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Thread: Bush allowed NSA to spy within USA without warrants

  1. #271
    Mad Professor Senior Member Hurin_Rules's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Thanks, Pindar.

    A few follow ups then, if I may.

    You seem to be arguing, then, that only the AUMF gave the president the authority to conduct the specific type of wiretaps I mentioned. I find it hard to believe that the congressmen and women who authorized force believed that the type of surveillance in question constituted 'military force'. Maybe you could walk me through the argument here that maintains that 'surveillance' is 'force'?

    The congressional research service specifically called this argument into question:

    The report was particularly critical of a central administration justification for the program, that Congress had effectively approved such eavesdropping soon after the Sept. 11, 2001, attacks by authorizing "all necessary and appropriate force" against the terrorist groups responsible. Congress "does not appear to have authorized or acquiesced in such surveillance," the report said, adding that the administration reading of some provisions of federal wiretap law could render them "meaningless."
    Here's the full article:

    http://www.nytimes.com/2006/01/07/politics/07nsa.html


    Quote Originally Posted by Pindar
    This is a big question. Regardless the theoretically strained position Judicial Review occupies, it has become normative in American Jurisprudence. Therefore should SCOTUS rule the President or any branch of government does not hold power X or should do Y this has typically led to compliance from the other branches. A SCOTUS ruling can reverse a previous SCOTUS ruling or go counter to all previous understanding of a law or legal principle. There are examples of this though it is not considered the norm. If SCOTUS were to directly challenge the President's right to gather foreign intelligence in order to protect the nation a couple of possibilities arise. One, the President backs down. Two, the President refuses to recognize any SCOTUS authority to speak to his principle charge of office. If the second were to happen it would mean a Constitutional crises.
    Well that's quite interesting too: the president claims a power, SCOTUS denies he has it. There's no check or balance inherent in the system to resolve this?
    Last edited by Hurin_Rules; 01-11-2006 at 21:24.
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  2. #272
    Feeding the Peanut Gallery Senior Member Redleg's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Hurin_Rules
    Well that's quite interesting too: the president claims a power, SCOTUS denies he has it. There's no check or balance inherent in the system to resolve this?
    Yes there is - the Legislative Body steps in and drafts a constitutional amendment to either grant or prevent the Executive Branch that spefic power.
    O well, seems like 'some' people decide to ruin a perfectly valid threat. Nice going guys... doc bean

  3. #273
    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Hurin_Rules
    Thanks, Pindar.

    A few follow ups then, if I may.
    Sure.

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

    I find it hard to believe that the congressmen and women who authorized force believed that the type of surveillance in question constituted 'force'. Maybe you could walk me through the argument here that maintains that 'surveillance' is 'force'?
    Let me quote from Omnibus Crime Control and Safe Streets Act of 1968:

    "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."

    The argument would be: the use of force involves waging war, in short killing. In order to wage war effectively (know who and what to kill) and thereby win, intelligence is essential. Therefore implicit in any implementation of force is the intelligence gathering to use that force. If I recall, I think the Hamdi case actually uses language very similar to what I just noted.


    The congressional research service specifically called this argument into question:
    Actually I think the 44 page report is more circumspect. The CRS noted:

    Most of the report centers its rhetoric around conditionals like: "might be contended that," "might be argued", "given such uncertainty", "does not seem to be as well-grounded as the tenor of that (Dept. of Justice) letter suggests" etc. Such is not the stuff of a strong legal argument. Then when the CRS report is compared with the actual case history things start to look even worse. The CRS Report even noted:

    "Court cases evaluating the legality of warrantless wiretaps for foreign intelligence purposes provide some support for the assertion that the President possesses inherent authority to conduct such surveillance."

    In fact, there are no cases that are exceptions. The legal history is consistent.


