More Power To Whom?

It appears that United States Code Chapter 36, Subchapter 1, Sections 1801-1811 is more appropriate to the matter of intelligence agency surveillance than is Executive Order 12333. Read the definitions of the highlighted words (§ 1801) before reading "Electronic surveillance authorization without court order; certification by Attorney General..." (§ 1802):

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title;

or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

Here's § 1808, "Report of Attorney General to Congressional committees; ...":

(1) On a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence concerning all electronic surveillance under this subchapter. Nothing in this subchapter shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.

(2) Each report under the first sentence of paragraph (1) shall include a description of—

(A) each criminal case in which information acquired under this chapter has been passed for law enforcement purposes during the period covered by such report; and

(B) each criminal case in which information acquired under this chapter has been authorized for use at trial during such reporting period.

(All emphasis mine.)

The last release date of this subchapter of this law was March 17, 2005.

Some of this is legalese and open to a small bit of interpretation. Can the NSA activities which the AP and the New York Times publicized be interpreted as illegal? Maybe. And, if they can, are the members of both the House and Senate Select Committees on Intelligence claiming that Preisdent Bush's Attorneys General--John Ashcroft and Alberto Gonzales--have failed to inform them of the NSA's activities? Yes? No? Assuming that these members of congress knew about the program and since they are encouraged--no, legally charged to wield their authority and be mindful of their responsibilities in all intelligence matters, one would think that someone would cry "foul" on any type of surveillance that might be illegal. Right? Because, after all, people like Senate Select Committee on Intelligence members Senators Carl Levin (D-MI) and John D. Rockefeller IV (D-WV) would just love to have something like this to hold over this president. So, if this particular NSA surveillance is so illegal, heinous and so detrimental to civil liberties, why didn't these legislators do something about it sooner?

Hmm. Let's see who else is on the SSCI. Neither Leahy nor Feingold are listed. Were they the dogsbodies of the committee Democrats? Or--having seen an opportunity to get in the necessary sound bite, one which would cast doubt about the intentons of President Bush (again) in the minds of the voters--did they merely seize the moment?

The Democrat legislators are not acting as if this program is illegal. My bet is that they're calculating that--if this matter is framed correctly (for them), it will gain their party seats in the two chambers of Congress. Win no matter the cost.

One thing is certain: whoever exposed this classified program to the press should be tried, found guilty and imprisoned--at least. (Valerie Plame, my...foot.)

Senate Minority Leader Harry Reid and House Minority Leader Nancy Pelosi want an investigation. One wonders whether these l"Leaders" know what type of investigation they should be calling for.

It will be interesting to see whether the Democrats are so intent on regaining power that some of them would further expose the inner working of our intelligence activities to the public—and, therefore, to the enemy.

(Thanks to too many people to mention)

Comments

[Skinner]

" Here comes Santy Claus ,Here comes Santy Claus right down Santy claus lane " " Huh What"
" Im sorry I didnt read it "
Eggnog ? " they did? " O.K."
Sorry Im busy where wa .. where am I Hey give that back to me

[Kevin Murphy]

The problem with the language "1801 (a)(1), (2), or (3)" is that "terrorist groups" are listed as 1801 (a)(4), which isn't included.

On the other hand "terrorist groups with which a state of war exists" aren't listed at all in 1801 (a). Do they have more or fewer rights than a regular "terrorist group"?

I'm pretty sure the government has the right and duty to do damn near anything it can to agents of the enemy in the USA during wartime.

Now, if we are NOT at war with al-Qaeda, this might well be illegal. I'm pretty sure we are, though.

[justin]

No, whoever brought this program to light should be given a medal.

I agree with you thought that if members of Congress knew about this, well, it's troubling to say the least.

I'm pretty sure the government has the right and duty to do damn near anything it can to agents of the enemy in the USA during wartime.

Kevin, I'm pretty sure you are wrong. I take it you are one of those "we're at war, so let's ditch the Constitution" conservatives?

[justin]

I'm also a little distrustful of the whole "Congress knew too" argument after the charge was being made about pre-war intel, which appears not to have been true at all (and if not true, will supporters of the President admit he lied?).

http://www.realcities.com/mld/krwashington/13416512.htm

The [Congressional Research Service] report identified nine key U.S. intelligence "products" that aren't generally shared with Congress. These include the President's Daily Brief, a compilation of analyses that's given only to the president and a handful of top aides, and a daily digest on terrorism-related matters.

The Congressional Research Service, by contrast [to the Administration's assertions], said: "The president, and a small number of presidentially designated Cabinet-level officials, including the vice president ... have access to a far greater overall volume of intelligence and to more sensitive intelligence information, including information regarding intelligence sources and methods."

[beautifulatrocities]

Justin is clearly a pre-9/11 American. As Jamie Gorelick wrote when she instituted the Clinton administration's absurd wall between criminal & terrorist investigations - a wall put up after the first WTC attack, which was intended to collapse the buildings & kill tens of thousands - the most impt thing is avoiding the appearance of impropriety. More impt than saving lives, as the wall forced agents tracking the 9/11 hijackers to back off, because they were not allowed to continue once the focus changed from criminal to counterterrorism or vice versa.

