Bush allowed NSA to spy within USA without warrants

[Hurin_Rules]

Republican senator Arlen Specter has vowed to hold hearings on this.


Bush reportedly OK'd NSA spying on Americans
Specter vows to hold hearings on alleged eavesdropping without warrants
NBC VIDEO

Updated: 12:38 p.m. ET Dec. 16, 2005
NEW YORK - A key Republican committee chairman put the Bush administration on notice Friday that his panel would hold hearings into a report that the National Security Agency eavesdropped without warrants on people inside the United States.

Sen. Arlen Specter, R-Pa., said he would make oversight hearings by his panel next year “a very, very high priority.”

“There is no doubt that this is inappropriate,” said Specter, a Pennsylvania Republican and chairman of the Judiciary Committee.

Other key bipartisan members of Congress also called on the administration to explain and said a congressional investigation may be necessary.

Sen. John McCain, R-Ariz., appeared annoyed that the first he had heard of such a program was through a New York Times story published Friday. He said the report was troubling.

Asked about the story earlier Friday, neither Secretary of State Condoleeza Rice nor White House press secretary Scott McClellan would confirm or deny that the super-secret NSA had spied on as many as 500 people at any given time since 2002.

Emails, calls monitored
The Times reported Friday that following the Sept. 11, 2001, terror attacks, President Bush authorized the NSA to monitor the international phone calls and international e-mails of hundreds — perhaps thousands — of people inside the United States.

Before the program began, the NSA typically limited its domestic surveillance to foreign embassies and missions and obtained court orders for such investigations. Overseas, 5,000 to 7,000 people suspected of terrorist ties are monitored at one time.

Government officials credited the new program with uncovering several terrorist plots, including one by Iyman Faris, an Ohio trucker who pleaded guilty in 2003 to supporting al-Qaida by planning to destroy the Brooklyn Bridge, the report said.

But Faris’ lawyer, David B. Smith, said on Friday the news puzzled him because none of the evidence against Faris appeared to have come from surveillance, other than officials eavesdropping on his cell phone calls while he was in FBI custody.

Lawmakers concerned
Lawmakers said they were concerned about the report.

“We need to look into that,” McCain told reporters at the White House after a meeting on Iraq with Bush. “Theoretically, I obviously wouldn’t like it. But I don’t know the extent of it and I don’t know enough about it to really make an informed comment. Ask me again in about a week.”

McCain said it’s not clear whether a congressional probe is warranted. He said the topic had not come up in the meeting with Bush.

“We should be informed as to exactly what is going on and then find out whether an investigation is called for,” he said.

Sen. Joe Lieberman, D-Conn., also said he needed more information.

“Of course I was concerned about the story,” said Lieberman, who also attended the White House Iraq meeting. “I’m going to go back to the office and see if I can find out more about it.”
Other Democrats were more harsh.

“This is Big Brother run amok,” declared Sen. Edward Kennedy, D-Mass. “We cannot protect our borders if we cannot protect our ideals.” Sen. Russell Feingold, D-Wis., called it a “shocking revelation” that he said “ought to send a chill down the spine of every senator and every American.”

NBC report on domestic surveillance
The Times report came two days after NBC News reported on the existence of a secret Defense Department database of information about suspicious people and activity inside the United States, including anti-war groups.

The Times said reporters interviewed nearly a dozen current and former administration officials about the program and granted them anonymity because of the classified nature of the program.

It also said in its story that editors at the newspaper had delayed publication of the report for a year because the White House said it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. The Times said it omitted information from the story that administration officials argued could be useful to terrorists.

McClellan would not directly discuss specifics of the article at a briefing for reporters, but said that “there is congressional and oversight of intelligence activities and there are a lot of safeguards in place.”

He continued, “Soon after 9/11 the president made a commitment to do two things: Everything lawfully within his power to protect the American people and save lives ... and (to) remain fully committed to uphold the Constitution and protect the civil liberties of the American people. He has done both.”

Rice says Bush has ‘acted lawfully’
Rice used similar words when asked about the program on NBC “Today” show.

“I’m not going to comment on intelligence matters,” she said. But Rice did say that President Bush “has always said he would do everything he can to protect the American people, but within the law, and with due regard for civil liberties because he takes seriously his responsibility.”

“The president acted lawfully in every step that he has taken,” Rice said, “to defend the American people and to defend the people within his constitutional responsibility.”


Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, said the group’s initial reaction to the NSA disclosure was “shock that the administration has gone so far in violating American civil liberties to the extent where it seems to be a violation of federal law.”

Asked about the administration’s contention that the eavesdropping has disrupted terrorist attacks, Fredrickson said the ACLU couldn’t comment until it sees some evidence. “They’ve veiled these powers in secrecy so there’s no way for Congress or any independent organizations to exercise any oversight.”

The Times quoted officials familiar with the NSA operation as saying that Bush’s executive order allowing warrantless eavesdropping on those inside the United States was based on classified legal opinions stating that the president has broad powers to order such measures, based in part on a September 2001 congressional resolution authorizing him to wage war on al-Qaida and other terrorist groups.

But some NSA officials were so concerned about the legality of the program that they refused to participate, the Times said. Questions about the legality of the program led the administration to temporarily suspend it last year and impose new restrictions.

NBC report on Pentagon database
Earlier this week, the Pentagon said it was reviewing its use of a classified database of information about suspicious people and activity inside the United States after the report by NBC News said the database listed activities of anti-war groups that were not a security threat to Pentagon property or personnel.

Pentagon spokesmen declined to discuss the matter on the record but issued a written statement Wednesday evening that implied — but did not explicitly acknowledge — that some information had been handled improperly.

The Bush administration had briefed congressional leaders about the NSA program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that handles national security issues.

Aides to National Intelligence Director John Negroponte and West Virginia Sen. Jay Rockefeller, the top Democrat on the Senate Intelligence Committee, declined to comment Thursday night.

NBC News' Bob Kur and the Associated Press contributed to this report.

http://www.msnbc.msn.com/id/10488458/

Hey Lucy, you got some 'splaining to do!

[Grey_Fox]

Not surprising.

[Proletariat]

Real nice. I'm pretty sure I'm never voting again.

[drone]

Government officials credited the new program with uncovering several terrorist plots, including one by Iyman Faris, an Ohio trucker who pleaded guilty in 2003 to supporting al-Qaida by planning to destroy the Brooklyn Bridge, the report said.

But Faris’ lawyer, David B. Smith, said on Friday the news puzzled him because none of the evidence against Faris appeared to have come from surveillance, other than officials eavesdropping on his cell phone calls while he was in FBI custody.Don't know what his lawyer is confused about. Since the surveillance was questionable from a legal standpoint (and maybe classified as well), the prosecution probably figured it would be inadmissable and never brought it forward. They probably used the info to gain more concrete evidence under "legal" means.

Looks to me like they targeted suspicious individuals (sort of like profiling?), and used the results as a starter to hone in on people involved in illegal activity.

I'm all confused now. We have the FBI overseas, and the NSA reading citizens' mail. Shouldn't the CIA be running ops in the States, or are they outsourcing that job to India? :san_huh: Good thing I never take off my tinfoil hat...

[Xiahou]

Meh, not like the NYT has ever gotten a story wrong before now is it? :san_grin: Seriously though, there are situations, I believe, where this could be entirely legal- what will need to be seen is if the cases that it was done under match that narrow view or if they did not.

It does seem odd that they would do this without permission, since the court having jurisdiction in this matter is practically a rubber stamp and rarely denies government requests. I think I'm going to wait for more facts to come out on this before I pitch in building that scaffold to hang them from that you're all working on. :san_wink:

[Gawain of Orkeny]

What has been reported today by the New York Times is outrageous. It is false. It is misleading. It is deceitful -- and it is part of an ongoing effort within our country at the highest levels of the Democratic Party and the American media to destroy our ability to wage war against this enemy. I don't know if you've seen it. You probably have heard about it. Here's the headline of the story: "Bush Secretly Lifted Some Limits on Spying in the United States After 9/11, Officials Say." Bush secretly lifted some limits on spying in the United States after 9/11? The story is about how the National Security Agency was secretly told by George W. Bush to go ahead and start spying on domestic Americans as they made international phone calls and sent and received international e-mails. The only problem with the story is that Bush didn't do anything "secretly." There were all kinds of people in on this, including members of Congress and the special secret court that gets involved in these kinds of things. If you read very carefully, there's a couple of key paragraphs in this story. Here's one of them -- and, by the way, let me say this.

By the way, there are a lot of details about this. The writer of the story is James Risen. James Risen has a book coming out! The New York Times in this story claims that the White House asked them not to print this and that they held off for a year. They held off for a year out of concerns for the White House. That's absolute bunk. It is BS. They've been sitting on this story for a year. James Risen, the author of the story, has a book coming out. This is part of his book. The book is published by Simon & Schuster, the same editor that Richard Clarke's books have been published by and edited, Hillary's publisher -- and of course there will be a 60 Minutes appearance by Mr. Risen when his book comes out because Viacom owns both CBS and Simon & Schuster. So we've got the same synergy that we had during the 9/11 Commission hearings and that aftermath. So they haven't been sitting on this because of the White House. They've been sitting on it to promo a book. They've been sitting on it for a year. Why does it come out today? Because they want to cover up the great news that happened in Iraq yesterday. They want this and the Patriot Act and McCain's torture bill to be the subjects on the Sunday shows.

They're trying to switch the template here and take the great news happening in Iraq off everybody's mind, off the front page, and instead, focus efforts on the secret dealings of George W. Bush. Well, try this paragraph: "According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency's new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said." Well, how in the world can this be secret if Rockefeller knew about it and if the special court and the judge presiding over it -- it's the FISA court, by the way -- how can it possibly have been secret? It wasn't secret. The lead of this story starts this way: "Months after the September 11th attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the US to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying."

The Democrats are voting and the New York Times is publishing purely to embarrass Bush, and their purpose is to attempt to derail everything that he is doing, even as commander-in-chief. In my mind, they are loathsome. They are beneath contempt. But the Republicans who help them out are much worse, because we know who the Democrats are. We expect this from them. We expect the Democrats to be lower than low. When they look up, they see the gutter. We know what they're all about now. They've made it clear. We once had higher expectations of the press, but we no longer do. We know who they are, but the Republicans are another story. These gadfly Republicans signing on to all this -- and in some cases, like Senator McCain, leading all this -- need to be sent a message. Look what's happened this week. The greatest election we've had in Iraq after three in a row that have been successful, a stupendous story, and in the midst of all of it Congress passes a Bill of Rights for al-Qaeda: the McCain anti-torture bill, a Bill of Rights for al-Qaeda. Now they're weakening Patriot Act protections, and now we come out with a story that's designed to totally eliminate our ability and destroy our ability to conduct war and national defense against this enemy

LINK (http://www.rushlimbaugh.com/home/daily/site_121605/content/america_s_anchorman.guest.html)

[Reverend Joe]

I really don't think that Rush ****ing Limbaugh is a very credible source!

(That would sound a lot better if I could say it...)

[KafirChobee]

The really curious thing about the entire deal is that the NY Times had this story in Oct. 2004 - before the elections and opted to withhold it 'til now. One must ask themselves: Why? That is the real story here. Why would a newsagency withhold facts from the public - regardless of "timing". Face it, had the public known of this they just might have dumped Bush for "the other guy".

What is truely bothersome about it was Bush's response concerning it tonight in his interview with "Lehrer" (ms) - on The Newshour. "I can't comment on an on going investigation". - which is a samo-samo response for him on just about everything concerning his administration, and "We did everything within the law to protect american lives". OK, I almost buy that, but I would like to know who they were allowing illegal wire taps on [like they need them, unless someone is still using a corded phone (cordless phones have been ruled by the Supreme Court to be unrequiring any legal request since they are in the open air)], and how they are associated with terrorism.

You see, I for one am suspect to giving any branch of government the ability to single out people at "their" will to listen in on (without judicial or congressional supervision). Does anyone truely imagine that those in power would not use such an open ended device to attempt to find something on their "enemies" (anyone that doesn't drink from the same well they do, or maybe a friend needs a favor to close a deal, or maybe ....). The thing is, circumventing the judicial system and ignoring the congressional - pretty much puts the entire deck of cards in one hand to be dealt as they see fit. We live in a democracy - not a Theocracy or an Empireship. One need only look back to the "Edgar Hoover" years to realize what I am talking about. Knowledge is power .... abusive knowledge only corrupts those that gain it.

Ergo, someone other than those that want to have an open ended wire tapp system must be able to oversee it - preferably the party not in power. Were that the case? No problem, for me atleast.

[solypsist]

so much for the 4 amendment to the us constitution.

here's the deal: If there is a law stopping them from doing their job, then it's up to congress/parliament to ammend the law. That's the point of a democracy, so the government doesn't run around doing whatever the heck they want whenever they want!

[Gawain of Orkeny]

I think you should all go bak and read the Rush article. It was no secret .Isnt it funny this comes out just as their about to vote on the patriot act and the guy is about to release his book.

[Tachikaze]

I've been struck a lot lately with the similarities between the Bush-Regime US and the Iron Curtain nations in 1960s spy movies. Not only do we have government spying on its own people, but I had a personal experience with a road block that was like something out of the movie Stripes when the heroes went into Communist Czeckoslovakia.

My car was surrounded by three officers armed with handguns who asked to see papers before we could continue driving through the southern California desert. The threat to US security? A 70-year-old Japanese couple in the back seat of my car, shaking in their boots (welcome to the United States!). The atmosphere had high tension as if we were on the verge of being taken out and detained or searched. They seemed to enjoy the intimidation, because I had no rights at that point. They could have arrested and detained me for "suspicion" at their whim.

I used to only see officers with assault rifles when I went into Mexico. Not long after the road block episode, I saw a gray-uniformed man standing in the main concourse of Los Angeles airport with an assault rifle.

[Gawain of Orkeny]

I've been struck a lot lately with the similarities between the Bush-Regime US and the Iron Curtain nations in 1960s spy movies. Not only do we have government spying on its own people, but I had a personal experience with a road block that was like something out of the movie Stripes

Well whats your opinion of FDR in WW2 then? We have roadblocks here all the time just to check if we are wearing our stupid seatbellt. You would think the cops had more important reasons for trampling all over our rights than that.

[Strike For The South]

bad joke

[solypsist]

Well whats your opinion of FDR in WW2 then? We have roadblocks here all the time just to check if we are wearing our stupid seatbellt. You would think the cops had more important reasons for trampling all over our rights than that.

here's the difference:
1. There's not a "oh no we gotta hurry" exception to the LAW. You need a warrant, you call up a judge on his cell and give him the low-down.
2. The NSA is prohibited by law from doing domestic spying no matter WHO the target is.

[Xiahou]

here's the difference:
1. There's not a "oh no we gotta hurry" exception to the LAW. You need a warrant, you call up a judge on his cell and give him the low-down.
2. The NSA is prohibited by law from doing domestic spying no matter WHO the target is.Actually, there's a pretty big exception that's getting alot of attention in the debate that I've been following.

US Code Title 18 Ch 2511 2(f) 'Interception and disclosure of wire, oral, or electronic communications prohibited':
Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.It basically says that restrictions don't apply if the wiretaps or whatever are for gathering foreign intelligence. There's also some discussion about the War Powers act, but I havent bothered to delve too deeply into that.

Personally, I'd say if they're monitoring a foreign suspect to gain intelligence and that person calls someone in the US- monitor it. Where it gets mucky is if the calls originate domesticly... if this was the case, I'd be interested in hearing why they couldn't be bothered to get a rubber stamp warrant first. :shrug:

[Fragony]

Every security service does this, what is the big deal.

[Geoffrey S]

It's not necessarily the fact that it happened which is the problem, but rather the high-handed way with which the Bush administration has consistently ignored or sidelined the rights of the people it's governing in the name of a war against terror; something people in the US seem to be waking up to, now.

[Lemur]

Some interesting thoughts on the domestic spying issue, (http://transcripts.cnn.com/TRANSCRIPTS/0512/16/sitroom.03.html) as spoken by Bob Barr, R-Georgia. (http://en.wikipedia.org/wiki/Bob_Barr)


BARR: What’s wrong with it is several-fold. One, it’s bad policy for our government to be spying on American citizens through the National Security Agency. Secondly, it’s bad to be spying on Americans without court oversight. And thirdly, it’s bad to be spying on Americans apparently in violation of federal laws against doing it without court order.

BARR: Well, the fact of the matter is that the Constitution is the Constitution, and I took an oath to abide by it. My good friend, my former colleague, Dana Rohrabacher, did and the president did. And I don't really care very much whether or not it can be justified based on some hypothetical. The fact of the matter is that, if you have any government official who deliberately orders that federal law be violated despite the best of motives, that certainly ought to be of concern to us.

BARR: The fact of the matter is the law prohibits--specifically prohibits--what apparently was done in this case, and for a member of Congress to say, oh, that doesn’t matter, I’m proud that the president violated the law is absolutely astounding."

[Tachikaze]

Well whats your opinion of FDR in WW2 then? We have roadblocks here all the time just to check if we are wearing our stupid seatbellt. You would think the cops had more important reasons for trampling all over our rights than that.
It's a problem of perception. The popular culture showed the Iron Curtain countries as police states by including roadblocks, wire taps, etc. The Homeland Security officers that stopped us acted exactly like the border guards in those James Bond movies, except they didn't have generic eastern European accents. But Americans have the false sense that they live in a "free country".

The US public is slowly being desensitized into accepting the same kinds of police-state behavior. Once they accept one step, they will accept the next, slightly more extreme, one until the US government has unprecedented control over us and knowledge of what we are doing.

[Gawain of Orkeny]

The US public is slowly being desensitized into accepting the same kinds of police-state behavior. Once they accept one step, they will accept the next, slightly more extreme, one until the US government has unprecedented control over us and knowledge of what we are doing.


Well then you and I are in agreement on one of these rare occassions. I hate whats happened to our freedoms.

[Crazed Rabbit]

I used to only see officers with assault rifles when I went into Mexico. Not long after the road block episode, I saw a gray-uniformed man standing in the main concourse of Los Angeles airport with an assault rifle.

I think the US guys probably have unloaded rifles, or at least in a position closer to 'safe' than the Mexican forces.


Well then you and I are in agreement on one of these rare occassions. I hate whats happened to our freedoms.

I too am in agreement. This is bad-but the people in congress who knew shouldn't pretend that this is something they didn't know about and act aghast.

Crazed Rabbit

[Tachikaze]

Well then you and I are in agreement on one of these rare occassions. I hate whats happened to our freedoms.
Our common views go beyond just classic movies and classic rock?

I was going to mention that this is one area where liberals and conservatives have some agreement; if not in details, in concern about excessive and illegal government control.

[Del Arroyo]

Rush' piece says that all this spying was done with the approval of a special secret court and with the full knowledge of several select members of congress. This sounds credible-- is it true?

DA

[Geoffrey S]

I was going to mention that this is one area where liberals and conservatives have some agreement; if not in details, in concern about excessive and illegal government control.
Just that both sides differ on which rights and freedoms should be allowed; left is for the freedom to choose an abortion, right is for the freedom to bear arms for instance. But the principle remains a minimum of reduction of such rights on either side.

[Devastatin Dave]

Please notice the date of when this EO was signed.
http://www.fas.org/irp/offdocs/eo/eo-12949.htm

[Geoffrey S]

And? Sucks whoever does it.

[Devastatin Dave]

And? Sucks whoever does it.
To which I agree. BTW, I wonder how many European nations have this sort of operation within their own governments to which the citizens have no knowledge of. Governments are NEVER transparent. Its hypocritical of certain congressional members to act outraged when they themselves agreed and had knowledge of this. Much like its hypocritical of people from other countries using this as some sort of vindication that the US is some sort of evil empire that spies on its citizens when most if not all governments do the exact same thing.
The bottom line is that you'd have to be extemely gullable or extremely stupid to think that this is an issue that only effects the United States.

[Devastatin Dave]

And lets not forget the strange timing of this story, a year old BTW, and the book deal of the writer of this stroy..
Newspaper fails to inform readers "news break" is tied to book publication

On the front page of today's NEW YORK TIMES, national security reporter James Risen claims that "months after the September 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States... without the court approved warrants ordinarily required for domestic spying, according to government officials."

Risen claims the White House asked the paper not to publish the article, saying that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny.

Risen claims the TIMES delayed publication of the article for a year to conduct additional reporting.

But now comes word James Risen's article is only one of many "explosive newsbreaking" stories that can be found -- in his upcoming book -- which he turned in 3 months ago!

The paper failed to reveal the urgent story was tied to a book release and sale.

"STATE OF WAR: The Secret History of the CIA and the Bush Administration" is to be published by FREE PRESS in the coming weeks, sources tell the DRUDGE REPORT.

Carisa Hays, VP, Director of Publicity FREE PRESS, confirms the book is being published.

The book editor of Bush critic Richard Clarke [AGAINST ALL ENEMIES] signed Risen to FREE PRESS.

I guess it will take a mushroom cloud in New York next time for liberals and elites to wake up and truelly see what we're up against. When national security means less than "How can we get George Bush", we will all suffer. Mark my words. The New York Times is the Al Jazeera in the United States.

[solypsist]

Im glad that bush is preserving our freedom and saving us from terrorists. if he werent president who knows what would be happening? Its like we'd be living in a place like communist russia or china; people controlling our every actions and spying on our private conversations by tapping our phone lines and such.

[Devastatin Dave]

Im glad that bush is preserving our freedom and saving us from terrorists. if he werent president who knows what would be happening? Its like we'd be living in a place like communist russia or china; people controlling our every actions and spying on our private conversations by tapping our phone lines and such.
Laugh it up Soly, New York, with the assistance of those trying to score political points, will be hit again. Will you play a fiddle while she burns?

[Strike For The South]

Phone taps and other things of that natuire could be of extreme use to the goverment. The police use them all the time. This is not the USSR we are not going to see Ted Kenedy dissaper from his bed. This is completly blown way out of proportion

[Kanamori]

Yet Bush appears to have overstepped his bounds by bypassing the courts; it isn't his place to tell us who is and who isn't worthy of being tapped or spied on, no matter how sound his judgement may have been in this case.

[Xiahou]

This is not the USSR we are not going to see Ted Kenedy dissaper from his bed. And if he does, it's just because he's out getting drunk again. :san_wink:

[Strike For The South]

Yet Bush appears to have overstepped his bounds by bypassing the courts; it isn't his place to tell us who is and who isn't worthy of being tapped or spied on, no matter how sound his judgement may have been in this case.

That sort of worries me but former presidnets have done much worse without damage to the nation. The wire taps however do not bother me the police do this and we never here any complaints. This is sadly another attempent to make Bush out to be some facist dictator.

[Geoffrey S]

That sort of worries me but former presidnets have done much worse without damage to the nation. The wire taps however do not bother me the police do this and we never here any complaints. This is sadly another attempent to make Bush out to be some facist dictator.
Seperation of the executive, legislative and judiciary powers isn't without its reasons, y'know, and Bush clearly overstepped his bounds here.

[Strike For The South]

Seperation of the executive, legislative and judiciary powers isn't without its reasons, y'know, and Bush clearly overstepped his bounds here.

I quite understand that. Nothing will come of this. The PR investagation will turn friutless and this will eventually become backpage news. If you think goverments wernt already doing this you are sadly mistaken brotha man. Agian we will not see politcal rivales commit "suicide" members of the media dissaper. This is overblown

[Geoffrey S]

I quite understand that. Nothing will come of this. The PR investagation will turn friutless and this will eventually become backpage news. If you think goverments wernt already doing this you are sadly mistaken brotha man. Agian we will not see politcal rivales commit "suicide" members of the media dissaper. This is overblown
As I said earlier, I realise this happens in other cases and I object to that also; what makes this important is the fact it was such a blatant misuse of the President's jurisdiction, when it wasn't even entirely necessary. Heck, that it took so long for it to come out in the open shows how proud of these actions they are.

