View Full Version : Bush allowed NSA to spy within USA without warrants
The president has defined the theater of war as including the territory of the United States and including citizens of the United States; he has also defined the war as without end. So his war powers, although moderate in effect compared to what, say, Lincoln and FDR got away with, are exponentially more far-reaching. Because this war is forever, as Jon Rauch explains in his latest National Journal column (not online yet). And countless future presidents will be given the right to ignore, flout or finesse domestic law if they so wish. I wonder how many Republicans will object when president Hillary is wiretapping their private conversations. They'd better speak up now, hadn't they?
A new player to the table, Hello
Actually a theater of war is wherever there is combat. Given most take 9/11 as the formal divide between what was before and an American response, U.S. Territory is implicitly a theater of war. (one could also argue this applies wherever the show "American Idol" or one of its cousins is on the air or scheduled.)
As far as the end of war: that occurs when there is victory. Whether that takes 5 years like WWII, 8 years like the Revolutionary War, or 27 years like the Peloponnesian War is not relevant.
Tribesman
01-07-2006, 15:50
Alas, no read the Times article again.
Still refusing to address the issue Pindar ?
Actually it was an NSA admission and unless you wish to argue this was systemic, intentional and under direction of the President it is not relevant to our discussion.
It is the job of the judicil inquiry to see if it was systematic , intentional or under the direction of the President .
Feel free to bury your head in the sand until the commitee has made its findings , until then all your legal arguements are irrelevant Pindar .
Alas, no read the Times article again.
Still refusing to address the issue Pindar ?
Actually it was an NSA admission and unless you wish to argue this was systemic, intentional and under direction of the President it is not relevant to our discussion.
It is the job of the judicil inquiry to see if it was systematic , intentional or under the direction of the President .
Feel free to bury your head in the sand until the commitee has made its findings , until then all your legal arguements are irrelevant Pindar .
A bystanders observation for just a second.
The legal arguements are relevant in that the actual facts of the matter are not available, legal arguements provide an understanding of what laws might or might not have been violated.
Pinder's arguement is based upon legal precedent, which is important to understanding the matter.
Your arguement seems to be based upon the words If, and possible violations of the laws. While it makes for good rhetoric, it lacks substance when speaking of criminality of the act. Since there is no proof of wrong doing - just admissions of negilence by an agency involved. Evidence of errors having occured, and statements of negilence by an agency involved does not prove intent nor does it prove a criminal act has been done. What it does show is that the law is not as well regulated nor does it seem that the government is using the law as it was orginally intended. I could not have come to that conclusion without having seen Pindar's legal arguement on the matter.
The news story does not have the facts of the matter, and until the investigation is completed and release the discussion of what the law actually states and how it has been applied in the past is just as revelant to the discussion as your statements and suppositions in the matter.
What the discussion shows is that if the current law is badly written as it seems on the surface then it needs to be reviewed by congress and repealed or changed for the better.
Hurin_Rules
01-07-2006, 21:28
As far as the end of war: that occurs when there is victory. Whether that takes 5 years like WWII, 8 years like the Revolutionary War, or 27 years like the Peloponnesian War is not relevant.
Again, you're flatly denying the obvious and refusing to consider the wider issues here. The 'War on Terror' is nothing like WWII. When will there be no terrorism? No one can forsee a point in the future when it will end. Essentially, you're allowing for the permanent declaration of war and the expansion of war powers for the president. Somehow, this is all just mundane and routine to you?
You can parse and splice and utilize your superior training in law to browbeat all the people you want, but even the simlest layman can see several facts. Congressional investigations of this issue will soon begin. Senators and lawyers, many of them Republican, have serious concerns that the law was breached, and most feel that the grey areas in the law and in respect to presidential powers need to be cleared up. This includes a wide range of people, from Republican senator Specter to the lawyers who resigned in protest to the non-partisan congressional committee that called into question the president's legal defense of the program. To not even be concerned about this, and pretend, before all the facts have come out, that it is an 'open and shut' case, is a sad statement on the state of respect for civil liberties in America.
So explain all you want. To tell you the truth, although I value your opinions, I don't assume that you are trying to be objective here, even though you keep claiming it is an 'open and shut' case. You seem to lock yourself into prosecutor mode when discussing these issues, defending the administration without providing the other side of the argument, and always carefully avoiding facts and arguments that would undermine your own. While I'm sure that serves you well in court, it does not help other members to develop balanced opinions, or any of us to discover the truth.
Again, you're flatly denying the obvious and refusing to consider the wider issues here. The 'War on Terror' is nothing like WWII. When will there be no terrorism? No one can forsee a point in the future when it will end. Essentially, you're allowing for the permanent declaration of war and the expansion of war powers for the president. Somehow, this is all just mundane and routine to you?
Then the issue is with Congress not the President. The War Powers Act of 1973 and the Authorization of the use of Force granted to the president by Congress to pursue aggressive action against any terrorist organization.
http://www.luminet.net/~tgort/wpa.htm
They might of meet it to limit the ability of the President, but what Congress has done is use this document to circumvent their obligation and responsiblity under the Constitution.
http://jurist.law.pitt.edu/terrorism/sjres23.htm
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
Criticising another because they don't take your view on things does not bode well, some of what you wrote does not fullfil the obligation to argue the subject, instead is argueing against the individual.
Hurin_Rules
01-07-2006, 23:00
Then the issue is with Congress not the President. The War Powers Act of 1973 and the Authorization of the use of Force granted to the president by Congress to pursue aggressive action against any terrorist organization.
Are you then arguing, Redleg, that the authorization of the use of force also includes the authorization of warrantless wiretaps on US citizens within the USA? Because this is the very argument that the non-partisan congressional research center just called into question as resting on shaky legal grounds:
http://www.msnbc.msn.com/id/10741787/
Criticising another because they don't take your view on things does not bode well, some of what you wrote does not fullfil the obligation to argue the subject, instead is argueing against the individual.
What I said was perhaps a bit harsh, but not out of bounds, and I stand by it. I'm not criticizing him for having an opinion different than mine. I EXPECT to disagree with Pindar on almost everything; that's why I enjoy discussing things with him so much. But by the same token, Pindar is an expert in this field. While this means we all get to benefit from his expertise, it also means that he and has an advantage over all other posters in this regard. He can present things as fact that are controversial, even radical, within the field, and most of us won't notice until long afterwards, or after extensive research. This leads to readers coming away from a discussion with views that are not very informed or objective because of their lack of legal training. This is disappointing.
What I'm saying in a nutshell is this: if you have a particular field of expertise, don't use it against other posters, use it to enlighten other posters. Give your position, by all means. But do have the good grace and courtesy to note significant contrary opinions, and if issues are in dispute, then please note that, rather than presenting only one side as incontrovertible fact. It will help us all make much more informed opinions, rather than simply relishing in flaming one's political opponents.
Are you then arguing, Redleg, that the authorization of the use of force also includes the authorization of warrantless wiretaps on US citizens within the USA? Because this is the very argument that the non-partisan congressional research center just called into question as resting on shaky legal grounds:
http://www.msnbc.msn.com/id/10741787/
Read what the article claims and what I just stated. Its pretty clear to me what I stated.
The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.
The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.
Like I stated both the War Powers Resolution and the Authorization for the use of force are both the works of Congress. The wording is shaking on both, and the ability for the checks and balances of the government becomes questionable. Both acts are open for interpation of the President in office, one can argue intent for all its worth. The Constitution is constantly argued over what was the purpose verus what the intent is. Such losely worded resolution granting the President the powers of Congress by Congress should have never been passed by the august body in the first place.
What I said was perhaps a bit harsh, but not out of bounds, and I stand by it. I'm not criticizing him for having an opinion different than mine. I EXPECT to disagree with Pindar on almost everything; that's why I enjoy discussing things with him so much. But by the same token, Pindar is an expert in this field. While this means we all get to benefit from his expertise, it also means that he and has an advantage over all other posters in this regard. He can present things as fact that are controversial, even radical, within the field, and most of us won't notice until long afterwards, or after extensive research. This leads to readers coming away from a discussion with views that are not very informed or objective because of their lack of legal training. This is disappointing.
I find it refreshing - it forces me to think and research what he states. If someone relies solely on Pinder or anyother for that matter - then whey bother. The arguement here is again not argueing against the opinion and the subject - but toward the man.
What I'm saying in a nutshell is this: if you have a particular field of expertise, don't use it against other posters, use it to enlighten other posters. Give your position, by all means. But do have the good grace and courtesy to note significant contrary opinions, and if issues are in dispute, then please note that, rather than presenting only one side as incontrovertible fact. It will help us all make much more informed opinions, rather than simply relishing in flaming one's political opponents.
Why? I haven't seen to many poster do exactly that, to include myself. I am only expressing my opinion and my knowledge, that is all I expect of others.
Adrian II
01-07-2006, 23:51
(..) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title.Observe how it does not mention section 1801 (a)(4). That section concerns not 'foreign powers' but 'a group engaged in international terrorism or activities in preparation therefor'. In this case, the quasi open-ended one year authority of surveillance does not apply.
Besides, 1802 (B) states as a requirement that 'there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party'.
The latter seems to be the case notwithstanding cleverly contrived Conservative constructions concerning a counter-insurgency consensus.
:idea2:
Hurin_Rules
01-08-2006, 19:23
Why? I haven't seen to many poster do exactly that, to include myself. I am only expressing my opinion and my knowledge, that is all I expect of others.
Because of expertise and courtesy. Here's an example. Say someone brought up an issue that related to my field of expertise. Say, they were arguing that the Catholic stance on celibacy is correct. I could wade in and say, yes, it absolutely is, and if you look at the transitions in canon law in eleventh century Italy, the Catholic stance is an 'open and shut' case. I could point to the systematic canonical compilations of the 'Gregorian Reform', noting the arguments contained in many of the collections that I have seen but that are not even edited (I.e. they exist only in manuscripts in the vatican), much less translated. I could cite the collections of Bonizo of Sutri, Anselm of Lucca and Ivo of Chartres. I could probably go pretty far to convince you that I am right and it is an 'open and shut' case, because I have the training and access to the sources that you do not. Of course, to do all this, I'd have to carefully exclude contrary opinions and evidence. I'd have to decline to mention that thousands of people in the eleventh century disagreed with the papacy's stance. I'd have to overlook the contrary legal collections that argued the opposite, the fact that there was no single, universally-acknowledged collection of canon law at the time, and the long history of priestly marriage in Western Europe. I'd have to neglect to mention that the issue of priestly celibacy actually helped spark a massive and bitter civil war that killed tens of thousands of people.
But at some point I'd have to ask myself: am I helping to inform my fellow posters and honestly seeking the truth, or just using my expertise to manufacture consent for my position?
A new player to the table, hello.
Hardly a player -- more of a peanut gallery. But even though I'm not a player, neither am I a player-hater. Peace! Respeckt! Booyakasha!
But at some point I'd have to ask myself: am I helping to inform my fellow posters and honestly seeking the truth, or just using my expertise to manufacture consent for my position?We're not arguing if something is "right" but if it is legal. You also seem to be implying that Pindar is being somehow dishonest because he isn't finding caselaw that is supporting of your argument- that's an assumption on your part isnt it?
Soulforged
01-09-2006, 00:25
We're not arguing if something is "right" but if it is legal. You also seem to be implying that Pindar is being somehow dishonest because he isn't finding caselaw that is supporting of your argument- that's an assumption on your part isnt it?
What's just and what's right is hte same. Wha's just is legal, if legal is not just is not legal. Simple as that, if the discussion is about legallity then it's about what's right. If the discussion is about form then the form can be pretty unjust sometimes.
the Good Guys: Alas, no read the Times article again.
Still refusing to address the issue Pindar ?
This looks familiar. A repost: "What issue (isn't being addressed) here? Do you want to suggest the above is an issue and I am dodging it? Why would that be? Are you claiming to be a source of understanding U.S. jurisprudence? Have you offered any analysis that would demonstrate that idea? Have you offered any argumentation at all? As I look over the pass few pages of your posting: I can't really see any arguments, just the kind of comments like the above. If the above isn't an issue (which seems obvious) and it isn't an argument (which is equally clear) then what is being offered that would require a dodge? What is being offered of substance? Tell you what, so we can avoid these nasty dodge problems: put forward your substantive legal argument: your qualitative proof that makes the case for Presidential malfeasance clear for all as a reply to this post and we will go into it."
Me:
As far as the end of war: that occurs when there is victory. Whether that takes 5 years like WWII, 8 years like the Revolutionary War, or 27 years like the Peloponnesian War is not relevant.
Again, you're flatly denying the obvious and refusing to consider the wider issues here. The 'War on Terror' is nothing like WWII. When will there be no terrorism? No one can forsee a point in the future when it will end. Essentially, you're allowing for the permanent declaration of war and the expansion of war powers for the president. Somehow, this is all just mundane and routine to you?
Failure to know when a conflict will end does not invalidate the fact there is a conflict and that an ending is based upon victory. Moreover, whether victory may involve more factors than the erasure of a nation state is also irrelevant to the determination of conflict in general and victory as the conclusion. That the President should have at his disposal the powers to achieve victory seems to me obvious.
Yes, the NSA program is legally mundane.
What I'm saying in a nutshell is this: if you have a particular field of expertise, don't use it against other posters, use it to enlighten other posters. Give your position, by all means. But do have the good grace and courtesy to note significant contrary opinions, and if issues are in dispute, then please note that, rather than presenting only one side as incontrovertible fact. It will help us all make much more informed opinions, rather than simply relishing in flaming one's political opponents.
My Good Hurin, there are no significant contrary opinions I'm aware of. The only possible exception would be the CRS Report that came out after this thread had already begun. I have commented on that report. It is not impressive. As I explained, the report couched its rhetoric around the Jackson opinion which doesn't give weight to any real criticism of the program. This is why the CRS Report itself ended up stating things like the following:
"As this discussion suggests, ... some support may be drawn from the Court of Review's decision in In re Sealed Case for the position that the President continues to have the power to authorize warrantless electronic surveillance to gather intelligence outside the FISA framework. Whether such authority may exist only as to those areas which were not addressed by FISA in its definition of "electronic surveillance" or is of broader sweep appears to be a matter with respect to which there are differing views."
The problem is of course the "differing views" noted here, are the consistent and uncontradicted court rulings, all of which support the Administration's stance.
Observe how it does not mention section 1801 (a)(4). That section concerns not 'foreign powers' but 'a group engaged in international terrorism or activities in preparation therefor'. In this case, the quasi open-ended one year authority of surveillance does not apply.
Besides, 1802 (B) states as a requirement that 'there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party'.
My friend, you are misunderstanding my view. My position has not been to justify the NSA Program according to anything found in FISA. The only reason I mentioned FISA was to show the two fellows you mentioned didn't seem to have actually read the law they were commenting on.
My stance has been that neither FISA or any legislation by Congress can take away the President's inherent Constitutional power. I illustrated this through example, as in Congress could not declare the President's veto power void.* I have then shown how this view has been the consistent position of the courts as well (there are no exceptions). I cited four or five basic cases relating to surveillance to illustrate the point. This is why attempted legal criticism of the NSA program is a non-starter. Let me quote from the most recent 2002 In re Sealed Case again for emphasis:
"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
*The same logic would apply to the President's inability to invalidate Congressional statute by Executive Order.
The latter seems to be the case notwithstanding cleverly contrived Conservative constructions concerning a counter-insurgency consensus.
:idea2:
Any penchant to pillory the President's program is legally paltry and pained on its face. ~;)
Tribesman
01-10-2006, 00:37
Tell you what, so we can avoid these nasty dodge problems: put forward your substantive legal argument: your qualitative proof that makes the case for Presidential malfeasance clear for all as a reply to this post and we will go into it."
Nope , since the inquiry hasn't even started sitting yet .
Until then we cannot know if aspects of the program were indeed illegal .
It is futile for you to keep repeating that the basis of the program is legally covered , as you do not know if the program kept within these legal parameters .
This looks familiar. A repost:
If you want a repost ......
Your position is exactly like replying to a subject alledging drink driving and you entirely focussing on if the driver in fact had a drivers licence at the time of the alledged alcohol technicality .
You are still explaining how a drivers licence was issued .
So to repost the issue I am concerned with ....
No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .
And that is what the inquiry will decide .
So you can post all the case histories you want , they only deal with the setting up of the program , the inquiry should find if the program has been run correctly in accordance with the legislation you cite .
Tell you what, so we can avoid these nasty dodge problems: put forward your substantive legal argument: your qualitative proof that makes the case for Presidential malfeasance clear for all as a reply to this post and we will go into it."
Nope , since the inquiry hasn't even started sitting yet .
Then your "contribution" to the thread is at an end.
As a final retort to you other post's elements:
Until then we cannot know if aspects of the program were indeed illegal .
It is futile for you to keep repeating that the basis of the program is legally covered , as you do not know if the program kept within these legal parameters .
The mere fact you have posted the above as you have demonstrates a base misunderstanding of the issue.
If you want a repost ......
Your position is exactly like replying to a subject alledging drink driving and you entirely focussing on if the driver in fact had a drivers licence at the time of the alledged alcohol technicality .
You are still explaining how a drivers licence was issued .
"Your driving example would be better if someone questioned whether Sheriff George had the authority to drive at night. After it was explained: "yes, his license does allow driving at night" to then find the questioner saying: "But, what if he were drunk?" To which, the reply would be: "evidence?""
Tribesman
01-10-2006, 02:09
Then your "contribution" to the thread is at an end.
:laugh4: :laugh4: :laugh4:
The mere fact you have posted the above as you have demonstrates a base misunderstanding of the issue.
Not at all , there are questions to the legality of the actions that were undertaken .
The questionable actions have been described as mistakes and technical glitches .
Those questionable actions will be addressed by the inquiry, that is generally why there are such commitees , to check if the actions taken went beyond those that are allowed to be taken .
The issue is not past rulings as such , but whether the actions taken are in compliance with those rulings .
"Your driving example would be better if someone questioned whether Sheriff George had the authority to drive at night. After it was explained: "yes, his license does allow driving at night" to then find the questioner saying: "But, what if he were drunk?" To which, the reply would be: "evidence?""
To which the reply would be wait for the inquiry to view the evidence .
You claim that this is a mundane open and shut issue .
People in the AGs office and the Senate judicial commitee do not agree with you . Perhaps you have access to more information than they do .:no:
Hurin_Rules
01-10-2006, 17:39
The problem is of course the "differing views" noted here, are the consistent and uncontradicted court rulings, all of which support the Administration's stance.
Ok Pindar, but just for the record then, can you clear up a few things for me:
1. Are you arguing that the president could still have done wiretaps on US citizens, on phonecalls from US sites to US sites, without the congress's resolution authorizing him to use force in the War on Terror?
2. How and to what does FISA apply?
3. Could you also please comment on the relevance of the following cases:
--The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejecting President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Also, in regards to this case, whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program.
--The supreme court case, Hamdi v. Rumsfeld, from 2004, in which the court allowed a man held without charges as an enemy combatant to challenge his detention, over the objections of the Bush administration.
--To what extent the fundamental principle of judicial review over the exercise of governmental power comes into play in regards to presidential power.
I know that's a lot of questions, so take your time. I haven't had much time to post here myself lately. But these are some of the issues that are coming up at Alito's hearings:
http://www.nytimes.com/2006/01/10/politics/politicsspecial1/10legal.html?hp&ex=1136955600&en=239e2bb759c25461&ei=5094&partner=homepage
Ok Pindar, but just for the record then, can you clear up a few things for me:
OK.
1. Are you arguing that the president could still have done wiretaps on US citizens, on phonecalls from US sites to US sites, without the congress's resolution authorizing him to use force in the War on Terror?
No.
2. How and to what does FISA apply?
FISA applies to domestic surveillance of Americans. It was passed in 1978 partially in response to the nastiness of the Nixon Whitehouse.
3. Could you also please comment on the relevance of the following cases:
--The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejecting President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Also, in regards to this case, whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program.
This is from the Youngstown Sheet and Tube Co. v. Sawyer (1952) case I have mentioned earlier. Justice Jackson wrote a concurring opinion. In his opinion he broke Presidential power down into three basic categories: when the President acts congruent with Congressional authorization, when the President acts in the absence of any Congressional grant or denial and when the President acts contrary to the implied will of Congress. This is the opinion that the two lawyers at the CRS used to couch their argument. Given the stance they wanted to take, this was a mistake on their part because while it is certainly the case Jackson looks at the scope of power vis-a-vis other branches, the primary thrust is the core notion that the President does indeed have Constitutionally invested powers. Here are a couple quotes from the opinion I noted earlier in the thread:
"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.."
and
"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty."
The passing of the AUMF would invigorate the President's Article II powers and seem to move the discussion of the NSA Program into the strongest representation where the President's inherent powers are joined by Congressional authorization.
--The supreme court case, Hamdi v. Rumsfeld, from 2004, in which the court allowed a man held without charges as an enemy combatant to challenge his detention, over the objections of the Bush administration.
Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. Part of the Court's ruling included a reinforcement of Presidential inherent authority. I will give you a couple quotes.
"We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."
and
"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force]."
This second quote is interesting because the Supreme Court again refused to place or speak to any restriction of the President's inherent Constitutional authority. This is the same stance taken in the 72 Keith case I have explained earlier. Here is the quote from the Keith ruling:
"We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents."
--To what extent the fundamental principle of judicial review over the exercise of governmental power comes into play in regards to presidential power.
This is a big question. Regardless the theoretically strained position Judicial Review occupies, it has become normative in American Jurisprudence. Therefore should SCOTUS rule the President or any branch of government does not hold power X or should do Y this has typically led to compliance from the other branches. A SCOTUS ruling can reverse a previous SCOTUS ruling or go counter to all previous understanding of a law or legal principle. There are examples of this though it is not considered the norm. If SCOTUS were to directly challenge the President's right to gather foreign intelligence in order to protect the nation a couple of possibilities arise. One, the President backs down. Two, the President refuses to recognize any SCOTUS authority to speak to his principle charge of office. If the second were to happen it would mean a Constitutional crises.
I know that's a lot of questions, so take your time. I haven't had much time to post here myself lately. But these are some of the issues that are coming up at Alito's hearings:
I hope that helped. :flowers:
Hurin_Rules
01-11-2006, 18:35
Thanks, Pindar.
A few follow ups then, if I may.