[justin]

Beautifulatrocities--what does your post have to do with ANYTHING we are talking about??? Whether the President can violate the law by spying on American citizens has nothing to do with the wall. I'll chalk you up as one of those "the President can do whatever he wants becuase of 9/11" conservatives I guess.

[baldilocks]

The president hasn't violated the law, Justin. Who said anything about spying on American citizens?

Seems many who comment on this matter automatically assume that is illegal and assume that the rights of American citizens are being violated.

Should I chalk you up as one of those "GWB is always wrong and evil" liberals? No? Then get the matter straight, please.

[doraMia]

Who said we were spying on Americans? None other than Attorney General Alberto Gonzales on the today show.

[justin]

Baldilocks--

Most articles I've read say that he authorized wiretaps on US citizens. For example:

http://www.cnn.com/2005/POLITICS/12/17/bush.nsa/index.html

In acknowledging the message was true, President Bush took aim at the messenger Saturday, saying that a newspaper jeopardized national security by revealing that he authorized wiretaps on U.S. citizens after September 11.

After The New York Times reported, and CNN confirmed, a claim that Bush gave the National Security Agency license to eavesdrop on Americans communicating with people overseas, the president said that his actions were permissible, but that leaking the revelation to the media was illegal.

In any event, the authority that the President is claiming to act under allows him to spy on American citizens--If I'm wrong, please show me what would prohibit him from doing so. That's the point of the debate, right? The President is trying to expand his authority to act beyond any check from Congress or the courts. That doesn't worry you?

[Walter E. Wallis]

The next time a cop stops you, ask him to see the warrant. YOU DON'T NEED A WARRANT TO LOOK FOR CROOKS, ONLY TO COLLECT EVIDENCE FOR PROSECUTION.

[doraMia]

Dear Mr. Wallis,
What in heavens do you suppose the wiretaps would be used for? That's right, for collecting evidence for the prosecution. That's exactly what the govenment has used legal, warranted wire taps for in the past. To use your odd little analogy correctly, next time you hear a double click on the phone line, ask for a warrant.
P.S.
Your caps key is stuck.

[tully]

Heh. There's an on-target shot.

(Re-posted from previous thread with a few additions)

Justin, there's more than FISA involved--there's also executive orders and the constitutional war powers of the executive and other constitutional executive authorities which can not be impinged by statute. Congress can't legislate away the constitutional powers of another branch.

But as regards FISA, the section involving 1802 "warrantless" surveillance appears confined to domestic surveillance of "US persons". That's obviously been giving the FISA court a workout, as the number of warrants approved has skyrocketed since 9-11. Where FISA hits the international tapping quagmire of muddy law is where the targeted party is a "US person" (a classification that completely excludes anyone but citizens and legal permanent residents) or where the intercept of international communications involving US persons is done on US soil. [1801(f)1-2] If those don't apply, FISA doesn't apply.

And if the targeted person is NOT a US person, if the intercept is not done on US soil, and the communications are international, they're entirely fair game. FISA doesn't even apply, and it's a completely legitimate exercise of the executive's foreign intellignece gathering powers. So if they're tapping Osama's phone and email in Burkahstan using a satellite over India, and Joe Citizen gives Osama a jingle or drops him a line, it's not only a completely legal intercept, it's usable in US courts as evidence and can also constitute legitimate probable cause for FISA warrants and surveillances.

Better go re-read those definitions in 1801 as to who is a foreign power or agent thereof, and what is "electronic surveillance" for purposes of the act. It's broader than you think for the first and narrower for the second. And there's a relevant court decision pre-dating 9-11 about the "foreign power" and "agent" status of AQ. [U.S. v. Bin Laden] The court ruled that AQ is a foreign power under 1801(a-b), and those aiding and abetting AQ are agents thereof. So "US persons" can indeed be "agents of foreign powers" outside the self-contained domestic 1802 context. And they can likely move into "agent" status within the US for 1802 purposes if there is probable cause to believe they are violating or about to violate US laws. (The case did not address 1802 directly, the search and surveillance was of a US citizen in Kenya, so 1802 did not apply. The person raised a FISA defense against admissibility of the evidence obtained by warrantless surveillance and search, and the court ruled against him. The evidence was admitted in the US criminal trial.)

We are apparently not talking about FISA, but about war powers and constitutional authorities. The program was vetted by multiple agency's legal staffs (NSA, DoJ, White House at minimum) and the FISA court. The ranking member of both parties on the Intel committees were notified and briefed. And whoever leaked it committed a criminal breach of national security.

Step past FISA into the areas it doesn't cover, and war powers and executive authority come into play. Unless you have a degree in Constitutional law you probably don't wanna go there. I know I don't. That's been hotly debated since before the ink dried in 1789.

[tully]

Dear DoraMia,

They've apparently been using the information gathered in those gray areas primarily as wartime intelligence, not for criminal prosecutions. Whole 'nother ball game.

Any subject under prosecution for such wiretaps can (and will!) use a FISA defense to try to get that evidence excluded. If the court agrees that it was illegally gathered, they'll exclude it. If they don't, then they're affirming it was gathered legally. Mr. Wallis is on point.