[Strike For The South]

As I said earlier, I realise this happens in other cases and I object to that also; what makes this important is the fact it was such a blatant misuse of the President's jurisdiction, when it wasn't even entirely necessary. Heck, that it took so long for it to come out in the open shows how proud of these actions they are.

Well than I agree the president overstepped his bounderies whether it be for good or not he did. Unfortuantly nothing will be done

[solypsist]

Thought this was kind of funny:

Bush Announces Do-Not-Wiretap List (http://www.scrappleface.com/)

(2005-12-19) — Just days after the New York Times released classified information about eavesdropping by the NSA on Americans linked to international terrorists, President George Bush at a news conference today announced creation of a new website which allows people to voluntarily exclude their phone numbers and email addresses from NSA wiretap lists.

The new National Do Not Wiretap Registry (DoNotWiretap.gov) follows the successful DoNotCall.gov model of allowing citizens to opt-out of harassment by electronic means.

“If you’re concerned that your civil rights might be violated simply because some al Qaeda member has your information in his cellphone or computer,” the president said, “then go to DoNotWiretap.gov, enter your contact phone number, email address, and names of terrorists who might have you on speed dial and we’ll let the National Security Administration know that you don’t want them eavesdropping on you.”

[Kanamori]

OK, I feel better now.:san_laugh:

[Tribesman]

Right , all the Americans who have posted in this topic are now guilty of treason .
Your muppet of a leader has spoken . Discussing this issue is giving aid to the enemy , please turn yourselves in to the nearest police station you traitorous dogs .:san_laugh: :san_laugh: :san_laugh:

[Gawain of Orkeny]

Does anyone here have any proof that Bush overstepped his bounds? Ive never seen so much BS.


A former Ohio congressman, a man by the name of Clement Vallandigham called the prosecution of the Civil War wicked and cruel and he suggested that Lincoln and the Republican Party were using the Civil War to establish a dictatorship. Troops of the 115th Ohio Volunteer Infantry seized Clement Vallandigham from his home in Dayton. A military commission tried him for treasonable utterances and turned him over to the confederate army. Jefferson Davis didn't want Vallandigham any more than Lincoln did and eventually shipped him off to Canada from where he managed to slip back into the United States. Abraham Lincoln lamented, "Must I shoot a simple-minded soldier boy who deserts while I must not touch a hair of a wily agitator who induces him to desert?" Why, this conjures up all kinds of fun things! Grabbing Dingy Harry, putting him on trial, and expelling him to the remote regions of Pakistan where Al-Qaeda is holing up. That's interesting to contemplate. Abraham Lincoln did it. I don't know how he ever got a monument. The Democrats must have been looking the other way. "The Constitution is not a suicide pact," Abraham Lincoln. This is exactly how the Democrats would like it to read today. It is a suicide pact. We must extend constitutional rights to enemy combatants, according to the left, according to Senator McCain. We have the Tim Russert sound bite. Can we play that, please? Here's Russert. This is after the president's press conference today.

RUSSERT: The reason we go to war is to protect our civil liberties. Constant references obviously to President Nixon back in '72 who tried to monitor, eavesdrop on American citizens and the Supreme Court said, no, you can't do that. I remember President Nixon having the doctrine of preventive detention where he would arrest war demonstrators ahead of time and here in Washington put them into RFK stadium and the courts threw that out.

RUSH: Russert, yesterday, the Meet the Press show today, can't get off of Nixon. He can't get off of Watergate. Because that's the mode; that's the template: Bush is Nixon. This is Watergate. The war is Vietnam -- and they're not going to stop until they convince the American people of this. We don't go to war to protect our civil liberties; we go to war to save our lives. Our civil liberties are worthless if we are dead. If we have all assumed room temperature, folks, our civil liberties don't count diddly-squat. Again, I have to ask these people, what civil liberty is being violated here? I would love for the press to answer this question, what civil liberties are we losing? The press can be as disloyal to the country as they've ever been, nobody is stopping them from being anti-American or their reporting being anti-American. Take it back. Pat Fitzgerald put a woman in jail, but they wanted that prosecutor. They wanted that case.


FDR? Did he protect civil liberties when he rounded up 110,000 Japanese and moved them from their homes and businesses to internment camps? And Lincoln suspended habeas corpus? Lincoln actually deported somebody he thought was just an agitator? Somebody he thought was just an agitator? How about RFK, Robert F. Kennedy, authorizing the wiretapping of Martin Luther King, Jr.? Last I looked, Lincoln and FDR are among our greatest presidents ever, among our greatest civil libertarians ever. You want to test this, go tell some Democrat friend of yours that FDR was no friend of civil liberties. See what you get. They think he's the greatest guy we've ever had, and RFK the greatest president we almost had is also considered to be a fabulous guy and he's out there wiretapping Martin Luther King. Are these the kind of civil liberties these people are talking about? I need to have this answered because I can round up all kinds of Democrats that violate civil liberties left and right in the prosecution of war because the Constitution is not a death sentence, Abraham Lincoln. It's not a suicide pact.

BREAK TRANSCRIPT


RUSH: You want to hear some more history? Lincoln suspended the writ of habeas corpus when he had reporters thrown into prison, because they wrote against him in the union. He threw nine members of the Maryland legislature into prison to prevent that state from possibly pulling out of the union. This is all history and when you understand history, it will put him in even greater context just how legally and in a restrained fashion Bush is fighting this war. Lincoln is one of our greatest presidents ever. Here he deports an agitator to the south. The south, "We don't want the guy." They recognize a traitor when they see one. They send him to Canada. Can you imagine sending Dingy Harry over to Pakistan or Afghanistan? Ha-ha! Can you imagine putting New York Times reporters in jail? Except the president didn't do that. Sorry, the prosecutor they asked for did. Can you imagine the president doing this? Folks, folks, I can't tell you what I would do if the president decided to put the press in jail. (Gasping)

We are in the midst of a war, and when you understand that everything changes -- and if you don't have a historical context for these kinds of things, if you think history began the day you were born, and so nothing that has happened outside your lifetime is relevant, you're not going to understand the important things about the country's past and preserving our country's future. This business of going to war to protect civil liberties that Tim Russert's been on the past couple days, the Supreme Court has made clear that at a time of war the president has inherent powers to protect national security. That's why there's one commander-in-chief and not 535 of them. The court's made a distinction between the criminal justice system and military actions, including intelligence activities related to national security. It's all in the opinions, Tim, go read the opinions, they're right there for everybody to read. You people in the media can read these opinions. They're worried about judicial review, go review some judicial works. It's all in there. It's why some of this stuff is so frustrating. I watched these people ask the president questions and comment, and it's clear they don't know any history, either. Can you imagine the argument you would get into with your average run-of-the-mill White House reporter if sit them down and say, "You know what Lincoln did to people like you? Put you in jail!"

"He did not!"

"Yes, he did."

"Well, he must have had a reason."

They can't really complain about Lincoln because he ended slavery. How can they start criticizing Lincoln, the libs? And you know what else he did? He put nine members of the Maryland legislature in jail too, and he suspended the writ of habeas corpus and he deported some former congressman from Ohio who was an agitator, and you think what's going on now poses a threat to the country? You're the threat! But you send an average reporter down and give them just this little bit of history and I guarantee you it will be all over the world that Limbaugh lies, makes things up just to fit his context. They won't even bother looking it up, they'll find it so absurd.

"Not possible in this country," they'll say.




LINK (http://www.rushlimbaugh.com/home/daily/site_121905/content/stop_the_tape.guest.html)

Or better yet try this out for size.





December 19, 2005, 8:59 a.m.
Unwarranted Outrage
The Times blew our cover.



I have no doubt that revelations in the New York Times that the NSA has been conducting selective and limited surveillance of terrorist communications crossing into or out of the United States will be immensely valuable to our enemies. I also have no doubt that these and similar actions can be legal, even when conducted without warrants.




How could that be? From the sound and fury of the last few days from politicians and pundits, you would think this is a development as scandalous as Attorney General Robert F. Kennedy's authorization to wiretap Martin Luther King Jr. But the legality of the acts can be demonstrated with a look through the Foreign Intelligence Surveillance Act (FISA). For example, check out section 1802, "Electronic Surveillance Authorization Without Court Order." It is most instructive. There you will learn that "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" (emphasis mine).

Naturally, there are conditions. For example, the surveillance must be aimed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers." Wait, is a terrorist group considered a foreign power? Yes, as defined in section 1801, subsection (a), "foreign power" can mean "a group engaged in international terrorism or activities in preparation therefore," though the statue language would explicitly apply to "a faction of a foreign nation or nations."

But isn't international terrorism that which takes place abroad, as opposed to homegrown domestic terrorism? Not exactly: Section 1801 subsection (c) defines international terrorism as, among other things, terrorist actions that "occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum." So if you are hiding, making plans, facilitating, attacking, or intending to spread fear inside the US, and have a link abroad, you are an international terrorist. Quite sensible.

O.K. fine, but what about the condition that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?" Doesn't that necessarily cut out any and all communication that is domestic in origin or destination? Well, not quite. Return to section 1801, subsection (i): "United States person," which includes citizens, legal aliens, and businesses, explicitly "does not include a corporation or an association which is a foreign power."

Well sure, but does that mean that even if you are a citizen you cash in your abovementioned rights by collaborating with terrorists? Yes you do. You have then become an "Agent of a foreign power" as defined under subsection (b)(2)(C). Such agents include anyone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," and even includes those who aid and abet or knowingly conspire with those engaged in such behavior.

Wait, that includes anyone, even citizens? Yes — subsection (b)(1) is the part that applies to foreigners; (b)(2) covers everybody. And the whole point of the act is to collect "foreign intelligence information," which is defined under section 1801 subsection (e)(1)(B) as "information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against sabotage or international terrorism by a foreign power or an agent of a foreign power."

Whoa, you say, that is way too much power for the president to wield without checks and balances! Well, true, and since Congress wrote this law, they included reporting requirements. The attorney general must report to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence 30 days prior to the surveillance, except in cases of emergency, when he must report immediately. He must furthermore "fully inform" those committees on a semiannual basis thereafter, per section 1808 subsection (a). He must also send a copy of the surveillance authorization under seal to the so-called FISA Court as established in section 1803; not for a warrant, but to remain under seal unless certification is necessary under future court actions from aggrieved parties under section 1806 (f).

This is significant, because it means that some of the same politicians who have been charging abuse of power may also have been briefed on what was going on long ago. The White House should get ahead of the story by noting which congressmen were informed of these activities, instead of allowing them to grandstand so shamelessly. It would also help if the White House released some information on how the surveillance has helped keep the country safe. What attacks were disrupted, what terrorists were taken down, how many people saved? A few declassified examples would be very useful to ground the discussion in reality rather than rhetoric.

So how do the revelations in the Times help the terrorists? Think it through — if you were a terrorist and you believed (as most people seem to) that the NSA would ignore your communications if they crossed U.S. borders, your best move would be to set up communications relay stations inside the U.S. Terrorists are well known for their ability to find and exploit loopholes in our laws, and this would be a natural. For all we know our intelligence agencies have been exploiting these types of communications for years without the terrorists knowing it. Now they will fall silent, because now the bad guys know better. So New York Times writer James Risen will sell his book, the Times will increase circulation, politicians will beat their breasts and send out fundraising letters, and who will pay in the end?

You can answer that one.



LINKhttp://www.nationalreview.com/robbins/robbins200512190859.asp

[Red Harvest]

I won't have much time for the Backroom for the next few weeks, but this latest revelation only further illustrates the abuse of power that characterizes this administration from stem to stern.

This one is gonna cost him. Why? The problem is that from what I heard a few minutes ago, the existing law already allows the NSA to go to the court *retro-actively* for approval on urgent matters. The whole defense of having to wait appears to be a SMOKESCREEN. There is no need to bypass the law.

Bush seems to be determined to get himself impeached. The real question is will the public catch on, or will the GOP be able to stuff another skeleton back in the closet?

The biggest threat to our country is not Osama, terrorism, Iran, China, or North Korea. The biggest threat to the country is of having our liberties and open society undermined by a president and administration utterly lacking in judgement, ethics, veracity, competence to govern, and basic scruples. They can do far more damage from inside, than anyone else can from outside.

[Gawain of Orkeny]

This one is gonna cost him. Why? The problem is that from what I heard a few minutes ago, the existing law already allows the NSA to go to the court *retro-actively* for approval on urgent matters. The whole defense of having to wait appears to be a SMOKESCREEN. There is no need to bypass the law.


And if you read the article I posted you will see that he didnt. It was no secret and congress was consulted.

[Red Harvest]

And if you read the article I posted you will see that he didnt. It was no secret and congress was consulted.

Your Rush article? That oxycontin freak can't find his butt with both hands intellectually. He's going on about Lincoln and the Civil War when the nation had literally been torn in two. His articles are half truths at best, I prefer sources that contain at least some shred of intellectual honesty. Rush is an entertainer, like Stern.

Or the 2nd article? Talk about flawed logic. The author is doing a lot of twisting to try to extend the exemption, labeling citizens agents of foreign powers without ever providing proof that they are indeed agents as such. (Just trust Dubya?) Not to mention that the foreign power definition itself is quite stretched in the context, since they represent no known government and might indeed be homegrown entities. That's the reason the check step is there. So rather than having some idiot boot licking minion sign off ("Here Brownie, sign this for me") he should be getting some judicial authorization. He of course finishes with the standard GOP conservative line, that those questioning the president are aiding terrorists. I think we should be allowed to take the author out and beat him senseless...although it appears that wouldn't be much of a beating...or perhaps none. :san_grin:

But the best part is the defense of lack of oversight being responsible for Dubya's actions. It's always the other guy that is responsible for him abusing his powers. :san_laugh: As with the WMD intelligence our lawmakers were not adequately or accurately informed by the Administration. Even GOP members are saying so on this one. THEY do not feel properly informed. Dubya can get away with misleading them, he's done it before. It isn't so easy when he has to do it through a judge rather than through an appendage of his party's apparatus that happens to be Congress.

Thank God for the Free Press. I feel safer knowing they are out there, rather than relying on Dubya' judgement.

[Gawain of Orkeny]

Thank God for the Free Press. I feel safer knowing they are out there, rather than relying on Dubya' judgement.


Your deluding yourself if that makes you feel safer. I suppose you feel safer without the patriot act also. Next you will be telling me you feel safer without the armed forces. You will see this like all the other crap theve tried to pin on Bush will come back to bite them.

[Red Harvest]

Your deluding yourself if that makes you feel safer. I suppose you feel safer without the patriot act also. Next you will be telling me you feel safer without the armed forces. You will see this like all the other crap theve tried to pin on Bush will come back to bite them.

LOL, no, I don't think it has bitten them. Dubya is certainly making his mark in history, and none of it in a positive way. I am enjoying watching the sense of shock and discovery of others as they realize how this country has really been run for the past 5 years. :san_laugh: They didn't want to believe any of it.

I'm happy with the armed forces, just not the civilian leadership of it at the moment. I've been pretty clear about that. And I'm still getting a big contented chuckle over the backtracking by the Admin to say we are going to start drawing down soon and be way down by the end of 2006. Sound familiar? They must be cutting and running right? :san_laugh:

I see some serious vulnerabilities for the GOP in 2006. The Democrats could easily turn the tables on "family values" and religious conservatism by playing to the independents with a different bent. The religious side is easy: just point out that the GOP leaders talk about God alot, but Jesus is never in their message. Remind people that it is called "Christianity" for a reason...one that the Old Testament GOP seems utterly unaware of with the "greed is good" approach to everything. GOP = Grand Old Pharisees, empty phrases, meaningless symbology, and ineffective, non-compasionate government. :san_cool:

[Xiahou]

I'm happy with the armed forces, just not the civilian leadership of it at the moment. I've been pretty clear about that. And I'm still getting a big contented chuckle over the backtracking by the Admin to say we are going to start drawing down soon and be way down by the end of 2006. Sound familiar? They must be cutting and running right? :san_laugh: Yeah, that does sound familiar.... a post election drawdown has been planned for how many months now? But no, I'm sure what they're doing is adopting the Murtha "immediate withdrawal" plan.... :rolleyes:

[Gawain of Orkeny]

Just to show you how silly the title of this thread is listen here (http://marklevinfan.com/?p=731). Like Bush started this.

[BDC]

The new National Do Not Wiretap Registry (DoNotWiretap.gov) follows the successful DoNotCall.gov model of allowing citizens to opt-out of harassment by electronic means.

Also known as ImATerroristBugMe.gov.

[Red Harvest]

Yeah, that does sound familiar.... a post election drawdown has been planned for how many months now? But no, I'm sure what they're doing is adopting the Murtha "immediate withdrawal" plan.... :rolleyes:

We are drifting off topic...
but you are stepping off a cliff with this one: Lots of draw downs have been planned by the Administration for the past several years. Lots of projections have been made about how this event or that would allow us to draw down. And what has happened? We've continued to trickle in more instead because the insurgency has not weakened.

How many times have we heard that this election or event was the reason for increased attacks/security? Only to be followed by another a few months later. That is why Americans have not seen progress and stopped believing the message. If you are wrong a half a dozen times on your projections on a subject, and never right, then you have a credibility problem.

Credibility problems...like those here and in the Admin who were claiming we should be building up during the Murtha stir, but are now "cutting and running" by going to this "planned" drawdown. At the same time they are claiming: no timetable. Yet now they say this was the timetable all along. So which side of their mouths are they lying out of?

Nah, the truth is that the Admin and the GOP now realize they have to work on an actual exit. The American majority has clearly said it wants a plan to get out, not more thrashing about looking for a plan to stabilize the country with inadequate levels of troops. The face saving move is amusing. Bush/bubble boy even took the rare step of multiple addresses and taking questions. :san_shocked: It is rare that the emperor allows such an audience to any of his subjects.

Murtha's plan was not immediate withdrawal--that's the GOP/Admin spin. You know, like "compassionate conservative" and "mission accomplished" or "Browine, you're doing a heckuva job!"

[solypsist]

our presence will soon only be enough forces to protect oilfields and pipelines.


Yeah, that does sound familiar.... a post election drawdown has been planned for how many months now? But no, I'm sure what they're doing is adopting the Murtha "immediate withdrawal" plan.... :rolleyes:

[solypsist]

Domestic Surveillance: Spooks React (http://www.defensetech.org/archives/002032.html)

"A few current and former signals intelligence guys have been checking in since this NSA domestic spying story broke. Their reactions range between midly creeped out and completely pissed off.

All of the sigint specialists emphasized repeatedly that keeping tabs on Americans is way beyond the bounds of what they ordinarily do -- no matter what the conspiracy crowd may think.

"It's drilled into you from minute one that you should not ever, ever, ever, under any _______ circumstances turn this massive apparatus on an American citizen," one source says. "You do a lot of weird ____. But at least you don't ____ with your own people."

[Red Harvest]

You've of course seen the Newsweek online commentary that says Bush tried to personally get the NYT article killed. http://www.msnbc.msn.com/id/10536559/site/newsweek/

Yes, it is an editorial commentary, and empties both barrels on Bush, but it does ring true on the particulars. All of the information I've seen suggests that the supposed restriction Bush was claiming to need to avoid DOES NOT ACTUALLY EXIST. In other words, the President and everyone in his administration that has commented on this is LYING to us again. Yes, it is a lie, because it is intentional and they know it is false.



By Jonathan Alter
Newsweek
Updated: 6:17 p.m. ET Dec. 19, 2005
Dec. 19, 2005 - Finally we have a Washington scandal that goes beyond sex, corruption and political intrigue to big issues like security versus liberty and the reasonable bounds of presidential power. President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.

No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting,
but one can only imagine the president’s desperation.

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden’s use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists—in fact, all American Muslims, period—have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that “the fact that we are discussing this program is helping the enemy.” But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a “shameful act,” it was the work of a patriot inside the government who was trying to stop a presidential power grab.

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.

What is especially perplexing about this story is that the 1978 law set up a special court to approve eavesdropping in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact. Since 1979, the FISA court has approved tens of thousands of eavesdropping requests and rejected only four. There was no indication the existing system was slow—as the president seemed to claim in his press conference—or in any way required extra-constitutional action.

This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974.

In the meantime, it is unlikely that Bush will echo President Kennedy in 1961. After JFK managed to tone down a New York Times story by Tad Szulc on the Bay of Pigs invasion, he confided to Times editor Turner Catledge that he wished the paper had printed the whole story because it might have spared him such a stunning defeat in Cuba.

This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story.

© 2005 Newsweek, Inc.

[Major Robert Dump]

Although the timing and "intent" of the people who broke the story is conspicuous, it does not change the facts of what has happened.

Although the issue really wasnt a "secret" within some of the circles now complaining, it does not change the facts of what has happened.

FISA allows for quick approval of wiretapping requests. Since 1979 it has approved thousands of requests and only rejected four, and many of these requests were approved after the act was done, making it an after-the-fact warrant in some cases. The taps were arrpoved within hours and sometimes within minutes, and like i just said they could be approved AFTER THE FACT

The Whitehouse would have you believe that FISA was a slow process, which it was not. Bush trying to kill the story had less to do with national security and more to do with saving face.

Classic politics on both sides.

And as far as jeopordizing national security by discussing this issue, that is based on presumption after presumption. Yes, the terorrists will find new ways to communicate now, IF they already hadnt. I would also like to see the info on "who" was wiretapped and whether or not the incidents exonerated or proved guilt of the individuals being watched. If it wasn't effective to begin with, then how are we being hurt by not doing it anymore or by talking about it.

I find it odd that no one is talking about the FISA and how this secret wiretapping essentially did the same thing FISA did so why was it being done?

And please, stop comparing Bush to Lincoln.

[Gawain of Orkeny]

And please, stop comparing Bush to Lincoln.

Yes Linclon openly trampled all over our civil rights.

[Xiahou]

It's not going to make it smell any better, but here is further legal cover for warrantless monitoring... Here's testimony by Jamie Gorelick during the Clinton administration when they were doing essentially the same thing:

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

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

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."link (http://www.nationalreview.com/york/york200512200946.asp)

Here is a link (http://www.cia.gov/cia/information/eo12333.html) to the text of Executive Order 12333, put forth by Reagan. I believe this is the relevant part:
2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.Basically allowing for the AG to approve warrantless searches/wiretaps if it's directed against a foreign power or agent of a foreign power.

That brings me to a whole other mess- Executive Orders. They basically have the force of law and are put into effect with no Congressional approval and are often, imo, an abuse of executive power- but they're a fact of life... which is the whole point- You can say the whole thing stinks, but it's going to be very difficult to show that it was illegal.

[Red Harvest]

Yes Linclon openly trampled all over our civil rights.

Really? I didn't think you were THAT old. I know I'm not.

Typical tactic, compare the current person being defending to someone you think was an utter curr. I fail to see how doing that strengthens the argument in any way? You say that Lincoln abused his power and that is your defense??? Defendant hurriedly rises: "Your Honor, I would like to request new counsel on the grounds that my current counsel is incompetent."

Don't compare Bush to Lincoln, it is wholly inappropriate. Nixon is far closer to the mark and in the same basic era.

[Gawain of Orkeny]

You say that Lincoln abused his power and that is your defense???

No Im saying much as I dislike it , it was within his power. Same for FDR. Why do you think it is that congress created the war powers act. It was to handcuff the president not help him. If war were to be declared Bush could do a lot more than this.

And lets look at that article you posted Red


No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker.

Did Bush tell him this? Do you think Bush sees himself as a law breaker? Or is it in reality this guys opinion?

And this part as well


This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story.


Hes reporting it like facts and not opinion. But then your big on using opinions as facts as well.

[Lemur]

Yes yes yes, Lincoln and Clinton were bad, so Bush gets a pass on everything. I think we've all heard this before.

On a more interesting note, you may want to read some of the reactions coming in from professional spooks. Linky. (http://www.defensetech.org/archives/002032.html)


A few current and former signals intelligence guys have been checking in since this NSA domestic spying story broke. Their reactions range between midly creeped out and completely pissed off.

