and the same means by which intelligence agencies are allowed to monitor activities of embassies.

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The aim of the program was to rapidly monitor the phone calls and other communications of people in the United States believed to have contact with suspected associates of al Qaeda and other terrorist groups overseas, according to two former senior administration officials. Authorities, including a former NSA director, Gen. Michael V. Hayden, were worried that vital information could be lost in the time it took to secure a warrant from a special surveillance court, sources said.
But the program's ramifications also prompted concerns from some quarters, including Sen. John D. Rockefeller IV (W.Va.), the ranking Democrat on the intelligence committee, and the presiding judge of the surveillance court, which oversees lawful domestic spying, according to the Times.
The Times said it held off on publishing its story about the NSA program for a year after administration officials said its disclosure would harm national security.
The White House made no comment last night. A senior official reached by telephone said the issue was too sensitive to talk about. None of several press officers responded to telephone or e-mail messages.
Congressional sources familiar with limited aspects of the program would not discuss any classified details but made it clear there were serious questions about the legality of the NSA actions. The sources, who demanded anonymity, said there were conditions under which it would be possible to gather and retain information on Americans if the surveillance were part of an investigation into foreign intelligence.

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Furthermore, I think this continues to shed light on a dangerous streak of leaks from the Bush White House. How is it that supposedly secret information keeps finding its way out of the White House?

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I've been withholding judgement on the whole impeachment thing for some time, because I DO believe that a wartime president should get some leeway, but I think we've moved beyond "accidential violation of Constitutional law" and have entered the realm of the egregious.

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Impeachment IS an option. And I called my senators yesterday with that request.

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I question the timing of this report (Patriot Act renewal and an upcoming book release). I also wonder if anyone is going to clamor for an investigation of this leak with nearly the same enthusiasm as they did when an already compromised agent's name was published in some newspapers.

I doubt it, since that isn't part of the 'impeach Bush' agenda. How quickly the brief period of the Left's concern for national security evaporates.

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Dag: yeah, I knew some exceptions were allowed. I'm finding it a little hard to imagine that this situation falls comfortably into that umbrella, however.

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Why?
 

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Posted by TomDavidson (Member # 124) on :
 
For one thing, I'm not at all sure they permit the executive branch to waive the FISA requirement. For another, I find it hard to believe that they could be authorized by accident, although of course the morality and quality of Bush's legal counsel has always been suspect.

But you know me. I'm not a big fan of bad precedent, even when it exists. After all, if Bush gets away with this one, it'll be used to justify the future expansion of surveillance activity another generation or so down the road, because after all "exceptions are allowed."
 

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Posted by Dagonee (Member # 5818) on :
 
You haven't just said this is a bad policy - something I'm undecided on until I know more - but that you think it warrants criminal conviction (I'm assuming you don't just want Bush impeached, but actually convicted by the Senate).

Finally, Bush has almost certainly notified the Congressional intelligence committees about this. If he's culpable, so is every member of those committees.
 

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Posted by TomDavidson (Member # 124) on :
 
I'm okay with impeaching Congress.
But that said, I think he's notified them; I don't necessarily get the sense that he wouldn't do it if they told him not to. I'm not sure that applying a big rubber stamp to someone else's sword is itself an impeachable offense, especially when it's uncertain whether Congress could technically do anything else about it.

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Bush administration officials argue that the civil liberties concerns are unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A. to target Americans.

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But that said, I think he's notified them; I don't necessarily get the sense that he wouldn't do it if they told him not to. I'm not sure that applying a big rubber stamp to someone else's sword is itself an impeachable offense, especially when it's uncertain whether Congress could technically do anything else about it.

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It's this sort of disingenuousness that bothers me, Dag; as I understand it, the Patriot Act has nothing to do with this at all, and their reply is designed to obscure the fact that Bush himself, on his own initiative, has freed the NSA to target Americans. Am I misunderstanding that situation?

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Assuming that is correct, and the EFF's characterization of various court cases and the tests they created are even somewhat correct, I suspect this was extremely illegal, especially if it turns out the requests were not all reviewed by the President or AG.

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Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.

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Originally posted by TomDavidson:

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I question the timing of this report (Patriot Act renewal and an upcoming book release). I also wonder if anyone is going to clamor for an investigation of this leak with nearly the same enthusiasm as they did when an already compromised agent's name was published in some newspapers.

I doubt it, since that isn't part of the 'impeach Bush' agenda. How quickly the brief period of the Left's concern for national security evaporates.

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What a load of bull. See how rapidly you attempt to spin this? Since it's CONFIRMED, you can't deny its accuracy -- so you instantly attempt to poison the messenger. Consider, though, that if you believe the message was delayed at all, your only source for that is the Times itself -- and according to them, they delayed the release of the report at the government's request. It would have otherwise come out before the last presidential election. (Which leads to the following question: if it's immoral to delay a story to impact the vote on a bill, is it even more immoral to delay it to impact an election?)

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Furthermore, they invited Congress to act and fill the void, which it did, with FISA. If the President went beyond FISA in that demesne, he lacked proper authorization.

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The committees dealing with such things are not empowered to say Congress is okay with anything they feel like, it may very well be Congress as a whole would not have granted the President such power.

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Congress does not have the power to make decisions outside certain channels; even Congress cannot act or authorize action outside the laws it passes without changing the law, matter how much it, or more properly a small part of it, "consents".

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Especially as we are not aware of the manner in which notice was given. If Congress were merely given a list of those people in the US under surveillance by the various agencies, they may well suppose that surveillance was being conducted under FISA. There are numerous other potential scenarios.

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And, yes, I'm engaging in an ad hominem against the NYT in just the same way you are engaged in an ad hominem against me.

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The blame Bush crowd is simply once again demonstrating that no matter what happens (Katrina, terrorism outside of Iraq, terrorism inside of Iraq, oil prices, global warming, global warming on Mars) it's all Bush's fault. They had their shot at getting Bush out of office during the last election. They failed. They need to get over it. But they also need to understand that they do not look like the avatars of freedom and democracy when they reject completely the outcome of a democratic election that just happens to not go the way they would prefer. Frankly, they seem like children.

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Congress as a whole delegated to the intelligence committees the power to receive updates from the President about foreign intelligence matters. The reason for that delegation was to help maintain security by limiting the number of recipients while allowing a delegated set of individuals oversight and the chance to bring matters to the attention of the House if they thought further legislative action was needed.

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And were they intercepted outside the US, that would be one thing, as the SC decisions make clear. They were, however, intercepted inside the US.

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All true, and all nearly irrelevant to my point. That the intelligence committees did not choose to pursue something does not legalize it, it merely minorly strengthens potential arguments that it was within the intent of Congress to allow it (and even the intent of Congress is not the final word, particularly if the laws themselves by clear wording contradict that, or if the intent is too vague under the Constitutional protections we enjoy).

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You're quite right that the authorization of one method of surveillance does not make other methods illegal, but part of the tests the courts seem to always use with these cases is whether or not what authorizes is sufficiently narrow, and the court demonstrates several times extreme skepticism about executive power to act outside Congressionally proscribed surveillance -- note, again, the invitation for Congress to act in a case involving executive branch investigation.

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And, in presidential powers cases (not rights cases), failure to act by Congress when it could have can lend a presumption of constitutionality to the president's actions.

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Remember my comment about being no fan of bad precedent?
 

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Posted by Dagonee (Member # 5818) on :
 
Remember my comment about the difference between saying something is bad precedent and calling for criminal conviction of the person who establishes it?
 

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Posted by fugu13 (Member # 2859) on :
 
Dagonee: Yes, let us look at Dames & Moore.

Congress's actions in that regard were not, as you assert, narrowly tailored. Indeed, the justices note the powers granted by the IEEPA are very broad, and merely do not extend to the case in question, and even that "the broad language of the Hostage Act suggests it may cover this case".

Furthermore, they note there is no doubt the US gov't is entitled to act to settle the claims of its nationals. The only question before the court is whether the President was authorized to do so in this case. Furthermore, Congress had acted to allow a nearly exactly parallel situation with Yugoslavia in a bill that specifically entertained the notion of further such situations, and has frequently amended that act to cover such situations, bowing to the President's appraisal of need in each instance.

Congress had also specifically considered legislation regulating Presidential ability to negotiate settlement of claims with other countries, yet only passed legislation requiring notification in such a case.

It is not that Congress had acted narrowly in a related manner that allowed the president to suspend claims, it is that Congress had acted broadly in authorizing virtually identical instances of claims suspension, and had clearly given the president significant discretionary power through legislation. Congress specifically did not enact significant oversights on the President's power to do this.

This case is very different. It is not clear any part of the gov't has the power to do this. Congress has previously acted specifically to limit various agencies' ability to do this, in their very charters. Congress actually did act narrowly (rather than generally), imposing significant oversights on the President's power to authorize such surveillance, oversights involving the evaluation of judges. The President explicitly acted outside those oversights, unlike in Dames & Moore where the President acted within them (by notifying Congress as legislated).
 