You seem to be arguing, then, that only the AUMF gave the president the authority to conduct the specific type of wiretaps I mentioned. I find it hard to believe that the congressmen and women who authorized force believed that the type of surveillance in question constituted 'military force'. Maybe you could walk me through the argument here that maintains that 'surveillance' is 'force'?
The congressional research service specifically called this argument into question:
The report was particularly critical of a central administration justification for the program, that Congress had effectively approved such eavesdropping soon after the Sept. 11, 2001, attacks by authorizing "all necessary and appropriate force" against the terrorist groups responsible. Congress "does not appear to have authorized or acquiesced in such surveillance," the report said, adding that the administration reading of some provisions of federal wiretap law could render them "meaningless."
Here's the full article:
http://www.nytimes.com/2006/01/07/politics/07nsa.html
This is a big question. Regardless the theoretically strained position Judicial Review occupies, it has become normative in American Jurisprudence. Therefore should SCOTUS rule the President or any branch of government does not hold power X or should do Y this has typically led to compliance from the other branches. A SCOTUS ruling can reverse a previous SCOTUS ruling or go counter to all previous understanding of a law or legal principle. There are examples of this though it is not considered the norm. If SCOTUS were to directly challenge the President's right to gather foreign intelligence in order to protect the nation a couple of possibilities arise. One, the President backs down. Two, the President refuses to recognize any SCOTUS authority to speak to his principle charge of office. If the second were to happen it would mean a Constitutional crises.
Well that's quite interesting too: the president claims a power, SCOTUS denies he has it. There's no check or balance inherent in the system to resolve this?
Well that's quite interesting too: the president claims a power, SCOTUS denies he has it. There's no check or balance inherent in the system to resolve this?
Yes there is - the Legislative Body steps in and drafts a constitutional amendment to either grant or prevent the Executive Branch that spefic power.
Thanks, Pindar.
A few follow ups then, if I may.
Sure.
You seem to be arguing, then, that only the AUMF gave the president the authority to conduct the specific type of wiretaps I mentioned.
No, that is not my stance. I have argued that the President has plenary authority to conduct foreign intelligence (including warrantless surveillance) based on his independent Constitutional purview and charge of office. The AUMF may enhance that charge (as it would then mean two branches of government were united in purpose) but the base authority of the President is distinct.
I find it hard to believe that the congressmen and women who authorized force believed that the type of surveillance in question constituted 'force'. Maybe you could walk me through the argument here that maintains that 'surveillance' is 'force'?
Let me quote from Omnibus Crime Control and Safe Streets Act of 1968:
"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."
The argument would be: the use of force involves waging war, in short killing. In order to wage war effectively (know who and what to kill) and thereby win, intelligence is essential. Therefore implicit in any implementation of force is the intelligence gathering to use that force. If I recall, I think the Hamdi case actually uses language very similar to what I just noted.
The congressional research service specifically called this argument into question:
Actually I think the 44 page report is more circumspect. The CRS noted:
Most of the report centers its rhetoric around conditionals like: "might be contended that," "might be argued", "given such uncertainty", "does not seem to be as well-grounded as the tenor of that (Dept. of Justice) letter suggests" etc. Such is not the stuff of a strong legal argument. Then when the CRS report is compared with the actual case history things start to look even worse. The CRS Report even noted:
"Court cases evaluating the legality of warrantless wiretaps for foreign intelligence purposes provide some support for the assertion that the President possesses inherent authority to conduct such surveillance."
In fact, there are no cases that are exceptions. The legal history is consistent.
Well that's quite interesting too: the president claims a power, SCOTUS denies he has it. There's no check or balance inherent in the system to resolve this?
The Constitution was designed with an inherent tension as each branch derives its basic authority from the text itself. Judicial Review is not something actually in the Constitution. It is a power the Court has assumed and tradition has adhered to, but in principle is problematic. Even so, if there were some scenario where the Court directly confronted the President over base Constitutional powers and the President rejected their stance, there is the third branch of government that could weigh in as Redleg described.
Hurin_Rules
01-15-2006, 22:05
Just got back in town. I've read your posts and will respond to it in more detail once I've settled in--I don't think the argument that 'surveillance' is included in the authorization of 'force' is very strong (you find it compelling, do you?), and in fact even Republican senator and former federal prosecutor Specter seems to have rejected that argument--but I thought I'd post this article I happened upon right now.
I'm just wondering how a former federal prosecutor and chairman of the senate judiciary committee could be so wrong on an open and shut case :) Does he perhaps have access to information that we do not?
Specter Expresses Doubts About Surveillance Program
By BRIAN KNOWLTON,
International Herald Tribune
Published: January 15, 2006
WASHINGTON, Jan. 15 - The chairman of the Senate Judiciary Committee expressed new doubts today about President Bush's domestic surveillance program, even mentioning impeachment as one of several potential remedies, should the president be found to have violated the law.
The chairman, Senator Arlen Specter, Republican of Pennsylvania, couched his comment carefully, noting that while it was a theoretical possibility, "I don't see any talk about impeachment here."
Criminal prosecution was another possibility, he said, while the most likely outcome was simply that Mr. Bush might pay a political cost among those who believed Americans' right to privacy was being infringed.
But the fact that a senior Republican - let alone the Judiciary Committee chairman -- would even mention the possibility of a president of his own party being impeached was striking, appearing to underscore Mr. Specter's deep unhappiness over the program.
That sentiment is shared by a number of lawmakers of both parties, while others have stoutly defended the measure as necessary to defend against terrorism.
The New York Times reported last month that after the terror attacks of Sept. 11, 2001, President Bush had empowered the National Security Agency to bypass a special court established by Congress to handle sensitive intelligence matters and to electronically eavesdrop on people in the United States believed to be communicating with terror suspects abroad.
Senator Specter initially raised strong objections after the Times's account was published in December, questioning Bush administration arguments that the special court moved too slowly at times when security officials were seeking to prevent potentially disastrous attacks.
Mr. Bush and other administration officials have asserted that a Congressional resolution passed after Sept. 11, authorizing the use of force to combat terrorism, provided legal justification for the surveillance program.
"I thought they were wrong," Mr. Specter said today on ABC, while allowing that a president's wartime powers are "a knotty question."
Senator Specter plans to hold open Judiciary Committee hearings early next month on the program. The White House at first opposed hearings, but on Wednesday, Mr. Bush said that a public airing of the question would be "good for democracy," so long as the hearings did not "tell the enemy what we're doing."
The Pennsylvania senator said today that he did not question that "the president is making a good-faith effort" to fight terrorism as he deemed best.
Still, the senator said, "we're not going to give him a blank check, and just because we're of the same party doesn't mean we're not going to look at this very closely."
Mr. Specter, a former federal prosecutor, has often taken positions independent of the Bush administration.
Last year, Republicans threatened to block his rise to the Judiciary Committee chairmanship after he said that he doubted that a Supreme Court nominee who strongly opposed abortion rights could win confirmation. He overcame that opposition by promising to hold prompt hearings for Bush's nominees, as he has since done.
The senator last week questioned the latest of those nominees, Samuel Alito, about his abortion views, but failed to receive the firm statement he sought that Judge Alito would not seek to overturn the 1973 Roe v. Wade ruling establishing abortion rights.
Senator Specter infuriated many Republicans in 1987 by voting against the Supreme Court nomination of Judge Robert Bork, an abortion opponent.
http://www.nytimes.com/2006/01/15/politics/15cnd-specter.html?hp&ex=1137387600&en=8bde27d3de27b377&ei=5094&partner=homepage
The comment about not giving the president a 'blank check' seems, IMHO, to me reminiscent of Justice O'connor's statments that an authorization of war doesn't give the president a blank check to infringe on civil liberties.
Just got back in town. I've read your posts and will respond to it in more detail once I've settled in--I don't think the argument that 'surveillance' is included in the authorization of 'force' is very strong (you find it compelling, do you?), and in fact even Republican senator and former federal prosecutor Specter seems to have rejected that argument--but I thought I'd post this article I happened upon right now.
I'm just wondering how a former federal prosecutor and chairman of the senate judiciary committee could be so wrong on an open and shut case :) Does he perhaps have access to information that we do not?
I think the President can conduct foreign surveillance regardless of war. It is part of his charge to protect the nation.
Any authorization of force includes intelligence gathering as an essential aspect of conducting military affairs. I think this is obvious.
Specter is wrong about a great many things. The more you know the fellow the more this becomes apparent.
Hurin_Rules
01-17-2006, 05:47
No, that is not my stance. I have argued that the President has plenary authority to conduct foreign intelligence (including warrantless surveillance) based on his independent Constitutional purview and charge of office. The AUMF may enhance that charge (as it would then mean two branches of government were united in purpose) but the base authority of the President is distinct.
In post #270, I asked you:
"1. Are you arguing that the president could still have done wiretaps on US citizens, on phonecalls from US sites to US sites, without the congress's resolution authorizing him to use force in the War on Terror?"
Your response was "No."
Can you clear up this discrepancy?
Again, you seem to be very widely applying the term 'foreign'. To be sure: are you arguing that the president could conduct warrantless wiretaps on communications both originating and ending in the USA if and only if there has been an authorization of force (AUMF)? Or does the president always have the constitutional authority to conduct warrantless surveillance, even if it is in the USA, on US citizens?
It seems to me that a communication from a US citizen to a US citizen originating and ending in the USA is not a 'foreign' communication. Association with terrorism by itself does not make someone a 'foreigner'. I think we all remember Timothy McVeigh.
The Constitution was designed with an inherent tension as each branch derives its basic authority from the text itself. Judicial Review is not something actually in the Constitution. It is a power the Court has assumed and tradition has adhered to, but in principle is problematic. Even so, if there were some scenario where the Court directly confronted the President over base Constitutional powers and the President rejected their stance, there is the third branch of government that could weigh in as Redleg described.
Actually, there's an easier answer here. While Redleg mentioned the constitutional amendment as a check/balance on an imperial presidency, Republican Senator Arlen Specter himself mentioned another today: impeachment.
I'm wondering also where you think the president's authority ends. I don't buy the argument that surveillance is included in force (and neither, apparently, do the legislators who voted for it). Could the president simply round up all the Muslims in the USA, declare them enemy combatants, and interrogate them for the next five years? Wouldn't this also be a use of force in the war on terror? This seems patently absurd.
In post #270, I asked you:
"1. Are you arguing that the president could still have done wiretaps on US citizens, on phonecalls from US sites to US sites, without the congress's resolution authorizing him to use force in the War on Terror?"
Your response was "No."
Can you clear up this discrepancy?I'm sure Pindar can straighten me out if I'm wrong here- but there is no discrepancy. In 270 you asked about wholly domestic survelliance- whereas in his recent post he pretty clearly said foreign.
Actually, there's an easier answer here. While Redleg mentioned the constitutional amendment as a check/balance on an imperial presidency, Republican Senator Arlen Specter himself mentioned another today: impeachment.Chances of either happening? About 0% :wink:
Honestly though, all we've been led to believe so far is that the survelliance has been between foreign sources communicating with a domestic source. If that's all we're dealing with than this whole "scandal" is a total non-issue.
Now, if Bush authorized wholly domestic warrantless survelliance it'll take some fancy foot work to dodge all repurcussions, but it'll still never rise to the level of actual impeachment as other presidents have done and have claimed the authority to do the same thing- most recently Clinton when he authorized warrantless wiretaps and searches of Aldrich Ames (who later pled guilty to spying). Further, allegations of authorization of wholly domestic survelliance is still only speculation at this point.
I'll leave the rest for Pindar since it was directed at him anyway- I just felt the need to chime in. :balloon2:
Tribesman
01-17-2006, 09:08
Your response was "No."
Can you clear up this discrepancy?
Good luck Hurin , Pindar doesn't want to address discrepancies that go beyond the basic "foriegn" set up , that isn't the issue dontchaknow :no:
Hurin_Rules
01-17-2006, 09:22
I'm sure Pindar can straighten me out if I'm wrong here- but there is no discrepancy. In 270 you asked about wholly domestic survelliance- whereas in his recent post he pretty clearly said foreign.
But I was clearly refereing to domestic wiretaps-- it was in the next post (271), and I said explicitly 'the specific type of wiretaps I mentioned'. So they can't be the same.
Chances of either happening? About 0% :wink:
Honestly though, all we've been led to believe so far is that the survelliance has been between foreign sources communicating with a domestic source. If that's all we're dealing with than this whole "scandal" is a total non-issue.
Actually, we know he got telecom companies to collaborate with tapping into their networks to monitor emails. We have no way of knowing where these emails originated from or went to. It seems that domestic emails were lumped in with foreign as well.
Actually, we know he got telecom companies to collaborate with tapping into their networks to monitor emails. We have no way of knowing where these emails originated from or went to. It seems that domestic emails were lumped in with foreign as well.The email thing does ring a bell- got any links on it? I'd like to read the specific claims... However, my guess would be that they're also covered under NSLs (National Security Letters- which I'm uncomfortable with, but are legal).
On a related sidenote- no one should have any real expectation of privacy when they send/recieve emails. I know for a fact that many places actively monitor incoming and outgoing email of their employees/students/whatever. If you really want some level of privacy- encrypt them (for what it's worth).
Major Robert Dump
01-17-2006, 17:07
Funny. In 2004 he was caught saying in a speech that "a wiretap requires a court order," and that "when we are talking about chasing down terrorists we're talking about getting a court order."
Guess its kind of like him saying whoever leaked the CIA name would be fired, then back pedaling when it looked like it was gonna be one of his boyz.
Lairs. They are all liars. I don't give two turds that others before him wiretapped, and the fact that he lies in his live speeches is indication that he lies in other areas, too.
Goofball
01-17-2006, 18:53
Funny. In 2004 he was caught saying in a speech that "a wiretap requires a court order," and that "when we are talking about chasing down terrorists we're talking about getting a court order."
Guess its kind of like him saying whoever leaked the CIA name would be fired, then back pedaling when it looked like it was gonna be one of his boyz.
Lairs. They are all liars. I don't give two turds that others before him wiretapped, and the fact that he lies in his live speeches is indication that he lies in other areas, too.
You make it sound like he lied about something really important, like availing himself of the services of a chubby intern for a round of hummer.
Why do you hate freedom so much MRD?
No, that is not my stance. I have argued that the President has plenary authority to conduct foreign intelligence (including warrantless surveillance) based on his independent Constitutional purview and charge of office. The AUMF may enhance that charge (as it would then mean two branches of government were united in purpose) but the base authority of the President is distinct.
In post #270, I asked you:
"1. Are you arguing that the president could still have done wiretaps on US citizens, on phonecalls from US sites to US sites, without the congress's resolution authorizing him to use force in the War on Terror?"
Your response was "No."
Can you clear up this discrepancy?
I read your post the same way X did: US sites to US sites seems to suggest a domestic question. My statement above relates to foreign intelligence.
Again, you seem to be very widely applying the term 'foreign'. To be sure: are you arguing that the president could conduct warrantless wiretaps on communications both originating and ending in the USA if and only if there has been an authorization of force (AUMF)? Or does the president always have the constitutional authority to conduct warrantless surveillance, even if it is in the USA, on US citizens?
I don't think I've been widely applying the term foreign at all. As I noted earlier in the thread: foreign refers to that which is beyond U.S. Territory or non-U.S. citizens.
The President can conduct foreign intelligence any time irrespective of any act of Congress.
I believe the NSA Program is focused on communiqués coming into the U.S., but I think his authority may very well cover outbound Intel. also.
It seems to me that a communication from a US citizen to a US citizen originating and ending in the USA is not a 'foreign' communication.
I agree.
Actually, there's an easier answer here. While Redleg mentioned the constitutional amendment as a check/balance on an imperial presidency, Republican Senator Arlen Specter himself mentioned another today: impeachment.
Impeachment implies illegality. The President performing his Constitutional mandate is not acting illegally.
I'm wondering also where you think the president's authority ends.
The President's authority begins and ends with the Constitution.
I don't buy the argument that surveillance is included in force...
Then we have a fundamental difference in how we understand war. I don't know any conflicts where intelligence wasn't considered vital to the struggle. To me, such an omission would be tantamount to arguing any AUMF didn't included using weapons or transport to the theater of operations.
Could the president simply round up all the Muslims in the USA, declare them enemy combatants, and interrogate them for the next five years? Wouldn't this also be a use of force in the war on terror? This seems patently absurd.
Do you mean like Roosevelt did to Japanese-Americans in 1942 and purposefully evaded by SCOTUS in Hirabayashi v. United States (1943) and then affirmed by the Court in Korematsu v. United States in 44? Probably not. Of course, this is a separate issue.
Your response was "No."
Can you clear up this discrepancy?
Good luck Hurin , Pindar doesn't want to address discrepancies that go beyond the basic "foriegn" set up , that isn't the issue dontchaknow :no:
Your still supposed to be in the penalty box for too many vacuous comment violations. :helmet:
Tribesman
01-17-2006, 19:08
Ah well , not long now till they will find out if the mistakes and technical glitches that led to purely domestic spying being carried out under a foriegn spying program was intentional or not and just how illegal and far reaching such actions were .
But you don't want to address that do you .:no:
Funny. In 2004 he was caught saying in a speech that "a wiretap requires a court order," and that "when we are talking about chasing down terrorists we're talking about getting a court order."
My guess is you haven't read the speech. That speech was about the Patriot Act specifically roving wire taps. Roving is a direct reference to a type of warrant.
Guess its kind of like him saying whoever leaked the CIA name would be fired, then back pedaling when it looked like it was gonna be one of his boyz.
Has someone been found guilty?
Lairs. They are all liars. I don't give two turds that others before him wiretapped, and the fact that he lies in his live speeches is indication that he lies in other areas, too.
You sound like an angry guy. Don't worry American Idol is soon to start up again.:balloon: :singer: :drummer: :thrasher: :dancing: :balloon:
Ah well , not long now till they will find out if the mistakes and technical glitches that led to purely domestic spying being carried out under a foriegn spying program was intentional or not and just how illegal and far reaching such actions were .
But you don't want to address that do you .:no:
There is nothing to address. :helmet: Box!
Tribesman
01-17-2006, 19:43
There is nothing to address. Box!
Yeah right ~:rolleyes:
Oh look there is a spying program
the foriegn spying program is legal
Oh look , the spying has strayed beyond its foriegn stipulations .
the foriegn spying program is legal
Oh look the administration has said that it has mistakenly gone beyond its remit
the foriegn spying program is legal
Oh look , while reassuring the people that there is a system of checks and balances on the program it appears that they have avoided those checks and balances on occasion
the foriegn spying program is legal
Oh look , the DAs office is questioning the legality of certain aspects of the operation
the foriegn spying program is legal
Oh look , a judge involved in the program is saying it is going beyond its legal bounds
the foriegn spying program is legal
Oh look , the oversight commitee is questioning the legality of aspects of the operation .
the foriegn spying program is legal
Oh look , they are having a hearing into how and why this program may be operating illegaly .
the foriegn spying program is legal
There is plenty to address Pindar , but you won't .
Luckily there is an judicial oversight committe who will
Ah well , not long now till they will find out if the mistakes and technical glitches that led to purely domestic spying being carried out under a foriegn spying program was intentional or not and just how illegal and far reaching such actions were .
But you don't want to address that do you .:no:
Yes, let's all speculate about things that we have no reason yet to think happened. Clearly we can't stick to the known facts- they don't leave enough room to bash the administration. :rolleyes:
Perhaps Pindar would also like to address the legality of the allegations that Bush eats babies and small children? ~:joker:
There is nothing to address. Box!
Yeah right ~:rolleyes:
Oh look there is a spying program
the foriegn spying program is legal
Oh look , the spying has strayed beyond its foriegn stipulations .
the foriegn spying program is legal
Oh look the administration has said that it has mistakenly gone beyond its remit
the foriegn spying program is legal
Oh look , while reassuring the people that there is a system of checks and balances on the program it appears that they have avoided those checks and balances on occasion
the foriegn spying program is legal
Oh look , the DAs office is questioning the legality of certain aspects of the operation
the foriegn spying program is legal
Oh look , a judge involved in the program is saying it is going beyond its legal bounds
the foriegn spying program is legal
Oh look , the oversight commitee is questioning the legality of aspects of the operation .
the foriegn spying program is legal
Oh look , they are having a hearing into how and why this program may be operating illegaly .
the foriegn spying program is legal
There is plenty to address Pindar , but you won't .
Luckily there is an judicial oversight committe who will
Assertion is not an argument.
:helmet: Box!
Devastatin Dave
01-17-2006, 21:06
Yes, let's all speculate about things that we have no reason yet to think happened. Clearly we can't stick to the known facts- they don't leave enough room to bash the administration. :rolleyes:
Perhaps Pindar would also like to address the legality of the allegations that Bush eats babies and small children? ~:joker:
Unfortunately, Pindar will probably have eventually considering the sentiment on these boards!!! Poor Pindar, or shall I say, poor people arguing with him, I would never try to argue with him!!! :laugh4:
Tribesman
01-17-2006, 21:22
Yes, let's all speculate about things that we have no reason yet to think happened. Clearly we can't stick to the known facts- they don't leave enough room to bash the administration.
:listen: The White House and the NSA have both said they happened Xiahou .
That means they are known facts , unless you think they lied when they said that they had happened .
Oh but why would they lie to say that they had indeed broken the limits of the lawful operations .
Ahhhh...I see now , clever buggers , they are admitting breaking the guidlines so that everyone thinks they are lying and havn't really broken the guidelines at all:idea2: :no:
One of the things the forthcoming inquiry will determine hopefully is how they happened , why they happened and what can be done to make sure they don't happen again .
Assertion is not an argument.
Oh I forgot you are not interested in any of that as your issue is solely
the foriegn spying program is legal
Alledged violations of that program that are to be investigated are of absolutely no interest to you because .....
the foriegn spying program is legal
Yes, let's all speculate about things that we have no reason yet to think happened. Clearly we can't stick to the known facts- they don't leave enough room to bash the administration.
:listen: The White House and the NSA have both said they happened Xiahou .
That means they are known facts , unless you think they lied when they said that they had happened .
Seriously? They both said the 'glitch' you're referring to was totally intentional and authorized by Bush? Man... you'd think that would've made the news here. :rolleyes:
Tribesman
01-18-2006, 00:50
Xiahou , if you can't face facts then that is up to you , keep your head buried in the sand if that makes you more comfortable .
If you don't listen to your government and its agencies public statements then how can you question their content . If you have listened to them then how can you attempt to deny that they are a fact .
Or in this case ...They both said the 'glitch' you're referring to was totally intentional and authorized by Bush?
