Bush allowed NSA to spy within USA without warrants

[Hurin_Rules]

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

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

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

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

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

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

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

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

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

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

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

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

Lawmakers concerned
Lawmakers said they were concerned about the report.

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Hey Lucy, you got some 'splaining to do!

[Grey_Fox]

Not surprising.

[Proletariat]

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

[drone]

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

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

Don't know what his lawyer is confused about. Since the surveillance was questionable from a legal standpoint (and maybe classified as well), the prosecution probably figured it would be inadmissable and never brought it forward. They probably used the info to gain more concrete evidence under "legal" means.

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

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

[Xiahou]

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

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

[Gawain of Orkeny]

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

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

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

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

LINK

[Nerouin]

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



Hey Lucy, you got some 'splaining to do!

I'm sure this is to be used as rationale that the entire United States, and everything it stands upon and does, is evil, and furthermore that Israel is in the same category.

Wahoo.

Gosh, I've been back on this forum for 15 minutes and I'm already sick to my stomach. I think I'll leave for another 9 months.

[Goofball]

I'm sure this is to be used as rationale that the entire United States, and everything it stands upon and does, is evil, and furthermore that Israel is in the same category.

Wahoo.

Gosh, I've been back on this forum for 15 minutes and I'm already sick to my stomach.

And gosh, you reverted right away to the oh-so-popular Backroom conservative tactic of equating attacks on the Bush administration with attacks on America then throwing a pity-party.

I think I'll leave for another 9 months.

Don't let the door hit you in the arse on the way out.

And tell Don Corleone to come back if you see him. I miss the old fart...

[Hurin_Rules]

Independent legal analysts seem to view the case as a bit less 'open and shut' than we have been led to beleive:

Analysts: Bush spying rationale legally shaky
Memo questions use of presidential power in wiretapping without approval

Updated: 6:21 p.m. ET Jan. 6, 2006
WASHINGTON - A memorandum from two congressional legal analysts concludes that the administration’s justification for the monitoring of certain domestic communications may not be as solid as President Bush and his top aides have argued.

The Congressional Research Service, which advises lawmakers on a wide range of matters, said a final determination about the issue is impossible without a deeper understanding of the program and Bush’s authorization, “which are for the most part classified.”

Yet two attorneys in the organization’s legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees “does not seem to be as well-grounded as the tenor of that letter suggests.”


The National Security Agency’s activity “may present an exercise of presidential power at its lowest ebb,” Bazan and Elsea write in the 44-page memo.

Bush and his top advisers have defended the program, which allowed the highly secretive agency to eavesdrop without court approval on international calls and e-mails of people who were inside the United States and suspected of communicating with al-Qaida or its affiliates.

The Bush administration says it was legal under Article 2 of the Constitution, which grants presidential powers, and Congress’ September 2001 authorization to use military force to conduct the war on terror.

But the memo concludes: “It appears unlikely that a court would hold that Congress has ... authorized the NSA electronic surveillance operations here under discussion.”

Responding to the report, Justice Department spokesman Brian Roehrkasse said the activities “were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties.”

Balance of powers
The domestic monitoring has raised questions about the appropriate powers of Congress and the executive branch. Congress’ legal advisers are saying lawmakers should have a role in overseeing such activities.

Ken Bass, a Carter administration Justice Department official and an expert on the Foreign Intelligence Surveillance Act, said the issue of the president’s inherent power has remained unresolved for decades.

The White House’s analysis of presidential power is consistent with previous administrations, Bass said. But he said he didn’t know of an administration that had asserted authority for four years, as in the monitoring program, to delegate decisions normally requiring court orders to midlevel intelligence officials.

On Monday, Bush reasserted his authority to order the surveillance.

“The enemy is calling somebody, and we want to know who they’re calling and why,” Bush said in San Antonio, Texas. “And that seems to make sense to me, as the commander in chief, if my job is to protect the American people.”

