posted
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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quote: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.
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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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: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.
Also, it is coming out that even those members of the Senate briefed said, at the time, things like
quote: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.
-- 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.
posted
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 Posts: 202 | Registered: Aug 2005
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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: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.
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It gets better. This is from the guy who was head of the NSA when the program was implemented:
quote:"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."
Heavens to betsy no, not paperwork and arguments in order to ensure the rights of citizens are protected. And I could certainly never see a system requiring only the approval of a shift supervisor to conduct surveillance being abused.
Pardon my sarcasm, but this is a horrifying abuse of power.
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Dag: yeah, though I hope perhaps unrealistically that the SC would not say the President has the power to do this in wartime, except perhaps in some state of martial law.
The claim that the President has the power to do this absent Congressional approval (as its becoming increasingly clear he didn't remotely have) seems so incredibly counter to the principles embodied in the Constitution and our very Revolution.
I'd also hope he lacked the power to do it with Congressional approval due to our rights as citizens, but that's a less likely protection, and one I'm more willing to deal with not existing.
Actually, scratch that last. I'm think the current implementation is obscenely broad no matter who approves it. I'd only be more willing to deal with a situation where the approval for surveillance had to be higher up, and the AG provided a certification for every surveillance target, even were it post hoc, similar to the one required by FISA (though obviously with different provisions).
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Are we technically at war? I remember a resolution giving him the power to do what was necessary, if Iraq didn't give in to the demands, but was there ever actually a declaration of war? I mean, we've had a "war on poverty," a "war on drugs" and such going on for years. And this war could go on for 20 years, according to the estimates I've seen about how long the troops will be in the area. And the "war on terror" would be ongoing forever, would it not?
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I have a question: THere's been a lot from various quarters about whoever leaking this commiting a crime (a la the valeria plame affair).
What are whistleblower protections for those who report criminal activity on the part of the government?
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The bottom line here is that our President does not have Dictatorship privileges. He cannot suspend the Bill of Rights domestically because we are 'at War' in Iraq and in Afghanistan.
This expansion of the powers of the Presidency goes back to the abuse of power that was exposed in Watergate. Cheney and Rumsfeld were advisors in the Ford Whitehouse, and together convinced Ford to veto the Sunshine Laws enacted by Congress to prevent a reoccurrence of the Nixon abuses. Ford's Veto was overridden:
quote: 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."
That battle for secrecy is still being fought by Cheney and Rumsfeld. They assert the right of the Presidency to enact or modify laws by executive order. In effect this overrules Congress.
quote: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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The president's arguments must be seen in light of his overall "War" philosophy.
Right now, if a wire tap is considered illegal, the evidence obtained from that tap can not be used in court.
Big deal.
What the President is looking for is evidence of Enemy Combatants. Such people are picked up and detained with no trial anyway. Why does he need evidence useful in a court of law when he doesn't plan to bring these people into a court of law.
He sees this whole thing as a war. You do not need court approval to spy on the enemy during a war, nor do you need court approval to hold prisoners of war.
What he and his defenders seem to not understand is that the people he is going to war against may be the same people he has sworn to protect--American Citizens.
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.
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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.
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. The Democrats on the legislature left the state rather than be forced to allow a vote on redistricting. That unusual interum redistricting changed voting districts (midway between normal regulated Census redistricting) to favor electing more Republicans to the House of Representatives. That district change was challenged and is making it's way to the Supreme Court.
This had NOTHING to do with National Security or with wartime issues. It was political.
We have a checks and balances system so that no one group can take over and subvert our Republic. Each branch can overrule the other, and the President must defer to the Congress when a Veto is overruled. That way no one person is above the law.
Are we to become a Fascist nation, with the rich and powerful dictating to the rest of the nation, or will we be able to stop abuse of power? That is what is at stake here.
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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.
Perhaps the approval ratings are unrelated to the SpyGate scandal. It takes at least a couple of days to gather and compile data in a poll. The release date of the Poll is not the same day that the questions were asked. The next set of ratings might be more indicative of the real reaction to this newest scandal.
You have said that the spying was legal. Here is a different opinion:
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.
quote: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.
Not the democrats holing up in Oklahoma, but the abuse of the patriot act involved in it.
