Bush allowed NSA to spy within USA without warrants

[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.

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.

[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.

[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.

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... ) 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.

[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?

[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.

[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.

[Red Harvest]

You didn't answer my two questions.

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

[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 .

[Major Robert Dump]

Funny. In 2004 he was caught saying in a speech that "a wiretap requires a court order," and that "when we are talking about chasing down terrorists we're talking about getting a court order."

Guess its kind of like him saying whoever leaked the CIA name would be fired, then back pedaling when it looked like it was gonna be one of his boyz.

Lairs. They are all liars. I don't give two turds that others before him wiretapped, and the fact that he lies in his live speeches is indication that he lies in other areas, too.

[Goofball]

Funny. In 2004 he was caught saying in a speech that "a wiretap requires a court order," and that "when we are talking about chasing down terrorists we're talking about getting a court order."

Guess its kind of like him saying whoever leaked the CIA name would be fired, then back pedaling when it looked like it was gonna be one of his boyz.

Lairs. They are all liars. I don't give two turds that others before him wiretapped, and the fact that he lies in his live speeches is indication that he lies in other areas, too.

You make it sound like he lied about something really important, like availing himself of the services of a chubby intern for a round of hummer.

Why do you hate freedom so much MRD?

[Pindar]

No, that is not my stance. I have argued that the President has plenary authority to conduct foreign intelligence (including warrantless surveillance) based on his independent Constitutional purview and charge of office. The AUMF may enhance that charge (as it would then mean two branches of government were united in purpose) but the base authority of the President is distinct.

In post #270, I asked you:

"1. Are you arguing that the president could still have done wiretaps on US citizens, on phonecalls from US sites to US sites, without the congress's resolution authorizing him to use force in the War on Terror?"

Your response was "No."

Can you clear up this discrepancy?

I read your post the same way X did: US sites to US sites seems to suggest a domestic question. My statement above relates to foreign intelligence.

Again, you seem to be very widely applying the term 'foreign'. To be sure: are you arguing that the president could conduct warrantless wiretaps on communications both originating and ending in the USA if and only if there has been an authorization of force (AUMF)? Or does the president always have the constitutional authority to conduct warrantless surveillance, even if it is in the USA, on US citizens?

I don't think I've been widely applying the term foreign at all. As I noted earlier in the thread: foreign refers to that which is beyond U.S. Territory or non-U.S. citizens.

The President can conduct foreign intelligence any time irrespective of any act of Congress.
I believe the NSA Program is focused on communiqués coming into the U.S., but I think his authority may very well cover outbound Intel. also.

It seems to me that a communication from a US citizen to a US citizen originating and ending in the USA is not a 'foreign' communication.

I agree.

Actually, there's an easier answer here. While Redleg mentioned the constitutional amendment as a check/balance on an imperial presidency, Republican Senator Arlen Specter himself mentioned another today: impeachment.

Impeachment implies illegality. The President performing his Constitutional mandate is not acting illegally.

I'm wondering also where you think the president's authority ends.

The President's authority begins and ends with the Constitution.

I don't buy the argument that surveillance is included in force...

Then we have a fundamental difference in how we understand war. I don't know any conflicts where intelligence wasn't considered vital to the struggle. To me, such an omission would be tantamount to arguing any AUMF didn't included using weapons or transport to the theater of operations.

Could the president simply round up all the Muslims in the USA, declare them enemy combatants, and interrogate them for the next five years? Wouldn't this also be a use of force in the war on terror? This seems patently absurd.

Do you mean like Roosevelt did to Japanese-Americans in 1942 and purposefully evaded by SCOTUS in Hirabayashi v. United States (1943) and then affirmed by the Court in Korematsu v. United States in 44? Probably not. Of course, this is a separate issue.

[Hurin_Rules]

The President can conduct foreign intelligence any time irrespective of any act of Congress.
I believe the NSA Program is focused on communiqués coming into the U.S., but I think his authority may very well cover outbound Intel. also.

So if any purely domestic communications are being monitored, then the president has just broken the law?

There is lots of evidence that far more than just foreign communications are being monitored. The NSA is actually tapping into domestic communications networks. One reason Gonzalez et al. have suggested they decided to ignore FISA is the volume of emails they've been monitoring is so large they couldn't get the approval from the court on time. You're telling me that not a single one of these communications they've monitored has been a domestic one?

You have far more faith in a government that misled its people on Iraq's alleged WMDs, links to Al-Qaeda, etc. than I.

The President's authority begins and ends with the Constitution.

Is the fourth amendment, then, not also part of the constitution?

