quote: WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
quote: Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.
So they say. Will we ever see the proof?
quote: Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court.
Is this really a safeguard? What happens if the court just falls asleep at the switch and basically rubber stamps everything?
quote: The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.
Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
So they say. Proof?
quote: Several senior government officials say that when the special operation first began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.
Could it be they had a good reason to be worried?
quote: Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA Patriot Act, which is up for renewal.
...
Bush administration officials argue that the civil liberties concerns are unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A. to target Americans. "Nothing could be further from the truth," wrote John Yoo, a former official in the Justice Department's Office of Legal Counsel, and his co-author in a Wall Street Journal opinion article in December 2003. Mr. Yoo worked on a classified legal opinion on the N.S.A.'s domestic eavesdropping program.
I'm sure we can expect a push to legitimize these expanded powers for the usual reasons, though.
quote: The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.
For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses."
Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."
The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."
Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, noted "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."
posted
Yeah, this kind of stuff really scares me. Especially with the rampant half-truth, rumor attacks we see in nearly every election now, how long before incumbants start monitoring emails and phone calls of any perceived threat to their administration and use information so gained in further rumor campaigns?
Combine this with the current administration's penchant for spiriting "suspects" away to foreign countries for torture and how long before your neighbors start disappearing?
Maybe that's paranoia. Maybe not. The fact is, I'm not the only one afraid of this, and the fear itself can be enough to quelch opposition. Can anyone say "McCarthy"?
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Along with the Double-Secret Airline ID Law , which is a secret law that to board an airliner you either produce an ID or get a cavity search, it's no wonder "Kafkaesque beats Orwellian 3 to 1 in the blogosphere" in describing this government, as some blogger put it.
It's obsession with secrecy is becoming absurd. I can understand the reasons for producing an ID to get on an airliner. But why have a SECRET LAW??
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posted
I called my senators when I found out about this. If true, and depending on the details, I may finally have reversed my position on impeaching bush.
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posted
If this is true, I think I may have to agree with Paul. This type of stuff makes me sick to the stomach. Reminds me of that movie, Enemy of the State that came out a few years back.
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posted
It surprised me quite a bit. The tone of conservative pundits seem to be that its ok for what this administration has done with foreign policy, but historically they've been VERY touchy about some personal freedoms. For Bush to do something like this that has the potential for alienating his strongest base of support strikes me as uncharacteristically stupid (although many would argue that it is characteristic) and that surprises me.
Posts: 1412 | Registered: Oct 2005
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posted
"What the hell is happening? "I blew up the building." "Why?" "Because you made a phone call!"
Doesn't seem quite as funny anymore...
Yeah, Yoo was quite the yes-man to Bush, as this writer points out his basic position was the prez can do no wrong:
quote: Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the U.S. response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same -- the president can do whatever the president wants. Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime -- even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished."
posted
I'm not meaning to troll here, but hasn't Bush pretty much gotten his way with just about every controversial factor in the War on Terror?
It seems like a big show is made of how terrible everything is, but no one in a position of power is doing much to hold his feet to the fire when it comes to legalities. McCain seems to have made a bit of headway on the torture issue, but otherwise...
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quote: Bush defended signing the order by saying that two of the September 11 hijackers who flew the plane into the Pentagon -- Khalid Almihdhar and Nawaf Alhazmi -- "communicated while they were in the United States to other members of al Qaeda who were overseas, but we didn't know they were here until it was too late."
quote: In acknowledging the message was true, President Bush took aim at the messenger Saturday, saying that a newspaper jeopardized national security by revealing that he authorized wiretaps on U.S. citizens after September 11.
Rich.
He admits it's true, and maybe Dag can explain what why he did was legal, I don't see it. What I think is particularly ironic about this, is that he attacks the paper for jeopardizing national security, and quite frankly, I don't think it does, but when his administration leaked Valerie Plame's name, which was a potential threat to national security, not to mention her life (remote chance, but it's there), he stonewalled for months and made it sound like it wasn't a big deal.
These terrorist groups aren't stupid, obviously, if they were, they probably wouldn't be so successful, unless we're just more stupid than they are. They are already being careful with their communications if they are able, and if not, having general knowledge that the US might be tapping SOMEONE's line isn't going putting us at the brink of certain destruction.
And is anyone else worried that Bush authorized 500 taps, thus, there could be 500 potential terrorists planning to wreak havoc in the nation. I was under the impression everything he was doing was making us safer.
Where does he get the authority? Or the gall?
Posts: 21898 | Registered: Nov 2004
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posted
....from the people who reelected him, even when his administration had already made it fairly clear that they consider it okay to circumvent both law and ethics whenever they believe national security to be at stake?
