quote: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.
Still no time to fully respond, but a violation of 1 depends entirely on whether the U.S. citizen was "target[ed]" as opposed to the foreigner being targeted.
Posts: 26071 | Registered: Oct 2003
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Did every single wiretap implemented under this methodology get approved by a Congressional oversight group?
From what I read earlier, the "program" (that is, the idea that the NSA could continue doing this stuff) was the only part of it that was reviewed and that was performed ever 45 days by the President and the Attorney General.
It appears I may be missing some key aspects of this program. Could someone provide a better link to an article that describes the exact sequence of events involved in one of these wire taps? Especially the approval process? Was it done on an individual or blanket basis? Who signed off on them? Were the reviews done by independent members of the judicial branch?
quote:Did every single wiretap implemented under this methodology get approved by a Congressional oversight group?
No. They went to the Congressional committee about a dozen times, according to one of the article. It was blanket reviewed by the President, personally, every 45 days - several times more often than the Congressional reports, I believe.
I don't know the rest, but the answer to "Were the reviews done by independent members of the judicial branch?" is "no."
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quote: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.
If you could clarify for me, because I don't understand. While people are complaining about Bush's leadership, the biggest suggestion for a solution I hear is that they want Bush to do a better job, not that they necessarily want someone else in there.
Do I wish someone else was doing the job? Sure, but wishing doesn't make it so, and it doesn't fix the problem, and that's something we all know. The man actually doing the job however is doing it wrongly I, and many others believe. Thus, "get over it" doesn't cover that specific complaint. He has the job, sadly he won it fair ans square, now I have the right to critique how I feel he is doing that job incorrectly.
I'm okay with democracy, and I think what is happening right now is actually good for democracy, thus I'm not bemoaning the outcome.
I think that when people realize how badly they screwed up in the last election, they'll realize the error of their ways and vote differently in the next election. We learn just as much from the backlash of democracy as we do from the successful people voted into office.
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quote: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.
quote:(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.
This section provides a LOT of support for the legality of the President's actions.
Note that a foreign power includes terrorist organizations, and that an unincorporated association of people who belong to such an organization is not a U.S. person, notwithstanding the citizenship of its members. Note also that the President's plan, apparently, only allowed interception of international communication - a safeguard not directly required by the act, but one that can lend considerable support to the contention that the association is a foreign power.
Further note that several procedural steps are required - notifying the congressional committee, notifying the court, and establishing the minimization plan. From what I've read (in linked articles), members of the committee and the court knew about this before the story leaked. It's evidence of some sort of notification.
Remaining questions:
1.) Were the procedures followed correctly, including the minimization plan?
2.) Can the year long limit be renewed? This will be a question of statutory construction, and there's plenty of precedent both ways.
3.) Are the targeted people all members of an association of persons that is part of a terrorist organization?
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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posted
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.
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.
Posts: 11895 | Registered: Apr 2002
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quote: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.
Clearly, the NEA doesn't meet the statutory definition, and if they tried to use this to justify such surveillance on them they would have no case for validity.
I agree that this, coupled with the association concept, is the grayest issue involved here.
quote:My big fear is that some future politician or beaurocrat will use this system for those purposes in the future.
I share this fear, and this could be a great opportunity to have a national debate on changing this legislation. I don't think that "authorized by statute" = "a good idea." But the good idea conversation can't really happen until some consensus is reached about "authorized by statute," especially with others throwing around calls for impeachment.
On a side note, if everything was done correctly, then the leaker leaked highly sensitive information about a legal intelligence operation with direct national security implications.
Maybe Fitzgerald will have more work to do.
Posts: 26071 | Registered: Oct 2003
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Dag, I've got some issues with this. First off, the surveillance of a U.S. citizen seems only permitted if that citizen meets the following criteria:
quote: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;
Clearly this is not the case for all the individuals being surveiled. Moreover, the later text has this to say:
quote: (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...
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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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?
I don't agree that he has a 'strong case' for his actions. Absolute power has corrupted absolutely. Bush let the hounds loose and hasn't kept watch on them. We are finding out about the secrets, at last. This got out of hand a long time ago.
When you justify torture because the Geneva Conventions are quaint I consider that a stretch of legal justification.
When you authorize agents to secretly spy on Quaker meeting houses, and antiwar protesters, because 'they are not with you' (by Bush's publicly stated logic it follows if 'they are not with you' that 'they are against you') THAT is a stretch of legality, and an abuse of power, in my opinion.
