NSA Eavesdropping: Have I Got This Right?

By Martin A. Knight Posted in Comments (252) / Email this page » / Leave a comment »

From the diaries by Leon H...

Here's my understanding of the NSA eavesdropping issue ...

(1) NSA is eavesdropping on US citizens if and only if the call or some other form of communication to that effect crosses US borders, i.e. is International in nature. According to GEN Hayden, this excludes calls between Dallas and Minneapolis but definitely includes calls between Boston and Tripoli.

(2) The targets of surveilance are those whose contact information was found contained on/in the information infrastructure i.e. laptops, palm pilots, notes, address books, phone records, etc. of Al Qaeda members discovered abroad and probably within the United States as well. Should these people contact others, those others are put under surveilance as well. As time goes on, people are added or dropped from the surveilance lists.

(3) The White House with support of findings from the Attorneys General (both Ashcroft and Gonzalez) informed the leaders of the House and Senate and the Chairmen and Ranking Mmebers of the Intelligence and (perhaps) Armed Services Committees of this program - this is the usual practice with very top secret operations. According to the New York Times, the White House apparently also informed the Chief Judge of the FISA courts.

(4) The White House and NSA has met over a dozen times (i.e. every 45 days since its inception) with the Congressional Leaders aforementioned and, (one presumes) the FISA court Chief Judge, to provide updates on this program's findings/discoveries. The President must re-authorize this program every 45 days for it to continue.

(5) FISA Courts regularly, promptly and discretely grant warrant applications. FISA Courts can even issue warrants retroactively up to the limit of three days after the target has come under surveilance. Why then did the Bush Administration not make use of the FISA courts? Apparently because the amount of documentation necessary to secure a FISA warrant includes the name of the target, the line to be targetted, etc. and other specific information which are somewhat anachronistic in the cellular age.

i.e. If, some Al Qaeda chieftain under NSA surveilance calls a cellphone in Maryland from Pakistan, that cellphone comes under surveilance and whoever owns it becomes a person of interest. At the point the MD cellphone attracts the attention of the NSA, there is no way of knowing who owns the phone. A FISA warrant therefore cannot be applied for. Furthermore any numbers called by that cellphone henceforth also comes under NSA net of surveilance.  

Secondly, one can buy, use, discard and then buy another cellphone all in the space of one day. From what I've read, FISA does not have a provision for allowing the NSA to follow the person instead of the line. Furthermore, the anonymous and ubiquitous nature of cellphones and other forms of 21st communication means that gathering the documentation necessary to apply for a warrant would most likely take more than the 72 hours provided for in the FISA Act.

The problem from a security standpoint, I imagine, is that if it were operating under authority of the FISA Act, the NSA must cease and desist from monitoring that cellphone if it cannot or has not applied for a FISA warrant and that application has not been approved within 72 hours. What if the phone is used 80 hours after the start of monitoring to give the 'go' order?

However, it is true that such concerns, even if it would prevent a massive loss of life in one of America's (or any other nation's) cities, does not allow one, even the President, to disregard the law on domestic surveillance of United States persons.

(6) The President is claiming that the authorization of the use of force against Al Qaeda (and any other such (i.e. terrorist) organizations) given him by the Congress in the aftermath of 9/11 allowed him to direct the NSA to monitor all calls made to/from Al Qaeda members abroad from/to origins/destinations in the United States. It also empowered him to authorize the NSA to monitor the communications of those people found on the contacts lists of captured Al Qaeda members, whether they be in the United States or not. It may be a stretch but remember that Presidential war powers (the use of force) are usually interpreted in the broadest possible way by the Judiciary.

Have I got this right?

I must confess; if I've got this all correct, the President's actions do not make me fear being thrown into a concentration camp ... and I'm a Muslim!

To my mind, the President's actions/decisions have to pass the "reasonableness" test. I think they do. I would love to be disabused of this belief if indeed it

It has been reported that all international calls are watched.  Or at least all calls to certain nations.  The admin has come out and said that only calls to terrorists are watched.  Not quite sure who is telling the truth.

Good job of cutting through the clutter and highlighting the issues in plain language.  From my layman's point of view, it looks like you have it about right.

That the scope of the communications being monitored doesn't seem so clear to me.

The President said that only calls involving known members of terrorist organizations were monitored. What is the source for all international calls to certain countries?

He can bring up any law passed by Congress that says he had the authority to do what he did.  That's great.  Now explain to us how ordering the NSA to spy on American Citizens without a warrant does not violate this statement:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That's right folks.  That is the final authority on the issue.  Sad thing is, Bush admitted to violating this amendment.  Guess it may be time to see Article II Section 4 invoked.  Or does he call in the military to protect himself and lock us down into a police state, saying "Its for your own good.  I'm just trying to protect you from the terrorists!"  

Remember what Ben Franklin said.  "Those who would sacrifice civil liberties for a bit of temporary safety deserve neither liberty nor safety."

"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General."

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

Jamie Gorelick testifying before the Senate Intelligence Committee on July 14, 1994.

The issue is whether the inherent power to conduct intelligence operations against foreign enemies implicates the Fourth Amendment the moment that doing so involves someone legally within the United States.

If these intercepts resulted from intelligence information obtained outside the United States indicating that certain persons / phone numbers within the United States had contacts with AQ - and especially if the purpose & use of the intercept was to defend the United States from foreign enemies (as opposed to making a criminal case against someone in the United States), then I have a hard time seeing how the Fourth Amendment is even relevant to the discussion.

Let's see. Your point (4) is not correct. The White House or other members of the Executive (apparently at least some of the time it was VP Cheney) met with Congressional leaders a total of 12 times. This includes ALL meetings with any Congressional leaders. For example, Sen. Reid, the Minority Leader of the Senate, had a total of ONE meetings about this ever. He, like the other members of Congress, was informed and in no way participated in what could be considered authorization, approval or oversight of this program.

Separately, Bush has reauthorized this program every 45 days at the request of the Attorney General. He got no authorization to do so from any other part of our government at any time.

You point (5) seems to indicate that this method was done because someone didn't know what to put in some of the blanks on the forms... This is the equivalent of saying that if you are filling out a loan application at a bank and don't know what to put, just forget the form and take the money out of the vault. You go on to discuss some technical points. Perhaps these are valid. I'll even add that perhaps the burden of proof needed or expected for a FISA warrant was too steep for the activities that Bush wanted to engage in. However, as you say, this in no way means that the law can be circumvented. The president, just like the rest of us, is bound by the law, imperfect or no.

Regarding (6), the president is claiming powers as commander in chief over the civilian NSA. While the military tasks NSA sometimes, and there are even military surveillance operators sitting side by side with tehir civilian counterparts at Ft. Meade, MD, where most of this actual work is done, there are clear strictures as to what the civilian side may do and how it may interact with the military. The president is commander in chief of the armed forces, not the NSA. He has authority to direct military intelligence to collect intelligence, but the line has been drawn clearly between military and civilian intelligence gathering and between domestic and foreign intelligence gathering.

Last night I read all the opinions written the the relevant Supreme Court decision, Hamdi vs. Rumsfeld. In this case, Hamdi, a US citizen, was fighting against American troops on the battlefield in Afghanistan. Even so, only ONE Justice (Thomas) asserted that the government could hold Hamdi indefinitely without a hearing as to his status. The remaining 8 Justices insisted he had a right to a judicial proceeding with a moderately heavy burden of proof as to his status. 4 justices, including Scalia, opined that they believed that Hamdi should go free, since they denied that the president could detain an American under his warmaking powers.

So you see, your assertion about the leeway given by the Judiciary in such matters is quite wrong. It seems clear that the Supreme Court demands that due process be followed in the case of American citizens even in the extreme circumstances of finding an American in an act of Armed Conflict with an enemy.

The president's actions have to pass the LEGAL test, too. They clearly do not.



As I said yesterday, the AG admitted in his press briefing that Congress would never have approved this actin if the administration had asked specifically.

So what do you call it when the government is doing something they admit wouldn't be approved of?

Or does Congress get to join the list of groups that want the terrorists to succeed?

...we'll meet somebody inclined to tossing out the Franklin quote who can do so correctly.  Essential liberty, neighbor: essential (Quote).

Also, you forgot to tell us that we've always been at war with Eastasia.

Moe

PS: I'd comment on the rest, but, heck, it's easier to just send out the blackshirts.  No, wait, they're all busy attacking WTO meetings.  Guess you dodged a bullet, there.

Johnathan Alter has his Newsweek hit piece about "snoopgate" today in a web exclusive.  You might like to read it because, as a Muslim, Jonathan Alter has seen fit to speak for you:

...any Americans with ties to Muslim extremists--in fact, all American Muslims, period--have long since suspected that the U.S. government might be listening in to their conversations.

So, Mr. Knight, your own analysis notwithstanding, you've been the victim of a presidential power grab, and you've been saved by the New York Times, which "inexplicably" sat on the story for a year, begging the question of why they chose to "protect" you at this precise moment in time.  

But Alter supplies the answer a few grafs down the page:

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

...

This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency.

Mr. Alter thanks you for your interest in his fine publication.

If you read the briefing given by AG Gonzales about the legality of this, you will see that this authority requires one party in the electronic conversation to be outside the US only because Bush chose not to include wholly domestic wiretapping in this program, not because of any legal authority prohibiting him from doing so: http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html

Bush asserts that he as the commander in chief of the ARMED FORCES has right to determine what is acceptable with regard to domestic surveillance. He is not bound by any other law, according to his plenary power as commander in chief.

I for my part want my rights to remain codified in the Constitution, not cavalierly and capriciously determined by whoever sits in office at 1600 Penn Ave.

Assume everything in my post was incorrect, except for the Fourth Amendment.  Find a way to dispute that.  

Because all you did was attack an insignificant point of my position.  Attack the meat.  How did the President not violate the Fourth Amendment?

something the 4th amendment give the President the right to do.  It forbids "unreasonable" searches.  Given the standards set forth, one leg of the call is overseas, at least one party has AQ identification, the grounds for the tap are very reasonable.

demands a court issued warrant.  Read it again.  It no where states the President can bypass a court issued warrant.  

evidence that American citizens were involved in this?

If so, please provide it. If not, there is no "meat" in your argument that hasn't been digested and expelled.

link to your credible source that confirms the taps in question were performed against American Citizens for your comment below?

"It seems clear that the Supreme Court demands that due process be followed in the case of American citizens"

Thank You,

to take on your entire post, but, regarding your statement:

Regarding (6), the president is claiming powers as commander in chief over the civilian NSA. While the military tasks NSA sometimes, and there are even military surveillance operators sitting side by side with tehir civilian counterparts at Ft. Meade, MD, where most of this actual work is done, there are clear strictures as to what the civilian side may do and how it may interact with the military. The president is commander in chief of the armed forces, not the NSA. He has authority to direct military intelligence to collect intelligence, but the line has been drawn clearly between military and civilian intelligence gathering and between domestic and foreign intelligence gathering.

The NSA is an agency of the DoD, and not a civilian agency. So ... would you now like to revise and extend your remarks?



So if this is a right that the President inherently has, why did the AG think he needed Congressional approval to perform wiretaps without a warrant?

Screw this...Bush admitted they wiretapped American's calling overseas.  Live in a bubble.  This is why the party will collapse.  Its all about power now.  Not what is right or wrong or legal or constitutional.  Its all about the technicality right?  Even when he technically was wrong, try to make the argument.  Bush has become what Reagan is praised for defeating.

You misunderstand your purpose in life.  You solely exist to amuse me in the relatively brief amount of time before somebody gets around to banning you.

Didn't you get the memo?

that overseas wiretapping doesn't require a warrant, right?



This creates a little credibility problem for the President. He assured the American public in 2004 that all wiretaps were being performed with a court order in hand.

Now it appears not so much. I'm just saying don't throw that out there if it's not true because it will come back to bite you later.

So we're apparently quibbling over the concept of reasonableness as it applies to the 4th amendment.

Seeing as how 99.999999% of Americans names and phone numbers aren't on any of the laptops owned by Al Qaeda, it passes my reasonableness test.

It's reasonable to use necessary measures to safeguard against further terrorist attacks, even if it means potentially infringing on the rights of those that associate with people who would prefer to see us all dead.

But maybe I'm quirky that way.

I'm not trolling.  I've decided that I'm scared of the power grab Bush has taken.  All dissent must be silenced.  

How did I screw this Thomas Jefferson quote up?

"All tyranny needs to gain a foothold is for people of good conscience to = remain silent."  

And by not defending Bush, do you admit he screw up royally on this one?  <No pun intended>

The entire constitution applies to ALL American Citizens.  Not just when one citizen calls another citizen in Texas.  When one citizen calls ANYONE else in the WORLD, that one citizen is still protected by the U.S. Constitution.  

As badly as you might wish it did not apply, the more places the Constitution applies the better, do you disagree?

only Senator Reid's word for this. You have chosen to accept his word rather than that of the President which is your right. But because you beleive it does not mean that the President is lying and Senator Reid is telling the truth.

Yes, and the Department of Defense is not the Armed Forces. It is a civilian agency that administers the Armed Forces.

Bush has no plenary authority as commander in chief of the Armed Forces over the Department of Defense. The Department of Defense is structured and administered by law. Will you next claim that all administrative law applying to the Department of Defense is null and void??

This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency.

I hadn't considered this before.  Even if you start from the assumption that Bush has the intellect of broccoli, he had to know that if this got out (or, given his relationship to the security apparatus, WHEN it got out), the comparisons to Nixon by the BDS crowd would be instant and, as usual, unreasonable (anyone who can't differentiate between wire-tapping domestic political enemies and foreign military enemies is one fry short of a happy meal).

This leads me to beleive that he either (a) set off to intentionally expose himself to impeachment so that NSA agents could get a purile thrill by listening in on the international calls of innocent citizens, (b) decided to see if Nancy Pelosi's head really would explode given the right amount of prodding, or (c) decided to risk the fallout in order to do what was in the best interest of the country.

Now, I'm firmly in the camp of "the universe doesn't care about your motivations, only your results".  But this DOES say something about the character of this particular individual.

...and since you apparently prefer to do your thinking in aphorisms, I suggest Frank Herbert.

I must not fear.

Fear is the mind-killer.

Fear is the little-death that brings total obliteration.

I will face my fear.

I will permit it to pass over me and through me.

And when it has gone past I will turn the inner eye to see its path.

Where the fear has gone there will be nothing.

Only I will remain.

I recommend that you repeat the mantra for five minutes, three times a day.  Get back to us after two weeks and let us know if you're still suffering from your condition.

Glad to be of help!

    He, like the other members of Congress, was informed and in no way participated in what could be considered authorization, approval or oversight of this program.

That's a bit weak considering that he became Majority Leader after Daschle's defeat just about a year ago. Second, this says nothing about Jay Rockefeller. Third, the White House did inform him, and he had every right as a Senator to introduce this into the Senate (in closed session if necessary) to demand that legislation be crafted to address this issue.

The issue of oversight actually has nothing to do with the White House as it is strictly an Article I power. He (and is other Democrat colleagues) could have done a hell of a lot more about it. The fact that the New York Times had to blow the story for him to remember that he's outraged about it shows either mendacity at worst or incompetence at best.

    The president is commander in chief of the armed forces, not the NSA.