Sen. Frank Lautenberg, D-N.J., who was among those who requested the research service’s memo, said it contradicts Bush’s claim that the program was legal.

“It looks like the president’s wiretapping was not only illegal, but likely targeted innocent Americans who did nothing more than place a phone call,” he said.

© 2005 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

http://www.msnbc.msn.com/id/10741787/

[Hurin_Rules]

And another article on the same report, but with a bit more information:

Report Questions Legal Basis for Bush's Spying Program

By ERIC LICHTBLAU
and SCOTT SHANE
Published: January 6, 2006
WASHINGTON, Jan. 6 - President Bush's rationale for authorizing eavesdropping on American citizens without warrants rests on questionable legal ground and "may represent an exercise of presidential power at its lowest ebb," according to a formal Congressional analysis released today.

The analysis, conducted by the Congressional Research Service, an independent research arm of Congress, is the first formal assessment of a question that has gripped Washington for the last three weeks: Did President Bush act within the law when he ordered the National Security Agency to eavesdrop on Americans?

While the Congressional report reached no bottom-line conclusions on whether the program is legal or not, it concluded that the legal rationale appears somewhat dubious. The legal rationale "does not seem to be as well-grounded" as the Bush administration's lawyers have suggested, and Congress did not appear to have intended to authorize warrantless wiretaps when it gave President Bush the authority to wage war against Al Qaeda in the days after the Sept. 11 attacks, the report concluded.

Bush administration lawyers quickly took issue with the report's conclusions, arguing that President Bush acted within his constitutional and statutory powers in approving the N.S.A. program.

"The president has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks," said Brian Roehrkasse, a spokesman for the Justice Department.

"As the attorney general has stated numerous times, the National Security Agency activities described by the president were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," Mr. Roehrkasse said.

But many Democrats and some Republicans said they found the doubts raised by Congressional report persuasive, pointing to it as another indication that President Bush may have overextended his authority in fighting terrorism.

Thomas H. Kean, the former chairman of the Sept. 11 commission, said he too doubts the legality of the program. Weighing in for the first time on the controversy, he said in an interview that the commission was never told of the operation and that he has strong doubts about whether it is authorized under the law.

Federal law under the Foreign Intelligence Surveillance Act, created in 1978, "gives very broad powers to the president and, except in very rare circumstances, in my view ought to be used," said Mr. Kean, a Republican and former governor of New Jersey. "We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances."

Opinions on the N.S.A. domestic spying issue have broken down largely, though not exclusively, along partisan lines, causing public rifts between the top Republicans and Democrats on both the House and Senate Intelligence Committees.

But the analyses of the Congressional Research Service, part of the Library of Congress, are generally seen as objective and without partisan taint, said Eleanor Hill, who served as a Congressional staffer for 17 years and was staff director of the joint Congressional inquiry into the Sept. 11, 2001, terrorist attacks.

"My experience is that they're well respected in the Senate and House," said Ms. Hill, now a Washington lawyer in private practice. "I don't remember anybody attacking them for being partisan. They're more academic in approach."

http://www.nytimes.com/2006/01/06/po...rtner=homepage

[Pindar]

Hurin,

The analysis, conducted by the Congressional Research Service... Yet two attorneys in the organization’s legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees “does not seem to be as well-grounded as the tenor of that letter suggests.”


The National Security Agency’s activity “may present an exercise of presidential power at its lowest ebb,” Bazan and Elsea write in the 44-page memo.

Would you like me to explain some of the language used? This "may present an exercise of presidential power at its lowest ebb" is a direct reference to Justice Jackson's concurring opinion from: Youngstown Sheet and Tube Co. v. Sawyer (1952) Here's the quote the phrase comes from:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.."

This plays in nicely with what I have been arguing. Bazan and Elsea, while obviously having an opinion bowing to Congressional power (hardly surprising from the Congressional Research Service) they are wont to actually charge illegality. Why? Because they are aware of the traditional understanding of inherent Presidential power. Their stance is a problem because it assumes Congress is at odds with Presidential prerogative. The AUMF pushes the NSA issue toward a combined justification of both Legislative and Executive Constitutional power. Here is another quote from the same Jackson opinion to help explain the notion:

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty."