Oh look you cannot refute my statement so you make one up to refute ? very clever :no:
Tribesman,
You are confusing multiple posting with substance. This is a mistake. If you have a legal argument to make about the NSA program do so. If you do not then continued posting of the former caliber only makes it appear there are certain cognitive issues. Assertions have no value. Speculation is by definition non-definitive. The only way to properly discuss the issue is by direct appeal to the law as it relates to the Administration's stated policy. As there is nothing to indicate the policy was other than what has been put forward there is no other rational approach. Note: the penalty box is actually for your protection. :helmet:
Reenk Roink
01-18-2006, 03:24
Poor Pindar, or shall I say, poor people arguing with him, I would never try to argue with him!!! :laugh4:
Touche
Tribesman
01-18-2006, 10:02
Speculation is by definition non-definitive.
As there is nothing to indicate the policy was other than what has been put forward there is no other rational approach.
Pindar , it is acknowledged that aspects of the program have not been followed as they were supposed to be , those aspects are being investigated , there is no speculation in that .
Your position is that the stated policy is sound legally , fine I have no issue with that .
The issue I have is that the agency has strayed beyond the legally sound stated policy . There is no speculation in that as it is acknowledged by the agency itself .
If there was speculation on my part then I would be putting forward ideas as to how , why and on whose authority the program has gone beyond its legal boundries .
I havn't done that have I ?
I am happy to wait for the judicial committe to investigate that . So where is this speculation you mention ?
Adrian II
01-18-2006, 15:02
As I wrote in the other NSA thread (https://forums.totalwar.org/vb/showthread.php?t=59826)started by KafirChobee, part of the problem with the NSA is that it doesn't work as it is supposed to. If it does it causes one set of risks, if it doesn't it causes another set of risks. Those who are familiar with the work of James Bamford, James Risen, David Banisar, Mark Urban and others on Echelon will be aware of this intelligence paradox underlying the discussion.
The paradox results from the enormous eavesdropping capability of the NSA, which is at odds with its limited capacity to analyse and operationalise any data thus gathered. Its eavesdropping efficiency depends on the unequalled width and depth of its 'dragnet'. Yet, the very width and depth of the dragnet prevent a timely or even adequate analysis of data for operational purposes. Furthermore, it precludes the separation of data of foreign and domestic origin in an ongoing investigation. The net result is the following (http://www.nytimes.com/2006/01/17/politics/17spy.html?hp&ex=1137560400&en=998d7190aee080f7&ei=5094&partner=homepage).
Apart from the clear risks of abuse (such as the blackmailing of the very politicians involved in checking or investigating the NSA) there is an obvious risk of information overload that endangers the efficiency of U.S. intelligence rather than improving it, if only because it provides a false sense of security.
I found an op-ed this morning that reflects some of the legal and technical issues and their implications, one of which appears to be that FISA is no longer adequate to take these issues into account. Not because it is too cumbersome, as Bush c.s. would have it, but because it is an insufficient check on the invasion of privacy resulting from the width and depth of the Echelon system. Rather than bypassing the law, the Administration should amend it or propose new legislation.
Why Run Around the Low-Hurdle of FISA?
Wed, 11 Jan 2006
by Ray McGovern
The unanswered questions of why the White House skirted the FISA law
If you were Christmas shopping on December 19, you may have missed an important press conference. Attorney General Alberto Gonzales and Deputy Director of National Intelligence Gen. Mike Hayden answered questions about eavesdropping on Americans by the National Security Agency, which Hayden directed from 1999 to 2005, in violation of the Foreign Intelligence Surveillance Act (FISA). More Kabuki dance than press conference, the event was not given much play in the media. However, the implications for privacy—and for our constitutional system of checks and balances—are immense. We do well to explore those implications.
As long as he read from his script, Attorney General Gonzales did just fine with the press on Dec. 19. He conceded that FISA requires a court order to authorize the surveillance the president ordered NSA to undertake. But then he hammered home the administration’s “legal analysis;” namely, the twin argument that Congress’ post 9/11 authorization of force and the president’s power as commander in chief trump the legal constraints of FISA.
Spilling the Beans
When the reporters’ questions began, Gonzales faltered and unwittingly got down to the crux of the matter. Asked why the administration decided to flout rather than amend FISA, Gonzales said:
“We have had discussions with Congress…as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”
So they went ahead with the new eavesdropping program anyway.
Gen. Hayden’s remarks were equally intriguing: He conceded that the special program authorized by the president was “more aggressive than would be traditionally available under FISA,” but stressed repeatedly that the new program deals only with international calls for short periods of time. In other words, Hayden implied, U.S. citizens are monitored only sometimes—and just a little, so we are dealing with tiny incompatibilities with the FISA law, and, besides, the president has said he has the authority anyway.
FISA Flexible
Hayden and Gonzales both stressed the need for “speed and agility.” But, as Lyndon Johnson was fond of saying, “That dog won’t hunt.” The FISA law contains intentionally flexible provisions designed to provide speed and agility in expediting emergency requests. The law grants the attorney general enormous power and discretion to authorize secret “emergency” electronic surveillance and physical searches for up to 72 hours, before any court order is granted. No court order at all is required if the surveillance is terminated before the 72-hour period ends. The FISA court itself may be the most expensive rubber stamp in government. Between 1978 and 2002, the court approved almost every one of the 15,000 search warrant requests, and it continues to approve 99 percent of requests.
So why did the Bush administration order NSA to skirt the FISA law? Could it be because it was carefully crafted not only to give government wide latitude to move quickly, but also to protect citizens’ Fourth Amendment rights to freedom from illegal search and seizure? This remains the $64 question. All the likely answers are deeply troubling.
Is it Simply Power-Grab and Chutzpah?...
The most cynical and, I fear, the most persuasive answer can be gleaned from Vice President Cheney’s recent open assertion—supported, no doubt, by a stack of in-house legal opinions, that in war time the president “needs to have his powers unimpaired.” As noted above, on Dec. 19, Gonzalez invoked the “inherent authority under the Constitution” of the commander-in-chief, as well as the equally ludicrous claim that Congress’ authorization of war after 9/11 trumps FISA—a claim that even the regime-friendly Washington Post has termed “impossible to believe.”
Ludicrous, but not funny. These extreme views are the same ones that underpin the president’s decision to flout international and U.S. criminal law by approving practices like torture, until now almost universally banned by civilized societies. The answer may be simple—“imperial hubris,” one might call it. And if—as seems to be the case—senior leaders like Colin Powell meekly acquiesce in torture and Gen. Mike Hayden in illegal eavesdropping, shame on them. This would merely show, once again, that absolute power truly does corrupt absolutely—indeed, that even closeness to absolute power can.
...Or Is It Physics and Volume?
At the press conference on Dec. 19, the attorney general issued a pointed reminder that there have been “tremendous advances in technology” since FISA was passed in 1978. He thus hinted that the problem is largely a technological one—a function of the availability of new, highly sophisticated technologies and the physics of the challenge NSA faces in dealing with the huge volume of intercept material collected. Recent press reports on the volume of communications being monitored by NSA suggest that the number is so high as to be technically or practically impossible to seek approval of as individual FISA “emergencies,” as the law requires. Consistently high numbers of monitored communications could have trouble passing muster as “emergencies” even at the docile FISA court, for the exceptions would quickly swallow the rule.
But if that were the problem, why did the administration not try to amend the law or pass a new one? Is that not what government lawyers are for; i.e., to devise ways to make such things legal, if they can persuade Congress to go along? And in the post 9/11 atmosphere, when the draconian measures in the so-called Patriot Act were passed so easily, were not the prospects excellent that Congress would approve?
The inescapable conclusion is that what the authorities sought were so far-reaching that even the post 9/11 Congress would have balked. As Attorney General Gonzales has indicated, initial soundings on the Hill indicated that the prospect was poor for approval of what would have been a bold request for vacuum-cleaner-type authority for NSA to suck up communications—including those to and from Americans—from wires and the ether. That appears to have been the rub—that, plus deep reluctance to invite any congressional attention, much less scrutiny, to the program. All this would help explain why there is no sign of any serious effort on the administration’s part to amend the law. Instead, administration officials fell back on the “anyway” rationalization; i.e., the notion pushed by top administration lawyers that the president has the power to authorize eavesdropping anyway.
Concerns
The vast quantity of communications reportedly intercepted by NSA under this special program (New York Times reporter James Risen says “roughly 500 people in the U.S. every day over the past three or four years”) makes suspect the president’s claim that all of the monitored communications have some link to al-Qaeda or other terrorists. If he is telling the truth, we are indeed in serious trouble.
A primary concern is that, among the groups of American citizens most likely to be sucked up by the NSA’s vacuum cleaner—because of the nature of their work and their international calls/contacts—are members of Congress and journalists. A key question that raises its ugly head is this: If hundreds of calls and e-mails involving Americans are being intercepted each and every day, and juicy tidbits are learned about, say, prominent officials or other persons, there will be an almost irresistible temptation to make use of this information. Former FBI special agent Coleen Rowley who for many years monitored court-authorized electronic surveillances and wiretaps relating to organized criminal and drug conspiracy groups, recently underscored how much one can learn about someone by listening in on his/her private communications. She reminds us that the blackmail potential is clear.
What if some dirt could be dredged up, for example, on Arlen Specter, chair of the Senate Judiciary Committee? If some embarrassing material could be unearthed, might he be persuaded to drop his play to hold hearings on the eavesdropping program?
Ample Precedent for Blackmail
For those of you with no trace of gray in your hair, please know that federal government has a long history of using such monitoring and break-in authority for such purposes. J. Edgar Hoover was adept at using information so acquired not only to pursue those he suspected of Communist or “Un-American” activities, but also to maintain his power and influence for 47 years over Presidents, members of Congress, and other power brokers. The FBI’s COINTELPRO activity’s use of such information to harass and discredit Dr. Martin Luther King, Jr. is a particularly glaring example of such abuse. And Nixon’s access to such information gave him the inside track on how to neutralize those on his long “enemies list.”
Think about it. Would you trust a Karl Rove, a Dick Cheney, an Elliot Abrams, a Roberto Gonzales, an I. Lewis Libby, a David Addington, or a John Bolton with such information? With the obsequious example set by Gen. Hayden, no director of NSA is likely to keep it from them. What might they be likely to do with it?
Abuse of private information can be even more dangerous than the loss of the personal privacy that so many say they are willing to trade for a bit more security. Rather, such abuse constitutes serious trammeling of civil liberties and—still worse—can tip the precarious balance of constitutional checks and balances. It was, after all, precisely because of such abuses that the FISA law was passed in the first place.
Ray McGovern works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. He is on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS), and has a chapter “Sham Dunk: Cooking Intelligence for the President” in the recently published collection on the Iraq war, Neo-CONNED Again. A shorter version of this article has appeared on tompaine.com.
Hurin_Rules
01-18-2006, 19:54
The President can conduct foreign intelligence any time irrespective of any act of Congress.
I believe the NSA Program is focused on communiqués coming into the U.S., but I think his authority may very well cover outbound Intel. also.
So if any purely domestic communications are being monitored, then the president has just broken the law?
There is lots of evidence that far more than just foreign communications are being monitored. The NSA is actually tapping into domestic communications networks. One reason Gonzalez et al. have suggested they decided to ignore FISA is the volume of emails they've been monitoring is so large they couldn't get the approval from the court on time. You're telling me that not a single one of these communications they've monitored has been a domestic one?
You have far more faith in a government that misled its people on Iraq's alleged WMDs, links to Al-Qaeda, etc. than I.
The President's authority begins and ends with the Constitution.
Is the fourth amendment, then, not also part of the constitution?
Then we have a fundamental difference in how we understand war. I don't know any conflicts where intelligence wasn't considered vital to the struggle. To me, such an omission would be tantamount to arguing any AUMF didn't included using weapons or transport to the theater of operations.
Interesting. So the second amendment and the AUMF are to be interpreted as widely as possible, but the fourth only as narrowly as possible. Why is that, exactly?
Authorizing force is authorizing force. If the government wanted to authorize a program of domestic surveillance that would clearly have been illegal otherwise, it would have done so. In fact, Gonzalez et al. have admitted that they tried to get congress to authorize the surveillance, but realized it probably would not pass congressional muster (from the initial reactions of some congressmen and women: http://cryptome.org/nsa-program.htm ). That's why they did it secretly, and simply ignored FISA.
There are lots of things that are necessary to win a war. But authorizing the use of force is not the same as authorizing a domestic spying program. You also have to keep up the soldier's morale to win a war. Would this authorize the US to start killing political dissenters within the US, since this would undermine the morale of the troops? Obviously not, since it would violate Americans' rights.
I'll say it again: authorization of the use of force is not a blank check.
On the issue of domestic/foreign communications:
Published on Saturday, December 24, 2005 by the New York Times
Spy Agency Mined Vast Data Trove, Officials Report
by Eric Lichtblau and James Risen
WASHINGTON - The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.
The government's collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic "switches," according to officials familiar with the matter.
"There was a lot of discussion about the switches" in conversations with the court, a Justice Department official said, referring to the gateways through which much of the communications traffic flows. "You're talking about access to such a vast amount of communications, and the question was, How do you minimize something that's on a switch that's carrying such large volumes of traffic? The court was very, very concerned about that."
Since the disclosure last week of the N.S.A.'s domestic surveillance program, President Bush and his senior aides have stressed that his executive order allowing eavesdropping without warrants was limited to the monitoring of international phone and e-mail communications involving people with known links to Al Qaeda.
What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.
The current and former government officials who discussed the program were granted anonymity because it remains classified.
Bush administration officials declined to comment on Friday on the technical aspects of the operation and the N.S.A.'s use of broad searches to look for clues on terrorists. Because the program is highly classified, many details of how the N.S.A. is conducting it remain unknown, and members of Congress who have pressed for a full Congressional inquiry say they are eager to learn more about the program's operational details, as well as its legality.
Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.
This so-called "pattern analysis" on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.
The use of similar data-mining operations by the Bush administration in other contexts has raised strong objections, most notably in connection with the Total Information Awareness system, developed by the Pentagon for tracking terror suspects, and the Department of Homeland Security's Capps program for screening airline passengers. Both programs were ultimately scrapped after public outcries over possible threats to privacy and civil liberties.
But the Bush administration regards the N.S.A.'s ability to trace and analyze large volumes of data as critical to its expanded mission to detect terrorist plots before they can be carried out, officials familiar with the program say. Administration officials maintain that the system set up by Congress in 1978 under the Foreign Intelligence Surveillance Act does not give them the speed and flexibility to respond fully to terrorist threats at home.
A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.
"All that data is mined with the cooperation of the government and shared with them, and since 9/11, there's been much more active involvement in that area," said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.
Such information often proves just as valuable to the government as eavesdropping on the calls themselves, the former manager said.
"If they get content, that's useful to them too, but the real plum is going to be the transaction data and the traffic analysis," he said. "Massive amounts of traffic analysis information - who is calling whom, who is in Osama Bin Laden's circle of family and friends - is used to identify lines of communication that are then given closer scrutiny."
Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.
The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.
One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.
The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.
Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.
Phil Karn, a computer engineer and technology expert at a major West Coast telecommunications company, said access to such switches would be significant. "If the government is gaining access to the switches like this, what you're really talking about is the capability of an enormous vacuum operation to sweep up data," he said.
© 2005 New York Times
http://www.commondreams.org/headlines05/1224-02.htm
Pindar , it is acknowledged that aspects of the program have not been followed as they were supposed to be , those aspects are being investigated , there is no speculation in that .
Your position is that the stated policy is sound legally , fine I have no issue with that .
The issue I have is that the agency has strayed beyond the legally sound stated policy . There is no speculation in that as it is acknowledged by the agency itself .
Unless you want to argue it was systemic and intentional then there is no issue.
If there was speculation on my part then I would be putting forward ideas as to how , why and on whose authority the program has gone beyond its legal boundries .
I havn't done that have I ?
I am happy to wait for the judicial committe to investigate that . So where is this speculation you mention ?
Read my post again. I made no accusations: I did qualify the parameters of discussion.
AdrianII,
Questions about efficacy is separate from base legality.
Regarding the flexability and speed of FISA even allowing for a 72 hr extension: here is a list of what needs to be done:
" (a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the target of the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;
(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and
(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device."
The President can conduct foreign intelligence any time irrespective of any act of Congress.
I believe the NSA Program is focused on communiqués coming into the U.S., but I think his authority may very well cover outbound Intel. also.
So if any purely domestic communications are being monitored, then the president has just broken the law?
No.
There is lots of evidence that far more than just foreign communications are being monitored. The NSA is actually tapping into domestic communications networks. One reason Gonzalez et al. have suggested they decided to ignore FISA is the volume of emails they've been monitoring is so large they couldn't get the approval from the court on time. You're telling me that not a single one of these communications they've monitored has been a domestic one?
I don't know. I have been responding to the base legal question of the NSA Program, not the particulars of every action taken by the NSA.
You have far more faith in a government that misled its people on Iraq's alleged WMDs, links to Al-Qaeda, etc. than I.
I don't think the government misled its people on Iraq's anything.
Is the fourth amendment, then, not also part of the constitution?
Yes.
Then we have a fundamental difference in how we understand war. I don't know any conflicts where intelligence wasn't considered vital to the struggle. To me, such an omission would be tantamount to arguing any AUMF didn't included using weapons or transport to the theater of operations.
Interesting. So the second amendment and the AUMF are to be interpreted as widely as possible, but the fourth only as narrowly as possible. Why is that, exactly?
I don't understand this line of thinking.
Authorizing force is authorizing force. If the government wanted to authorize a program of domestic surveillance that would clearly have been illegal otherwise, it would have done so.
The NSA Program is not a domestic surveillance program.
There are lots of things that are necessary to win a war. But authorizing the use of force is not the same as authorizing a domestic spying program. You also have to keep up the soldier's morale to win a war. Would this authorize the US to start killing political dissenters within the US, since this would undermine the morale of the troops? Obviously not, since it would violate Americans' rights.
I'll say it again: authorization of the use of force is not a blank check.
Actually in a formal war scenario political dissent (as in opposition to the war effort) can be prosecuted with imprisonment or death if it is judged to give aid and comfort to the enemy.
Authorization for the use of force is not a blank check but it is license to prosecute military action. Any such prosecution includes within it the fundamental means to perform said prosecution. I do think it is rather obvious this would include foreign intelligence gathering. I understand you don't agree. Your sense of war is radically different from mine.
Tribesman
01-18-2006, 22:04
I did qualify the parameters of discussion.
Really , I never noticed that in all this time .:laugh4: :laugh4: :laugh4:
I have been responding to the base legal question of the NSA Program
Oh I see , you havn't dodged the other issue , you just will not address it as it is beyond the paramters that you have set yourself .
So once again it is
the foriegn spying program is legal
pardon ?
the foriegn spying program is legal
did I hear you correctly ?
the foriegn spying program is legal
So do you have any interest in the illegal aspects of the program ?
the foriegn spying program is legal
Will you be following the inquiry when it gets underway ?
the foriegn spying program is legal
Are you avoiding those aspects of the program that others are expressing concern over ?
the foriegn spying program is legal
Ah ......I thought so .
I did qualify the parameters of discussion.
Really , I never noticed that in all this time .:laugh4: :laugh4: :laugh4:
I have been responding to the base legal question of the NSA Program
Oh I see , you havn't dodged the other issue , you just will not address it as it is beyond the paramters that you have set yourself .
So once again it is
the foriegn spying program is legal
pardon ?
the foriegn spying program is legal
did I hear you correctly ?
the foriegn spying program is legal
So do you have any interest in the illegal aspects of the program ?
the foriegn spying program is legal
Will you be following the inquiry when it gets underway ?
the foriegn spying program is legal
Are you avoiding those aspects of the program that others are expressing concern over ?
the foriegn spying program is legal
Ah ......I thought so .
Vacuous comment penalty! Box! :helmet:
Tribesman
01-19-2006, 00:03
Vacuous comment penalty! Box!
Ah whassup Pindar , are you stuck in a box that you don't want to get out of .
It is quite simple , if you lift the lid off the the foriegn spying program is legalyou might actually see what is going on beyond the the foriegn spying program is legalworld .
Adrian II
01-19-2006, 00:39
Regarding the flexability and speed of FISA even allowing for a 72 hr extension: here is a list of what needs to be done: [..]They have 72 hours to decide whether they want to prolong the eavesdropping. If not, no form is required. If they do, filling out the form is a formality (pun taken into bargain) which, in this day and age, takes no more than a few minutes of computer time. Hence the FBI testimony before Congress that FISA has never been an obstacle to speedy investigations.
A little fallout from the right ... (http://releases.usnewswire.com/GetRelease.asp?id=59381)
"I believe that our executive branch cannot continue to operate without the checks of the other branches. However, I stand behind the President in encouraging Congress to operate cautiously during the hearings so that sensitive government intelligence is not given to our enemies." -- Paul Weyrich, chairman and CEO, Free Congress Foundation
"Public hearings on this issue are essential to addressing the serious concerns raised by alarming revelations of NSA electronic eavesdropping." -- Grover Norquist, president, Americans for Tax Reform
"The need to reform surveillance laws and practices adopted since 9/11 is more apparent now than ever. No one would deny the government the power it needs to protect us all, but when that power poses a threat to the basic rights that make our nation unique, its exercise must be carefully monitored by Congress and the courts. This is not a partisan issue; it is an issue of safeguarding the fundamental freedoms of all Americans so that future administrations do not interpret our laws in ways that pose constitutional concerns." -- David Keene, chairman, American Conservative Union
"If the law is not reformed, ordinary Americans' personal information could be swept into all-encompassing federal databases encroaching upon every aspect of their private lives. This is of particular concern to gun owners, whose rights guaranteed under the Second Amendment are currently being infringed upon under the Patriot Act's controversial record search provisions." -- Alan Gottlieb, founder, Second Amendment Foundation
Vacuous comment penalty! Box!
Ah whassup Pindar , are you stuck in a box that you don't want to get out of .
It is quite simple , if you lift the lid off the the foriegn spying program is legalyou might actually see what is going on beyond the the foriegn spying program is legalworld .
Box! :helmet:
How many pages have you gone without a meaningful post? Is this a reflection of inability or will?
They have 72 hours to decide whether they want to prolong the eavesdropping. If not, no form is required. If they do, filling out the form is a formality (pun taken into bargain) which, in this day and age, takes no more than a few minutes of computer time. Hence the FBI testimony before Congress that FISA has never been an obstacle to speedy investigations.