The NSA is part of the Executive. The President is Chief of the Executive Branch of the United States Government. It may indeed surprise you to know that the President of the United States does have some power over the civilian side of the Federal Government.

than live in a police state.  Bush talks all the time about how if we cut and run in Iraq those brave men and women who have lost their lives in Iraq will have died in vain.

What about the soldiers who died in the Revolutionary War?  If we do away with our basic civil liberties, will those soldiers not have died in vain?

Once again the Ben Franklin quote, this time to appease a poster further up

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

Do you not consider the 4th amendment an essential liberty?

What happens when someone in this "web" of communications makes a call to a wrong number, the NSA simply adds that number to the list? Then an innocent American is being subjected to surveilence. Are they just a sacrafice that had to be made to protect our country? what if it was you? maybe you are being surveilled now? The problem is without going to the courts YOU WILL NEVER KNOW. Which means there are no checks to the executives power to watch the american people.

I for my part want my rights to remain codified in the Constitution, not cavalierly and capriciously determined by whoever sits in office at 1600 Penn Ave.

If I am ever brought to the dock on criminal charges I want all of the Constitutional guarantees and obligations to have been followed.

But that's not what's happening here. You and I are not being monitored unless a) you are making/receiving international calls AND b) you are somehow identified as associated with known and suspected terrorists on the other end of the line. Furthermore, if the people who are being monitored are not going to be charged with a crime then there is no "due process" involved and if they are ever charged the information obtained this way cannot be used as evidence. Seems fairly straightforward to me.

but you haven't made a single point (valid or not) to disprove my argument yet.  And if that wasn't your point of posting to begin with, why did you bother?  

You miss the point. You assume that the only people whose rights were infringed upon were bad guys. You don't think they ever guessed who to tap? They took names and numbers they found and went after them, not knowing if some or all of them were terrorists. What if some of them weren't? And if people change lines and cell phones, doesn't that mean the gov. ended up listening to the wrong lines sometimes? And therefore ended up listening to calls they no authority or right to tap?  Still think it was only "those terrorists" who got tapped?

where your local supermarket knows what kind of toilet paper you use, and the teenager down the block has hacked your computer and read all your email. You what to argue about whether or not the president needed a warrant to monitor a few select calls coming into or going out of the united sates by our known or suspected enemy when time was a clear factor? Seems a little silly to me.

I have a feeling that if your town was hit by a dirty bomb due to the president not acting in this manner you'd be up in arms saying it was his duty to have these calls monitored.



I can not and do not claim that this program has beyond a doubt included American citizens. However, from what is known, there is no indication that the program makes efforts to exclude US citizens. In fact, as indicated by AG Gonzales's comments in the aforementioned briefing of the redaction of information about Americans, it is highly likely that this is so.

However, at this time, I cannot assert that this has targeted Americans.

will collapse????  Wow, that's quite a Christmas (I'm sorry, Winter Festival) wish.  I see that you are very concerned with the Fourth Amendment rights of those who want to harm us.  What about my Second Amendment right?  Are you concerned aboout that as well?

I would rather die in a terrorist attack, than live in a police state without civil liberties.  You take away the 4th amendment, which one is next?  The 1st?  The 2nd?  

Any true patriot would rather be dead.  

Any amendment needs to be fought for as strongly as any other.  

Tried to reach for some power which may help the country but also goes against all separation of powers and judicial oversight and is against one of the Bill of Rights.  Hoped he could get away with it.

It's nice to have two strawmen options and one noble one, but it hardly means they are the only ones.

- as I said - this isn't about you.  This is about me, and my amusement.

By the way, I think that the NSA is monitoring this thread.  In fact, there's an icon I haven't seen befo... NOOO!!!!!  THE NSA'S MANIFESTED IN MY DESKTOP!  IA! IA! CTHULHU FHTAGN!  CTHULHU FTHAGN!

(loss of signal)

All the uproar isn't even that the calls shouldn't have been monitored, its just that potentially a technical legal hoop wasn't jumped through.

It does seem sily but I'm not a lawyer.

You joke about a constitutional amendment, and right.  But without the 4th, that you hold with no regard and mock, what is to keep them from making your rediculous mockery come true?

know that Ben Franklin traded in slaves? Now that you do, does his statement mean the less to you? Just curious. His quote on liberty or safety is like saying better safe than sorry. That's fine if those are the only two options, isn't it? But maybe we can do better than binary oppositions.

 You'd rather be dead than live in a police state. Bully for you - me, too. But I'd pick up a gun first to fight, wouldn't you? But how about a bus filled with schoolkids - they can't fight, vote or give in to fascism, but they can get blown up, can't they? If that happened, would you then be so sure about what 'unreasonable' seach and seizure means?

 Yesterday, General Hayden said very clearly that information gleaned from extra-judicial surveillance prevented attacks on American soil. Maybe one of those attacks was intended to kill children. What do you think about that? Just curious.

that's right.  You hit the nail on the head.  That technicality is the fourth amendment.  That little insignificant thing the President swore to upheld and then admitted he violated.  That little technicality.  

Take note of the word "reasonable" in that Amendment. Look up the definition in a dictionary.

Done? Good.

Now, let's look at the story according to that lover of all things Bush, the New York Times.

 - A few months after 9/11 Bush authorizes the NSA to monitor all International calls to and from numbers gathered from the contacts information of Al Qaeda members.

In other words, is your phone number on a palm pilot belonging to Khalid Sheikh Mohammed, Muhammad Atta, Ramzi Yusef, etc? Yes.

Then I believe it would actually be unreasonable for the NSA not to take an active interest in your International phone conversations. Especially after 3000 of your fellow citizens have been killed by jetliners converted to missiles by the same group of people that have you on their address book.

That anything Jonathan Alter has to say about this President, in terms of either his motivations or his results, will be singularly focused on causing Bush trouble for the rest of his Presidency -- that's a given.  Jonathan Alter and the rest of his clique are firmly stuck in 1974, but their efforts so far haven't been as successful as they'd hoped.  

If what Alter is saying is true -- that the Times sat on this story for a year -- then one very strong possibility is that Sulzburger, et. al., realized it was too late to use this story to influence the elections in 2004, and the next best time to roll it out would be during the Patriot Act reauthorization fight.  I'm firmly on the side of (c) in your list.  

Another question that George Will should be asking today (and he raises a few other interesting ones in his column at the WaPo) is this: "Why Didn't He Ask Jonathan Alter?"  

YOU'RE the Fourth Amendment?  Kewl!  I always wanted to meet a fully manifested anthropomorphic representation.  Tell me, was that you who got the cameo in the Schoolhouse Rock episode, or was it the Tenth?  I've got a small amount of money on the matter...

Oh.  Wait.  You think that I'm mocking it, not you.  Nevermind.

And I'm not saying the wiretaps shouldn't have been placed there.  Don't misunderstand me.  Bush could have gone to the rubber stamp department under FISA and gotten a warrant 3 days after the wiretapping was done.  This wouldn't have slowed him down at all.  He could tap anyone he wanted to but would have to get the warrant to be effective retroactively.  Which has been done many thousands of times since FISA was passed.  

Bush decided that even this was too much of a burden though, so he decided to singlehandedly do away with the 4th.  And that is what I'm upset about.  

And the fear tactics only go so far.  I'd gladly fight to the death to defend the 4th, with every other amendment, the constitution and this nation.  And I will do my best to defend my children, but I also home that one day they grow up to feel the same way I do.  They would rather be dead, than live without liberty.  

As for your conditions, I do make overseas calls to a very close Muslim friend who lives in Paris and travels all over the world for a living. Who knows what criteria they ar using to determine these things. Maybe my friend donated to a charity which wasn't as upstanding or scrupulous as hs is or the thought they were. I could very well be suject to surveillance due to this program!

...if the people who are being monitored are not going to be charged with a crime then there is no "due process" ...involved

Of course there is. The due process necessary is that of requiring a warrant to be obtained. (Cf. Amendment IV.)

Why is that so difficult?

Let me see if I understand:

The government compiled a list from Al Qaeda and Taliban sources of people who had regular or irregular contact with terrorists.  So the Government monitored any international calls that these folks made to see if they were talking about making another 9/11, or worse.

If the spies thought they heard something fishy, they increased the level of surveillance, and potentially thwarted some operations.

At no time did the government break into peoples homes in the middle of the night and 'disappear' them.  At no time did the government prevent people from communicating with friends and loved ones abroad.  They just monitored the public airwaves to keep the homeland and our troops abroad safe.

I'm not upset about it.  I laud them for doing it.   I wish they had done something like this prior to 9/11 and prevented the slaughter of 3000 people.

Again, maybe I'm just quirky.

cool, as kewl? lol

To do the wiretapping?  

and probably my only concern, is that this action will set a trend for the future, and for abuse by future leaders.  President Bush is using it only to nab terrorists as he should.  But that doesn't exclude Presidents in the future from using it for other, more sinister purposes.

In particular, suppose Hillary becomes president. and she cites as precedent this kind to allow her to eavesdrop.  Does anyone here trust her not to use that power to go after conservative and religious groups?  I certainly do not, not with a woman who has nothing but revenge and hate in every bone of her body.  

This is the one concern that I have regarding both the Patriot Act and the eavesdropping.  And that's why I agree the Patriot Act should sunset after another four years, which is exactly what the compromise that was agreed to by the House said.

A possible solution to this is for Congress to include in the Patriot Act renewal, allowing the President to wiretap citizens only for investigation of terrorism and treason(needs to be included to weed out the Michael Moore type fanatics), but explicitly bans it for any other purpose.

that they've consulted with Congress 12 times.. TWELVE TIMES! So far, everyone who has commented about any consultation has indicated it was seldom or even once, and even this consultation does not seem to have reached beyond the leadership, the committee chairmen, and the ranking members of the intelligence committees.

That's not oversight, it's a joke. If further evidence of more expansive consultations comes forth, great. However, every shred that exists so far is consistent with what I have said.



George Will's column "why didn't he ask Congress?" was answered yesterday by the Attorney General who said Congress would never have approved.

http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html

Q If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

And so the New York Times et. al., have decided to kill the program.  AGAG should have just asked them from the beginning.



Let's just cut to the chase and use voter registrations to determine who the 'bad people' are?

As a former Marine who served during the first gulf war. I will say unequivocally that I am a Patriot and the first thing any patriot has to be concerned with is defending the citizens of his/her country from foreign attack

as for this statement " I would rather die in a terrorist attack, than live in a police state without civil liberties"I think that's a bit over the top.

If you truly belive that this administration wants to turn America into a police state I'm sure there are many conspiracy theory blogs that will indulge you. Try Alex Jones's site

...he had every right as a Senator to introduce this into the Senate (in closed session if necessary) to demand that legislation be crafted to address this issue.

He had no such right. He was sworn to secrecy. He could not tell his staff, he could not tell a lawyer, he could not even tell other Senators! This is evident from what Sen. Rockefeller and others have said.

As for crafting legislation, since the purported power to do this was used to IGNORE the statutes on the books that govern this type of activity AND the power derives directly from the Constitutional power of commander in chief, what on earth exactly would you have Sen. Reid do!? Your assertion is exactly wrong.

This is a rape of our system of checks and balances. It is an affront to our republic, in which the leaders and the governed are subject to the same laws by definition.

to answer this question in a diary I wrote this morning. My wife, who has a Ph.D in Electrical Engineering and who teaches graduate courses in antenna systems, gave me a briefing on the intricacies involved in monitoring cell phone transmissions, a briefing much more involved than what I wrote. How do you get a search warrant on a stolen cell phone? You have no evidence whatsoever that any American citizen was monitored, or even if any land line communication was monitored. What are the 4th amendments rights of a stolen telephone?

believe that they wanted a police state.  But we have seen now that all Bush had to do was ask for a warrant.  He felt that was too demanding on himself, so he flushed the 4th.  One amendment down.  How many more to go?  

I'm not saying we shouldn't have been spying.  I'm saying we should have done it the right way, the legal way, the constitutional way.  



First, the program isn't dead because of the NYT. You're giving them a little too much credit I think.

Secondly, Terrorist organizations knew they were being listened to, if they didn't realize this, then that's one group that's too dumb for us to worry about.

I think all that is going to come of this is a paper trail will be enforced, nothing else.

Consider that NSA satellites can photograph cars on a highway.  I don't know that warrents are ever authorized for this, and I doubt that these satellites are turned off simply because they are over the CONUS.  

I am satisfied with this power (including wire taps) in the hands of the administration (that we elect btw) because I can understand the separation required for prosecution.  It is a fine line though because if the NSA is successful in overhearing a conversation that leads to the bust up of a terror cell, then I want the members of the cell prosecuted.  I suspect that the end result will be deportation rather than prosecution for terrorism or treason and that the reason may well be the manner in which the information became available.

Bush admitted the program existed and that American citizens were involved.  I just figured I'd trust him on that one, since I really didn't see he'd have much of a reason to lie about that.  And it isn't like the FISA court wouldn't have given him a warrant for the cell phone.  They give a warrant for everything.  All he had to do is ask AFTER THE FACT.  He didn't have to have the warrant to do it.  He just needed to get a warrant that was retroactivly valid.  

don't you need probable cause to get a warrant? Is your number being in an A.Q.'s cell phone in and of itself probable cause? I don't know but maybe its not.

The people originally being monitored (and remember that only their International calls were being monitored) were people whose names were found on Al Qaeda laptops, palm pilots, address books, etc.

Whoever this seed group of people called then got put under surveillance as well.

This would definitely be imperfect and no doubt some people who were totally innocent had their International calls monitored for a while. But that does not mean that the United States is even a millimeter closer to opening concentration camps and rape rooms.

You cannot possibly know who is innocent and who is not. All the NSA had to go on is that someone's number is on Muhammad Atta's address book - shouldn't that be a cause for concern? Whether or not they had the authority or right to tap is something they have to learn on the fly over a much longer period of time than 72 hours.

A FISA court cannot authorize the type of roving and ad hoc surveillance the NSA and the President realized (rightly or wrongly) was necessary to counter terrorist operations in the cellular age. So the President, with the advice of the Attorney General, and the knowledge of Congressional Leaders and the FISA courts' senior judge decided to follow another route.

I confess that I'm not a 100% certain this was legal. But I'm at the 90% mark. Convince me I'm wrong.

...looks like the 'anthropomorphic representation' bit went right over the head, then.  Well, it's not like I didn't know the risks going in.



There are tons of them! What a stupid country this is. We've got all these LAWS and RIGHTS and CHECKS AND BALANCES and stuff, granted and governed by our Constitution, and they're such a pain!

We should just elect ole Georgie King and be done with it. Oh, how much better would that be!

While it would be easy to think that you can assume that all terrorists register with the Democrat party, I wouldn't at all be surprised that just to throw the government off, quite a few of them(the US citizens of them) register Republican.

I certainly wouldn't mind getting rid of all of the left, but we would have to come up with a better scheme for that.

then why even bother trying to spy on them in the first place?

I hereby give up. It just seems unreal to me to discuss this without any consideration of the technical apsects involved and how those aspects in and of themselves make a law written in 1978 useless in the current war. Some people have this image of NSA monitors shivering in some remote mountain outpost, tuning in radios with clunky headphones on and monitoring every single international transmission that comes out of or into the US. Whatever. This program saved American lives - I hope that President Bush and NSA keep at it. BTW, since the NYT has such unimpeachable sources, I've no doubt that we will shortly hear from all these people whose 4th amenddment rights were violated. What are they waiting for?