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Here's a quick test if a thing's a good idea or not: if the opposition party did it, would you cry "foul"?
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Thanks for the links Morbo. So the Department of Homeland Security was mislead, and nothing mentions the Patriot Act. I suppose I'll have to wait for silkie to back up his accusations.
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quote:Originally posted by Dagonee: BTW, can you source this?
quote: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.
Not the democrats holing up in Oklahoma, but the abuse of the patriot act involved in it.
DeLay was involved in calling in Homeland Security in order to track the Texas Legislators. Homeland Security was told it was to track a 'missing' plane.
At first Delay denied knowledge of this incident. Then later he revised that, and admitted his office did contact fellow Texan Tom Ridge's office. The records regarding this were deliberately destroyed by the Texas Department of Public Safety.
quote: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
quote:Originally posted by Dagonee: So nothing about the Patriot act then?
My browser went wonky and I got dumped out of cyberspace!
But I do have a source for you on that...
quote: 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.
Homeland Security was created seperately after the Patriot Act, but their authority, information sharing, and funding stem from the Patriot Act.
In other words, THEY had the connections and authority at the FAA, and with the other agencies that were contacted, to make a cross agency search. The Texas law enforcement agencies and Department of Public Safety did not have the authority to search for the 'missing' plane. That is why DeLay's office called them.
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quote:Originally posted by Dagonee: ...I suppose I'll have to wait for silkie to back up his accusations.
Herinformation.
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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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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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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quote: 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."
quote: "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."
quote: 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."
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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The public has almost no understanding of the complexity of the separation of powers issue here, DK. It's unfortunate.
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quote: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.
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.
Homeland Security's tracking system was MEANT to track down terrorists who threatened the public welfare. Instead DeLay used the system to fight a political battle. If that isn't abuse of the interstate powers generated by the Patriot Act, I don't know what WOULD qualify as abuse under your reasoning.
quote: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.
No doubt those sorts of actions against individuals happened in every presidency. I remember a tink about the senior Bush using the CIA and Internal Revenue against individuals too.
BUT we are talking about a pattern of behavior.
And we are talking about THOUSANDS American citizens who legally went about their lives, and were investigated by the FBI at the President's orders, which overrode their Constitutional right to privacy. They went to an anti-war rally, for instance, and were profiled just as a terrorist would be.
If nothing else this following Quakers (and members of PETA) around instead of focusing on real terrorist threats is a waste of taxpayer money.
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quote: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.
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: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.
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.
Exactly my point.
I couldn't have called to get that information. You couldn't have called to get that information. The Texas authorities couldn't get that information. BUT a Texas Congressman abused his authority/position and got the information from Homeland Security, which was available through the workings of the Patriot Act.
As I said, if that isn't abuse of the interstate powers generated by the Patriot Act, I don't know what WOULD qualify as abuse under your reasoning.
So, you tell me: What would be abuse of the Patriot Act under your criteria?
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I don't think Bush is setting up a dictatorship, I think he's usurping powers at best reserved to action under rules established by an act of congress, and at worst constitutionally forbidden.
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quote:"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 bold-faced phrase emphasizes the ethically relevant difference between what Bush is doing now and what Clinton appears to have done.
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That bold part is an inaccurate summary of what was happening: Clinton was seeking to prevent a bill being passed that would prohibit such searches.
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"I have a question: THere's been a lot from various quarters about whoever leaking this commiting a crime (a la the valeria plame affair).
What are whistleblower protections for those who report criminal activity on the part of the government?"
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I don't know enough about Clinton's or Reagan's situation to form a solid opinion. In Reagan's case, from that snippet, my opinion depends in large part on how foreign power and agent of a foreign power were interpreted. In Clinton's case, though his office maintained they had the authority, its worth noting they agreed to refrain from exercising that authority except as specified by Congress in a FISA amendment.
That is, I'm not sure how closely they parallel the current situation.
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quote:There's been a lot from various quarters about whoever leaking this commiting a crime (a la the valeria plame affair.
There is a big difference between this and the Valerie Plame affair. Here, the leaker reported a serious crime. In the Valerie Plame affair, the leak was the crime but did not report on even possible wrong doing by any government official.