This is not correct. I noted on post 301 all that must be done to extend a 72 hour surveillance which if not met must be terminated and no gained intel. considered usable. It is not simple or easy: anyone who has had multiple lawyers dealing with a Federal Judge for approval can attest to that.
Here is something Byron York wrote on the subject in December:
"In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.
People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check."
Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. *** Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.
The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.
"Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process."
Adrian II
01-19-2006, 10:23
I noted on post 301 all that must be done to extend a 72 hour surveillance which if not met must be terminated and no gained intel. considered usable.Those checks are there to protect citizens' rights. If a President doesn't like that, he should propose to amend or scrap the relevant law, not bypass it.
Tribesman
01-19-2006, 19:24
How many pages have you gone without a meaningful post? Is this a reflection of inability or will?
I am just curious as to why you will not address the issues , is it inability or lack of will .
Oh but you do confirm .
The NSA Program is not a domestic surveillance program.
and we all know that
the foriegn spying program is legal
So that means the purely domestic surveilance carried out under the foriegn surveilance program must have been illegal then .
Oh sorry , your positon is purely that..... the foriegn spying program is legal
.....So you won't comment on that .
Box :laugh4: :laugh4: :laugh4:
I noted on post 301 all that must be done to extend a 72 hour surveillance which if not met must be terminated and no gained intel. considered usable.
Those checks are there to protect citizens' rights. If a President doesn't like that, he should propose to amend or scrap the relevant law, not bypass it.
Your point was the 72 hr. surveillance provision could be easily responded to. I have indicated that is not the case. There are several practical impediments that I noted.
Amending or scraping a given law is a separate question. That may be a good idea with FISA. Regardless, the President is not amenable to anything that conflicts with his inherent Constructional powers and oath of office.
I am just curious as to why you will not address the issues, is it inability or lack of will?
Minus one point for lack of originality.
What issues are your referring to? I began participation on this thread (as I stated) to address the question of the NSA Program's legality. I have done so. What other issues are there? Do you consider hypotheticals issues?
Tribesman
01-19-2006, 20:11
There is nothing hypothetical about it Pindar , it is acknowledged that the NSA has carried out domestic surveilance of Americans within America communicating with other Americans within America .
That is not part of its legal remit is it .
There is nothing hypothetical about it Pindar , it is acknowledged that the NSA has carried out domestic surveilance of Americans within America communicating with other Americans within America .
That is not part of its legal remit is it .
Do you want to argue this was systemic and intentional?
Adrian II
01-19-2006, 21:54
Your point was the 72 hr. surveillance provision could be easily responded to.That was the FBI's point, not mine. Again: if Bush doesn't like that law, he should attempt to get it amended or scrapped, not construe his own legality.
Regardless, the President is not amenable to anything that conflicts with his inherent Constructional powers and oath of office.'Constructional powers' - that could make Dr Freud smile in his grave.
Again: if Bush doesn't like that law, he should attempt to get it amended or scrapped, not construe his own legality.
The Bush Administration's stance is not unique to his Presidency. It has been the consistent position of all Presidents going back to Carter who signed FISA into being. It is also the view of all the case law to the present.
Tribesman
01-19-2006, 23:04
Do you want to argue this was systemic and intentional?
That is up to the inquiry to determine how and why it happened .
You are stuck on repeating the legality of the initial program and are choosing to completely ignore that the legal program has carried out illegal actions .
Do you want to argue this was systemic and intentional?
That is up to the inquiry to determine how and why it happened .
You are stuck on repeating the legality of the initial program and are choosing to completely ignore that the legal program has carried out illegal actions .
If "it" is something for the inquiry to determine then I can't really be charged with ignoring it can I?
Tribesman
01-20-2006, 01:51
If "it" is something for the inquiry to determine then I can't really be charged with ignoring it can I?
Yes you can as you keep going on an on about it all being legally sound , when in practice that is no longer the case .
It matters not if the program was legal in basis , it matters a hell of a lot if the program has operated beyond that legal base .
Yes you can as you keep going on an on about it all being legally sound , when in practice that is no longer the case .
It matters not if the program was legal in basis , it matters a hell of a lot if the program has operated beyond that legal base .
This is incoherent. If your position is the determination is yet to be decided then there is no present subject to either ignore or come to any conclusion on.
My boy, I think you have a case of oppositionism.
Adrian II
01-20-2006, 07:49
The Bush Administration's stance is not unique to his Presidency.Indeed, it uses the same 'legal constructionism' with regard to torture, rendition, occupation law, etcetera that Nixon used (and later confessed to) during his 'Imperial Presidency': you don't like the law, you make up your own.
Anyway, why don't you address the UKUSA loopholes and backdoors that inevitably come with the system's sophistication. Foreign communications would include everything coming in and everything going out of the country, right? That's already a whole lot, but there is more. Truly domestic communications (from American sender to American receiver via channels on American territory) can always be covered by a friendly service such as the British or Canadians, who are allowed to intercept those because they are 'foreign' under their law. Requests for intercepts of U.S. internal communications from NSA to GCHQ or GCSC are mostly rewarded under the UKUSA treaty, it seems. That way the NSA can complete the picture and fill in the dots missing from its 'foreign' files. To return the favour, NSA provides the Brits, Canadians, New Zealanders and Australians with intercepts of their domestic communications which they, in turn, can not tap under their own national laws. Now that is what I call a dragnet.
Indeed, it uses the same 'legal constructionism' with regard to torture, rendition, occupation law, etcetera that Nixon used (and later confessed to) during his 'Imperial Presidency': you don't like the law, you make up your own.
You are veering off topic. Why are you sounding hostile? I expect that from Tribesman, but you understand rational discourse what's afoot? :flowers:
Anyway, why don't you address the UKUSA loopholes and backdoors that inevitably come with the system's sophistication. Foreign communications would include everything coming in and everything going out of the country, right? That's already a whole lot, but there is more. Truly domestic communications (from American sender to American receiver via channels on American territory) can always be covered by a friendly service such as the British or Canadians, who are allowed to intercept those because they are 'foreign' under their law. Requests for intercepts of U.S. internal communications from NSA to GCHQ or GCSC are mostly rewarded under the UKUSA treaty, it seems. That way the NSA can complete the picture and fill in the dots missing from its 'foreign' files. To return the favour, NSA provides the Brits, Canadians, New Zealanders and Australians with intercepts of their domestic communications which they, in turn, can not tap under their own national laws. Now that is what I call a dragnet.
I think the NSA Program is primarily with incoming communication. Even so, as I said before, I think a legal case can be made that any foreign intell. (foreign meaning out of U.S. Territory) is fair game.
...by the way...they are listening...:phonecall: :skull:
Adrian II
01-20-2006, 08:27
You are veering off topic. Why are you sounding hostile? I expect that from Tribesman, but you understand rational discourse what's afoot? :flowers: My dear Pindar, you are constructing legality where there is none. You seem to suffer from a fit of legalism, a well-known phenomenon among supporters of failing politicians. It happens to the best of democrats. I wish you well, and you may rest assured that your flowers are duly appreciated. :bow:
I think the NSA Program is primarily with incoming communication. Even so, as I said before, I think a legal case can be made that any foreign intell. (foreign meaning out of U.S. Territory) is fair game.It is concerned with both incoming and outgoing communication. And everything in between of course, or else it wouldn't be intelligence. :mellow:
Let us not be mistaken about the importance of the matter. The NSA is the nuclear warhead among intelligence capabilities. Large and unwieldy, but devastating to any (internal or external) opponent if used judiciously. I wouldn't be concerned with the risks of such a powerful and accident prone apparatus if it were subject to proper oversight and administration, so that actions taken can be traced afterwards and mistakes investigated and cleared. The FISA debate goes to the heart of this issue. You don't let Presidents play with nuclear warheads as if they were private property either, do you?
My dear Pindar, you are constructing legality where there is none. You seem to suffer from a fit of legalism, a well-known phenomenon among supporters of failing politicians. It happens to the best of democrats. I wish you well, and you may rest assured that your flowers are duly appreciated.
This is rhetorically very interesting. If a legal question is put forward and a legal answer is given then the very fact the reply went to a direct legal reply demonstrates the legalism of the politically failing? That has a lovely closing quality to it.
It is concerned with both incoming and outgoing communication. And everything in between of course, or else it wouldn't be intelligence. :mellow:
Let us not be mistaken about the importance of the matter. The NSA is the nuclear warhead among intelligence capabilities. Large and unwieldy, but devastating to any (internal or external) opponent if used judiciously. I wouldn't be concerned with the risks of such a powerful and accident prone apparatus if it were subject to proper oversight and administration, so that actions taken can be traced afterwards and mistakes investigated and cleared. The FISA debate goes to the heart of this issue. You don't let Presidents play with nuclear warheads as if they were private property either, do you?
You are aware that the President does have the nuclear codes on his person (though Clinton seems to have lost his for a time) and can declare a launch without any Congressional oversight?
Adrian II
01-20-2006, 21:26
If a legal question is put forward and a legal answer is given then the very fact the reply went to a direct legal reply demonstrates the legalism of the politically failing?Your posts until now have perfectly albeit superfluously demonstrated that the law is legal.
However, the law has been broken and we are trying to asses the reasons for that, as well as the consequences. It may have to be amended or altogether rewritten on the basis of what has become known over the years about the considerable eavesdropping capacity of the NSA and its possible abuse. That is of interest to non-Americans for obvious reasons.
You are aware that the President does have the nuclear codes on his person (though Clinton seems to have lost his for a time) and can declare a launch without any Congressional oversight?I am, but if he did I daresay Congress would demand that he account for it within 72 hours... and he would have to do more than fill out a form!
Oh, and Ford, Carter, Reagan and Bush all lost the 'football' at some time or other. Did you know that for many years the eight-digit launch code of the Minutemen missiles was set at 00000000? Commanders could have launched their own little world war with them. Some of them may have had funny ideas, but I guess spending their retirement years in an underground bunker wasn't their idea of fun after all.
Deterrence works in mysterious ways. :sweatdrop:
Oh, and Ford, Carter, Reagan and Bush all lost the 'football' at some time or other. Did you know that for many years the eight-digit launch code of the Minutemen missiles was set at 00000000? Commanders could have launched their own little world war with them. Some of them may have had funny ideas, but I guess spending their retirement years in an underground bunker wasn't their idea of fun after all.
Deterrence works in mysterious ways. :sweatdrop:
Edit: Oh yea an off topic question to the off topic response.
Interesting can you provide a link. I know from personal experience how the nuclear release authority is suppose to work. The eight-digit launch code you mentioned here - directly contradicts what I know of the codes and messages that must be passed before someone can even think about launching a missle or an artillery shell.
Tribesman
01-21-2006, 03:25
If your position is the determination is yet to be decided then there is no present subject to either ignore or come to any conclusion on.
No Pindar , my position is that your posts on the legality of the basis for the program no longer have any relevance at all , and havn't had any since it was admitted that the program has operated outide of its legal constraints .
Your posts until now have perfectly albeit superfluously demonstrated that the law is legal.
However, the law has been broken and we are trying to asses the reasons for that, as well as the consequences.
My posts have demonstrated that accoridng to the case law the President does have an inherent authority to conduct foreign intellegence. A simple example reposted, 2002 In re Sealed Case:
"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
No Pindar , my position is that your posts on the legality of the basis for the program no longer have any relevance at all , and havn't had any since it was admitted that the program has operated outide of its legal constraints .
"The program has operated outside of its legal constraints" sounds systemic and intentional. Do you want to argue such was the case? You have already posted you can make no judgment along those lines until the Congressional Hearings. If you want to argue systemic intent do so. If you have suspended judgment then you have no further subject matter to discuss nor there is anything being ignored.
Tribesman
01-24-2006, 00:29
"The program has operated outside of its legal constraints" sounds systemic and intentional.
No , " the program has operated outside of its legal constraints "
sounds like
"the program has operated outside its legal constraints" .
Thats strange isn't it .
Are you attempting to set up a position to shoot down that hasn't been made ?
I wonder what the common term for that is ?:laugh4:
If you have suspended judgment then you have no further subject matter to discuss nor there is anything being ignored.
If the program has admittedly operated illegaly then there is no point in you posting that the legal basics of the program were legal , as for some reason or other that base legality has not been complied with .
So the base legality is now irrelevant , that is something you have not grasped through all the pages of this topic .
Tribesman,
I really am amazed you can go for such an extended period without a substantive post. Oppositionism really is a bad thing. It effects both credibility and base reasoning ability. You may feel that your passion is its own justification, but if you are unable to commit to rational discourse then you will never have the wherewithal to convince or the standing to be considered a sober mind. You should consider again.
Tribesman
01-24-2006, 01:13
Pindar , you have for several pages churned out irrelevant legal arguements concerning the base legality of the program .
The base legality is irrelevant if the program operates outside of that legal standing .
It has operated outside its legal constraints .
You are still pointing out the fact that the drunk driver had a driving license .
Goofball
01-24-2006, 01:46
I can honestly and truly say, that (especially for a thread with such good upside potential to be interesting) this thread has turned out to be the most boring thing I have ever attmpted to read.
Strike For The South
01-24-2006, 02:52
I can honestly and truly say, that (especially for a thread with such good upside potential to be interesting) this thread has turned out to be the most boring thing I have ever attmpted to read.
wait... Were supposed to read these things?
Hurin_Rules
01-24-2006, 05:51
The debate has unfortunately become rather sterile.
I'm sure it will heat up again in a week, when we start looking towards the congressional hearings on the matter, and have more information.
I can honestly and truly say, that (especially for a thread with such good upside potential to be interesting) this thread has turned out to be the most boring thing I have ever attmpted to read.
In 381 C.E. an old Visigothic Chieftain named Athanaric came to Constantine's City. As he stood before it and looked on at it the majesty of the high walls, the markets, the many ships, peoples of various lands moving about, the wide streets and architecture he despaired feeling that his life's work of battling against Rome had been in vain. He exclaimed at last, "I am seeing what I have often heard, but did not believe. Surely the Emperor is a god upon the earth and whoever lifts up his hand against him is committing suicide!" The barbarian in his dark wood surrounded by his tribal gods and passion may think he knows the wide world, but it is not so. He may think a war howl is comparable to the recitation of Homer, but he would be wrong. Such is the level of difference between the rational mind and those absorbed by their oppositionism. One shouldn't expect a progressive dialogue or any depth of exchange if one of the participants thinks his mud hut the same as the Hagia Sophia.
Tribesman
01-24-2006, 16:52
What an elegant put down Pindar .
It still doesn't alter the fact that you are stuck on trying to avoid the drink driving and basing your position solely on the possesion of a driving licence .
So while you smugly marvel at your security within those wonderful walls and look down on those mud huts outside you have no realisation that your great walls have had their foundations removed .
The legal basis of a program is completely irrelevant if it acts illegally .
What an elegant put down Pindar .
It still doesn't alter the fact that you are stuck on trying to avoid the drink driving and basing your position solely on the possesion of a driving licence .
So while you smugly marvel at your security within those wonderful walls and look down on those mud huts outside you have no realisation that your great walls have had their foundations removed .
The legal basis of a program is completely irrelevant if it acts illegally .
So before there is a hearing or a trail on the matter - you have already cast guilt. :dizzy2:
Hurin_Rules
01-24-2006, 17:35
In 381 C.E. an old Visigothic Chieftain named Athanaric came to Constantine's City. As he stood before it and looked on at it the majesty of the high walls, the markets, the many ships, peoples of various lands moving about, the wide streets and architecture he despaired feeling that his life's work of battling against Rome had been in vain. He exclaimed at last, "I am seeing what I have often heard, but did not believe. Surely the Emperor is a god upon the earth and whoever lifts up his hand against him is committing suicide!" The barbarian in his dark wood surrounded by his tribal gods and passion may think he knows the wide world, but it is not so. He may think a war howl is comparable to the recitation of Homer, but he would be wrong. Such is the level of difference between the rational mind and those absorbed by their oppositionism. One shouldn't expect a progressive dialogue or any depth of exchange if one of the participants thinks his mud hut the same as the Hagia Sophia.
29 years later, the Visigoths conquered Rome and realized the Romans were not Gods.
Bad choice of analogies my friend :smile:
It still doesn't alter the fact that you are stuck on trying to avoid the drink driving and basing your position solely on the possesion of a driving licence .
What are you talking about?~:confused:
Are you still accusing him of not addressing something that hasnt even been shown to have happened? You attack Pindar with supposition and then when confronted on its proof, you claim you are waiting for the outcome of the hearings. Yet, in the next post you go back to attacking Pindar based on the same supposition. It's truly nauseating. If you think the hearings will prove your point, then save your venom until it does so and ask Pindar to address it when it's been shown. Until it's been shown, you're argument is based on nothing.
Tribesman
01-24-2006, 17:54
So before there is a hearing or a trail on the matter - you have already cast guilt.
Poor Red , jumping to conclusions are you ?
Is this to be another baseless yarn from the realms of your imagination as to what people have said or what you think they have said ?
Tribesman
01-24-2006, 18:02
What are you talking about?
It is quite simple Xiahou .
Pindar is stuck on the base legality of the program , the base legality is no longer the issue since both the NSA and the administration have said that the program has operated outside of its legal constraints .
So just as having a driving licence means you can drive , if you drive while under the influence then the validity of the original license is irrelevant .
29 years later, the Visigoths conquered Rome and realized the Romans were not Gods.
Bad choice of analogies my friend :smile:
You missed the point. This is probably due to the Election results. ~:)
So before there is a hearing or a trail on the matter - you have already cast guilt.
Poor Red , jumping to conclusions are you ?
Is this to be another baseless yarn from the realms of your imagination as to what people have said or what you think they have said ?
Oh look at the personal attack once again - no surprise there now is there?
The legal basis of a program is completely irrelevant if it acts illegally
Have I missed something in your position at countering Pindar's legal arguement - because several times you have stated that an investigation must take place. An investigation is normally used to determine if the law has been broken, and by whom? After such an investigation the investigators determine if there is enough evidence to brin forth a trail.
If your unwilling to allow such an investigation to take place and for it to determine what wrongdoing has occured, what violations of the law have actually taken place, and by whom those violations were done by or ordered by then the describtion above fits very well.
Is there proof that the government has acted outside the contraints of the law, besides allegations of? Allegations without an investigation - are only allegations.
I find it amusing that a self-proclaimed un-educated achocal abusing Irishman is so concerned about the possible violation of the 4th Amendment by an American President against the citizens of the United States, that he has already determined the guilt of the adminstration ahead of the investigation, but instead of providing sound arguement concerning that possible violation - that said Irishman decides to resort to ah hominem arguements directed at fellow patrons. Interesting isn't?
Tribesman
01-24-2006, 18:52
Is there proof that the government has acted outside the contraints of the law, besides allegations of? Allegations without an investigation - are only allegations.
Oh dear Red , time for you to relax a little , you do seem to be rambling somewhat .
It is not allegations , it is admissions . The Whitehouse and the NSA have both said that aspects of the program have gone beyond its legal constraints .
So do you think that they are making unfounded allegations against themselves ? What a novel idea .:dizzy2:
Oh look at the personal attack once again - no surprise there now is there?
That is a comment on the baseless content of your post .
If you do not want it then do not post baseless material .
If you wish to work only on assumptions or imaginary content then you will be replied to as such.
If your unwilling to allow such an investigation to take place and for it to determine what wrongdoing has occured, what violations of the law have actually taken place, and by whom those violations were done by or ordered by then the describtion above fits very well.
Not only another example of false assuptions but a sign that you a clearly unable to read the previous posts .
I find it amusing blah blah blahthat he has already determined the guilt of the adminstration ahead of the investigation,
Oh dear Red more assumptions , and once again wrong ones , you really are slipping old boy .
but instead of providing sound arguement concerning that possible violation
Errrr ....an admission of the violations of the program by the people who operate the program and the people who authorise the program are generally as sound an arguement as you could possibly get for now .
Is there proof that the government has acted outside the contraints of the law, besides allegations of? Allegations without an investigation - are only allegations.
Oh dear Red , time for you to relax a little , you do seem to be rambling somewhat .
It is not allegations , it is admissions . The Whitehouse and the NSA have both said that aspects of the program have gone beyond its legal constraints .
So do you think that they are making unfounded allegations against themselves ? What a novel idea .:dizzy2:
admissions that aspects of the program have gone beyond its legal contraints does not always imply that the law has been broken, it means that the depeartment feels that they might have done something wrong. The scope of that error needs to be investigated to determine what exactly has been done, and if it was a willful violation of the constitution and the establish law by the adminstration. If it was willful then any prosecutions done by the state from the evidence will need to be overturn, and Congress must determine what laws need to be ammended to prevent possible abuse in the future.
Oh look at the personal attack once again - no surprise there now is there?
That is a comment on the baseless content of your post .
If you do not want it then do not post baseless material .
If you wish to work only on assumptions or imaginary content then you will be replied to as such.
Again personal attacks it seems are your bulwark of a defense for your agruement. :juggle2: Should I make another like approach and degenerate this thread to a simple exchange of insults?
If your unwilling to allow such an investigation to take place and for it to determine what wrongdoing has occured, what violations of the law have actually taken place, and by whom those violations were done by or ordered by then the describtion above fits very well.
Not only another example of false assuptions but a sign that you a clearly unable to read the previous posts .
Interesting since I see you have changed your definition in this thread numerous times. Your attempting to pass a judment of guilt, but now you are claiming that you are not? That in itself is interesting.
I find it amusing blah blah blahthat he has already determined the guilt of the adminstration ahead of the investigation,
Oh dear Red more assumptions , and once again wrong ones , you really are slipping old boy .
Not an assumption at all - just looking at your words. And like before should I exchange your insult here with another one of my own, resorting to a futher breakdown in the discussion.
but instead of providing sound arguement concerning that possible violation
Errrr ....an admission of the violations of the program by the people who operate the program and the people who authorise the program are generally as sound an arguement as you could possibly get for now .
Which one is it Tribesman an admission of violations of law - or that they have gone beyond the contraints of the law?
How amusing you are, which direction are you really attempting to argue.
Tribesman
01-24-2006, 21:27
Interesting since I see you have changed your definition in this thread numerous times. Your attempting to pass a judment of guilt, but now you are claiming that you are not? That in itself is interesting.
Once again the mighty Red demonstrates his inability to read ~:rolleyes:
Oh I get it now ....