[justin]

Tully, thanks for the post. I agree that if we are monitoring Bin Laden's phone, and Joe US Citizen calls him, we can monitor Joe US citizen too during the call. I'll have to read the statute more closely, but where I would disagree with your interpretation is over the meaning of "agent". If "agent" is used in a standard agency law sense, that is a fairly high bar--the usual definition is "A person authorized to act for and under the direction of another person when dealing with third parties." I don't think your average jihadist would fall under this definition, especially given the loose cell-like structure of Al Quada. But again, I need to closely re-read the statute.

As for being covered by war powers and constitutional authority--this is what I have a HUGE problem with. I will agree that there is some tension between the president's powers under Article II and the 4th Amendment, but it is very dangerous territory to say that war powers gives the President the right to circumvent the 4th Amendment (or any other legal check), because that argument can be used for any of our Constitutional rights. Why not the 1st Amendment?--surely prohibiting certain types of speech would make the war effort easier. Or the 3rd Amendment--should the President be allowed to quarter troops in someone's home as part of his war powers? If the President is performing warrantless wiretaps on US citizens, arguing that it falls under war powers is a stretch in Constitutional theory, or at least there is no well developed theory to support it that I know of (I could be wrong--a good friend of mine is a Con Law professor, so I'll run it by him).

Now, I have no idea what the Administration did, and whether it was legal or not. But, I find it extremely troubling that the President is basically asserting that he is above the law, and that an authorization to use force in the war on terror gives him the legal right to do just about anything he wants to keep us safe (which is basically the argument). So, over the past couple of years, the administration has argued that it has the right to detain anyone it wants for as long as it wants, and to spy on anyone it wants without a warrant, and to torture if necessary, all in the name of the war on terror. Doesn't that seem troubling to you? Keep in mind, I'm not saying that Bush is abusing these powers (for example, I do trust him when he says that the powers are being used to protect us, or that people being detained are dangerous), but what I have a problem with is the precendent it sets that could allow for potential abuse. That is the point of checks and balances in our system. If one branch gets unfettered power, that power will eventually be abused.

[tully]

As I said, I'm not stepping into the jaws of the "war powers" dogfight. If forced to make a guess, I would say that they're asserting the established foreign intelligence gathering perogatives of the executive branch, under the authorization of war powers granted by Congress in 2001, pursuant to the traditional usages of same. They have been careful to note that the communications in question were "anchored" outside of the US on at least one end, so we're speaking of international surveillance. If that's in conflict with FISA, it's up to the Supreme Court to sort it out. The courts have been reluctant to step in that minefield over the years, pretty much restricting their rulings to the admissibility of evidence gathered under various justifications.

Your average jihadi does indeed fall under the definition of "agent" of a "foreign power" under FISA [1801(b)1-2, note the multiple non-exclusive definitions]. As I mentioned, there is even relevant case law, and AQ is clearly a "foreign power" under the statute, the only debate is under which clause of 1801(a). At times it has fit under more than one.

The relevant FISA Code is here. [1801(a-b)]

Um, I don't know how you missed it, but the government IS allowed to enforce the secrecy of classified information for national security purposes, even in peacetime, and that doesn't violate the First Amendment. That's why leakers of classified info can go to jail, remember?

What we appear to be looking at specifically (and we don't know, so I'm making a best-approximation guess from available information) is the monitoring of the international communications of "US persons" whose names or numbers or emails have turned up in the records of AQ members seized overseas.

[justin]

I'm not sure if your average jihadi fits under the definiton of an agent of Al Quada, and the case you provided doesn't address that. I admit I'm not at all familiar with this area of the law, and I'm just analyzing on the fly, so my reading of the statute is more of a first impression sort of thing (so don't hold it against me when I change my mind). But, from what I've seen today, the statute is sort of irrelevant here, because the administration is claiming that their authorization stems from Congress's authorization of the use of force, which seems like a downright stretch. I'll re-iterate my main point, which was if the President can violate the 4th amendment (and apparantly detain people indefinitely as well), what limits are there on his wartime powers?

Um, I don't know how you missed it, but the government IS allowed to enforce the secrecy of classified information for national security purposes, even in peacetime, and that doesn't violate the First Amendment. That's why leakers of classified info can go to jail, remember?

I think you are missing my point--what I am troubled by is the assertion that the President's war powers give him the right to violate the Constitution. Locking someone up for leaking classified information is well settled law--i.e., it's not unconstitutional.

[wayne]

I'm sure in the next few days certain commiecrat traitors in the Congress along with their media lap dogs are going to fill out the details about what the "surveillance" that is being conducted really entails. Then everyone is going to go nuts (again).

Its all hysterical, really.

This is an old story.

We have all heard about the NSA "Echelon" system and various other stories about mass volume operations being conducted to scan the entire cell-phone, internet, and landline systems for certain words or phrases that are common to terrorist operations. The computer tech involved is astounding and not what you want to be common knowledge.

These are the sorts of operations that are impossible for you to go to some judge and get a court order for because nobody wearing a robe in this country is going to give you permission for an open scan on the conversations of the entire population of this country looking for a few Islamists.

This is exactly what Bush has ordered to be done and which they are really trying not to have the public and especially Binny Laidmen and the Jet(crasher)s to be aware of.