Bush could have gone to the rubber stamp department under FISA and gotten a warrant 3 days after the wiretapping was done.

According to knowledgable insiders (as detailed in this article from NRO), it takes more than 72 hours to prepare an application for the "rubber stamp".

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

You appear to believe that the warrants were bypassed not for cause, but "because they could".

If I needed an important capability outside normal channels to succeed in a critical task and I believed I had the authority to use it, I would do so in a heartbeat. You, obviously, would prefer to fail.

Yes, you got it right and your analysis is brilliantly arranged and structured. You have done us all a great service.

But reasonableness is not the test, ultimately. This is war. And reasonableness will ensure losing on principle, not winning. Luckily, in our two great wars for survival both Lincoln and FDR's respective parties held majorities in both houses in Congress and so had a free hand to wage war to win without fear of impeachment.

For any that deny the Provident hand of God that brought America to Independence from the World's greatest power at that time in 1776-1814, restoration following the worlds bloodiest conflict between the worlds two greatest armies up to that time in 1861-1865 and victory over two great entrenched facist powers in Europe and Asia in WWII must see life as but luck and chance.

For if divided government had prevailed during the Civil War or WWII does anyone believe either FDR or Lincoln would have had the free hand so often unavailable to democracies to fight a ruthless unencumbered enemy?

that what the Pres. did, did need to be done, but just needed to be done in another way.  I don't know what that way is, but I didn't ask to be the President.  He should have found another way.  A legal, constitution way.  He did violate the 4th amendement, however, any way you slice it.  The means do not justify the end.  Same as torture.  Just because you may get useful information out of a criminal American citizen about who his drug dealer is, obviously we all agree that torturing him would be wrong.    

And if he wants to make the argument that he did it for our safety, more power to him.  I won't believe it, but some may.  But he should quit trying to hide between laws that said it was ok, because no law can overrule the 4th.  

 

    ... this consultation does not seem to have reached beyond the leadership, the committee chairmen, and the ranking members of the intelligence committees.

Your ignorance is showing ...

This is the standard operating procedure for the most secret of the operations by the nation's Intelligence Agencies. Only those people you mentioned are informed.

And while it may not satisfy you, that is still oversight. Barbara Boxer does not have the right to know anymore than Rick Santorum. On the other hand, Pat Roberts and Jay Rockefeller do.

the basis for the warrent would be weak enough in some cases to be denied.  This does not mean the agents tracking a suspected terrorist - bent on some attack are wrong to do what they are doing.  It means that the terrorists themselves are trying to evade detection.  The basis for the warrent is that the contact involves a suspected terrorist somewhere in the chain.  Some follow-up contacts will be innocent.  When this is determined, these contacts will be dropped as fast as possible to free up agents and bandwidth.

The question is are we all right with some highly dedicated persons doing this in order to protect us?  I would suggest that the vetting of these agents is part of the "checks and balances" required to preserve our freedom.

case it there is a possibility that your calls might be monitored. But in that case there would be reasonable suspicion that your good buddy was not your friend in all matters, no?

I contend that "due process" really only means something if we are talking about taking you to the dock. The whole idea of obtaining a warrant is centered around the legal process of denying you life, liberty or property. We want to make certain that you are not tried and convicted based on rumor, hearsay or evidence that was arbitrarily gathered up. In my mind the objective of "due process" and warrants is intimately tied to the idea of denial of life, liberty or property. The threat of such denial is the only real power that a free society has over its citizens; it must be exercised with the utmost restraint.

In the absense of such threat what value is there to "due process" and the warrant? To preserve your 'right of privacy', which right is nowhere enumerated in the Constitution? If you believe, as I do, that the 'right of privacy' was created by judges out of whole cloth then the idea that someone can listen to your conversations so long as they cannot use the information to bring you to trial and thus at risk of your life, liberty or property is not so foreign.

In the absence of your extra-Constitutional 'right of privacy, my Constitutional guarantee of life, liberty and the pursuit of happpiness trumps. And being blown up by you or your friends most definately impinges on my rights.

----------------

A cop can bypass a court-issued warrant, and the chief law enforcement officer of the United States can do the same. There are typically four tests, any one of which may be sufficient, and al Qaeda scores all four: Preventing (1) imminent danger to life, (2) serious damage to property, (3) imminent escape of a suspect, or (4) destruction of evidence. (People v. Ramsey, 545 P.2d 1333,1341 (Cal. 1976); IANAL.)

So what you are really challenging is the whole concept of exigent circumstances. Yes, the 4th in wonderfully plain, but as Justice Jackson said, we should not "convert the constitutional Bill of Rights into a suicide pact." Routine exigent circumstances may sound nonsensical with no context, but the context is well known to us.

However, I do have concerns. The 4th Amendment right to be secure against unreasonable searches does not depend on the information being usable in court, and shame on the administration from even raising that point.

I am also concerned about it taking to little or too much time to remove from the list someone who should not, or seemingly should not, be on it. Phone numbers are not unlimited, so if I buy a cell phone tomorrow -- disposable or not -- it may be assigned a number that was used by a terrorist six months ago, and is still in another's phone book or list of calls.

On the other hand, I don't want the government to hear one or two mundane calls to MovieFone and conclude too quickly that someone is not involved in something much more sinister. This is not the most solid ground on which we're treading.

As I understand it, a good number of the breaks in espionage cases occur when agents get sloppy in their fieldcraft: they assume that because they haven't gotten caught yet, they won't.  It's a classic low-probability-does-not-equal-no-probability error, or perhaps a dice-have-no-memory one.

Why do they need to come forward?

You caught that the 4th Amendment applied to unreasonable searches and seizures, right?

in which case the computer scanning that number, after failing to trigger on any keywords after a few hour, days, weeks or whatever simply goes on to something else. These are finite resources and if they latch onto Aunt Peggy's number by accident they aren't going to spend a lot of time waiting for her conversations about this years yam canning to trigger the magic words.

link to your credible source that confirms the taps in question were performed against American Citizens.

just because calls were coming into or out of the United States does not mean the caller or the recipients were citizens until we know for sure lets go easy on the trashing of the 4th amendment accusations  

instead of looking back and trying to destroy an administration on a technicality, because "we hate bush" lets examine whether or not we need legislation to expand the presidents powers to keep up with technology employed by our enemy's

I overlooked this little bit at the bottom:

The President is Chief of the Executive Branch of the United States Government. It may indeed surprise you to know that the President of the United States does have some power over the civilian side of the Federal Government.

Yes, obviously he does. It may surprise you to know he does not have complete authority over the Executive Branch. He governs accoring to the laws passed by Congress. He does not run the Executive by decree, and he is not Commander In Chief of the Executive Branch!

THANK YOU

This is the argument that needs to brought up over and over again.

How does it damage the US Intelligence Service to let the Terrorist now they are being spyed on with out a warrent?

They probably do not even understand the idea of a warrent as they are mostly from opressive regimes.

If they do not know they are being spyed on, then they must be idiots.

I do not understand how the situation is any different now that the cat is out of the bag, then before.

The NSA can spy on anyone they want, they just need to get permission.

If that is to much trouble, maybe we should change the law,  but we can not jsut have the president and his lawyer (gonzales) decide that is in our best intrests to ignore the law.

I know of a lot of laws I would like to ignore,

Andrew

for only select groups of members to be informed about intelligence matters. Newly elected Congressman Fuzzbottom, junior member of the House Subcommittee on Soy Beans is never advised. Senator Rockefeller, Ranking Member on the Senate Intelligence Committee is.

I'd get fitted for a new tinfoil hat, your's is a bit too tight.

And that sound you keep hearing outside at night? That's the black helicopters gathering up your neighbors to send them to the Halliburton re-education camp. They come back in the morning 'adjusted'

Now you're being silly and quite frankly seemingly approaching hysteria.

Hell, if that was the case, the Administration can call any set of Democrats to the White House, swear them all to secrecy and do whatever it wants because they can't say a word.

How then can the Intelligence Committees in the House and Senate practice any oversight over the CIA since the members are sworn to secrecy? How then is legislation controlling the Intelligence apparatus of the United States drafted?

Reid could have done a great deal of things. As Minority Leader he is a member of the Senate Select Committee on Intelligence and in case you did not know, they do craft legislation affecting their area of responsibility.

He need not even mention the current ongoing program to write a bill covering that precise area i.e. International calls by numbers on terrorist palm pilots, etc.

The fact remains that Reid was notified, and Daschle before him. He said and did nothing until the New York Times commanded him to jump ... and now the man claims to be OUTRAGED!!! a full year later.

Sorry ... the poor helpless defenseless Harry Reid storyline doesn't wash with me. It's ____ and I'm not an idiot.

There seems to be support for the president's activities because of the need to "fight terrorism".  What I don't understand is why the president could not adhere to the law put in place for his activities.  If I want to sell alcohol in my restaurant, I have to get a permit.  If I sell alcohol without a permit, I break the law.  Is there any argument that my selling alcohol without a permit was okay?  Selling alcohol in a restaurant is legal, as long as I have a permit.  The President's wiretapping was legal, as long as he got a warrant.  Why is there such a hubbub to defend his failure to adhere to the law (if the law so required him to obtain a warrant for his activities)?  If the law required a warrant, and the President failed to obtain a warrant, is there agreement that the President broke the law?

The problem with the President's failure to obtain the warrant, either prospectively or retroactively, is that we have no way of knowing WHO was being monitored/tapped.  We must trust that Bush is only monitoring suspected terrorists in the ilk of al Qaeda for our safety from terrorism.  But how do we know that he is not monitoring journalists, domestic activist groups who oppose his policies, or politicians from other parties?  As he never tried to get a warrant for his activities, we don't know that, we can only trust that he didn't.  What surprises me is how many people are willing to just believe what the president says, no questions asked.  Surely we all here have lied and been lied to in the past...what makes this President different?  Nixon lied and spied...what makes this President different?

Why are we so willing to place so much power into the hands of the executive and trust that he will use this power in our best interests and not for his own personal interests?

to become poster children for Moveon, maybe? Or how about to join in on the largest class action suit in the history of the world - every single person who has made an international telephone call in the last 4 years? Or how about TV commercials for unbreakable GSM codes? Yeah - I can visualize it. Some terrorist looking guy, no better make it an old lady - talking gaily on her cell phone about anything she wants! - NSA free and loving it! Cut to forlorn looking white guy locked up unjustly in Gitmo - Why didn't I spend that extra 200 bucks for total security? BTW, if you're worried, better dump the cell - they sometimes come with GPS trackers unbeknownst to customers. Just kidding.

the idea that the Executive branch could prevent action by the Legislature by the simple act of calling some of them together and 'swearing them to secrecy' is ludicrous. And believing that contravenes the very concepts of the Constitution you so loudly proclaim.

I couldn't get it into words as well as you did, but my thoughts exaclty.

Perhaps you don't value the rule of law as I do, since you seem to be happy to lessen the concept of due process. Perhaps you don't mind having your 4th Amendment rights ignored. I do.

Here's the 4th Amendment in its entirety:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This isn't about any right of privacy you don't recognize. [ Cf. Amendment 9). You also won't find a right to breathe air in the Constitution, but, as with the obvious Right to Privacy, I'm sure it didn't occur the founding fathers to put that in there, either.] Amendment 4 is not ambiguous on this point. I value it. I'm sorry you don't seem to.

 And being blown up by you or your friends most definately impinges on my rights.

What on earth prompted that outrageous comment? Why would you say such a thing??

The question was on how to apply the existing FISA mechanism to the methods and operations of the new enemy.  The Admin claims that the FISA standards were too restrictive, hadn't been updated to reflect modern technology, and would not have been sufficient on its face.

From what I glean out of AGAG's comments, they asked Congress if they'd consider updating FISA, folks were leery because they are stuck on 9/10 mentality, so the Admin went ahead with the authority they felt they had from various authorizations and CinC powers.

I'd prefer it if Congress would authorize the program as is, with regular classified briefings, but the wimps seem to have the microphones  nowadays.

Blam. Blam.

Two trolls in one stroke. Brilliant.

why get one if he didn't need it?

You keep asking for substantive refutation to your 4th Amendment point.  Here's my shot at it.  Intercepting communications sent through the air, which no citizen owns, does not violate the citizen's right to be secure against unreasonable searches and seizures of "their persons, houses, papers and effects."  A phone transmission is not a person, house, paper or effect.  

This is not to say that we should not go beyond what the constitution demands to protect against eavesdropping by the fed.  But it is to say that the 4th Amendment hasn't been so obviously violated, as you suggest.

    He did violate the 4th amendement, however, any way you slice it.

I disagree. Which is why I reminded you that the word "unreasonable" in the text of the 4th Amendment is not there by accident.

Is your cellphone number on Khalid Sheikh Mohammed's laptop? Yes? Then it is extremely reasonable for the NSA to monitor your calls to Paris/Bombay/Karachi/Lagos, etc.

By your standards, Lincoln should have been shot long before John Wilkes Booth did it.

We have radar detectors to see if we speed, cameras to take out pictures in public and sometimes private places.  We use of social security numbers for purposes that clearly violate the original promise of the law.  We can be tracked with our driver's licenses or credit cards.

All of these without any (rational) hue and cry about violating the 4th amendment.

I've gotten probably 5 tickets in the past 2 years from the same dang speeding camera (I like to go fast).  I accept that I have to pay the fines, I accept that when I do something illegal I may get caught and have to pay for it.  But it's not a massive government conspiracy out to get me.

The airwaves and telephone cables are no different a phenomenon than those cameras.  They are the public airwaves, and if you do something illegal on them and get caught, consequences follow.

He did violate the 4th amendement

The SCOTUS will decide that point, I find it reasonable to 'tap' international phone calls to prevent 9/11 style attacks.

Besides, even if the 4th is violated so what?

Therefore the government can't use the info in court to convict you of something.  

New flash, the NSA isn't looking for convictions, they are attempting to prevent 9/11 type attacks..

according the the Constitution (Amend. VI) "...to be confronted with the witnesses against him..."

If we are going to go around in small circles quoting bits of the Constitution then these people should come forward and bear witness, no?

If the people who leaked this think it is so egregious then they ought to have the courage to come forward and allow us all to question them and judge their motives. But that isn't going to happened because cockroaches always scurry into the darkness whenever the lights come on. These people have arrogated to themselves the right o apply their judgement, their views, their likes or dislikes, their political persuasion above that of the elected government and then refuse to stand behind their accusations.

Frankly I'd be a whole lot more inclined to listen to your and their arguments if they would stand up and be counted. But the choose to drop the stink-bomb over the transom and then hide behind their "Almighty NYT" granted cloak of anonymity. A pox on them an the NYT.

If the government was to try to arrest, imprison, or charge anyone with evidence gathered through these searches, they wouldn't be able to admit that evidence in court, it would be inadmissable.

The government probably would be able to use it as evidence if the individuals monitored were determined to actually be undeclared combatants (or whatever Padilla was) and the President detained them as per his powers allowed under law (at least so far).

But again, that's only if they are aiding and abetting Al Qaeda or some such of their ilk.

I'm still okay with that.