The scope of that error needs to be investigated to determine what exactly has been done, and if it was a willful violation of the constitution and the establish law by the adminstration.
You want an investigation to find out what went wrong that led to the agency operating beyond its legal bounds . But since that is what I have been saying then I must really have been meaning something else as I could not possibly have been saying that could I , as that is what you want and I can never ever can be in agreement so that means I must have meant something else .:dizzy2:
Windmills again :no:
Which one is it Tribesman an admission of violations of law - or that they have gone beyond the contraints of the law?
What nonsense is that ? going beyond the constraints of the law is a violation of the law .
What nonsense is that ? going beyond the constraints of the law is a violation of the law .
This will not due. A glitch by definition is neither systemic or intentional. Without both of these criteria the NSA admission does not speak to criminality. Rather, one simply has a system adjustment which is quite normal.
The original question raised by the Times concerned the base legal authority for the President to conduct warrantless surveillance. I have explained how this is possible both in regards to the Constitution and case law.
The next possible question is what the NSA program involved. The Justice Department based on its Dec. 22 letter explained the scope of the program. Thus, far no evidence has come forward to suggest the program was other than so described.
All that remains is political bluster, paranoia and oppositionism. :skull: :phonecall: :skull:
Goofball
01-24-2006, 23:06
I can honestly and truly say, that (especially for a thread with such good upside potential to be interesting) this thread has turned out to be the most boring thing I have ever attmpted to read.In 381 C.E. an old Visigothic Chieftain named Athanaric came to Constantine's City. As he stood before it and looked on at it the majesty of the high walls, the markets, the many ships, peoples of various lands moving about, the wide streets and architecture he despaired feeling that his life's work of battling against Rome had been in vain. He exclaimed at last, "I am seeing what I have often heard, but did not believe. Surely the Emperor is a god upon the earth and whoever lifts up his hand against him is committing suicide!" The barbarian in his dark wood surrounded by his tribal gods and passion may think he knows the wide world, but it is not so. He may think a war howl is comparable to the recitation of Homer, but he would be wrong. Such is the level of difference between the rational mind and those absorbed by their oppositionism. One shouldn't expect a progressive dialogue or any depth of exchange if one of the participants thinks his mud hut the same as the Hagia Sophia.
*scratches testicles*
Uh.. What?
Sorry, but are you calling me a goth?
Dude, you're way off. I never listened to Marilyn Manson.
Duh...
*farts*
Oops.
'scuse me...
*goes back to watching Girls Gone Wild 2*
Interesting since I see you have changed your definition in this thread numerous times. Your attempting to pass a judment of guilt, but now you are claiming that you are not? That in itself is interesting.
Once again the mighty Red demonstrates his inability to read ~:rolleyes:
Or is it your ability to write a statement that actually uses logic and facts, verus emotional appeal.
:inquisitive:
Oh I get it now ....
The scope of that error needs to be investigated to determine what exactly has been done, and if it was a willful violation of the constitution and the establish law by the adminstration.
You want an investigation to find out what went wrong that led to the agency operating beyond its legal bounds . But since that is what I have been saying then I must really have been meaning something else as I could not possibly have been saying that could I , as that is what you want and I can never ever can be in agreement so that means I must have meant something else .:dizzy2:
Windmills again :no:
Beyond legal bounds covers a lot of different areas, both legal and illegal. One can go beyond the constraints - and still be within the legal letter of the law.
Maybe you should rethink some of your statements, verus attempting to use the standard ad hominem arguements directed at the person and not the arguement.
It seem you have confused yourself on the emotional appeal of the addmission verus the legal application.
Which one is it Tribesman an admission of violations of law - or that they have gone beyond the contraints of the law?
What nonsense is that ? going beyond the constraints of the law is a violation of the law .
Not necessarily. One can violate the spirt of the law without violating the letter of the law. What seems to be happening in this issue is a violation of the sprite of the law might have occured, but no proof of a violation of the letter of the law has occured.
Going beyond the contraints of the law could simply mean that the agency felt with their admission that they might have stumbled and needs to insure that they have not violated the letter of law.
Uh.. What?
Sorry, but are you calling me a goth?
Dude, you're way off. I never listened to Marilyn Manson.
I was trying to explain why the thread might have a certain boorishness. In simpler terms: an objectionism that is the equivalent to living in mud huts and howling at the moon should not be and cannot be expected to understand dialectic or rational discourse. Therefore the "discussion" is rather one sided and stilted.
You may not be a goth but I did hear you are into other things. :batman: :whip:
In simpler terms: an objectionism that is the equivalent to living in mud huts and howling at the moon should not be and cannot be expected to understand dialectic or rational discourse. Therefore the "discussion" is rather one sided and stilted.
Maybe the thread lost some of its passionate impetus because poring over legislation is so mindbuggeringly boring...
Not that we don't hold those of you able to master its complexity in some awe... ~;)
Maybe the thread lost some of its passionate impetus because poring over legislation is so mindbuggeringly boring...
That it is. As for as the legal question, all you need do is go to my post #90 (page three I think). That post covers the basic case history. Legally this program is quite mundane. What's really telling is no one, to my knowledge, has yet called for the program to halt. That alone should help even the legally untrained to distinguish political bloviation from legal reality.
Hurin_Rules
01-25-2006, 17:44
Although you are certainly entitled to your opinion, Pindar, it seems that many judges, lawyers and law school professors have serious doubts about the legality of the program.
As a way of reinvigorating the debate as we head towards the hearings, we might like to consider the recent remarks by senior law professors at Georgetown and George Washington Univerisity:
Law professors weigh in
Stephen Saltzburg, a law professor at George Washington University, said that Gonzales’ comments do not explain why the administration doesn’t go to the Foreign Intelligence Surveillance Court to obtain warrants.
“If they are using a probable cause standard, they would have no problem going to the FISA court,” said Saltzburg. “The executive might think there’s a reasonable basis. Courts might not agree.”
Georgetown University law professor David Cole said the reasonable basis standard is not equivalent to probable cause.
Moreover, said Cole, Gonzales’ comments seem to conflict with those on Monday by Air Force Gen. Michael Hayden, principal deputy director of national intelligence.
Hayden said that when weighing whether to proceed with surveillance under the president’s program, “the trigger is quicker and a bit softer than it is” with FISA.
Justice Department spokeswoman Tasia Scolinos said there is no conflict between the statements of Gonzales and Hayden and that “it is really just a matter of speed; as the AG said, the standards are essentially the same.”
In his address, Gonzales said, “I keep hearing, ’Why not FISA?’ Why didn’t the president get orders from the FISA court?
“It is imperative for national security that we can detect reliably, immediately and without delay whenever communications associated with al-Qaida enter or leave the United States.”
The 15-day window
Gonzales told his audience: “You may have heard about the provision of FISA that allows the president to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime.”
Sharply disagreeing, George Washington University law professor Jonathan Turley said FISA’s purpose “was never to grant warrantless surveillance for the war.”
“While Congress saw some need to loosen the standard in the initial days of a war, it wanted the president to comply with FISA in carrying out surveillance in the United States,” Turley said.
The attorney general said the program is limited in scope, and he blamed the news media for suggesting otherwise.
“These press accounts are in almost every case, in one way or another, misinformed, confusing or wrong,” said Gonzales. “And unfortunately, they have caused concern over the potential breadth of what the president has actually authorized.”
© 2006 MSNBC Interactive
http://www.msnbc.msn.com/id/11018747/page/2/
Although you are certainly entitled to your opinion, Pindar, it seems that many judges, lawyers and law school professors have serious doubts about the legality of the program.
As a way of reinvigorating the debate as we head towards the hearings, we might like to consider the recent remarks by senior law professors at Georgetown and George Washington Univerisity:
Hi Hurin,
I don't think three law professors constitute many. Regardless, their comments are directed toward a probable cause standard. This is not the legal justification for the NSA Program. Gonzales correctly explained in the Georgetown University law school debate, I assume they attended, what the legal justification is:
"The terrorist surveillance program is firmly grounded in the President’s constitutional authorities.... It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.
If this is the case in ordinary times, it is even more so in the present circumstances of our armed conflict with al Qaeda and its allies."
Here is some historical context from the same speech:
"[A]s long as electronic communications have existed, the United States has conducted surveillance of those communications during wartime—all without judicial warrant. In the Civil War, for example, telegraph wiretapping was common, and provided important intelligence for both sides. In World War I, President Wilson ordered the interception of all cable communications between the United States and Europe; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves only the interception of international communications that are linked to al Qaeda or its allies."
This inherent authority stance is supported by at least five federal appellate court decisions I can think of with not a single contrary or conflicting decision.
Anyone who's interested can see a debate on the matter that was on CSPAN Tuesday here. Atty. Gen. Gonzales Speech on Domestic Surveillance (http://www.c-span.org/homepage.asp?Cat=Current_Event&Code=Terr&ShowVidNum=25&Rot_Cat_CD=911_Resp&Rot_HT=&Rot_WD=&ShowVidDays=30&ShowVidDesc=&ArchiveDays=365)
Gonzales speaks for about the first half hour and then the panelists begin debating.
What's really telling is no one, to my knowledge, has yet called for the program to halt. I agree, that speaks volumes.
What's really telling is no one, to my knowledge, has yet called for the program to halt.
X: I agree, that speaks volumes.
It's also interesting to ask why no inquiry was formed when the Administration first notified Congressional Leaders. The brouhaha didn't begin until after the Times report and the swamp fever went rabid. We have been looking at the legal question proper which is a non-starter, but what is really interesting is the political dynamic. I think most of the Demos in Congress and other Senate old guard are being forced down a road they know is very dangerous. I am really happy to see this debate drag on for as long as possible. It is a mine field for the Demos and the Mid-Term Elections are getting closer.
Adrian II
01-26-2006, 14:36
What's really telling is no one, to my knowledge, has yet called for the program to halt.Indeed! Then why do you continue defending its existence?
The legality of the program is not disputed here. Nor is the ultimate necessity of the program. Nor is the President's competence to apply it to the extent of the law.
What is disputed in this thread is the President's right to apply it beyond the extent of the law. Now if you would stop being obnoxious and start addressing the issue, it would make the thread less.. repetitive, shall we say?...
:dozey:
Indeed! Then why do you continue defending its existence?
The legality of the program is not disputed here. Nor is the ultimate necessity of the program. Nor is the President's competence to apply it to the extent of the law.
What is disputed in this thread is the President's right to apply it beyond the extent of the law. Now if you would stop being obnoxious and start addressing the issue, it would make the thread less.. repetitive, shall we say?...
:dozey:
Obnoxious? That's not quite cricket.
If the NSA warrantless surveillance program's legality is not under dispute then what beyond are you referring to? If the President has the Constitutional authority to conduct warrantless surveillance then what does beyond mean here? Are you charging the President went beyond his Constitutional authority? In what way? Are you charging the program was doing something other than what the Department of Justice said it was/is doing? If so, what is that? If not, then I don't know what you mean.
Tribesman
01-26-2006, 22:46
Are you charging the program was doing something other than what the Department of Justice said it was/is doing? If so, what is that? If not, then I don't know what you mean.
Is it time to put your head back in the sand Pindar ?
For some reason or other the NSA surveilance program was monitoring purely domestic traffic between American citizens , or didn't you know that ?:laugh4:
What is disputed in this thread is the President's right to apply it beyond the extent of the law.
That issue is seperate to mine Adrian, as the White House has not claimed that the straying beyond the legal bounds of the plan was done under Presidential authority .
In fact it says it shouldn't have happened , that is why an inquiry must determine how and why it did happen .
Are you charging the program was doing something other than what the Department of Justice said it was/is doing? If so, what is that? If not, then I don't know what you mean.
Is it time to put your head back in the sand Pindar ?
For some reason or other the NSA surveilance program was monitoring purely domestic traffic between American citizens , or didn't you know that ?:laugh4:
Vacuous Comment Penalty Box! :helmet:
Is it time to put your head back in the sand Pindar ?
For some reason or other the NSA surveilance program was monitoring purely domestic traffic between American citizens , or didn't you know that ?:laugh4:*sigh* That old song and dance is really getting tedious. :juggle2:
Someone go back through the last 12 pages and find out how many times he's said that or something similar without any elaboration, links, or even a discernable point. :rolleyes:
*sigh* That old song and dance is really getting tedious. :juggle2:
Someone go back through the last 12 pages and find out how many times he's said that or something similar without any elaboration, links, or even a discernable point. :rolleyes:
Must resist the temptation to make a comment..............:laugh4:
Tribesman
01-27-2006, 01:31
Vacuous Comment Penalty Box!
ah yes , the foriegn spying was legal so the illegal domestic spying doesn't matter because illegal actions are not your issue are they Pindar , you don't like them for some reason .
Is it because you cannot find lots of legal references that show that illegal actions are legal ?
Vacuous Comment Penalty Box!
ah yes , the foriegn spying was legal so the illegal domestic spying doesn't matter because illegal actions are not your issue are they Pindar , you don't like them for some reason .
Is it because you cannot find lots of legal references that show that illegal actions are legal ?
See post 349.
Tribesman
01-27-2006, 02:24
See post 349.
An action does not have to be either systematic or intentional to be illegal does it .
See post 349.
An action does not have to be either systematic or intentional to be illegal does it .
It does if your discussing a program. If your not discussing a program then you need a committing individual. If there is no committing individual then your forced back to the notion of the program or the point becomes specious.
Adrian II
01-29-2006, 19:43
Aaaanyway, today The New York Times has an editorial about the various issues involved that I think is absolutely spot on.
The New York Times
January 29, 2006
Editorial
Spies, Lies and Wiretaps
A bit over a week ago, President Bush and his men promised to provide the legal, constitutional and moral justifications for the sort of warrantless spying on Americans that has been illegal for nearly 30 years. Instead, we got the familiar mix of political spin, clumsy historical misinformation, contemptuous dismissals of civil liberties concerns, cynical attempts to paint dissents as anti-American and pro-terrorist, and a couple of big, dangerous lies.
The first was that the domestic spying program is carefully aimed only at people who are actively working with Al Qaeda, when actually it has violated the rights of countless innocent Americans. And the second was that the Bush team could have prevented the 9/11 attacks if only they had thought of eavesdropping without a warrant.
•
Sept. 11 could have been prevented. This is breathtakingly cynical. The nation's guardians did not miss the 9/11 plot because it takes a few hours to get a warrant to eavesdrop on phone calls and e-mail messages. They missed the plot because they were not looking. The same officials who now say 9/11 could have been prevented said at the time that no one could possibly have foreseen the attacks. We keep hoping that Mr. Bush will finally lay down the bloody banner of 9/11, but Karl Rove, who emerged from hiding recently to talk about domestic spying, made it clear that will not happen — because the White House thinks it can make Democrats look as though they do not want to defend America. "President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," he told Republican officials. "Some important Democrats clearly disagree."
Mr. Rove knows perfectly well that no Democrat has ever said any such thing — and that nothing prevented American intelligence from listening to a call from Al Qaeda to the United States, or a call from the United States to Al Qaeda, before Sept. 11, 2001, or since. The 1978 Foreign Intelligence Surveillance Act simply required the government to obey the Constitution in doing so. And FISA was amended after 9/11 to make the job much easier.
Only bad guys are spied on. Bush officials have said the surveillance is tightly focused only on contacts between people in this country and Al Qaeda and other terrorist groups. Vice President Dick Cheney claimed it saved thousands of lives by preventing attacks. But reporting in this paper has shown that the National Security Agency swept up vast quantities of e-mail messages and telephone calls and used computer searches to generate thousands of leads. F.B.I. officials said virtually all of these led to dead ends or to innocent Americans. The biggest fish the administration has claimed so far has been a crackpot who wanted to destroy the Brooklyn Bridge with a blowtorch — a case that F.B.I. officials said was not connected to the spying operation anyway.
The spying is legal. The secret program violates the law as currently written. It's that simple. In fact, FISA was enacted in 1978 to avoid just this sort of abuse. It said that the government could not spy on Americans by reading their mail (or now their e-mail) or listening to their telephone conversations without obtaining a warrant from a special court created for this purpose. The court has approved tens of thousands of warrants over the years and rejected a handful.
As amended after 9/11, the law says the government needs probable cause, the constitutional gold standard, to believe the subject of the surveillance works for a foreign power or a terrorist group, or is a lone-wolf terrorist. The attorney general can authorize electronic snooping on his own for 72 hours and seek a warrant later. But that was not good enough for Mr. Bush, who lowered the standard for spying on Americans from "probable cause" to "reasonable belief" and then cast aside the bedrock democratic principle of judicial review.
Just trust us. Mr. Bush made himself the judge of the proper balance between national security and Americans' rights, between the law and presidential power. He wants Americans to accept, on faith, that he is doing it right. But even if the United States had a government based on the good character of elected officials rather than law, Mr. Bush would not have earned that kind of trust. The domestic spying program is part of a well-established pattern: when Mr. Bush doesn't like the rules, he just changes them, as he has done for the detention and treatment of prisoners and has threatened to do in other areas, like the confirmation of his judicial nominees. He has consistently shown a lack of regard for privacy, civil liberties and judicial due process in claiming his sweeping powers. The founders of our country created the system of checks and balances to avert just this sort of imperial arrogance.
The rules needed to be changed. In 2002, a Republican senator — Mike DeWine of Ohio — introduced a bill that would have done just that, by lowering the standard for issuing a warrant from probable cause to "reasonable suspicion" for a "non-United States person." But the Justice Department opposed it, saying the change raised "both significant legal and practical issues" and may have been unconstitutional. Now, the president and Attorney General Alberto Gonzales are telling Americans that reasonable suspicion is a perfectly fine standard for spying on Americans as well as non-Americans — and they are the sole judges of what is reasonable.
So why oppose the DeWine bill? Perhaps because Mr. Bush had already secretly lowered the standard of proof — and dispensed with judges and warrants — for Americans and non-Americans alike, and did not want anyone to know.
War changes everything. Mr. Bush says Congress gave him the authority to do anything he wanted when it authorized the invasion of Afghanistan. There is simply nothing in the record to support this ridiculous argument.
The administration also says that the vote was the start of a war against terrorism and that the spying operation is what Mr. Cheney calls a "wartime measure." That just doesn't hold up. The Constitution does suggest expanded presidential powers in a time of war. But the men who wrote it had in mind wars with a beginning and an end. The war Mr. Bush and Mr. Cheney keep trying to sell to Americans goes on forever and excuses everything.
Other presidents did it. Mr. Gonzales, who had the incredible bad taste to begin his defense of the spying operation by talking of those who plunged to their deaths from the flaming twin towers, claimed historic precedent for a president to authorize warrantless surveillance. He mentioned George Washington, Woodrow Wilson and Franklin D. Roosevelt. These precedents have no bearing on the current situation, and Mr. Gonzales's timeline conveniently ended with F.D.R., rather than including Richard Nixon, whose surveillance of antiwar groups and other political opponents inspired FISA in the first place. Like Mr. Nixon, Mr. Bush is waging an unpopular war, and his administration has abused its powers against antiwar groups and even those that are just anti-Republican.
•
The Senate Judiciary Committee is about to start hearings on the domestic spying. Congress has failed, tragically, on several occasions in the last five years to rein in Mr. Bush and restore the checks and balances that are the genius of American constitutional democracy. It is critical that it not betray the public once again on this score.
Link (http://www.nytimes.com/2006/01/29/opinion/29sun1.html?hp=&pagewanted=print)
Aaaanyway, today The New York Times has an editorial about the various issues involved that I think is absolutely spot on.You're agreeing with the NYT editorial page? Color me shocked.... ~:eek:
Adrian II
01-29-2006, 20:40
You're agreeing with the NYT editorial page? Color me shocked.... ~:eek:Dude, this is about bigger issues than AdrianII's reading habits. :mellow:
Dude, this is about bigger issues than AdrianII's reading habits. :mellow:
Well, there's really nothing in the editorial that hasnt already been discussed ad nauseum here... Eavesdropping on foreign agents is clearly legal- even if they are communicating with someone domestically and the calling patterns/emails would almost certainly fall under the purviews of a National Security Letter. I think NSLs stink as their currently allowed- but I'm not going to say they're illegal.
Aaaanyway, today The New York Times has an editorial about the various issues involved that I think is absolutely spot on.
[indent]The New York Times
January 29, 2006
Editorial
Spies, Lies and Wiretaps
A bit over a week ago, President Bush and his men promised to provide the legal, constitutional and moral justifications for the sort of warrantless spying on Americans that has been illegal for nearly 30 years.
I'm surprised you find this editorial so spot on. I got to the above and immediately thought, "is this supposed to be a legal argument? If so I expect the author is prepared to answer the case law that flies in the face of his position." Examples of such cases would be:
United States v. Butenko (1974) where the court held that no judicial warrant was necessary where "surveillances ... were 'conducted and maintained solely for the purpose of gathering foreign intelligence information.'”. This is outside his 30 year window so maybe it would be better to mention:
United States v. Truong (1980):
"For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."
Perhaps the author engages United States v. Duggan (1984) The Court stated:
"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
There is also that previously mentioned bugger the In re: Sealed Case (2002):
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
One would think answering the contradicting case law after making claims like: "warrantless spying on Americans that has been illegal for nearly 30 years" would be included in the editorial otherwise the argument would seem to be rather uniformed and foolish. It may be the author hadn't read any of the case law. I know that was the case with the author of the original story (Eric Lichtblau was it?) as he admitted in a radio interview.
The interesting issue with any Times article is they and Lichtblau have violated Federal law namely: 18 U.S.C. Section 798. I noted this in the thread a long time ago. I'll quote some it again as a refresher:
"-a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
-(3) concerning the communication intelligence activities of the United States or any foreign government...
-Shall be fined under this title or imprisoned not more than ten years, or both."
It would seem that given the Times breach of Federal law there is an obvious legal jeopardy issue. It's hard to take seriously a paper that doesn't read the law it comments on and refuses to own up to its own conflict of interest.
Adrian II
01-30-2006, 07:51
I'm surprised you find this editorial so spot on.And I am not surprised that you repeat your case law. It is spot on as well...
United States v. Truong (1980):
"(..) the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would (..) “unduly frustrate” the President in carrying out his foreign affairs responsibilities."That is why the White House, which is able to avail itself of some of the best legal minds in the U.S., has not chosen the Pindar-defence.
And I am not surprised that you repeat your case law. It is spot on as well...