Unfortunately the commiecrat filth, lead by our own lovely Wisconsin scumbag senator Russ FOUNDGOLDinMYpocket, are doing everything possible to see to it that everyone (especially his struggling Islamist friends) is aware of it and take steps to counter it.

Then, after the media feeding frenzy, the "outraged" traitors in Congress can eliminate Bush's attempt to keep Binny and the boys from killing off a bunch of us. Which will balance the equation more fairly. We are after-all a bunch of polluting Hegemons who need to be humbled after all, and, Russ and his buds are so nobly striving to see to it that we get what's coming to us.

Then we can all go back to preparing for the second coming of ...Clinton so we can make peace (appease??) with the Devil...er, I mean the Islamists.

After all, for the annointed Clinton a few well placed terror attacks will be what is needed to bring true public safety and peace: complete unilateral military disarmament of the evil US and the removal of the bad guns from the hands of the stupid citizens.

The we can all hold hands with Uncle Binny and Big Sister Hitlery and sing Kum-bay-yah.

[wayne]

http://www.barking-moonbat.com/index.php/trackback/6253/XAi2GZE4/

The Skipper over at BMEWS has a much larger article spelling all of this out.

These are the sorts of operations that are impossible for you to go to some judge and get a court order for because nobody wearing a robe in this country is going to give you permission for an open scan on the conversations of the entire population of this country looking for a few Islamists.

This is exactly what Bush has ordered to be done and which they are really trying not to have the public and especially Binny Laidmen and the Jet(crasher)s to be aware of.

So Wayne, you believe that the government should be able to listen in on the converations of the entire country to catch a few terrorists?

[DarkStar]

As Jamie Gorelick wrote when she instituted the Clinton administration's absurd wall

Anyone who believes this is automatically eliminated from further discussion in the matter.

From all that I read and from what I know, I can't say this was legal. This is gray to me.

[Justin]

So, if Bush did break the law by spying on US citizens, is that an impeachable offense?

[teal marie]

The truth is closer to the opposite. What we really have here is a perfect illustration of why America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility. There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power--and endangering the country in the process.

- from today's WSJ
www.opinionjournal.com

[tully]

Yes, DarkStar, the Dems want The Wall back. No, I don't think The Wall is really part of this flap, save as it conflicts with the admissibility of evidence gathered. The administration will continue to (quite rightly, IMHO) assert the authority to exercise their national security perogatives--powers that predate FISA and can NOT be bound or diminished by Congress.

For the knee-jerk hate-Bush crowd, all I can say is that if you're too busy looking for ammo in your favorite pasttime of pin-the-tail-on-the-President to add two and two, don't be surprised when you get spanked again at election time.

I'd say more but there's still the vague chance that some Johnny Jihadi with more than one neuron may not have figured it all out yet.

[wayne]

I for one would like for somebody to tell me where in the Constitution it says people can't listen to what you are saying.

Hell, I thought it was exactly the opposite. They have to LET you speak.

The Constitution is supposed to give you the freedom to talk. As long as the government isn't stopping you from speaking, I don't see the crime.

I understand the idea that they aren't supposed to conduct unreasonable searches but I think talking about planning to fly airplanes into buildings or planting viruses to kill millions is a perfectly legitemate thing to listen for.

I also realize that the fifth amendment gives you the right not to incriminate yourself but if you are dumb enough to assume that the governments' electronic ears don't perk up when you start to mention box cutters and airplanes or use the words aerosol and small-pox in the same conversation you are delusional.

You rights aren't violated if they listen, only if they act to arrest you when you are not a threat to my or other law-abiding people's continued existance or our freedoms.

The right to privacy was never a part of the Constitution no matter what certain pinheads in the Supreme Court said in the Griswald decision. They were wrong. Griswald (a woman's right to COntraception) should have been decided on the freedom of expression which is within the bounds of the Constitution. The Court acted gutlessly and created a right which does not exist.

That is why the commicrats are fighting so hard now about judges.

It's sad because if you realize what Griswald can be argued to mean (and I'm surprised it hasn't been done so by the ACLU) things like the right of parents to have the privacy to molest their own children or for a man to beat his wife would be protected acts.

We as a society have always believed these sorts of things to be wrong and no one with a brain would argue that it is against societies interests to violate a families privacy to stop these things from happening.

Child abuse, spousal violance, polygamy (ask the Mormons how much they feel violated and some are still violating it) are but a few things we try to stop. Sometimes certain folks go too far to invade peoples lives - Janet Reno murdered a whole compound full of people to "protect the chilfdren" in Waco, Texas for example.

Society has often interfered for its best interests and while we must have significant oversight to keep the government for over-reacting, we ALL have an interest in having them make sure that some folks aren't planning to kill all of us infidels for the blessings of Allah.

Our Constitution is a wonderful document but to borrow from Abe Lincoln, it isn't a suicide pact.

So, Wayne, what exactly is suicidal about requiring the President to get a warrant, even three days after the fact?

Teal, yeah, those pesky congressman sure do tend to get in the way of the head of state doing anything he wants to. Damn representative democracy!