... what needs to be contained in a FISA warrant for it to be acted on by Judge? Do you have any idea how long (far more than 72 hours) it takes to prepare a FISA warrant application?

Do you actually have any idea as to how cellular technology and the Internet have made a law written in the 1970s anachronistic?

And finally, I have observed that Constitutional scholars of sterling reputations and credentials have come down on different sides on this issue. Why in the name of all that is holy should I just accede to your blind assertions that the Bill of Rights has just been violated?

Amendment 4



The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


  1.  People does not apply to agents of a foreign power.
  2.  Reasonable allows for a judgement call.

today in the Washington Post.  The above citation applies only to Democratic Administrations.

Please do not muddy the current issue with quotes from politicians that don't count anymore because we no longer have a Democrat in the White House.

...

We must trust that Bush is only monitoring suspected terrorists in the ilk of al Qaeda for our safety from terrorism.  But how do we know that he is not monitoring journalists, domestic activist groups who oppose his policies, or politicians from other parties?  As he never tried to get a warrant for his activities, we don't know that, we can only trust that he didn't.  What surprises me is how many people are willing to just believe what the president says, no questions asked.  Surely we all here have lied and been lied to in the past...what makes this President different?  Nixon lied and spied...what makes this President different?

Under the rules in place you'd never know anyway, the rulings of the FISA court are sealed. You know nothing with or without them. But you are prepared to accept that the judges of the FISA have your best interests at heart but the President doesn't? They may be judges but do you know who they are, who appointed them, what they think about terrorism? How do you know that they aren't even more "corrupt" that the administration? Because they are judges? Judges take bribes, judges watch our for their futures too, they are just human beings like the rest of us.

At the end of the day you have nothing but faith and belief in the system and the integrity of the people elected to serve. If you don't have faith in his integrity because Bush is a Republican or a Texan or something then say so, don't hide behind some Constitutional cloak. Thus far  your arguments against are not very convincing.

"He had no such right. He was sworn to secrecy. He could not tell his staff, he could not tell a lawyer, he could not even tell other Senators! This is evident from what Sen. Rockefeller and others have said."

But maybe he could hide behind the 1st amendment rights of the press and tell the NY Times?

Committee (no pun intended).  As ranking member he could have convened a closed door session of the committee, note here that Pat Roberts had also been briefed, and expressed his concerns or proposed a legislative resolution to his concerns.  Instead, he wrote a CYA memo to file.

This is typical of the courage and the brilliance of the United States Senate.  Please note that I made no references to party in that comment, which was particularly meant to be cutting and nasty.

how many times do I have to tell you  "Keep it Simple" or they won't get it. 'Anthropomorphic representation'? There are more than three syllables in there, not to mention at least one really hard word.

what the meaning of testimony is.

From the DOD website:

Our chief executive officer is the President of the United States.  Along with the Secretary of Defense and the National Security Council, the President determines the security needs of the nation, and then take courses of action to ensure that they are met.  The President, in the constitutional role as commander-in-chief of the armed forces, is the senior military authority in the nation and as such is ultimately responsible for the protection of the United States from all enemies, foreign and domestic.

As part of the Constitution's system of checks and balances, our budget must be approved by the U.S. Congress, which acts as our board of directors.  We accomplish this by working with various committees of both houses, primarily those dealing with funding, military operations, and intelligence.  Their decisions affect our well being and range from setting civilian pay raises to funding major troop deployments.

and

Directions for military operations emanate from the National Command Authority, a term used to collectively describe the President and the Secretary of Defense.  The President, as commander-in-chief of the armed forces, is the ultimate authority. The Office of the Secretary of Defense carries out the Secretary's policies by tasking the military departments, the Chairman of the Joint Chiefs of Staff and the unified commands.


But getting beyond that, I agree I didn't use the proper language to accurately portray what happened. I'm not sure how you believe I'm being silly or hysterical, but I'm trying to be very earnest in my comments.

VP Cheney or other Administration officials revealed this program to select members of the Intelligence Committee and the Congressional Leadership. While the entire Intelligence Committees are usually informed, in the most sensitive of cases, clearly, notification is more restrictive.

In this particular case, the information divulged was significantly different that in most cases in 2 ways: 1. It was divulged on a need to know basis only. In other words, as I have stated, the members informed of this program were not permitted, under penalty of law, to share the information further than that which was offered by the Administration (There are very clear laws about divulging classified information. These rules apply to everyone, even Senators. Do you dispute this?); and 2. That in this case, the program in question derived from no statutory authority but from direct Constitutional authority alone. (I read FISA, and this program in no way fits into it. For that matter, the Administration does not claim that it does.)

Given that this program derives from no statutory authority, please explain how there is oversight.

(For your reference:)

OVERSIGHT - n. -  management by overseeing the performance or operation of a person or group

Please explain how anything remotely resembling oversight exists.

Whether Reid and Daschle should have done more or incompetent, blithering idiots or not is completely irrelevant. What they did or did not do is equally so. This program has now come to light, and it is extralegal and unconstitutional in my view.

Let's just say the phone call is an "effect" - is it remotely "unreasonable" to monitor this? Is it any more unreasonable than the DUI check points that I will be subjected to around my neighborhood on New Year's Eve? Actually I would say that wiretapping Al Qaeda calls to US residents is much more reasonable than randomly stopping and checking everyone who happens to be driving down a particular street, a practice which has been ruled unambigously Constitutional.



Chief Executive Officer and Commander In Chief are vastly different concepts. It clearly does NOT say the president is their Commander In Chief, does it?

As a former member of the military working in the intelligence field, a former employee of the NSA and various other three letter agencies, believe me, I know how this stuff works.

...sometimes people can surprise you.  :)

I mistakenly combined this and another of your replies into one response which I posted above. In any case, here is a definition of oversight:

management by overseeing the performance or operation of a person or group.

There is nothing resembling congressional oversight here. What has occurred in no way approaches the definition of oversight.

that re-registering under a different name after banning is grounds for immediate rebanning.

If you want to be reinstated, make your case to an editor via email, but don't abuse the terms of service.

but stupidly so.

...because it fails to provide a rational motive for the "power grab." In Nixon's case, it's believable that he was angling for political advantage. What's the corresponding Bush angle? Clearly he wasn't about to gain political advantage from any part of this action. Clearly he wasn't seeking some kind of personal revenge against individuals. His capital doesn't rise with more convictions, so that angle's out.

Apparently the taps were limited to those meeting a very specific set of criteria, one that makes obvious sense, so the action doesn't easily lend itself to expansion outside that set of criteria. However, this is, as far as I can tell, the motive you were implying with your Option D. It calls for the whole shebang to be a Rovian plot: first, determine a convincing pretext for wiretaps on international phone calls by people in the US, who are probably not citizens, whose names or numbers appear in al Qaeda's address books. Then, expand that pretext to include international calls by US citizens on the same watch list. Next, further expand the criteria to include all international calls by anyone in the US. Finally, all calls of whatever nature by whatever people... so that Bush can... what? Run again in 2012, with deadly political advantage because sometime between the expansion of today's precedent and the 2010-ish election season, one or more of his opponents will make a damaging admission over the phone, and some friend of Bush's at the NSA will (still illegally) give him the information? Or what?

Occam's Razor pretty much leads us to Option C, it seems to me.

I agree that the use of the term "swear(ing) to secrecy" is not precisely correct. However, there are procedures regarding the dissemination of classified information. (See Title 18 U.S. Code: Classified Information Procedures Act http://www.law.cornell.edu/uscode/html/uscode18a/usc_sup_05_18_10_sq3.html)

These rules apply even among Senators, and the felony charges one would face for improperly disseminating such hightly sensitive information are severe.

It clearly does NOT say the president is their Commander In Chief, does it?

Our chief executive officer is the President of the United States.

The President, as commander-in-chief of the armed forces, is the ultimate authority

Did we forget our meds today?

if you believe what you wrote here you not only don't know "how this stuff works" but you also don't know your butt from a hot rock.

Perhaps if you'd devoted more time to your duties you wouldn't be a "former employee" and "former member."

The president is the commander-in-chief of the armed forces. The SecDef, service secretaries, and all appointed officials in DoD serve at the pleasure of the President. That means he can fire them at will.

So yes, the president has "plenary" authority over DoD and over all federal agencies as they are part of the executive branch.

And the last poster is right. The concept behind being banned is that you don't come back. You're gone again. Next time, your IP is blocked and your ISP abuse office is notified.

... you were sent to the Pile. It is bad form to return.

Secondly, you did not address the fact that only the senior members of the Intelligence committees are briefed on high security programs by the Intelligence Committee. This is standard procedure. It is far from a new thing. It did not start with the current President Bush, Clinton, Bush I, Carter or Reagan.

Third, Senator Reid can introduce legislation, without revealing anything about the current operation to govern this particular situation. That is part of the Senate Intelligence Committee's oversight powers over US Intelligence operations. Note again that oversight in your definition means that the Senate Armed Services Committee must directly manage the Pentagon's operations. That's not how things work.

The word oversight in terms of the United States Congress does not mean what you think it means.

Capiche?

It is obvious that Democrats/liberals are so giddy at the prospect of being able to hang something on President Bush that they have lost their collective minds.

This is an excellent post, and right on the money. This is a simple and not-very-controversial issue that the press and the Democrats are trying desperately to twist into something of meaning. Here is my view...

  1. The Constitution is the highest law in the land. Nothing the Congress passes or the President signs can trump the Constitution. If the President is acting in the capacity of Commander-In-Chief to prevent sworn enemies form attacking this country, it doesn't really matter what Congress has committed to paper. The Constitution gives the president the right to do that.    
  2. The reason we want to pass laws regarding personal privacy and limits to government surveillance is to prevent the misuse of government power. You know, to prevent the sort of abuses that Clinton committed with the FBI and the IRS.  All evidence here shows that the NSA activity was expressely for the right purpose: to defend the country against the attacks of our terrorist enemies. If there were evidence that the Bush adminstration were, say, using this surveillance to embarrass Howard Dean, there might be a reason to get upset (assuming that anybody could more effectivey embarrass Dean than he himself). But what the Dems are saying is that it is wrong to intercept international communications from or to known Al Qaeda operatives without going through procedures that wold render those efforts worthless.  Really?  Is that what you guys believe?
  3. This issue has all sorts of Separation of Powers implications. To the degree that the Court has reviewed analogous cases, it has wisely decided to stay out of the way. Congress better be careful as it decides how much it wishes to force the question. See #2, above, and ask yourselves - "How will this play politically"?

So they should pay the price.

And no the ends don't justify the means.



As far as point #1, would you feel the same way if as someone above stated, Hillary Clinton was President? I suspect that you would then feel there should be greater checks on Presidential authority.

Regarding your quote:

"But what the Dems are saying is that it is wrong to intercept international communications from or to known Al Qaeda operatives without going through procedures that wold render those efforts worthless.  Really?  Is that what you guys believe?"

No. Not to speak for the Democratic Party but I haven't heard anyone arguing against wiretaps on Al Qaeda personnel, the main argument (and my main issue) is that there should be a record, somewhere as a record to show that a President whether it be Bush, Hillary or Arnold Schwarzenegger isn't slowly expanding they're definition of a terrorist.

As far as your comment about the warrant procedure  making the wiretapping efforts worthless, I think that's pretty much been beat to death in the thread so I won't bother.

You can't look at it because it's classified.

If a FISA warrant were obtained, there'd also be a record, but you couldn't look at that, either. Also classified.

What's your next complaint?

There is no evidence or charge that US citizens were the target.  Even with a court ordered wire tap it is possible and legal to monitor both parties in a conversation.  The monitoring of calls from anyone to a terrorist, terrorist nation, terrorist harboring nation, anyone who might be considering an attack on the USA, anyone in contact with someone who might be considering an attack on the USA is all right with me.

Frankly, I don't care if they monitor me and all my calls.  I have nothing to hide.



I'm not saying "I", John Q public should have access to the list. But there should be a record that can be looked at by the appropriate people and THAT is what the uproar has been about the last 2 days, that apparently, wiretaps have been put in place without any warrant, even a retro-active one.

Papertrail, that's all I'm looking for. I'm not a terrorist-lover, Dean-lover, or Reid-lover, just a lover of checks and balances.

there is so much discussion is that it is not at all clear as you seem to think. Clearly there are many, many people right here who do not see it that way. Just because you believe it does not make it so,

Part 1: searches must be reasonable.

Part 2: warrants require probable cause.

It does not say that searches require warrants.  Otherwise, my rights are violated everytime I pass through a metal detector, get stopped at a sobreity roadblock... Warrantless searches are not automatically unconstitutional!  

These particular searches (once we learn the facts) may turn out to be unreasonable and thus unconcstitutional, but it is far from "clear."  Plus, there's the whole FISA thing.

exactly what was said and done, but on the face of it it certainly seems to line up with my understanding of the 'traditional' Congressional oversight of intelligence matters. They, the Congress, seem to have been content with this form of oversight practice for decades; it is a bit disingenuous for one or two of them to now complain that this isn't what oversight means.

That Senator Feingold might not have been briefed merely means that he wasn't briefed because he wouldn't normally be briefed.

Just because you don't like something doesn't automatically make it illegal.

I would agree that perhaps the President is stretching his authority a tad bit, but that's what happens when Congress gives President's broad powers.  None of that makes it illegal, immoral, or unconstitutional.

Unless of course we are using the Ginsberg-O'Connor standard where things are unconstitutional solely because they say so, but that's an entirely different thread...

The measured tenor of your response is quite different from the hysteria we are hearing. Nonetheless, there is plenty of room left for argument.

Responding to your first point(would I be as blase if Hillary or another Dem were Prez?), I probably would, that is the nature of partisan politics.  But by being more concerned I wouldn't be able to evade the central point: Stopping bad guys from causing us harm is the Constitutional function of the President, not the Congress. The President ought to have significant leeway, unless it is demonstrated that that power is being abused. There is as far as I am aware NO inkling of anything like this.

Which leads us to your second response. I actually agree.  It seems sensible to have an ex post facto record so that we (and our representatives in Congress) can ensure no abuses are occurring.  But that has nothing to do with the issue at hand. That would be a new requirement. I, and I am pretty sure most conservatives would be on board with this, am inherently skeptical of government power, and reasonable measures shoudl be taken to avoid abuse of that power. But the direct implication (and direct charges) from the left side of the aisle are that something bad is going on here. Ain't true.

So this ought to be at most a minor brouhaha over methods. The Dems/Libs have chosen to pretend it is Watergate II. Bad choice.

 

They are 'sworn to secrecy' or whatever term you prefer. That does not prevent one of them from dropping a bill in the hopper to control various intelligence activities without any acknowledgment of why they are doing it or why they think it's important.

is not to provide a record of  for later review, it's to approve the activity in question. I suspect your issue is with the lack of judicial consent, not with the absence of review (especially since review is not absent).

As I said before, there is a record even without a FISA warrant, and it's reviewed every 45 days when the program is reauthorized.

OCCAM's new 'MACH 3' Razor... one blade tugs on loopy logic while the second blade cuts it off, leaving the third blade to skate on exceptionally thin ice.

Steve Mirsky

Scientific American

You are making the mistaken assumption that searches are only constitutional if done under a warrant.  That assumption is not in the Constitution.  So I can slice the 4th many ways, and the plain English supports Bush.  You need to stick with FISA, as you aren't grasping the Constitution.  FISA is where Bush is in trouble, and Bush will likely have to argue that the provisions of FISA he (appears to have) violated are themselves unconstitutional.