    Well that's quite interesting too: the president claims a power, SCOTUS denies he has it. There's no check or balance inherent in the system to resolve this?
    The Constitution was designed with an inherent tension as each branch derives its basic authority from the text itself. Judicial Review is not something actually in the Constitution. It is a power the Court has assumed and tradition has adhered to, but in principle is problematic. Even so, if there were some scenario where the Court directly confronted the President over base Constitutional powers and the President rejected their stance, there is the third branch of government that could weigh in as Redleg described.
    Last edited by Pindar; 01-12-2006 at 18:14.

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  4. #274
    Mad Professor Senior Member Hurin_Rules's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Just got back in town. I've read your posts and will respond to it in more detail once I've settled in--I don't think the argument that 'surveillance' is included in the authorization of 'force' is very strong (you find it compelling, do you?), and in fact even Republican senator and former federal prosecutor Specter seems to have rejected that argument--but I thought I'd post this article I happened upon right now.

    I'm just wondering how a former federal prosecutor and chairman of the senate judiciary committee could be so wrong on an open and shut case :) Does he perhaps have access to information that we do not?

    Specter Expresses Doubts About Surveillance Program

    By BRIAN KNOWLTON,
    International Herald Tribune
    Published: January 15, 2006
    WASHINGTON, Jan. 15 - The chairman of the Senate Judiciary Committee expressed new doubts today about President Bush's domestic surveillance program, even mentioning impeachment as one of several potential remedies, should the president be found to have violated the law.

    The chairman, Senator Arlen Specter, Republican of Pennsylvania, couched his comment carefully, noting that while it was a theoretical possibility, "I don't see any talk about impeachment here."

    Criminal prosecution was another possibility, he said, while the most likely outcome was simply that Mr. Bush might pay a political cost among those who believed Americans' right to privacy was being infringed.

    But the fact that a senior Republican - let alone the Judiciary Committee chairman -- would even mention the possibility of a president of his own party being impeached was striking, appearing to underscore Mr. Specter's deep unhappiness over the program.

    That sentiment is shared by a number of lawmakers of both parties, while others have stoutly defended the measure as necessary to defend against terrorism.

    The New York Times reported last month that after the terror attacks of Sept. 11, 2001, President Bush had empowered the National Security Agency to bypass a special court established by Congress to handle sensitive intelligence matters and to electronically eavesdrop on people in the United States believed to be communicating with terror suspects abroad.

    Senator Specter initially raised strong objections after the Times's account was published in December, questioning Bush administration arguments that the special court moved too slowly at times when security officials were seeking to prevent potentially disastrous attacks.

    Mr. Bush and other administration officials have asserted that a Congressional resolution passed after Sept. 11, authorizing the use of force to combat terrorism, provided legal justification for the surveillance program.

    "I thought they were wrong," Mr. Specter said today on ABC, while allowing that a president's wartime powers are "a knotty question."

    Senator Specter plans to hold open Judiciary Committee hearings early next month on the program. The White House at first opposed hearings, but on Wednesday, Mr. Bush said that a public airing of the question would be "good for democracy," so long as the hearings did not "tell the enemy what we're doing."

    The Pennsylvania senator said today that he did not question that "the president is making a good-faith effort" to fight terrorism as he deemed best.

    Still, the senator said, "we're not going to give him a blank check, and just because we're of the same party doesn't mean we're not going to look at this very closely."

    Mr. Specter, a former federal prosecutor, has often taken positions independent of the Bush administration.

    Last year, Republicans threatened to block his rise to the Judiciary Committee chairmanship after he said that he doubted that a Supreme Court nominee who strongly opposed abortion rights could win confirmation. He overcame that opposition by promising to hold prompt hearings for Bush's nominees, as he has since done.

    The senator last week questioned the latest of those nominees, Samuel Alito, about his abortion views, but failed to receive the firm statement he sought that Judge Alito would not seek to overturn the 1973 Roe v. Wade ruling establishing abortion rights.