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Posted by Dagonee (Member # 5818) on :
 

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Congress's actions in that regard were not, as you assert, narrowly tailored. Indeed, the justices note the powers granted by the IEEPA are very broad, and merely do not extend to the case in question, and even that "the broad language of the Hostage Act suggests it may cover this case".

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Furthermore, they note there is no doubt the US gov't is entitled to act to settle the claims of its nationals. The only question before the court is whether the President was authorized to do so in this case.

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Furthermore, Congress had acted to allow a nearly exactly parallel situation in Yugoslavia in a bill that specifically entertained the notion of further such situations, and has frequently amended that act to cover such situations, bowing to the President's appraisal of need in each instance.

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It is not that Congress had acted narrowly in a related manner that allowed the president to suspend claims, it is that Congress had acted broadly in authorizing virtually identical instances of claims suspension, and had clearly given the president significant discretionary power through legislation.

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Congress specifically did not enact significant oversights on the President's power to do this.

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This case is very different. It is not clear any part of the gov't has the power to do this.

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Congress has previously acted specifically to limit various agencies' ability to do this

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Congress actually did act narrowly (rather than generally), imposing significant oversights on the President's power to authorize such surveillance, oversights involving the evaluation of judges.

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The President explicitly acted outside those oversights, unlike in Dames & Moore where the President acted within them (by notifying Congress as legislated).

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FISA, which created constraints on the ability of agencies to intercept communications inside the united states (the interception occurring inside the US, not the communications)

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(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any person thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law
enforcement purposes. to acquire foreign intelligence information.

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At least some of the instances described pretty clearly fall under this multipart definition (mainly 1), as targets have been mentioned as including "United States person"s.

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Did every single wiretap implemented under this methodology get approved by a Congressional oversight group?

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They had their shot at getting Bush out of office during the last election. They failed. They need to get over it. But they also need to understand that they do not look like the avatars of freedom and democracy when they reject completely the outcome of a democratic election that just happens to not go the way they would prefer. Frankly, they seem like children.

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As used in this subchapter:
(a) “Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
(b) “Agent of a foreign power” means—
(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(c) “International terrorism” means activities that—
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended—
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
(d) “Sabotage” means activities that involve a violation of chapter 105 of title 18, or that would involve such a violation if committed against the United States.
(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

...

(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

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(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

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I think the answer to that question is in the definition the administration is using to "Those associated or having connections to terrorist groups."
At one point the Secretary of the Department of Education called the head of the NEA a "Terrorist". Does that give the government grounds to monitor their calls? Of course not.

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My big fear is that some future politician or beaurocrat will use this system for those purposes in the future.

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any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

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(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and...

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quote:

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Originally posted by Dagonee:

It seems like the President has at least a colorable, and likely a strong, case for his actions. Do people really think impeachment is warranted when a legal justification can be made without any real stretch?

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quote:

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Originally posted by Dan_raven:
I think the answer to that question is in the definition the administration is using to "Those associated or having connections to terrorist groups."

At one point the Secretary of the Department of Education called the head of the NEA a "Terrorist". Does that give the government grounds to monitor their calls? Of course not.

As long as the President is truly focusing on monitoring terrorists, or people who are probably connected to terrorism, then I believe most people don't have a problem with that.

However, if there is no oversite, if the lists of people to be tapped is based more on beaurocratic guesswork than on intelligence and fact, then we have a serious problem.

Is President Bush abusing this power for political or personal gain?

no.

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quote:

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My big fear is that some future politician or beaurocrat will use this system for those purposes in the future. Without judicial or some third party oversite, abuse is easier.

The majority of the Presidents Anti-Terror plans work well, and are used well--at present. But there is little to no thought given to how these precedents can be abused in the future. It is assumed that those being entrusted to infringe on our privacy in the name of anti-terrorism will now and for ever have the best of intentions. Abu Graib has taught us that such ideal gaurdians can not be relied upon to be in the right place at the right time. Any opening allowed for abuse will be used by those who enjoy it.

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quote:

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As I'm reading this, the only way we could surveil outbound communications between a U.S. citizen and a foreign power would be if that citizen were already guilty of conspiring to commit terrorism, something we presumably wouldn't already know before surveillance.

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quote:

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don't agree that he has a 'strong case' for his actions.

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quote:

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When you justify torture because the Geneva Conventions are quaint I consider that a stretch of legal justification.

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quote:

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(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

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quote:

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Originally posted by Dagonee:
[QUOTE] don't agree that he has a 'strong case' for his actions.

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quote:

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Care to share your reasons why the legal justification wouldn't apply?

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quote:

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When you justify torture because the Geneva Conventions are quaint I consider that a stretch of legal justification.

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quote:

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So a bad legal justification in another matter means this legal justification is bad? It doesn't work that way.

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quote:

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He is doing the same thing that Clinton did. Justification of torture by calling the Geneva Conventions 'quaint' is skirting along the razor's edge, a lot like asking 'what the meaning of what' is.

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quote:

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If it was one incident, or even a couple of incidents that were fringe, I'd have to agree with you. BUT the body of evidence indicates that this is more than that. It is a pattern of behavior. A blatent disregard for the Rule of Law.

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quote:

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Radical Militant Librarians and Other Dire Threats

When the shepherd is a wolf, the flock becomes only so much meat.

- Gurney Halleck
There was an internal FBI email sent in October 2003 that speaks volumes about why our legal system has been arranged the way it has. An unnamed agent was railing via email against the Department of Justice's Office of Intelligence Policy and Review. Specifically, the agent was frustrated by OIPR's failure to deliver authorization to use Section 215 of the Patriot Act for a search. "While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us," wrote the agent.

Radical militant librarians?

Radical militant librarians?

This, right here, is why the legal system is arranged the way it is. This is why officers must obtain warrants from a judge before they can conduct a search. Even in this time of watered-down civil liberties, warrants serve a vital purpose. At a minimum, the warrant firewall keeps walleyed FBI agents with wild hairs about radical militant librarians from bulldozing through the Fourth Amendment.

The President of the United States of America, it seems, does not agree with the sentiment.
It has been widely reported that Bush personally authorized the super-secretive National Security Agency to conduct surveillance against American citizens. "The previously undisclosed decision to permit some eavesdropping inside the country without court approval," wrote the New York Times upon breaking the story, "was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches."

As if this were not outrageous enough, Bush, during his weekly radio address, bluntly admitted to violating the laws governing surveillance of American citizens and the Fourth Amendment to the Constitution not once, but some thirty times. "I have reauthorized this program more than 30 times since the September 11 attacks," said Bush, "and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups."

These revelations hit Congress like a dung bomb, and caused what would likely have been an easy rubber-stamping of the renewal of the Patriot Act to go flying off the tracks and into the puckerbrush. "Disclosure of the NSA plan had an immediate effect on Capitol Hill," reported the Washington Post on Saturday, "where Democratic senators and a handful of Republicans derailed a bill that would renew expiring portions of the USA Patriot Act anti-terrorism law. Opponents repeatedly cited the previously unknown NSA program as an example of the kinds of government abuses that concerned them, while the GOP chairman of the Senate Judiciary Committee said he would hold oversight hearings on the issue."

The most disturbing aspect of this situation is, simply, how totally unnecessary it was. The provisions of the Patriot Act, along with several other laws, allow the administration to get warrants for the surveillance of anyone, anywhere in the country, with little trouble. The Foreign Intelligence Surveillance Act (FISA) set up a special court for the dispensation of warrants with no need for evidence or probable cause. This court has almost never denied the issuance of such warrants when asked, and said warrants are usually delivered in a matter of hours.

"Why would the President deliberately circumvent a court that was already wholly inclined to grant him domestic surveillance warrants?" asked columnist David Sirota in a recent essay. "The answer is obvious, though as yet largely unstated in the mainstream media: because the President was likely ordering surveillance operations that were so outrageous, so unrelated to the War on Terror, and, to put it in Constitutional terms, so 'unreasonable' that even a FISA court would not have granted them. This is no conspiracy theory - all the signs point right to this conclusion. In fact, it would be a conspiracy theory to say otherwise, because it would be ignoring the cold, hard facts that we already know."

Retired Air Force Lieutenant Karen Kwiatkowski, widely known for her revelations about the inner workings of the Pentagon's Office of Special Plans and its manipulation of Iraq war evidence, spent two years working at the National Security Agency. On Sunday, I asked her what the ramifications are of a President throwing aside the firewalls that have blocked governmental surveillance of citizens for the last twenty five years.

"It means we are in deep trouble," said Kwiatkowski, "deeper than most Americans really are willing to think about. The safeguards of mid-1970s were put in place by a mobilized Democratic congress in response to President Richard Nixon's perceived and actual contempt for rule of law, and the other branches of government. At that time, the idea of a sacred constitution balancing executive power with the legislative power worked to give the Congress both backbone and direction."