All of the sigint specialists emphasized repeatedly that keeping tabs on Americans is way beyond the bounds of what they ordinarily do -- no matter what the conspiracy crowd may think.

"It's drilled into you from minute one that you should not ever, ever, ever, under any ****** circumstances turn this massive apparatus on an American citizen," one source says. "You do a lot of weird ****. But at least you don't **** with your own people."

[Gawain of Orkeny]

"You do a lot of weird xxxx. But at least you don't xxxx with your own people."

Yeah I know dont bring up FDR and Linclon. Besides if you listend to my post on echelon you would know theve been spying on everything you post here since day one.

/edit: Gawain, there was a reason I edited that quote from my post. Make sure you do so, too.

[Xiahou]

The CIA has been cleaning house of Clinton-era cronies since Goss took charge- there was even a big stink about it when it started. I've heard from too many disgruntled ex-CIA agents running to the media to take their tirades too seriously, especially when they feel the need to cuss like sailors.

Speaking of running to the media though, whether it was legal or not- this was all a highly classified operation and therefore exempt from the "Whistle Blower" legal protections. I wonder if there will be an investigation into who the leaker was?

[Lemur]

There's no evidence that any of the people responding are from the CIA; that's your supposition. And what exactly is your relationship to the CIA, anyway? You post as though you know some people. Are you speaking from first-hand knowledge, or are you speaking from NewsMax knowledge?

[Xiahou]

"running to the media" Notice where I said that? Do you think I said that because, just maybe, I saw them whining about Bush on the same said "media"? I dont need top secret clearance to watch the news. :wink:

[Major Robert Dump]

I'm well aware the civil rights violations committed by Lincoln and they weren't unlike some of the things happening today. My asking people to stop comparing Bush to Lincoln was moreless in reference to "legacy" if you will.

Hard news Bush haters. It has come to my attention that recent previous presidents have done exactly what Bush did -- spying on citizens without court or NSA approval -- including Clinton and Carter.

While I still have questions concerning this issue, I now think this entire ordeal has officially been blown out of proportion.

I would also like to know how these yahoos on the intel committee are saying they never knew this was happening while Bush says he told them, like some verifiable documentation or something, there has to be a paper trail for this. Either someone is lying or someone is not doing their job (ie congressman not actually reading what they are voting on, and having staffers "break it down" for them instead...happens all the time in congress, but I can't imagine staffers being that involved in meetings of that calibre+

[Kralizec]

Since Lincoln and FDR did it, it must be all right for Bush to do it right? I mean, certainly TWAT is every bit as apocalyptic as the civil war or WWII was :san_rolleyes:

[Gawain of Orkeny]

Since Lincoln and FDR did it, it must be all right for Bush to do it right? I mean, certainly TWAT is every bit as apocalyptic as the civil war or WWII was

Judging by 911 its even more of a threat.

[Major Robert Dump]

9/11 is a smudge in my armpit compared to the civil war. Yes, we were attacked and it was terrible, and the next day the country went about business as usual give a few snags. The Civil War, lol, and you guys comparing it and Lincoln to 9/11 and Bush. too funny, too funny....

[Red Harvest]

Judging by 911 its even more of a threat.

Yeah, we lost what, a million people on 9/11? :san_rolleyes: Your comment illustrates zero sense of historical perspective.

[Red Harvest]

Speaking of running to the media though, whether it was legal or not- this was all a highly classified operation and therefore exempt from the "Whistle Blower" legal protections. I wonder if there will be an investigation into who the leaker was?
Considering that the activities being reported were illegal and by the highest level of government, they are safe from prosecution. Spin your fantasy, but the illicit nature of this required this sort of leak.

Oh, and the committee members had also raised objections about it sending letters to the admin, but did not go public. McCain says they should have gone public since they considered some fo the govt. actions illegal.

When your govt. is undertaking illegal activities under the guise of secrecy, you have no recourse within the law.

But, hey, this Administration has never given a rats ass about the law. It is morally and ethically bankrupt.

[Goofball]

More developments:
http://www.theglobeandmail.com/servlet/story/RTGAM.20051221.wjudge21/BNStory/International/


Judge resigns over Bush domestic spying program

if(typeof sIFR == "function"){ runSIFR(); }Wednesday, December 21, 2005 Posted at 10:40 AM EST
Associated Press

Washington — A U.S. federal judge has resigned from a special court set up to oversee government surveillance to protest the Bush administration's secret authorization of a domestic spying program, the Washington Post reported Wednesday.

The action by U.S. District Judge James Robertson stemmed from deep concern that the surveillance program that President George W. Bush authorized was legally questionable and may have tainted the work of Robertson's court, the newspaper said.
The Post quoted two associates of the judge.
White House press secretary Scott McClellan would not comment on Judge Robertson's reported resignation or the reasons cited for his departure. "Judge Robertson did not comment on the matter and I don't see any reason why we need to," Mr. McClellan said.
Judge Robertson was one of 11 members of the secret Foreign Intelligence Surveillance Court, which oversees government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.
Quoting colleagues of Judge Robertson, the Post said the judge had indicated he was concerned that information gained from the warrantless surveillance under Mr. Bush's program subsequently could have been used to obtain warrants from the surveillance court.
The Post said Judge Robertson, without providing an explanation, stepped down from the court in a letter late Monday to Chief Justice John Roberts. He did not resign his parallel position as a federal district judge.
Supreme Court spokeswoman Kathy Arberg said early Wednesday she had no information to offer on the matter.
Judge Robertson was appointed a federal judge by then-president Bill Clinton in 1994. Chief Justice William Rehnquist later appointed Judge Robertson to the surveillance court as well.
Judge Robertson has been critical of the Bush administration's treatment of detainees at the U.S. naval prison at Guantanamo Bay, Cuba, most memorably in a decision that sidetracked the president's system of military tribunals to put some detainees on trial.
Judge Robertson's resignation was reported hours after Vice-President Dick Cheney strongly defended the surveillance program and called for "strong and robust" presidential powers.
Mr. Cheney — a former member of congress, defence secretary and White House chief of staff under President Ford — said executive authority has been eroding since the Watergate and Vietnam eras.
"I believe in a strong, robust executive authority and I think that the world we live in demands it," Mr. Cheney said.
Republicans said Congress must investigate whether Mr. Bush was within the law to allow the super-secret National Security Agency to eavesdrop — without warrants — on international calls and e-mails made from within the United States by Americans and others with suspected ties to al-Qaeda.
"I believe the Congress — as a co-equal branch of government — must immediately and expeditiously review the use of this practice," said Senator Olympia Snowe (R-Maine).
Ms. Snowe joined three other members of the Senate intelligence committee, including Nebraska Republican Chuck Hagel, in calling for a joint inquiry by the Senate judiciary and intelligence committees.
Mr. Bush and his top advisers have suggested senior congressional leaders vetted the program in more than a dozen highly classified briefings. Several Democrats said they were told of the program, but did not know the full details and had concerns.
West Virginia Senator Jay Rockefeller, the Senate intelligence committee's top Democrat, on Monday released a letter he wrote to Mr. Cheney in July 2003 that, given the program's secrecy, he was "unable to fully evaluate, much less endorse these activities."
Senate Intelligence committee chairman Pat Roberts (R-Kan.), pushed back Tuesday, saying that if Rockefeller had concerns about the program, he could have used the tools he has to wield influence, such as requesting committee or legislative action. "Feigning helplessness is not one of those tools," Mr. Roberts said.

[Gawain of Orkeny]

Yeah, we lost what, a million people on 9/11? Your comment illustrates zero sense of historical perspective.


It was the largest loss of life on american soil by a foriegbn attacker. Islamic terrorism is a bigger threat to america and our way of life than Nazi Germany ever was.

[Red Harvest]

Islamic terrorism is a bigger threat to america and our way of life than Nazi Germany ever was.

No, it is not. The biggest threat to our way of life is the "anything goes" approach that your conservative buddies are taking as a result of 9/11. The erosion or our way of life now is coming from within by those with a fascist approach to government.

How much rationing have we had since 9/11? How many have we sent off to war? Now compare that to WWII and tell me that our way of life was more threatened by AQ or by what the Nazi's threatened.

[Pindar]

Hello,

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: "We take for granted that the President does have that authority (the above noted warrantless searches) and, assuming that is so, FISA could not encroach on the President's constitutional power." Legally speaking: this is a non-issue.

I'm feeling very festive for some reason. :san_grin:

[Gawain of Orkeny]

Nice to see you back here Pindar. Hey did you read this also?


A Colloquy With the Times
Reporter Eric Lichtblau of the New York Times responded to the email I sent earlier today; we had the following exchange.

Me to Lichtblau:

Mr. Lichtblau, in your reporting in the Times you appear to have tried to create the impression that the NSA's overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:
"The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], 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."

In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program's legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

Thank you.


Lichtblau to me:

You must not have read to the end of our original story last Friday. It quotes from the FISA appellate decision that you cite.
Me to Lichtblau:

That's great, but doesn't answer the question. It seems to me that the import of the Times' stories is to suggest that the NSA intercepts are, or may be, illegal. That implication is what gave your paper's reports the quality of a "scoop." Are you telling me that you knew all along that this wasn't true, and the intercepts are clearly legal? If not, what are you telling me?
Thanks for responding.


Lichtblau to me:

I'd refer you again to our story. There's an extensive section on the debate over whether the program was legal, including the FISA ruling you cite.
Me to Lichtblau:

Here's my problem with your coverage: as a legal matter, there isn't any debate. The authorities are all on one side; they agree that warrantless surveillance for national security purposes is legal. I think your articles misleadingly suggest that there is real uncertainty on this point, when there isn't. Thus, for example, you write:
Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program's legality. But nothing came of his inquiry. "People just looked the other way because they didn't want to know what was going on," he said.
I don't think you should be quoting anonymous "officials" making incorrect assertions about legal issues, while not pointing out that their assertions are wrong. (I would also note that the NSA intercepts are not "inside the United States.") And I don't think that a partial sentence from one of the controlling decisions, buried at the end of a long article and not repeated in subsequent articles, removes the incorrect impression you convey that the NSA program is, in all likelihood, illegal. Also, with all due respect, I think your treatment of the 2002 FISA case is itself misleading. While you do quote part of the key sentence, you go on to suggest that the court left the issue in a state of ambiguity by writing:

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."
Those quotes had nothing to do with the court's recognition of the President's inherent power to surveil without a warrant to obtain foreign intelligence information, and did not in any way qualify the court's clear holding on that issue. You plucked them from another part of the opinion. The "dividing line" the court referred to was the "primary purpose" test that was established by the Truong decision and changed by Congress in the Patriot Act. The court noted that the "primary purpose" test was difficult to administer, which it saw as an argument in favor of the constitutionality of its revision by Congress. Contrary to the implication of your paragraph, this had nothing to do with the President's power to conduct warrantless surveillance.

In my opinion, you should not convey the impression to your readers that the NSA surveillance is likely illegal unless there is, at a minimum, a respectable argument, supported by legal authority, to that effect. Do you think there is such an argument? If so, what is it, and what is the authority?

Thanks again for responding.


Since I haven't heard from Mr. Lichtblau for some time, I'm going ahead and posting the discussion we've had so far. I hope that Mr. Lichtblau will respond to my criticisms of the Times' coverage in my last email; if so, I'll post his answer. In any event, we greatly appreciate his taking the time to engage us in this conversation.



And all you libs buy into the Times story.

[Red Harvest]

Hello,

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: "We take for granted that the President does have that authority (the above noted warrantless searches) and, assuming that is so, FISA could not encroach on the President's constitutional power." Legally speaking: this is a non-issue.

I'm feeling very festive for some reason. :san_grin:

There is a big problem with using that:


That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power. In approving the district court’s exclusion of evidence obtained through a warrantless surveillance subsequent to the point in time when the government’s investigation became “primarily” driven by law enforcement objectives, the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.”

Reads a bit differently doesn't it? The act was not in place for the period of time in which the ruling applied. And the evidence gathered later of criminal but not foreign agent/power was excluded. Now it really reads differently...



Although the Truong court acknowledged that “almost all foreign intelligence investigations are in part criminal” ones, it rejected the government’s assertion that “if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.
Might want to hold off on that eggnog.

And there is another problem, the President bypassed FISA altogether. It is not clear to me that he really had that authority. However, there is a belief by the Administration and its supporters that executive powers in "time of war" over ride everything else. And there is a FISA 2002 review court ruling to support it. Reading through sections of that review I'm completely unpersuaded by their reasoning. They seem to assume as a given that the President has any authority he wants and is unchecked, despite FISA. They see the FISA court only as an "amplifier." That is illogical. He doesn't need them at all if there is already a precedent.

This part is classic doublespeak


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.
Come again? They get to determine the boundaries, but there are none since they can't encroach?

It looks like Truong is being misconstrued as a precedent where it doesn't apply. Seems that the real test of whether FISA can limit the President's authority in any way has not actually been tested. Instead there have been some backroom standards applied and accepted. Has SCOTUS ever ruled on this? Because the only way I can accept the interpretation given is if FISA is unconstitutional in the first place.

By the way, I'll give you 5:1 odds that NSA's extra curriculars weren't limited to international intercepts, regardless of what has been stated officially so far.

The incident is a further example of why we erred in ever giving this particular President war powers of any kind.

[Gawain of Orkeny]

By the way, I'll give you 5:1 odds that NSA's extra curriculars weren't limited to international intercepts, regardless of what has been stated officially so far.


Yes put on your tin foil hat because thats the only way these things can possibly constituted as illegal. Dont hold your breath waiting for proof . There is no spying on ordinary americans . Only transmissions either from outside the US into the US or going out have been used and those intercepted in another nation. When you have some kind of proof to back up your accustaions come back and let us all in on it.
Would you like some egg nog? Better yet how about some Kool Aid? Or maybe some of this.

http://www.clicknation.com/snoof/images/deanaid.jpg

[Red Harvest]

Gawain, you sound like your typical Dubya cheerleading self. However, looking at that review, I found it badly flawed, and inherently contradictory. As such, I'm left with the impression that it's conclusions are wrong and would be overturned if they were reviewed.

Clearly Bush sought to flaunt in the face of FISA in spite of a review that should have given him plenty of latitude. In fact, that makes his actions even MORE disturbing. The review court had given him the discretion he sought, but rather than use it he bypassed the entire process. It is an abuse of power unless FISA itself is unconstitutional. So far I've not seen that used as the basic defense.

One could make the case for it being an abuse of power regardless. Executive powers can be misused, even if legal.

[Seamus Fermanagh]

Red Harvest...Cherry flavored?...I think maybe not.


In times of war, all executives charged with prosecuting the war are inclined to arrogate power and minimize opposition so as to prosecute the war more effectively.

The basic framework of our nation, however, tends towards the preservation of individual rights in any but the most extreme circumstances.

So far, we have found generally achieved a balance appropriate to the crisis in each conflict -- not perfect and not without mis-carries, but sufficient to its purpose.


I am, personally, annoyed that the Patriot Act's many useful provisions were not extended during this ongoing war against terrorism, but I was also not willing to see so many of them made permanent. This paralells my annoyance with the Padilla case -- whatever else he was/is Padilla was a U.S. Citizen, aprehended un-armed and on U.S. soil and deserves the process of court (under a full gag order if necessary for the national defense).

On the whole, I would have been happier with a true declaration of war and the passage of a Patriot Act with a war's conclusion plus 90 days sunset provision. Congress should NOT have abrogated its power in this matter. While I don't think Bush is abusing the privilege, I am reluctant to grant government power over me any more than absolutely necessary.

[Xiahou]

This keeps getting better and better... lets take a look at Executive Order 12949 (http://www.fas.org/irp/offdocs/eo/eo-12949.htm):

Section 1. Pursuant to section 302(a)(1) of the Act, the
Attorney General is authorized to approve physical searches, without a
court order, to acquire foreign intelligence information for periods of
up to one year, if the Attorney General makes the certifications
required by that section.Yet another EO that allows for warrantless searches... and whose name is that at the bottom? William Jefferson Clinton. Again I'll point out, think of this what you will, but it is nothing new and certainly nothing unique to the Bush administration.

[Gawain of Orkeny]

On the whole, I would have been happier with a true declaration of war and the passage of a Patriot Act with a war's conclusion plus 90 days sunset provision. Congress should NOT have abrogated its power in this matter

I said the same thing earlier. Do you really think congress would actually declare war and give the president his war powers. Their crying as it is now. Thats why FDR and Linclon got away with so much. In times of war the president has vastly increased power in such matters. You know we can still claim we never lost a declared war. If we put all our might behind a war we win its that simple. The war powers act really is made to constrain presidential power and not give up congressional power but to increase it.

[Major Robert Dump]

This thread is a threat to national security. The fact that we are even discussing this empowers terrorists, so this thread should be removed.

[Tribesman]

Major Dump , the fact that you are talking about people discussing this topic means that you too are guilty of treason .
Be silent , it is the patriotic thing to do :san_laugh:

[Adrian II]

Major Dump , the fact that you are talking about people discussing this topic means that you too are guilty of treason .
Be silent , it is the patriotic thing to do :san_laugh:Here comes your next intensive airport search, President Tribesmen.
It's in the air -- literally! :san_laugh:

[Tribesman]

Unfortunately I am well used to it by now Adrian .:san_angry:
BTW they stopped my father on his way over on the ferry , they asked him if he had any guns in his car :san_laugh: :san_laugh: :san_laugh: Yes mr. special branch would you like me to show you my smuggled weaponry :san_rolleyes:

[Pindar]

Nice to see you back here Pindar. Hey did you read this also?


Hi Gawain,

That reference is funny. I hadn't read it. I guess great minds think alike. Actually it's rather basic Constitutional law stuff so I'm not surprised.

[Pindar]

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


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.


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."


Might want to hold off on that eggnog.

Eggnog demands drinking and holiday festiveness demands being festive. :san_grin:

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."

[Red Harvest]

Hello Red Harvest

I think you are confused some.
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. For example I am unconvinced of the constitutionality of the SCOTUS ruling on private-to-private transfers via imminent domain. (I expect the court to reverse itself on that one somehow in a few years...a testcase will come along that makes it possible.)


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.
And again that is not addressing the issue of the 1978 act. Nor do the others that I've seen quoted. I am waiting for evidence that the 1978 act has been addressed by SCOTUS directly, instead of relying on precedents that don't fully apply (the tree of Truong based cases.)

THE issue I see it is that you have a legislatively established judicial review that is in effect being treated as unconstitutional. That's why I see the review ruling as so suspect. It is self contradictory.

The result is that you have executive branch folks claiming they can do anything they want outside of very specific constitutional limitations (even then only on Tuesdays... :san_laugh: ) While on the other hand, the populace and legislative branch do not believe that to be the case. That is a BIG problem. The judicial branch is divided on the issue (hence the review...and the recent resignation.) I suppose that the act attempted to bridge a gap in a somewhat gray area. This president in his typical arrogant fashion has chosen to routinely as a matter of course ignore checks that would NOT have hindered him anyway. It seems that we might need to address this with an amendment for clarification, since some presidents abuse this sort of gentlemen's agreement. That might be avoided if SCOTUS weighs in.



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."
It does not appear to be the same thing. It is not addressing the gray area (at least as quoted.) There is a point at which the line is crossed by the president in these matters. It instead is making an almost offhand comment about it without determining where the line is. (That is part of the purpose for the special court, is it not?)

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. Note that last part, because that is what I understand the special court is for to provide guidance on that aspect. I highly doubt that his argument will stand up to SCOTUS scrutiny, because he is taking it to that very extreme.

If he allowed the special courts review in seeking a warrant, then acted as he chose anyway, then he would still be on defensible ground according to the review--although he could be challenged. (However, we know he won't accept being challenged when wrong...so that is probably why he went around them.) By not allowing review for propriety he has overstepped into the shadowy side of authoritarianism.

It is quite probable in light of his administration's tactics used vs. Padilla, that Dubya is abusing the *actual* constitutional limitiations in this domestic/foreign spying matter under the guise of foreign agent/power authority. By having no effective review, he can do so without challenge--and a challenge that would be legitimate.

EDIT: Considering this last point the loss of legitimacy that occurs by bypassing the special court (which has been heavily restricted by the review court) leaves only one good explanation: his fishing expeditions are anticipated to routinely exceed the constitutional boundaries. Otherwise there would be no need for this.

[KafirChobee]

Does anyone here have any proof that Bush overstepped his bounds? Ive never seen so much BS.



LINK (http://www.rushlimbaugh.com/home/daily/site_121905/content/stop_the_tape.guest.html)

Or better yet try this out for size.


LINKhttp://www.nationalreview.com/robbins/robbins200512190859.asp


Actually, what Bush did, is called "abuse of power" - an impeachabled act. It is basically what nixon did, only Bush admits openly to it and is dillusional in his perception that somehow he has the right to do what ever he thinks is right as long as he says he is doing it in the national interest (same thing Nixon said, btw).

John Dean put it simply (after Bushy's speach about "why he did everything legal and within the law"): "Bush is probably not the first president to use such measures. He is, however, the first one to admit publically to committing an impeachable offense."

What was done was illegal. The really dumb thing about it is he coulda got approval for it overnight from his Republican congress. Not to mention that a system already exists allowing instant wiretapping.

BTW. As I recall, back in the earlies 90's the SupremeCourt ruled that cordless phones did not require "wiretaps" since they were in the "open air". Ergo, maybe Bush is right that he can investigate any American he or his friends choose to. I mean, anyone can listen into a cellphone call - the equipment to do so costs less than a good pair of slacks.

Still, it does demonstrate an arrogance and callousness of the written law to break the rules and proclaim it lawful (maybe he meant aweful - we all know how he mangles the English language). It's like the boy whose mother catches him with his hand in the cookie jar saying, "Well, you said I could have a cookie yesterday .... so I just figured that carried over to forever."

The impeachment of Bush might be fun. Maybe we'll make it a tradition and do it for all our future Presidents. :san_rolleyes:

[Pindar]

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.


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.

[Pindar]

John Dean put it simply (after Bushy's speach about "why he did everything legal and within the law"): "Bush is probably not the first president to use such measures. He is, however, the first one to admit publically to committing an impeachable offense."


Dean is his own refutation. This doesn't require further comment.

[Red Harvest]

Pindar,

You continue to cite things that do not refute the central concern. Simply dismissing it as personal sentiment is farcical, since you have still not explained how FISA is restricting his authority. In fact, the more you cite the bigger the gap appears to be. While you keep quoting "foreign" there is a big gray area here of what is foreign and what is domestic. Someone needs to be able to review that, and the appropriate authority would be a secure judicial setting and the retro-active capability. That would not fetter the president, it would instead prevent him from acting illegally under the guise of executive power, and under the protective cover of the national security apparatus. (If requiring him to act in a legal manner is fettering then we have far greater threats than the foriegn ones.)

To put this even more simply: You need to illustrate that FISA actually restricts presidential power. It provides a secure review process of how he is using his powers, not truly restricting him. It does provide judicial weight to the process leading to eventual prosecution. Efforts to restrict him were already stopped. So he can't really claim that is the case. Ironically, by having things already going his own way in 2002, he's already effectively lost the argument about being restricted since it appears the demarcation was already made.

If it appears that the FISA court has overstepped then the review court or eventually SCOTUS would be the appropriate arbiter for defining the boundary. Since FISA's suggestions seem to be non-binding, claiming undue restriction is going to be a serious challenge. :san_grin:

No, I think we are getting to the heart of the matter here. The president's powers have not been restricted by the FISA court. Instead bypassing the FISA court allows him to conduct warrantless searches that exceed his constitutional authority, without a review. Thanks to his bypassing of the system we have no mechanism to know this without a congressional investigation or independent prosecutor. It seems that he has provided probable cause by bypassing FISA (in light of the 2002 review.)

[Pindar]

Pindar,

You continue to cite things that do not refute the central concern. Simply dismissing it as personal sentiment is farcical, since you have still not explained how FISA is restricting his authority.