    Senator Specter infuriated many Republicans in 1987 by voting against the Supreme Court nomination of Judge Robert Bork, an abortion opponent.

    http://www.nytimes.com/2006/01/15/po...rtner=homepage
    The comment about not giving the president a 'blank check' seems, IMHO, to me reminiscent of Justice O'connor's statments that an authorization of war doesn't give the president a blank check to infringe on civil liberties.
    Last edited by Hurin_Rules; 01-16-2006 at 00:48.
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  5. #275
    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Hurin_Rules
    Just got back in town. I've read your posts and will respond to it in more detail once I've settled in--I don't think the argument that 'surveillance' is included in the authorization of 'force' is very strong (you find it compelling, do you?), and in fact even Republican senator and former federal prosecutor Specter seems to have rejected that argument--but I thought I'd post this article I happened upon right now.

    I'm just wondering how a former federal prosecutor and chairman of the senate judiciary committee could be so wrong on an open and shut case :) Does he perhaps have access to information that we do not?
    I think the President can conduct foreign surveillance regardless of war. It is part of his charge to protect the nation.

    Any authorization of force includes intelligence gathering as an essential aspect of conducting military affairs. I think this is obvious.

    Specter is wrong about a great many things. The more you know the fellow the more this becomes apparent.

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  6. #276
    Mad Professor Senior Member Hurin_Rules's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by 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?

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

    It seems to me that a communication from a US citizen to a US citizen originating and ending in the USA is not a 'foreign' communication. Association with terrorism by itself does not make someone a 'foreigner'. I think we all remember Timothy McVeigh.


    The Constitution was designed with an inherent tension as each branch derives its basic authority from the text itself. Judicial Review is not something actually in the Constitution. It is a power the Court has assumed and tradition has adhered to, but in principle is problematic. Even so, if there were some scenario where the Court directly confronted the President over base Constitutional powers and the President rejected their stance, there is the third branch of government that could weigh in as Redleg described.

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


    I'm wondering also where you think the president's authority ends. I don't buy the argument that surveillance is included in force (and neither, apparently, do the legislators who voted for it). Could the president simply round up all the Muslims in the USA, declare them enemy combatants, and interrogate them for the next five years? Wouldn't this also be a use of force in the war on terror? This seems patently absurd.
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    The very model of a modern Moderator Xiahou's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Hurin_Rules
    In post #270, I asked you:


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

    Your response was "No."

    Can you clear up this discrepancy?
    I'm sure Pindar can straighten me out if I'm wrong here- but there is no discrepancy. In 270 you asked about wholly domestic survelliance- whereas in his recent post he pretty clearly said foreign.

    Actually, there's an easier answer here. While Redleg mentioned the constitutional amendment as a check/balance on an imperial presidency, Republican Senator Arlen Specter himself mentioned another today: impeachment.
    Chances of either happening? About 0%
    Honestly though, all we've been led to believe so far is that the survelliance has been between foreign sources communicating with a domestic source. If that's all we're dealing with than this whole "scandal" is a total non-issue.

    Now, if Bush authorized wholly domestic warrantless survelliance it'll take some fancy foot work to dodge all repurcussions, but it'll still never rise to the level of actual impeachment as other presidents have done and have claimed the authority to do the same thing- most recently Clinton when he authorized warrantless wiretaps and searches of Aldrich Ames (who later pled guilty to spying). Further, allegations of authorization of wholly domestic survelliance is still only speculation at this point.

    I'll leave the rest for Pindar since it was directed at him anyway- I just felt the need to chime in.
    Last edited by Xiahou; 01-17-2006 at 07:53.
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  8. #278

    Default Re: Bush allowed NSA to spy within USA without warrants

    Your response was "No."

    Can you clear up this discrepancy?


    Good luck Hurin , Pindar doesn't want to address discrepancies that go beyond the basic "foriegn" set up , that isn't the issue dontchaknow

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    Mad Professor Senior Member Hurin_Rules's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Xiahou
    I'm sure Pindar can straighten me out if I'm wrong here- but there is no discrepancy. In 270 you asked about wholly domestic survelliance- whereas in his recent post he pretty clearly said foreign.
    But I was clearly refereing to domestic wiretaps-- it was in the next post (271), and I said explicitly 'the specific type of wiretaps I mentioned'. So they can't be the same.