"Me fail English? That's unpossible!" - Ralph Wiggum

I would want the next President of whichever party to continue this policy.  If Hillary (shudder) wins, I want her to be as vigilant in protecting us from terrorists as Bush apparently has been.  I fear that this will not be the case however, and we will go back to the bad old Gorelick days of silly walls, willful ignorance, and a posture of hoping they don't do it again.

So long as the information that has been provided is true, the essential facts are not (or in my opinion should not be) disturbing to all that many Americans.

  1. Phone or name had to be on a list of an Al Qaeda or Taliban computer or receive calls from known or suspected Al Qaeda phone numbers.

  2. Person had to be making international calls.

  3. Person had to be using enough keyed language to warrant continued resources to continue monitoring what was being said.

That seems to be a rather narrow list of folks to monitor.

Second, once a list has been generated through warrants and such, can you really suggest that the NYTimes wouldn't publish it if they got a copy of it?  Of course they would.  So would the ACLU.

I won't go so far as to claim that they intentionally want to aid and abet, but if they inadvertantly do help them, it's not like they can just issue a retraction.

What copy of the Constitution do you have?

1. Phone or name had to be on a list of an Al Qaeda or Taliban computer or receive calls from known or suspected Al Qaeda phone numbers.

I would expect the list to expand as calls to and from these numbers generate leads to other numbers.

The 'editorial you' quite obviously ...

Obviously I am not a 'Constitutional scholar' nor even a lawyer, I'm just an average American citizen with some degree of education and common sense.

It seems to me that the Fourth Amendment is all about protecting your 'life, liberty and property' from arbitary, capricious, illegal threat from the government. In a free society such as ours the 'threat' to you posed by society is the risk of trial and imprisonment, death or fortiture of your property. In my mind, the Fourth clearly describes the actions that the society must take in order to place you in such jeopardy.

I value the Constitution as much as anyone and I want the full force of the that hallowed document to protect me against arbitrary actions by the society acting through the government. But the Consitution has many guarantees including 'life liberty and the pursuit of happiness.' And it defines the structure of the government that is supposed to act on my behalf to preserve those.

And yes, I do not find a 'right to privacy' enumerated anywhere nor do I 'infer' it from the Ninth Amendment.

I agree, originally that had to be the case, but by virtue of telephone it would expand a bit.

But 2 and 3 still have to apply.  There's been no claim of monitoring domestic calls, and you still have to be speaking about something relevant or at some point they stop monitoring you.

And ultimately, using the refuge of scoundrels, if you aren't doing anything illegal, you shouldn't be worried.  If you want to do something illegal, stop using the public airwaves to do it.

But you are prepared to accept that the judges of the FISA have your best interests at heart but the President doesn't?

That's very possible, but I don't think the judges carry the same power that the president does.  All I'm asking is that the president be prepared to justify his actions to an independent actor.  If he is not, I wonder why that is, and whether or not his actions were justified at all (maybe he was wiretapping al Qaeda, maybe he was wiretapping CNN and the democratic party.  While you may not like either of those groups, it would be clearly wrong for the president to do so).  

That same argument you make can be make for our government.  Why bother with a Congress when we can just trust the President to make our laws for us?  Why bother with an appeals court?  District court is enough.  Why bother with a second opinion?  I trust my doctor to correctly diagnose my conditions all the time.

Of course there is no guarantee that the judges will make the right decision, but when a procedure is put into place to ensure that the president is not exceeding his powers and wiretapping persons who have no business being wiretapped, I expect that president, be he Bush, Clinton, or whoever, to use the procedure so established or seek to get it changed.

At the end of the day you have nothing but faith and belief in the system and the integrity of the people elected to serve

I do have faith -- in the procedures put into place.  It's when elected officials circumvent those procedures that I have a problem.  I did not vote for Bush to go into the White House and have unfettered control over things.  I voted for him to serve as president subject to the restrictions and procedures established under the system.  If he or any president violates those procedures, I think that is a problem.

You are right on target.  The common response to people who complain about things such as airport security is that you can avoid the search by simply choosing not to fly.  There is no God given right, enshrined in the Constitution, to travel without having some undertrained airport employee rummaging through your cosmetics bag.  I used to work on the Hill and was subject to searches daily (this was right after the capitol shootings).  Those security procedures remain in place today.  I don't hear Harry Reid whining about the reckless abandonment of key civil liberties when it comes to keeping armed crazies (including armed crazies who happen to be U.S. citizens) out of the Capitol.

If you don't want the government to listen to any of your phone calls, don't make or receive any international calls.  If you don't want your bag searched, don't fly.  If you can't walk through a metal detector, don't visit your Congressmen at work.  

All of this is not to say that I think the government should randomly listen in on our phone calls (I would be vehemently against that idea).  But what I think of a policy's prudence doesn't impact whether I think the 4th Amendment completely proscribes a procedure.  Libs never seem to be able to untether personal opinion from constitutional imperative.  

Senators and Congressmen are independent actors. They can easily introduce legislation to control various activities without violating any secrecy oath you think they are sworn to.

Their oath of office (to preserve the Constitition) trumps any promise or oath they might make in front of the Vice President.

stood right their in front of God and all of us and took an oath to 'preserve protect and defend the Constitution.' So you are unwilling to accept that he meant that oath?

You're telling me that if a man or woman takes an oath to "preserve protect and defend the constitution" then that provides irrefutable evidence against any claim that he violated the constitution?  That there is no possible way that a man or woman who takes an oath of US office can violate that oath?  

I'm not saying that Bush did anything wrong.  I'm not unwilling to accept that he meant that oath.  I hope he did.  I'm just saying that if he did violate the law that is a problem.

Depends on your definition of "and". ;-)

Some laws are old, crusty, and stink to use. However, they are still the law of the land, and we have a process for people who choose to break the law. I speed sometimes in my car; I know what to expect if I get caught over the speed limit.

If it is necessary to speed up the FISA warrant process the President should ask Congress to do something about it. Yet, as indicated by the AG, Congress may be reluctant:

(reporter) Q -- adequate because of technological advances? Wouldn't you do the country a better service to address that issue and fix it, instead of doing a backdoor approach --

ATTORNEY GENERAL GONZALES: This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of 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.

(As a side note: It's weird for the AG to even mention Congress saying no can do. Leaving that out would make a better case for the "Congress has authorized this" idea.)

So, it seems that Congress might be reluctant to give the President faster than FISA powers, I'm not sure why, perhaps because they see a need oversight to stay within the Constitution, or some such. However, the AG did say "certain members of Congress", and no one seems to have actually asked Congress.

Do you have any idea how long (far more than 72 hours) it takes to prepare a FISA warrant application?

And yet, in the case of domestic taps, this is what the President said he would do.

Now, it seems to me that if a group internal to the US were planning a move on the US, there would be some purely domestic telephone calls.  So for the extra-important international calls, we need to be quick on our feet, but for domestic calls, we can do it the slow boring way.

This would seem to be a glaring deficiency.

Why not fix the "problems" with FISA to cover all cases?  Why are they doing it this way?

Democrats Say They Didn't Back Wiretapping. And they didn't approve going to war in Iraq, and they didn't actually believe there were WMD in Iraq, and they never ...

If they knew these callers were terrorists, why not just get the retroactive warrant and be done with it?  It's the secrecy that people object to, and the fact that Bush said earlier that he needed to get a warrant, and the fact that he wouldn't own up to it earlier.  Gotta be consistent, gotta outsmart people, gotta uphold the law.

Well, if I knew, emphasis on knew, I would send a terrorist to the sweet bye and bye. Seems to me the President was doing a pretty good job of outsmarting the enemy, at least before the NYT got involved. Gotta win the war.

John Hinderaker at Powerline thinks that it's not even close: The Legality of the NSA's Intercept Program

... For now, let me just say that the question does not appear to be close. Under all existing authorities, the NSA program, as we understand the facts, was legal.

For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. * We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.


Per Bill Kristol and Gary Schmitt in WaPo, for those who haven't read it yet:

"Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA."

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR200512190
1027.html

"...any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

From "President Bush: Information Sharing, Patriot Act Vital to Homeland Security

Remarks by the President in a Conversation on the USA Patriot Act," Kleinshans Music Hall, Buffalo, New York (http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html)

the enemy is smart enough to know that their phones can be tapped.  It's funny to me, this argument that the Times tipped off the terrorists.  I mean, everyone knows that phones, especially cell phones, aren't safe ways to communicate.  So I'm not buying the idea that the New York Times has helped the enemy.  It's like when people say our ports aren't protected well enough -- is that helping the enemy, too?  Or is that ultimately helping Americans?  I think both case are ultimately helping the country

court held that conducting military intelligence operations against communications originating or terminating outside the United States requires a 4th amendment search warrant.

Next you'll be saying that our troops need a search warrant to conduct "search & destroy" missions.

Next you'll be saying that our troops need a search warrant to conduct "search & destroy" missions.

If they thought they could get away with it the left would.

... if there's no threat of a trial (cause the evidence isn't admissable) just search your home at any time as long as they don't take or harm anything.  They can go through everything, just no taking?

Cause they didn't arrest you, didn't take your stuff, and didn't kill you... sooo what's the harm?  Is that what I'm to infer from this?

Because it seems to me to be the logical extension of your arguement.

But, I'm sure we're all aware that is clearly illegal without a warrant and inadmissable in court.

Or are you arguing because electronic communications and phone calls aren't a tangable object they don't deserve protection?  I'm sure the Founding Fathers would disagree with that and had such communication existed in their day would have intended it to be included under the blanket term of "persons, properties, and effects"

Either case I couldn't disagree more with your definition.

Also, Life, Liberty and the Pursuit of Happiness is part of the Declaration of Independence, not the Constitution.

Drudge has posted a link to an interesting Clinton Executive Order.

A radar detector takes a measurement of your vehicles speed.  Just like weighing a truck on a scale takes a measure to ensure it's not over the weight limits for a road.

These things aren't searches, they're ways to detect things the human eye can't.  Arguing that radar can't be used against you without a warrent is like saying the police need a warrent to stop you when they see you mugging someone.

What can be observed and measured isn't a search.

Wiretaps have more in common with the government opening all the mail you send and reading it to see what you had to say then they do with comparisons to radar speed detection.

Make sure you don't forget the constitution. What the POTUS, the congress and the SCOTUS think of it may differ.

For this exact reason:

Secondly, one can buy, use, discard and then buy another cellphone all in the space of one day. From what I've read, FISA does not have a provision for allowing the NSA to follow the person instead of the line. Furthermore, the anonymous and ubiquitous nature of cellphones and other forms of 21st communication means that gathering the documentation necessary to apply for a warrant would most likely take more than the 72 hours provided for in the FISA Act.

That seems to be the textbook case for the roaming wiretaps that Section 206 of the Patriot Act supplied.  Section 206 of the act allows for a roaming wiretap that permits "roving authority" to intercept communications without distinction of the specific computer or cellular device.

Why don't the yellow dog leaders of the White Flag Party just go to court and get an injunction ordering the President to stop "breaking" the law?

The arguement is for there to be a proper check on this power.

In itself you could say it's part of a record, but the executive branch could easily keep such a record on it's own.

The issue here is that our government is at it's core designed to allow no single branch complete authority.  It's the most bedrock principle of the entire system, each branch has powers that keep the other in check.

Allowing the Executive Branch to conduct warrentless searches with no Congressional or Judicial oversight and review erodes those checks and balances.

Even in what is argued to be the most exclusively executive power - War - he does not operate entirely on his own.  The President can't fund a war or the military on his own.  The Congress approves funding.

I've seen references that make this to be an ever growing net of association mapping.

While the chain starts as the numbers in a phone captured from an suspected terrorist, they then expand outward to include anyone the number found in the phone contacts.  

Supposing that the government never makes a mistake and they got the phone list of an actual terrorist and not just some arab caught in the wrong place at the wrong time:

  • We start with Terrorist Contact List.  - Person A.
  • We take all numbers in the list leading to the US and put them under watch by way of this exective order.  Lets say there's just one, Person B.
  • We then watch to see who those numbers call and put all THOSE people under watch too.  Which could easily be Americans 1, 2, 3, 4, 5, 6, 7...

And I'm not so positive it stops there, this system seems to be classical relationship mining.  I appreciate the logic, it's sound.  This would give you an effective way to try to uncover terrorist cells.  I'm also not so sure we're not watching 100% of the calls at that point.  I would seem to make the most sense to do so.  If you think your tracking down a terrorist cell in the United States wouldn't you want to tap all communications, those inside and outside of the US?  Otherwise it would seem to undermine the effectiveness of the program itself.

I'm just curious as to why this couldn't have been done with proper respect to the legal system (aka FISA warrents)

By a person who was in a list of contact numbers in some overseas phone that was suspected to belong to a terrorist that wiretapping you constitutes a 'reasonable' search?

Guilt by association is the level required to reach the point of reasonable?

a standard of proper conduct? After OKC I remember him castering aspersions on all conservatives. He even went so far as to question the patriotism of those that criticize the government.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

OK. Abdul Q. Terrorist goes into Wal*Mart and pays $60 for a disposable cell phone with 30 minutes of calling prepaid. He checks out by paying with cash in the automat lane, calls the activation service, and gives a fake name. Using that phone, he calls HQ, paying via the credit card he got last week, also under an assumed name. HQ then have the number and can call back.

Meanwhile, Pamela B. Ditzblonde picks up the next phone on the rack, pays by credit card, and uses it to call her brother, who is a Marine officer on leave visiting Kuwait City. She dials the wrong number, and gets a Waha'abist mosque.

The NSA have HQ's number in their computer because it was found in previous "intercepts", so the new number is logged as a "possible contact" and the computer is set to monitor it. This happens in milliseconds, untouched by human hands, because it's all in computer logs. They also have the mosque in Kuwait's number, for the same reason.

Ten minutes later, HQ calls back and tells AQT to go to 5th & Pennsylvania, flag down the green Honda SUV with West Virginia plates, pick up his explosive vest, detonator, and truck keys, then go about his business. AQT does so, thoughtfully tossing the disposable phone in a City trashcan on the way. Total elapsed time, including ogling the blonde with a cartful of skimpies in aisle 25 of the store: One hour.

What're you going to put on the warrant?

You don't know where he is; even if you've got the cellphone system logs (which would require a warrant, or rather a subpoena, right there) the best you can do is (roughly) a half-mile circle if it's GSM, up to five miles with old-fashioned AMPS. Without the logs, it's "anywhere in the provider's service area" -- more countryside than 90% of the Duck Soup Republics in the world. Go ahead, I dare you. "..particularly describe[] the place to be searched." You can't even reliably name the state!

You don't know who he is. There's nothing in the system that could reliably identify him. You don't know if he's an American citizen or a q'Tholpian slug evading the Men in Black. You can't distinguish between him and Paula based on anything you have. There is no way, even in principle, to determine that at the time the calls are made. "...particularly describe[] the person..." Right. You don't want to arrest him, anyway. What you want to do is follow him, stop him from exploding, and trackback the green Honda for more contacts.