"Today," continued Kwiatkowski, "we have a President and administration that has out-Nixoned Nixon in every negative way, with none of the Nixon administration's redeeming attention to detail in domestic and foreign policy. It may indeed mean that the constitution has flat-lined and civil liberties will be only for those who can buy and own a legislator or a political party. We will all need to learn how to spell 'corporate state,' which for Mussolini was his favorable definition of fascism."

an excerpt ...continued ...

By William Rivers Pitt
t r u t h o u t | Perspective
Monday 19 December 2005

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quote:

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“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

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quote:

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The AG and President have danced around whether they had any substantial evidence to think the (possible) US persons in question had ties to terrorists, only stating that one party in each communication had ties to terrorists (and being rather vague about the nature of those ties). If they were talking about the non-US citizen party, and did not have reason to think the US person was also so, that argument does not follow.

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quote:

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I was misreading. A US citizen is a US person under this, no ifs, ands, or buts (a single person can't be "a corporation or an association which is a foreign power"). The exemption noted only applies when there is no substantial likelihood a US person's communications are involved. The gov't specifically targeted US citizens' communications. Therefore the exemption doesn't remotely apply.

---

quote:

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Originally posted by Dagonee:
[QUOTE]He is doing the same thing that Clinton did. Justification of torture by calling the Geneva Conventions 'quaint' is skirting along the razor's edge, a lot like asking 'what the meaning of what' is.

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quote:

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So no comment on the actual topic of discussion, then - that is, was the surveillance just reported legal or not?

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quote:

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The topic is whether this incident was a blatant disregard for the Rule of Law. Blatant certainly suggests no close question exists. Now, would you care to explain why this isn't a close question, legally?

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quote:

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If it was one incident, or even a couple of incidents, I'd have to agree with you. BUT the body of evidence indicates that this is more than that. It is a pattern of behavior. A blatent disregard for the Rule of Law.

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quote:

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As I said, it was splitting hairs. Technically it was legal, but it flaunts Executive priviledge, and abuses that power. Executive order was meant to be used for the exceptional circumstance, NOT to subvert or rewrite the law. If he wants to change the law, he needs to have a Bill introduced, rather than cite executive priviledge again, and again thirty times.

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quote:

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Making an 'exception to the law' thirty times and stating you will continue to make that exception - without ever actually attempting to CHANGE the law through Congressional processes - is blatent disregard for the Rule of law.

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quote:

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Originally posted by DarkKnight: A lot of people sound like they are making the slippery slope arguement. Funny how it applies only to Bush and not to anything else...

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quote:

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For this to be a close issue, the AG would have to have followed that exemption and certified under oath there was no substantial likelihood a US person's communications would be intercepted by the surveillance. Given that he knew they were targeting US persons (citizens, to be specific), I would love to see how that would be a "close issue".

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quote:

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A US citizen is a US person under this, no ifs, ands, or buts (a single person can't be "a corporation or an association which is a foreign power").

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quote:

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No, fugu. A US citizen ceases to be a US person (as I understand it) if they are actively involved in plotting terrorism. Proving that this is the case turns them into a valid surveillance target.

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quote:

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Originally posted by Dagonee:
If it was technically legal then he didn't need to change the law. "Technically legal" = "legal."

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quote:

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Making an 'exception to the law' thirty times and stating you will continue to make that exception - without ever actually attempting to CHANGE the law through Congressional processes - is blatent disregard for the Rule of law.

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quote:

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Nonesense. The rule of law, in this case, includes use of the exception. The exception is well within the rule of law. Congress had notice (through their designated recipients of such notice) at least a dozen times. If they thought the exception was too broad, they could have attempted to change the law.

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quote:

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And yes, repeatedly authorizing an agency to break the law IS abusing the Rule of Law.

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A contrary construction would make it almost impossible to ever use the exception if the foreign power has operatives in the U.S. The purpose of the exception is national security; a construction that made it impossible to use in the face of direct threats to the nation would be contrary to state purposes of the act.

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quote:

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There is no statement even implying that an individual who is a member of an association that is a foreign power loses US person status, and the certification is that the surveillance will not likely intercept the communications of a US person.

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quote:

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Electronic surveillance (as relevant to your objection) can only occur when not only is there a possbility (rather than a certitude) a US person's communications will be intercepted, but when the surveillance occurs inside the US.

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The statute just doesn't deal with all the cases where a US person's communications might be intercepted and the surveillance occurs outside the US.

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Therefore the only cases that might trigger your objection to my reading are exactly those cases for which the entire rest of the statute was written, the ones Congress wants a member of the FISC to approve in advance.

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quote:

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Originally posted by Dagonee:

quote:

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And yes, repeatedly authorizing an agency to break the law IS abusing the Rule of Law.

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You're assuming that what he authorized the agency to do "broke the law." If it was a legal exception, he did not authorize the agency to break the law.

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quote:

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"It means we are in deep trouble," said Kwiatkowski, "deeper than most Americans really are willing to think about. The safeguards of mid-1970s were put in place by a mobilized Democratic congress in response to President Richard Nixon's perceived and actual contempt for rule of law, and the other branches of government. At that time, the idea of a sacred constitution balancing executive power with the legislative power worked to give the Congress both backbone and direction."

"Today," continued Kwiatkowski, "we have a President and administration that has out-Nixoned Nixon in every negative way, with none of the Nixon administration's redeeming attention to detail in domestic and foreign policy. It may indeed mean that the constitution has flat-lined and civil liberties will be only for those who can buy and own a legislator or a political party. We will all need to learn how to spell 'corporate state,' which for Mussolini was his favorable definition of fascism."

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quote:

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Corporate run government = Fascist government. We are clearly headed in that direction under this administration.

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Bear in mind that your evidence for a corporate-run government is, at this point, a quote from someone who already takes that as a given. This does not count as support for your argument.
 

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Posted by Silkie (Member # 8853) on :
 

quote:

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Originally posted by Dagonee:

quote:

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And yes, repeatedly authorizing an agency to break the law IS abusing the Rule of Law.

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You're assuming that what he authorized the agency to do "broke the law." If it was a legal exception, he did not authorize the agency to break the law.

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Right. Bush wrote those executive orders exactly every 45 days for years just for the fun of it. He loves to write.

NOT!

The reason that he wrote those executive orders every 45 days was because if he did not do that, what the agency was doing would have been against the law.

I.E. he was using executive priviledge to subvert the law of the land. That is abuse of power.
 

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Posted by Silkie (Member # 8853) on :
 

quote:

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Originally posted by fugu13:
Darn it, stupid internet conneciton. Lost a good post. Here I go again.

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I can relate - my dial up does that too!
 

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Posted by Dagonee (Member # 5818) on :
 

quote:

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Right. [Roll Eyes] Bush wrote those executive orders exactly every 45 days for years just for the fun of it. He loves to write.

NOT!

The reason that he wrote those executive orders every 45 days was because if he did not do that, what the agency was doing would have been against the law.

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quote:

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Originally posted by TomDavidson:

quote:

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Corporate run government = Fascist government. We are clearly headed in that direction under this administration.

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Bear in mind that your evidence for a corporate-run government is, at this point, a quote from someone who already takes that as a given. This does not count as support for your argument.

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quote:

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Originally posted by Chris Bridges:
Silkie, what's obvious to me from reading the posts is that you're arguing from outrage while Dagonee is arguing from facts. He's not actually supporting Bush's position or his actions, only stating that these actions are legal if the gray areas he's mentioned are justified.

Because Bush did write those orders, what the agency was doing was legal. Dagonee has not, to my knowledge, suggested at any point that what the Bush and agency did was right.

Bush is operating within the law of the land. If you question what he's doing within those laws -- and I certainly do -- it would be more useful to look at the gray areas Dag has mentioned and to work towards getting those laws changed.

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A good point Chris.

Though personally I'm in favor of voting out the current government. I'm not in favor of changing a law which is meant to protect you and me from excessive government intrusion in our lives.
 

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Posted by Silkie (Member # 8853) on :
 

quote:

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Originally posted by Dagonee:
[QUOTE]Right. Bush wrote those executive orders exactly every 45 days for years just for the fun of it. He loves to write.

NOT!

The reason that he wrote those executive orders every 45 days was because if he did not do that, what the agency was doing would have been against the law.

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quote:

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So you're admitting what the agency did wasn't against the law (something I haven't claimed, by the way). So if those orders were authorized by the statute, then NOBODY BROKE THE LAW.

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I agree. NOBODY BROKE THE LAW. Technically.

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That agreed upon, do you agree that the law was deliberately subverted, by secretive and excessive use of executive order?

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I agree. NOBODY BROKE THE LAW. Technically.