    Chances of either happening? About 0%
    Honestly though, all we've been led to believe so far is that the survelliance has been between foreign sources communicating with a domestic source. If that's all we're dealing with than this whole "scandal" is a total non-issue.
    Actually, we know he got telecom companies to collaborate with tapping into their networks to monitor emails. We have no way of knowing where these emails originated from or went to. It seems that domestic emails were lumped in with foreign as well.
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    The very model of a modern Moderator Xiahou's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Hurin_Rules
    Actually, we know he got telecom companies to collaborate with tapping into their networks to monitor emails. We have no way of knowing where these emails originated from or went to. It seems that domestic emails were lumped in with foreign as well.
    The email thing does ring a bell- got any links on it? I'd like to read the specific claims... However, my guess would be that they're also covered under NSLs (National Security Letters- which I'm uncomfortable with, but are legal).

    On a related sidenote- no one should have any real expectation of privacy when they send/recieve emails. I know for a fact that many places actively monitor incoming and outgoing email of their employees/students/whatever. If you really want some level of privacy- encrypt them (for what it's worth).
    Last edited by Xiahou; 01-17-2006 at 18:40.
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    smell the glove Senior Member Major Robert Dump's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    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.
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    Dyslexic agnostic insomniac Senior Member Goofball's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by 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.
    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.

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  13. #283
    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    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.

    Quote Originally Posted by Hurin_Rules
    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.
    Last edited by Pindar; 01-17-2006 at 18:55.

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  14. #284
    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Tribesman
    Your response was "No."

    Can you clear up this discrepancy?


    Good luck Hurin , Pindar doesn't want to address discrepancies that go beyond the basic "foriegn" set up , that isn't the issue dontchaknow
    Your still supposed to be in the penalty box for too many vacuous comment violations.

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  15. #285

    Default Re: Bush allowed NSA to spy within USA without warrants

    Ah well , not long now till they will find out if the mistakes and technical glitches that led to purely domestic spying being carried out under a foriegn spying program was intentional or not and just how illegal and far reaching such actions were .

    But you don't want to address that do you .

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    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by 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."
    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.

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    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Tribesman
    Ah well , not long now till they will find out if the mistakes and technical glitches that led to purely domestic spying being carried out under a foriegn spying program was intentional or not and just how illegal and far reaching such actions were .

    But you don't want to address that do you .
    There is nothing to address. Box!

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  18. #288

    Default Re: Bush allowed NSA to spy within USA without warrants

    There is nothing to address. Box!
    Yeah right

    Oh look there is a spying program
    the foriegn spying program is legal
    Oh look , the spying has strayed beyond its foriegn stipulations .
    the foriegn spying program is legal
    Oh look the administration has said that it has mistakenly gone beyond its remit
    the foriegn spying program is legal
    Oh look , while reassuring the people that there is a system of checks and balances on the program it appears that they have avoided those checks and balances on occasion
    the foriegn spying program is legal
    Oh look , the DAs office is questioning the legality of certain aspects of the operation
    the foriegn spying program is legal
    Oh look , a judge involved in the program is saying it is going beyond its legal bounds
    the foriegn spying program is legal
    Oh look , the oversight commitee is questioning the legality of aspects of the operation .
    the foriegn spying program is legal
    Oh look , they are having a hearing into how and why this program may be operating illegaly .
    the foriegn spying program is legal

    There is plenty to address Pindar , but you won't .
    Luckily there is an judicial oversight committe who will

  19. #289
    The very model of a modern Moderator Xiahou's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Tribesman
    Ah well , not long now till they will find out if the mistakes and technical glitches that led to purely domestic spying being carried out under a foriegn spying program was intentional or not and just how illegal and far reaching such actions were .

    But you don't want to address that do you .
    Yes, let's all speculate about things that we have no reason yet to think happened. Clearly we can't stick to the known facts- they don't leave enough room to bash the administration.