What're you going to seize? The cell phone? It's a disposable, total manufacturing cost $8 and change, produced by the literal millions. In China. The only way to "particularly describe" it is to give the Unique Instrument ID, or serial number, that's embedded in the chip -- but you can't get that without access to the cellphone system logs, which will require (a) a subpoena and/or warrant and (b) anywhere from several hours to a week to sort through the data.

But OK, you're gonna be squeaky clean, so you set the law clerks to assembling all the data and all the paperwork necessary to secure the warrant. 71.5 hours, and twenty person-days of labor, later, one of them comes in and says, sorry, we're missing this piece of paper and the office where we can get it is across town and closed anyway. So the magic 72 hours elapses, and you still don't have warrants to listen to the calls; you're illegal. And you don't have any way to distinguish between Abdul and Pamela -- because that would require examining the content of the calls, which requires a warrant!

[expletive deleted] It goes all the way back to Blackstone, or before: the law cannot compel an impossibility.

Bush is too nice a guy. If it were me, I'd tell the NSA to ignore anything north and east of Philadelphia or west of the Coast Range. When the bombs went off I'd just shrug and remind people that Harry and Nancy say it isn't legal for me to know about that kind of thing, whereas it is (apparently) legal for Bill, Hilary!, and anybody who strolled through that part of the West Wing to examine the FBI and IRS files of people under suspicion of not liking Democrats.

Try to manage some semblance of a sense of proportion, people.

Regards,

Ric

In a speech in April 2004, Bush addressed exactly this point (italics are mine):

"a roving wiretap means -- it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he'd do? He'd get him another phone, particularly with the advent of the cell phones. And so he'd start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on -- roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see? And that didn't make any sense in the post-9/11 era. If we couldn't use a tool that we're using against mobsters on terrorists, something needed to happen.

"The Patriot Act changed that. So with court order, law enforcement officials can now use what's called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies."

Just prior to these lines, in the same speech, Bush said, "a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

Outside of slimy Clintonian word parsing, it looks is right now Bush is laying in a bed he made himself.

From "President Bush: Information Sharing, Patriot Act Vital to Homeland Security

Remarks by the President in a Conversation on the USA Patriot Act," Kleinshans Music Hall, Buffalo, New York (http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html)

OK by jsteele

why would they search my home unless they were looking for evidence to be used at trial? Because they have nothing to do this afternoon? Because they're making a collage down at the precinct of people who don't change their sheets this morning? In a free, democratic society the reason the police conduct searches is to obtain evidence for trial, there is no other obvious use for such activity. And is precisely the reason the Founder's proscribed it without due process; the authorities intend to place your life, liberty or property at risk and the Founders wanted to make certain that it could not be done arbitrarily.

Had there been telephonic communications in the time of the Founders I'm quite sure they would have viewed it the same as any other 'place to be searched, and the persons or things to be seized.' But that's immaterial except in the context of something to be used at trial.

The police gather information all the time without warrants. When they find a particularly interesting tidbit that indicates that a law has been violated and may go to trial they get a warrant and start gathering evidence. But that doesn't change the fact that they gather information independent of the warrant.

Yes 'life liberty and the pursuit of happiness' is from the Declaration not the Constitution.

Provide some support or leave.

that we are at war with the source? Yes, it is reasonable to listen and determine where is/how to proceed.

there's very little chance the NSA would be able to humanly do anything about it. Its unlikely there is a person listening in with a Delta team in body armor ready to get the terrorist. Almost certainly, this communication is electronically recorded as will the hundreds or thousands of other calls. It then has to be translated and possibly decrypted as well. Most likely it will sit in electronic storage for a while, just as the electronic intercepts that hinted at 9/11 were not checked until the next day.

By introducing the courts into it and ideally introducing proper Congressional oversight of the program that the review of the issue and the decision to move forward with the wiretap was made by more then one individual.

How do you know that they aren't even more "corrupt" that the administration?

Doesn't matter, Judges can't ask for the warrent.  They can only approve it.  Admittly you could have a Judge turn into an administration rubber stamp, but then if it turned out the Judge wasn't performing his duty and instead just approving everything that went by without consideration I'd have a problem with him and not Bush.

That's the division of power.

Your faith in government apparently allows you to consolidate that power (both to ask for and to approve) in one person.

My belief in how our government should work and my understanding of how our system was layed out says that no single branch should be granted such an exclusive power.  It should be seperated so that it in some regard requires the actions of two branches to support.

The creation of laws follows this guideline.

The prosecution of criminals follows this guideline.

The waging of war follows this guideline.

Why not this?

Person B is inside the United States and Americans 1,2,3,4,5,6,7 et al are inside the United States then the situation is entirely different and the prohibition against wholly domestic intercepts clearly applies.

We are at war with the people who are involved; the people involved are in contact with someone inside the country; one end of the conversation is inside the country, the other is not.

Other circumstances, differnt process. What's so hard about that?

The Fourth Amendment protects against unreasonable searches and seizures. It is important to understand that the Supreme Court has held all manner of warrantless searches to be constitutional. Border searches require no warrant, regardless of your citizenship. If police have a warrant or probable cause to arrest anyone in your vehicle, they can search the entire passenger compartment of your vehicle and any containers therein. The Court recently held that the presence of a small quantity of drugs, in or near the console of a car, justified the arrest and search of all occupants of that car. Your phone and bank records can be obtained by any number of agencies on their subpoena power alone. If you are involved in a serious accident, your blood can be drawn based on probable cause alone. Your dwelling can be entered without a warrant if exigent circumstances exist. A well founded belief that death or great bodily harm is imminent is an exigent circumstance per se. You never need a search warrant in a hostage situation, no matter who owns the structure. Thousands of legal warrantless searches occurred today, many in relatively trivial contexts. In determining the constitutionality of a search, another factor to be considered is whether the individual has an expectation of privacy that society is prepared to accept as reasonable.

What you are left with is a balancing test, or perhaps a double (Jim) beam balancing test.  The greater the magnitude of the possible consequences of delay, the lower the requirement for judicial approval. The more sacred the privacy interest at stake, the greater the Constitutional protection. If the President is acting in a good faith effort to prevent eminent attacks from a known, declared, widespread and dangerous enemy, he is holding a pretty strong hand. As to the second aspect, in time of war the expectation of privacy in an international call to a nation that even Jay Rockefeller would agree sponsors terror, nears its nadir.  Please bear in mind that even privileged communications between husband and wife or lawyer and client lose their privileged character when the parties plot a crime together, or commit a crime toward the other.

    The only remaining question to be considered is whether the President is using the least intrusive means to accomplish the task. He has the report of the 911 commission to support the contention that the means available through FISA, were insufficiently flexible to allow him to fulfill his oath under the Constitution to protect and defend the citizenry. I am as paranoid as the next person, but I am prepared to give the President the benefit of the doubt. If he had any selfish motives, he would not have briefed Mr. Rockefeller, et al.

    For those of you that believe you may have been wronged somehow, please state your cause of action, if you have one, and your damages. So you are calling your uncle in Syria to explain that you are gay and a spook at the NSA hears this conversation. Unless s/he reveals the information, how have you been injured ? (by the NSA, the uncle is a tale for another campfire) A Sprint employee checking the line could have heard the same conversation and the same rules would apply.

What should be clear by now is that whether it is the President or a street cop, if they are acting in good faith to save life or limb and time is of the essence, virtually all of your Constitutional rights can be abrogated for the duration of the emergency. If internment camps were constitutional, I seriously doubt that your mere worry that someone, somewhere might know something more than you wanted them to know would be sufficient to halt a productive signal intelligence effort in time of war. While we have a volunteer military at present, conscription, (legal slavery for the common good) is constitutional.

There have to be thousands of such intercepts every day. In the scenario I gave, Abdul is an agent of a foreign power; it's clearly legal to listen in to him. Paula is an American citizen; the absolutists are arguing that if anyone listens to her without a warrant it's an absolutely vile contravention of the Constitution. But there is no way, even in principle, to determine which is which without listening to the conversation -- so you can't tell if a warrant is needed without a warrant.

And that's without considering that, given all this information, there's an obvious tactic for AQ and other interested parties to use to confuse the system. Can you think of it? Hint: it involves the Cedar Rapids, Iowa telephone directory.

Regards,

Ric

 just CiC exercising powers to protect the country. There is a check, contrary to all your claims. It is called impeachment. If he abused his powers to protect us by doing something self-serving or debased, he can be impeached. If he employed his powers to protect us, I certainly won't want that, but perhaps you will.

I suppose you would have preferred President Feingold and VP Levin who apparently would have told General Hayen that if he couldn't get a FISA warrant for all of his intel. then forget about pursuing it and if that causes 9-11[n+1], that's just the price we pay for protecting our freedoms.

And ironically, I would be calling for the impeachment of your President, for failure to use his constitutional powers and failing to fulfil his constituional obligations. You however would apparently to defend him, because all those people dieing was worth it for you, in order to protect our civil liberties.

At any rate, I hope you will quit saying there is no check. And I am in part responding to other posts you have made.

Anyone have any insight into what the President meant by the following comment:

"Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."  - President Bush, April 20, 2004

may not become apparent until you find yourself on a no-fly list, for example. The problem is, many of these investigations (by necessity) are looking for connections. How many degrees of separation are needed to insulate an innocent person from a "person of interest?" Its not too much of a stretch to envision a scenario that sucks up a totally innocent person into a terrorism investigation. It not just this surveillence warrant issue. Its everything combined including the military engaging in domestic spying, Bush being able to declare a person an "enemy combatant" and subsequently deny legal counsel, paying off pundits and journalists to get their propaganda across etc. How hard was it for Richard Jewell (Alanta Olympic bombing) or Steven Hatfill (Anthrax "person of interest") to get off the hot seat. And these were PUBLIC cases that we know about.

I would prefer to see a true conservative (you know, someone who actually has read the constitution) comment on this. William Kristal and Gary Schmitt (or anyone else associated with the Project for a New American Century) are actually neo-cons which have their own agenda

Would you please make sure that your Democratic elected officials make this a pillar of your party platform going forward in 2006 and in 2008?

Really, I think it's high time that we put away the BS and lay it on the line.

We Republicans do not believe that monitoring phone conversations between Al Qaeda leaders and an American Al Qaeda plant equals a police state.  But you should make the argument that it does.

We would rather not die in a terrorist attack, and more importantly, would rather not have leaders who would have us die in a terrorist attack in order to preserve 4th Amendment guarantees and due process for Al Qaeda terrorists.  But you should make the argument that we should.

"When elected, I promise to let you die in a terrorist attack rather than have you live in a police state without civil liberties, by which I mean the tapping of phone calls from Osama bin-Laden to a Jamie Lind."

I strongly suggest it as a campaign platform.  I'm sure it's a winner.

-TS

say that innocent people can't be "sucked up" into an investigation? How many people do you think are questioned in an ordinary murder case? If you ever spoke to the deceased, someone is probably going to speak with you eventually. Nobody needs a warrant to follow you every place you go and photograph everything you do in "public". If you end up on a no fly list, it is an inconvenience that will eventually be rectified, but little more. There is a Constitutional right to travel, but not to use every  available means to do so.

that we see all the time from the left and the MSM. Was there any howling from the left or the MSM over Clinton using the IRS against his enemies list? No. Same goes for the NSA apparently as we're seeing now. These "revelations" of horrible conduct by Bush were apparently okay only between the Bush 41 and Bush 43 presidencies.

protection in the constitution for protection against the possibility of wrongful prosecution. But the safeguards in place are designed to minimize the chances of this happening. And if it does happen, one has legal means to defend yourself. In the so-called war on terror, these safeguards are eroding rapidly. You may think Bush is some kind of deity, but I have a problem with him or his subordinates having the power of designating enemy combatants and subsequent denial of tradition anglo-saxon legal rights in addition to all the other "powers" Gonzalez, Yoo and Dinh (my what a diverse legal team!) have divined for W. When we realize that things have gone too far, I fear it may be too late.

probably has no idea what he meant. I'm sure it was written by his handlers. He's just the mouthpiece.

I do think you have it nailed nearly 100%, but a couple of glosses.  Credit is due Mark Levin on 770 WABC.

(7) The interception of enemy communications has always been, is, and will always be a fundamental and critical tactic in the execution of a war.  One would refer to this as Signals Intelligence, or SIGINT, in all military campaigns.  Hamdi v. Rumsfeld makes it clear that the President may engage in activities that are "fundamental incidents of waging war" pursuant to the 2001 Congressional Authorization for the Use of Military Force which states in relevant part:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (Emphasis added).

As the Court made clear in Hamdi, an American citizen may be physically detained since the detention of an enemy combatant is incident to making war and is not a punishment for a crime:

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is 'neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war' " (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) ("The time has long passed when 'no quarter' was the rule on the battlefield ... . It is now recognized that 'Captivity is neither a punishment nor an act of vengeance,' but 'merely a temporary detention which is devoid of all penal character.' ... 'A prisoner of war is no convict; his imprisonment is a simple war measure.' " (citations omitted); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released" (footnotes omitted)).  Emphasis added.

This is an important distinction also applicable here.  Hamdi's detention was permissible because it lacked all penal character -- he wasn't detained for a crime; he was detained to remove him from the field of battle.  Similarly, the NSA SIGINT program is not a wiretapping program to gather evidence for a criminal proceeding -- it is an intelligence gathering activity incident to making war, intended to be used to prevent another terrorist attack or to take out enemy positions within the United States before they attack.

(8) This authority to intercept foreign signals has been claimed by every President in the history of the United States as an inherent part of his power as the Commander-in-Chief.  American citizenship is absolutely no bar to SIGINT programs targeted at foreign nations, organizations, or persons who may or may not be hostile to the United States.  If a suspected Chinese intelligence officer stationed in Washington DC were to have a telephone chat with his American citizen friend, that conversation may absolutely be bugged, overheard, recorded, or whatever by US counterintelligence without seeking a warrant.  Indeed, if they failed to do so, we would say that our counterintelligence needed to be overhauled.

(9) The Democrats and the few Republicans who are raising a ruckus are taking the position that 4th Amendment rights apply to hostile foreign powers as long as they are contacting an American citizen or permanent residents (who have most of the Constitutional rights of citizens extended to them by caselaw).  This is an 'interesting' position to say the least.

I want them to articulate the position fully and explicitly.  If Osama bin Laden were to telephone Sahim Alwan, a member of the Lackawanna Seven, I want the critics of the NSA SIGINT program to declare clearly that they would like the NSA to immediately hang up the phone and go seek a warrant.  I want Harry Reid to make clear that the position of the Democrats is to prevent our intelligence organizations from listening to conversations between Ayman Al-Zawahiri and Yasein Taher.  I would like Nancy Pelosi to argue strenuously for the violated rights of Mukhtar Al-Bakri, since the "U.S. government reviewed and analyzed an e-mail he sent while traveling in Saudi Arabia months before his arrest."

And then, I want the DNC to adopt a new motto:

"Death before listening to conversations between bin Laden and Al Qaeda sleeper cells!"

-TS

Hi there.

In your time here, your contributions have essentially been snarky recitation of Lefty talking points.

Disagree to your heart's content, but keep in mind you're a guest here. Put differently:

Bush himself probably has no idea what he meant. I'm sure it was written by his handlers. He's just the mouthpiece.

Another one like this will be your last here. Comprends?