We have NeoCons in charge of both domestic policy and foreign policy: Cheney and Rummy are both Board members of NeoCon Organizations. Bush and Cheney did not run for office wearing those wolf skins - they mouthed platitudes and talked moderation. What they have actually DONE is quite different.
I believe that 'someone' who has (or had) access to their inner workings does not agree with what (and how) this is being done. With all of this dirty laundry finally making it to the press, obviously the unknown person(s) are deliberately undermining the smoke screen. With the TRUTH that has finally hit the press, it has become apparent that the administration DOES have a secret agenda, and are using the power of the executive branch to achieve that by secret means.
quote: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.
That depends on your point of view. Look at the government today, and how it was when Bush/Cheney took over. The EPA has been castrated. FEMA has gone from the most respected national disaster response team on the planet to a shambles. The energy department is run by corporate interests - in fact the very corporate interests that FOUGHT regulation were put in charge of those departments they were fighting. Cronyism has been part of the equation, but this was done with intent. The stated NeoCon agenda is to dismantle the FDR New Deal. Look it up.
They are succeeding.
quote: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.
Your 'big fear' is happening right now. Read the papers. Even the corporate press is talking about it, at last.
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quote: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.
No. The apparent motivating incident was the seizure of computers and other info abroad that provided evidence of membership in the terrorist association. A U.S. citizen who is a member of the terrorist association may not be a U.S. person under 50 USC 1801(i). That would be the big gray area.
Read broadly, the inclusion of a single U.S. citizen in a group of communicating individuals would insulate that group from electronic surveillance. Yet the statute seems to contemplate surveillance of associations including U.S. citizens. Most of the definitions of foreign power include limitations such as "not substantially composed of United States persons." The terrorist organization definition in 50 USC 1801(a)(4) does not include this limitation.
It is a canon of statutory construction that a limitation explicitly applied to particular categories is not applied to categories in which it is not explicitly stated.
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quote: don't agree that he has a 'strong case' for his actions.
Care to share your reasons why the legal justification wouldn't apply?
quote:When you justify torture because the Geneva Conventions are quaint I consider that a stretch of legal justification.
So a bad legal justification in another matter means this legal justification is bad? It doesn't work that way.
Posts: 26071 | Registered: Oct 2003
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posted
I believe we should hold our government to a higher standard than just "Obey the fine print of the law." I believe we should expect them to "Respect the intent of the law" too.
Posts: 8120 | Registered: Jul 2000
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Targeting means that the US person's communications were being paid attention to, not somebody else's who happens to be called by the US person. The former has been described as the case, here, so the US persons were being targeted.
As for what you quote, note the extremely specific restriction:
quote:(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.
In this case, surveillance was taking place where the President specifically knew a US person was a party, in at least some cases, so in those cases the exemption couldn't even remotely apply. Furthermore, the exemption's intent is clearly to allow for interception abroad of communications between non-US persons (as it, well, says), and specifically not to allow for the interception (domestically) of US persons communications.
It doesn't provide any support whatsoever for the legality of the President's actions, though I'd be amused if they asserted they followed this exemption, since in that case the AG has violated his written oath (he'd have certified in writing under oath the no-substantial-likelihood-US-person criteria).
edit: sorry, hadn't caught the rest of your argument. You're right, it is stronger than what I state above. However, it may not be as well. 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:Originally posted by Dagonee: [QUOTE] don't agree that he has a 'strong case' for his actions.
quote:Care to share your reasons why the legal justification wouldn't apply?
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.
quote:When you justify torture because the Geneva Conventions are quaint I consider that a stretch of legal justification.
quote:So a bad legal justification in another matter means this legal justification is bad? It doesn't work that way.
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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posted
That's all well and good, but there will be no meaningful discussion of whether this fails to meet a higher standard until people stop throwing around calls for criminal charges before they've fully analyzed the legal realities.
The stated intent of the law is to "authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" in certain circumstances.
Determining if what was done here meets those circumstances is not quibbling about "fine print." The exception was preserved because legislators thought it might be needed. The distinctions as to when it would be needed are, by definition, very fine.
Calls for conviction because someone didn't "respect the intent of the law" if they followed the fine print of the law definitely violate the spirit of our Constitution.
Posts: 26071 | Registered: Oct 2003
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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.
So no comment on the actual topic of discussion, then - that is, was the surveillance just reported legal or not?
quote: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.
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?
Posts: 26071 | Registered: Oct 2003
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posted
This editorial says it more clearly that I can:
quote:
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."
quote: “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.
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.
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quote: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.