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.

[solypsist]

*stuff*

cut & paste is fine but please provide links so we can read this stuff in context.

[Kanamori]

It's not encouraging to see Sunstein's thoughts in there, although it does show it's widely accepted.:san_lipsrsealed: Just stick w/ the other guy:san_grin: , honestly no idea who he is, almost sounds like Easterbrook though.:san_smiley:

[Tribesman]

There is no ambiguity about "foreign". Foreign refers to non-U.S. persons and activities that extend beyond U.S. territory.
But surely here the issue is applying it to US citizens and activities that do not extend beyond US territories .

[KafirChobee]

Isn't the key phrase here "foreign intelligence"? As concerns the presidents ability to gather information that would aid the nation in a time of war. By the administrations own admittance they have said, "Well, most of the Americans wiretapped had links with Muslims" - note, not "terrorists", but Muslims. Who were the others, and why did the Executive branch feel it necessary to listen in on them?

I suspect when everything comes to light we will discover that they were listening in on Kerry's HQ and other Democrats as well during the last elections. Because of the "terrorist" factors in those organizations.

That is the problem with unsupervised wiretapping - the abuse factor. All the excuses in the world cannot make an illegal act, legal.

As Harvest has pointed out, FISA was there to rubber stamp anything legitimate that they asked for.

One excuse (my fave) is the what if - what if they found a terrorist laptop with 6,000 names on it. Would they require 6,000 requests? Welllll, what if it was just their xmas card list? :san_grin:

What I do find amusing is that the same legaleeze used by Nixon are once again being employed by yet another Republican President. One can only hope that when the records of these illegal wiretaps are disclosed (not publicly. but to a closed bi-partison board) that Kerry's name doesnot appear on them.

Also, look at the one glowing case that has been devulged - the nut job that was going to destroy the Brooklyn bridge with a blow torch. Please.......this guy sent emails and everyother stupid thing he could think of to get attention. And, that is their big win fall? Why not - since Paddilla's case has gone south (you know the 14th hijacker ... or what ever number he was). Face it, the Bushys are not exactly the most trust worthy people we have had in government. They really have to get over their "TRUST ME" mode and back to the reality that we live in a some times democracy. Sometimes.

[Adrian II]

But surely here the issue is applying it to US citizens and activities that do not extend beyond US territories .That seems to be precisely the issue. James Bamford has written extensively on the NSA and much information can be found in his 1982 book The Puzzle Palace and subsequent publications. He is still active as an author and I heard him debate this issue on the BBC World Service last Wednesday. According to Bamford the Agency's record of abuse goes way back. A lot of information on the agency's internal spying surfaced in the Church hearings in the 1970's and Congress subsequently introduced legislation in an attempt to stop it. According to Loch Johnson, an intelligence historian at Yale who served on the Church Committee staff: 'To pick up the paper and see that all of the carefully crafted language, across party lines, to put together FISA, has been dismissed by secret executive order is very disheartening.'

Members may find this article (http://fairuse.1accesshost.com/news2/nyt169.html) helpful.

[Red Harvest]

FISA cannot restrict Presidential authority to conduct foreign intelligence, that is the point.
No, that is *a* point, there is another that I am making that is not at all addressed. The point I am making is that we have no mechanism for determining if the activitiy is illegal, as the president has bypassed it. FISA is not restricting presidential power, but it does provide a mechanism to review whether or not the activity is within the existing powers and provide guidance and legitimacy. Since it lacks the powers to stop him, the restriction argument is shot down in flames. (FISA is a rather elegant solution when viewed this way.) Bypassing it altogether leads one to a very unflattering conclusion: that Bush is allowing/encouraging the NSA to exceed the few limits he should be respecting. Looking at Dubya's legacy of torture etc. it is almost a certainty that he has pushed this past the limits of other presidents. It should be investigated fully, because this president's track record on such matters is similar to Nixon's at a comparable point in time.


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.
It may be illegal if it is not limited as it should be. There is considerable ambiguity about exactly what constittutes "foreign" and where the links end. There is considerable reason now to believe it is not limited to those reasonably suspected of being foreign agents. Bypassing the FISA, attempted changes to the wording, and many other efforts both judicial and legislative to stretch the margins, together provide abundant probable cause to investigate the activities. Afterall, there is no longer ANY mechanism to determine if the president is abiding by his responsibilities in the constitution under this matter. (The Padilla case certainly indicates he is not.)

To give a very clear example of how I could see the NSA/president abusing this: expanding out wider and wider. If some US citizen is suggested as a potential foreign agent on the flimsiest evidence (name showing up in a document/purchase etc. in confiscated material) what would stop the NSA from following everyone of that U.S. citizens contacts? Then the next level out and so on? They might claim all who have any contact could be foreign agents, etc. That seems to be part of what FISA is supposed to do, limit the "urge" to expand beyond what is reasonable.

And that ignores even more generalized dragnets that might be used.


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.
I still see a gaping hole in the whole construct. Nobody is able to see if the president has exceeded his powers--something that is certainly possible if not probable. Labeling a domestic enemy a "foreign agent" is sufficient to say he is using illegal tactics. He has bypassed the only mechanism for detecting that.

To claim all this is cut and dried appears to be a convenient oversimplification. This administration is very innovative in subverting existing law and precedents, and claiming authority which it does not necessarily have.

What is to prevent SCOTUS from ruling that a non-binding FISA review is not a restriction of the president's authority? What is to prevent it from ruling that if the President in any specific circumstance is using this system for domestic spying with no reasonable justification?

You seem to be implying that FISA is unconstitutional, without saying it directly.

[Gawain of Orkeny]

Nobody is able to see if the president has exceeded his powers--

Exactly. Thats the whole point. Case closed. The Times story is nothing but more wishful thinking and misrepresentation.

[Red Harvest]

Exactly. Thats the whole point.
Yes, this lets him commit illegal acts out of sight (which apparently makes certain libertarians happy? :san_huh: ) There is not really any other reason he would need to do this. The claims he has made so far about FISA in defense are bald faced lies--since the turnaround is fast and it can be done retroactively, and can't bind him.

Case closed.
No, case wide open. Gotta wonder why a libertarian would want this to be closed?


The Times story is nothing but more wishful thinking and misrepresentation. No, it has revealed yet another way Dubya is abusing his power and how our constitutional protections are being subverted by an imperial presidency.

[Gawain of Orkeny]

Yes, this lets him commit illegal acts out of sight (which apparently makes certain libertarians happy?

You keep claiming their illegal and yet have admitted no one knows any suchthing. You just want them to be illegal. Pinda has shown you that the president has certain inherent powers granted him bu the constitution. It seems that you dont like Bush having these powers. Well theres only one way to make them illegal as you say they are. And that would be to make a constitutional amendment to change it. Until then please stop wth your wishful thinking and statements of facts not in evidence and total missreprestation of other facts.


No, case wide open. Gotta wonder why a libertarian would want this to be closed?


Because its in the constitution. There are few things I think the government should do but protecting us from foriegn threats is one of those things. Again if you dont like it change it. There really is no legal argument here.


No, it has revealed yet another way Dubya is abusing his power and how our constitutional protections are being subverted by an imperial presidency.

More of the same rehtoric.

[Red Harvest]

You keep claiming their illegal and yet have admitted no one knows any suchthing. You just want them to be illegal. Pinda has shown you that the president has certain inherent powers granted him bu the constitution. It seems that you dont like Bush having these powers. Well theres only one way to make them illegal as you say they are. And that would be to make a constitutional amendment to change it. Until then please stop wth your wishful thinking and statements of facts not in evidence and total missreprestation of other facts.
No thanks, I won't be taking orders from someone who often neglects to check his own facts before posting (Dover thread and others), and who can't seem to form an opinion independent of Rush Limbaugh--based on the links.

I have not misrepresented this. My representation of things is closer to the mark than Dubya's. Anything I might misunderstand is because I lack the knowledge on specifics, rather than lying or attempting to distort. Dubya has lied about this many different times and ways already, and I have been pointing out how. No doubt some of the news reporting is flawed, I always anticipate that.

Bush does not have unlimited powers, yet that is what he is claiming (and then denying later, depending on the audience and question, LOL.) The FISA defense being used by the administration is a sham/lie. The precedents Pindar and others cite don't get to the issue of whether or not the president could be overstepping his constitutional authority or whether anyone can even be authorized to see what he is doing. (It needs SCOTUS clarification.) Instead the opinions cited focus on whether he can be restricted in dealing with foreign threats. In my view there is a lot more to it than that.

When someone lies to me enough times, I will doubt them first, they have to convince me. I have yet to see any convincing argument that suggests Dubya's bypassing of FISA was necessary for national security. There has been no example of what info an extra-FISA search has allowed to be turned up that has made it useful/necessary and could not otherwise be obtained. I've seen lies paraded out as justification. I've seen clear signs that he was trying to broaden unwarranted searches into domestic targets. And we have the Padilla case, where Bush is seeking to avoid review of his "novel" tactics. Taken as a whole I have no reason to believe the president has not crossed the line on this one.

It is for the legal system to determine whether or not the President has overstepped, that does not mean I can't have a non-professional opinion of what is occurring. Hopefully hearings will be able to shed some light on what is actually happening. It might alleviate my concerns, but it all depends on what is learned.

[Gawain of Orkeny]

It is for the legal system to determine whether or not the President has overstepped,

You mean their going to take him to court or impeach him? What legal system? Pindar has already shown you that there is no legal argument that you can win. Your just being stubborn and hoping for the worst.


that does not mean I can't have a non-professional opinion of what is occurring.

An oinion yes, But dont keep stating what Bush did was illegal as if it were a matter of fact just like the Times did. You think its illegal or hope it is.


Hopefully hearings will be able to shed some light on what is actually happening

Srr I told you , you were hoping :san_laugh:


It might alleviate my concerns, but it all depends on what is learned.

In other words if they find a way to bash Bush you will be happy and if not you will still claim its illegal because its that evil Bush whos now doing it. I doubt theres anything he could do to please you other than to either resign or die.

[Red Harvest]

I doubt theres anything he could do to please you other than to either resign or die.
You aren't thinking ahead...neither of those is particularly palatable. Both would put Cheney in charge and he is a worse scoundrel than Dubya.

No, Dubya could please me by being honest :san_shocked: , getting a clue and doing what is best for our country rather than trying to tear it in two as if it were some Dubya Total War Mod. He could start completing his major tasks, learn basic mathematics, get some competent and ethical advisors, and learn how *not* to embarass our nation in every possible way.

Basically, if he quit being a complete dick I would be happy. :san_grin: That's what I want for Christmas.

[Tribesman]

Basically, if he quit being a complete dick I would be happy. That's what I want for Christmas.

Sorry Harvest you shall be disapointed this festive season , Santa does not perform miracles .

[Pindar]

cut & paste is fine but please provide links so we can read this stuff in context.

The referred to interviews are in context as the question and answer are provided. All noted case law is referred to by name. Such decisions are usually long and can be technical: pasting is the simplest method of demonstrating the relevant portion. If you are interested in any particular ruling the decision should be easy to find on the net.

[Pindar]

It's not encouraging to see Sunstein's thoughts in there, although it does show it's widely accepted.

Why is it not encouraging? I'm sure if you searched you could find a legal defender of the fever swamp, but the relevant point is Sunstein's view is the standard legal understanding. I referenced him because he is so highly regarded in Constitutional Law and is a very left leaning member of the Bar. This really is rather mundane fare that only excites non-legal minds or political agendas.


Just stick w/ the other guy:san_grin: , honestly no idea who he is, almost sounds like Easterbrook though.:san_smiley:

Eastman is a good example of the other side. He also is not without recognition. I can't remember the number, but I think he has argued before SCOTUS more than twenty times.

[Pindar]

Isn't the key phrase here "foreign intelligence"? As concerns the presidents ability to gather information that would aid the nation in a time of war.

Yes.

[Pindar]

the good guys: There is no ambiguity about "foreign". Foreign refers to non-U.S. persons and activities that extend beyond U.S. territory.



But surely here the issue is applying it to US citizens and activities that do not extend beyond US territories .

No, the issue applies to NSA warrantless surveillance of communications extending outside U.S. territory. If I recall the origin points have all been outside the U.S.

[Tribesman]

If I recall the origin points have all been outside the U.S.
If this morning latest revelations are correct then they most certainly have not all been outside of the US or been in any way foriegn , the extent of this possible abuse of power is far wider reaching and over a longer time scale than originaly reported .

[Pindar]

the good guys: FISA cannot restrict Presidential authority to conduct foreign intelligence, that is the point.


No, that is *a* point, there is another that I am making that is not at all addressed. The point I am making is that we have no mechanism for determining if the activity is illegal, as the president has bypassed it.

This partition is significant. The point, renamed "a" point is the legal question. If you recognize FISA cannot restrict the inherent Presidential authority to gather foreign intelligence and protect the nation, which is the only real option, then there is no illegality argument to be made. I therefore consider the legal question settled.* The second point is more an apprehension based on a misunderstanding of the roles of government and therefore a step removed from the issue: but to give a response, any exercising of a branch power is Constitutionally derived. Its legality is therefore based on the Constitution. The Constitution is the proof text. To apply this to our general discussion: this is why Nixon's surveillance was wrong. He was involved in solely domestic surveillance independant of protecting the nation, which is outside of the Presidential purview. The NSA's actions, on the other hand, is foreign intelligence focused which is central to the President's charge.

*If I am misreading you then you will need to demonstrate judicial rulings from the case law that will substantiate a illegality charge.



What is to prevent SCOTUS from ruling that a non-binding FISA review is not a restriction of the president's authority? What is to prevent it from ruling that if the President in any specific circumstance is using this system for domestic spying with no reasonable justification?

Nothing. Of course, in the 72 Keith Case SCOTUS expressly refused to attempt any limit of Presidential prerogatives regarding foreign intelligence gathering and there are good reasons why not that I have previously explained. Now, if SOCTUS did as you suggest this would be tantamount to Congress voting to eliminate the Presidential veto, the point being: doing a thing is not the same as having the authority to do a thing. Such a bald faced challenge to a basic component of one branch's delineated power would lead to a Constitutional crises.


You seem to be implying that FISA is unconstitutional, without saying it directly.

I basically agree with Sunstein's analysis previously given: "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."

[Pindar]

If I recall the origin points have all been outside the U.S.
If this morning latest revelations are correct then they most certainly have not all been outside of the US or been in any way foriegn , the extent of this possible abuse of power is far wider reaching and over a longer time scale than originaly reported .

I don't know what you are referring to. If this is the radiation story leaked by U.S. News: that is distinct from the NSA warrantless wire taping we are discussing.

[Kralizec]

So let me get this straight:

The president can order surveillance without a warrant if there is no reason to believe the information they're monitoring comes from or goes to a USA citizen.

How is the FISA unconstitutional then? The ultimate question wether or not a surveillance has to be considered domestic, shouldn't that be with a court? Wether or not something is domestic is a *factual* issue, one that nevertheless has to be defined properly. Ultimately, who is to decide that? As it is the job of the judicial branch to keep the executive branch in check, I think the answer is obvious.

[Tribesman]

If this is the radiation story leaked by U.S. News: that is distinct from the NSA warrantless wire taping we are discussing
Nope , it refers to a fishing expedition with a very wide ranging format that basically covers everyone everywhere in the hope of getting something that may in the end turn out to be relevant , regardless of if the origin is within US territory , or the people involved are US citizens or if it may be a foriegn linked event , so in a short summary all safeguards are thrown out thre window just in case there is the slightest chance that possibly, maybe ,by going on a really long shot , without regards to the laws of the country or the constitution they may , just may , perhaps pick up some tiny little bit of information that could just possibly be of some questionable use to them .
That is the issue Pindar .

[Pindar]

So let me get this straight:

The president can order surveillance without a warrant if there is no reason to believe the information they're monitoring comes from or goes to a USA citizen.

Hello,

What you describe above is not the issue. The NSA warrantless surveillance involves foreign intelligence gathering. This could be messages coming from a foreign locale into the U.S. or messages going out of the U.S.

[Pindar]

the good guys: If this is the radiation story leaked by U.S. News: that is distinct from the NSA warrantless wire taping we are discussing



Nope , it refers to a fishing expedition with a very wide ranging format that basically covers everyone everywhere in the hope of getting something that may in the end turn out to be relevant , regardless of if the origin is within US territory , or the people involved are US citizens or if it may be a foriegn linked event , so in a short summary all safeguards are thrown out thre window just in case there is the slightest chance that possibly, maybe ,by going on a really long shot , without regards to the laws of the country or the constitution they may , just may , perhaps pick up some tiny little bit of information that could just possibly be of some questionable use to them .

That was a long sentence. Unfortunately it is not related to our topic: lovely prose by the way. :san_grin:

[Tribesman]

That was a long sentence. Unfortunately it is not related to our topic: lovely prose by the way.
Oh but Pindar it does relate , since in case you may wish to ignore it to satisfy your beliefs that the taps have been placed on foriegn citizens and foriegn traffic , and so could be covered by the foriegn stipulations of the legal arguement .
I refer to domestic traffic and American citizens .....so please tell me in your legal wisdom , where is that covered under those precedents ?
Oh bugger , it isn't is it , if it is true .
Wonderful prose eh ?

[Pindar]

the good guys: That was a long sentence. Unfortunately it is not related to our topic: lovely prose by the way.


Oh but Pindar it does relate , since in case you may wish to ignore it to satisfy your beliefs that the taps have been placed on foriegn citizens and foriegn traffic , and so could be covered by the foriegn stipulations of the legal arguement .
I refer to domestic traffic and American citizens .....so please tell me in your legal wisdom , where is that covered under those precedents ?
Oh bugger , it isn't is it , if it is true .
Wonderful prose eh ?



Whether an American is involved is a non-issue. As far as strictly domestic traffic is concerned I haven't read or heard of this applying to the program. I do know of the radiation program, but that is separate from this discussion. You would need to show me what you are thinking of. Regardless, the President's powers to protect the nation is specific to his charge of office. This is clearly demonstrated as far back as in Fleming v. Page (1850) where the Supreme Court noted: the President has the power "to employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy." I have previously presented the legal argument and history. There is no legal case against the President. There is a case that could be made against those who divulged information about U.S. intelligence gathering efforts however: 18 U.S.C. Section 798 is the relevant Federal law. Here is part of it:

"-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."
Communications intelligence and unauthorized person is defined by the law thusly:

"The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;

The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States."


Now, I have presented the case law and legal history pertinent to charges of illegality. If you wish to spare on this topic explain why the Court rulings do not apply or put forward separate rulings that overturn my analysis: prose alone does not remedy a poor argument.

[Hurin_Rules]

Spying Said to Be Broader Than Reported Sat Dec 24, 5:31 PM ET

NEW YORK - The National Security Agency has conducted much broader surveillance of e-mails and phone calls — without court orders — than the Bush administration has acknowledged, The New York Times reported on its Web site.

The NSA, with help from American telecommunications companies, obtained access to streams of domestic and international communications, said the Times in the report late Friday, citing unidentified current and former government officials.

The story did not name the companies.

Since the Times disclosed the domestic spying program last week, President Bush has stressed that his executive order allowing the eavesdropping was limited to people with known links to al-Qaida.

But the Times said that NSA technicians have combed through large volumes of phone and Internet traffic in search of patterns that might lead to terrorists.

The volume of information harvested from telecommunications data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the paper said, quoting an unnamed official.

The story quoted a former technology manager at a major telecommunications firm as saying that companies have been storing information on calling patterns since the Sept. 11 attacks, and giving it to the federal government. Neither the manager nor the company he worked for was identified.

http://news.yahoo.com/s/ap/20051224/ap_on_go_pr_wh/domestic_spying

We only heard about it because someone essentially broke the law and risked their career to speak out about it.

To allege that this is an 'open and shut' case at this point is premature, at best.

Note the article also suggests this was not just 'foreign' but also 'domestic' communications.

[Gawain of Orkeny]

We only heard about it because someone essentially broke the law and risked their career to speak out about it.


Yet there was more of a fuss about Valerie Plame. Go figure.


To allege that this is an 'open and shut' case at this point is premature, at best

To say what the Times did is far worse than that. Claiming the president is doing something illegal when even you admit theres no proof of any suchthing.


Note the article also suggests this was not just 'foreign' but also 'domestic' communications.

Yes the Times is very good at suggesting things and making it look like thatswhats happening and a scoop.

[Pindar]

Hello Mad Professor,


We only heard about it because someone essentially broke the law and risked their career to speak out about it.

Yes, a paper endangering national security so as not to be scooped by its own writer whose book on Intelligence gathering is due to come out next month, has left itself open to Dept. of Justice scrutiny.


To allege that this is an 'open and shut' case at this point is premature, at best.

If the surveillance extends to the international arena, it is an open and shut case. If the surveillance is concerned with foreign agents or interests it is an open and shut case. If the surveillance is tied to the prosecution of the war it is an open and shut case.


Note the article also suggests this was not just 'foreign' but also 'domestic' communications.

I am skeptical. The vagaries are telling. Regardless, the only way a case could be made is if one had the government knowingly participating in surveillance of U.S. persons independent of prosecuting the war. The Congressional authorization of the use of force gives the President a wide latitude.

[Adrian II]

Hello Mad ProfessorLosing your cool along with your case, Pindar? Yuletide must be taking its toll.
If the surveillance is tied to the prosecution of the war it is an open and shut case.A big 'if' indeed. This question is impossible to arbitrate since the President has decided to bypass the FISC. I hear truckloads of coal had to be cleared from the White House lawn last Sunday morning.

All rumours of course. :winkg:

[Xiahou]

A big 'if' indeed. This question is impossible to arbitrate since the President has decided to bypass the FISC. I hear truckloads of coal had to be cleared from the White House lawn last Sunday morning.Not so big an 'if'. Can you imagine the myriad ways that survelliance could be tied to gathering foreign intelligence? Can you imagine how difficult(impossible) it'd be to prove that it wasn't for such a purpose? I feel pretty comfortable in assuming that all of the monitoring was tied to terrorist activity.

[Adrian II]

Can you imagine the myriad ways that survelliance could be tied to gathering foreign intelligence?Can you imagine the myriad ways that intelligence could be abused for other purposes?

To get a wiretap approved the government must show 'probable cause' that the target is involved with a foreign organization or foreign power with the intent of violating American law. The Bush administration had difficulty getting dozens of wiretaps approved by the FISC.

FISC has approved 18,740 electronic surveillance applications since 1979. Until 2001 none was denied. Since 2001, a total of 179 were 'substantially' modified by FISC, 6 were rejected outright. Because of the number of rejections, the Bush adminstration has apparently decided to bypass the FISC altogether.

There is a pattern here that is obvious to all but the intentionally blind: illegal war, torture, rendition, chemical warfare, planting of propaganda stories, illegal wiretaps. Hence the heaps of coal on the White House lawn.

[Xiahou]

Can you imagine the myriad ways that intelligence could be abused for other purposes?You're confusing the legality with ethics. It's going to be virtually impossible to prove they did anything illegal- that is my only point.


FISC has approved 18,740 electronic surveillance applications since 1979. Until 2001 none was denied. Since 2001, a total of 179 were 'substantially' modified by FISC, 6 were rejected outright. Because of the number of rejections, the Bush adminstration has apparently decided to bypass the FISC altogether.I'm interested in reading your source for that- got any links?

[Adrian II]

I'm interested in reading your source for that- got any links?Author James Bamford unearthed them from the Justice Department records.

San Francisco Chronicle
Sunday, December 25, 2005

Why Bush decided to bypass court in ordering wiretaps

Panel of judges modified his requests

by Stewart M. Powell

Washington -- Government records show that the Bush administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to begin secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an authority on the security agency that intercepts telephone calls, e-mails, faxes and Internet communications.

"They wanted to expand the number of people they were eavesdropping on, and they didn't think they could get the warrants they needed from the court to monitor those people," said Bamford, author of "Body of Secrets: Anatomy of the Ultra-Secret National Security Agency" and "The Puzzle Palace: Inside America's Most Secret Intelligence Organization." "The FISA court has shown its displeasure by tinkering with these applications by the Bush administration."