You could always spot the handwaving where they didn't know what they were talking about when important contentions were dismissed with 'It is clear that...'.

Looks like it's much the same here.

Got 62,000,000+ to agree to that last go 'round. Beat The Dork Gore and the Dufus Kerry and all their morally bankrupt supporters like rented mules. Also, helped identify the 59,000,000 dumbest people in America.

Right, so, lanceman's bit of political theater notwithstanding, does anyone have any serious insight on what the President meant by that statement?

It seems a bit confusing in light of current statements.

you completely miss the point... its not how long, or good we can detect terrorists line. its simply this... for one second, one minute, one day if the government is listening to American citizens it is wrong (without oversight by the course)... If don't do this how does it make the NSA any better than the  KGB. and just saying "this is the president, we (not me) elected him" lets trust him, is an absolutely pathetic excuse for what is a total breach of intent and law of the constitution...

But there is no way, even in principle, to determine which is which without listening to the conversation -- so you can't tell if a warrant is needed without a warrant.

Isn't that, in part, why the FISA process allows for a 72-hour period wherein a warrant can be approved retroactively?

Couldn't you do exactly everything you laid out from a surveillance standpoint, and submit your warrant request 2-3 days later?

KGB by zuiko

If this was the KGB you wouldn't have time to concern yourself with what they heard or didn't hear before you (and maybe your friends and family) disappeared.

that there is a right of privacy in the Constitution. It certainly isn't enumerated there and the Founders were not shy about enumerating protected rights. That the judiciary managed to discover one is not the same as there being one.

Frankly I don't think that the Founders were concerned about the government 'watching' or 'listening' to you; I doubt that they saw this as a major problem at the time. I think they were concerned about protecting your rights at trial because pre-revolution the King's governors used to routinely make arbitrary arrests, trials and property seizures and they didn't want that happening in the new government.

What Drudge says Clinton signed:

"The Attorney General is authorized to approve physical searches, without a court order"

What Clinton actually signed (and Drudge neglected to include):

"The Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section."

That section requires the Attorney General to certify  the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens.

http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001822----000-
.html

calls anyway?  That is a whole lot of monitoring to do.

That implication is the NYTimes trying to make the average Joe Citizen feel like big brother is looking over their shoulder.

learned from the wiretapping to justify a warrant for other things.

I think the government in this case is choosing information over convictions, which in the big picture may not be a bad choice.

Your mail analogy isn't correct.

Phones are more akin to holding a conversation in the public square.

You are free to do so, but if a copper happens to walk by as you plot to kill the President, he can arrest you without a warrant on probable cause.

The airwaves we use for phone transmission are public airwaves, not privately owned spectrums.

So despite the fact that we were monitoring Osama's cell phone communications for quite a while, and then the NYTimes 'innocently' (in your view) publishes that fact, and suddenly Osama stops using that type of cell phone is just a mere coincidence?

Let me guess, he just happened to get his latest Tom Clancy book in the Terrorist Book Club of the Month?

It defies logic what you people will believe.

You have a problem with Bush having a Hispanic Attorney general or Asian attorneys working for him?

I think we have a troll here...

because it seems to have been forgotten:

The 72 hour grace period that FISA allows for retroactive warrants is of no practical utility.

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.



If it's impossible to satisfy the documentation requirements of a FISA warrant within the 72-hour time period granted (and this article contends that it is), then, for all practical purposes, it's as though the provision didn't exist.

Given the unworkable procedure for obtaining a FISA warrant, and the finding by the AG that Article II of the Constitution and the resolution by Congress authorizing the President to use all necessary and appropriate means to combat terrorism gave the President a legal way to bypass warrants that could not be obtained in a timely manner, it's no surprise the administration decided to do what it could do rather attempt to do what it knew couldn't be done.

The NYT wouldn't have been able to irresponsibly publish the fact that we had access to UBL's cell phone if Sen. Richard Shelby (R-AL) hadn't publicly and illegally bragged about that piece of critically important national security information.

Yes, let's hold the Times in proper contempt for publishing classified information, but let's also remember how they got that information in the first place. Elected officials need to be held fully accountable for their protection of classified information. Unfortunately, Sen. Frist doesn't seem to share that view.

Wonder why more leaders of Congress weren't briefed on the Top Secret bypassing of FISA warrants? I don't. They can't be trusted with classified information and they won't be held accountable if they leak it.

around "so-called war on terror", too. Just an oversight on his part, I'm sure.

to this, again, is that by implicitly revealing an NSA capability that makes the FISA requirement self-defeating, the NYT has not just alerted terrorist networks, which may or may not be terribly sophisticated, but every other potential enemy of the United States. ELINT capability is one of the most highly classified subjects imagineable. The more I think about this the more I understand President Bush's anger about this disclosure. We've been focusing our attention on terrorists, but they were surely not the only target of this surveillance - now everybody's paying attention.

The classified program is there to interdict attacks,identify suspects and allocate resources. If it turns out a U.S. citizen is involved, they will then proceed to the FISA process because they will need to operate within the 4th Amendment.

On the other hand, if they receive evidence of a future attack, they will deploy assets to deal with the problem. If all goes according to plan, there will not be any trials, at least no trials involving the intercepted communications. They will probably charge any survivors with weapons violations or a few counts of attempted murder or aggravated assault on the officers dipatched to deal with the situation. They will do this to avoid the disclosure of sources and methods.  

Tom Delay on presidential power, via the Washington Post:

Majority Whip Tom DeLay (R-Tex.):

. . . I believe that this nation sits at a crossroads. One direction points to the higher road of the rule of law. Sometimes hard, sometimes unpleasant, this path relies on truth, justice and the rigorous application of the principle that no man is above the law.

Now, the other road is the path of least resistance. This is where we start making exceptions to our laws based on poll numbers and spin control. This is when we pitch the law completely overboard when the mood fits us, when we ignore the facts in order to cover up the truth.

Shall we follow the rule of law and do our constitutional duty no matter unpleasant, or shall we follow the path of least resistance, close our eyes to the potential lawbreaking, forgive and forget, move on and tear an unfixable hole in our legal system? No man is above the law, and no man is below the law. That's the principle that we all hold very dear in this country.

The president has many responsibilities and many privileges. His chief responsibility is to uphold the laws of this land. He does not have the privilege to break the law. . . .

(of course he said this in 1998...)

Provided that the Administration honestly believed that it had the legal authority to order International wiretaps by/from people found on terrorist contact lists, it's entirely reasonable that they chose not to expend any political capital getting the FISA warrant process updated for the 21st Century.

--> are you arguing because electronic communications and phone calls aren't a tangable object they don't deserve protection?  I'm sure the Founding Fathers would disagree with that and had such communication existed in their day would have intended it to be included under the blanket term of "persons, properties, and effects" <--

Ah - so we are not really a constitutional republic, but rather a "here's my opinion of what the founders would have wanted" republic.

I believe that the founding fathers wanted the Constitution to be amended - not interpreted. I notice they included a method for amending the document, but not a journal of their thoughts to be used for inference.

I argue that electronic surveilance is explicitly NOT covered by the 4th Amendment, for the very reason you cited: phones did not exist when it was written. This Amendment clearly refers to physical searches and physical objects.

Should we have constitutional protection from eavesdropping? Maybe. But you don't now, and the only way to get it is to amend the constitution. To rely on someone (SCOTUS) to interpret the document - and tell you what your rights are - is to submit to the very tyranny you seem to be railing against. It's tyranny by SCOTUS, not POTUS in my example - but tyranny just the same.

The constitution can't mean anything except exactly what it says - or else you have different rights than I do - and only a judge will have the final say.

I don't know how I feel about the wiretapping, but I know exactly how I feel about people who simply keep reading the Constitution until it says what they want it to say. Please stop.

in 2001 that Changed Everything?

But do continue not getting the importance of that event.  Head-in-sand is an effective vote-getting strategy.

-TS

I do recall what happened in 2001. What part of

Tom Delay's statment do you feel no longer applies

because of the attacks in 2001?

A CIA counterintelligence officer is trailing a suspected Russian intelligence agent in suburban Virginia whom the Agency believes is trying to recruit sources in the US Dept of Defense.  The Russian goes into a restaurant in Tyson's Corner where he sits down at a bar next to a highly placed Navy officer within the Pentagon.  The CIA man has no idea whether this is a recruitment attempt, passing of military secrets, or a social chat with an old buddy.

Our CIA counterintelligence officer should:

(a) listen in on the conversation;

(b) immediately break off contact so as to avoid listening to American citizen for one second, one minute, one day;

(c) call HQ to place a request for a FISA warrant before listening in on the conversation;

(d) listen in, but then apply for a FISA warrant afterwards, which may have the effect of alerting Russian intelligence that their agent is compromised.

Next multiple choice question:

The law permits our CIA counterintelligence officer to:

(a) listen in on the conversation, provided that information is not used to prosecute the American citizen involved;

(b) listen in only upon the issuance of a warrant by a court, including FISA court;

(c) listen in only upon securing the approval of the American citizen involved;

(d) do nothing -- the 4th Amendment prohibits any government surveillance of an American citizen for one second, one minute, one day

-TS

I would rather that dittoz be dead than that I live in a police state too.

BTW, I grew up on the (then) East German, West German, Czch tri-border in Hoff Germany.  I heard the gunfire some nights.  I know what a police state really is.

Son, you have no earthly idea what a police state is.

Perhaps if you did you would fear for your family's lives by even posting here.  So don't be so ignorant.

That's a terrible scenario.

a) Bars are public. Overhearing something is completely different than tapping a phone line.

b) why would a FISA warrant be required?

and of course, the big one:

c) IF a FISA warrant was required, why would applying for one after the fact from a secret court alert the Russians?

I could see c) coming into play if and only if the american was on the FISA court... and I'm sure those people sign away certain rights with their security clearances. In fact, so did the Navy officer, which makes this scenario completely worthless.

that people are not aware that cellphones and satphones can be tapped, but I'll guarantee that there are people who think that jut because there are no wires they can't be tapped. I see nothing to make me believe that some of the bad guys aren't just as dumb.

Bin Laden used a satphone until it got out that we were listening and then it went silent. Coincidence? Maybe, maybe not.

the NYT and Sen. Shelby should have been charged and prosecuted. I'm a Republican but I could care less what party the leaker belongs to --- prosecute them.

issue is that you are apparently prepared to assume, based on reporting from the New York Times, that he did violate it. It is entirely possible that they are simply wrong and although it may be a bit Pollyanna-ish, I prefer to take the word of the President over that of the NYT.

issue is that you are apparently prepared to assume, based on reporting from the New York Times, that he did violate it. It is entirely possible that they are simply wrong and although it may be a bit Pollyanna-ish, I prefer to take the word of the President over that of the NYT.

But the NYT didn't suggest FDR lacked the power to profile for suspected saboteurs or search and seize dwellings and persons, incl american citizens without warrants inside the US in order to prevent sabotage. A bit more intrusive than cell phone calls you think? BTW - there was no statute covering the matter. The 4th amendment didnt come into play. 7 germans and 1 american were tried and executed by a military tribunal.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html

I've no compunction about sending any elected official to jail or worse for divulging classified information that negatively impacts the security of our nation.

I know a few families of 9/11 victims who'd line up to pull the trigger, regardless of party affiliation.

Seems simple enough to comply. If the goal is to protect Americans, then I want my government to follow our published laws.  In the month after 9/11, changes were made for laws that were cumbersome to the Executive Branch.  For the most part, they have been effective.  But, there is good reason to have a deliberative process that checks Executive actions.

NRO "source" - It is built with an eye to keeping [investigators] in check.

Good! Checks on law enforcement/Executives is fundamental to our form of democracy.  If the Executive needs a day or two, change the law. Just don't "do away with it" because the ends justify any means necessary. The "rule of law" is deliberative; it is not a nuisance, it is the law.

BTW - failure is not a direct outcome of following the law.  The direct outcome is something predictable.  Your last point is a recipe for anarchy, I believe.

Then change the law, don't violate it I mean. Because outside Russ Feingold and Jonathan Alter no one is claiming a law has been broken and there is no evidence that is the case.

Your real point is: "I don't like the way this sounds so it shouldn't happen."

Just FYI, some more excellent posts on the whole issue over at PowerLine today (12/21) including comments from John Schmidt, associate attorney general of the United States in the Clinton administration explaining why they are legal.

Also John Hinderaker call the bluff of the NYT reporters and one of legal objectors quoted by the NYT and several other tidbits.

Highly recommended.

There is a check, contrary to all your claims. It is called impeachment

But if there are no restraints on a president's power, on what basis can he be impeached?

I suppose you would have preferred President Feingold and VP Levin who apparently would have told General Hayen that if he couldn't get a FISA warrant for all of his intel. then forget about pursuing it and if that causes 9-11[n+1], that's just the price we pay for protecting our freedoms.

I do not think that George W Bush is the only person in the federal government desirous to protect us from attack.  If the law was too onerous for him to adhere to (assuming that he did not, in fact, adhere to the law--a fact of which I am not entirely convinced), then he could have had it modified or repealed.  He began the wiretapping in 2001-2002.  It is almost 2006.  It does not take that long to amend/repeal a law.  Are there not enough people in Congress who wish to protect us from attack?  Are you accusing at least half of our federal legislative representatives of supporting terrorists?

You however would apparently to defend him, because all those people dieing was worth it for you, in order to protect our civil liberties

I think you are confusing my argument with some of the other posts on this board.  I am not saying anything about civil liberties.  I am talking about adherence to the law.  If president Bush did not violate the law, I do not have a problem with his actions.  If he did violate the law, then I do have a problem.  The laws of this country apply to everyone, from the President to the bum on the street.  I do not give this President, or any president, a free pass to do anything he wants and violate the law by claiming to do so in the interest of "fighting terrorism".  If the laws of this country interfere with our safety from attack, then change the law.  

I believe in rule of law above all else, even over the "word" of our President or the NYT.

That's an interesting article by Byron York, and one that makes several good points. Naturally, without knowing who his anonymous source is, it's a bit hard to know how credible they are, but their quote is ineresting nonetheless.

That said, there are certainly folks with a good deal of credibility that seem to be of a different opinion on the FISA process and the 72 hour retroactive period.

Like Colin Powell who said last night:

"My own judgment is that -- it didn't seem to me, anyway, that it would have been that hard to go and get the warrants [through FISA]. And even in the case of an emergency, you go and do it [begin surveillance]. The law provides for that. And three days later, you let the court know what you have done, and deal with it that way."

I think this specific question - the question of how flexible or inflexible the FISA process actually was and how flexible or inflexible the 72 hour retroactive period was - speaks a lot to how this debate is resolved.

The consitutional legal scholars with a heckuva lot more expertise than we bloggers, will sort out whether the AG's constitutional intrepretation was correct or not.

But it seems like we should be able to nail down whether the FISA process was working or not. And get some real expert opinion and testimony on that (meaning no anonymous sources - which I know we all have disdain for anyway).

The 1978 cold war law is not the beginning point for Executive power to thwart enemy attacks on the US. Its the US Constitution, if not even more basic than that, ie common sense and human nature which demands to survive. Thankfully, Art II incorporates same. Powell shows each day why he is better suited to carry out orders to kill than to decide when to do so, when to stop doing so and how to detect those that need to be killed.