I am not trying to prove this was justified. There are many missing facts - not the least of which is were the procedures followed. I am trying to demonstrate that this is a close issue, and, even if the administration is ever held to have violated the law by a court, the argument is likely close enough that intent does not exist.
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posted
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...
Posts: 1918 | Registered: Mar 2005
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quote: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.
It's not nearly that simple, fugu. An association is defined as a person. An association that meets certain criteria is specifically excluded from being a United States person. It's very possible that the statute will be interpreted such that membership in an association overrides citizenship for definitional purposes. Statutory construction is a tricky business.
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.
There are many far more strained readings of statutory language. All of the types of reasoning I've applied are in common use.
Of course, there are other tools of statutory construction that would support the contrary outcome. Neither of us has a basis for predicting one over the other.
Posts: 26071 | Registered: Oct 2003
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quote: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.
quote:So no comment on the actual topic of discussion, then - that is, was the surveillance just reported legal or not?
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.
quote: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?
I repeat:
quote: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.
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.
Posts: 337 | Registered: Nov 2005
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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".
I rather suspect he was making no such certification (and it would be easy enough to check, he has to file those certifications with the FISC; if he isn't doing that, that's another reason the exemption isn't applicable -- its very clear he must do that).
Posts: 15770 | Registered: Dec 2001
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quote: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.
If it was technically legal then he didn't need to change the law. "Technically legal" = "legal."
quote: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.
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.
Posts: 26071 | Registered: Oct 2003
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quote: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...
Is that just as 'the slippery slope arguement' did not apply to Clinton? Corruption does not have a party affiliation.
Posts: 337 | Registered: Nov 2005
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quote: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".
And the association of which that person is a member is not a U.S. person, then that person might not be a U.S. person.
Posts: 26071 | Registered: Oct 2003
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Nope I meant that in overall general terms, like people against Howard Stern, or abortion, or the decline of morals and so on
Posts: 1918 | Registered: Mar 2005
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quote: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").
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. The huge grey area here -- as Dag has noted -- is how you go about "proving" this to the satisfaction of the statute.
Posts: 37449 | Registered: May 1999
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quote: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.
That's an overstatement. I can see a statutory construction, applying common rules and not stretching any of them, that can arrive at the conclusion that "[a] US citizen ceases to be a US person ... if they are actively involved in plotting terrorism."
The great problem in statutory construction is that I can see a statutory construction, applying common rules and not stretching any of them, that can arrive at the opposite conclusion.
So the first gray area is if this construction is correct - something that would ultimately be up to SCOTUS if it got there.
The second gray area would be how it is proven.
None of this gray area might matter if the procedural forms were not followed.
Posts: 26071 | Registered: Oct 2003
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quote:Originally posted by Dagonee: If it was technically legal then he didn't need to change the law. "Technically legal" = "legal."
Right. And Clinton didn't have intercourse with 'that woman' either. He was technically not lying. But Clinton did lie, didn't he?
quote: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.
quote: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.
Nonsense?
Congressional leaders either did not know, or did not want it publicly known that they knew. Either way, when the truth hit the news it provoked the ruling party to step back from the Patriot Act, and announce hearings.
After all - they DO want reelection.
And yes, repeatedly authorizing an agency to break the law IS abusing the Rule of Law. It wasn't for thirty particular incidents of people being spied on, it was for thirty renewals of carte blanche spying procedures on thousands of peaceful Americans, without due cause.
And you know why did they not attempt to change the law. Because they knew that if the public ever got wind of this pattern of behvior, the sh*t would hit the fan.
quote:And yes, repeatedly authorizing an agency to break the law IS abusing the Rule of Law.
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.
Posts: 26071 | Registered: Oct 2003
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Darn it, stupid internet conneciton. Lost a good post. Here I go again.
First, can a single person be a group? For a US citizen to not be a US person would require he or she be an association which is a foreign power, and the only really applicable definition of foreign power "a group engaged in international terrorism or activities in preparation therefor". If an individual can't be a group, an individual who is a US citizen must be a US person. 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. This is of course all moot if the AG has not been certifying and delivering the certifications.
Also, your objection to my construction, here, is not meaningful:
quote: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.
This is because of the way electronic surveillance is defined. 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. 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. 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.
Posts: 15770 | Registered: Dec 2001
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quote: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.
But there are competing defintions of U.S. person. Communication happens between people, and yet groups, and decisions about what is permissible depending on the type of group, are clearly contemplated in the act.
quote: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.
This is what strengthens my construction, not yours. Electronic surveillance only occurs when it might intercept a U.S. person's communication. And, yet, electronic surveillance is allowed without the warrant from the FISA court in certain circumstances.