    Perhaps Pindar would also like to address the legality of the allegations that Bush eats babies and small children?
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    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Tribesman
    There is nothing to address. Box!
    Yeah right

    Oh look there is a spying program
    the foriegn spying program is legal
    Oh look , the spying has strayed beyond its foriegn stipulations .
    the foriegn spying program is legal
    Oh look the administration has said that it has mistakenly gone beyond its remit
    the foriegn spying program is legal
    Oh look , while reassuring the people that there is a system of checks and balances on the program it appears that they have avoided those checks and balances on occasion
    the foriegn spying program is legal
    Oh look , the DAs office is questioning the legality of certain aspects of the operation
    the foriegn spying program is legal
    Oh look , a judge involved in the program is saying it is going beyond its legal bounds
    the foriegn spying program is legal
    Oh look , the oversight commitee is questioning the legality of aspects of the operation .
    the foriegn spying program is legal
    Oh look , they are having a hearing into how and why this program may be operating illegaly .
    the foriegn spying program is legal

    There is plenty to address Pindar , but you won't .
    Luckily there is an judicial oversight committe who will
    Assertion is not an argument.

    Box!

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  21. #291
    RIP Tosa, my trolling end now Senior Member Devastatin Dave's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Xiahou
    Yes, let's all speculate about things that we have no reason yet to think happened. Clearly we can't stick to the known facts- they don't leave enough room to bash the administration.

    Perhaps Pindar would also like to address the legality of the allegations that Bush eats babies and small children?
    Unfortunately, Pindar will probably have eventually considering the sentiment on these boards!!! Poor Pindar, or shall I say, poor people arguing with him, I would never try to argue with him!!!
    RIP Tosa

  22. #292

    Default Re: Bush allowed NSA to spy within USA without warrants

    Yes, let's all speculate about things that we have no reason yet to think happened. Clearly we can't stick to the known facts- they don't leave enough room to bash the administration.
    The White House and the NSA have both said they happened Xiahou .
    That means they are known facts , unless you think they lied when they said that they had happened .
    Oh but why would they lie to say that they had indeed broken the limits of the lawful operations .
    Ahhhh...I see now , clever buggers , they are admitting breaking the guidlines so that everyone thinks they are lying and havn't really broken the guidelines at all

    One of the things the forthcoming inquiry will determine hopefully is how they happened , why they happened and what can be done to make sure they don't happen again .


    Assertion is not an argument.

    Oh I forgot you are not interested in any of that as your issue is solely
    the foriegn spying program is legal

    Alledged violations of that program that are to be investigated are of absolutely no interest to you because .....
    the foriegn spying program is legal

  23. #293
    The very model of a modern Moderator Xiahou's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Tribesman
    Yes, let's all speculate about things that we have no reason yet to think happened. Clearly we can't stick to the known facts- they don't leave enough room to bash the administration.
    The White House and the NSA have both said they happened Xiahou .
    That means they are known facts , unless you think they lied when they said that they had happened .
    Seriously? They both said the 'glitch' you're referring to was totally intentional and authorized by Bush? Man... you'd think that would've made the news here.
    "Don't believe everything you read online."
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  24. #294

    Default Re: Bush allowed NSA to spy within USA without warrants

    Xiahou , if you can't face facts then that is up to you , keep your head buried in the sand if that makes you more comfortable .
    If you don't listen to your government and its agencies public statements then how can you question their content . If you have listened to them then how can you attempt to deny that they are a fact .

    Or in this case ...They both said the 'glitch' you're referring to was totally intentional and authorized by Bush?
    Oh look you cannot refute my statement so you make one up to refute ? very clever

  25. #295
    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Tribesman,

    You are confusing multiple posting with substance. This is a mistake. If you have a legal argument to make about the NSA program do so. If you do not then continued posting of the former caliber only makes it appear there are certain cognitive issues. Assertions have no value. Speculation is by definition non-definitive. The only way to properly discuss the issue is by direct appeal to the law as it relates to the Administration's stated policy. As there is nothing to indicate the policy was other than what has been put forward there is no other rational approach. Note: the penalty box is actually for your protection.