The 1978 Foreign Intelligence Surveillance Act adopted by Congress in the wake of President Richard Nixon's misuse of intelligence agencies before his Watergate resignation sets a high standard for court-approved wiretaps on Americans and resident aliens inside the United States.

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

No 'probable cause'

Faced with that standard, Bamford said the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al Qaeda suspects inside the United States.

"The court wouldn't find enough 'probable cause' to give the Bush administration wiretap warrants on everybody that talks to or e-mails the terror suspect that they were trying to target," Bamford said.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered (by the FISA court) which modified or denied the requested authority" submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004, the most recent years for which public records are available.

Warrant requests rejected

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection of a wiretap request in the court's history.

Attorney General Alberto Gonzales said last week that Bush authorized surveillance of overseas communications by U.S.-based terror suspects because the FISA court's approval process was too cumbersome. But Gonzales did not mention any difficulties obtaining FISA court approval for wiretaps sought by the administration or the secret court's increasing tendency to modify Bush administration requests for wiretaps.

"FISA is very important in the war on terror, but it doesn't provide the speed and the agility that we need in all circumstances to deal with this new kind of threat," Gonzales said.

The Bush administration, responding to concerns expressed by some judges on the 11-judge panel, agreed last week to provide the judges a classified briefing on the domestic spying program. U.S. District Judge Malcolm Howard, a member of the 11-judge panel, told CNN that the Bush administration agreed to brief the judges after U.S. District Judge James Robertson resigned from the FISA panel, apparently to protest Bush's spying program.

Bamford, 59, a Vietnam-era Navy veteran, likens the Bush administration's domestic surveillance without court approval to Nixon-era abuses of intelligence agencies.

The National Security Agency and previous eavesdropping agencies collected duplicates of all international telegrams to and from the United States for decades during the Cold War under a program code-named "Shamrock" before the program ended in the 1970s. A program known as "Minaret" tracked 75,000 Americans whose activities had drawn government interest between 1952 and 1974, including participation in the anti-war movement during the Vietnam War.

"NSA prides itself on learning the lessons of the 1970s and obeying the legal restrictions imposed by FISA," Bamford said. "Now it looks like we're going back to the bad old days again."

[Tribesman]

So from ..
I don't know what you are referring to.
To......
I am skeptical.
Some improvement at least , scepticism is good . Perhaps it is wise to be sceptical when your government tells you things , considering its track record on presenting facts that are indeed factual .~;)
Oh silly me , you are sceptical about the reports not the government , hey thats OK , you should trust the media just as much as you trust the government .

[Pindar]

the Good Guys: Hello Mad Professor

Losing your cool along with your case, Pindar?

Hello Red Inquisitor,

Note the title under Hurin Rules' name.


.A big 'if' indeed. This question is impossible to arbitrate since the President has decided to bypass the FISC. I hear truckloads of coal had to be cleared from the White House lawn last Sunday morning.

Since 2001 the Administration has made 5,645 requests that does not bypassing make.

[Pindar]

So from ..
I don't know what you are referring to.
To......
I am skeptical.
Some improvement at least , scepticism is good . Perhaps it is wise to be sceptical when your government tells you things , considering its track record on presenting facts that are indeed factual .~;)
Oh silly me , you are sceptical about the reports not the government , hey thats OK , you should trust the media just as much as you trust the government .

Do you find the noted article compelling? As someone who knows something about law and having read several of the articles that have been printed on the subject, I can tell you the quality of reporting and accuracy about the law has been sorely lacking. Sober minds see this as mundane. If you disagree, explain the malfeasance.

[Hurin_Rules]

Hello Mad Professor,

If the surveillance extends to the international arena, it is an open and shut case. If the surveillance is concerned with foreign agents or interests it is an open and shut case. If the surveillance is tied to the prosecution of the war it is an open and shut case.

I am skeptical. The vagaries are telling. Regardless, the only way a case could be made is if one had the government knowingly participating in surveillance of U.S. persons independent of prosecuting the war. The Congressional authorization of the use of force gives the President a wide latitude.

Well, it's good to know that you're admitting the case may not be as 'open and shut' as you initially declared it. That, I think, is progress.

I'm interested though: you don't see any possible abuses in giving the president virtually unrestricted authority to prosecute the 'war on terror'?

This war, almost by definition, has no end date. So essentially the congress has given the president permanent new powers, a kind of martial law, that in this instance is not subject to congressional oversight.

I have no confidence the government will refrain from abusing this power. This is the same government that ran commercials saying that anyone who bought marijuana was funding terrorists. Will my phone be tapped the next time I try to buy a dimebag?

You see no problems with this? I'm asking you to consider here what the law should be as much as what it is right now.

[Hurin_Rules]

And today we learned some of the unwanted consequences of the president's actions: viz., that they may have endangered a whole host of successful prosecutions:



Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts

By ERIC LICHTBLAU and JAMES RISEN
Published: December 28, 2005
WASHINGTON, Dec. 27 - Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terror cases, legal analysts say.

The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.

"It seems to me that it would be relevant to a person's case," Professor Tobias said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."

While some civil rights advocates, legal experts and members of Congress have said President Bush did not have authority to order eavesdropping by the security agency without warrants, the White House and the Justice Department continued on Tuesday to defend the legality and propriety of the program.

Trent Duffy, a spokesman for the White House, declined to comment in Crawford, Tex., when asked about a report in The New York Times that the security agency had tapped into some of the country's main telephone arteries to conduct broader data-mining operations in the search for terrorists.

But Mr. Duffy said: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches."

He added: "The president believes that he has the authority - and he does - under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties."

Disclosure of the N.S.A. program has already caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court last week. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, wants a briefing from the Bush administration on why it bypassed the court and ordered eavesdropping without warrants.

At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.

Government officials, in defending the value of the security agency's surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.

David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.


Government officials with knowledge of the program have not ruled out the possibility that it was used in other criminal cases, and a number of defense lawyers said in interviews that circumstantial evidence had led them to question whether the security agency identified their clients through wiretaps.

The first challenge is likely to come in Florida, where lawyers for two men charged with Jose Padilla, who is jailed as an enemy combatant, plan to file a motion as early as next week to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants. In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government's explanation of how it came to suspect Mr. Timimi of terrorism ties never added up in his view.

F.B.I. agents were at Mr. Timimi's door days after the Sept. 11 attacks to question him about possible links to terrorism, Mr. MacMahon said, yet the government did not obtain a warrant through the foreign intelligence court to eavesdrop on his conversations until many months later.

Mr. MacMahon said he was so skeptical about the timing of the investigation that he questioned the Justice Department about whether some sort of unknown wiretap operation had been conducted on the scholar or his young followers, who were tied to what prosecutors described as a "Virginia jihad" cell.

"They told me there was no other surveillance," Mr. MacMahon said. "But the fact is that the case against a lot of these guys just came out of nowhere because they were really nobodies, and it makes you wonder whether they were being tapped."

John Zwerling, a lawyer for one of Mr. Timimi's followers, Seifullah Chapman, who is serving a 65-year sentence in federal prison in the case, said he and lawyers for two of the other defendants in the case planned to send a letter to the Justice Department to find out if N.S.A. wiretaps were used against their clients. If the Justice Department declines to give an answer, Mr. Zwerling said, they plan to file a motion in court demanding access to the information.

"We want to know, Did this N.S.A. program make its way into our case, and how was it used?" Mr. Zwerling said. "It may be a difficult trail for us in court, but we're going to go down it as far as we can."

Defense lawyers in several other high-profile terrorism prosecutions, including the so-called Portland Seven and Lackawanna Six cases, said they were also planning to file legal challenges or were reviewing their options.

"Given what information has come out, with the president admitting that they had avoided the courts, then the question becomes, do you try to learn whether something like that happened in this case?" said Patrick Brown, a Buffalo lawyer in the Lackawanna case. "I would have to talk to my client about whether that's a road we want to go down."

Gerry Spence, who is the lead counsel representing Brandon Mayfield, a Portland lawyer who was arrested in error last year in connection with the Madrid bombings and is now suing the government, said of the security agency program: "We are going to look into that. The calmest word I can use to describe how I feel about this is that I am aghast."

Because the program was so highly classified, government officials say, prosecutors who handled terrorism cases apparently did not know of the program's existence. Any information they received, the officials say, was probably carefully shielded to protect the true source.

But defense lawyers say they are eager to find out whether prosecutors - intentionally or not - misled the courts about the origins of their investigations and whether the government may have held on to N.S.A. wiretaps that could point to their clients' innocence.

Stanley Cohen, a New York lawyer who represented Patrice Lumumba Ford in the Portland Seven case, said many defendants would face significant obstacles in mounting legal challenges to force the government to reveal whether material obtained through the security agency's program was used in their cases.

"You really could have standing problems" for many of the defendants, Mr. Cohen said.

But some Justice Department prosecutors, speaking on condition of anonymity because the program remains classified, said they were concerned that the agency's wiretaps without warrants could create problems for the department in terrorism prosecutions both past and future.

"If I'm a defense attorney," one prosecutor said, "the first thing I'm going to say in court is, 'This was an illegal wiretap.' "

http://www.nytimes.com/2005/12/28/politics/28legal.html?pagewanted=1&ei=5094&en=90d025b930c5720f&hp&ex=1135832400&partner=homepage

[Tribesman]

Do you find the noted article compelling? As someone who knows something about law and having read several of the articles that have been printed on the subject, I can tell you the quality of reporting and accuracy about the law has been sorely lacking. Sober minds see this as mundane. If you disagree, explain the malfeasance
Oh dear , Pindar has a bee in his bonnet , perhaps you would care to re read my post from the 24th .
But don't worry I understand , it can be frustrating for your position if it is shown that the allegations are true , as your insistance that the foriegness or origin justifies the actions becomes irrelevant .
But I am sure your wonderful legal expertise will be able to find another ruling that will show that the President can do whatever he wants to whomever he wants , wherever and whenever he so chooses .
Though of course , that would be the sort of powers that one would normally associate with a crazy dictatorship .

[Pindar]

Well, it's good to know that you're admitting the case may not be as 'open and shut' as you initially declared it. That, I think, is progress.

It is an open a shut case under all the terms that have been discussed. If you read the Dec. 22 letter issued by the Justice Department it clearly lays out the legal scope of the program.


I'm interested though: you don't see any possible abuses in giving the president virtually unrestricted authority to prosecute the 'war on terror'?

The President doesn't have virtually unrestricted authority, he does have Constitutionally invested authority. Based on that standard, no I am not worried.


This war, almost by definition, has no end date. So essentially the congress has given the president permanent new powers, a kind of martial law, that in this instance is not subject to congressional oversight.

The Congress doesn't give the President any powers. The President is an independent organ of the government with his own sphere. The Congress can add its voice to an issue, which it has done by authorizing the use of force. This creates an even larger scope of Federal power bought to bear on the issue as two branches of government are singlely focused.


You see no problems with this? I'm asking you to consider here what the law should be as much as what it is right now.

No, I have no problems. I see this as a non-issue save for the possible breaking of Federal Law by disclosing sensitive intelligence gathering information to the public. As far as "shoulds" and the law: I think if the President is authorized to wage war then that ipso facto includes using the resources to win the war: gathering intelligence is part and parcel of that mandate.


And today we learned some of the unwanted consequences of the president's actions: viz., that they may have endangered a whole host of successful prosecutions:

Americans are a litigious people. Hyperbole part of the rhetoric of any defense attorney.

[Pindar]

Oh dear , Pindar has a bee in his bonnet , perhaps you would care to re read my post from the 24th.

Santa performing miracles?


But don't worry I understand , it can be frustrating for your position if it is shown that the allegations are true , as your insistance that the foriegness or origin justifies the actions becomes irrelevant .
But I am sure your wonderful legal expertise will be able to find another ruling that will show that the President can do whatever he wants to whomever he wants , wherever and whenever he so chooses .
Though of course , that would be the sort of powers that one would normally associate with a crazy dictatorship .

This is not an argument.

[Tribesman]

This is not an argument.
No the arguement would be if lawyers decided that the revelations by the media on alledged activities by the government against certain people mean that they can appeal for the terrorist convictions of those people to be overturned .
So the courts are going to have to decide on the cases that are being appealed , that should be interesting . I wonder if the lawyers making the representations should be charged with treason , afterall by even mentioning the wiretaps they are giving aid to the enemy in wartime , according to the administration .

[Pindar]

the Good Guys: This is not an argument.


No the arguement would be if lawyers decided that the revelations by the media on alledged activities by the government against certain people mean that they can appeal for the terrorist convictions of those people to be overturned .

This has nothing to do with our discussion. NSA warrantless surveillance is not alleged, it is admitted. As described, it is also well within the purview of the President.


So the courts are going to have to decide on the cases that are being appealed , that should be interesting .

Courts have already decided on the inherent power of the President to conduct such surveillance, multiple times. I have cited several of the ruling earlier.

[Tribesman]

This has nothing to do with our discussion. NSA warrantless surveillance is not alleged, it is admitted. As described, it is also well within the purview of the President.

Ah but Pindar the question is , has the warrantless surveilance been conducted as has been described or has it been conducted outside of the parameters that are set ?

Courts have already decided on the inherent power of the President to conduct such surveillance, multiple times. I have cited several of the ruling earlier.
Yes , and we shall have to wait and see what the courts rule on this time won't we .
You see , it is not an open and shut case is it .
If it was then there wouldn't be cases being lodged in the courts would there .

[Pindar]

Ah but Pindar the question is , has the warrantless surveilance been conducted as has been described or has it been conducted outside of the parameters that are set ?

This is an appeal to ignorance. You will have to do better.


Courts have already decided on the inherent power of the President to conduct such surveillance, multiple times. I have cited several of the ruling earlier.

Yes , and we shall have to wait and see what the courts rule on this time won't we .
You see , it is not an open and shut case is it .
If it was then there wouldn't be cases being lodged in the courts would there .

You do not understand the legal system you are commenting on. Declaring the intent to appeal or to make an appeal has nothing to do with the merit of that appeal. Further, and more to the point, the legal precedent is firmly established by both Appellate Courts and the Supreme Court. The legality of warrantless surveillance is established.

[Kanamori]

I'm not very concerned w/ the wiretapping regarding foreign communication only, but that has hardly been the concern here I think. Correct me if I'm wrong, but in this case the searching and seizing of that individual didn't only deal w/ actual foreign communication but also with communication which was not foreign in nature, viz. commuciation with US citizens also in the states -- anyways I find it problematic to say that a person's 4th amendment rights are no longer legitimate once they leave the states -- who are unrelated to any terrorist activities. That would be unreasonable search and seizure, I think according to Katz and Keith. At any rate, there is a balance between those two rights, that of the President to conduct his war and that of US citizens, who are unrelated to the foreign contact, to freedom from unreasonable searches and seizures (such as conversations). As far as I know, this balance of rights has never been ruled on in SCOTUS and that is why FISA was/is there to provide warrants, making it seem more legitimate w/o having to have a complex legal argument.

Specter seems to have been worried about it before too: http://www.fas.org/irp/agency/doj/fisa/doj102005.pdf

Edit: Sunstein is a poor example of authority for me because I have disagreed w/ everything I've read of his, mostly in regard to his opinions in First Amendment matters.

[Louis de la Ferte Ste Colombe]

Hello Mad Professor,



Yes, a paper endangering national security so as not to be scooped by its own writer whose book on Intelligence gathering is due to come out next month, has left itself open to Dept. of Justice scrutiny.

If the surveillance extends to the international arena, it is an open and shut case. If the surveillance is concerned with foreign agents or interests it is an open and shut case. If the surveillance is tied to the prosecution of the war it is an open and shut case.

I am skeptical. The vagaries are telling. Regardless, the only way a case could be made is if one had the government knowingly participating in surveillance of U.S. persons independent of prosecuting the war. The Congressional authorization of the use of force gives the President a wide latitude.

Which war are you talking about? I was not aware the US were at war with anybody so far. I'd be interested in the list of country at war with the US, just to be on the safe side.

Or is that a conceptual war? The kind of fake war we got for news headlines?

Would the war on drug qualify?

Louis,

[Adrian II]

Since 2001 the Administration has made 5,645 requests that does not bypassing make.Until 2001 only one surveillance request from the government was altered by the FISA court. Since 2001, scores or requests were denied and 179 were 'substantially modified'. Since 2001, the FISC has been bypassed for the first time in its almost thirty-year-old existence. The government has admitted as much -- as President Bush stated in his own inimitable way, bypassing the court is 'faster and quicker' (sic).

The Bush administration is the first to bypass the FISA court. FISA judges themselves have expressed concern about the legality of the internal spying program, and so have NSA officials. Between the FISA issue, the renditions, the torture memos and the violations of the laws of war, this administration has created more bypasses than Dick Cheney's doctors. And as already stated by Louis, fake wars are no valid excuse.

Just like you, I do not worry about these issues much, but for a different reason. I believe that there are enough checks and balances in the U.S. political system to redress such practices. Reactions in the media, among the general public and in Congress are reassuring. Any talk of an impending Presidential dictatorship in the U.S. is nonsense.

Talk of impeachment seems 'likelier and possibler'...

[Tribesman]

This is an appeal to ignorance. You will have to do better.

Nope , that is an appeal against ignorance Pindar , you are saying that there is legal precedent under certain conditions for certain activities to take place under the authority of the President .
You do not know if those conditions and activities are occuring under those terms do you . As you ,like just about everyone else , are ignorant of the full facts .

Further, and more to the point, the legal precedent is firmly established by both Appellate Courts and the Supreme Court.
As a lawyer you should know that legal rulings can be changed by new rulings setting new prescedents in law .

[Redleg]

Which war are you talking about? I was not aware the US were at war with anybody so far. I'd be interested in the list of country at war with the US, just to be on the safe side.

Or is that a conceptual war? The kind of fake war we got for news headlines?

Would the war on drug qualify?

Louis,

Yes the War or Drugs does qualify - one only needs to check some of the references used in major drug cases to understand that.

[Hurin_Rules]

Another question for you Pindar:

Who supervises the president to make sure that only 'foreign' suspects or suspects connected to the 'war on terror' are having their phones tapped and emails read?

Or are we just supposed to trust that Bush and Cheney are telling us the whole and unembellished truth?

Where have all the checks and balances gone?

[Hurin_Rules]

It is an open a shut case under all the terms that have been discussed.

Actually many other conditions have been discussed. Have American citizens not connected to the war on terror been surveilled? How do we know erroneous surveillance of innocents hasn't taken place, much like the erroneous 'extraordinary rendition' of that EU citizen in Macedonia? How far has this surveillance gone-- into other media? How can you declare it open and shut when we've only seen the roof?


If you read the Dec. 22 letter issued by the Justice Department it clearly lays out the legal scope of the program.

Ah, I see. Independent newpaper reports citing evidence are to be treated with extreme caution, but anything the justice department says can be taken as gospel? You'll pardon me if I treat anything coming out of the justice department that gave us Guantanamo bay, the torture memo, and the entire Ashcroft debacle with extreme skepticism. We wouldn't even have HEARD about this if it had been up to them. You are taking a rather selective sampling of the evidence here: you're lapsing into prosecutorial mode when you're supposed to be the judge.


The President doesn't have virtually unrestricted authority, he does have Constitutionally invested authority. Based on that standard, no I am not worried.

As noted, this authority also has to be balanced against individual rights, which the constitution also protects.



No, I have no problems. I see this as a non-issue save for the possible breaking of Federal Law by disclosing sensitive intelligence gathering information to the public. As far as "shoulds" and the law: I think if the President is authorized to wage war then that ipso facto includes using the resources to win the war: gathering intelligence is part and parcel of that mandate.

Interesting. So you buy the Bushite argument that when congress authorized the president to 'use force', this meant they were giving him free reign to spy on American citizens?
This seems an exceptionally weak argument to me-- and to many republican senators and legal activists.
How exactly is 'surveillance' to be read as 'force'?



Americans are a litigious people. Hyperbole part of the rhetoric of any defense attorney.

As they also are, apparently, part of the rhetoric of the government and its defenders.

[Pindar]

I'm not very concerned w/ the wiretapping regarding foreign communication only, but that has hardly been the concern here I think. Correct me if I'm wrong, but in this case the searching and seizing of that individual didn't only deal w/ actual foreign communication but also with communication which was not foreign in nature, viz. commuciation with US citizens also in the states -- anyways I find it problematic to say that a person's 4th amendment rights are no longer legitimate once they leave the states -- who are unrelated to any terrorist activities.

Our focus is on the NSA warrantless surveillance of foreign traffic and affiliated agents. This includes outbound and inbound traffic.

I don't understand your comment of 4th Amendment rights abroad. A citizen abroad is ultimately legally defined and subject to the polity where he finds himself. This can be stipulated if given country X has treaties with the U.S. for extradition etc. but the 4th Amendment is a domestic consideration: it does not in and of itself have any international force. As far as trying to tie this notion into the topic: the President, in pursuit of his charge to protect the nation can order the warrantless surveillance of any foreign communique if there is a suspected threat.

The final qualifier "unrelated to terrorist activities" begs the question.


That would be unreasonable search and seizure, I think according to Katz and Keith.

Both Keith and Katz specifically make exception for intelligence. involving foreign or national security .



Edit: Sunstein is a poor example of authority for me because I have disagreed w/ everything I've read of his, mostly in regard to his opinions in First Amendment matters.

I don't like Sunstein either, but personal preference is not a determiner of "authority" status. An authority is one who is given high standing within a given field. Within the context of Constitutional Law specifically related to the powers of the Presidency Sunstein is a big wig.

[Pindar]

Which war are you talking about? I was not aware the US were at war with anybody so far. I'd be interested in the list of country at war with the US, just to be on the safe side.

Or is that a conceptual war? The kind of fake war we got for news headlines?

Would the war on drug qualify?

Louis,

I am referring to the attack on the U.S. dated Sept.. 11 2001 and the following Authorization for the Use of Military Force (AUMF) dated Sept. 18 2001 passed by Congress that serves as the impetus for the U.S. military action that followed. This is generally know as the War on Terror and includes actions against Afghanistan and Iraq and poor fashion.

As a general note: any time a nation's military apparatus is involved in large scale engagement against some hostile and opposing force that qualifies as a war. At present, the U.S. has deployed over 130,000 men in Iraq opposing an insurgency numbering perhaps 15,000 to 20,000 men.

[Hurin_Rules]

Our focus is on the NSA warrantless surveillance of foreign traffic and affiliated agents.



No, it's not.

As the person who started the thread, I won't allow you to dictate the terms of it. The thread is focused on Bush's authorization of spying within the USA without warrants.

One of the Bush administration's justifications, when this became public, was that only 'bad people' were being monitored. But it has by no means been established--and in fact one could argue quite the opposite-- that this has involved only 'foreign' traffic.

Nice try, prosecutor, but you're leading the witness-- or, to be more precise, begging the question.

[Hurin_Rules]

I am referring to the attack on the U.S. dated Sept.. 11 2001 and the following Authorization for the Use of Military Force (AUMF) dated Sept. 18 2001 passed by Congress that serves as the impetus for the U.S. military action that followed. This is generally know as the War on Terror and includes actions against Afghanistan and Iraq and poor fashion.

As a general note: any time a nation's military apparatus is involved in large scale engagement against some hostile and opposing force that qualifies as a war. At present, the U.S. has deployed over 130,000 men in Iraq opposing an insurgency numbering perhaps 15,000 to 20,000 men.

Even more fascinating.

So you're also allegeing that the War in Iraq had something to do with the War on Terror?

Are you also alleging Iraq had something to do with 9/11 then?

And did Iraq have WMDs too?

Oh, what a tangled web you're weaving.