After an unprovoked invasion of Iraq based on misleading claims of supposedly certain evidence, a torture scandal, the Patriot Act, the repeated suggestion that dissent harms the U.S. War on Terror, and a steady stream of propoganda on most issues, why should we be surprised that this administration would circumvent law to secretly spy on Americans? If we want our leaders to stay within the boundries of law, we have to hold them accountable when they fail to respect those boundries, rather than reelecting them just because they support the judges we like, because we don't want to take a chance on someone different, or because we consider ourselves affiliated with their party, their "team". We knowingly voted this administration back into office - so I think the blame lies with us almost as much as it does with the President.
posted
I am pretty sure I posted in this thread. We definitely need to vote these guys out of office as soon as possible. If impeachment were an option, I'd be happy with that too. Nixon was reelected in a landslide but then resigned before he could be impeached. These guys are frightening. I wonder sometimes if this is still America, you know? I thought stuff like that (and the torture scandals) can't happen here.
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quote: If impeachment were an option, I'd be happy with that too.
Impeachment IS an option. And I called my senators yesterday with that request. I've been withholding judgement on the whole impeachment thing for some time, because I DO believe that a wartime president should get some leeway, but I think we've moved beyond "accidential violation of Constitutional law" and have entered the realm of the egregious.
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The blame doesn't lie with me. I told everybody not to vote for this moron.
Tatiana,
Why isn't impeachment an option? The republicans tried to impeach Clinton because...well, let's see:
From the "Free Republic", a "Conservative News Forum," he was impeached for, among other things:
quote:In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that:
On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following: (1) the nature and details of his relationship with a subordinate Government employee; (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him; (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.
In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.
And we all know that the current republican-run House and Senate stand so strongly for the rule of law, fair play, and all those other great American Values.
No, I'm serious! Really!
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Oh come now, everyone knows that Republicans hold the keys to American virtue, and thus can decide to change what is and isn't an American Value whenever they want to.
In the 90's, sexual scandals were a violation of American Values, but in the 00's, not only is lying and circumventing the constitution NOT a violation of American Values, it's vital to upholding them.
It's kind of like the whole torture scandal. If you change the definition of torture so that it doesn't include all the things we've been doing to detainees, then we aren't really guilty of torture are we?
Sadly, I have a feeling that if any Democrat serious brought charges of impeachment against Bush, he'd be laughed out of the Senate, and the news media would rip him apart for just being bitter over what the Republicans did the Clinton. It's ridiculous I think, but I have a feeling that is what would happen. To be honest, I'd think the Republicans owe them one. The Republicans got a freebie, to spend millions of tax payer dollars on a smear campaign against a sitting president. I don't see how they could object to the Democrats wanting their shot at it, especially given the Dems actually have a legitimate basis for starting such a process.
Posts: 21898 | Registered: Nov 2004
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posted
First, I will not post here praising Bush and acting as a front-running defender. But I also think a little bit out of the ordinary is being made of this story.
quote: The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, the officials said.
The program, runby the CIA, monitored communication addressed or intended to travel outside of the United States.
While people don't like it, the law has found, repeatedly over time, that communication with a party not residing within the US does not share the same priveleges as communication within the US. During prohibition, such means were used within Canada to track smugglers.
But more recently, since the end of WWII, US Mail (all US Mail) is subject to be opened and reviewed if it is destined to a nation considered non-favorable to the US. (If you doubt this, ask your post office and send a letter to, say, North Korea).
International Communication has been ruled repeatedly that it can be addressed without a warrant or any federal court standing because it is a communication with an outside party not entitled under the US Constitution.
I'm not going to say "I like it that way" I am just saying, historically, and to this day, that has always been true.
What makes this case unique is what was captured - electronic communication (Email) and the like, which many consider incredibly shocking that such a thing could occur. And, on one level, as someone who runs ISPs, I understand that grave concern.
So, in regards to communication, they are pretty well covered.
In regards to following a person of interest within the US, their is a procedure for that which can be done without a warrant, or with secret warrants (FISA), and it is unclear how or if FISA ever came into play in this case. Moreover, if congress was advised, as the administration contends, then the individuals could have been added to the federal International Watch list, which would allow the CIA to track them domestically as part of their charter; this same guideline allowed the CIA to work the Olympic games in Atlanta and LA as part of the IOC's request for prevention, and the same means by which intelligence agencies are allowed to monitor activities of embassies.
Where any of these steps taken? If they were, by law, they would be sealed up to 30 years before we would know about it. If they were not, it will take time to sort that out as well.
As it is, even if all the loops were dotted, and they walked the fine line of international management on domestic soil - which is a very tricky one - it is still enough to create a significant public brew-haha, and can result in questions that may be almost impossible to answer without endangering human assets. And that's a position they trapped themselves into.