United States v. Truong (1980):
"(..) the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would (..) “unduly frustrate” the President in carrying out his foreign affairs responsibilities."That is why the White House, which is able to avail itself of some of the best legal minds in the U.S., has not chosen the Pindar-defence.
The above almost sounds like a personal attack. I'm probably misreading.
I noted you quoted Truong above and highlighted a section. Are you suggesting the NSA Program is not focused on foreign intelligence gathering? That would be an interesting claim given the In re Sealed Case specifically cites Truong as an example of why the NSA program is legally justified. Note again:
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
This 2002 ruling is a killing blow to the hysteria mongers.
Regarding an alternate 'defense': if you read the Justice Dept. Dec. 22 letter where the legal justification is given for the program they argue the same position I have put forward namely: the President has the inherent Constitutional authority to order warrantless foreign intelligence surveillance within the U.S.. They then argue the President's authority is even enhanced by the AUMF declared by Congress after 9/11. I have argued the same in this thread. The Attorney General Gonzales made the same argument in his recent debate at Georgetown University. Given those two examples I'm not sure what other defense you are referring to.
Adrian II
01-30-2006, 22:52
The above almost sounds like a personal attack. I'm probably misreading.Only if you count yourself among the best legal minds of the country...
As you know, the White House chose another defense: a law may be bypassed if and when it is cumbersome. That is not cricket, it is a different ball game altogether. One that says a President in wartime has imperial powers.
The NYT put it nicely (above) when it wrote: 'The secret program violates the law as currently written. It's that simple. In fact, FISA was enacted in 1978 to avoid just this sort of abuse. It said that the government could not spy on Americans by reading their mail (or now their e-mail) or listening to their telephone conversations without obtaining a warrant from a special court created for this purpose. The court has approved tens of thousands of warrants over the years and rejected a handful. As amended after 9/11, the law says the government needs probable cause, the constitutional gold standard, to believe the subject of the surveillance works for a foreign power or a terrorist group, or is a lone-wolf terrorist.'
Are you suggesting the NSA Program is not focused on foreign intelligence gathering?It may have been used for other purposes since FISA warrants were not always sought or granted. The law was admittedly violated. Intent and consequence remain tobe established.
And personal attacks? Heaven forbid, dear Pindar! I merely refuse to be discombobulated by irrelevant case law.
I merely refuse to be discombobulated by irrelevant case law.
Must resist the obvious snide comment concerning the issue, the media, and being discombobulated... Must resist.. :dizzy2: I have made myself :dizzy2: in my resistance.
:2thumbsup:
Tribesman
01-31-2006, 00:02
I noted you quoted Truong above and highlighted a section. Are you suggesting the NSA Program is not focused on foreign intelligence gathering?
Dodedodedodedo....hmmmm....interesting......are you suggesting that the NSA has not carried out purely domestic surveilance despite its legal focus on foriegn intelligence ?
Only if you count yourself among the best legal minds of the country...
As you know, the White House chose another defense: a law may be bypassed if and when it is cumbersome. That is not cricket, it is a different ball game altogether. One that says a President in wartime has imperial powers.
My good Adrian, this is silly. The 'defense' is as I explained. I gave you two citations: the Justice Department and the Attorney General. You shouldn't fall to the level of other posters where logic and reasoned discourse are jettisoned out of a base hostility. You're a better man than that even if you fail to give proper deference to Monica Belluchi.
The NYT put it nicely (above) when it wrote: 'The secret program violates the law as currently written...I merely refuse to be discombobulated by irrelevant case law
This of course is wrong. It is a legally absurd position. It's absurd because it shows a base misunderstanding of U.S. law. Congress cannot by statute impinge on Presidential powers. It doesn't have that authority. Any law that would do so must either be reinterpreted to allow the President to fulfill his charge or be deemed unconstitutional. The Courts understand this that is why all the case law (without exception) supports the Presidential line. Moreover, when considering a legal question one cannot discount case law as irrelevant. The case law is the primary and critical feature when discussing legal questions. This is fundamental to the Common Law Tradition.
Adrian II
02-01-2006, 11:24
Congress cannot by statute impinge on Presidential powers. It doesn't have that authority. Any law that would do so must either be reinterpreted to allow the President to fulfill his charge or be deemed unconstitutional.Yet no court has ever ruled that FISA is unconstitutional. If the president thinks it is, he should fight it in court, not bypass it.
The funny thing is that Congress enacted this 1978 law to provide warrants for domestic eavesdropping in hours or even minutes if required. It even allows for a 72-hour time span for eavesdropping without warrant, provided that one is sought before it expires.
The Courts understand this that is why all the case law (without exception) supports the Presidential line.Sure, the case law you quote supports the President's legal right to eavesdrop in the interest of foreign intelligence gathering. It does not address the FISA issue, i.e. eavesdropping on Americans without a legally required warrant.
Now if it turns out that warrantless eavesdropping on Americans for purposes other than foreign intelligence gathering has taken place -- and there are strong indications of this that deserve further investigation -- this President has a serious problem.
That is what Snoopgate is about. It is not about the President's power to protect the nation. It is about the President's abuse of this power to spy on the media, Congress and God knows who else with the intention of covering his own fundament.
According to court papers, AT&T has given the NSA access to several of its databases, including those code-named Daytona, Aurora, and Hawkeye, which allow the agency to collect information about how AT&T customers use its communications services. AT&T did not notify customers of the investigation or the company's role in it, so customers were not given a chance to consent to it, the group wrote in its suit.link (http://news.yahoo.com/s/pcworld/20060201/tc_pcworld/124569)
This looks almost exactly like what I've been suggesting for the email/call pattern monitoring- National Security Letters. If so, it would make perfect sense that AT&T did not notify it's customers, since under the PATRIOT act it is illegal to do so. I've suspected that this was a seperate issue from the FISA one and this only further convinces me.
I like what the EFF does generally and think that NSLs, as implemented are quite insiduous. However, I think the EFF is going about this the wrong way by suing AT&T- they should be instead trying to get the appropriate section of the PATRIOT Act struck down. I suspect that courts will find in this case that AT&T was following the letter of the law.
Me:
Congress cannot by statute impinge on Presidential powers. It doesn't have that authority. Any law that would do so must either be reinterpreted to allow the President to fulfill his charge or be deemed unconstitutional.
Yet no court has ever ruled that FISA is unconstitutional. If the president thinks it is, he should fight it in court, not bypass it.
FISA may be ruled unconsittuitonal. What is more likely is it will remain applicable where is has always been: regarding purley domestic surveilance. Regardless its fate, the base fact remains: the President is vested with Consitutional power independant from and irrespective to any statute of Congress. The NSA Program falls within that purview.
The funny thing is that Congress enacted this 1978 law to provide warrants for domestic eavesdropping in hours or even minutes if required. It even allows for a 72-hour time span for eavesdropping without warrant, provided that one is sought before it expires.
Regardless the intent and the reality, where the approval process takes considerable longer than 72 hours, (recall post 301*) FISA does not apply.
Sure, the case law you quote supports the President's legal right to eavesdrop in the interest of foreign intelligence gathering. It does not address the FISA issue, i.e. eavesdropping on Americans without a legally required warrant.
This is not correct. The 2002 In re Sealed Case directly addresses FISA. This was a FISA Court.
Now if it turns out that warrantless eavesdropping on Americans for purposes other than foreign intelligence gathering has taken place -- and there are strong indications of this that deserve further investigation -- this President has a serious problem.
I've seen nothing to suggest that. What's more, were we to assume such occured that simply means the program moved beyond its parameters and would be corrected. The only way this becomes a legal issue for Bush is if one could show Bush ordered some Nixon style easedropping over and above the stated policy. That is not likely.
*Note: Questions about efficacy is separate from base legality.
Regarding the flexability and speed of FISA even allowing for a 72 hr extension: here is a list of what needs to be done:
" (a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the target of the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;
(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and
(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device."
X Your O'Neal quote is funny. :flowers:
Tribesman
02-01-2006, 22:07
I've seen nothing to suggest that.
WHAT ?????
The White house has said it has happened , the NSA has said it has happened .
The issue is how did it happen , why did it happen , and what is being done to ensure that it doesn't happen again .
Oh sorry that isn't the issue is it , the issue is ????Oh yeah the foriegn spying was legal
I've seen nothing to suggest that.
WHAT ?????
The White house has said it has happened , the NSA has said it has happened .
The issue is how did it happen , why did it happen , and what is being done to ensure that it doesn't happen again .
Oh sorry that isn't the issue is it , the issue is ????Oh yeah the foriegn spying was legal
Your oppositionism is effecting your reading skills. Note what Adrian wrote: "Now if it turns out that warrantless eavesdropping on Americans for purposes other than foreign intelligence gathering has taken place..."
Purpose implies intent. Do you want to argue the Administration has an intentional surveillance program in place other than the NSA one discussed? Do you want to argue the NSA Program has other intentions? If so make your argument.
Tribesman
02-01-2006, 22:55
Poor Pindar , it is your reading skills that are lacking .
Now if it turns out that warrantless eavesdropping on Americans for purposes other than foreign intelligence gathering has taken place -- and there are strong indications of this that deserve further investigation
Warrentless surveilance of domestic traffic has taken place . An investigation should find how and why this happened .
You wish to discount this occurence as irrelevant before it has been investigated , Why?
I understand that no one can take a clear position on this until it has been investigated , but you seem to choose to either ignore that it has even occured , or you ask people to speculate on how and why it happened .
It appears that the only speculation and assumptions are coming from you .
Warrentless surveilance of domestic traffic has taken place .
Is this with the emails and calling patterns again?
Tribesman
02-01-2006, 23:10
Is this with the emails and calling patterns again?
Nope , neither is it the tracking cookies on the NSAs website that it kept in place for two years after the courts told it to remove them .
This is the warrentless wiretap surveilance of purely domestic traffic , despite the program being specifically restricted to foriegn traffic .
Now there are other programs that allow for domestic taps , but this one doesn't , so therefore those taps were illegal under this program .
How and why these illegal events happened is a matter for the inquiry to find out .
Is this with the emails and calling patterns again?
Nope , neither is it the tracking cookies on the NSAs website that it kept in place for two years after the courts told it to remove them .:laugh4: That's sad. If you're trying to make hay with the cookies story, you're either totally grasping at straws or dont understand how cookies work. It was a mistake, a stupid mistake- but nothing nefarious at all, nor beneficial to intelligence.
This is the warrentless wiretap surveilance of purely domestic traffic , despite the program being specifically restricted to foriegn traffic .
Now there are other programs that allow for domestic taps , but this one doesn't , so therefore those taps were illegal under this program .
How and why these illegal events happened is a matter for the inquiry to find out .Do you have links for this? You're making alot of it, but I dont remember you linking any of your sources for it. The only wholly domestic accusations Ive seen are the ones in the NYT over emails and call patterns(data mining)- like AT&T is being sued over. So, Id really like to see what information you're basing this on.
Adrian II
02-02-2006, 01:56
FISA may be ruled unconstitutional.Could be, but it hasn't. FISA covers surveillance of individuals in the United States, and it covers it exclusively because it states that anyone who eavesdrops in the U.S. without a FISA warrant is liable to prosecution. This covers eavesdropping on individuals who threaten American security in cahoots with foreign powers or foreign groups, as well as eavesdropping on individuals whose make-up and intent are purely domestic.
Poor Pindar , it is your reading skills that are lacking .
[I]Now if it turns out that warrantless eavesdropping on Americans for purposes other than foreign intelligence gathering has taken place --
Minus one point for lack of originality. Minus one point for lack of coherence: my reading skills have no impact on the result of a conditional.
You wish to discount this occurence as irrelevant before it has been investigated , Why?
I understand that no one can take a clear position on this until it has been investigated...
You answer your own question: I take no position on things that don't have any conclusion or compelling evidence.
Could be, but it hasn't. FISA covers surveillance of individuals in the United States, and it covers it exclusively because it states that anyone who eavesdrops in the U.S. without a FISA warrant is liable to prosecution. This covers eavesdropping on individuals who threaten American security in cahoots with foreign powers or foreign groups, as well as eavesdropping on individuals whose make-up and intent are purely domestic.
There are two immediate problems:
This argument has already been explicitly rejected by the FISA Appellate Court in the In re Sealed Case.
Congress can neither add to nor limit the Constitutional powers of the President.
Adrian II
02-02-2006, 12:49
Congress can neither add to nor limit the Constitutional powers of the President.Quite. And it is the President's claim to war powers in the present circumstances that is highly debatable. We have been there.
For those interested in the wider issue of this 'Imperial presidency', Tom Powers has written a highly informative review of James Risen's book for the February 23 issue of the New York Review of Books which has been pre-published on various websites with the paper's permission: The Biggest Secret (http://www.truthout.org/docs_2006/020106C.shtml).
Quite. And it is the President's claim to war powers in the present circumstances that is highly debatable. We have been there.
The reference to the President's Constitutional investiture, specifically the power to conduct warrantless surveillance in pursuit of foreign intell., is not based on any war powers. The AUMF is a separate act where Congress can add its voice to an issue which they have done.
Hurin_Rules
02-06-2006, 04:11
On that point:
GOP senator calls spying reasons ‘unrealistic’
Sen. Specter, R-Pa., says he believes Bush administration broke the law
Updated: 3:29 p.m. ET Feb. 5, 2006
WASHINGTON - Attorney General Alberto Gonzales’ explanations so far for the Bush administration’s failure to obtain warrants for its domestic surveillance program are “strained” and “unrealistic,” the Senate Judiciary Committee chairman said Sunday.
Sen. Arlen Specter, whose committee has scheduled hearings Monday on the National Security Agency program, said he believes the administration violated a 1978 law specifically calling for a secretive court to consider and approve such monitoring.
Specter, R-Pa., said he might consider subpoenas for administration documents that would detail its legal justification for the program.
“The president could’ve taken this there and lay it on the line,” Specter said, citing the special court set up under the Foreign Intelligence Surveillance Act of 1978.
“That court has an outstanding record of not leaking. They would be pre-eminently well-qualified to evaluate this program and say it’s OK or not OK,” Specter told NBC’s “Meet the Press.”
Under the NSA program put in place after the attacks of Sept. 11, 2001, the government has eavesdropped, without seeking warrants, on international phone calls and e-mails of people within the United States who are deemed to be a terrorism risk.
The administration has defended Bush’s decision to bypass the FISA law, saying it is too cumbersome to deal with in a post-Sept. 11 world of heightened security threats. It also said Bush had authority as commander in chief and under a 2001 congressional resolution authorizing force in the fight against terrorism.
“The president’s authority to take military action—including the use of communications intelligence targeted at the enemy—does not come merely from his constitutional powers. It comes directly from Congress as well,” in that post-Sept. 11 resolution, according to Gonzales’ prepared testimony for the hearing. The Associated Press on Saturday obtained a copy of his scheduled remarks.
Specter was skeptical.
“I think that contention is very strained and unrealistic. The authorization for use of force never mentions electronic surveillance,” Specter said.
In response to written questions submitted to him by Specter before the hearing, Gonzales gives an explanation why the administration bypassed the FISA court: “The delay inherent in the FISA process is incompatible with the narrow purpose of this early warning system.”
Specter, however, said that response “was not entirely responsive. ... His answer wasn’t really clear.” The senator said there is no reason why the administration could not have consulted with the spy court or Congress, who could have changed the law if it was too cumbersome.
But Gen. Michael Hayden, the No. 2 intelligence official in the government, said the FISA process “doesn’t give us the speed and agility to do what this program is designed to do.”
The program’s intent is to “detect and prevent attacks. This is not about long-term surveillance to gather reams of intelligence against a stable and a fixed target,” Hayden said on “Fox News Sunday.”
Specter’s committee has asked the administration to Justice Department documents detailing the legal justification for the NSA program.
Asked about the possibility the committee might subpoena the administration for the material, Specter said he first wanted to hear from Gonzales.
“If we come to it and need it, I’ll be open about it,” Specter said. He added, “If the necessity arises, I won’t be timid.”
© 2006 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
http://www.msnbc.msn.com/id/11188271/
Hurin_Rules
02-06-2006, 21:05
The hearings continued today, with the Republican chairman reminding Gonzalez that the president does not have a 'blank check.' Some other interesting facts came to light:
Gonzales makes case for spy program
Republican chairman reminds him president ‘does not have blank check’
Updated: 1:46 p.m. ET Feb. 6, 2006
WASHINGTON - Attorney General Alberto Gonzales on Monday said that President Bush’s electronic eavesdropping program was vital in the war against terrorism, testifying at a Senate hearing where the Republican chairman reminded him that the Supreme Court had ruled that “the president does not have a blank check.”
Gonzales’ strong defense of Bush’s program was challenged by Sen. Arlen Specter, chairman of the Judiciary Committee, and committee Democrats during sometimes contentious questioning.
Specter asked that the program’s legality be reviewed by a special federal court set up by the 1978 Foreign Intelligence Surveillance Act.
“There are a lot of people who think you’re wrong. What do you have to lose if you’re right?” Specter, R-Pa., asked Gonzales.
Gonzales did not directly respond to the request, stating that the administration is confident it is acting within the law. Asked again by Specter, he refused to accept or reject the idea, saying the administration was continually looking into ways to improve the program and protect individual rights.
Specter also expressed skepticism over Bush’s assertion that he has the legal authority to wiretap Americans’ conversations without a warrant.
Federal law “has a forceful and blanket prohibition against any electronic surveillance without a court order,” Specter said as he opened a hearing on the National Security Agency’s eavesdropping program.
While the president claims he has the authority to order such surveillance to protect Americans from terrorist attacks, Specter said, “I am skeptical of that interpretation.”
Sen. Orrin Hatch, the second Republican senator to question Gonzales, came to the president’s defense, citing legal precedent that supported executive powers in time of war.
'Reasonable'
In remarks prepared for the hearing, Gonzales said that the program “may make the difference between success and failure” in stopping the next terrorist attack.
Committee Democrats, who have generally contended that Bush is acting illegally in permitting domestic surveillance by the National Security Agency, sharply grilled Gonzales.
Sen. Patrick Leahy, D-Vt., asked if the authorization Bush claims to have would also enable the government to open mail—in addition to monitoring voice and electronic communications.
“There is all kinds of wild speculation out there about what the president has authorized and what we’re actually doing,” Gonzales said.
“You’re not answering my question,” Leahy retorted. “Does this law authorize the opening of first class mail of U.S. citizens? Yes or no.”
“That’s not what’s going on,” Gonzales said. “We are only focusing on international communications, where one part of the conversation is al-Qaida.”
Gonzales said the fact that the nation is at war gives the president more powers than during peacetime. “The president is acting with authority both by the Constitution and by statute,” he said.
Specter: Gonzales comments 'strained and unrealistic'
Suggesting Republicans too may have tough questions for Gonzales, Specter on Sunday called Gonzales’ legal explanations to date “strained and unrealistic.”
In the statement, Gonzales called the monitoring program “reasonable” and “lawful.” He lashed out at the news media for stories he called often “misinformed, confused or wrong.”
“As the president has explained, the terrorist surveillance program operated by the (electronic-monitoring National Security Agency) requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack.”
His arguments reiterated those defending Bush’s decision to allow the NSA to eavesdrop, without first obtaining warrants, on people inside the United States whose calls or e-mails may be linked to terrorism.
No ‘operational details’
But in his prepared remarks, Gonzales said he could not discuss how the program works, as skeptics of the program have demanded. “An open discussion of the operational details of this program would put the lives of Americans at risk,” he said.
The program has sparked a heated debate about presidential powers in the war on terror since it was first disclosed in December.
Gonzales argued that Congress did, in fact, authorize the president in September 2001 to use military force in the war on terror.
He noted that the legislation “calls on the president to protect Americans both ’at home and abroad,”’ and “to take action to prevent further terrorist attacks ’against the United States.”’
But congressional Democrats have said they did not intend to order domestic surveillance.
‘This isn’t a drift net’
News accounts have suggested the program vacuums up vast amounts of communications and sifts through them for possible links to terrorists. Gen. Michael Hayden, the nation’s No. 2 intelligence official, rejected that, saying on Sunday that the NSA first establishes a reason for being interested in the calls or e-mails.
“This isn’t a drift net over Lackawanna (N.Y.) or Fremont (Calif.) or Dearborn (Mich.), grabbing all communications and then sifting them out,” Hayden said of three U.S. cities with sizable Muslim populations.
Sen. Dianne Feinstein, D-Calif., told Specter last week that he should compel the Justice Department to turn over classified legal opinions on the program, using subpoenas if necessary.
Specter said Sunday he’s open to that. “If the necessity arises, I won’t be timid,” he said.
The Judiciary Committee’s Democrats also want Specter to call more administration officials for questioning, including former Attorney General John Ashcroft and ex-Deputy Attorney General Jim Comey. Comey reportedly objected to parts of the program.
The Associated Press contributed to this report.
http://www.msnbc.msn.com/id/11199689/
Hurin_Rules
02-07-2006, 02:24
Well, the hearings are finally underway and very enlightening, I must say.
Specter, the former lawyer and Republican chair of the judiciary committee, came right out and rejected much of the Bush administration's arguments for the domestic spying program.
When it comes to American law, I'm just a novice, but it seems he was arguing that the FISA statute specifically prohibited anyone from using electronic surveillance within the USA without a warrant. Gonzalez seemed to be arguing that the AUMF superceeded this, but Specter did not buy that and specifically rejected the argument that the AUMF included electronic surveillance. He actually pointed to several pieces of evidence that suggested those who passed FISA and the AUMF rejected the idea of sanctioning electronic surveillance without a warrant.
Also, Specter pressed Gonzalez on the claim that the second amendment gives the president the authority to collect such intelligence. He noted that there might be a constitutional crisis here if the president claims this power under the second amendment and the congress rejects it under the fourth.
He concluded by requesting that Gonzalez et al. vet their program before the FISA court, to preclude such a crisis.
There are more hearings scheduled next week. THe committee hopes to have John Ashcroft testify and may actually subpoena the Bush administration to release documents that testify to sharp differences of opinion even within the Bush governement on whether the program was legal.
Should be more fun next week. Stay tuned!
Hello Hurin,
Listening to the hearings I'm reminded of my first longer post in this thread: "My involvement in this thread is concerned with the legal standing of warrantless searches only: not whether individuals find that agreeable or not." and "As a legal issue there is nothing to this. Political grandstanding has its own purposes and devices, but those are distinct from real issues of law. These should not be confused." * A simple example from Senator Leahy: "My concern is for peaceful Quakers who are being spied upon, and other law-abiding Americans and babies and nuns who are placed on terrorist watch lists,” Quakers? Babies? Nuns?....