Tully, what national security perogatives give the President the right to conduct warrantless surveillance on US citizens? He can't just make up the right. If the charges of warrantless and illegal surveillance is true, then I certainly think that he has committed an impeachable offense.

It seems the Administration is claiming that congress authorized this surveillance when they authorized the use of force, which is just an insult to common sense. What ever happened to conservatism's distrust of government?

[justin]

Sorry--last post was mine. One more thing--so no one here is troubled by the President of the US calling editors of the New York Times into the Oval Office in order to pressure them not to print a story about his possibly illegal activities? I guess I know the answer to that one.

[wayne]

Pressure? He didn't arrest them did he? Why is they (the media) get to call him on the carpet at press conferences but it is only a one way street? Why can't the President call in the media and yell back?

Justin, wrap your brain around this number 300,000,000. That is (at a minimum!!) the number of warrants you would need to do this in a way that would be what you are arguing as "legally".

You think some judge (if he had the time and we could wait for the time it would take) would agree to this??

The systems we have in place scan for patterns in communication throughout the world. Thus every single conversation gets scanned along with every email, every blog, web page, etc. It's an expansion of crypto-cracking techniques we used during the cold war.

Its also supposed to be mostly secret as in "only nutjob (usually ex-military) conspiracy theory types" (like me) are spouting off about.

We don't need the press idiots telling them about it. This keeps happening and now AQ is using cd's or memory sticks and couriers to transmit their info and encryption to keep us from understanding it if we do find it.

Real smart.

And then Congress mandates we stop even looking for thier data so they don't have to try so hard.

Thanks, leftist idiots.

[justin]

Wayne--what the *(# are you talking about? Are you saying it is OK for the NSA or whomever to monitor the communications every single American? I'm really not clear on what you are trying to say, or what exactly the press is telling our enemies that is so bad. And why are leftists idiots? Are you saying that terrorists didn't realize they were being monitored before the NYT story broke?

[Kong]

"U.S. Person - a natural person who is a lawful permanent resident as defined in 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the U.S. It also includes any governmental (federal, state or local), entity."

Keep in mind that when they use the phrase "US Person" they do not necessarily mean a US Citizen.

[teal marie]

I know that Justin and the howling fools want Bush impeached. It might even cure BDS.
But you are spoiling Christmas and I've had enough. You can just go insane by yourself.

Merry Christmas, everybody! Have a joyful and peaceful holiday despite this unholy nonsense. God Bless us and keep us sane.
Love you!

[tully]

Justin, unless you want a slew of case decisions to read through, believe me. The executive has the right to authorize warrantless searches for national security purposes (as compared to domestic law enforcement--evidence obtained is not necessarily admissible in court). You can argue about the boundaries of that authority, and the ability of Congress to legislate it, but that it exists is indisputable.

Quote from the most recent case (that I know of) to directly address the subject:

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

It is conceivable that technical violations of FISA occurred, but it's not readily apparent from the known data. That's before you get into the "constitutional authorities" dogfight.

[tully]

Bless you, Teal Marie, and you have a lovely Xmas! I don't think anything cures BDS. (Except I call it PDS--Political DS--'cause it's been around much longer than Bush!)

[Theresa]

Once again, national security takes a back seat to smearing the President. The msm is using anything and everything to undermine President Bush regardless of the outcome. That and where the information came from bother me most. If in fact the President has exceed his authority than, yes, he should be held accountable. But, so should those who also knew and condoned through silence this supposed "illegal" activity. That should take care of just about half our leadership all in one fell swoop. babs the bimbo boxer calling for impeachment proceedings prior to an investigation should raise the bullshit flag for everyone. Seems like this might have been a set-up, timing wise, to take the shine off the success we are seeing on the ground in Iraq. Funny how things like national security and winning the GWOT never seem to take precedence over any media outlet "breaking" a story they know will harm us. If the President has broken the law, then let him be punished in the same manner bill the swinging dick clinton was during the debacle of his administration. After all, he violated the same law.

[wayne]

What I'm saying Justin, is that is exactly what the monitoring (that Bush is refusing to stop) is doing. It (the system everyone is up in arms about) monitors every type of communication constantly looking for patterns. How many phones are there in the US and how many PC's? Would you get a warrant for each and every one in the country?

Every time anyone in this country picks up a land-phone, opens up a cell-phone, or logs on to the internet the system starts scanning every word or phrase looking for direct comments, phrases, or possible code words and it flags that persons' communications up for higher scrutiny.

At each stage of scrutiny up the chain more investigative resources are focused on an individual person and their doings and connections with freinds and associates.

It really is a sort of Big Brother writ large, using a mind-boggling set of computers for intial scanning on up to personal investigations by the appropriate agency. The NSA and others have been building it for decades. Do you think all of that black funding has gone for UFO investigations at area 51?

The problems before 911 were that they couldn't "officially" record citizens and they couldn't share the info with anyone.

Boffo Bill opened the worm can during his reign, as he was using it to track folks like those in Ruby Ridge and at Waco.

Unfortunately his posse' of miscreants weren't about to use it against anybody who wasn't white and armed. Like oh...say the folks that attacked the WTC in '93 or the folks who Mcveigh was driving for in Oklahoma City.