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  26. #296
    Senior Member Senior Member Reenk Roink's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Devastatin Dave
    Poor Pindar, or shall I say, poor people arguing with him, I would never try to argue with him!!!
    Touche

  27. #297

    Default Re: Bush allowed NSA to spy within USA without warrants

    Speculation is by definition non-definitive.

    As there is nothing to indicate the policy was other than what has been put forward there is no other rational approach.
    Pindar , it is acknowledged that aspects of the program have not been followed as they were supposed to be , those aspects are being investigated , there is no speculation in that .
    Your position is that the stated policy is sound legally , fine I have no issue with that .
    The issue I have is that the agency has strayed beyond the legally sound stated policy . There is no speculation in that as it is acknowledged by the agency itself .

    If there was speculation on my part then I would be putting forward ideas as to how , why and on whose authority the program has gone beyond its legal boundries .
    I havn't done that have I ?
    I am happy to wait for the judicial committe to investigate that . So where is this speculation you mention ?

  28. #298
    A very, very Senior Member Adrian II's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    As I wrote in the other NSA thread started by KafirChobee, part of the problem with the NSA is that it doesn't work as it is supposed to. If it does it causes one set of risks, if it doesn't it causes another set of risks. Those who are familiar with the work of James Bamford, James Risen, David Banisar, Mark Urban and others on Echelon will be aware of this intelligence paradox underlying the discussion.

    The paradox results from the enormous eavesdropping capability of the NSA, which is at odds with its limited capacity to analyse and operationalise any data thus gathered. Its eavesdropping efficiency depends on the unequalled width and depth of its 'dragnet'. Yet, the very width and depth of the dragnet prevent a timely or even adequate analysis of data for operational purposes. Furthermore, it precludes the separation of data of foreign and domestic origin in an ongoing investigation. The net result is the following.

    Apart from the clear risks of abuse (such as the blackmailing of the very politicians involved in checking or investigating the NSA) there is an obvious risk of information overload that endangers the efficiency of U.S. intelligence rather than improving it, if only because it provides a false sense of security.

    I found an op-ed this morning that reflects some of the legal and technical issues and their implications, one of which appears to be that FISA is no longer adequate to take these issues into account. Not because it is too cumbersome, as Bush c.s. would have it, but because it is an insufficient check on the invasion of privacy resulting from the width and depth of the Echelon system. Rather than bypassing the law, the Administration should amend it or propose new legislation.

    Why Run Around the Low-Hurdle of FISA?

    Wed, 11 Jan 2006

    by Ray McGovern

    The unanswered questions of why the White House skirted the FISA law

    If you were Christmas shopping on December 19, you may have missed an important press conference. Attorney General Alberto Gonzales and Deputy Director of National Intelligence Gen. Mike Hayden answered questions about eavesdropping on Americans by the National Security Agency, which Hayden directed from 1999 to 2005, in violation of the Foreign Intelligence Surveillance Act (FISA). More Kabuki dance than press conference, the event was not given much play in the media. However, the implications for privacy—and for our constitutional system of checks and balances—are immense. We do well to explore those implications.

    As long as he read from his script, Attorney General Gonzales did just fine with the press on Dec. 19. He conceded that FISA requires a court order to authorize the surveillance the president ordered NSA to undertake. But then he hammered home the administration’s “legal analysis;” namely, the twin argument that Congress’ post 9/11 authorization of force and the president’s power as commander in chief trump the legal constraints of FISA.

    Spilling the Beans

    When the reporters’ questions began, Gonzales faltered and unwittingly got down to the crux of the matter. Asked why the administration decided to flout rather than amend FISA, Gonzales said:

    “We have had discussions with Congress…as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

    So they went ahead with the new eavesdropping program anyway.