I noted you bolded this:? " “I think that contention is very strained and unrealistic. The authorization for use of force never mentions electronic surveillance,” Specter said." My assume you think this important. Aside from the rather odd logic Specter seems to employ, that surveillance isn't connected to the use of force or put another way: one is allowed to kill the enemy but not listen for their plans, you may not have heard Gonzales explain how intelligence gathering is implicit in the very notion of any AUMF which he then illustrated through the Supreme Court's 2004 Hamdi decision** which demonstrates implicit empowerment to prosecute war and its periphera over and above any need to explicitly state such.
Just to clarify the direction of things. I have previously explained how the President has plenary Constitutional authority independent of Congress to conduct warrantless foreign surveillance and that Congress cannot by statute remove a President's Constitutional authority. I also explained how the AUMF could only act as a strengthening of that base authority. The Attorney General (AG) made both of these points repeatedly. He then added separate from what I have explained that FISA even includes an exception clause where it can be nullified by Congressional statute. This is section 1809: "A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute..." Gonzales then explained the AUMF constitutes just such a Congressional statute that overrides FISA.
Now if Spector or the Democrats are serious in believing the AUMF doesn't or wasn't meant to allow surveillance he/they should put forward on the Senate floor a motion calling for the Senate to clarify its stance on the AUMF: that it wasn't meant to include surveillance. At the very least this would allow them to openly debate whether the NSA Program is a good idea and whether warrantless surveillance listening for Al Qaeda calls is a good idea. Do you think this will happen? Not likely thought it would be lovely if it did.
* Ahh, the joys of self quoting
**Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. Part of the Court's ruling included a reinforcement of Presidential inherent authority. I will give you a couple of qutoes:
"We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."
and
"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force]."
Hurin_Rules
02-07-2006, 05:09
Hello Hurin,
I noted you bolded this:? " “I think that contention is very strained and unrealistic. The authorization for use of force never mentions electronic surveillance,” Specter said." My assume you think this important. Aside from the rather odd logic Specter seems to employ, that surveillance isn't connected to the use of force or put another way: one is allowed to kill the enemy but not listen for their plans, you may not have heard Gonzales explain how intelligence gathering is implicit in the very notion of any AUMF which he then illustrated through the Supreme Court's 2004 Hamdi decision** which demonstrates implicit empowerment to prosecute war and its periphera over and above any need to explicitly state such.
Yes, and you will also note that Specter explicitly rejected that argument and argued that electronic intelligence gathering was explicitly left out of the AUMF. He pointed to discussions amongst senators and congressmen/women about the specific wording of the AUMF that clearly showed that congress did not intend electronic surveillance to be used on US citizens without a warrant.
Just to clarify the direction of things. I have previously explained how the President has plenary Constitutional authority independent of Congress to conduct warrantless foreign surveillance and that Congress cannot by statute remove a President's Constitutional authority.
Yes, and Specter pointed out that we may well be heading towards a constitutional crisis because congress did feel it had the authority to legislate and prohibit the president from authorizing warrantless wiretaps, on the basis of that same constitution.
Why does the president's interpretation of his powers trump congress's? That's why Specter asked that they take the case to the FISA court, to avoid a constitutional crisis.
Gonzales then explained the AUMF constitutes just such a Congressional statute that overrides FISA.
Yes, and Specter specifically rejected that argument for the reasons I noted above: the AUMF was never intended to override FISA.
Now if Spector or the Democrats are serious in believing the AUMF doesn't or wasn't meant to allow surveillance he/they should put forward on the Senate floor a motion calling for the Senate to clarify its stance on the AUMF: that it wasn't meant to include surveillance. At the very least this would allow them to openly debate whether the NSA Program is a good idea and whether warrantless surveillance listening for Al Qaeda calls is a good idea. Do you think this will happen? Not likely thought it would be lovely if it did.
There we are in agreement. Then we might also get the other side of the argument. Hitherto, we've just been considering what Bush, Gonzalez et al. allege. If its brought before FISA, we'll have a more impartial look at the issues. We won't have to take Gonzalez et al. at face value anymore.
Yes, and you will also note that Specter explicitly rejected that argument and argued that electronic intelligence gathering was explicitly left out of the AUMF. He pointed to discussions amongst senators and congressmen/women about the specific wording of the AUMF that clearly showed that congress did not intend electronic surveillance to be used on US citizens without a warrant.
Specter is free to reject any argument wishes. His opinions are his own. However, If the discussion turns on the NSA Program's legality then any opinion of substance must deal with the case law. The case law without exception supports the President's stance.
There was no language in the AUMF that explicitly rejected electronic intelligence nor in consideration of the AUMF was such language explicitly rejected. Now were one to grant that such language had been used: say in addition to the actual wording: "use all necessary and appropriate force" to prevent "any future acts of international terrorism against the United States." and then added "never surveill U.S. citizens without a warrant" such a position, based on the case law, is still very shakey. In the 2004 Hamdi case that I mentioned earlier SCOTUS rejected explicti language of a statute namely: "18 U.S.C. s 4001(a), which states: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." because indefinate detention was considered a fundamental incident of war. To repost: "We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force"... Intelligence gathering on the enemy is likewise a fundamental incident of war.
Yes, and Specter pointed out that we may well be heading towards a constitutional crisis because congress did feel it had the authority to legislate and prohibit the president from authorizing warrantless wiretaps, on the basis of that same constitution.
I listened to Specter's second round of questioning. I don't recall him saying anything like we were heading toward a Constitutional crises. If such did occur: as a direct confrontation between Congress and the President, it would be a political bloodbath for the Demos and any who aligned themselves with the fools as the public would not support a position that pushed the President should not be doing everything in his power to intercept communications between Al Qaeda and any possible henchmen in the U.S. That is how the debate would be framed.
Now if Spector or the Democrats are serious in believing the AUMF doesn't or wasn't meant to allow surveillance he/they should put forward on the Senate floor a motion calling for the Senate to clarify its stance on the AUMF: that it wasn't meant to include surveillance. At the very least this would allow them to openly debate whether the NSA Program is a good idea and whether warrantless surveillance listening for Al Qaeda calls is a good idea. Do you think this will happen? Not likely thought it would be lovely if it did.
There we are in agreement.
This would be a death knell for many a Demos political career. In an open debate Senators would be forced to take sides. Imagine Hilary coming down against the NSA Program and then thinking of running for President. Makes one smile. ~:)
I have been looking primarily at the legal question because it is the most easily determinable. The political question is also very interesting. I hope this drags out as long as possible.
Why does the president's interpretation of his powers trump congress's? That's why Specter asked that they take the case to the FISA court, to avoid a constitutional crisis....There we are in agreement. Then we might also get the other side of the argument. Hitherto, we've just been considering what Bush, Gonzalez et al. allege. If its brought before FISA, we'll have a more impartial look at the issues. We won't have to take Gonzalez et al. at face value anymore.
The understanding of the President's Article Two powers including surveillance authority go back to Washington forward. This is over 200 years of consistent legal understanding: this included the ability to intercept posts, read mail, intercept wires, and all forms of electronic forms of communication whenever they have entered use.
FISA, or rather the FISA Courts have spoken to this issue. The 2002 In re Sealed Case was a FISA Court. It ruled: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
It is a mistake to assume this is simply an issue of "taking Gonzales etc. at face value." The Judicial history is clear.
Moderators should refrain from making vacuous posts
Hurin_Rules
02-07-2006, 09:00
Well well, a very revealing post there Pindar.
When I raised the issue of a constitutional crisis, instead of quoting any case law, as is your wont, you mounted a defense based on political consequences. Interesting. Are you rejecting the possibility of a constitutional crisis on this issue or not? What happens if the president claims the power to undertake warrantless wiretaps under the second amendment and the congress claims to be able to limit his power to do so under the fourth amendment?
Also, as Specter pointed out, detention of soldiers on a battlefield and spying on US citizens within the US seem to be two very different things.
Finally, in regards to the language in the AUMF: one of the Republican senators (I'm pretty sure it was Specter) noted that there were discussions regarding surveillance at the time the AUMF was passed. He noted that it was intentionally left out of the AUMF because it was seen as going to far. I'll have to search through the testimony to find it, but he was clearly making the case that there is clear evidence that that sort of surveillance was NOT intended as part of the AUMF.
I can't wait to hear more testimony. The fact that four Republican senators on the committee had harsh words for Gonzalez suggests this isn't quite the slam dunk that Karl Rove (and some other conservatives) have led us to believe it would be.
Paul Peru
02-07-2006, 18:56
I may be on the very edge of the topic here, but can anyone confirm that George Washington actually authorized electronic surveillance on a far broader scale than what GWB has done? :inquisitive:
Well well, a very revealing post there Pindar.
When I raised the issue of a constitutional crisis, instead of quoting any case law, as is your wont, you mounted a defense based on political consequences. Interesting. Are you rejecting the possibility of a constitutional crisis on this issue or not? What happens if the president claims the power to undertake warrantless wiretaps under the second amendment and the congress claims to be able to limit his power to do so under the fourth amendment?
Any Constitutional crisis is a hypothetical. As such it is distinct from case law which is historical.
A Constitutional crisis is certainly possible though very unlikely for a number of reasons. If Congress sought to deny the President's Constitutional power: arguing they could restrict the President by statute because of the Fourth Amendment, Congress would lose.* As a question of jurisprudence there is nothing to support such a stance. The Judiciary would most likely be called to weigh in. SCOTUS would rule Congress lacks Constitutional and statutory authority to place limits on the President's Constitutional power as there is no such delineated Congressional power. As a question of politics the Congressional opposition would first need to make their case in an open forum (i.e. the floor of the Senate). This means each Senator would be forced to take an open stand which as I alluded to in the earlier post would be a death sentence for the opposition. The President and Department of Justice have not run away from this issue at all. Rather, they have done just the opposite. In political terms I think the President can frame the debate around doing everything possible to protect the nation. This would be very very difficult to respond to. A discussion of the legal history or Constitutional authority would not interest or keep the attention of most people. The fever swamp would be canceled out by their own histrionics and tit for tat responses from GOP activists or Presidential supporters and the larger politically indifferent or unaligned would see the President forcefully arguing: "I will fight to protect the nation" against obscure legal positions of the opposition. The Demos would again look weak on defense during a campaign season. One commercial showing Bin Laden or Ata and an airplane would end it for the opposition.
It is just this sort of political reality that makes this whole affair a windfall for the GOP. I think most Demo Congressmen know this. If you look at the rhetoric from the Times first story forward it seems a distinct shift occurred from charges the NSA Program is illegal, to the Program is legal but might have seen abuse, to the Program should have some kind of check just in case. Specter called the hearings in the first phase and so was trapped even though there isn't anything really there. What one will most likely see is bloviation for Senators who feel secure in their state and others more and more nervous as the Mid Term elections move closer.
* This of course assumes a unified voice in Congress existed.
Also, as Specter pointed out, detention of soldiers on a battlefield and spying on US citizens within the US seem to be two very different things.
If one argues the AUMF doesn't include the use of surveillance then legally speaking the two run parallel: a statutory restriction on the conduct of war. SCOTUS has spoken on such and ruled in favor of the President's position.
Finally, in regards to the language in the AUMF: one of the Republican senators (I'm pretty sure it was Specter) noted that there were discussions regarding surveillance at the time the AUMF was passed. He noted that it was intentionally left out of the AUMF because it was seen as going to far. I'll have to search through the testimony to find it, but he was clearly making the case that there is clear evidence that that sort of surveillance was NOT intended as part of the AUMF.
I don't think your remembering correctly. I remember Specter mentioning language along the lines of "in the United States" was considered and then rejected as they wanted to give as wide as possible purview to act. I think I also remember Gonzales responded by saying there didn't appear any record of such discussion ever occurring.
I can't wait to hear more testimony. The fact that four Republican senators on the committee had harsh words for Gonzalez suggests this isn't quite the slam dunk that Karl Rove (and some other conservatives) have led us to believe it would be.
I don't think Karl Rove has been involved. Legally the NSA Program is sound. Politically, the Demos are in trouble, which is as it should be.
I may be on the very edge of the topic here, but can anyone confirm that George Washington actually authorized electronic surveillance on a far broader scale than what GWB has done? :inquisitive:
There was no electronic surveillance in Washington's time. There were searches and seizures of mail and other communications in the interest of national security however.
Hurin_Rules
02-08-2006, 06:32
That's all very interesting Pindar, but might someone involved in a court case not simply challenge the constitutionality of the NSA program? Couldn't they simply claim it is unconstitutional, and point to the fourth amendment, thereby provoking a SCOTUS ruling on these issues? That seems to me to be a much more likely scenario.
Anyway, you seem to be straying rather far from your legal opinions and into blatantly argumentative political commentary. Lets stay on track here.
Lawyers for a coalition of national non-profit organizations, including the ACLU, the Council on American-Islamic Relations and the National Association of Criminal Defense Lawyers have actually filed a complaint that lays out in more explicit detail their objections to the NSA program. It does far more justice to the other side of the legal arguments than I could. You can read it all here (scroll down to NSA, see the file Complaint: American Civil Liberties Union):
http://news.findlaw.com/legalnews/documents/archive_n.html#nsa
A few highlights:
--It is their complaint that the NSA program violates both the first and fourth amendments.
--In response to abuses committed by presidents in the 60s and 70s, Congress enacted legislation which is 'the exclusive means by which electronic surveillance... may be conducted.'
--It notes that the government must demonstrate probable cause in order to act without a warrant (clearly, the NSA was not doing so in this instance).
--It cites a long history of case law and SCOTUS rulings that prevent warrantless surveillance of domestic security threats, including US vs. US District Court for the Eastern District of Michigan 407 U.S. 297 (1972), etc.
As an aside: It seems to me that the reasons for your constant refusal to categorize communications between US citizens in the US and in other countries as anything other than foreign is because you realize your arguments would fall apart otherwise. We can both agree that communications that originate and terminate within the US are domestic (and, I would hope, that it would be illegal for the president to order warrantless wiretaps on such communications), whereas those outside the US are clearly foreign. But what about an American calling a Saudi? It seems this could be considered both, since it has both a domestic and a foreign component. Can you explain your usage of foreign, or more precisely your rejection of any possible 'domestic' component of a communication that involves a US citizen calling from within the US?
I do think the talk of a constitutional crisis has, however, clearly proven you wrong on one point. The issues involved in this dispute are anything but mundane, unless you consider the separation and balance of powers unimportant.
I eagerly anticipate Specter's next move :smile:
Hurin_Rules
02-08-2006, 06:52
And, to emphasize the point I just made, I just heard the latest news (appended below). It seems even the Republicans are starting to jump ship on the Bush administration on this one, due to the anything-but-mundane issues involved:
Republican Who Oversees N.S.A. Calls for Wiretap Inquiry
By ERIC LICHTBLAU
Published: February 8, 2006
WASHINGTON, Feb. 7 — A House Republican whose subcommittee oversees the National Security Agency broke ranks with the White House on Tuesday and called for a full Congressional inquiry into the Bush administration's domestic eavesdropping program.
Ben Chrisman/Associated Press
Representative Heather A. Wilson, a House chairwoman, has broken ranks with the president.
The lawmaker, Representative Heather A. Wilson of New Mexico, chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence, said in an interview that she had "serious concerns" about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why.
Ms. Wilson, who was a National Security Council aide in the administration of President Bush's father, is the first Republican on either the House's Intelligence Committee or the Senate's to call for a full Congressional investigation into the program, in which the N.S.A. has been eavesdropping without warrants on the international communications of people inside the United States believed to have links with terrorists.
The congresswoman's discomfort with the operation appears to reflect deepening fissures among Republicans over the program's legal basis and political liabilities. Many Republicans have strongly backed President Bush's power to use every tool at his disposal to fight terrorism, but 4 of the 10 Republicans on the Senate Judiciary Committee voiced concerns about the program at a hearing where Attorney General Alberto R. Gonzales testified on Monday.
A growing number of Republicans have called in recent days for Congress to consider amending federal wiretap law to address the constitutional issues raised by the N.S.A. operation.
Senator Lindsey Graham of South Carolina, for one, said he considered some of the administration's legal justifications for the program "dangerous" in their implications, and he told Mr. Gonzales that he wanted to work on new legislation that would help those tracking terrorism "know what they can and can't do."
But the administration has said repeatedly since the program was disclosed in December that it considers further legislation unnecessary, believing that the president already has the legal authority to authorize the operation.
Vice President Dick Cheney reasserted that position Tuesday in an interview on "The NewsHour With Jim Lehrer."
Members of Congress "have the right and the responsibility to suggest whatever they want to suggest" about changing wiretap law, Mr. Cheney said. But "we have all the legal authority we need" already, he said, and a public debate over changes in the law could alert Al Qaeda to tactics used by American intelligence officials.
"It's important for us, if we're going to proceed legislatively, to keep in mind there's a price to be paid for that, and it might well in fact do irreparable damage to our capacity to collect information," Mr. Cheney said.
The administration, backed by Republican leaders in both houses, has also resisted calls for inquiries by either Congress or an independent investigator.
As for the politics, some Republicans say they are concerned that prolonged public scrutiny of the surveillance program could prove a distraction in this year's midterm Congressional elections, and the administration has worked to contain any damage by aggressively defending the legality of the operation. It has also limited its Congressional briefings on the program's operational details to the so-called Gang of Eight — each party's leaders in the Senate and the House and on the two intelligence committees — and has agreed to full committee briefings only on the legal justifications for the operation, without discussing in detail how the N.S.A. conducts it.
Ms. Wilson said in the interview Tuesday that she considered the limited Congressional briefings to be "increasingly untenable" because they left most lawmakers knowing little about the program. She said the House Intelligence Committee needed to conduct a "painstaking" review, including not only classified briefings but also access to internal documents and staff interviews with N.S.A. aides and intelligence officials.
Ms. Wilson, a former Air Force officer who is the only female veteran currently in Congress, has butted up against the administration previously over controversial policy issues, including Medicare and troop strength in Iraq. She said she realized that publicizing her concerns over the surveillance program could harm her relations with the administration. "The president has his duty to do, but I have mine too, and I feel strongly about that," she said.
Asked whether the White House was concerned about support for the program among Republicans, Dana Perino, a presidential spokeswoman, said: "The terrorist surveillance program is critical to the safety and protection of all Americans, and we will continue to work with Congress. The attorney general testified at length yesterday, and he will return to Capitol Hill twice more before the week ends."
Aides to Representative Peter Hoekstra of Michigan, who as chairman of the full House Intelligence Committee is one of the eight lawmakers briefed on the operations of the program, said he could not be reached for comment on whether he would be open to a full inquiry.
Mr. Hoekstra has been a strong defender of the program and has expressed no intention thus far to initiate a full review. In two recent letters to the Congressional Research Service, he criticized reports by the agency that raised questions about the legal foundations of the N.S.A. program and the limited briefings given to Congress. He said in one letter that it was "unwise at best and reckless at worst" for the agency to prepare a report on classified matters that it knew little about.
But two leading Democratic members of the intelligence committees, Representative Jane Harman and Senator Dianne Feinstein, both of California, wrote a letter of their own Tuesday defending the nonpartisan research service's reports on the surveillance program and other issues, saying its work had been "very helpful" in view of what they deemed the minimal information provided by the administration.
Scott Shane contributed reporting for this article.
http://www.nytimes.com/2006/02/08/politics/08nsa.html?ei=5094&en=cabc2935edc1c5a4&hp=&ex=1139461200&adxnnl=1&partner=homepage&adxnnlx=1139377557-ErzEGAtmFxwThLZpH1vmDA
http://www.mnftiu.cc/mnftiu.cc/images/gywo.no_more_911s.gif
As an aside: It seems to me that the reasons for your constant refusal to categorize communications between US citizens in the US and in other countries as anything other than foreign is because you realize your arguments would fall apart otherwise. We can both agree that communications that originate and terminate within the US are domestic (and, I would hope, that it would be illegal for the president to order warrantless wiretaps on such communications), whereas those outside the US are clearly foreign. But what about an American calling a Saudi? It seems this could be considered both, since it has both a domestic and a foreign component. Can you explain your usage of foreign, or more precisely your rejection of any possible 'domestic' component of a communication that involves a US citizen calling from within the US?My take on it would be quite simple. If a foreign target that is being monitored either makes a call to the US or recieves a call from the US it would be considered "foreign", since the target of the survelliance is indeed foreign. I don't know for certain, but I suspect this is the way in which the program operated.
Who calls who is irrelevant in my mind, what is important is whether the target of survelliance was foreign or domestic.
Hurin_Rules
02-08-2006, 19:50
For those of you who couldn't hear the testimony before the senate Judiciary Committee, I submit the following article. It is clearly a partisan piece, so I don't submit it as any sort of proof of anything, but it does note many of the questions Gonzalez DID NOT answer (and so many of the things we still DON'T know about the program), and it also notes Specter's comments on the serious constitutional issues the program raises:
The Art of Saying Nothing
Published: February 8, 2006
We thought President Bush's two recent Supreme Court nominees set new lows when it came to giving vague and meaningless answers to legitimate questions, but Attorney General Alberto Gonzales made them look like models of openness when he testified before the Senate Judiciary Committee on Monday about domestic spying. Mr. Gonzales seems to have forgotten the promise he made to the same panel last year when it voted to promote him from White House counsel to attorney general: that he would serve the public interest and stop acting like a hired gun helping a client figure out how to evade the law.
The hearing got off to a bad start when Senator Arlen Specter, the Republican who leads the committee, refused to have Mr. Gonzales testify under oath. Mr. Gonzales repaid this favor with a daylong display of cynical hair-splitting, obfuscation, disinformation and stonewalling. He would not tell the senators how many wiretaps had been conducted without warrants since 2002, when Mr. Bush authorized the program. He would not even say why he was withholding the information.
On the absurd pretext of safeguarding operational details, Mr. Gonzales would not say whether any purely domestic communications had been swept up in the program by accident and what, if anything, had been done to make sure that did not happen. He actually refused to assure the Senate and the public that the administration had not deliberately tapped Americans' calls and e-mail within the United States, or searched their homes and offices without warrants.
Mr. Gonzales repeated Mr. Bush's claim that the program of intercepting e-mail and telephone calls to and from the United States without the legally required warrants was set up in a way that protects Americans' rights. But he would not say what those safeguards were, how wiretaps were approved or how the program was reviewed. He even refused to say whether it had led to a single arrest.