Then we have a fundamental difference in how we understand war. I don't know any conflicts where intelligence wasn't considered vital to the struggle. To me, such an omission would be tantamount to arguing any AUMF didn't included using weapons or transport to the theater of operations.

Interesting. So the second amendment and the AUMF are to be interpreted as widely as possible, but the fourth only as narrowly as possible. Why is that, exactly?

Authorizing force is authorizing force. If the government wanted to authorize a program of domestic surveillance that would clearly have been illegal otherwise, it would have done so. In fact, Gonzalez et al. have admitted that they tried to get congress to authorize the surveillance, but realized it probably would not pass congressional muster (from the initial reactions of some congressmen and women: http://cryptome.org/nsa-program.htm ). That's why they did it secretly, and simply ignored FISA.

There are lots of things that are necessary to win a war. But authorizing the use of force is not the same as authorizing a domestic spying program. You also have to keep up the soldier's morale to win a war. Would this authorize the US to start killing political dissenters within the US, since this would undermine the morale of the troops? Obviously not, since it would violate Americans' rights.

I'll say it again: authorization of the use of force is not a blank check.


On the issue of domestic/foreign communications:

Published on Saturday, December 24, 2005 by the New York Times
Spy Agency Mined Vast Data Trove, Officials Report
by Eric Lichtblau and James Risen

WASHINGTON - The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

The government's collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic "switches," according to officials familiar with the matter.

"There was a lot of discussion about the switches" in conversations with the court, a Justice Department official said, referring to the gateways through which much of the communications traffic flows. "You're talking about access to such a vast amount of communications, and the question was, How do you minimize something that's on a switch that's carrying such large volumes of traffic? The court was very, very concerned about that."

Since the disclosure last week of the N.S.A.'s domestic surveillance program, President Bush and his senior aides have stressed that his executive order allowing eavesdropping without warrants was limited to the monitoring of international phone and e-mail communications involving people with known links to Al Qaeda.

What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

The current and former government officials who discussed the program were granted anonymity because it remains classified.

Bush administration officials declined to comment on Friday on the technical aspects of the operation and the N.S.A.'s use of broad searches to look for clues on terrorists. Because the program is highly classified, many details of how the N.S.A. is conducting it remain unknown, and members of Congress who have pressed for a full Congressional inquiry say they are eager to learn more about the program's operational details, as well as its legality.

Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.

This so-called "pattern analysis" on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.

The use of similar data-mining operations by the Bush administration in other contexts has raised strong objections, most notably in connection with the Total Information Awareness system, developed by the Pentagon for tracking terror suspects, and the Department of Homeland Security's Capps program for screening airline passengers. Both programs were ultimately scrapped after public outcries over possible threats to privacy and civil liberties.

But the Bush administration regards the N.S.A.'s ability to trace and analyze large volumes of data as critical to its expanded mission to detect terrorist plots before they can be carried out, officials familiar with the program say. Administration officials maintain that the system set up by Congress in 1978 under the Foreign Intelligence Surveillance Act does not give them the speed and flexibility to respond fully to terrorist threats at home.

A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.

"All that data is mined with the cooperation of the government and shared with them, and since 9/11, there's been much more active involvement in that area," said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.

Such information often proves just as valuable to the government as eavesdropping on the calls themselves, the former manager said.

"If they get content, that's useful to them too, but the real plum is going to be the transaction data and the traffic analysis," he said. "Massive amounts of traffic analysis information - who is calling whom, who is in Osama Bin Laden's circle of family and friends - is used to identify lines of communication that are then given closer scrutiny."

Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.

Phil Karn, a computer engineer and technology expert at a major West Coast telecommunications company, said access to such switches would be significant. "If the government is gaining access to the switches like this, what you're really talking about is the capability of an enormous vacuum operation to sweep up data," he said.

© 2005 New York Times

http://www.commondreams.org/headlines05/1224-02.htm

[Pindar]

Funny. In 2004 he was caught saying in a speech that "a wiretap requires a court order," and that "when we are talking about chasing down terrorists we're talking about getting a court order."

My guess is you haven't read the speech. That speech was about the Patriot Act specifically roving wire taps. Roving is a direct reference to a type of warrant.

Guess its kind of like him saying whoever leaked the CIA name would be fired, then back pedaling when it looked like it was gonna be one of his boyz.

Has someone been found guilty?

Lairs. They are all liars. I don't give two turds that others before him wiretapped, and the fact that he lies in his live speeches is indication that he lies in other areas, too.

You sound like an angry guy. Don't worry American Idol is soon to start up again.

[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.

[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+

[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/servl...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.