    Gen. Hayden’s remarks were equally intriguing: He conceded that the special program authorized by the president was “more aggressive than would be traditionally available under FISA,” but stressed repeatedly that the new program deals only with international calls for short periods of time. In other words, Hayden implied, U.S. citizens are monitored only sometimes—and just a little, so we are dealing with tiny incompatibilities with the FISA law, and, besides, the president has said he has the authority anyway.

    FISA Flexible

    Hayden and Gonzales both stressed the need for “speed and agility.” But, as Lyndon Johnson was fond of saying, “That dog won’t hunt.” The FISA law contains intentionally flexible provisions designed to provide speed and agility in expediting emergency requests. The law grants the attorney general enormous power and discretion to authorize secret “emergency” electronic surveillance and physical searches for up to 72 hours, before any court order is granted. No court order at all is required if the surveillance is terminated before the 72-hour period ends. The FISA court itself may be the most expensive rubber stamp in government. Between 1978 and 2002, the court approved almost every one of the 15,000 search warrant requests, and it continues to approve 99 percent of requests.

    So why did the Bush administration order NSA to skirt the FISA law? Could it be because it was carefully crafted not only to give government wide latitude to move quickly, but also to protect citizens’ Fourth Amendment rights to freedom from illegal search and seizure? This remains the $64 question. All the likely answers are deeply troubling.
    Is it Simply Power-Grab and Chutzpah?...

    The most cynical and, I fear, the most persuasive answer can be gleaned from Vice President Cheney’s recent open assertion—supported, no doubt, by a stack of in-house legal opinions, that in war time the president “needs to have his powers unimpaired.” As noted above, on Dec. 19, Gonzalez invoked the “inherent authority under the Constitution” of the commander-in-chief, as well as the equally ludicrous claim that Congress’ authorization of war after 9/11 trumps FISA—a claim that even the regime-friendly Washington Post has termed “impossible to believe.”

    Ludicrous, but not funny. These extreme views are the same ones that underpin the president’s decision to flout international and U.S. criminal law by approving practices like torture, until now almost universally banned by civilized societies. The answer may be simple—“imperial hubris,” one might call it. And if—as seems to be the case—senior leaders like Colin Powell meekly acquiesce in torture and Gen. Mike Hayden in illegal eavesdropping, shame on them. This would merely show, once again, that absolute power truly does corrupt absolutely—indeed, that even closeness to absolute power can.

    ...Or Is It Physics and Volume?

    At the press conference on Dec. 19, the attorney general issued a pointed reminder that there have been “tremendous advances in technology” since FISA was passed in 1978. He thus hinted that the problem is largely a technological one—a function of the availability of new, highly sophisticated technologies and the physics of the challenge NSA faces in dealing with the huge volume of intercept material collected. Recent press reports on the volume of communications being monitored by NSA suggest that the number is so high as to be technically or practically impossible to seek approval of as individual FISA “emergencies,” as the law requires. Consistently high numbers of monitored communications could have trouble passing muster as “emergencies” even at the docile FISA court, for the exceptions would quickly swallow the rule.

    But if that were the problem, why did the administration not try to amend the law or pass a new one? Is that not what government lawyers are for; i.e., to devise ways to make such things legal, if they can persuade Congress to go along? And in the post 9/11 atmosphere, when the draconian measures in the so-called Patriot Act were passed so easily, were not the prospects excellent that Congress would approve?

    The inescapable conclusion is that what the authorities sought were so far-reaching that even the post 9/11 Congress would have balked. As Attorney General Gonzales has indicated, initial soundings on the Hill indicated that the prospect was poor for approval of what would have been a bold request for vacuum-cleaner-type authority for NSA to suck up communications—including those to and from Americans—from wires and the ether. That appears to have been the rub—that, plus deep reluctance to invite any congressional attention, much less scrutiny, to the program. All this would help explain why there is no sign of any serious effort on the administration’s part to amend the law. Instead, administration officials fell back on the “anyway” rationalization; i.e., the notion pushed by top administration lawyers that the president has the power to authorize eavesdropping anyway.