Of course there isn't just the AUMF that speaks toward this understanding there is also testimony like the following:

"As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities."
-Rep. Jane Harman, ranking Democrat on the House Intelligence Committee, Dec. 21

The above thus, also demonstrates the confluence of government action that undercuts the Bazan/Elsea stance.

To directly challenge the President's power to gathering foreign intelligence is going to be very difficult to argue legally. Not only is there the Constitutional power the President can appeal to which has been recognized by previous Presidencies and the courts going way back (this is what I have been focusing on as I think it is the clearest, most legally demonstrable position) but there is the added AUMF that makes any suggestion of governmental branch tension problematic. As I said before political bluster is one thing, but the legal issue is not difficult.

[Nerouin]

And gosh, you reverted right away to the oh-so-popular Backroom conservative tactic of equating attacks on the Bush administration with attacks on America then throwing a pity-party.



Don't let the door hit you in the arse on the way out.

And tell Don Corleone to come back if you see him. I miss the old fart...

And, gosh, I sure do love good old G. W. Bush, don't I? Well actually, the answer to that is ABSOLUTELY NOT. I believe he's the worst president in my lifetime, runs an incompetent administration that has spent so irresponsibly that the government cannot even help its own citizens with disaster relief, and that he and his Republicans represent a bonafide threat to the principles that the country stands on.

As for my opinion on the wiretap, it is best summed up in a quote by Benjamin Franklin: "Those who will sacrifice liberty to obtain a temporary security deserve neither liberty nor security."

I simply object to this being used as a platform for attack on the USA. Being Jewish, I am very sensitive to such things-- whenever a Jew does something bad, it's "the Jews are doing this," or "the Jews want that." This would seem to extend to every Jew on earth-- evidently in the mind of some, the 3 month old Jewish baby breast feeding from his mother is or will somehow be involved in the apparent Jewish plot to take over the world. Israel is, of course, the target of the same.

As such, I'm very against the same being applied to any group or country-- any country is full of very diverse people, and none can be classified. Just because a world leader does something bad does not mean that his country is 100% behind him or as a citizenry 100% responsible.

I suppose this was not an attack on the USA, but if it was, then this was my response.

[Lemur]

A slightly wider perspective on the wiretapping problem:

The president has defined the theater of war as including the territory of the United States and including citizens of the United States; he has also defined the war as without end. So his war powers, although moderate in effect compared to what, say, Lincoln and FDR got away with, are exponentially more far-reaching. Because this war is forever, as Jon Rauch explains in his latest National Journal column (not online yet). And countless future presidents will be given the right to ignore, flout or finesse domestic law if they so wish. I wonder how many Republicans will object when president Hillary is wiretapping their private conversations. They'd better speak up now, hadn't they?

[Pindar]

The president has defined the theater of war as including the territory of the United States and including citizens of the United States; he has also defined the war as without end. So his war powers, although moderate in effect compared to what, say, Lincoln and FDR got away with, are exponentially more far-reaching. Because this war is forever, as Jon Rauch explains in his latest National Journal column (not online yet). And countless future presidents will be given the right to ignore, flout or finesse domestic law if they so wish. I wonder how many Republicans will object when president Hillary is wiretapping their private conversations. They'd better speak up now, hadn't they?

A new player to the table, Hello

Actually a theater of war is wherever there is combat. Given most take 9/11 as the formal divide between what was before and an American response, U.S. Territory is implicitly a theater of war. (one could also argue this applies wherever the show "American Idol" or one of its cousins is on the air or scheduled.)

As far as the end of war: that occurs when there is victory. Whether that takes 5 years like WWII, 8 years like the Revolutionary War, or 27 years like the Peloponnesian War is not relevant.