About the only senators Mr. Gonzales managed to answer directly were the more depressingly doctrinaire Republicans, who asked penetrating questions like whether Al Qaeda is a threat to the United States and whether Mr. Bush is trying hard to protect Americans from terrorists.
Generally, Mr. Gonzales stuck to the same ludicrous arguments the administration has continually offered for sidestepping the 1978 Foreign Intelligence Surveillance Act, which expressly forbids warrantless spying on people in the United States. He said that the president could make his own rules in time of war and that Congress had authorized warrantless spying in giving the president the authority to invade Afghanistan. Only the panel's most blindly loyal Republicans bought that argument.
To his credit, Mr. Specter pressed the attorney general hard on a legal position that, he said, "just defies logic and plain English." Mr. Specter forcefully pointed out that this isn't just an issue of public relations, but of the bedrock democratic principle of checks and balances. He said it is not possible to judge a program without knowing what it involves and said Congress's intelligence panels should review the domestic spying "lock, stock and barrel."
"Because if they disagree with you," he said, "it's the equilibrium of our constitutional system which is involved."
Mr. Gonzales seemed to brush off this idea, something that should surprise no one since Mr. Bush clearly sees no limit to his powers. But even Bush loyalists on the Senate panel seemed at least faintly troubled. Senator Sam Brownback of Kansas said it would be simple to amend the wiretapping law if it's too confining. And Senator Jon Kyl of Arizona suggested that some group — maybe even Congress — review the spying program regularly.
One hopeful sign of nonpartisan sanity came from the House yesterday. Representative Heather Wilson, the New Mexico Republican who heads the subcommittee that supervises the National Security Agency, told The Times that she had "serious concerns" about the spying and wanted a full investigation. With Karl Rove reported to be threatening Election Day revenge against anyone who breaks ranks on this issue, Ms. Wilson deserves support for a principled stand.
http://www.nytimes.com/2006/02/08/opinion/08wed1.html?_r=1&hp&oref=slogin
Hurin_Rules
02-08-2006, 23:09
A little bit more information today:
GOP chairwoman calls for 'complete review' of NSA eavesdropping
Rep. Wilson says foreign intelligence law should be modified
Wednesday, February 8, 2006 Posted: 1812 GMT (0212 HKT)
WASHINGTON (AP) -- Breaking with the White House, Rep. Heather Wilson, R-New Mexico, chairwoman of the House Subcommittee on Technical and Tactical Intelligence, says the time has come for a "complete review" of President Bush's eavesdropping program, her spokesman said Wednesday.
Wilson, who chairs a panel that oversees the National Security Agency, also wants Congress to change a 1978 foreign intelligence law following the disclosure of the NSA program, Joel Hannahs, Wilson's spokesman, said.
She believes she has a constitutional responsibility to oversee this program, and the House Intelligence Committee is entitled to full briefings, he said.
Hannahs also said that Wilson believes the 1978 Foreign Intelligence Surveillance Act needs to be updated to "take into account new technology." The law governs the monitoring of calls inside the United States for national security reasons.
The White House has insisted that it has the legal authority to monitor terror-related international communications in cases where one party to the call is in the United States.
Senior administration officials also say they were within the law when they chose to brief only Congress' so-called "Gang of Eight" -- the leaders of the House and Senate and its intelligence committees.
While the Gang of Eight can be notified, Wilson believes "that is not oversight," Hannahs said.
Aboard Air Force One, White House spokesman Scott McClellan on Wednesday reiterated the administration's position that Congress has been briefed. He said the White House "will continue to listen" to ideas from Congress.
Closed-door briefings
The House and Senate Intelligence Committees were scheduled to have closed-door briefings with Attorney General Gonzales and Gen. Michael Hayden, the No. 2 intelligence official, Wednesday afternoon and Thursday morning.
A spokesman for House Intelligence Committee Chairman Peter Hoesktra, R-Michigan, said the briefing would cover legal aspects of the program.
Members of Congress have been anxious for operational details to better understand how the program works. Key details, such as how individuals are selected for the NSA's monitoring, remain a mystery.
No lawmaker that has been briefed on the program has called for its halt. But a number have questioned the Bush administration's legal rationale supporting the controversial eavesdropping and have argued that the administration could have used processes set up under the FISA law.
Fissures with the White House were highlighted Tuesday when a handful of the Senate Judiciary Committee's Republicans joined Democrats to raise doubts about the program's lawfulness at a daylong hearing with Attorney General Alberto Gonzales. Like Wilson, some Republicans suggested that the so-called FISA law should be revised.
Copyright 2006 The Associated Press. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed.
http://edition.cnn.com/2006/POLITICS/02/08/eavesdropping.congress.ap/index.html
That's all very interesting Pindar, but might someone involved in a court case not simply challenge the constitutionality of the NSA program?
Yes, but that wouldn't be a Constitutional crises.
Couldn't they simply claim it is unconstitutional, and point to the fourth amendment, thereby provoking a SCOTUS ruling on these issues? That seems to me to be a much more likely scenario.
Yes, but SCOTUS is not bound to rule on anything.
Anyway, you seem to be straying rather far from your legal opinions and into blatantly argumentative political commentary. Lets stay on track here.
Dang! You're a tough crowd. I get harangued by the oppositionist for adhering to the legal question and then when I give my take on the political dynamic which is what the Congressional Hearing involves I get this. I guess I'll just stay with the legal question. *
Lawyers for a coalition of national non-profit organizations, including the ACLU, the Council on American-Islamic Relations and the National Association of Criminal Defense Lawyers have actually filed a complaint that lays out in more explicit detail their objections to the NSA program. It does far more justice to the other side of the legal arguments than I could. You can read it all here (scroll down to NSA, see the file Complaint: American Civil Liberties Union):
I thought the ACLU and their Lefty cohorts would do something. I thought it would happen sooner. I looked over the complaint. It looks like the primary thrust is appealing to FISA. This is going to make things tough as the In re Sealed Case has already explicitly stated FISA does not and can not trump the President's Constitutional authority. If I were one of the lefty lawyers I would try and go with a 9th District Judge. The 9th District is full of loon judges. Maybe they will get lucky and actually get a hearing. Do you have any question about the complaint?
As an aside: It seems to me that the reasons for your constant refusal to categorize communications between US citizens in the US and in other countries as anything other than foreign is because you realize your arguments would fall apart otherwise.
I categorize communication that go outside U.S. territory as foreign because that is what they are. Anything beyond U.S. Territory is foreign. If I wanted to call you in Toronto (is that where you are?) and tell you about Canada's soon to be complete annexation it would be a foreign call. After the annexation it wouldn't be.
But what about an American calling a Saudi? It seems this could be considered both, since it has both a domestic and a foreign component. Can you explain your usage of foreign, or more precisely your rejection of any possible 'domestic' component of a communication that involves a US citizen calling from within the US?
Let me know if the above isn't a sufficient explanation with example provided.
I do think the talk of a constitutional crisis has, however, clearly proven you wrong on one point. The issues involved in this dispute are anything but mundane, unless you consider the separation and balance of powers unimportant.
No, the legal issue is mundane. The fact even the opposition hasn't called for the Program to end illustrates the point. One needs to distinguish between politics and law. For this issue to be more than mundane there would need to be some actual legal ruling that called into question the NSA Program. Senator bloviation does not meet this standard: neither does a filed complaint.
* If our focus is supposed to be the sober legal issue why do you keep posting odd new pieces by uninfomred non-lawyers that are clearly, what was the phrase "blatantly argumentative political commentary"?
KafirChobee
02-09-2006, 06:16
Quite simply:
"Those willing to give up their freedom for security - deserve neither."
Mark Twain
"We are the people that are meant to rule the world!" Name any former dictator before he became one.
Quite simply:
"Those willing to give up their freedom for security - deserve neither."
Mark TwainBenjamin Franklin, actually.
No, the legal issue is mundane. The fact even the opposition hasn't called for the Program to end illustrates the point. One needs to distinguish between politics and law. For this issue to be more than mundane there would need to be some actual legal ruling that called into question the NSA Program. Senator bloviation does not meet this standard. Neither does a filed complaint.
Yes, let's not mistake hot air for law. The most that I could see ever coming from this would be Congress revising FISA to specifically allow for what Bush is doing. Honestly though, I don't expect even that much.
Quite simply:
"Those willing to give up their freedom for security - deserve neither."
If you really believe this then you must be an anarchist as the very notion of government involves giving up freedom for security.
Adrian II
02-09-2006, 12:14
A little bit more information today:And some more, by someone who understands there is a connection between technical, legal and political issues.
The legal controversy over the NSA surveillance program has obscured an intelligence issue that is at least as important to the nation's future: sheer competence. Do we have any idea what we're doing? One reason the NSA is listening in on so many domestic conversations fruitlessly -- few of the thousands of tips panned out, according to The Washington Post -- is that the agency barely has a clue as to who, or what, it is supposed to be monitoring.
Etcetera (http://www.msnbc.msn.com/id/11238800/site/newsweek/)
Hurin_Rules
02-09-2006, 18:55
I've got to run to school, so I'll post more direct responses later, but this article that appeared today is quite interesting. It shows that two judges on the Foreign Intelligence Service Court had grave doubts about the NSA domestic spying program, and that in fact the program has already been abused, forcing a temporary suspension of the program:
US secret court judges warned about NSA data: report Thu Feb 9, 2:14 AM ET
WASHINGTON (Reuters) - A Justice Department lawyer warned the judge of a secret U.S. court twice in the past four years that information from President George W. Bush's domestic spying program may have been used to obtain wiretap warrants from the court, The Washington Post reported on Thursday.
The presiding judges of the Foreign Intelligence Surveillance Court knew about the National Security Agency's secret surveillance program, but had insisted that information obtained through it not form the basis for obtaining a warrant from the court, the Post reported, citing U.S. officials.
U.S. District Judge Colleen Kollar-Kotelly, and her predecessor as presiding judge, Royce Lamberth, had expressed serious doubts about whether the warrantless monitoring of telephone phone calls and e-mails ordered by Bush was legal.
The new report reveals the depth of their doubts and their efforts to protect the court from what they considered potentially tainted evidence, the newspaper said.
James Baker, a top lawyer in the Justice Department's Office of Intelligence Policy and Review, alerted Kollar-Kotelly in 2004 that the government's failure to share information about the domestic spying program had rendered useless a screening system that the judges had insisted upon to shield the court from tainted information, the Post said.
Kollar-Kotelly complained to Justice, prompting a temporary suspension of the NSA spying program, the newspaper said, citing sources.
In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information and that was not made clear to the judges, the newspaper said.
The secret NSA program, exposed in December by The New York Times, monitors telephone and e-mail exchanges between people in the United States and abroad when one party is suspected of links to al Qaeda.
Neither judge commented for the article and a Justice Department spokesman declined comment, the Post said.
http://news.yahoo.com/s/nm/20060209/ts_nm/security_eavesdropping_court_dc
And some more, by someone who understands there is a connection between technical, legal and political issues.
"The legal controversy over the NSA surveillance program has obscured an intelligence issue that is at least as important to the nation's future: sheer competence. Do we have any idea what we're doing? "
There is always a competency concern when the government is involved. Government ineptitude is one reason socialism is flawed. Unfortunately, war is not a private venture so there is little option.
I've got to run to school, so I'll post more direct responses later, but this article that appeared today is quite interesting. It shows that two judges on the Foreign Intelligence Service Court had grave doubts about the NSA domestic spying program, and that in fact the program has already been abused, forcing a temporary suspension of the program:
"US secret court judges warned about NSA data"
I'm not sure I know the full details, but this issue is disturbing. It's disturbing because law is not a private affair. There are 10 Judges on the FISA Court. Judges making private agreements is very odd. These two: Judges Royce Lamberth and Colleen Kollar-Kotelly didn't inform their fellow Judges of their affairs. They also never made a ruling on NSA legality or otherwise. This is very odd. A Judge might set up some standard, but this is not something that happens in a vacuum. Rather, a ruling is always subject to a higher court up until SCOTUS itself. So, for example if some person X who has been spied on under the NSA Program and the Government wanted to get additional FISA authority to follow X's domestic communications, Kollar-Kotelly can't simply decide any NSA gathered information can't be considered probable cause on her own. Rather a formal ruling should have been made and then that ruling would need to be subject to the Appellate FISA Court. That she didn't do this (but rather set up her own protocal) is very questionable. Of course, we know the Appellate FISA Court has made a ruling of the NSA Program. Very odd. She must be a Clinton appointment.
Hurin_Rules
02-12-2006, 21:37
Interesting.
Here's another article with a little more info in it, mostly about public opinion on the issue, how some Republicans are getting a little restless, and what is likely to happen in terms of a possible investigation authorized by the senate:
http://www.msnbc.msn.com/id/11300384/site/newsweek/
rory_20_uk
02-14-2006, 12:35
The aspect of an investigation I don't understand is Bush said he did it it's only how one punishes him for that which needs to be reviewed.
I mean, come on! To get them approved it's a closed, secret court, so unless you're bugging the judges I don't think that there's a good reason at all.
The cry of "we're at war" to me reminds me of the Cold War where the cry of "we're at war!!" could stife dissent on most issues.
There's a legal method to tap phones part of the checks and balances in the system. IMO Bush should be impeached for flagrantly breaking the law.
~:smoking:
The aspect of an investigation I don't understand is Bush said he did it it's only how one punishes him for that which needs to be reviewed.
I mean, come on! To get them approved it's a closed, secret court, so unless you're bugging the judges I don't think that there's a good reason at all.
The cry of "we're at war" to me reminds me of the Cold War where the cry of "we're at war!!" could stife dissent on most issues.
There's a legal method to tap phones part of the checks and balances in the system. IMO Bush should be impeached for flagrantly breaking the law.
~:smoking:
This is bloody depressing!
My sense from reading the above is the informative (and rather well written legal explanations) in this thread haven't been read. The bane of all thread's as they expand is few actually bother to check older posts. Allow me to help.
Assignment one, post 87:
Arguing the NSA's overseas intercept program was illegal is problematic. All applicable Federal Court precedence support the inherent right of the President to conduct warrantless searches to obtain foreign intelligence information. A simple example is United States v. Truong Dinh Hung, 4th Cir. 1980
Quote:
Originally Posted by Red Harvest
There is a big problem with using that...
Hello Red Harvest
I think you are confused some. The above sentence is followed by a series of quotes. Your conclusions from these quotes seem to indicate a lack of careful reading. You note these are from a FISA 2002 Review Court Ruling. You then state you are unpersuaded by their reasoning. The problem is that for legal purposes court rulings have weight, personal sentiments do not. My involvement in this thread is concerned with the legal standing of warrantless searches only: not whether individuals find that agreeable or not. Now, I want you to note the 2002 ruling, it is: In re Sealed Case No. 02-001 and I will add for emphasis this was decided but three years ago. Note the following from the ruling:
"It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith's balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President's constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
The ruling found, consistent with Truong and all other court rulings on the subject that the President's inherent Constitutional authority cannot be negated. This authority includes warrantless searches in pursuit of foreign intellegence.
Quote:
Has SCOTUS ever ruled on this?
Yes, it is known as the 1972 Keith Case: United States V. United States district court, 407 U.S. 297. Here the Court backed away from attempting to limit Presidential authority on conducting foreign affairs. I'll give you an example:
"We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents. Nor does our decision rest on the language of 2511 (3) or any other section of Title III* of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security."
Quote:
Might want to hold off on that eggnog.
Eggnog demands drinking and holiday festiveness demands being festive.
As a legal issue there is nothing to this. Political grandstanding has its own purposes and devices, but those are distinct from real issues of law. These should not be confused.
* This refers to a section of the Omnibus Crime Control and Safe Streets Act of 1968 that recognized the use of electronic surveilence. The passage the Justices were refering to was:
"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, [407 U.S. 297, 303] or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power."
Assignment two, Post 90:
Not as confused as you might suspect. While I lack the legal background to fully appreciate the nuances I am still very much unconvinced by the ruling. Whether or not it carries weight at the moment was not, and is not my point.
Personal sentiments carry no legal force. The point you have chosen to engage over is the legal issue. Therefore to argue the NSA program is illegal one must demonstrate the illegality and provide support for the conclusion. You have not done this. I have already provided a few simple court rulings that clearly assert a stance quite opposite of your own. You asked for a legal tree let me list a few more case for you:
-2002 In re Sealed Case No. 02-001:
"It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
-1984 United States v. Duggan, 743 F.2d 59:
"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
-1980 United States v. Truong:
"For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."
-1977 United States v. Buck, 548 F.2d 871
"Foreign security wiretaps are a recognized exception to the general warrant requirement…"
-1974 United States v. Butenko, 494 F.2d 593
"In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”
-1972 United States v. United States District Court, 407 U.S. 297
"[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."
-1970 United States v. [Cassius] Clay, 430 F.2d 165
"We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."
There is a consistent line of judicial thought that reinforces Presidential prerogative regarding foreign surveillance. This really is a non-issue. The only real flurry is from media that do not know the law.
Quote:
I won't have much chance to come back and debate this for some time but I'll leave you with the biggest hole in the executive authority argument as I see it: If the special court cannot even review the president's actions(assuming they cannot restrict even if they don't approve a warrant, and that request for the warrant can be done after the fact) then it appears the president is accountable to no one for anything, and can do whatever he chooses in secret without even review of whether or not he has exceeded his constitutional authority.
OK, if this is your basic issue let me explain. The three respective branches of government are coequal. Each derives its power from the Constitution. Because of this there is an inherent empowerment within their respective spheres. For example: the President could not write an Executive Order that nullified a Legislative statute. Based on Article II of the Constitution the President is considered preeminent in foreign policy. Federalist No. 74 illustrates the point: "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Understanding this basic power of the Executive is why SCOTUS in the 1972 Keith Case refused to assert that there is a warrant requirement for surveillance of the agents of foreign powers operating in the United States:
"We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents. Nor does our decision rest on the language of 2511 (3) or any other section of Title III* of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security."
This Constitutional distinction is also the reason Congress stated in the Omnibus Crime Control and Safe Streets Act of 1968:
"Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."
Thus FISA may expand Presidential power, but it cannot impinge on the President's inherit Constitutional power. The case can actually be made much stronger, but this should be sufficient.
Assignment three, post 93:
FISA cannot restrict Presidential authority to conduct foreign intelligence, that is the point. The President is Constitutionally invested and thereby independent of other branches of government in exercising his charge. The NSA program is not illegal. There is no ambiguity about "foreign". Foreign refers to non-U.S. persons and activities that extend beyond U.S. territory. No court has challenged this because it is a rather mundane point under the law. The only ones making noise are those with political agendas and the uninformed. This is not a solitary position I am explaining. Let me give you a couple of opinions from others. I'll give one from a well known Liberal Law scholar and then one from the right. First, University of Chicago Law Professor Cass Sunstein, one of the big wigs in Constitutional Law today. This is from an interview he gave yesterday I believe. A colleague sent this to me:
Questioner: Do you consider the quality of the media coverage here to be good, bad, or in between?
Sunstein: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional.
Questioner: "So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?"
Sunstein: "Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11."
Second, Chapman University Law School Professor John Eastman.
Questioner: "And does (the President) have that authority, even if he does not have a warrant to conduct that surveillance?"
Eastman: "Yes, he does, and look. This authority comes directly from Article 2 of the Constitution. Every president going back to George Washington has recognized this. The president that signed the foreign intelligence surveillance act in 1978 specifically, said that of course, this can't be considered a constraint on the powers that the president has directly under Article 2. That president was Jimmy Carter... This is a pretty well-established incident of war."
I have provided case law citations, explained the division of Constitutional powers and quoted well regarded legal scholars from different sides of the political spectrum. There is no case of illegality here.
Here are some comments from R. James Woolsey, former Clinton appointed CIA head:
Speaking at an event here sponsored by the Heritage Foundation, a conservative think tank, Woolsey said that despite those misgivings, he considered himself "somewhere around 75 percent in the administration's camp on this set of issues."
He said he staunchly believes that Article 2 of the U.S. Constitution, which establishes the president's role as commander-in-chief and implicit wartime powers, permits the president to do the kind of "electronic mapping of the battlefield" that the NSA program appears to do.
Woolsey said that because the Constitution already supplies "plenty" such powers, the president need not seek legislative justification for the NSA program. He suggested that one of the administration's main defense tactics--which has involved relying on a congressional resolution passed just after Sept. 11 that authorizes him to use all necessary military force against Al Qaeda and its affiliates--may even create too narrow of a situation.
"I don't believe the president needs to wait for a statute to begin to listen in on conversations between persons affiliated with Hezbollah," he said.
link (http://news.com.com/Former+CIA+chief+expresses+doubt+about+NSA+program/2100-1036_3-6037321.html)
He must be reading your posts Pindar.
Tribesman
02-14-2006, 19:18
He must be reading your posts Pindar.
Nah if he was reading Pindars posts he would be 100% sure .
But he isn't is he . Is that why the article you posted has the title it does:laugh4: :laugh4: :laugh4:
He must be reading your posts Pindar.
Nah if he was reading Pindars posts he would be 100% sure .
But he isn't is he . Is that why the article you posted has the title it does:laugh4: :laugh4: :laugh4:I thought it was off-topic, so I didnt talk about it- but that article is a great example of bias/mischaracterization.
The headline reads: 'Former CIA chief expresses doubt about NSA program'
The only part of the article that supports this headline is:
"There comes a point at which, when one is investigating individual Americans...it's necessary to go to a court, have the court weigh and balance the factors, and approve an in-depth investigation," said R. James Woolsey, a Clinton appointee who is now a vice president at the consulting firm Booz Allen Hamilton.That's it. He's saying that you have to get a warrant when investigating American citizens- at some point. He doesnt even directly mention the program.
Every other statement attributed to him supports the program- he even says that the AUMF is unecessary and the president can do survellience without any congressional oversight based on his Constitutional authority. So what's the headline? He has 'doubts'... :dizzy2:
If you'd take the time to read beyond the headline Tribesman, you'd see he is very supportive of NSA survellience.
Tribesman
02-14-2006, 19:51
If you'd take the time to read beyond the headline Tribesman
Yes , you find that he is 75% positive , which means he is 25% doubtful .
you'd see he is very supportive of NSA survellience.
Hey Xiahou , nearly everyone is supportive , if it is done right .
Those windbags on the committee still havn't got round to the issue of purely domestic surveilance carried out under its foriegn mandate though .
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