    Concerns

    The vast quantity of communications reportedly intercepted by NSA under this special program (New York Times reporter James Risen says “roughly 500 people in the U.S. every day over the past three or four years”) makes suspect the president’s claim that all of the monitored communications have some link to al-Qaeda or other terrorists. If he is telling the truth, we are indeed in serious trouble.

    A primary concern is that, among the groups of American citizens most likely to be sucked up by the NSA’s vacuum cleaner—because of the nature of their work and their international calls/contacts—are members of Congress and journalists. A key question that raises its ugly head is this: If hundreds of calls and e-mails involving Americans are being intercepted each and every day, and juicy tidbits are learned about, say, prominent officials or other persons, there will be an almost irresistible temptation to make use of this information. Former FBI special agent Coleen Rowley who for many years monitored court-authorized electronic surveillances and wiretaps relating to organized criminal and drug conspiracy groups, recently underscored how much one can learn about someone by listening in on his/her private communications. She reminds us that the blackmail potential is clear.

    What if some dirt could be dredged up, for example, on Arlen Specter, chair of the Senate Judiciary Committee? If some embarrassing material could be unearthed, might he be persuaded to drop his play to hold hearings on the eavesdropping program?

    Ample Precedent for Blackmail

    For those of you with no trace of gray in your hair, please know that federal government has a long history of using such monitoring and break-in authority for such purposes. J. Edgar Hoover was adept at using information so acquired not only to pursue those he suspected of Communist or “Un-American” activities, but also to maintain his power and influence for 47 years over Presidents, members of Congress, and other power brokers. The FBI’s COINTELPRO activity’s use of such information to harass and discredit Dr. Martin Luther King, Jr. is a particularly glaring example of such abuse. And Nixon’s access to such information gave him the inside track on how to neutralize those on his long “enemies list.”

    Think about it. Would you trust a Karl Rove, a Dick Cheney, an Elliot Abrams, a Roberto Gonzales, an I. Lewis Libby, a David Addington, or a John Bolton with such information? With the obsequious example set by Gen. Hayden, no director of NSA is likely to keep it from them. What might they be likely to do with it?

    Abuse of private information can be even more dangerous than the loss of the personal privacy that so many say they are willing to trade for a bit more security. Rather, such abuse constitutes serious trammeling of civil liberties and—still worse—can tip the precarious balance of constitutional checks and balances. It was, after all, precisely because of such abuses that the FISA law was passed in the first place.

    Ray McGovern works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. He is on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS), and has a chapter “Sham Dunk: Cooking Intelligence for the President” in the recently published collection on the Iraq war, Neo-CONNED Again. A shorter version of this article has appeared on tompaine.com.
    The bloody trouble is we are only alive when we’re half dead trying to get a paragraph right. - Paul Scott

  29. #299
    Mad Professor Senior Member Hurin_Rules's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Pindar

    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
    Last edited by Hurin_Rules; 01-18-2006 at 19:58.
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  30. #300
    Master of the Horse Senior Member Pindar's Avatar
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    Default Re: Bush allowed NSA to spy within USA without warrants

    Quote Originally Posted by Tribesman

    Pindar , it is acknowledged that aspects of the program have not been followed as they were supposed to be , those aspects are being investigated , there is no speculation in that .
    Your position is that the stated policy is sound legally , fine I have no issue with that .
    The issue I have is that the agency has strayed beyond the legally sound stated policy . There is no speculation in that as it is acknowledged by the agency itself .
    Unless you want to argue it was systemic and intentional then there is no issue.

    If there was speculation on my part then I would be putting forward ideas as to how , why and on whose authority the program has gone beyond its legal boundries .
    I havn't done that have I ?
    I am happy to wait for the judicial committe to investigate that . So where is this speculation you mention ?
    Read my post again. I made no accusations: I did qualify the parameters of discussion.

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    "The secret of Happiness is Freedom, and the secret of Freedom, Courage." -Thucydides

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