Therefore the statute clearly contemplates such interception, in at least some cases. The question is if this is one of those cases.
quote: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.
Nothing I've said concerns anything but interception within the U.S.
quote: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.
Except that the entire statute notwithstanding, these exceptions exist. The exceptions would be unnecessary if there were not cases where electronic surveillance could occur in the U.S. without such prior notification.
Posts: 26071 | Registered: Oct 2003
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quote:And yes, repeatedly authorizing an agency to break the law IS abusing the Rule of Law.
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.
The reason these laws were written is because Nixon's group spied on peaceful anti-war protesters, and kept files on ordinary citizens who were against the Vietnam war.
I don't think it is a stretch to assume that a Quaker organization is a peaceful one. Do you think that there was reasonable cause to spy on them? What about peaceful anti-war demonstrations?
Our government is again approaching a totalitarian way of thought in its' approach to peaceful public demonstrations.
quote:"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."
Corporate run government = Fascist government. We are clearly headed in that direction under this administration.
Big Brother loves you ... now shut up and go back to work
Posts: 337 | Registered: Nov 2005
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quote: Corporate run government = Fascist government. We are clearly headed in that direction under this administration.
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. Posts: 37449 | Registered: May 1999
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quote:And yes, repeatedly authorizing an agency to break the law IS abusing the Rule of Law.
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.
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.
Posts: 337 | Registered: Nov 2005
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quote: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.
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.
Posts: 26071 | Registered: Oct 2003
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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.
Posts: 7790 | Registered: Aug 2000
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quote: Corporate run government = Fascist government. We are clearly headed in that direction under this administration.
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.
I agree with your assessment ... and at the same time I am reluctantly beginning to agree with that point of view. I have read that we are evolving toward a 'feudal' system, with corporate interests as the Lord of the Manor. A strong case can be made for that point of view.
Look around you. American jobs are increasingly going overseas. There is a huge trade deficit, and our government is spending money it doesn't have, going deeper and deeper into debt. The 'middle class' has less and less disposable income. Both parents need to work in most households, just to make ends meet without material sacrifice. Contracts with workers, like pensions, are being broken in favor of upping profits. Our American Dream is being eroded by the short term profit driven perspective apparent in most corporations. Where will this lead us?
Why am I in this handbasket - And where are you taking me?
Maybe I've read too much sci-fi, or maybe we are witness to the decline and fall of the United States republic.
Posts: 337 | Registered: Nov 2005
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quote: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.
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.
Posts: 337 | Registered: Nov 2005
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quote: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.
quote: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.
I agree. NOBODY BROKE THE LAW. Technically.
And Clinton didn't have sexual relations with that woman. Technically.
That agreed upon, do you agree that the law was deliberately subverted, by secretive and excessive use of executive order?
Posts: 337 | Registered: Nov 2005
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quote:That agreed upon, do you agree that the law was deliberately subverted, by secretive and excessive use of executive order?
It depends on if the forms were followed and what the justifications were for the exception, neither of which we know at this point.
Posts: 26071 | Registered: Oct 2003
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See, I don't agree. That's not something I'm willing to concede based even on the letter of the law.
Posts: 37449 | Registered: May 1999
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I don't agree with that either. We don't know enough about the law or the facts at this point.
Posts: 26071 | Registered: Oct 2003
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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.
Technicality Main Entry: escape clause Part of Speech: noun Definition: legal provision to get out of a contract Synonyms: clause, escalator clause, escape hatch, escapeway, fine print, hole to creep out of, loophole, saving clause, Technicality, way of escape, way out Roget's New Millennium™ Thesaurus, First Edition (v 1.1.1)Posts: 337 | Registered: Nov 2005
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What I'm not clear on, exactly, is why the president needed to sign off on this at all. Remember, he did this at the request of the NSA. 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. I find this kind of odd, since we seem to be talking about phone and email communications. I guess I, like Bob Scopatz, am curious what the exact timeline and motivation for all this is.
Also, let me mention that when the president said that he would sign off on this until the war on terror was over, it seems that that basically means until the end of his term, when the next president can decide if they want to do it.
Posts: 13123 | Registered: Feb 2002
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quote:A more concise description would be that Bush apparently subverted the law using a technicality. Again and again, secretly, every 45 days, for years.
It's not a technicality. It's the very first section in the bill after the definitions.
posted
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?
Posts: 13123 | Registered: Feb 2002
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Bush wrote those executive orders exactly every 45 days for years just for the fun of it. He loves to write.![[Angst]](graemlins/angst.gif)