[Pindar]

Until 2001 only one surveillance request from the government was altered by the FISA court. Since 2001, scores or requests were denied and 179 were 'substantially modified'. Since 2001, the FISC has been bypassed for the first time in its almost thirty-year-old existence. The government has admitted as much -- as President Bush stated in his own inimitable way, bypassing the court is 'faster and quicker' (sic).

5,645 requests that does not bypassing make.



Just like you, I do not worry about these issues much, but for a different reason. I believe that there are enough checks and balances in the U.S. political system to redress such practices. Reactions in the media, among the general public and in Congress are reassuring. Any talk of an impending Presidential dictatorship in the U.S. is nonsense.

Talk of impeachment seems 'likelier and possibler'...

Charges of dictatorship only serve to undercut the credibility of the accuser.

To discuss impeachment one first has to determine a law has been broken, what would that be?

[Pindar]

the Good Guys: This is an appeal to ignorance. You will have to do better.


Nope , that is an appeal against ignorance Pindar , you are saying that there is legal precedent under certain conditions for certain activities to take place under the authority of the President .
You do not know if those conditions and activities are occuring under those terms do you . As you ,like just about everyone else , are ignorant of the full facts .

I don't think you understand what an appeal to ignorance means. The legal question is clear in regards to warrantless surveilance and foreign intellignece. If you wish to argue some other X applies then you need evidence to that effect otherwise it is an appeal to ignornace.


the Good Guys: Further, and more to the point, the legal precedent is firmly established by both Appellate Courts and the Supreme Court.


As a lawyer you should know that legal rulings can be changed by new rulings setting new prescedents in law .

That is true, however, under Common Law and case law more specifically there is a term: Stare decisis which refers to standing precedents and the line of thought that informs any legal question that judges are hesitant to move against and should they do so will, in all likelihood, be overturned on appeal. You owe me a dollar for the legal lesson.

[Kanamori]

Our focus is on the NSA warrantless surveillance of foreign traffic and affiliated agents. This includes outbound and inbound traffic.

If you're saying that no conversations which weren't foreign in nature were recorded, and it is true, then there is little concern here at all. However, I hardly beleive that is the case. Conversations which were not foreign were in fact seized, methinks. That seems to be a violation of Fourth Amendment rights. The fact is, SCOTUS has not ruled whose right, that of the president's to wiretap for security or that of citizens to be safe from unreasonable search and seizure, wins the legal contest in this case and why. Keith and Katz showed an unwillingness to rule on that, which is more than you led to beleive in your wording, and an acceptable balance was struck w/ FISA's oversight. Bush sidestepped them entirely, and that is where the concern is. Even Sleepy-Specter, chairman of the judiciary, wants to get to the bottom of that.


I don't understand your comment of 4th Amendment rights abroad. A citizen abroad is ultimately legally defined and subject to the polity where he finds himself. This can be stipulated if given country X has treaties with the U.S. for extradition etc. but the 4th Amendment is a domestic consideration: it does not in and of itself have any international force. As far as trying to tie this notion into the topic: the President, in pursuit of his charge to protect the nation can order the warrantless surveillance of any foreign communique if there is a suspected threat.

I'm subject to federal law, when I'm abroad, which is not to say that I am not also subject to foreign law. There is nothing implicitly "domestic" about the Fourth Amendment. The exception is for communication w/ foreign entities for purposes of war... another citizen abroad is not a foreign entity, in the understanding of the word in relation to war powers of el presidente... unless you are saying that we are actually at war w/ one of our citizens abroad who has not been legally recognized as treacherous, which causes many more concerns about our rights.


Both Keith and Katz specifically make exception for intelligence. involving foreign or national security .

Yep, but they say nothing about the unrelated third party citizen, whose rights we are concerned w/, as well as the fact that monitoring a suspected terrorist may well have exceeded anything he had to do w/ foreign powers, and thus may have been a violation of fourth amendment rights.


I don't like Sunstein either, but personal preference is not a determiner of "authority" status. An authority is one who is given high standing within a given field. Within the context of Constitutional Law specifically related to the powers of the Presidency Sunstein is a big wig.

Such things are silly to argue over (but we're both pretty silly, aren't we?:hairpin1:). What makes him a poor authority is the fact that he is not highly regarded in my mind.~;) Those who agree w/ his pro-censorship ideals may think he's a fine authority but I do not.

[Pindar]

Another question for you Pindar:

Who supervises the president to make sure that only 'foreign' suspects or suspects connected to the 'war on terror' are having their phones tapped and emails read?

Or are we just supposed to trust that Bush and Cheney are telling us the whole and unembellished truth?

Where have all the checks and balances gone?

If the President veered outside his Constitutional mandate and began breaking laws and generally running amuck then he could be charged with high crimes and misdemeanors: if found guilty he would be removed from office. This process and trial occurs within Congress.


Actually many other conditions have been discussed. Have American citizens not connected to the war on terror been surveilled? How do we know erroneous surveillance of innocents hasn't taken place, much like the erroneous 'extraordinary rendition' of that EU citizen in Macedonia? How far has this surveillance gone-- into other media? How can you declare it open and shut when we've only seen the roof?

Whether one is a citizen is irrelevant to the discussion. What is relevant is the nature of the communique. If the NSA thought calls coming into the U.S. from source X had ties to terrorist groups, they are at liberty to monitor the calls. If nothing actionable came up then they would move on.

I think the difficulty you are having is assuming this is a criminal matter. It is not. It is a military matter. Military matters involve national defense and killing. In order to do both more effectively intelligence is considered important. The pursuit of right intelligence does not always produce effective results. Even so, the NSA program is designed to further this process.



If you read the Dec. 22 letter issued by the Justice Department it clearly lays out the legal scope of the program.


Ah, I see. Independent newpaper reports citing evidence are to be treated with extreme caution, but anything the justice department says can be taken as gospel?

I am unaware of any evidence that runs counter to the Justice Department explanatory letter, are you?




As noted, this authority also has to be balanced against individual rights, which the constitution also protects.

I have already addressed this: see the cited court cases.




Interesting. So you buy the Bushite argument that when congress authorized the president to 'use force', this meant they were giving him free reign to spy on American citizens?
This seems an exceptionally weak argument to me-- and to many republican senators and legal activists.
How exactly is 'surveillance' to be read as 'force'?

Either I have not been clear or you have misunderstood my position. The President has inherent Constitutional power to conduct surveillance of foreign surveillance or their agents. This power is heightened if another branch of government weighs in: in this case Congress with the AUMF which unleashed the Presidents' war time authority.



As they also are, apparently, part of the rhetoric of the government and its defenders.

Fortunately this does not apply to me.

[Pindar]

Our focus is on the NSA warrantless surveillance of foreign traffic and affiliated agents.


No, it's not.

As the person who started the thread, I won't allow you to dictate the terms of it. The thread is focused on Bush's authorization of spying within the USA without warrants.

Foreign traffic and affiliated agents includes a domestic counterpart (U.S. citizen) to an outbound or inbound communique. You should already know this.

[Pindar]

Even more fascinating.

So you're also allegeing that the War in Iraq had something to do with the War on Terror?

Yes, stay on topic.

[Pindar]

If you're saying that no conversations which weren't foreign in nature were recorded, and it is true, then there is little concern here at all. However, I hardly beleive that is the case.

Your beliefs are your own and not my concern. What is my concern is the legal question proper to whit: the President has the power to conduct warrantless surveillance as tied to his charge to protect the nation.


The fact is, SCOTUS has not ruled whose right, that of the president's to wiretap for security or that of citizens to be safe from unreasonable search and seizure, wins the legal contest in this case and why. Keith and Katz showed an unwillingness to rule on that, which is more than you led to beleive in your wording, and an acceptable balance was struck w/ FISA's oversight. Bush sidestepped them entirely, and that is where the concern is. Even Sleepy-Specter, chairman of the judiciary, wants to get to the bottom of that

This statement shows a base misunderstanding of Court rulings. When the Court rules on a given X they can interpret the law along wide or narrow margins. As they do so it impacts all legal understanding either within of without those parameters. In the Keith case the Court explicitly refused (twice in the same ruling) to tie their ruling to Presidential prerogative regarding foreign intelligence gathering. This is very significant. Katz show a similar restraint. Do you understand why the Court went this direction? If the Court were to rule the President could not conduct intelligence or was subject to another branch of government irrespective his plenary charge to protect the nation it would be a direct challenge to the Executive Office. This would lead to a Constitutional Crisis as no President would allow or consider its basic charge as subject to a separate branch. Each branch has its own Constitutionally mandated purview which is not derivable from any other office.


I'm subject to federal law, when I'm abroad, which is not to say that I am not also subject to foreign law. There is nothing implicitly "domestic" about the Fourth Amendment.

For Tax purposes this is correct. The 4th Amendment is explicitly domestic as it was passed by the U.S. and has legal force only within U.S. law. As far as U.S. citizens traveling abroad: they are not in their removal from U.S. Territory free from government surveillance if that is tied to foreign intelligence gathering. I want you to note the wording of Truong again:

"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."

From the 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."


The 4th Amendment does not apply.




Yep, but they say nothing about the unrelated third party citizen, whose rights we are concerned w/, as well as the fact that monitoring a suspected terrorist may well have exceeded anything he had to do w/ foreign powers, and thus may have been a violation of fourth amendment rights.

There is no third party citizen. If the government picks up communication between some citizen and a foreign body believed possibly hostile to the country, they are at liberty to monitor the communication as already demonstrated. If nothing untoward is apparent so be it.

[Tribesman]

Oh dear Pindar , more revelations this morning , are you still willing to stand by your position

[Kanamori]

Bleugh.

[Adrian II]

5,645 requests that does not bypassing makeFlat denials do not make for stimulating discussion.
Bleugh.Quite. :bow:

[Pindar]

Oh dear Pindar , more revelations this morning , are you still willing to stand by your position


If you have a legal argument to present please do so.

[Pindar]

Bleugh.

I don't know what this means. ~:confused:

[Pindar]

Flat denials do not make for stimulating discussion.Quite. :bow:

Do you wish to argue 5,645 requests since 2001 constitutes bypassing?

[Adrian II]

Do you wish to argue 5,645 requests since 2001 constitutes bypassing?President Bush, his spokesmen and senior Administration officials have all admitted to a policy of eavesdropping on international phone calls and e-mails by Americans without FISC orders. The President himself said it was 'quicker and faster'? What on earth is there to argue?

To an unreconstructed democrat like you -- a quality I appreciate very much -- it should be infinitely more interesting to ponder the consequences of operation Firstfruits which included NSA eavesdropping on members of the U.S. Congress...

[Pindar]

President Bush, his spokesmen and senior Administration officials have all admitted to a policy of eavesdropping on international phone calls and e-mails by Americans without FISC orders. The President himself said it was 'quicker and faster'? What on earth is there to argue?

It seems to me that there are at least two concurrent programs at work: one following FISA protocol and the other independent. I think the media report was lazy journalism.


To an unreconstructed democrat like you -- a quality I appreciate very much -- it should be infinitely more interesting to ponder the consequences of operation Firstfruits which included NSA eavesdropping on members of the U.S. Congress...

Politically, I think this is very dangerous for the Demos. The reason being despite the many blunders of the Administration, the unapologetic stance taken regarding the NSA program forces the opposition to argue a vague civil liberties position against terrorist threat. This plays into the GOP strongest argument: that Demos are weak on defense. A straw poll I saw the other day had popular support of the program at over 60%http://www.rasmussenreports.com/2005/NSA.htm I think this will cow many Demos in Congress and put others on the defensive unless they can show the program was actually more nefarious. Lacking that: only the fever swamp will be commenting and they are a non factor.

[Adrian II]

Politically, I think this is very dangerous for the Demos.I wrote 'democrat' and I meant democrat, not Democrat. Let alone 'Demos'. I don't play cowboys and Indians anymore.

[Pindar]

I wrote 'democrat' and I meant democrat, not Democrat.

I understand, my comment wasn't about myself, but the possible political fallout in the U.S.

(Demos is a common vernacular in the U.S., like Dems or GOP etc. )

[KafirChobee]

I understand, my comment wasn't about myself, but the possible political fallout in the U.S.

(Demos is a common vernacular in the U.S., like Dems or GOP etc. )
Demos? Is common here? First time I ever heard the reference was from y'all.

Checks and balances - that is the primary problem with what the Bushys did. They assumed - they had the power without asking someone outside their little groupy of right-wing-nut jobs. Had they atleast invited a few "Demos" into their circle of secrecy, it is possible none of this would amount to a hill of beans. As it stands, by their very conduct they are proposing that their Imperial Presidency is better than whar we have had for over 200 years.

Their second arguement is that what they are doing is simply reclaiming the rights of the presidency that have been weakened (due to Nixon, Reagon, etc) to its rightful possition of power.

Fact is, they have broken the law. They superceded their `awthoratay' (authority) and are now hiding behind the innuendo that they were doing it for the "good" of the country - oh, and it was faster than following the rule of the law.. How can we be sure of exactly what they were doing until they turn over the names (and reasons) of those they chose to spy on illegally?

60% approval? Give me a break.

[Xiahou]

Demos? Is common here? First time I ever heard the reference was from y'all.

Checks and balances - that is the primary problem with what the Bushys did. They assumed - they had the power without asking someone outside their little groupy of right-wing-nut jobs. Had they atleast invited a few "Demos" into their circle of secrecy, it is possible none of this would amount to a hill of beans. As it stands, by their very conduct they are proposing that their Imperial Presidency is better than whar we have had for over 200 years.Have you been following this at all? They did consult Democrats. Hell, Rockefeller, apparently, even saved a copy of his letter to Dick Cheney on the matter from July 2003. How on earth did he pull that off if he was never consulter... or is he a "right-wing-nut job"?

[Tribesman]

If you have a legal argument to present please do so.
A legal arguement ? hell no , the NSA has issued an open apology for breaking the law , nothing legally argumentative about admitting breaking the law is there ~:rolleyes:

[Xiahou]

Oh dear Pindar , more revelations this morning , are you still willing to stand by your position
You're criticizing him for not "properly" responding to this statement? :laugh:
During a discussion you drop in with a comment to the effect of "something has changed", not even mentioning what- nevermind a link to this new "development".

The only mistake Pindar made was in replying to such obvious trolling- that statement should've been totally ignored as it offered nothing at all. :wink:

Oh, btw, Tribesman- something new happened with the story.... now what do you have to say?~D

[Tribesman]

Might I remind you Xiahou , you are not even supposed to be discussing this topic :gring:

The only mistake Pindar made was in replying to such obvious trolling
No , the mistake Pindar has made is claiming that this is an open and shut case .

[Proletariat]

Where the fox are your new revelations, Tribesman?

[Hurin_Rules]

I can't help but recall the Simpsons 'Max Power' episode:

Homer: 'There are three ways to do things: The right way, the wrong way, AND the Max Power way.'

Bart: Isn't that just the wrong way?

Homer: Yeah... but faster!

[Tribesman]

Where the fox are your new revelations, Tribesman?
Well fox is trying to avoid them Prole , so I wouldn't look there .:2thumbsup:
Though they have had their usual rather lame atempts at debating them .

Perhaps a simple search for .....NSA apologises for breaking congresional rulings... might shed some light on it , or for another topic how about trying ....NSA exceeds its remit .. or perhaps for another topic which Pindar wishes to avoid ... NSA searches exceed their jurisdiction .:juggle2:


But then again , for your own safety , let me remind you , you can not discuss these issues , as that would be treason .:no: :laugh4: :laugh4: :laugh4:

Oh , but if you mean where are the links to non existant revelations about a non existant widely non existant reported happening , then you are out of luck .
I expect people that manage to have a non existant viewpoint on non existant revelations to be up to date on non existant happenings once they are in the non existant public domain .
Happy new Year:inquisitive: ~:cheers:

[Proletariat]

Where the fox are your new revelations, Tribesman?
Well fox is trying to avoid them Prole , so I wouldn't look there .:2thumbsup:
Though they have had their usual rather lame atempts at debating them .


I don't watch network tv. Sorry Tribesman, but I was more or less trolling here. I 've long since given up trying to reasonably debate with you. As much as I'd love to have a night of joking and hard drinking with you, I only posted here because I think your signature is funny.



Happy new Year:inquisitive: ~:cheers:

~:cheers:

[Pindar]

Demos? Is common here? First time I ever heard the reference was from y'all.

Checks and balances - that is the primary problem with what the Bushys did. They assumed - they had the power without asking someone outside their little groupy of right-wing-nut jobs. Had they atleast invited a few "Demos" into their circle of secrecy, it is possible none of this would amount to a hill of beans. As it stands, by their very conduct they are proposing that their Imperial Presidency is better than whar we have had for over 200 years.

Their second arguement is that what they are doing is simply reclaiming the rights of the presidency that have been weakened (due to Nixon, Reagon, etc) to its rightful possition of power.

Fact is, they have broken the law. They superceded their `awthoratay' (authority) and are now hiding behind the innuendo that they were doing it for the "good" of the country - oh, and it was faster than following the rule of the law.. How can we be sure of exactly what they were doing until they turn over the names (and reasons) of those they chose to spy on illegally?

60% approval? Give me a break.

Please read the last several pages of the thread.

[Pindar]

the Good Guys: If you have a legal argument to present please do so.



A legal arguement ? hell no , the NSA has issued an open apology for breaking the law , nothing legally argumentative about admitting breaking the law is there ~:rolleyes:

Do you know who heads the NSA?

Please avoid any more posts void of substance. My guess from the general tenor of the last several posts of yours is you are on empty. The "hell no" would seem to indicate the point. Now, I will give you one last chance to demonstrate illegality. If you cannot, I will consider your attempted participation at an end as it will have played itself out to the final clown routine.

[Xiahou]

Perhaps a simple search for .....NSA apologises for breaking congresional rulings... might shed some light on it , or for another topic how about trying ....NSA exceeds its remit .. or perhaps for another topic which Pindar wishes to avoid ... NSA searches exceed their jurisdiction .:juggle2: Sorry, not alot of hits with that....:wink:
link (http://www.google.com/search?q=NSA+apologises+for+breaking+congresional+rulings&start=0&ie=utf-8&oe=utf-8&client=firefox-a&rls=org.mozilla:en-US:official)

[Tribesman]

Please avoid any more posts void of substance.
Whatsup Pindar , are you not happy with the fact that the NSA has apologised for continuing certain activities , two years after it was told by congress that it must cease those activities .

[Pindar]

Whatsup Pindar , are you not happy with the fact that the NSA has apologised for continuing certain activities , two years after it was told by congress that it must cease those activities .

The A.P lobby story has nothing to do with our discussion. This is either a failure to understand entailment or poor reading skills. Regardless, after two clear chances were provided you have failed to deliver: "Thou art weighed in the balances, and art found wanting."

Next.

[Adrian II]

The A.P lobby story has nothing to do with our discussion. This is either a failure to understand entailment or poor reading skills. Regardless, after two clear chances were provided you have failed to deliver: "Thou art weighed in the balances, and art found wanting."

Next.Methinks we have a misunderstanding here, gentlemen.

Pindar claims that actions are illegal only if and when they have been adjudged so by a court.

Tribesmen and I maintain that we can make that judgement for ourselves, even though the matter has not been adjudicated.

We are in good company because the Senate Intelligence Committee in a June 17, 2005, report said that there was no reason to change the Patriot Act to grant the FBI more surveillance authority than it already possesses.

In the Committee's motivation it is stipulated that the FBI could not produce evidence that national security might be threatened by a court taking too long to approve surveillance powers, search warrants or subpoenas: 'When testifying before the Committee, the FBI could not document significant past or current instances when national security investigations faltered or were hindered due to lack of an administrative subpoena authority.'

The report also states that federal law enforcement should continue to seek approval from FISA because it provides 'an important check against potential abuse in the investigative process'. Circumventing the court 'is not necessary, justified, or wise,' according to the Committee.

[Tribesman]

The A.P lobby story has nothing to do with our discussion.
The discussion is about the activities of the intelligence community Pindar , something you do not wish to address at all beyond the simple fact that foriegn taps are covered under legislation .
You will not address domestic taps , you will not address illegal entry and warrentless searches in a program that they are not allowed for , you will not address the NSA continuing activities for two years after Congress told them to stop .
You have been weighed in the balances , and been found to have your head buried in the sand while wearing a blindfold and earplugs for good measure .

[Tribesman]

Bush has spoken again , he believes what he is doing is legal , it has been applied to only a few foriegn calls not domestic ones , there have been no roving wiretaps on fishing expeditions for information .
Oh , there have been , but that is different .:inquisitive:
So still no movement on the attempts by members of his own party for a judicial inquiry over the legality of the actions , hey who needs a judicial inquiry into the facts of the issue as long as the President has his beliefs that he is right .
Hmmmmm....so much for checks and balances then .:laugh4:

[Xiahou]

The A.P lobby story has nothing to do with our discussion.
The discussion is about the activities of the intelligence community Pindar , something you do not wish to address at all beyond the simple fact that foriegn taps are covered under legislation .
You will not address domestic taps , you will not address illegal entry and warrentless searches in a program that they are not allowed for , you will not address the NSA continuing activities for two years after Congress told them to stop .First, until you're willing to provide links to your news "developments" they should be ignored- it's not my responsibility to substantiate your own weak arguments for you, do it yourself. Second, the NYT has not yet made any claims to wholly domestic wiretaps or offered any proof of such. What they have talked about is telecom companies turning over "calling patterns" of domestic sources- which is an entirely seperate matter and, to my understanding, is totally legal under National Security Letters and the PATRIOT ACT. :rolleyes:

[Tribesman]

First, until you're willing to provide links to your news "developments" they should be ignored

Well ignore them then :dizzy2:

So that means you do not wish to examine Bushes statement from 2004 concerning wiretaps do you ......
``Any time you hear the United States government talking about wiretap, a wiretap requires a court order.''

So was your President misleading the people ? did he believe that he required court orders ? or is he one of those flip-flopping thingies ?

[Xiahou]

First, until you're willing to provide links to your news "developments" they should be ignored

Well ignore them then :dizzy2: Good idea- let someone else respond to your unsubstantiated BS if they want to deal with it.

[Tribesman]

unsubstantiated BS

Poor Xiahou , just because you don't know about what I am writing doesn't make it either unsubstantiated or Bullshit , perhaps you should read more , or more widely .
Or you could wait for the Senate hearings into these matters , the judicial committee is getting onto it once they have got through the Alito business .

[Pindar]

Methinks we have a misunderstanding here, gentlemen.

Pindar claims that actions are illegal only if and when they have been adjudged so by a court.

Tribesmen and I maintain that we can make that judgement for ourselves, even though the matter has not been adjudicated.


Illegality is based on court rulings. This is beyond question. Even so, my position has not been the NSA program is legal until a court pronounces a ruling. On the contrary, I have argued the NSA program is legal because it is an inherent power tied to the President's base charge of office. I have then provided the surrounding case law to demonstrate Appellate and Supreme Court deference to that position. I have further argued that this is so firmly established that the NSA program is legally mundane irrespective of political bluster.

[Pindar]

the Good Guys: The A.P lobby story has nothing to do with our discussion. [/B]


The discussion is about the activities of the intelligence community Pindar , something you do not wish to address at all beyond the simple fact that foriegn taps are covered under legislation .

Alas, no. The discussion is not about any and all actions of the NSA. The discussion is not about any and all actions of the FBI. The discussion is not about any and all actions of the CIA. The discussion is about the story broken by the NY Times concerning Bush giving the NSA authorization to conduct warrantless surveillance of foreign communiqués. This is what I have referred to since joing the discussion: post 74. I entered the discussion to address the specific legal issues related to the above: post 87. This has been my focus: both in regards to explanation of the case law and answering any legal challenges. Hostility to Bush, tangents, accusations and other forms of ill-disciplined posting are not my concern. Unfortunately, your posts have generally reflected the latter despite having opportunity to actually put together something thoughtful or relevant. This is why you fail.

You also lose points for the following lack of originality:

"You have been weighed in the balances , and been found to have your head buried in the sand while wearing a blindfold and earplugs for good measure."