Some have equated this reasoning with saying "it's the equivelent of saying we only do this on Tuesdays" and so forth. However, the CIA is founded under the construct that international communication is inherently less secure then domestic, and this theory has been tested. It however, has not been tested against the newer methods of communication, etc. as the last records of this sort all deal with the currently enforced methods (US Mail).
BTW, Republicans were idiotic in their impeachment of Clinton; the one big violation he created they pulled - blackmail. A president being inappropriate with someone else creates a position by which that individual can blackmail them, or others aware of the situation can use that information for blackmail, which does endanger a government; RFK warned JFK of this exact problem when it was feared that people would use things against him.
Clinton made the problem worse by moving Lewinsky into a security job at the pentagon, which placed someone who could blackmail him in the position to have access to highly classified documents.
Republicans never persued any of that - and considering Lewinsky's brightness, it wasn't really an issue. But the potential position he was in could have been far more serious if he had taken "favors" from someone who had a much more malicious streak about how to press him in regards to potentially damaging information.
posted
I think then, it'll be the details of this story that make all the difference. If the people who are being spied on are American citizens in the US, then regardless of international or domestic communications, warrants have to be issued, within 72 hours, if the wiretap is to be considered legal.
If Congress was warned within 72 hours, warrants were issued, and all the procedures were followed, then this story is much ado about nothing. If they weren't, then there's something to be considered here.
Furthermore, I think this continues to shed light on a dangerous streak of leaks from the Bush White House. How is it that supposedly secret information keeps finding its way out of the White House? If the leak is at the CIA, or the Pentagon, that's even more scary. Despite the fact that this sounds like the kind of thing I'd probably want to know about, the next thing that gets leaked might have negative reprecussions for US security. Seeing as how we obviously can't trust the media to decide what should and shouldn't be reported, we need that leak plugged as fast as possible.
Posts: 21898 | Registered: Nov 2004
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quote:from the NYT: The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
quote:In regards to following a person of interest within the US, their is a procedure for that which can be done without a warrant, or with secret warrants (FISA), and it is unclear how or if FISA ever came into play in this case. Moreover, if congress was advised, as the administration contends, then the individuals could have been added to the federal International Watch list, which would allow the CIA to track them domestically as part of their charter; this same guideline allowed the CIA to work the Olympic games in Atlanta and LA as part of the IOC's request for prevention, and the same means by which intelligence agencies are allowed to monitor activities of embassies.
Thank you for posting this. I haven't seen these details in any of the coverage, although I've not read the Times articles yet. It's clear from coverage that some in Congress knew. From the Post's first article on this:
quote:The aim of the program was to rapidly monitor the phone calls and other communications of people in the United States believed to have contact with suspected associates of al Qaeda and other terrorist groups overseas, according to two former senior administration officials. Authorities, including a former NSA director, Gen. Michael V. Hayden, were worried that vital information could be lost in the time it took to secure a warrant from a special surveillance court, sources said. But the program's ramifications also prompted concerns from some quarters, including Sen. John D. Rockefeller IV (W.Va.), the ranking Democrat on the intelligence committee, and the presiding judge of the surveillance court, which oversees lawful domestic spying, according to the Times. The Times said it held off on publishing its story about the NSA program for a year after administration officials said its disclosure would harm national security. The White House made no comment last night. A senior official reached by telephone said the issue was too sensitive to talk about. None of several press officers responded to telephone or e-mail messages. Congressional sources familiar with limited aspects of the program would not discuss any classified details but made it clear there were serious questions about the legality of the NSA actions. The sources, who demanded anonymity, said there were conditions under which it would be possible to gather and retain information on Americans if the surveillance were part of an investigation into foreign intelligence.
quote:Furthermore, I think this continues to shed light on a dangerous streak of leaks from the Bush White House. How is it that supposedly secret information keeps finding its way out of the White House?
The leak could come from Congress, not the White House. The description of the sources: "sources with knowledge of the program said last night."
Not "an administration official" or a "congressional official."
quote:I've been withholding judgement on the whole impeachment thing for some time, because I DO believe that a wartime president should get some leeway, but I think we've moved beyond "accidential violation of Constitutional law" and have entered the realm of the egregious.
When you came to this judgment, did you know that exceptions were allowed?
Edit: It is important to note that only international communications were covered by the President's order, which is what creates the possibility of these exceptions covering the order.
posted
I question the timing of this report (Patriot Act renewal and an upcoming book release). I also wonder if anyone is going to clamor for an investigation of this leak with nearly the same enthusiasm as they did when an already compromised agent's name was published in some newspapers.