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A more concise description would be that Bush apparently subverted the law using a technicality. Again and again, secretly, every 45 days, for years.

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The argument seems to be that the NSA didn't want to wait some hours to get permission from a judge to surveil certain people.

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And isn't it possible under FISA to get court approval after the fact in an emergency?
 

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Posted by Storm Saxon (Member # 3101) on :
 
Never mind. Had another post here, but decided not to pursue it.

To recap, is the tentative argument for legality that's being put forth for the president's actions that he could authorize American citizen's surveillance without seeking a warrant, and for longer than 72 hours, because their association with certain foreign powers makes them not liable for extended protections?
 

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Posted by fugu13 (Member # 2859) on :
 
Dagonee: no, there's another definition of electronic surveillance there that can occur outside the US, but when one of the participants is known to be a US person.

Also, it is entirely possible for the communications of groups to be targeted without targeting specific individuals -- consider a company's generic email address, or company phone line.

Also, I continue to disagree on whose construction the definition of electronic surveillance strengthens.

Of course, all this could be moot. Even if your construction is taken, it is a relatively narrow expansion of the exception. The President may well have ordered surveillance not falling under your exception. This seems quite possible, as everything falling under the exception by your construction would also fall under situations the FISC would be perfectly justified in authorizing. That the President did not seek FISC approval suggests they are not conditions where the FISC would approve. Furthermore, if certain administrative checks on the exception were not fully followed, it won't matter how much the President's actions could have fallen under the exception, only that they clearly do not since the specific safeguards imposed by Congress to prevent abuse were not followed.
 

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Posted by Dagonee (Member # 5818) on :
 

quote:

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Furthermore, if certain administrative checks on the exception were not fully followed, it won't matter how much the President's actions could have fallen under the exception, only that they clearly do not since the specific safeguards imposed by Congress to prevent abuse were not followed.

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You keep saying that. I keep saying that if the procedures weren't followed then what I've outlined doesn't matter.

Are you trying to convince me of something I stated before you even replied to this line of discussion?
 

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Posted by fugu13 (Member # 2859) on :
 
I'm just exhaustive .
 

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Posted by fugu13 (Member # 2859) on :
 
It seems the FISA requirements were almost certainly not followed. For one, the administration isn't even trying to justify it using FISA.

For another, quotations such as this are appearing:

quote:

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Administration officials, speaking anonymously because of the sensitivity of the information, suggested that the speed with which the operation identified "hot numbers" - the telephone numbers of suspects - and then hooked into their conversations lay behind the need to operate outside the old law.

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quote:

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given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

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-- from an actual letter sent after being briefed, well before news broke, by Senator Rockefeller.

Referring to the urgency-related reasoning expressed above, there's apparently a 72-hour post-surveillance window the President can go to the court in to receive post hoc approval, so it is not necessary for the President to circumvent FISA in order to obtain surveillance of that sort.

The notion that an authority to wage war constitutes an authority to spy on US citizens in a way that arguably violates protections guaranteed by the Constitution and distinctly violates protections specified by an act of Congress repulses me.

I am appalled.
 

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Posted by tmservo (Member # 8552) on :
 
Oddly, should there ever be another attack (which I hope not) people will immediately demand "why didn't we know more? Act quicker?" And so forth. Damned if you do..

But, on to this topic: there is also a completely outside option which would never be brought before the press: ECHELON. Echelon was established through congress and the executive branch in the mid 1990s as a means of developing "next generation" capabilities to address all "untrackable" formats, like email and digital (3G) Cell Phones. Echelon, authorized to handle "intelligent next generation threat assessment" in the mid-1990s really came online in 1997.

The rules by which ECHELON follows are fairly vague but it has been tested many times as having been sanctioned in the way that it is.

*shrug*

That of course, is a "spook" goof-ball theory, but worth throwing those out there as well. Tin foil hat stuff, but entertaining
 

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Posted by Tresopax (Member # 1063) on :
 
It should be pointed out that even if this was technically legal, we have the power to MAKE IT completely illegal. Even if our current representatives won't do it, there is an election in less than a year. The law is, after all, whatever we make it.
 

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Posted by Dagonee (Member # 5818) on :
 

quote:

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It should be pointed out that even if this was technically legal, we have the power to MAKE IT completely illegal. Even if our current representatives won't do it, there is an election in less than a year. The law is, after all, whatever we make it.

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quote:

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"The whole key here is agility," he said at a White House briefing before Bush's news conference. According to Hayden, most warrantless surveillance conducted under Bush's authorization lasts just days or weeks, and requires only the approval of a shift supervisor. Hayden said getting retroactive court approval is inefficient because it "involves marshaling arguments" and "looping paperwork around."

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quote:

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In November 1974, a reform-hungry Capitol Hill gave the newly sworn-in President Gerald Ford one of his first real challenges. Congress had passed a significant expansion of Ralph Nader’s 1966 Freedom of Information Act (FOIA), aimed at prying open for public scrutiny the previously exempt areas of national security and law enforcement. When Ford was vice president to a commander-in-chief famous for his secrecy, paranoia, and abuse, he had supported the new sunshine amendments. But as chief executive, the interim president allowed himself to be talked into a veto by his intelligence directors and by his young chief and deputy chief of staff: Donald Rumsfeld and Dick Cheney.

"This was their first battle at Ford’s White House," says Thomas Blanton, director of the National Security Archive (NSA), a nonprofit at George Washington University that has helped declassify more than 20,000 government documents. It was a battle the FOIA foes lost: Congress overrode Ford’s veto.

Thirty years later, Rumsfeld and Cheney are again squaring off against the advocates of government transparency. At press time, the Bush White House had yet to release the photographs and videos of the vile prisoner abuse at Abu Ghraib; it’s also defending its expansions of state secrecy in several cases before the Supreme Court. Its efforts are affecting not just Congress’ and the press’s ability to cross-examine the executive branch but citizens’ ability to scrutinize how our tax money is being spent -- and the government’s ability to act without restraint.

"This administration just has a very fundamental opposition to the disclosure of records about government operation," says Tom Fitton, president of the watchdog group Judicial Watch. (Motto: "Because no one is above the law!") "I think the administration’s general view is they’d like to see the end to all disclosure laws....Barring that, they’re fighting within the confines of executive privilege and secrecy."

The White House’s ongoing battle against post-Nixon sunshine laws.

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quote:

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New Files Show FBI Watched Activist Groups

http://www.nytimes.com/2005/12/20/
http://www.washingtonpost.com/
Counterterrorism agents at the Federal Bureau of Investigation have conducted numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty and poverty relief, newly disclosed agency records show.

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quote:

---

Originally posted by Dan_raven:

What he and his defenders need to understand is that not every person in the government or defending this country is upright and honest, willing to limit their spying to "The Enemey" when defintions of that enemy are vague. Abuses can and will occur, if not today, than at some future date.

---

quote:

---

Originally posted by Dagonee:

quote:

---

It should be pointed out that even if this was technically legal, we have the power to MAKE IT completely illegal. Even if our current representatives won't do it, there is an election in less than a year. The law is, after all, whatever we make it.

---

That's not necessarily true, short of a constitutional amendment. In the same way that Congress can't pass laws that violate rights, it can't pass laws that restrict inherent constitutional powers of the President, and the current argument seems to be this is one of the powers inherent in war time.

At best, you can say we might have the power to make it illegal.

What boggles my mind is the approval ratings. Two months ago, when approval ratings dropped, there was actually a lot of good news about the economy and good reason to be hopeful in Iraq. Ratings plummeted. Now, with the spying having come to light before at least 3 of the 4 days of the current poll, they have increased dramatically. *shrug* Makes it doubtful anyone will make it illegal.

---

quote:

---

Was it legal to do so? Attorney General Alberto Gonzales argues that the president's authority rests on two foundations: Congress's authorization to use military force against al-Qaida, and the Constitution's vesting of power in the president as commander-in-chief, which necessarily includes gathering "signals intelligence" on the enemy. But that argument cannot be squared with Supreme Court precedent. In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president's assertion of unilateral domestic authority during wartime. President Truman had invoked the commander-in-chief clause to justify seizing most of the nation's steel mills. A nationwide strike threatened to undermine the war, Truman contended, because the mills were critical to manufacturing munitions.

The Supreme Court's rationale for rejecting Truman's claims applies with full force to Bush's policy. In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president's actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority "is at its maximum," and will generally be upheld. Where Congress has been silent, the president acts in a "zone of twilight" in which legality "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." But where the president acts in defiance of "the expressed or implied will of Congress," Justice Jackson maintained, his power is "at its lowest ebb," and his actions can be sustained only if Congress has no authority to regulate the subject at all.

[snip]

Like Truman, President Bush acted in the face of contrary congressional authority. In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. Congress then went further and made it a crime, punishable by up to five years in jail, to conduct a wiretap without statutory authorization.

Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy's communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of Al Qaeda in no way qualifies as an incidental wartime authority.

In light of Congress's explicit rejection of unchecked wiretap authority, Bush, like Truman before him, is clearly in Justice Jackson's third category. To uphold the president here would require finding that Congress has no authority at all to regulate domestic wiretaps of Americans - a proposition that would require overturning decades of established federal law built on congressional regulation of electronic surveillance.

Had the president's legal advisors consulted Youngstown, the leading Supreme Court case on unilateral executive power in wartime, they would have realized that the appropriate course, if the president felt FISA was insufficient, was not to act secretly and unilaterally in defiance of the law, but to ask Congress to change the law. Bush had a convenient vehicle to do so; the administration delivered legislation within a week and a half of 9/11 that ultimately became the Patriot Act, and which granted numerous expansions of FISA authority - including the infamous "libraries" provision, and an expanded ability to conduct foreign intelligence wiretaps in criminal investigations.

Bush has argued that seeking approval for the wiretaps more openly might somehow have tipped off al-Qaida to the possibility they would be subject to surveillance. But many U.S. tactics in the war on terror, in addition to the provisions under FISA, already put terrorists on notice of precisely that possibility. Moreover, Bush's argument proves too much, because it could be applied to every counterterrorism statute. The price of democracy - and indeed, its strength - is that the broad outlines of government must be agreed upon in public, not imposed unilaterally behind closed doors.

... continued ... Salon.com

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quote:

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The release date of the Poll is not the same day that the questions were asked.

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quote:

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You have said that the spying was legal. Here is a different opinion:

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quote:

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the Patriot Act has been abused before. It was made light of, and barely covered on the national news. DeLay and his cronies in Texas used the Homeland Security Department to chase down Texas State Legislators who had fled to Oklahoma.

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quote:

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Originally posted by Dagonee:
BTW, can you source this?

quote:

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the Patriot Act has been abused before. It was made light of, and barely covered on the national news. DeLay and his cronies in Texas used the Homeland Security Department to chase down Texas State Legislators who had fled to Oklahoma.

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Not the democrats holing up in Oklahoma, but the abuse of the patriot act involved in it.

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quote:

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As everyone now knows, a couple weeks ago, most Democrats in the Texas state House ran off to neighboring Oklahoma to avoid a vote on a DeLay-designed redistricting bill. Texas House Speaker Tom Craddick ordered the Department of Public Safety (DPS) to arrest the runaway Democrats and bring them back to Austin.

State troopers from the DPS eventually roped the U.S. Department of Homeland Security (DHS) into the manhunt. By tricking them into thinking they were searching for a missing or crashed plane, the DPS got Homeland Security to help track down the airplane of former Texas Speaker Peter Laney (D), whom they suspected of helping ferry Democratic legislators out of the state.

That’s where things stood when I wrote about this last week.

Then last Thursday, Homeland Security Director Tom Ridge declined to release the transcripts of conversations between the Texas DPS and his department because, he said, his department’s internal inquiry was “potentially a criminal investigation.”

The scope of the potential wrong-doing further expanded when it was revealed that the DPS had ordered all its records of the manhunt destroyed on May 14. A grand jury in Austin is now investigating what laws the DPS might have violated by destroying those documents.
Given Ridge’s revelations, few now doubt that people at the DPS and probably some pols in Texas got their hands dirty either in bamboozling Homeland Security or by covering up the bamboozlement after the fact. The big question has been whether DeLay was directly involved in this part of the caper.

DeLay’s spokesmen had insisted that he played no role in the manhunt other than passing on to the Justice Department Craddick’s request for federal law enforcement help in arresting the Democratic legislators.

Then last Thursday, DeLay took the opportunity to, shall we say, revise and extend his remarks.
DeLay conceded that a staffer in his office contacted the FAA to find out the whereabouts of Laney’s plane and received information on its location and flight plan. (DeLay first said this information was available to the public on the FAA website; the next day his office conceded that this was not the case.) He then passed that information on to Tom Craddick.

Just what did DeLay know about the Dems’ Texas plane?
MAY 28, 2003

by JOSH MARSHALL
The Hill
http://www.hillnews.com/marshall/052803.aspx
http://www.commondreams.org/views03/0514-07.htm

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Originally posted by Dagonee:
So nothing about the Patriot act then?

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The Patriot Act provides means to facilitate information sharing, allows law-enforcement authorities employed to combat other crimes to take part in terrorism investigations, and establishes mechanisms for conducting surveillance of modern technologies, like cell phones.

http://www.heritage.org/Research/HomelandDefense/wm902.cfm

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Originally posted by Dagonee:
...I suppose I'll have to wait for silkie to back up his accusations.

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Her information.

The accusations are public record, and were under criminal investigation. I could find no info about any resolution of the investigations though.
 

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Posted by Dagonee (Member # 5818) on :
 
So, at most, you've demonstrated that someone lied to DHS and that they improperly (something I'm not conceding, BTW) got information from the FAA.

Are you trying to say that no information sharing between state and federal agencies occurred before the Patriot Act?

If you want to stir the public fears of facism, you'd do well not to overreach your evidence so broadly.
 

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Posted by Destineer (Member # 821) on :
 
This NSA stuff is an outrage.

I've said to myself all along that if the things the administration admitted to (e.g. enemy combatants) were bad enough to cross what I think are legal and moral boundaries, the secret stuff must be really bad.

This could be just the tip of the iceberg.

Just the way Bush puts his supposed point is sickening to me. "The fact that we're discussing this program is helping the enemy." What happened to this being a democratic country, where people need to make informed decisions to approve or disapprove of what their leaders are up to?
 

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Posted by DarkKnight (Member # 7536) on :
 
Here's a decent article on the history of this issue...
NRO Clinton authorizes no warrant searches

Some highlights:

quote:

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Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

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"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

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Reporting the day after Gorelick's testimony, the Washington Post's headline — on page A-19 — read, "Administration Backing No-Warrant Spy Searches." The story began, "The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers."

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Originally posted by Dagonee:
So, at most, you've demonstrated that someone lied to DHS and that they improperly (something I'm not conceding, BTW) got information from the FAA.

Are you trying to say that no information sharing between state and federal agencies occurred before the Patriot Act?

If you want to stir the public fears of facism, you'd do well not to overreach your evidence so broadly.

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quote:

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Originally posted by DarkKnight:
It sort of appears to me that in the past we didn't have a problem with this type of thing. Clinton was allowed to actually invade someone's home without a warrant and that was seen as perfectly legal and no one accused him (or Carter or Reagan for that matter) of setting up a dictatorship.

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What I am saying is that before the Department Of Homeland Security was created (with authority through the Patriot Act to conduct interstate searches using any agency it needed to) such a thing as DeLay's abuse would not have been done with a single phone call. DeLay abused a tracking system that administered the Patriot Act authority within Homeland Security.

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quote:

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Originally posted by Dagonee:

quote:

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What I am saying is that before the Department Of Homeland Security was created (with authority through the Patriot Act to conduct interstate searches using any agency it needed to) such a thing as DeLay's abuse would not have been done with a single phone call. DeLay abused a tracking system that administered the Patriot Act authority within Homeland Security.

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I know that's what you're saying. You're a long way from actually demonstrating it, though.

Presumably DeLay could have called the FBI or the FAA to get that information as well.

I've worked in government agencies. I've never seen a call from a Congressman go untaken.

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quote:

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"The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order.

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quote:

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There's been a lot from various quarters about whoever leaking this commiting a crime (a la the valeria plame affair.

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The big difference between past & current warrantless searches is the use of them against American Citizens and legal residents. The twist is that a person can be viewed as a non-American (or even as a foreign "country") so then the warrantless search is technically legal.

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quote:

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Originally posted by Dagonee:
Because it's NOT UNDER THE PATRIOT ACT.

It would have happened without the patriot act.

Therefore, it is not a problem caused by the patriot act.

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quote:

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Originally posted by Bob_Scopatz:

Interesting report about the judge who quit the FISA court in disgust over this whole business. I note he was a Clinton appointee to the bench and was selected for the FISA court by the former Chief Justice. It sounded as if other FISA judges were upset too, but not necessarily ready to quit over it.

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quote:

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Cheney Defends Domestic Spying
By Maura Reynolds
The Los Angeles Times

Wednesday 21 December 2005

He says Bush's decision to sidestep the courts and allow surveillance was an organized effort to regain presidential powers lost in the 1970s.
Washington - President Bush's decision to bypass court review and authorize domestic wiretapping by executive order was part of a concerted effort to rebuild presidential powers weakened in the 1970s as a result of the Watergate scandal and the Vietnam War, Vice President Dick Cheney said Tuesday.

Returning from a trip to the Middle East, Cheney said that threats facing the country required that the president's authority under the Constitution be "unimpaired."