[Tribesman]

Illegality is based on court rulings. This is beyond question.
Then how can someone from the Attorney Generals office refuse to sign off on some of the programs activities ?
Has he access to different court rulings , or access to more information on the program ?

[Adrian II]

Illegality is based on court rulings.'Illegal' means 'against the law', not 'against a court ruling'. An act can be illegal without having (yet) been adjudged so by a court.
I have argued the NSA program is legal because it is an inherent power tied to the President's base charge of office.A 1978 law that explicitly restricts the President's surveillance powers has been knowingly and openly violated. This is inherently illegal. There is no way around that.

[Tribesman]

This has been my focus: both in regards to explanation of the case law and answering any legal challenges.
Exactly Pindar , you are focussing on something already established , and using a very narrow viewpoint . Hence......
"You have been weighed in the balances , and been found to have your head buried in the sand while wearing a blindfold and earplugs for good measure."
The discussion is about the story broken by the NY Times concerning Bush giving the NSA authorization to conduct warrantless surveillance of foreign communiqués.
The discussion changed when further revelations were made that the warrentless surveilance has not been limited to foriegn communications . That is something you will not address , because as a lawyer you don't like answers that do not agree with your position .
Now it may be true that the official (so far) version is correct and that these are just accidental "technical glitches" , but then again it may not .
That is why it is important for the commitee to start its work as soon as possible , to discover if the NSA has indeed been acting illegally (apart from its illegal activity that it has already apologised for , as that was just a mistake).

[Fragony]

One has to wonder, if it are only a few phonenumbers that are being tapped, why don't just ask permision from the judges. Bit weird.

[Adrian II]

One has to wonder, if it are only a few phonenumbers that are being tapped, why don't just ask permision from the judges. Bit weird.Hmm, because they are Congressmen's phone numbers? :mellow:

EDIT
I mean part of the NSA's job is to spy on other U.S. spies from CIA, FBI etcetera, and on their contacts with politicians and the media as well. Tapping a Congressman would be considered, um, politically sensitive to say the least. Even if it were only Waxman.

[Fragony]

Hmm, because they are Congressmen's phone numbers? :mellow:

EDIT
I mean part of the NSA's job is to spy on other U.S. spies from CIA, FBI etcetera, and on their contacts with politicians and the media as well. Tapping a Congressman would be considered, um, politically sensitive to say the least. Even if it were only Waxman.

I was kind of referring to what he(bush) said, that only a few phones were tapped if El Goata made a call. Seems a bit weird to break a law just for a few people since all it takes is permision from a judge. I am sure a judge would grant permision if uncle Bin called someone in the states.

ah well! Happy new year mia muca and may all your sons be camels!

[solypsist]

Conservatives should fall down on their knees every morning and thank their stars for the existence of the New York Times. The paper that helped sell the Iraq war via Judy Miller’s sterling reportage may also be the paper that helped ensure the re-election of George W. Bush — by sitting on the fact that he was busy committing (arguably)impeachable offenses until a year after the election.

There's a liberal media?

[Redleg]

Conservatives should fall down on their knees every morning and thank their stars for the existence of the New York Times. The paper that helped sell the Iraq war via Judy Miller’s sterling reportage may also be the paper that helped ensure the re-election of George W. Bush — by sitting on the fact that he was busy committing (arguably)impeachable offenses until a year after the election.

There's a liberal media?

Ah a distraction from the current discussion. :laugh4:

[Xiahou]

A 1978 law that explicitly restricts the President's surveillance powers has been knowingly and openly violated. This is inherently illegal. There is no way around that.How much case law has Pindar cited that has occurred since that 1978 legislation? It's ironic that people accuse Pindar of having blinders on when they refuse to see the issue objectively because of their hatred of the administration.


Hostility to Bush, tangents, accusations and other forms of ill-disciplined posting are not my concern.Indeed, this has become a case-study in bad debating. :dizzy2:

When this story first broke, I found it left a very bad taste in my mouth. When I researched it more I discovered a few things... first, all of the liberal blog hype is greatly exaggerating the severity of the situation considering how little is really known at this point. Also, from what we actually do know of the warrantless survellience, it may stink to high heaven, but it's nothing new, nor has anything come to light as of yet that shows illegal activity. You can think it stinks to high heaven, but that's a different matter- emotional appeals and hyperbole have no place in a debate on legality. You can argue that it's wrong and should be illegal, but that doesnt make it so.

"The law is reason, free from passion."

[Tribesman]

It's ironic that people accuse Pindar of having blinders on when they refuse to see the issue objectively because of their hatred of the administration.

Really ? now would that be the administration that has its own members questioning this issue , would that be the administration that has had its members refusing to sign off on this issue ?
Or is that just another example of blinkered reasoning along the lines of ...you hate Bush , or , you hate freedom , or perhaps , you hate America .
There are serious questions raised Xiahou , there is a body that is in existance which has oversite on these issues and it is going to investigate them .
For people to say that every thing is legal and above board after questions have been raised over the legality , but before they are investigated by the judicial commitee is very blinkered indeed .

You can argue that it's wrong and should be illegal, but that doesnt make it so.

It will be interesting to see the development unfold , especially why people from the AGs office question the legality and why members of the special court have resigned .
Though of course most of the findings/proceedings will be classified due to the nature of the subject .

[Hurin_Rules]

Alas, no. The discussion is not about any and all actions of the NSA. The discussion is not about any and all actions of the FBI. The discussion is not about any and all actions of the CIA. The discussion is about the story broken by the NY Times concerning Bush giving the NSA authorization to conduct warrantless surveillance of foreign communiqués.

Pindar, would you please stop trying to handcuff the thread.

I started this thread, and I did not intend it to be strictly limited to 'foreign' comuniques. You keep trying to define them as 'foreign' even though they may have been domestic phone calls from American citizens to American citizens. The full extent of the program has yet to be revealed. I'm not sure why you keep trying to limit the discussion--apparently because you can't win the argument otherwise--but that was not the thread's original intent, and you are quite obviously begging the question.

Please stop.

Thank you

[Xiahou]

I started this thread, and I did not intend it to be strictly limited to 'foreign' comuniques. You keep trying to define them as 'foreign' even though they may have been domestic phone calls from American citizens to American citizens. The full extent of the program has yet to be revealed. I'm not sure why you keep trying to limit the discussion--apparently because you can't win the argument otherwise--but that was not the thread's original intent, and you are quite obviously begging the question.

Please stop.

Thank youYes, lets all discuss the scenarios that we've been given no indication of whether or not they've actually happened. We should only talk about situations in where it would be illegal, facts or no- any others make it too tough to pile on Bush. :book:

Discussion of the multitudes of scenarios under which it'd be totally legal have absolutely no place here Pindar. :wink:

[Red Harvest]

Conservatives should fall down on their knees every morning and thank their stars for the existence of the New York Times. The paper that helped sell the Iraq war via Judy Miller’s sterling reportage may also be the paper that helped ensure the re-election of George W. Bush — by sitting on the fact that he was busy committing (arguably)impeachable offenses until a year after the election.

There's a liberal media?
I agree with this. I'm pretty well ticked at the Times for sitting on this one.

Some talking douchebag on FOX today was trying to point out how "convenient" the timing was of the story while ignoring the truth. FOX ALWAYS tries to couch things in a a "what's best for Dubya" setting. Pathetic excuse for journalism that FOX is. "Fair and balanced?" LOL. I think they should change it to "Clueless and deluded."

[Tribesman]

Yes, lets all discuss the scenarios that we've been given no indication of whether or not they've actually happened.
But Xiahou , it has been confirmed that they actually happened , or don't you listen to your President or the White House spokespeople .
Two reasons have been given for two diffent occurances involving the NSA , one was a technical problems , the other was oh it was just a mistake .

The issue is are they breaking the guidlines , that will be established hopefully one way or another in the inquiry .

[Red Harvest]

If you recognize FISA cannot restrict the inherent Presidential authority to gather foreign intelligence and protect the nation, which is the only real option, then there is no illegality argument to be made. I therefore consider the legal question settled.
I do not believe that it is so convenient and simple. That is the approach the Prez is using. Yet FISA has not been ruled unconstitutional, nor have all the ramifications of what the NSA is up to in this matter been considered by a court. (The cases you cited illustrated the hole in that nicely.) I can come up with half a dozen paths that the NSA are likely using that WOULD exceed the constitutional protections--apparently, so could some of the Admin's own legal experts and cabinet members as they did not back Dubya/Cheney's approach.

It will take an investigation to determine what the NSA was doing and whether or not the President has abused his power. A pity, since the FISA court could have prevented that. The leak is defensible on the grounds that national security was being used as cover for illegal and perhaps impeachable activity by the Prez.


The second point is more an apprehension based on a misunderstanding of the roles of government and therefore a step removed from the issue: but to give a response, any exercising of a branch power is Constitutionally derived. Its legality is therefore based on the Constitution. The Constitution is the proof text. To apply this to our general discussion: this is why Nixon's surveillance was wrong. He was involved in solely domestic surveillance independant of protecting the nation, which is outside of the Presidential purview.
Well, you can continue to try to argue that this is all legitimate based on protecting the nation, that it was not domestic surveillance and that the Prez can do anything he wants in that regard. Unfortunately there are still several holes in the arguments.

You are basing all of this on an assumption of innocence and on an assumption that no domestic-to-domestic intercepts have occurred and therefore that the President has not exceeded his constitutional authority. Conveniently if guilty (or ironically, inconveniently if innocent), the only way to prove this has been bypassed. I smell a big RAT. The only explanation for what Dubya has done is that he WAS exceeding his constitutional authority. Otherwise it was unnecessary.

The NSA's actions, on the other hand, is foreign intelligence focused which is central to the President's charge.
Debatable. The only method for verifying this has been bypassed. I would give you very good odds that this in NOT the case. There is an expansive gray area. That's why the whistleblowing has occurred, and this is why it is raising such a stink.


Nothing. Of course, in the 72 Keith Case SCOTUS expressly refused to attempt any limit of Presidential prerogatives regarding foreign intelligence gathering and there are good reasons why not that I have previously explained. Now, if SOCTUS did as you suggest this would be tantamount to Congress voting to eliminate the Presidential veto, the point being: doing a thing is not the same as having the authority to do a thing. Such a bald faced challenge to a basic component of one branch's delineated power would lead to a Constitutional crises. Good, bring on the crisis. It is already here. We have a Prez who thinks he can ignore all treaties, conventions, and apparently the Constitution.

His attempts at claiming "War Powers" in the continued activities are questionable. It is clear that Congress did not grant him all the powers he sought, and the "War on Terror" doesn't give him carte blanche. If he feels it does, then we need to declare it over, TODAY.


I basically agree with Sunstein's analysis previously given: "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."
I will point out that the Prez didn't actually challenge the law to make it unconstitutional. He also has made no reasonable case that his constitutionally granted power is being restricted by the FISA. In other words, he is taking what would be construed as an illegal path or at least a path outside of the law, while the nation is unaware of his questionable use of power.

You might feel certain of your defense based on what has come out so far, but this has a "tip of the iceberg" aura to it. It will come tumbling down like a house of cards if any domestic spying is turned up during an investigation. There is a lot of gray area that makes that sort of abuse likely. One thing I know from observing this Administration: there is always a lot more hidden waiting to come out--they ALWAYS seem to push past the boundaries. Let's have a full investigation. If the warrantless searches were properly limited, that will come out. If they were not, then the Prez has committed an impeachable act covertly against the constitution he swore to protect. That the Prez did these things outside the scrutiny of FISA strongly suggests that he knew he would be exceeding his authority if his actions were reviewable. Whether or not his supporters agree, Dubya must still answer to this nation for his actions.

[Red Harvest]

Illegality is based on court rulings. This is beyond question.
Then how can someone from the Attorney Generals office refuse to sign off on some of the programs activities ?
Has he access to different court rulings , or access to more information on the program ?
Indeed. If Dubya's own hand picked guys won't sign off, something is wrong. The defense would like to ignore that, because it would force them to confront the concept that the Prez could be exceeding his authority. Just claiming that the surveillance is necessary and limited to foreign wiretaps of calls connected to the U.S. does not make it so. Operating with no oversight makes it unlikely. Look at Dubya's record on such statements, nearly every time they have proven false. It would be exceptional if this were to prove any different.

[solypsist]

Ah a distraction from the current discussion. :laugh4:

hee hee! it's a better effort than just posting some crazy guy in an animal costume like last time

[Redleg]

hee hee! it's a better effort than just posting some crazy guy in an animal costume like last time

But you would have had more impact with that :idea2:

[Pindar]

the Good Guys: Illegality is based on court rulings. This is beyond question.


Then how can someone from the Attorney Generals office refuse to sign off on some of the programs activities ?
Has he access to different court rulings , or access to more information on the program ?

This reply does not relate to the above. The general point: illegality is decided through adjudication is correct and should be obvious.

As far as the unrelated point: see the Dec. 22 letter released by the Justice Department.


the Good Guys: This has been my focus: both in regards to explanation of the case law and answering any legal challenges.


Exactly Pindar , you are focussing on something already established , and using a very narrow viewpoint .

I doubt any participating here knew of the case law prior to my posting it. If you agree such is established then there is no residing legal question.


Hence......"You have been weighed in the balances , and been found to have your head buried in the sand while wearing a blindfold and earplugs for good measure."

Minus two points for repeating an unoriginal thought.


the Good Guys: The discussion is about the story broken by the NY Times concerning Bush giving the NSA authorization to conduct warrantless surveillance of foreign communiqués.


The discussion changed when further revelations were made that the warrentless surveilance has not been limited to foriegn communications . That is something you will not address , because as a lawyer you don't like answers that do not agree with your position .

An allegation does not a revelation make. I don't address unsubstantiated claims. Speculation by its very nature is indeterminate and not a sound basis for determining guilt. The basic scope of the program has been put forward. Based on that standard, there is no illegality.

[Pindar]

the Good Guys: Illegality is based on court rulings.


'Illegal' means 'against the law', not 'against a court ruling'. An act can be illegal without having (yet) been adjudged so by a court.

Illegality does mean some breach of law, but that was not my point. My point concerned determining illegality. This requires adjudication.


A 1978 law that explicitly restricts the President's surveillance powers has been knowingly and openly violated. This is inherently illegal. There is no way around that.

You need to read more of the thread. FISA does not apply to the President's basic charge of gathering intelligence to protect the nation. Note again the 2002 In re Sealed Case:

"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."

[Pindar]

the Good Guys:
Alas, no. The discussion is not about any and all actions of the NSA. The discussion is not about any and all actions of the FBI. The discussion is not about any and all actions of the CIA. The discussion is about the story broken by the NY Times concerning Bush giving the NSA authorization to conduct warrantless surveillance of foreign communiqués.


Pindar, would you please stop trying to handcuff the thread.

I started this thread, and I did not intend it to be strictly limited to 'foreign' comuniques. You keep trying to define them as 'foreign' even though they may have been domestic phone calls from American citizens to American citizens. The full extent of the program has yet to be revealed. I'm not sure why you keep trying to limit the discussion--apparently because you can't win the argument otherwise--but that was not the thread's original intent, and you are quite obviously begging the question.

Please stop.

Thank you

Regardless your intentions, the Times story was not focused on the entire corpus of activity within the intelligence community. There were story parameters. The focus was: "The Times reported Friday that following the Sept. 11, 2001, terror attacks, President Bush authorized the NSA to monitor the international phone calls and international e-mails of hundreds — perhaps thousands — of people inside the United States." This has been what I have been responding to. Garnering speculation of the unsubstantiated does not allow any real conclusions save for what is emotive.

Note: whether U.S. citizens are a part of one side or both sides of a foreign (understood as international) communique is irrelevant.

[Pindar]

the Good Guys:
If you recognize FISA cannot restrict the inherent Presidential authority to gather foreign intelligence and protect the nation, which is the only real option, then there is no illegality argument to be made. I therefore consider the legal question settled.


I do not believe that it is so convenient and simple. That is the approach the Prez is using.

Do you belive FISA can restrict Presidential authority to gather foreign intelligence? If you do then you need to explain the legal rationale and respond to the opposing case law I have provided namely:

-2002 In re Sealed Case No. 02-001
-1984 United States v. Duggan
-1980 United States v. Truong
-1977 United States v. Buck
-1974 United States v. Butenko
-1972 United States v. United States District Court
-1970 United States v. Clay

If you agree FISA does not have that power then there is no issue.



I can come up with half a dozen paths that the NSA are likely using that WOULD exceed the constitutional protections--apparently, so could some of the Admin's own legal experts and cabinet members as they did not back Dubya/Cheney's approach.

Which Administration legal experts and members of the Cabinet are you referring to?

[Red Harvest]

You need to read more of the thread. FISA does not apply to the President's basic charge of gathering intelligence to protect the nation. Note again the 2002 In re Sealed Case:

"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."
While I have no legal training, I wasnt born yesterday.

You can keep quoting the above, but I notice you always conveniently avoid the problem of where the "foreign" boundary is exactly (something that is not as clear), as well as the little issue of whether the President can bypass FISA if it does *not* encroach. You see, if the Prez is really staying within his Constitutional authority, FISA is not limiting him. However, if he is exceeding it...then FISA is limiting him from taking on unlawful authority, that would not be unconstitutional. What the President has done is establish strong probable cause for the latter by bypassing FISA in this matter. The potential for abuse is compounded by security secrecy used to shield these warrantless searches from scrutiny.

I don't see how you can remain confident in this after reviewing Dubya's track record. His pattern is to claim one thing, while his Admin was doing another. I'm still waiting to hear the rest of the story. There is a reason the President went outside of FISA and none of the statements he has made so far provide a justification. Conclusion: he's still hiding something.

[Pindar]

While I have no legal training, I wasnt born yesterday.

You can keep quoting the above, but I notice you always conveniently avoid the problem of where the "foreign" boundary is exactly (something that is not as clear)...

Foreign refers to anything beyond the national confines of the U.S.


...as well as the little issue of whether the President can bypass FISA if it does *not* encroach.

I have avoided no such thing. The President can bypass FISA. I think I have been quite clear on this issue. I have explained how this is so according to case law, legal opinion and a general exposition of President's charge of office.


You see, if the Prez is really staying within his Constitutional authority, FISA is not limiting him. However, if he is exceeding it...then FISA is limiting him from taking on unlawful authority, that would not be unconstitutional.

This doesn't follow. If a law does not apply then it can neither limit nor serve as reference for unlawful activity. If you believe FISA does apply: as in it limits the President's ability to gather foreign intelligence make that case. I will read it. Thus, far all I have noted from the handwringers has been innuendo.

You didn't answer my two questions.

[Tribesman]

An allegation does not a revelation make. I don't address unsubstantiated claims.
Bull , you will respond over one claim made in a newspaper , but not on another related claim in the same newspaper .
Thats just you dodging the issue again Pindar .

[Pindar]

the Good Guys: An allegation does not a revelation make. I don't address unsubstantiated claims.



Bull , you will respond over one claim made in a newspaper , but not on another related claim in the same newspaper .
Thats just you dodging the issue again Pindar .

The Times story was confirmed by the Administration. The Justice Dept. released a letter to the same effect. This allows for a detailed discussion and conclusions to be made. This does not speak to the quality of the reporting (the article's author later admitted to having read none of the relevant law surrounding the issue) but it is quite distinct from simple rumor mongering or unsubstantiated accusations.

You're not doing very well. Do you have anything else?

[Xiahou]

An allegation does not a revelation make. I don't address unsubstantiated claims.
Bull , you will respond over one claim made in a newspaper , but not on another related claim in the same newspaper .
Thats just you dodging the issue again Pindar .I curious about what "related claim" you're referring to. Is it the story in the NYT that talked about telecoms turning over "calling patterns" to federal agents? If so, I've already said that they would be permissible under NSLs and the Patriot Act. If not, what then are you referrring to?

[Tribesman]

The Times story was confirmed by the Administration.
As was the "technical glitch" that meant domestic calls were tapped by the NSA aswell as foriegn ones .

[Red Harvest]

You didn't answer my two questions.
What two questions? Hadn't seen any when I posted.

[Pindar]

As was the "technical glitch" that meant domestic calls were tapped by the NSA aswell as foriegn ones .

What are we to conclude from this? Do you want to argue this was procedure? If so what is the support? If not, what is the relevance?

[Pindar]

What two questions? Hadn't seen any when I posted.

Ahh, I see. The first question was: "Do you believe FISA can restrict Presidential authority to gather foreign intelligence?" This was then followed by: "If you do then you need to explain the legal rationale and respond to the opposing case law I have provided namely:

-2002 In re Sealed Case No. 02-001
-1984 United States v. Duggan
-1980 United States v. Truong
-1977 United States v. Buck
-1974 United States v. Butenko
-1972 United States v. United States District Court
-1970 United States v. Clay

If you agree FISA does not have that power then there is no issue."

The second question was: "Which Administration legal experts and members of the Cabinet are you referring to?" This was in response to your statement the Administration's own legal experts and Cabinet members didn't back the President's approach.

[Red Harvest]

Ahh, I see. The first question was: "Do you believe FISA can restrict Presidential authority to gather foreign intelligence?" This was then followed by: "If you do then you need to explain the legal rationale and respond to the opposing case law I have provided namely:

-2002 In re Sealed Case No. 02-001
-1984 United States v. Duggan
-1980 United States v. Truong
-1977 United States v. Buck
-1974 United States v. Butenko
-1972 United States v. United States District Court
-1970 United States v. Clay

If you agree FISA does not have that power then there is no issue."
As I've said, FISA is not restricting him. Since the FISA court is not restricting him from using his constitutional powers, his reasoning for not using it falls flat. It is there not to restrict his powers, but to help determine whether or not he is overstepping them and moving into domestic warrantless searches. The review court ruling was useful in clarifying that, but by suggesting we as a nation have no authority over monitoring our President's actions it went too far. That is the crux of the issue and it is not going away simply because Dubya/Cheney assume they can do anything they want whenever they want. SCOTUS could be useful in setting some clearer boundaries. Right now the President is using the "it's within my authority because I say it is" approach. That is insufficient.


The second question was: "Which Administration legal experts and members of the Cabinet are you referring to?" This was in response to your statement the Administration's own legal experts and Cabinet members didn't back the President's approach.At the time Ashcroft and another fellow the Pres referred to as "Cuomo" whose name was similar but escapes me at the moment. There were about half dozen others that I've read about as well.

I'm satisfied to sit here and wait for the results as long as there are active investigations into what the President is doing. Since he has chosen to ignore those who could evaluate whether or not he has exceeded his constitutional authority, and with no valid stated reason, his actions become highly suspect. There have already been several admissions of domestic intercept "mistakes" plus some vague "stream monitoring" that could open some issues depending on how it is used (devil's definitely in the details on that one.) I've known about some of this for years simply from following some of the tech info outlets.

The way he did the FISA bypass, without any direct challenge to FISA and using covert protections makes this an abuse of power issue. He is using a power that neither the populace, legislative, or judicial branch believed he had. He has been unable to prove any need for it. While the legal burden of proof will be on any prosecutor/investigator, the right/wrong burden of proof lies squarely on the President's shoulders.

[Tribesman]

What are we to conclude from this? Do you want to argue this was procedure? If so what is the support? If not, what is the relevance?

That is something for the judicial commitee to decide Pindar , after it has investigated it .
For you to claim it is open and shut case before this investigation has taken place is ridiculous .

[Hurin_Rules]

Regardless your intentions, the Times story was not focused on the entire corpus of activity within the intelligence community. There were story parameters. The focus was: "The Times reported Friday that following the Sept. 11, 2001, terror attacks, President Bush authorized the NSA to monitor the international phone calls and international e-mails of hundreds — perhaps thousands — of people inside the United States." This has been what I have been responding to.

Here again you are you are only giving us a partial truth, and cloaking the rest. Because of course my original post did not involve the Times report exclusively. I purposefully posted the wider MSNBC article that discussed the wider issue: e.g. "A key Republican committee chairman put the Bush administration on notice Friday that his panel would hold hearings into a report that the National Security Agency eavesdropped without warrants on people inside the United States" Raising the issue of what qualifies as 'foreign'--which you, time and again, have refused to define--is thus wholly appropriate and intentional.