That was why when the FBI found out about Moussaui, Reno & co. cut them off at the knees. "No investigating of people who could claim racial or religious discrimination!!!"

Except for Christian sects. Targeting them is okay. And snooping on Elian's family and grabbing him before they could move him to a more defensible local. Helping Fidel trumps offending the generally conservative Cuban Florida culture any day.

That is why I hate you lefties, Justin.

The only time you people are willing to play dirty with the rules are against the people in our own country you don't agree with (and who can't claim any kind of discrimination) or in the case of Kosovo where the bad guys are white and abusing a protected minority.

You are never willing to do anything about the ones that are a real threat to us if they come from one of the minorities or if you delude yourselves into thinking that they have your same ideology (communism/socialism). Hell, you always assume we have it coming for oppressing the planet.

Now your freinds at the New Jerk Slimes have to go out and remind all the folks the system exists so the boys following Binny around can change their tactics over to direct person-to-person info transfer, which is much harder to detect.

Better yet the ring of morons in Congress get to trot out their "Moral Outrage" mindless BS mantra and pile it on thick and in the process try once more to snatch defeat from victory for the bad ol' US of A.

I'll bet you go to bed at night wishing "if only dear Mother Russia had won the Cold War it would be utopia now".

[justin]

Theresa--name one way in which the MSM has undermined national security.

Tully--I'm not arguing that the President in certain circumstances has the right to conduct warrantless searches for national security purposes, and I agree that is a complex question beyond the scope of a comments section on a blog. I'm pretty familiar with the Truong case, and if I remember correctly it basically says that the President has this authority when the Executive's interest are paramount, and balances those interests with citizens' Constitutional rights. It is hardly carte blanche for Bush to surveil whomever he wants with no oversight.

It's as if I said "I have an inherent right to discipline my child, and to use corporal punishment if necessary, therefore I have a right to hit him whenever I want and as hard as I want." So, just because the President has the right to conduct warrantless searches in some circumstances, that does not mean he always has the right to. And isn't that the issue? I really don't have much more to say until more facts come out, but the mindless jumping to the President's defense by some people (not from you Tully) is just strange. Even if you support the President, you should be a bit troubled by the possibility that he may have broken the law--if you examine it and determine he didn't, which Tully appears to have done, that's fine, but to jump up and down and call everyone questioning the President traitors, communists and terrorists is an act worthy of an citizen of a dictatorship.

[justin]

No, Wayne, what everyone is up in arms about is the allegation of monitoring specific US citizens, not some giant data gathering operation (people have been up in arms about that already).

Reno cutting off investigation of Moussaui becuase of racial discrimination?--I can see that you just make stuff up in your posts, so I'll stop reading your responses. See, unlike were you apparantly get your information from, the New York Times actually fact checks and is responsible, even if they get things wrong sometimes. I can pretty much guarnatee that you've never actually read the New York Times and get most of your information about it from some right wing website.

[tully]

I don't know that he did or didn't break the law, Justin, as the facts are clearly insufficient at this point. I have a 90%-plus first read of what the actual facts likely are, and think that it would be difficult to prove any legal violation of FISA if I'm correct. And that's just assuming under FISA, not going into the "dogfight of powers." And if my read is correct, it's a political loser for the Dems to be calling out Bush on this. Even if a technical violation of FISA was involved (and I don't know that) then the operation was one that could only piss off a Ramsey Clark.

But I'll throw in some hints--in these days of cell phones, you have no idea where a cell phone is by the number. If you dial my cell phone, you can reach me whether I'm in Europe or Hong Kong or Brooklyn. Even the system may not know where I am until I register my presence in some way. And targeting a number is NOT the same thing as targeting a person. Nor, under extreme time pressure, is it in the least feasible to track down all the people associated with a number or an email address and ascertain that they are "US persons". Numbers and email addies are anonymous in that regard.

[DarkStar]

Yes, DarkStar, the Dems want The Wall back.

In spite of what the conservative talking heads say, "The Wall" pre-dated Clinton. "The Wall" was created in the 70s as a DIRECT RESULT of government agencies abusing the power that they had, INCLUDING the NSA spying on U.S. citizens.

Come back when you get your history of the wall right.

Merry Christmas.

[tully]

Same to you, DarkStar! Merry Xmas, that is. :-)

I'm aware of the origins of the Wall. And the damages done to the intel establishment in other ways by the post-Nixon Congresses through over-reaction. And the escalating executive abuses that led to those zealous reforms, beginning at least as far back as Roosevelt's June 1939 executive order that let good ol' J. Edgar completely off the leash.

Though I was speaking in particular of the Gorelick version.

[justin]

Here's a good post on the legal intricacies of the issues here at Volokh.

http://volokh.com/posts/1135029722.shtml

[tully]

Yeah, saw that. And many other lawbloggers. When the crim-law and con-law people can't come close to agreement, I think it's safe to say that it's not a settled issue. :-)

(For comparable "fun," watch the Marxists and Austrian-schoolers go at it at any economists' meetup. The empiricists will be the guys stealing the debater's desserts and sticking them with the bar tab while the debaters argue over who's more disassociated from reality....)