"Watergate and a lot of the things around Watergate and Vietnam, both during the 1970s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Cheney told reporters traveling with him on Air Force Two. "Especially in the day and age we live in … the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy."

Cheney's remarks were recorded by reporters traveling with him and disseminated by the White House under an official pool arrangement.

Cheney dismissed the idea that Americans were concerned about a potential abuse of power by the administration, saying that any backlash would probably punish the president's critics, not Bush.

"The president and I believe very deeply that there is a hell of a threat," Cheney said, calculating that "the vast majority" of Americans supported the administration's surveillance policies.

"And so if there's a backlash pending, I think the backlash is going to be against those who are suggesting somehow we shouldn't take these steps in order to defend the country."

On Capitol Hill, however, calls for a congressional investigation escalated, with a group of Democrats and Republicans on the Senate Intelligence Committee asking to join hearings scheduled by the Senate Judiciary Committee.
...continued ... LA Times

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Under WHAT conditions can a warrantless search be legally made against a US citizen.

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Do you believe President Bush's actions justify impeachment? * 46327 responses

• Yes, between the secret spying, the deceptions leading to war and more, there is plenty to justify putting him on trial.
  88%
• No, like any president, he has made a few missteps, but nothing approaching "high crimes and misdemeanors."
  4%
• No, the man has done absolutely nothing wrong. Impeachment would just be a political lynching.
  7%
• I don't know.
  1%

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quote:

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Originally posted by Nato:
MSNBC POLL:

quote:

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Do you believe President Bush's actions justify impeachment? * 46327 responses

• Yes, between the secret spying, the deceptions leading to war and more, there is plenty to justify putting him on trial.
  88%
• No, like any president, he has made a few missteps, but nothing approaching "high crimes and misdemeanors."
  4%
• No, the man has done absolutely nothing wrong. Impeachment would just be a political lynching.
  7%
• I don't know.
  1%

---

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quote:

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Not a scientifically valid survey. Click to learn more.

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One week in the middle of the Clinton-Lewinsky scandal, more than 200,000 people took part in an MSNBC Live Vote that asked whether President Clinton should leave office. Seventy-three percent said yes. That same week, an NBC News-Wall Street Journal poll found that only 34 percent of about 2,000 people who were surveyed thought so.
To explain the vast gap in the numbers in this and other similar cases, it is necessary to look at the difference in the two kinds of surveys.

POLLS
Journalists use polls to gauge what the public is thinking. The most statistically accurate picture is captured by using a randomly selected sample of individuals within the group that is being targeted, typically adult Americans.

While a poll of 100 people will be more accurate than a poll of 10, studies have shown that accuracy begins to improve less at about 500 people and increases only a minor amount beyond 1,000 people.

So, in the case of that NBC-WSJ poll, only 2,005 adults were surveyed by the polling organizations of Peter D. Hart and Robert M. Teeter. The poll was conducted by telephone and had a margin of error of plus or minus 2.2 percentage points at the 95 percent confidence level. The confidence level means that if the same poll were conducted 100 times, each one randomly selecting the people polled, only five of the polls would be expected to yield results outside the margin of error.

...

But MSNBC’s Live Votes are not intended to be a scientific sample of national opinion. Instead, they are part of the same interactive dialogue that takes place in our online chat sessions: a way to share your views on the news with MSNBC writers and editors and with your fellow users. Let us know what you think.

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quote:

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Originally posted by Dagonee:

quote:

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Originally posted by Nato:
MSNBC POLL:

quote:

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Do you believe President Bush's actions justify impeachment? * 46327 responses

• Yes, between the secret spying, the deceptions leading to war and more, there is plenty to justify putting him on trial.
  88%
• No, like any president, he has made a few missteps, but nothing approaching "high crimes and misdemeanors."
  4%
• No, the man has done absolutely nothing wrong. Impeachment would just be a political lynching.
  7%
• I don't know.
  1%

---

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From the same article:

quote:

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Not a scientifically valid survey. Click to learn more.

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If you click to learn more:

quote:

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One week in the middle of the Clinton-Lewinsky scandal, more than 200,000 people took part in an MSNBC Live Vote that asked whether President Clinton should leave office. Seventy-three percent said yes. That same week, an NBC News-Wall Street Journal poll found that only 34 percent of about 2,000 people who were surveyed thought so.
To explain the vast gap in the numbers in this and other similar cases, it is necessary to look at the difference in the two kinds of surveys.

POLLS
Journalists use polls to gauge what the public is thinking. The most statistically accurate picture is captured by using a randomly selected sample of individuals within the group that is being targeted, typically adult Americans.

While a poll of 100 people will be more accurate than a poll of 10, studies have shown that accuracy begins to improve less at about 500 people and increases only a minor amount beyond 1,000 people.

So, in the case of that NBC-WSJ poll, only 2,005 adults were surveyed by the polling organizations of Peter D. Hart and Robert M. Teeter. The poll was conducted by telephone and had a margin of error of plus or minus 2.2 percentage points at the 95 percent confidence level. The confidence level means that if the same poll were conducted 100 times, each one randomly selecting the people polled, only five of the polls would be expected to yield results outside the margin of error.

...

But MSNBC’s Live Votes are not intended to be a scientific sample of national opinion. Instead, they are part of the same interactive dialogue that takes place in our online chat sessions: a way to share your views on the news with MSNBC writers and editors and with your fellow users. Let us know what you think.

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I agree Dag. I also stand by my earlier post saying that the opinion surveys so far have not shown the impact of SpyGate on Bush's Presidency.

As a long ago Sociology Major, who once worked for a Polling Firm, I know about how long it took then to gather and process information. That was then, and my opinion could be wrong of course.
 

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Posted by Morbo (Member # 5309) on :
 
Thanks for the primer on seaches and wiretaps, Dag.
 

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Posted by Bob_Scopatz (Member # 1227) on :
 
Yes! Thanks a lot! I really didn't know ANYTHING.


 

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Posted by Orincoro (Member # 8854) on :
 
dag, not a challenge to your statements, but what is your qualification/experience with this type of information? Or are you just a hobbyist? Again, not an attack, just curious.
 

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Posted by Dagonee (Member # 5818) on :
 
I'm a 3rd year law student who intends to be a prosecutor. I have taken the course which covers this and practiced in a clinic in a prosecutors office for only one semester.

It's the one area of law in which I feel competent to go up against a defense attorney in court, and have seen direct evidence that I could stand my ground with at least three defense attorneys on the subject. This is likely more a comment on them than me, however.

However, the outline I've given in those two posts is a very basic one, avoiding dozens of complicated exceptions to the basic rules I've outlined. I feel confident in my ability to do that because I've basically skipped all the hard questions involved and pretty much all of the underlying reasoning.
 

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Posted by Silent E (Member # 8840) on :
 
I don't know, most of the time when you expound on the law it's stuff I never learned in law school. Of course, I didn't intend to become a prosecutor, and took mostly business-related classes, but still.
 

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Posted by Dagonee (Member # 5818) on :
 
But still what?
 

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Posted by Nato (Member # 1448) on :
 
Dagonee, I wasn't trying to say that it was scientific or anything. Just interesting. Where would you vote on that poll?
 

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Posted by Dagonee (Member # 5818) on :
 
Right now, no reason for impeachment.

Even if the court were to rule it unconstitutional, at this stage I'm convinced it's a close question. The notification of Congress and FISA makes me much less worried about it.

I don't think I approve of the policy as implemented, but I'd really need to know more about the extent (not numbers) and the type of evidence that gave reason for the taps before stating a final judgment.
 

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Posted by Orincoro (Member # 8854) on :
 
Dag, how do you see all this playing out in say, ten years from now? Will the damage done to the office of the president, or our civil liberties, our national consciousness, or our connections abroad be irreparable from the events of the last, say, 4 years?

A broad question, answer however you like
 

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Posted by Dagonee (Member # 5818) on :
 

quote:

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Will the damage done to the office of the president, or our civil liberties, our national consciousness, or our connections abroad be irreparable from the events of the last, say, 4 years?

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quote:

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how do you see all this playing out in say, ten years from now? Will the damage done to the office of the president, or our civil liberties, our national consciousness, or our connections abroad be irreparable from the events of the last, say, 4 years?

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quote:

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The Justice Department acknowledged yesterday, in a letter to Congress, that the president's October 2001 eavesdropping order did not comply with "the 'procedures' of" the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, "except as authorized by statute."

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Originally posted by Dagonee:
So the active issue is whether congress can constitutionally restrict the President's interception of international communications which involve American citizens for foreign intelligence purposes.