I doubt it, since that isn't part of the 'impeach Bush' agenda. How quickly the brief period of the Left's concern for national security evaporates.
Posts: 218 | Registered: Mar 2005
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quote:Impeachment IS an option. And I called my senators yesterday with that request.
BTW, you probably want to call your representative, not your senators, if you are trying to get Bush impeached. Senators can't impeach, only convict after impeachment.
Posts: 26071 | Registered: Oct 2003
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posted
It appears that this news has riled everyone up, with some good cause, but I believe you all are looking at this naivly (sp?). The regulations in place, if I remember them correctly, allow for the monitoring of US citizens with proper authorization. I would be suprised if at some point during a 4 year term, a president did not authorize some monitoring of US personnel.
posted
Dag: yeah, I knew some exceptions were allowed. I'm finding it a little hard to imagine that this situation falls comfortably into that umbrella, however.
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quote: I question the timing of this report (Patriot Act renewal and an upcoming book release). I also wonder if anyone is going to clamor for an investigation of this leak with nearly the same enthusiasm as they did when an already compromised agent's name was published in some newspapers.
I doubt it, since that isn't part of the 'impeach Bush' agenda. How quickly the brief period of the Left's concern for national security evaporates.
What a load of bull. See how rapidly you attempt to spin this? Since it's CONFIRMED, you can't deny its accuracy -- so you instantly attempt to poison the messenger. Consider, though, that if you believe the message was delayed at all, your only source for that is the Times itself -- and according to them, they delayed the release of the report at the government's request. It would have otherwise come out before the last presidential election. (Which leads to the following question: if it's immoral to delay a story to impact the vote on a bill, is it even more immoral to delay it to impact an election?)
Posts: 37449 | Registered: May 1999
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quote:Dag: yeah, I knew some exceptions were allowed. I'm finding it a little hard to imagine that this situation falls comfortably into that umbrella, however.
posted
For one thing, I'm not at all sure they permit the executive branch to waive the FISA requirement. For another, I find it hard to believe that they could be authorized by accident, although of course the morality and quality of Bush's legal counsel has always been suspect.
But you know me. I'm not a big fan of bad precedent, even when it exists. After all, if Bush gets away with this one, it'll be used to justify the future expansion of surveillance activity another generation or so down the road, because after all "exceptions are allowed." Posts: 37449 | Registered: May 1999
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posted
You haven't just said this is a bad policy - something I'm undecided on until I know more - but that you think it warrants criminal conviction (I'm assuming you don't just want Bush impeached, but actually convicted by the Senate).
Finally, Bush has almost certainly notified the Congressional intelligence committees about this. If he's culpable, so is every member of those committees.
Posts: 26071 | Registered: Oct 2003
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posted
I'm okay with impeaching Congress. But that said, I think he's notified them; I don't necessarily get the sense that he wouldn't do it if they told him not to. I'm not sure that applying a big rubber stamp to someone else's sword is itself an impeachable offense, especially when it's uncertain whether Congress could technically do anything else about it.
quote: Bush administration officials argue that the civil liberties concerns are unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A. to target Americans.
It's this sort of disingenuousness that bothers me, Dag; as I understand it, the Patriot Act has nothing to do with this at all, and their reply is designed to obscure the fact that Bush himself, on his own initiative, has freed the NSA to target Americans. Am I misunderstanding that situation?
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Assuming that is correct, and the EFF's characterization of various court cases and the tests they created are even somewhat correct, I suspect this was extremely illegal, especially if it turns out the requests were not all reviewed by the President or AG.
Posts: 15770 | Registered: Dec 2001
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quote:But that said, I think he's notified them; I don't necessarily get the sense that he wouldn't do it if they told him not to. I'm not sure that applying a big rubber stamp to someone else's sword is itself an impeachable offense, especially when it's uncertain whether Congress could technically do anything else about it.
If they thought the President's reading of a law with quite a bit of fuzziness was incorrect, they could have sought to clarify the law.
Silence by one who has been notified and has the capacity to intervene implies consent. The reason those notification provisions exist is so that Congress can step in if they don't like what the executive is doing.
quote:It's this sort of disingenuousness that bothers me, Dag; as I understand it, the Patriot Act has nothing to do with this at all, and their reply is designed to obscure the fact that Bush himself, on his own initiative, has freed the NSA to target Americans. Am I misunderstanding that situation?
It's not disingenuous when people used the Time report as a reason not to renew the Patriot Act. You're right, "the Patriot Act has nothing to do with this at all," and Bush's assertion that it doesn't isn't disingenuous.
quote:Assuming that is correct, and the EFF's characterization of various court cases and the tests they created are even somewhat correct, I suspect this was extremely illegal, especially if it turns out the requests were not all reviewed by the President or AG.