Note: whether U.S. citizens are a part of one side or both sides of a foreign (understood as international) communique is irrelevant.

Perhaps then you could enlighten us as to what qualifies as 'foreign'. Is a phone call or email from a US citizen in Chicago to one in New York 'foreign'? Because it seems to me that these were data mined byt he government without warrants. Just because something may involve terrorism doesn't make it 'foreign', as we all learned with Timothy McVeigh.

[Pindar]

As I've said, FISA is not restricting him. Since the FISA court is not restricting him from using his constitutional powers, his reasoning for not using it falls flat.

If FISA is not restricting him in discharging his Constitutional powers then there is no legal issue. As far as not using FISA for foreign intelligence purposes: as previously explained, such does not fall within the FISA purview.


SCOTUS could be useful in setting some clearer boundaries. Right now the President is using the "it's within my authority because I say it is" approach. That is insufficient.

If you read some of the court cases I cited you will note the President's position is hardly unique, but in fact has been the legal standard.


At the time Ashcroft and another fellow the Pres referred to as "Cuomo" whose name was similar but escapes me at the moment. There were about half dozen others that I've read about as well.

I'm unaware of Ashcroft standing in opposition to the program. Given the Attorney General would have to have signed off on any such program (given he is the chief law officer and legal council for the government) such a view seems problematic.

[Pindar]

the Good Guys: What are we to conclude from this? Do you want to argue this was procedure? If so what is the support? If not, what is the relevance?


That is something for the judicial commitee to decide Pindar , after it has investigated it .

So the charges of dictatorship seem to have been a tad premature.


For you to claim it is open and shut case before this investigation has taken place is ridiculous .

The above is not an argument. The program as described is legally quite mundane.

[Pindar]

Here again you are you are only giving us a partial truth, and cloaking the rest. Because of course my original post did not involve the Times report exclusively. I purposefully posted the wider MSNBC article that discussed the wider issue: e.g. "A key Republican committee chairman put the Bush administration on notice Friday that his panel would hold hearings into a report that the National Security Agency eavesdropped without warrants on people inside the United States" Raising the issue of what qualifies as 'foreign'--which you, time and again, have refused to define--is thus wholly appropriate and intentional.

So you didn't just want to just discuss the NSA program but actually also wanted to discuss Specter's intention to hold hearings? What would you like to say about this intention? For himself, as I mentioned early on, my concern is the legal question of the NSA program.

As far as foreign, as in foreign intelligence: I've actually referred to this previously. I don't think foreign is a particularly nebulous concept. It means something moving outside the bounds of U.S. Territory. This is a geographic qualifier. One could also argue foreign applies to non-Citizens. This is an identity qualifier.




Perhaps then you could enlighten us as to what qualifies as 'foreign'. Is a phone call or email from a US citizen in Chicago to one in New York 'foreign'? Because it seems to me that these were data mined byt he government without warrants. Just because something may involve terrorism doesn't make it 'foreign', as we all learned with Timothy McVeigh.

See above.

[Tribesman]

The above is not an argument. The program as described is legally quite mundane.
Still dodging the issue eh Pindar .

So the charges of dictatorship seem to have been a tad premature.

???????

I'm unaware of Ashcroft standing in opposition to the program. Given the Attorney General would have to have signed off on any such program (given he is the chief law officer and legal council for the government) such a view seems problematic.
Ashcroft was temporarily incapacited at the time his deputy refused to sign off on this issue , they then went to hospital to get him to do it , Ashcroft is refusing to say what his position was in relation to the problem until he goes in front of the commitee .
I would have thought that since you have been following this subject for some time that you would know some of the basics , but perhaps the basics are too contradictory to your narrow appraoch .

[Pindar]

For you to claim it is open and shut case before this investigation has taken place is ridiculous


the Good Guys: The above is not an argument. The program as described is legally quite mundane.


Still dodging the issue eh Pindar .

What issue is being dodged 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.



the Good Guys: So the charges of dictatorship seem to have been a tad premature.


???????

Note post 133: "But I am sure your wonderful legal expertise will be able to find another ruling that will show that the President can do whatever he wants to whomever he wants , wherever and whenever he so chooses .
Though of course , that would be the sort of powers that one would normally associate with a crazy dictatorship."




Ashcroft was temporarily incapacited at the time his deputy refused to sign off on this issue , they then went to hospital to get him to do it , Ashcroft is refusing to say what his position was in relation to the problem until he goes in front of the commitee .
I would have thought that since you have been following this subject for some time that you would know some of the basics , but perhaps the basics are too contradictory to your narrow appraoch .

Ashcroft's hospitalization is some of the basics is it? All the standard NSA coverage has referenced this? Interesting, well if this is the basics, as it were: did he sign off? If he did then that undercuts the charge doesn't it. If he didn't then there is no way the program could have been launched.

Now I am going to need some help with the basics a little more since my focus has been the general legal question: I know Ashcroft was in the hospital is 2004 and he was asked to sign an extension because a Deputy Sec. had questions about some of the provisions continuing. Now an extension would suggest a preexisting thing. The NSA program was instigated not too long after 9/11. This would suggest a previous signing. But if there was a previous signing then...maybe the real Ashcroft (loved of the Left as a defender of civil liberties and the common man) was killed and another took his place, but because the pen used to sign the extension would have a finger print exposing the counterfeit Ashcroft, they had to replace him with Gonzales since nobody is going to check the fingerprints of a sell out minority. Ahh, its becoming so clear now. All that's required is to step into the Celtic mind and what was clouded glass becomes crystal.

[Tribesman]

Now I am going to need some help with the basics a little more since my focus has been the general legal question:
There in lies the problem Pindar , you put forward quite correctly that there are rulings that allow for this surveilance , there is an agency whose job it is to carry out this foriegn surveilance , there is a legal panel and oversight commitee to ensure that every thing is done within the stipulations that cover these proceedures .
Great , that is established .

Now then will you address the "mistake" , "technical glitch" , or even possibly wilful violation of the program that has led to the surveilance of activities that are solely domestic and not covered under the remit of this legislation ?

Then you can move onto the Ashcroft/Comey bit .
It doesn't matter if it was an original signing or one of the periodic renewals that have to be undertaken at regular intervals to ensure that the proceedures are being followed correctly . Comey refused to sign as he had legal issues over this rather mundane open and shut proceedure . Ashcroft is as of yet not saying if he went ahead and signed off on that which his deputy had refused to do .
Then perhaps you can approach the judges protests and resignation from the special panel that oversees these matters .

Ahh, its becoming so clear now. All that's required is to step into the Celtic mind and what was clouded glass becomes crystal.
Silly boy -10 for raising ethnicity .:no:
What is clear Pindar is that certain things are all legal and above board ...... So long as the legal proceedues under which they are occuring and the checks and balances to ensure that they remain legal are followed .

In this case there are serious questions which bring that into doubt .
Which I am sure your wonderfully analytical mind should be able to understand by the repeated use of the word IF in relation to the revelations and their accuracy .
And also the inquiry needing to go ahead to see IF everything in this rather mundane program has indeed carried out in a legal and proper manner.

Note post 133:
:laugh4: :laugh4: :laugh4: that is in relation to your legalese arguements Pindar , not your government .

[Pindar]

You ignored the main part of my post and only responded to the tongue-in-cheek portion. That is telling on a number of levels.


There in lies the problem Pindar , you put forward quite correctly that there are rulings that allow for this surveilance , there is an agency whose job it is to carry out this foriegn surveilance...Great , that is established .

If you agree the base authority to conduct warrantless surveillance exists then you have ceded the argument. This was the issue and my focus.


Now then will you address the "mistake" , "technical glitch" , or even possibly wilful violation of the program that has led to the surveilance of activities that are solely domestic and not covered under the remit of this legislation ?

I see "mistakes" as mistakes, "technical glitches" as technical glitches and any "willful violation of the program" as a willful violation of the program. Mistakes, errors and/or abuse are what they are and should be dealt with appropriately. None of this relates to the base legality of the program itself which was/is the issue.


Then you can move onto the Ashcroft/Comey bit .
It doesn't matter if it was an original signing or one of the periodic renewals that have to be undertaken at regular intervals to ensure that the proceedures are being followed correctly . Comey refused to sign as he had legal issues over this rather mundane open and shut proceedure . Ashcroft is as of yet not saying if he went ahead and signed off on that which his deputy had refused to do.

Actually an orignial signing does matter: the signing of any extension also matters as both speak to the legal standing of the program. That a Deputy shouldn't want to sign off on a program under review is not surprising. It fits the bureaucratic mindset.



Then perhaps you can approach the judges protests and resignation from the special panel that oversees these matters.

Ceremony protests are meaningless. The Clinton appointee in question remains a judge: he simply stepped down from the FISA Panel.


Silly boy -10 for raising ethnicity.

Raising ethnicity is -1 point: check your rule book.


What is clear Pindar is that certain things are all legal and above board ...... So long as the legal proceedues under which they are occuring and the checks and balances to ensure that they remain legal are followed .

In this case there are serious questions which bring that into doubt .
Which I am sure your wonderfully analytical mind should be able to understand by the repeated use of the word IF in relation to the revelations and their accuracy .
And also the inquiry needing to go ahead to see IF everything in this rather mundane program has indeed carried out in a legal and proper manner.

If you are basing your remaining arguments on "if" then there isn't much to work with is there?


:laugh4: :laugh4: :laugh4: that is in relation to your legalese arguements Pindar , not your government .

That is not how the post reads. The post reads as a charge of sophistry in defense of a tyrant (though not stated as elegantly).

To review:

-No legal rejoinders have been provided by the Irish Delegate.
-An Admission there are rulings recognizing the program's warrantless surveillance authority.
-A focus on "if" has been put forward, but the "ifs" seem focused at worst on possible abuse which, by the very label, indicates something counter to the base program.

So, we are left with a rather mundane program, that may or may not have seen abuse, but in and of itself remains legally sound. Hmmm.

[Adrian II]

I see (..) any "willful violation of the program" as a willful violation of the program. Mistakes, errors and/or abuse are what they are and should be dealt with appropriately.Right, now we are getting somewhere.

FISA explicitly limits the President's warrantless surveillance powers in time of war: 'The President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen days following a declaration of war by the Congress.'
Primo: the fifteen days have long expired.
Secundo: the 'foreign' nature of some of the taps under the post-9/11 program is now in serious doubt.

Anyway, this discussion has been narrowed down to one legal aspect long enough. Once again I think the lack of urgency and awareness of what is at stake is disappointing in one who would no doubt remember Madison's words: 'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.'

I don't know what appliance Mr Bush has strapped to his back during public appearances, but it sure ain't a pair of wings, Pindar.

[Tribesman]

None of this relates to the base legality of the program itself which was/is the issue.

There you go again , that is not the issue , the issue is has the legality and proceedures of the actions been correctly followed .
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 .

[Adrian II]

None of this relates to the base legality of the program itself which was/is the issue.

There you go again , that is not the issue , the issue is has the legality and proceedures of the actions been correctly followed .
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 .We are like tag teams: Tribesman/AdrianII vs Pindar/Xiahou. ~:)

[Pindar]

Right, now we are getting somewhere.

FISA explicitly limits the President's warrantless surveillance powers in time of war: 'The President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen days following a declaration of war by the Congress.'
Primo: the fifteen days have long expired.
Secundo: the 'foreign' nature of some of the taps under the post-9/11 program is now in serious doubt.

I don't know the conversation above, but they obviously haven't read the FISA very closely. Subsection 1802:

"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title"

Foreign powers refers to among other things:

“Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor"

This authorization is what required a yearly extension by the Attorney General.


Anyway, this discussion has been narrowed down to one legal aspect long enough. Once again I think the lack of urgency and awareness of what is at stake is disappointing in one who would no doubt remember Madison's words: 'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.'

I don't know what appliance Mr Bush has strapped to his back during public appearances, but it sure ain't a pair of wings, Pindar.

Actually what is unnerving is the penchant of journalists and pundits to place personal political agendas over the security of the nation. (How's that for alliteration!)

I'll see your Madison and raise you a Jefferson. Regarding our foreign intelligence discussion: "If a nation expects to be ignorant and free.. it expects what never was and never will be." - Thomas Jefferson

[Pindar]

the Good Guys: None of this relates to the base legality of the program itself which was/is the issue.


There you go again , that is not the issue , the issue is has the legality and proceedures of the actions been correctly followed .
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 .

Alas, teaching is an unending process. The issue has been whether the President could authorize warrantless surveillance. This is what the Times and others were up in arms over. This is what I have been addressing since joining the thread. The President can authorize just such surveillance. This is legally obvious. The desperate opposition needing some other to then couch their opposition to now seems to be looking to hypotheticals in odd attempts to cast the NSA program as some sort of Nixonian scheme. This will not fly either.

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?"

[Pindar]

We are like tag teams: Tribesman/AdrianII vs Pindar/Xiahou. ~:)



http://www.obsessedwithwrestling.com/pictures/f/fabulouskangaroos/10.jpg

[Xiahou]

I think I'm going to have nightmares because of that picture. :laugh4:

[Seamus Fermanagh]

AdrianII:

Thanks for your post #232, you really got to the central bone of contention put forth by the left.

Moreover, you prompted Pindar's #235, which really sums up the Admin' stance in a nutshell.:2thumbsup:

I favor post #235 over post #232, but you always express your points elegantly -- which I do appreciate.


The Tag team picture is too rich -- and I like the implied pat-on-the-back to Australia made by those hats. :laugh4:

[Nerouin]

Republican senator Arlen Specter has vowed to hold hearings on this.



Hey Lucy, you got some 'splaining to do!

I'm sure this is to be used as rationale that the entire United States, and everything it stands upon and does, is evil, and furthermore that Israel is in the same category.

Wahoo.

Gosh, I've been back on this forum for 15 minutes and I'm already sick to my stomach. I think I'll leave for another 9 months.

[Goofball]

I'm sure this is to be used as rationale that the entire United States, and everything it stands upon and does, is evil, and furthermore that Israel is in the same category.

Wahoo.

Gosh, I've been back on this forum for 15 minutes and I'm already sick to my stomach.

And gosh, you reverted right away to the oh-so-popular Backroom conservative tactic of equating attacks on the Bush administration with attacks on America then throwing a pity-party.


I think I'll leave for another 9 months.

Don't let the door hit you in the arse on the way out.

And tell Don Corleone to come back if you see him. I miss the old fart...

~;p

[Hurin_Rules]

Independent legal analysts seem to view the case as a bit less 'open and shut' than we have been led to beleive:


Analysts: Bush spying rationale legally shaky
Memo questions use of presidential power in wiretapping without approval

Updated: 6:21 p.m. ET Jan. 6, 2006
WASHINGTON - A memorandum from two congressional legal analysts concludes that the administration’s justification for the monitoring of certain domestic communications may not be as solid as President Bush and his top aides have argued.

The Congressional Research Service, which advises lawmakers on a wide range of matters, said a final determination about the issue is impossible without a deeper understanding of the program and Bush’s authorization, “which are for the most part classified.”

Yet two attorneys in the organization’s legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees “does not seem to be as well-grounded as the tenor of that letter suggests.”


The National Security Agency’s activity “may present an exercise of presidential power at its lowest ebb,” Bazan and Elsea write in the 44-page memo.

Bush and his top advisers have defended the program, which allowed the highly secretive agency to eavesdrop without court approval on international calls and e-mails of people who were inside the United States and suspected of communicating with al-Qaida or its affiliates.

The Bush administration says it was legal under Article 2 of the Constitution, which grants presidential powers, and Congress’ September 2001 authorization to use military force to conduct the war on terror.

But the memo concludes: “It appears unlikely that a court would hold that Congress has ... authorized the NSA electronic surveillance operations here under discussion.”

Responding to the report, Justice Department spokesman Brian Roehrkasse said the activities “were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties.”

Balance of powers
The domestic monitoring has raised questions about the appropriate powers of Congress and the executive branch. Congress’ legal advisers are saying lawmakers should have a role in overseeing such activities.

Ken Bass, a Carter administration Justice Department official and an expert on the Foreign Intelligence Surveillance Act, said the issue of the president’s inherent power has remained unresolved for decades.

The White House’s analysis of presidential power is consistent with previous administrations, Bass said. But he said he didn’t know of an administration that had asserted authority for four years, as in the monitoring program, to delegate decisions normally requiring court orders to midlevel intelligence officials.

On Monday, Bush reasserted his authority to order the surveillance.

“The enemy is calling somebody, and we want to know who they’re calling and why,” Bush said in San Antonio, Texas. “And that seems to make sense to me, as the commander in chief, if my job is to protect the American people.”

Sen. Frank Lautenberg, D-N.J., who was among those who requested the research service’s memo, said it contradicts Bush’s claim that the program was legal.

“It looks like the president’s wiretapping was not only illegal, but likely targeted innocent Americans who did nothing more than place a phone call,” he said.

© 2005 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

http://www.msnbc.msn.com/id/10741787/

[Hurin_Rules]

And another article on the same report, but with a bit more information:


Report Questions Legal Basis for Bush's Spying Program

By ERIC LICHTBLAU
and SCOTT SHANE
Published: January 6, 2006
WASHINGTON, Jan. 6 - President Bush's rationale for authorizing eavesdropping on American citizens without warrants rests on questionable legal ground and "may represent an exercise of presidential power at its lowest ebb," according to a formal Congressional analysis released today.

The analysis, conducted by the Congressional Research Service, an independent research arm of Congress, is the first formal assessment of a question that has gripped Washington for the last three weeks: Did President Bush act within the law when he ordered the National Security Agency to eavesdrop on Americans?

While the Congressional report reached no bottom-line conclusions on whether the program is legal or not, it concluded that the legal rationale appears somewhat dubious. The legal rationale "does not seem to be as well-grounded" as the Bush administration's lawyers have suggested, and Congress did not appear to have intended to authorize warrantless wiretaps when it gave President Bush the authority to wage war against Al Qaeda in the days after the Sept. 11 attacks, the report concluded.

Bush administration lawyers quickly took issue with the report's conclusions, arguing that President Bush acted within his constitutional and statutory powers in approving the N.S.A. program.

"The president has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks," said Brian Roehrkasse, a spokesman for the Justice Department.

"As the attorney general has stated numerous times, the National Security Agency activities described by the president were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," Mr. Roehrkasse said.

But many Democrats and some Republicans said they found the doubts raised by Congressional report persuasive, pointing to it as another indication that President Bush may have overextended his authority in fighting terrorism.

Thomas H. Kean, the former chairman of the Sept. 11 commission, said he too doubts the legality of the program. Weighing in for the first time on the controversy, he said in an interview that the commission was never told of the operation and that he has strong doubts about whether it is authorized under the law.

Federal law under the Foreign Intelligence Surveillance Act, created in 1978, "gives very broad powers to the president and, except in very rare circumstances, in my view ought to be used," said Mr. Kean, a Republican and former governor of New Jersey. "We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances."

Opinions on the N.S.A. domestic spying issue have broken down largely, though not exclusively, along partisan lines, causing public rifts between the top Republicans and Democrats on both the House and Senate Intelligence Committees.

But the analyses of the Congressional Research Service, part of the Library of Congress, are generally seen as objective and without partisan taint, said Eleanor Hill, who served as a Congressional staffer for 17 years and was staff director of the joint Congressional inquiry into the Sept. 11, 2001, terrorist attacks.

"My experience is that they're well respected in the Senate and House," said Ms. Hill, now a Washington lawyer in private practice. "I don't remember anybody attacking them for being partisan. They're more academic in approach."

http://www.nytimes.com/2006/01/06/politics/06cnd-nsa.html?hp&ex=1136610000&en=00780be4858f8682&ei=5094&partner=homepage

[Pindar]

Hurin,


The analysis, conducted by the Congressional Research Service... Yet two attorneys in the organization’s legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees “does not seem to be as well-grounded as the tenor of that letter suggests.”


The National Security Agency’s activity “may present an exercise of presidential power at its lowest ebb,” Bazan and Elsea write in the 44-page memo.


Would you like me to explain some of the language used? This "may present an exercise of presidential power at its lowest ebb" is a direct reference to Justice Jackson's concurring opinion from: Youngstown Sheet and Tube Co. v. Sawyer (1952) Here's the quote the phrase comes from:

"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.."

This plays in nicely with what I have been arguing. Bazan and Elsea, while obviously having an opinion bowing to Congressional power (hardly surprising from the Congressional Research Service) they are wont to actually charge illegality. Why? Because they are aware of the traditional understanding of inherent Presidential power. Their stance is a problem because it assumes Congress is at odds with Presidential prerogative. The AUMF pushes the NSA issue toward a combined justification of both Legislative and Executive Constitutional power. Here is another quote from the same Jackson opinion to help explain the notion:

"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."

Of course there isn't just the AUMF that speaks toward this understanding there is also testimony like the following:

"As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities."
-Rep. Jane Harman, ranking Democrat on the House Intelligence Committee, Dec. 21

The above thus, also demonstrates the confluence of government action that undercuts the Bazan/Elsea stance.

To directly challenge the President's power to gathering foreign intelligence is going to be very difficult to argue legally. Not only is there the Constitutional power the President can appeal to which has been recognized by previous Presidencies and the courts going way back (this is what I have been focusing on as I think it is the clearest, most legally demonstrable position) but there is the added AUMF that makes any suggestion of governmental branch tension problematic. As I said before political bluster is one thing, but the legal issue is not difficult.

[Tribesman]

The issue has been whether the President could authorize warrantless surveillance.
No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .

[Xiahou]

The issue has been whether the President could authorize warrantless surveillance.
No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .Based on what? Supposition?

[Tribesman]

Based on what? Supposition?
No Xiahou , based on the fact that the administration has admitted that it has done so mistakenly or by technical errors .
Unless of course the administration is only basing those admitions on its own supposition .
That is what the judicial commitee is going to investigate , in case you missed it .~:rolleyes:

[Nerouin]

And gosh, you reverted right away to the oh-so-popular Backroom conservative tactic of equating attacks on the Bush administration with attacks on America then throwing a pity-party.



Don't let the door hit you in the arse on the way out.

And tell Don Corleone to come back if you see him. I miss the old fart...

~;p

And, gosh, I sure do love good old G. W. Bush, don't I? Well actually, the answer to that is ABSOLUTELY NOT. I believe he's the worst president in my lifetime, runs an incompetent administration that has spent so irresponsibly that the government cannot even help its own citizens with disaster relief, and that he and his Republicans represent a bonafide threat to the principles that the country stands on.

As for my opinion on the wiretap, it is best summed up in a quote by Benjamin Franklin: "Those who will sacrifice liberty to obtain a temporary security deserve neither liberty nor security."

I simply object to this being used as a platform for attack on the USA. Being Jewish, I am very sensitive to such things-- whenever a Jew does something bad, it's "the Jews are doing this," or "the Jews want that." This would seem to extend to every Jew on earth-- evidently in the mind of some, the 3 month old Jewish baby breast feeding from his mother is or will somehow be involved in the apparent Jewish plot to take over the world. Israel is, of course, the target of the same.

As such, I'm very against the same being applied to any group or country-- any country is full of very diverse people, and none can be classified. Just because a world leader does something bad does not mean that his country is 100% behind him or as a citizenry 100% responsible.

I suppose this was not an attack on the USA, but if it was, then this was my response.

[Lemur]

A slightly wider perspective on the wiretapping problem: (http://www.andrewsullivan.com/index.php?dish_inc=archives/2006_01_01_dish_archive.html#113656732293921758)


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?

[Pindar]

The issue has been whether the President could authorize warrantless surveillance.


No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .

Alas, no read the Times article again.


No Xiahou , based on the fact that the administration has admitted that it has done so mistakenly or by technical errors .
Unless of course the administration is only basing those admitions on its own supposition .

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.