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Judges on Surveillance Court to Be Briefed on Spy Program
By Carol D. Leonnig and Dafna Linzer
The Washington Post
Thursday 22 December 2005
The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.
Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.
"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?"
Such comments underscored the continuing questions among judges about the program, which most of them learned about when it was disclosed last week by the New York Times. On Monday, one of 10 FISA judges, federal Judge James Robertson, submitted his resignation - in protest of the president's action, according to two sources familiar with his decision. He will maintain his position on the U.S. District Court here.
Other judges contacted yesterday said they do not plan to resign but are seeking more information about the president's initiative. Presiding Judge Colleen Kollar-Kotelly, who also sits on the U.S. District Court for the District of Columbia, told fellow FISA court members by e-mail Monday that she is arranging for them to convene in Washington, preferably early next month, for a secret briefing on the program, several judges confirmed yesterday.
Two intelligence sources familiar with the plan said Kollar-Kotelly expects top-ranking officials from the National Security Agency and the Justice Department to outline the classified program to the members.
The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.
The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrantless eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information.

,,,continued... complete Wahington Post article

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NO, the issue is whether the court should exist at all, according to the FISA judges. If you read the article, they consider it a threat to the legitimacy of past cases, whose warrents were issued on information 'illegally' obtained through the presidencial order. And it sounds like at leat some of them are also quite upset about him bypassing the courts by executive order.

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quote:

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Originally posted by Bob_Scopatz:
Silkie...

We need to stay away from quoting large sections of copyrighted material. Links to articles and pulling in the most salient bits is more effective anyway.

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quote:

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Originally posted by Dagonee:
You're continued refusal to even deal with this issue is telling. Carter, Reagan, Bush, and Clinton all asserted their right to intercept international communications without warrants for foreign intelligence purposes. This is not a clear question. Pretending it is makes it impossible for you to meaningfully discuss this issue.

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Bottom line here is that we disagree, Dag.

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This is not about law enforcement.

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his is a constitutional question about seperation of powers:

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Does the Executive branch have the authority to routinely bypass the courts for two years by executive order? This was a routine policy for two years, every 45 days. A pattern of behavior in deliberate disregard of the FICA courts' authority.

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Our constitution and laws are set up to prevent this use of executive priviledge. Those powers were further defined by congress with FICA, and both the law congress and due process in the courts are being bypassed by executive order.

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And does the President have the authority to change Legislation by Executive order? Bush has used executive order for much more than this one incident, throughout his Presidency. He has modified and disemboweled legislation and rules that were set up by the Congress. (ie changing EPA rules and enforcement, for instance.)

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Thanks Bob. I appreciate the feedback.

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From Republic to Empire:

Let's hope history does not repeat itself. The constitution of ancient Rome was put in place in 510 BC, when the republicans overthrew the last of the Roman kings, Tarquin the Proud. As was the case 2300 years later in the newborn USA, the introduction of constitutional order meant the rule of law and not of kings, providing liberty under law for every Roman citizen. That experiment lasted almost five centuries, until the Roman senators fell down on the job.

Although Cicero warned, with pointed eloquence, of the dangers to the Republic, in the end his warnings proved no match for strongmen like Julius Caesar and Gnaeus Pompey. They wrapped themselves in republican virtue when it suited them, but they lacked any serious belief in the fundamental principles that had formed republican Rome. They and their followers believed in themselves, and in their own vision of what Rome should be, and in little else. Plutarch tells us that the increasingly glaring unequal distribution of wealth served to make the situation exceedingly volatile. Sound familiar?

And so the Republic died, and Cicero died with it, his severed head and hands nailed to the "rostra," the platform in the forum from which he had warned the Roman people. The vision of the strongmen led first to civil war and then to empire.

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quote:

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Originally posted by Bob_Scopatz:

quote:

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Thanks Bob. I appreciate the feedback.

---

lol.

Well...um...you could go back and edit your post...

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OMG! I always have had a terrible time editing - what part(s) should I remove?
 

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Posted by Bob_Scopatz (Member # 1227) on :
 
I dunno...Sorry to cause such angst. That's the best use of that graemlin in like forever though. Hey, whatever you need in your post to make your point.

Just a clue though, I didn't even read through that block of text. It's so much more readable on the WP website that it's just too annoying to go through it all in BB format.
 

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Posted by Silkie (Member # 8853) on :
 

quote:

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Originally posted by Dagonee:

quote:

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Bottom line here is that we disagree, Dag.

---

Let's be clear what it is we disagree about. I've stated this is not obviously a constitutional violation and that it is a close question under existing jurisprudence concerning separation of powers. You disagree with me, which, I assume, means you think this is a close question.

You are empirically wrong about the question being close, at least in any meaningful sense of the word close. Ultimately, this issue can only definitively be decided by SCOTUS (something which, as fugu explained, is unlikely). There are numerous people, far more qualified than we, who have made strong cases going in each direction. That's pretty much the definition of a close legal question.

quote:

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This is not about law enforcement.

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Right. If it were, then there would be no close constitutional question. It's about foreign intelligence.

quote:

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This is a constitutional question about seperation of powers:

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Exactly. And it's not just the Executive's powers under discussion. There is a close question as to whether Congress can interfere with the President's authority to intercept international communications involving a U.S. citizen for purposes of foreign intelligence.

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quote:

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quote:

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Does the Executive branch have the authority to routinely bypass the courts for two years by executive order? This was a routine policy for two years, every 45 days. A pattern of behavior in deliberate disregard of the FICA courts' authority.

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A question which is only meaningful if FISA had authority over these types of intercepts.

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quote:

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quote:

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Our constitution and laws are set up to prevent this use of executive priviledge. Those powers were further defined by congress with FICA, and both the law congress and due process in the courts are being bypassed by executive order.

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You've leapt straight ahead to your conclusion, skipping over an important analytical step.

quote:

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And does the President have the authority to change Legislation by Executive order? Bush has used executive order for much more than this one incident, throughout his Presidency. He has modified and disemboweled legislation and rules that were set up by the Congress. (ie changing EPA rules and enforcement, for instance.)

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Bush has the power to change prior executive orders by executive order. Unless you can point me to a specific instance I haven't seen convered, the EPA rules in question are administrative rules fully within the delegated power of the administration to change.

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quote:

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Originally posted by Bob_Scopatz:
I dunno...Sorry to cause such angst. That's the best use of that graemlin in like forever though. Hey, whatever you need in your post to make your point.

Just a clue though, I didn't even read through that block of text. It's so much more readable on the WP website that it's just too annoying to go through it all in BB format.

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Some people are lazy and don't bother to go to links ... at least that was my assumption. But you are right, and I really will try to limit by wordiness!
 

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Posted by Dagonee (Member # 5818) on :
 

quote:

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That's where we part ways. Can the President throw out the constitutional protections of American Citizens by Executive order?

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The court exists through it's creation by FISA so it follows that the FISA court HAD that authority through that Congressional legislation.

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That is true, BUT the intent of his changes through dueling Executive orders are MEANT to undermine an agency that was created to administer Environmental Laws which were created by Congress.

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Where does the presidents constitutional authority to do ANYTHING to a US citizen other then with the consent of congress derive from? As far as I can tell, he's got authority over the military, but unless martial law is established, he doesn't have any authority other then as executive over US citizens written into the constitution.

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Originally posted by Dagonee:
[QB]

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That's where we part ways. Can the President throw out the constitutional protections of American Citizens by Executive order?

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You're still missing the point. I haven't said this is constitutional. I've said that constitutional schalars disagree about whether it is. This isn't really something you "part ways" about, as it is demonstrably true.

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Originally posted by DarkKnight:

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how do you see all this playing out in say, ten years from now? Will the damage done to the office of the president, or our civil liberties, our national consciousness, or our connections abroad be irreparable from the events of the last, say, 4 years?

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Doesn't that sound just like what conservatives had said during the Clinton years?

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When one legal scholar says it is legal, and another says it is not, we part ways. I agree with the one that says it is not legal. Not that my opinion will carry any weight in the final decisions.

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Originally posted by Dagonee:

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When one legal scholar says it is legal, and another says it is not, we part ways. I agree with the one that says it is not legal. Not that my opinion will carry any weight in the final decisions.

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OK, please cite some caselaw or doctrine to support your conclusion.

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We have a law - FISA - which is being ignored. There are specific legal limits placed on what Bush is doing. Even the President is not above the law.

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If that is not against the law, then you and I are living in different countries.

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Originally posted by Dagonee:

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We have a law - FISA - which is being ignored. There are specific legal limits placed on what Bush is doing. Even the President is not above the law.

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Then please reconcile your contention with Hamdi, which authorizes detention without charges and without warrant based on the 9/11 resolution in direct contradiction to the Bail Reform Act.

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Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?