From your link referencing the SCOTUS opinion on a seemingly related issue: "But in the decision, Powell said the court was not ruling on the 'president's surveillance power with respect to the activities of foreign powers, within or without this country.'" Emphasis mine.
Posts: 26071 | Registered: Oct 2003
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posted
As you say, they were not ruling. They did, however, note
quote:Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.
Furthermore, they invited Congress to act and fill the void, which it did, with FISA. If the President went beyond FISA in that demesne, he lacked proper authorization. That part of Congress knew and did not protest is irrelevant if there was no legislative basis. The committees dealing with such things are not empowered to say Congress is okay with anything they feel like, it may very well be Congress as a whole would not have granted the President such power.
Congress does not have the power to make decisions outside certain channels; even Congress cannot act or authorize action outside the laws it passes without changing the law, matter how much it, or more properly a small part of it, "consents".
Especially as we are not aware of the manner in which notice was given. If Congress were merely given a list of those people in the US under surveillance by the various agencies, they may well suppose that surveillance was being conducted under FISA. There are numerous other potential scenarios.
Posts: 15770 | Registered: Dec 2001
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quote: I question the timing of this report (Patriot Act renewal and an upcoming book release). I also wonder if anyone is going to clamor for an investigation of this leak with nearly the same enthusiasm as they did when an already compromised agent's name was published in some newspapers.
I doubt it, since that isn't part of the 'impeach Bush' agenda. How quickly the brief period of the Left's concern for national security evaporates.
What a load of bull. See how rapidly you attempt to spin this? Since it's CONFIRMED, you can't deny its accuracy -- so you instantly attempt to poison the messenger. Consider, though, that if you believe the message was delayed at all, your only source for that is the Times itself -- and according to them, they delayed the release of the report at the government's request. It would have otherwise come out before the last presidential election. (Which leads to the following question: if it's immoral to delay a story to impact the vote on a bill, is it even more immoral to delay it to impact an election?)
And see how obviously your actions are exactly the ones you attempt to decry: ie attacking a messenger. Hmmm, familiar much with the concept of hypocrisy? Yes, I question the timing. IS there a book coming out from this reporter shortly, or not? Was the Patriot act up for renewal, or not? Address the points. Also, was the article held for a year, or for three months? There is some dispute on that regard. And, also, the election last year was in November. If it had been held for exactly a year, then it would have been too late to affect the election anyways.
And, yes, I'm engaging in an ad hominem against the NYT in just the same way you are engaged in an ad hominem against me. However, given the NYT's abysmally biased and pointedly partisan propogandage, I think I am more than a little justified in doubting their impartiality, honesty, and reliability at this point.
The point you also duck is that the 'impeach Bush' lunatic fringe wails about Plame's name getting publicised, even though she had been previously compromised, but now that a program is outed that has actual real security implications comes around, there's not even the slightest interest about securing covert operations anymore.
The blame Bush crowd is simply once again demonstrating that no matter what happens (Katrina, terrorism outside of Iraq, terrorism inside of Iraq, oil prices, global warming, global warming on Mars) it's all Bush's fault. They had their shot at getting Bush out of office during the last election. They failed. They need to get over it. But they also need to understand that they do not look like the avatars of freedom and democracy when they reject completely the outcome of a democratic election that just happens to not go the way they would prefer. Frankly, they seem like children.
They're even more stupid and silly than the über-right people who were coming up with names to add to the Clinton Death List. Those guys are still out there, too, you know. But hardly anyone hears from or even about them -- since they aren't running the NYT.
Posts: 218 | Registered: Mar 2005
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quote:Furthermore, they invited Congress to act and fill the void, which it did, with FISA. If the President went beyond FISA in that demesne, he lacked proper authorization.
That's an awful perfunctory chain of reasoning to reach such a sweeping conclusion. You have entirely ignored the constitutional arguments about whether the President needs authorization from Congress to do this.
quote:The committees dealing with such things are not empowered to say Congress is okay with anything they feel like, it may very well be Congress as a whole would not have granted the President such power.
Congress as a whole delegated to the intelligence committees the power to receive updates from the President about foreign intelligence matters. The reason for that delegation was to help maintain security by limiting the number of recipients while allowing a delegated set of individuals oversight and the chance to bring matters to the attention of the House if they thought further legislative action was needed.
quote:Congress does not have the power to make decisions outside certain channels; even Congress cannot act or authorize action outside the laws it passes without changing the law, matter how much it, or more properly a small part of it, "consents".