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"There is a big difference between this and the Valerie Plame affair. Here, the leaker reported a serious crime. In the Valerie Plame affair, the leak was the crime but did not report on even possible wrong doing by any government official."
I'm aware of this. I'm trying to figure out if there are whistleblower protections for people who report on government criminal activity.
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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. Defining a person that way without stripping them of their citizenship seems like a stretch to me.
Dag...feel free to correct the above. I know I must've gotten some of it wrong.
Now...here's the other part that bothers me:
The Bush Admin issued a statement (by President Bush himself) saying that they thought about pursuing legislationt to make these searches explicitly legal but forebore that option because they didn't think they had the votes.
However, they assert that the searches are legal.
Again, it's just skating on the thin ice at the edges of the law and I would like something different from the people who lead and represent our country.
Bob's Prediction: I think the real irony will come when the person who leaked this information applies for sanctuary in Canada or Mexico.
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: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.
Nope. What fugu posted today makes it very unlikely my legal theory applies - although I still think it has legal merit.
The Court has definitely acknowledged that international communications, especially those involving a foreigner, are subject to different constitutional protection. That doesn't say that these searches did not violate fourth amendment rights; it just says these types of calls are different.
However, the real issue isn't likely to be whether it violates the callers' rights but whether 1.) the president has the right to conduct this surveillance this without congressional authorization; 2.) these searches are prohibited under FISA; and 3.) Congress had the power to prohibit the president from conducting this surveillance.
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quote: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.
Good grief. No need to shout. After more research I've come to the same conclusion. DeLay's abuses have nothing to do with the Patriot Act. I used a poor example and I was wrong.
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.
Yes, that was an interesting development. According to NBC news this evening the other 10 members of the court are going to meet to discuss this. That should be an interesting meeting.
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posted
Cheney has admitted this spying that was authorized by executive order was an intentional action "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.
quote: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
quote:Under WHAT conditions can a warrantless search be legally made against a US citizen.
Warrantless searches against U.S. citizens are very common. Remember, the 4th amendment does not explicitly say warrants are required for searches. Before proceeding to the main reasons, realize that "search" is rigorously defined. Anything an officer can see from a place he is legally allowed to be is not being "searched" for, and the fourth amendment doesn't come into play except where seizure is concerned. Therefore, anything that gives the cops right to enter a house (chasing a suspect in hot pursuit, for example, or when the cops think someone is in danger because they heard a cry for help) will allow the cop to see anything visible without moving things while there.
The main justifications for warrantless search:
1.) Voluntary and knowing consent of the person being searched. No warning that the person may refuse is required if they are not in custody.
2.) Incident to a legal arrest. The search is for the person and any areas immediately around the person ("wingspan search"). It also includes the entire passenger compartment if they were in a car when stopped.
3.) Upon reasonable suspicion of criminal activity and a reasonable suspicion of danger to officer safety, an officer may pat down a person and examine anything that, according to feel, might be a weapon.
4.) Upon probable cause that evidence of criminal wrongdoing exists when there are exigent circumstances. This is a broad category. Major subcategories: a.) When the evidence for which there is probable cause is in a car. This exception is almost total. If it's in a car, there's almost certainly a way for a cop to search with probable cause but no warrant. b.) When the evidence could be destroyed or removed. This is the more general case of the justification for the car exception. c.) When searching for a suspect in hot pursuit. (see note below - they can't look inside desk drawers for a person).
In all these cases, the search must match the evidence for which probable cause exists. For example, if cops have probable cause that a rocket launcher is in the car, they can't look in the glove box or open a small bag. But they can look in the trunk.
In general, it's very hard to search a home without a warrant. It's easy to search a car without a warrant, provided probable cause can be proven.
If a warrant is issued, then probable cause is reviewed only for abuse of discretion, including misconduct by the police such as a false affidavit. With no warrant, it is reviewed from scratch. A close but inexact way to look at it is that the prosecution has the burden of proof that a warrantless search was legal but the defense has the burden to prove a search by warrant was legal.
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posted
The 4th Circuit court of Appeals denied an Administration motion to have Jose Padilla released to the Justice Dept for a move to Miami where they have pursued new terrorism charges against him.
The 3 judges issued a statement saying that the Administration's credibility (in the Padilla matter alone...) has been severely damaged.
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Her information. 