[justin]

Tully--you're right, a technical violation of FISA isn't a winner for dems, and even I don't care if it's just a technical violation (e.g., they didn't realize an int'l cell phone # was based in the US). Again, what I'm very concerned about it the administration's position that it's war time powers allow it to ignore the warrant requirement.

Merry Christmas everyone.

[wayne]

Listening to Justin and the idiots in the Senate trot out their arguments about proceedure, jusrisprudence, and following the laws very much reminds me of the stories about Nero fiddling while Rome burned.

Read Walid Phares' book "Future Jihad". Then you will understand.

It isn't September 10th, 2001. The world changed after that and you can't keep trying to take us back. There is no going back. We can't afford to stick our heads into the sand any more. The sand is full deadly scorpions and no amount of wishing will make them go away.

The Constitution is going to have to take a back seat to survival, sometimes.

My life, your life (Justin), and everyone whose is just trying to get thru life without being slaughtered or enslaved, these are more important than whether or not the government is listening to me talking smack against some idiot in Washington, or sharing the Christams Spirit with my family.

The longer you guys hamstring the folks defending us from being dead, the worse the hardships are going to be when they finally do have to declare Marshall Law to stop the spread of Small Pox or after a city gets glassed.

You'll be begging for even a return to them just watching everyone (like I hope they are at this point) verses the changes that are coming.

[justin]

Wayne, don't let fear get the best of you. This country has been through worse times w/o sacrificing liberty and we will survive.

"Those who would sacrifice essential liberties for a little temporary safety deserve neither liberty nor safety."

--Benjamin Franklin

[tully]

The power of the executive to perform warrantless searches for the purposes of gathering intelligence on foreign powers and their agents is indisputable, Justin. It's been affirmed over and over by the courts. The only questions are [1] what the full and complete extent of that authority is, and [2] whether Congress has the ability or authority to encroach upon it, and [3] does FISA encroach upon it?

From the (skimpy) public facts available, we don't even know that FISA's been violated. If it has been, we don't know that such a technical violation doesn't still fall under the executive authority. As I said, I strongly suspect that if the Dems force the details out into the public, it'll bite them in the ass big-time.

[justin]

Tully, I agree with you. But it's a big leap from saying the President has the power to conduct warrantless searches in certain circumstances, and, what the administration's position appears to be--that the President's power to conduct warrantless searches is always within his Article II war power and is not subject to any oversight or restriction. I don't know how I can make the distinction any clearer. Wayne is correct, I am concerned about process and rule of law. If FISA is too restrictive, let's have a debate about amending it. But to have an extraordinary war time power made into the norm is troubling. And this has been the MO of this administration on many issues--the right to detain people indefinitely w/o oversight, the right to over-ride the Geneva conventions and US law on torture etc. I can't believe conservatives are not more troubled by these tendencies.

[tully]

It's not a blanket right, Justin, and I haven't seen the admin claim that (not that they might not, just haven't seen it). If that were their position, why would they have briefed the intel committee leaders and the FISA court head judge(s)? Repeatedly? And modified the program in response to concerns from same?* Etc. They're asserting a specific power related to and contained within a broad and somewhat vague constitutional authority. And they've apparently been doing it by the numbers while trying to maintain the secrecy required. Stepping carefully so as NOT to overstep the legal bounds. And it's apparently been foiling terrorist attacks and saving lives, both here and in other nations. The intercept program is being credited with preventing truck bomb attacks in Britain, and the Brooklyn Bridge plot here. That's likely the tip of the iceberg. Which is why it's a big fat loser of a political issue for the howling mob.

the right to over-ride the Geneva conventions and US law on torture etc.

NOW you're off into fantasy-land. I have seen NO evidence that the administration has asserted either of those things. They have insisted on following the letter of the law in both of those. What they have NOT done is ignore the areas where the laws don't apply. You can accuse them of using all the authority they legally have there, but not of abusing it unless you can show a violation of the laws themselves. And I don't mean renegades breaking the law under the "buck goes straight to the top" rhetoric that would make the Prez ultimately responsible for boot recruits' unpaid parking tickets. Though all that is, of course, a digression.

The pattern I see is one wherein they use all the possible legal authorities they can, right up to the line--without crossing the line. If they were contract attorneys I'd want 'em on MY side. And that doesn't mean they're not capable of abusing power, or that abuses of power have to be illegal to be abuses. We're talking about politicians, after all.

[*--both former head FISC judge Royce Lamberth and the current FISC head judge were briefed, in some detail, and allowed to suggest modifications which were adopted. Concerns of Senator Rockefeller also apparently resulted in modifications. You don't do that to trample the law, you do that to know what your exact legal boundaries are, and stay inside them.]

[justin]

And it's apparently been foiling terrorist attacks and saving lives, both here and in other nations. The intercept program is being credited with preventing truck bomb attacks in Britain, and the Brooklyn Bridge plot here. That's likely the tip of the iceberg. Which is why it's a big fat loser of a political issue for the howling mob.

Why couldn't that have been stopped by staying within the law by getting a warrant after the fact? These vague assertions by the administration are not convincing.

the right to over-ride the Geneva conventions and US law on torture etc.

NOW you're off into fantasy-land. I have seen NO evidence that the administration has asserted either of those things.