The authorization of one method of initiating surveillance does not automatically make other methods illegal. At most, all you've done is show that these were not authorized by FISA. That does not mean they were illegal.
quote:Especially as we are not aware of the manner in which notice was given. If Congress were merely given a list of those people in the US under surveillance by the various agencies, they may well suppose that surveillance was being conducted under FISA. There are numerous other potential scenarios.
The article shows that at least one democrat on the committee and a FISA judge had reservations (not serious enough to attempt to stop it, though); in the context of the article, it's clear they knew this was not being conducted under FISA.
Things crossing the border are covered by very different rules than things that don't. It's not a violation of the fourth amendment to search incoming or outgoing cargo, for instance. These were international calls which could have been intercepted outside the U.S.
Posts: 26071 | Registered: Oct 2003
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It's from a presidential order signed by the president. The ability to do so under the constitution is being argued to derive from the president. So, if the articles we have seen are correct, it's hard not to see how the blame doesn't basically lie with Bush.
Did he inform some members of Congress? Apparently. Did they have a choice in whether or not the wiretaps could take place? We don't know, but considering the purported facts of the first article, it doesn't seem like they did.
Posts: 13123 | Registered: Feb 2002
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quote:And, yes, I'm engaging in an ad hominem against the NYT in just the same way you are engaged in an ad hominem against me.
If you are engaging in an ad hominem attack then it is not an ad hominem attack to point out that you are engaging in an ad hominem attack. If you admit that you are just engaging in an ad hominem attack, you should probably admit that you are wrong, because an ad hominem attack is not a valid argument.
quote:The blame Bush crowd is simply once again demonstrating that no matter what happens (Katrina, terrorism outside of Iraq, terrorism inside of Iraq, oil prices, global warming, global warming on Mars) it's all Bush's fault. They had their shot at getting Bush out of office during the last election. They failed. They need to get over it. But they also need to understand that they do not look like the avatars of freedom and democracy when they reject completely the outcome of a democratic election that just happens to not go the way they would prefer. Frankly, they seem like children.
So when someone is elected President, they get the right to ignore the law whenever they want? And nobody should complain about it?
Posts: 8120 | Registered: Jul 2000
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Somehow the president and his ilk don't look like the avatars of freedom and democracy either.
Posts: 9942 | Registered: Mar 2003
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And were they intercepted outside the US, that would be one thing, as the SC decisions make clear. They were, however, intercepted inside the US.
quote:Congress as a whole delegated to the intelligence committees the power to receive updates from the President about foreign intelligence matters. The reason for that delegation was to help maintain security by limiting the number of recipients while allowing a delegated set of individuals oversight and the chance to bring matters to the attention of the House if they thought further legislative action was needed.
All true, and all nearly irrelevant to my point. That the intelligence committees did not choose to pursue something does not legalize it, it merely minorly strengthens potential arguments that it was within the intent of Congress to allow it (and even the intent of Congress is not the final word, particularly if the laws themselves by clear wording contradict that, or if the intent is too vague under the Constitutional protections we enjoy).
You're quite right that the authorization of one method of surveillance does not make other methods illegal, but part of the tests the courts seem to always use with these cases is whether or not what authorizes is sufficiently narrow, and the court demonstrates several times extreme skepticism about executive power to act outside Congressionally proscribed surveillance -- note, again, the invitation for Congress to act in a case involving executive branch investigation.
Posts: 15770 | Registered: Dec 2001
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quote:And were they intercepted outside the US, that would be one thing, as the SC decisions make clear. They were, however, intercepted inside the US.
What the Supreme Court makes clear is that it has not ruled the interception of international communications from within the U.S. to be unconstitutional, whether authorized by Congress or not.
quote:All true, and all nearly irrelevant to my point. That the intelligence committees did not choose to pursue something does not legalize it, it merely minorly strengthens potential arguments that it was within the intent of Congress to allow it (and even the intent of Congress is not the final word, particularly if the laws themselves by clear wording contradict that, or if the intent is too vague under the Constitutional protections we enjoy).
Then your point is nearly irrelevant to the reason I brought up the reporting. You also haven't even touched on reasons why this would contravene constitutional protections, so I'm not sure why you'd think that strengthens your case here.
And, in presidential powers cases (not rights cases), failure to act by Congress when it could have can lend a presumption of constitutionality to the president's actions. See Frankfurter’s Youngstown concurrence for what has become SCOTUS's accepted doctrine on the subject.
quote:You're quite right that the authorization of one method of surveillance does not make other methods illegal, but part of the tests the courts seem to always use with these cases is whether or not what authorizes is sufficiently narrow, and the court demonstrates several times extreme skepticism about executive power to act outside Congressionally proscribed surveillance -- note, again, the invitation for Congress to act in a case involving executive branch investigation.