Conclusion
Yes and no. In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O'Connor wrote that although Congress authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government's argument that the separation-of-powers prevents the judiciary from hearing Hamdi's challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality that Hamdi had the right to challenge in court his status as an enemy combatant. Souter and Ginsburg, however, disagreed with the plurality's view that Congress authorized Hamdi's detention. Justice Antonin Scalia issued a dissent joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately.
http://www.oyez.org/oyez/resource/case/1723/

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When the case was then sent back to the District Court, it denied the government's motion to dismiss Hamdi's petition. The court found the government's evidence offered in favor of his detention to be woefully inadequate, based mostly on hearsay and bare assertions. The District Court ordered the government to produce numerous documents for review by the judge in chambers that would enable it to perform a "meaningful judicial review," such as the statements by the Northern Alliance regarding Hamdi's capture, the dates and circumstances of his capture and interrogations, and a list of all the officials involved in the determination of his "unlawful combatant" status.
The government appealed the order to produce the evidence, and the Fourth Circuit once again reversed the District Court. Because it was "undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict," the Fourth Circuit stated that it was not proper for any court to hear a challenge of his status. It ruled that the broad warmaking powers delegated to the President under Article Two of the United States Constitution and the principle of separation of powers prohibited courts from interfering in this vital area of national security. After the Fourth Circuit denied a petition for rehearing, Hamdi's father appealed to the Supreme Court, which granted review and reversed the Fourth Circuit's ruling.
Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.
http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld

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My understanding of this case is that it was decided that this enemy combatant still had civil rights, and was entitled to due process. I don't understand how that would apply to wholesale spying and these 'fishing expeditions' to find terrorist activities.

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Originally posted by Dagonee:

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My understanding of this case is that it was decided that this enemy combatant still had civil rights, and was entitled to due process. I don't understand how that would apply to wholesale spying and these 'fishing expeditions' to find terrorist activities.

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Read the dissent by Scalia. The Hamdi decision dramatically cuts civil rights, severely undermining the due process protection required to detain Hamdi.

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Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the farthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of "insurrection" or "rebellion"), which hadn't happened; or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

Justice Clarence Thomas was the only justice who sided entirely with the government and the Fourth Circuit's ruling, based on his view of the important security interests at stake and the President's broad war-making powers.

see wikipedia link in above post

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Jokingly referred to as "No Such Agency," the NSA was created in absolute secrecy in 1952 by President Harry S. Truman.

But the agency is still struggling to adjust to the war on terror, in which its job is not to monitor states, but individuals or small cells hidden all over the world. To accomplish this, the NSA has developed ever more sophisticated technology that mines vast amounts of data. But this technology may be of limited use abroad. And at home, it increases pressure on the agency to bypass civil liberties and skirt formal legal channels of criminal investigation. Originally created to spy on foreign adversaries, the NSA was never supposed to be turned inward. Thirty years ago, Senator Frank Church, the Idaho Democrat who was then chairman of the select committee on intelligence, investigated the agency and came away stunned.

"That capability at any time could be turned around on the American people," he said in 1975, "and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide." He added that if a dictator ever took over, the NSA "could enable it to impose total tyranny, and there would be no way to fight back."

At the time, the agency had the ability to listen to only what people said over the telephone or wrote in an occasional telegram; they had no access to private letters. But today, with people expressing their innermost thoughts in e-mail messages, exposing their medical and financial records to the Internet, and chatting constantly on cellphones, the agency virtually has the ability to get inside a person's mind.

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According to an interview last year with Gen. Michael V. Hayden, then the NSA's director, intercepting calls during the war on terrorism has become a much more complex endeavor. On Sept. 10, 2001, for example, the NSA intercepted two messages. The first warned, "The match begins tomorrow," and the second said, "Tomorrow is zero hour." But even though they came from suspected al Qaeda locations in Afghanistan, the messages were never translated until after the attack on Sept. 11, and not distributed until Sept. 12. What made the intercepts particularly difficult, General Hayden said, was that they were not "targeted" but intercepted randomly from Afghan pay phones. This makes identification of the caller extremely difficult and slow. "Know how many international calls are made out of Afghanistan on a given day? Thousands." General Hayden said.

Still, the NSA doesn't have to go to the courts to use its electronic monitoring to snare al Qaeda members in Afghanistan. For the agency to snoop domestically on American citizens suspected of having terrorist ties, it first must to go to the Foreign Intelligence Surveillance Court, or FISA, make a showing of probable cause that the target is linked to a terrorist group, and obtain a warrant.

The court rarely turns the government down. Since it was established in 1978, the court has granted about 19,000 warrants; it has only rejected five. And even in those cases the government has the right to appeal to the Foreign Intelligence Surveillance Court of Review, which in 27 years has only heard one case. And should the appeals court also reject the warrant request, the government could then appeal immediately to a closed session of the Supreme Court.

[excerpts]

http://www.nytimes.com/2005/12/25/weekinreview/25bamford.html

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Again, how does that apply to wholesale wiretaps and 'fishing' expeditions?

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Originally posted by Dagonee:

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Again, how does that apply to wholesale wiretaps and 'fishing' expeditions?

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It's very clear you do not understand the implications of Hamdi. Anyone who thinks that decision was a victory for civil liberties is fooling themselves.

The plurality upheld the government's contention that U.S. citizens could be detained by the government without charging them with a crime. That is a HUGE intrusion on civil liberties.

Here are the protections denied to Hamdi by the plurality decision:

1.) the right to be seized only upon probable cause.

2.) the Miranda protections against self-incrimination.

3.) The right to a preliminary hearing in which the gov't must show probable cause that the defendant committed a crime.

4.) the right to an indictment by grand jury.

5.) the right to not be detained without being convicted without a finding by the preponderance of evidence that he would not appear at trial or a finding by clear and convincing evidence that he represented a danger to the community.

6.) The right to a speedy jury trial requiring unanimous conviction by 12 jurors.

Only Scalia and Stevens said Hamdi was entitled to these rights - rights specifically guaranteed in the constitution or by statute. I raged about the plurality decision on the board here.

18 U.S.C. § 3142 precisely describes the requirements for detaining a U.S. citizen prior to a trial. The Hamdi decision authorizes detention based on the 9/11 resolution in a manner that directly violates 1342. Such detention is not mentioned in the resolution.

The parallel is absolutely clear. It doesn't mean the parallel will be dispositive. It does, however, provide a very strong argument.

As to how is it relevant? Because it supercedes a specific statute (several actually) and several constitutional provisions based on the 9/11 resolution and the President's inherent powers as commander in chief and to decide matters of foreign policy. Just because it didn't allow the government to go as far as it wanted to doesn't meant the decision doesn't provide a huge precedent for the administration.

Until you acknowledge that, your reading of the synopsis is not doing you any good.

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Those circumstances don't lend themselves to Grand Jurys and Miranda rights.

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Certainly they don't on the battlefield, and SCOTUS specifically limited its decisions to situations in which the exigency of battle no longer apply. Further, Hamdi was being held in Norfolk, Va. when SCOTUS heard his case.

The SCOTUS decision allows review on the question of whether Hamdi is an enemy combatant. In this review, it is acceptable to shift the presumption from one of innocence to one that the government's assertion of enemy comnbatant status is correct.The standard is "credible evidence," not reasonable doubt. If he is found to be an enemy combatant under this very weak form of due process, SCOTUS seems to have authorized indefinite detention of Hamdi with no finding of guilt beyond a reasonable doubt by a jury, after a hearing in which Hamdi did not have the presumption of innocence.

The government claimed it could hold Hamdi indefinitely based on its own determination that Hamdi was an enemy combatant.

SCOTUS ruled that the government could hold Hamdi indefinitely based on the determination of an independent tribunal (a court or a military tribunal) after a hearing in which most of the normal rules of due process are suspended.

Scalia and Stevens were of the opinion that the government has no authority to hold a U.S. citizen in a U.S. territory without bringing criminal charges.

So yes, it really does all that, and does so based on inherent executive power coupled with the authorization of the use of force in response to 9/11.
 

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Posted by fugu13 (Member # 2859) on :
 
*snort*

He'd been sitting in a brig for something like two years off the coast of the US, plenty accessible for a grand jury to charge him. Also, you seem to completely misunderstand what dagonee said about miranda rights. Protection against self-incrimination is an extraordinarily important right. Dagonee is not referring to the need to have the miranda rights read to him or her -- a person possesses miranda rights whether or not they were read at time of arrest.

Also, it is not at all decided that Hamdi was apprehended on a battlefield fighting against the US. Don't be so willing to assume his guilt because it suits your line of argument.
 

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Posted by Silkie (Member # 8853) on :
 
Thank you both for this information. The Hamdi case is indeed food for thought. I can't say that I agree that the decision goes as far as you say it does, but as a lay person discussing this with a third year law student, I am at a disadvantage. I conceed that you could be right.

And thanks for making me do my homework by looking up Hamdi v Rumsfeld. That was interesting reading too.

The best thing about BB discussions is that they can make people THINK. My compliments to you all. You have made me think. I like that.
 

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Posted by Dagonee (Member # 5818) on :
 
Thank you as well.

In case I skimmed over this, I HATE the Hamdi decision. I think I lost at least one clerkship for being a little too vocal about my preference for the Scalia dissent.
 

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