FISA warrants require probable cause and are primarily concerned with communications solely within the US. But the president is not constrained by same in defending the nation against foreign threats whether in killing the enemy or gathering intel. In fact Lincoln faced a domestic threat and was not so constrained. The founders placed responsibility to secure our liberty as a free nation in one man for speed and accountability.

The remedy for perceived breach is impeachment. Though there are numerous sup ct precedents confirming the pres power to gather foreign intell unfettered.

Thank God Lincoln and FDRs parties held majorities like Dubya's.

This is not a close call. The dems have stepped in it. I predict Lindsey Graham, super lawyer, will change his tune after he reads the case law, etc.

http://www.redstate.org/comments/2005/12/20/10257/791/233#233

http://www.redstate.org/comments/2005/12/19/23119/480/182#182

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR200512200
1053.html

I could be wrong here, but I am thinking impeachment is the perogative of and expression of the will of the Congress, unlike a legal proceeding. Clinton broke law but wasn't impeached. The Johnson impeachment "trial was, above all else, a political trial."

I am by no means an expert but I googled this and I think it supports my general impression. http://www.law.umkc.edu/faculty/projects/ftrials/impeach/imp_account2.html

It is not worth it to me to argue that point with you. If you believe he can't be impeached, then you are stuck with nothing but your dissatisfaction which you can exercise in 2008.

On your second point. Lets substitute AnSpOm for Fiengold.

Gen. Hayden: Mr. President, we've got intel. that requires us to monitor non-domestic communications to sites inside the US. It may help us prevent another attack. If we have to obtain warrants thgough FISA we might miss some really critical information, uhh, you know, that might help us save lives, like 9/11.

Pres. Bush: Do I have legal authority to order you to do this without a warrant then?

AG and NSA lawyers: Yes, in our opinion, we find some constitutional and statutorial grounds for doing so.

President AmSpOm: Look, some might say we don't have the authority to do this right now so lets go to Congress to get a change in FISA.

Advisors: We have checked with some in Congress and they think legislation like this might be difficult or impossible and at the very least would jeopardize any ability to proceed with this program in the meantime.

President AmSpOm:Ok, so do it through FISA for now and lets try and get Congress to change the law to allow us to do what you are asking for General. In the meantime and/or if Congress does not ultimately go along, if we miss any important intelligence and it results in uhh... you know, that, well it is just the price we have to pay in a country of laws where the President can not excercise any judgement about what is reasonable or legal without a specific say so from Congress and/or the courts. Y'alls interpretation of my Article II powers and the subsequent court decisions that may support it and the interpretaion of the war resolution are too shaky for me to go out on a limb on.

Even if this becomes an ol'hickory moment (remember andy ignored the Supreme court and the country survived), I personally think it is a fine time for one if there ever was one. I'd be happy if he ignores the Supreme Court if they go against him on this, because I think the executive is an indendent branch of gov. that does have constituional powers in the exercise of judgement in matters relating to the responsibilty to protect us. And that's a wisdom of our founders who could forsee that the courts and congress are slow and argumentative. Again, I say, if he/she is abusing it, impeach him/her.

Personally, I would want them to impeach a President AmSpOm. Nothing personal, just on principle.

So apparently, we believe different things which is fine (and I didn't know I was replying to you in the previous post).

As President Reagan said in a different setting. This is why the Constitution requires warrants. Trust, alone, is all well and good, but the need to provide an independent judge with some probable cause is what sets the United States apart from lesser nations.

Seeing as how Delay made that statement talking about impeaching Bill Clinton for perjury over a sex scandal, how that applies to very clearly legal acts of this President to protect the American people is a bit beyond me, but you can illuminate me.  If you wish to equate Clinton's proven lies in a tawdry sex scandal to save his own political hide to Bush's actions which are at the very least of debatable legality in an important war-related action to save the lives of American citizens, by all means, give it your best shot.

But if I had to pick just one part of Delay's statement, it would be this:  The president has many responsibilities and many privileges. His chief responsibility is to uphold the laws of this land.  He does not have the privilege to break the law....  I do think that today, after 9-11, even if Hillary were to become President, that statement would read: The president has many responsibilities and many privileges. His chief responsibility is to protect the American people.  He may not have the privilege to break the law, but he does have the power and the authority to pursue all legal means to prevent another devastating attack, and if the lawyers disagree, he should err on the side of protecting American lives....

Now... speaking of statements from 1998... it's amazing how things have changed:

Well, you're not just going to get elected by hounding the president of the United States, because as you judge the president of the United States, the voters will be judging you on November the 3rd.

- Charles B. Rangel (D-NY)

and another gem:



. . . We should be standing here debating the future of Social Security. We should be standing here debating health care. We should be standing here debating education for our children and how we can protect the environment. Instead, we are participating in a political charade.

[Democrats] want to do what they could not do in an election: defeat [George W. Bush]. Well, I have news for you. The American people are watching. Beware the wrath of the American people, [Ms. Pelosi], beware!

- Rep. John Lewis (D-Ga.), slightly paraphrased

-TS

I could be wrong here, but I am thinking impeachment is the perogative of and expression of the will of the Congress, unlike a legal proceeding.

I agree to a point.  Note, however, that a legal proceeding is the perogative of the prosecutor.  If the prosecutor does not believe there is sufficient justification for a legal proceeding, no such proceeding will be brought.  Same with impeachment.  If there is no justification for an impeachment, no impeachment should be brought.

Clinton broke law but wasn't impeached

I disagree.  Clinton was impeached.

You "script" of my interaction as president is correct, except for the last quote, which would actually go like this:

President AmSpOm: Ok, so do it through FISA for now.  Start monitoring right away and submit the paperwork for a retroactive warrant.  If you think it will take longer than 72 hours to submit, file for an extention of time with the judge, but do not stop monitoring.  If we cannot get an extention and cannot get a warrant, that is fine, but I think this intellegence is very important and must be monitored.  If the courts find that I broke the law and/or exceeded my constitutional powers, that is fine--I am willing to accept the consequences of my actions, including impeachment, because I think this is very important.  

*****

Look, I am not passing judgment on what the President did or did not do.  It just seems to me that if the President did break the law, which is by no means proven or certain, that he must reap the consequences of his actions, whatever they may be (as determined by his overseers in the legislative and judicial branches).  

There are two sides of this issue that I see:

  1.  There are laws in this country that everyone must follow, even the president.
  2.  There are laws in this country, but certain people do not have to follow them under certain situtions.  The people and situtions are unspecified (i.e. not codifed or memorialized in common law), but we will know it when we see it.

The Constitution is the ultimate authority of law.  If a law does not violate the Constitution, it must be followed or changed.

Congress managed to fly back overnight to give the federal courts jurisdiction to hear the Schiavo case, are you telling me they couldn't act just as quickly to give the president the authorization he sought if it was illegal under current law but essential for national security or to save the lives of numerous Americans?  

You are correct to catch my sloppy use of "impeachment" in the Clinton reference. I thought about posting a correction to it but then thought the general point would stand anyway. The House thought he had done something warranting impeachment. The Senate didn't convict/remove because they didn't think it rose to that level. But apparently you agree that they can bring and convict on an impeachment charge if they think the President has done something which warrants it. So the check exists.

Regarding Pres. A's response. Assuming General Hayden agreed that no intelligence would be lost and the warrant documentation producing bueracracy said they could handle it without diminishing their ability to accomplish everything else;then I applaude Pres. A. And would not be in favor of his impeachment. If we assumed General Hayden and the JD said that wouldn't work, I wonder what Pres. A would do then.

However, you must see that Pres. A has mentally crossed over the line of your legal principle just as you claim President Bush has. You can argue: not as far but I don't see how you can say not at all. So our argument is no longer one of principle but one of degree and one of assumptions.

There is a difference of principle betweed Presidents A and Bush tho. Pres. A is willing to knowingly violate the law. Pres. Bush does not believe he is violating the law.

I am currently watching the Hoekstra gaggle on c-span. Informative....and I think more useful right now than arguing about the assumptions of what was and what could have been.

Anyway President AmSpOm gets a pass, but I'd rather have President Bush. :>) And yes I am passing judgement and I think you are too. Once you get done with all the legal expert discussion, it still comes down to a judgement on the facts. The President made a judgement. It is his job. And ultimately we are evaluating it in terms of what we would have done. So as we crtisize him we ought to also defend what we would have done.

I wouldn't be president of this country for a million bucks.

First, I'll just say that my position does not require much in the way of assumption.  It is this:  If president breaks law, president must face consequences.  if president does not break law, no consequences to face.  

you agree that they can bring and convict on an impeachment charge if they think the President has done something which warrants it

Yes, but how do we know what warrants impeachment without laws?

. A is willing to knowingly violate the law. Pres. Bush does not believe he is violating the law

Believing oneself to be within the bounds of the law, or failure to know the law, does not preclude one's ability to break

the law.  The court is full of people who believe that what they did was perfectly legal, and sometimes have a legitimate arugment to support that belief but, in the end, the court still finds that these people broke that law and that they must face consequences for doing so.  

I don't necessarly think that President Bush is unwilling to knowingly break the law if it means protecting the safety of the American people.  But that is a position that not debatable and irrelevant for the purposes of this discussion.

Furhter, if we're going to question morality, is it better to (a) knowingly break the law and accept the consequences, believing what you did was right, or (b) unknowlingly break the law, only to find out later that it was illegal and refuse to accept any consequences for your act.  The nice thing about our laws is that many of them differentiate between knowing and unknowing violation.  Others, however, are strict liability.  I do not know what the standard is for this law, but whatever that standard is should govern the president's acts.  

On a pragmatic note, as much as I would love to believe that this country operates under law at all times, I know that is not the case.  People get out of consequences for violation laws all the time--based on who they are, who they know, and/or who supports their cause.  This case is no different.  If the president was caught embezzeling money or stealing cars, or committing some other nonexempt violation of the law (for example) and the people thought that he was "doing the right thing", beleving that the president thought he was "doing the right thing", he'd get off for that, too, regardless of the words of the law. It's the way the world works.  I just hope that if I'm ever caught committing a crime and I thought what I was doing was not illegal, you'll be on my defense team, too.

if your hypothetical activity is done under the advice and supervision of the AG who other posters have described as the top law enforcement authority in the land. I.e., there is no one to bring a charge against you unless it is civil and in this case there doesn't appear to be a harmed party with legal standing to do so. But if that happens to you, I'll be posting in your favor. And if the activity involved something that was done in the national interest and you happened to be President, I'll post against your impeachment too. If it was a crass self-interested abuse of power, you'll probably get impeached and I'll probably be posting for your conviction.

I hope that squares us on all points except assumptions and I'll concede that territory to your own judgement and pursuits.

And I apologize for mispelling your tag over and over and over...An!SpOm. I guess I haven't figured out that acronymonic source.

It must be recognized that we are living in a new era. Terrorists use unprecedented means, and so must we. The President is attempting to protect the lives U.S. citizens in this new era. Post 9/11, if you, whether American or not, have links to a terrorist organization then your privacy should take a back seat to the protection of the people in our country. Has everyone forgotten the loss on 9/11? I know folks are arguing that the President should have used the proper channels, and MAYBE so, but if it turns out that the proper channels in any way tied up the government so that they could not focus on what needed to be done, then that too should be taken into consideration. The motive of the President and circumstances of post 9/11 life simply must be taken into account.

PS To Leon - "Pull! Blam. Blam." should be considered profanity. Not cool.  

The fact of the matter is the cold war, WW2, and the civil war were all traditional threats to the country. Yes, as is so often mentioned, 911 did change things... but, am I the only one that feels that this whole polarized issue of terrorism and resulting political and social backlash might be distracting us from other bigger threats? Al Qaeda a threat? Obviously yes, but I never see anywhere (left or right) the idea that maybe, just maybe other threats like say, communist China might be a bigger problem. Can't help that there are countries out there absolutely delighted that a terrorist attack resulted in an extremely divided population, an economically challenging war, and a long term deployment of a large section of our military. I understand a need to take a strong stance, but it that what we're really accomplishing? Not a personal attack gamecock, just seemed like a good point to jump in with a question I never see posed.

but just now, this non-traditional threat is quite dire given that the enemy cannot be deterred by threats to destroy their territory since they have none!

I see the polarization unrelated to terrorism pre se. The left would be just as apoplexic about building a new Navy and defending Taiwan as they are about Iraq and were about Reagan's calling out of the Evil Empire.

We are seeing the apex of far left liberal elitist power, and its a loser at that. But its loud due to the baby boomer $$$ and its influence over academia and the culture, media, etc.

But they are dying off due to Roe and impotence! And the proven failure of their policies and success of Reagans.

I do think we need a radical restructuring of the budget to double the military personelle and the Navy. It can only be done when we radically reform health care, soc sec and immigration.

But man, a few well placed wmds in major cities and our economy and way of life could be greivously harmed.

Money must be made for us to maintain this mecca that can afford sedentary elitists and beat any enemy. Not to mention the loss of life a successful terrorist attack could take.

We owe Bush a lot. Thank God we had him and Rummy instead of Gore.

Just because we now have a new type of enemy doesn't mean the traditional types have gone away. As a strategist, you have to figure that trying to get us to take our eye off the ball might be one of the terrorist's intentions, driving a wedge between We the People might be one too.

Very true fighting a non territorial enemy poses new problems, but that also poses the need for new solutions. A lot of the foreign policy has of late been of a very "with us or against us nature". An effective tool to underscore the graveness of the resolution involved, but rather divisive in terms of building true ties to take away safe harbor for a territory less enemy. If they have no home, give them no homes abroad.

Take the recent election in Bolivia for example. A foreign policy of "with u or against us "  in this case seems to provoke a more hostile return sentiment and elevate their new whatch-callit "Americas worst nightmare" statement to a much more threatening statement than a more focus oriented one might provoke. I could really care less about any warm fuzzy feelings they might have towards us, and I realize that leadership such as theirs runs counter with probably most things we as US citizens hold as correct,  but a less divisive message such as "hey Bolivia, from our view on top of the world, we could really give a s**t what you're doing down there, but on this letting terrorist set up shop in your country thing goes, we're clear on this, Right? " (Emphasis on "Refer to Iraq for any questions if we're unclear") Less devisive, possibly more affected.

Divisive is really the under lying point. To me, in my opinion, a major underlying problem is the constant "election time" political scene we seem to be seeing. That left has always been left, and that right has always been right. But before 9-11 those with different political views were just that, different views. Even on 9-11, I would almost categorically say that no American sat there and contemplated, "how many Republican/Democrat lives were just lost". But now if you're not on my party you're a crazy liberal, neo-con, democrat, fill in the blank. Last time I looked radical Islamic terrorists carried out this attack. I bet that the furthest thought in the minds of those brave souls who foiled the Pennsylvania planes terrorist attempt was their political orientation. Unfortunately instead of walking a sleeping giant, as Pearl Harbor did, it effectively divided a squabbling world power. I like the label of a Citizen of the United States much better than "Democrat / Republican".  

As far as the influence of liberal acadamians, yes profs are almost always liberals, but who cares if you learn accounting, programming, or whatever field from a liberal? They are teaching, not brainwashing. Education is learning, how someone applies that knowledge, that's the important part.

Couldn't agree more though on reform to health care, soc sec and immigration. Really a looming bigger problem if we can't figure it out.

 
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