Are you kidding me? Why did Cheyney spend so much time arguing against the McCain torture bill which was supposed to codify existing norms.

The administration has in fact made the argument that national security allows it to torture if necessary.

http://www.msnbc.msn.com/id/4999148/site/newsweek/

http://www.commondreams.org/headlines04/0607-01.htm

So what do you think about the out-of-control liberal 4th circuit giving Bush the beat down today? When the Administration's anitcs piss of the most conservative court in the country, that should be an indication of something at least.

http://www.nytimes.com/2005/12/22/politics/22padilla.html

[tully]

Are you kidding me? Why did Cheyney spend so much time arguing against the McCain torture bill which was supposed to codify existing norms. The administration has in fact made the argument that national security allows it to torture if necessary.

No they haven't, and that's a significant misrepresentation of the facts as regards the McCain amendment. The admin made the argument for ALL techniques falling short (sometimes JUST short--"waterboarding") of the US statutory definition of torture. McCain's amendment lowered the bar to the items included in the ICAT as NOT amounting to torture, but still to be avoided--the big grey area. (A section of ICAT that the Senate has never ratified, BTW.) Essentially the McCain amendment amounted to making US code MORE restrictive than ICAT. McCain had the votes, he didn't back down, he won.

The practical effect is to push the grey area farther down the scale. You can bet your boots that field agents will still use those techniques if they think it's really that crucial, but they'll think twice first. And McCain has reason to know that if there's not SOME disincentive, the usage of those techniques could easily become routine.

So what do you think about the out-of-control liberal 4th circuit giving Bush the beat down today?

LOL (at the sarcasm). I think the admin wanted to chicken out of the Supreme's review of the case, as they already had what they wanted from Padilla but the admissible evidence was insufficient to file the charges they wanted. They already had all the upside they needed, nothing left but either a confirmation or a down side from the Supremes. So they tried to dump off Padilla to civilian authorities on lesser charges, and dodge the chance of a reversal that would set a precedent. (It is better to have a grey area than a black and white one!)

And Luttig said, "Nice try. We don't vacate decisions already forwarded to the Supremes. You bought it, it's yours. No take-backs. No do-overs."

I think Luttig was completely correct and it was a sound decision, but I can't help but wonder if he's a touch peeved at not getting that nomination over Alito.

[Skinner]

all I Know teal Marie , Is when I
scan down fast I see justin .justin ,justin ,tully Justin Tully JUSTIN , JUSTIN and then once... again THE Dreaded JUSTIN This guy must think quite highly of himself because He loves reading his own shit over and over I dont read it but Tully does Why? I have a liberal brother that bombards me with socialist bullshit Hes rich and one of the greediest people I know
but on his offtime spews his Liberal, Holier than thow garble
Too much money and a guilty concience with a huge ego add up to arrogant elitest sourpuss sore
losers in life Why else do they have This need to Bandstand constantly I'M putting coal in they're stockings And for you Teal Marie Watch for the fruitcake in your email Its Good
Really!!! Theres a 5th of Bacardis in it Just to celebrate Jesus and Honor good things Like our troops Cheers!!!!!!

[tully]

Because we're having a conversation that interests both of us , Skinner. It can't be all antagonism all the time. That'd be boring. If it gets boring, I'm gone. Life is too short.

[justin]

Tully--If Baldilocks has a post re: torture we can discuss this more (my new year's resolution will be not to ramble off topic), but I'm not sure I'm following you. Are you saying Bush has not asserted that he can authorize torture in some circumstances. The Gonzales memo makes that very argument.

http://msnbc.msn.com/id/4989481/

http://www.timesonline.co.uk/article/0,,2088-1431300,00.html

The administration has clearly been pushing the bounds of legal behavior with its indefinite detentions and defense of torture. The administration wiggling around with legal technicalities about whether insurgents are unlawful combatants or whether waterboarding is torture or whether the CIA should be exempt, is a little disgusting. The big point is that the 500 years of western civilization have made it unacceptable to subject people to torture and torture-like treatment. That is what seprates us from our enemies. I'm not really sure how you can argue that the administration hasn't basically created a culture where torture is acceptable and has thrown up a shield of executive powers and national security to defend himself. In any event, this will probably come up more later and I'll articulate my points better then.

Have a merry and safe Christmas.

[Oyster]

This country has been through worse times w/o sacrificing liberty...

Name one.

[tully]

Better go look up the US Code statutory definition of torture, Justin. The articles you cite are not responsive to the facts--the editorialism of "journalists" in purported fact articles does not constitute anything but evidence of poor journalism. You might also go read the 3rd and 4th Geneva Conventions and the ICAT treaty, noting especially which parts have been ratified by the US.

You might have noticed by now that vague and conflationary phrases like "creating a culture" don't go far with me. I'm tediously fact-oriented. Regardless of which side is making the claims.

Hey, have a great holiday.

[Justin]

Tully--I'm very familiar with the Geneva, ICAT and US definitions of torture (I've been doing pro bono political asylum work for years). The "creating a culture of torture" argument carries a lot of weight for me, and I think is pretty clear. Anyway, we'll discuss this more later I'm sure (with facts from my end). I also need to also make a resolution to stop trying to get the last word, especially when I have nothing new to say ;-)