See Dames & Moore for a recent example during the Iranian hostage crisis, where Congress gave explicit powers to seize assets under the IEEPA. Carter not only seized assets, he also suspended claims (an act with very serious due process implications). Although not authorized by Congress, Congress's silence coupled with the President's natural authority in foreign relations made the suspensions a constitutional exercise of presidential authority.
Take a second to realize the implications: the President's suspension of judicial actions that were protected by the 5th amendment was found constitutional even though Congress had already narrowly acted in a very related matter.
Posts: 26071 | Registered: Oct 2003
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Actually, with regards to intercepting information from outside of a country coming in, this has been done to great extent within our borders; I could go back to the war of 1812 as a time which we did so, hoping to flush out those who were working against the government, but more recent examples also apply.
In flushing out John Walker, this exact same method was used. John Walker was a KGB agent working for the FBI. He fed the KGB information in return of cash and goods.
Because no one knew how deep the penetration was at governmental levels, even attempts to go to a body such as FISA bore the risk of exposing the fact that the government was "on to him"
By executive orders, surveillence as well as taps on his ex-wife's phone (Barbara Walker). All of this flushed him out.
So, how was this done? Well, here is another level to consider: as part of Walker's taking his position within the government, etc. he agreed to follow the code of the government.
If you are a member of the military, secret service, or you are in the employ of the law enforcement branches of any government, state or local, you may be subject to surveillence which can be done as a handling of your employer-employee contract. Though this is exceedingly rare that it does not go through a court at a local level (with the exception of bribery cases) on the federal level, with regards to members of the military, etc. the Uniform Code of Military Justice allows for your superiors to manage your contact - especially all contacts with a foreign "power" (that's how it is phrased, though it could mean individual).
I am not saying "hey, this is a great policy!" I'm just saying those calling from criminality of the event have to realize there are so many levels at work here that there is a great deal of understanding that has to happen before any sort of conclusion could ever be reached.
I do agree this could have almost entirely been avoided had the NSA/CIA tapped international transit lines or satellite feeds in international call routing, as their charter fully allows for such activities outside of the US; whereas if this comes down to taps placed directly inside the US, it would come under the war powers & espionage acts, and gets into murkier water.
Posts: 202 | Registered: Aug 2005
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quote: And, in presidential powers cases (not rights cases), failure to act by Congress when it could have can lend a presumption of constitutionality to the president's actions.
Remember my comment about being no fan of bad precedent? Posts: 37449 | Registered: May 1999
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Remember my comment about the difference between saying something is bad precedent and calling for criminal conviction of the person who establishes it? Posts: 26071 | Registered: Oct 2003
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Dagonee: Yes, let us look at Dames & Moore.
Congress's actions in that regard were not, as you assert, narrowly tailored. Indeed, the justices note the powers granted by the IEEPA are very broad, and merely do not extend to the case in question, and even that "the broad language of the Hostage Act suggests it may cover this case".
Furthermore, they note there is no doubt the US gov't is entitled to act to settle the claims of its nationals. The only question before the court is whether the President was authorized to do so in this case. Furthermore, Congress had acted to allow a nearly exactly parallel situation with Yugoslavia in a bill that specifically entertained the notion of further such situations, and has frequently amended that act to cover such situations, bowing to the President's appraisal of need in each instance.
Congress had also specifically considered legislation regulating Presidential ability to negotiate settlement of claims with other countries, yet only passed legislation requiring notification in such a case.
It is not that Congress had acted narrowly in a related manner that allowed the president to suspend claims, it is that Congress had acted broadly in authorizing virtually identical instances of claims suspension, and had clearly given the president significant discretionary power through legislation. Congress specifically did not enact significant oversights on the President's power to do this.
This case is very different. It is not clear any part of the gov't has the power to do this. Congress has previously acted specifically to limit various agencies' ability to do this, in their very charters. Congress actually did act narrowly (rather than generally), imposing significant oversights on the President's power to authorize such surveillance, oversights involving the evaluation of judges. The President explicitly acted outside those oversights, unlike in Dames & Moore where the President acted within them (by notifying Congress as legislated).
Posts: 15770 | Registered: Dec 2001
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quote:Congress's actions in that regard were not, as you assert, narrowly tailored. Indeed, the justices note the powers granted by the IEEPA are very broad, and merely do not extend to the case in question, and even that "the broad language of the Hostage Act suggests it may cover this case".
They were narrowly tailored with respect to subject matter - i.e., siezure, not with respect to what could be siezed.
quote:Furthermore, they note there is no doubt the US gov't is entitled to act to settle the claims of its nationals. The only question before the court is whether the President was authorized to do so in this case.
Nor is there any doubt that the U.S. government is entitled to act to protect the U.S. from invasion and other attacks on our soil.
quote:Furthermore, Congress had acted to allow a nearly exactly parallel situation in Yugoslavia in a bill that specifically entertained the notion of further such situations, and has frequently amended that act to cover such situations, bowing to the President's appraisal of need in each instance.
And yet hadn't done so in the case in question.
quote:It is not that Congress had acted narrowly in a related manner that allowed the president to suspend claims, it is that Congress had acted broadly in authorizing virtually identical instances of claims suspension, and had clearly given the president significant discretionary power through legislation.
Broadly based on the national identity of the assets. Suspension of claims is not seizure.
quote:Congress specifically did not enact significant oversights on the President's power to do this.
Nor has congress specifically enacted significant oversights on the President's power to conduct foreign surveillance.
quote:This case is very different. It is not clear any part of the gov't has the power to do this.
Absolutely untrue. Probable cause is not needed for interception of foreign communications, just as it's not needed for interception and search of foreign goods.
quote:Congress has previously acted specifically to limit various agencies' ability to do this
Wrong. Congress has previously acted specifically to limit various agencies' ability to do something different - intercept domestic communications.
quote:Congress actually did act narrowly (rather than generally), imposing significant oversights on the President's power to authorize such surveillance, oversights involving the evaluation of judges.
Again, your conflating international v. domestic communications. It's not clear that Congress has the power to eliminate the President's power to intercept foreigh communications, except through the power of the purse.
quote:The President explicitly acted outside those oversights, unlike in Dames & Moore where the President acted within them (by notifying Congress as legislated).
Except that the President did notify Congress through Congress's designee.
Posts: 26071 | Registered: Oct 2003
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The IEEPA authorized far more than siezure, it was with respect to what could be siezed (edit: voided/et cetera) that prevented it from being used on claims.
Congress has enacted significant oversights, that's what the very existence of FISA is -- the creation of an entire court to oversee certain "warrants" (though not in the usual sense) for surveillance, even after the President or AG has authorized the request. And FISA does deal with cases where the one party is out of the US and the surveillance occurs inside the US, which is the case here, invalidating your position that Congress has not acted to limit such actions.
That goods being sent into the US can be searched regardless of the fifth amendment does not imply that communications with someone outside the US may be monitored inside the US. For one, goods are not communications, as the SC has been abundantly willing to note. For another, the situations are not particularly analogous, and have long been subject to widely divergent treatment in statute and court.
As for your last, you're misunderstanding me. I talked about how Congress's legislatively created constraints were followed in Dames & Moore (through notification), which the SC noted in its opinion. FISA, which created constraints on the ability of agencies to intercept communications inside the united states (the interception occurring inside the US, not the communications), did not have its constraints followed, though some small part of them were (that notification).
Plus, given the outrage of many members of Congress at this revelation, it is going to be increasingly hard to argue that Congress approved of this in anything like the same way Congress approved in Dames & Moore, where almost identical actions were repeatedly and publicly approved by the whole of Congress. This would seem especially relevant given to the great extent the court went in Dames & Moore in specifying the extremely limited nature of their decision -- this situation would be a vastly broader interpretation of consent than was taken in that case.
edit: oh, and many of the restrictions on surveillance, such as those put on the CIA in its charter, are applicable in this situation (though they have in some ways been edited, now). For instance, the CIA was forbidden from acting inside the US -- the interceptions in these cases took place inside the US. That's a prior action by Congress that deals with matters exactly of this sort. I am not sufficiently familiar with the NSA's charter to comment on how the locales of their action are limited.
Posts: 15770 | Registered: Dec 2001
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quote:FISA, which created constraints on the ability of agencies to intercept communications inside the united states (the interception occurring inside the US, not the communications)
Can you cite this? My recollection is that foreign communications (both end points foreign) can be intercepted within the U.S. with no FISA involvement whatsoever, but I can't find the source for that recollection right now.
I'll get back on the rest later.
Posts: 26071 | Registered: Oct 2003
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Hmm, FISA may not apply where both endpoints are foreign but interception is in the US. It does specify it applies to interception in the US, but that is elsewhere qualified by applying only to communications involving someone in the US (I forget if its anyone, a national, or a citizen).
However, these instances are where one person is in the US, and specifically where some are citizens as well.
Posts: 15770 | Registered: Dec 2001
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Does it specify communications with only one endpoint in the U.S.? Or does it use words like "originating in the U.S."? I can't remember.
Posts: 26071 | Registered: Oct 2003
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quote:(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any person thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. to acquire foreign intelligence information.
At least some of the instances described pretty clearly fall under this multipart definition (mainly 1), as targets have been mentioned as including "United States person"s.
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