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NSA Spying - Which Law Was Broken?

I'll fess up to not being completely familiar with the Foreign Intelligence Surveillance Act [FISA] which was enacted in 1978. After a story by NewsMax Sunday about the use of NSA's Echelon program by the Clinton Administration I did a little more looking.

First I found some snippets from the 60 Minutes story referenced by NewsMax:

The NSA runs Echelon with Canada, Britain, Australia and New Zealand as a series of listening posts around the world that eavesdrop on terrorists, drug lords and hostile foreign governments. But to find out what the bad guys are up to, all electronic communications, including those of the good guys, must be captured and analyzed for key words by super computers, a fact that makes Former [Canadian] spy Mike Frost uncomfortable.

"My concern is no accountability and nothing, no safety net in place for the innocent people who fall through the cracks," he tells Kroft.

As an example of those innocent people, Frost cites a woman whose name and telephone number went into the Echelon database as a possible terrorist simply because she told a friend on the phone that her son had bombed in a school play.

"The computer spit that conversation out. The analyst was not too sure what the conversation was referring to, so, erring on the side of caution, he listed that lady," Frost recalls.

Democracies usually have laws against spying on citizens, but Frost says Echelon members could ask another member to spy for them in an end run around those laws. Frost tells Kroft that his Canadian intelligence boss spied on British government officials for Prime Minister Margaret Thatcher.

Two more sites expand on the story of Echelon, former Canadian spy Mike Frost, and Margaret Newsham (another of the former spy's featured in the 60 Minutes piece) - What Really Happened and cryptome

In the far corners of the Internet, the NSA's domestic spying capability is hardly news. In one section in a rambling history of the program the applicability of FISA is discussed.

Within the United States, FISA still leaves the NSA free to pull into its massive vacuum cleaner every telephone call and message entering, leaving, OR TRANSITING the country.

By carefully inserting the words "by the National Security Agency" into the FISA legislation, the NSA has skillfully excluded from the coverage of the FISA statute as well as the surveillance court all interceptions received from the British GCHQ or any other non-NSA source.

Thus it is possible for GCHQ to monitor the necessary domestic circuits and pass them on to the NSA through the UKUSA Agreement, giving them impunity to target and watch-list Americans.

While there may be debate about whether or not such spying is appropriate, it appears that the US government (and it's allies) have specifically built a system designed to give them the capability to do this type of surveillance, and apparently to do so legally.

The wisdom of a "black" operations like this (which dates back to the 1940's) is up for debate, but trying to spin it as an invention of the Bush administration, or their use of it as "unprecedented" doesn't jibe with history.

Update: Think Progress argues that during the Clinton administration the use of Echelon was done strictly in compliance with FISA. They cite no less an authority than this bit of testimony from former CIA director George Tenet as proof.

There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.
All of which completely ignores the fact that Echelon was designed to catch ALL communications, and that the information sharing system and distributed processing system described in the 60 Minutes piece (and elsewhere) make that statement potentially "false but accurate."

The system was designed to allow other allied countries to do spying for the U.S. that it couldn't and vice versa, which creates a convenient wall of deniability and compliance. Under Clinton (and presumably other Presidents) the Echelon program was used for industrial espionage (see APEC and the Independent / UK), again presumably outside of the purview of the lax FISA review process.

Tenet's testimony sound suspiciously like the defense of the program given by Bush and Gonzales, and most certainly does not prove that the Clinton administration always used the FISA process.


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Comments (71)

Such "black operations" are... (Below threshold)
jd watson:

Such "black operations" are a remnant of our European heritage, which allows the them, thru their postal system, to monitir anything they wish, including mail, phone, email &tc..

If the spying does break th... (Below threshold)

If the spying does break the law, how far does the conspiracy reach?

That's okay, Kevin. It see... (Below threshold)

That's okay, Kevin. It seems Russ Feingold won't ever know. And he's in chamber all the time. Thanks for the info.

Since I feel I'm not a threat to our country, I don't feel threatened. Pretty easy. But not for Russ. He's off fragging his footon this.

As concerns the FISA author... (Below threshold)

As concerns the FISA authorization

the FISA is generally not seen as an authorizing statute, but rather as a limiting statute. In other words, prior to FISA, it was generally held (by circuit courts that had addressed the issue) that so long as a wiretap was sought for the gathering of foreign intelligence, a fourth-amendment warrant was not necessary. The President does have "inherent power" under Article II to do this sort of thing, absent a Congressional provision to the contrary.

During the Nixon era, paranoia over this issue reached a level where the people demanded that Congress do something, and thus the FISA was passed, which was intended to limit the circumstances in which the Executive branch could execute a warrantless wiretap. Thus, the key question for someone in the Justice Department would not be whether the FISA granted such a power, but rather whether FISA prohibited it. *FISA is limiting unless otherwise authorized by statute or Congress. And Congress passed a resolution of force post-9/11. That resolution granted "all necessary force" against al Qaeda and related persons, et al. Somehow, I can't see how a program, reviewed every 45 days and known by key Congressional leaders, is somehow not part of ferreting out terrorists and their conspirators. Indeed, even the NYTimes admitted it had foiled attacks on American soil.

My only question is where are the Dems in demanding NYTimes reporters/editors in the dock until they reveal the leakers of this unquestionably classified information?

Somehow, I can't see how... (Below threshold)
Steve Crickmore:

Somehow, I can't see how a program, reviewed every 45 days and known by key Congressional leaders, I doubt very much they reviewed all wiretaps every 45 days and as for the Congressional oversight I agree with this blogger's comments Some oversight Somehow, I don't feel comfortable about Bush being too punctilious about safeguarding our individual civil rights and liberties. Bush's response that "we must trust him" is not very reassuring based on my understanding of human nature and authoritarian leaders. This is why the Constitution provides for separation of powers, senatorial advise and consent and Congressional oversight, not undersight. The fact that this sort of spying has been going on for decades is exactly what our founding fathers feared would happen, if we only paid lip service to these protections, even in time of permanent war as characterized by Bush.

Amendment IVThe ri... (Below threshold)
Founding Father:

Amendment IV

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 is the problem with skipping FISA, which has never turned down a request for a warrant in 25 years by the way.

I'm pretty sure Bush did so... (Below threshold)
jpm100:

I'm pretty sure Bush did something wrong here, because I'm pretty sure Bush did something wrong there. And vice versa.

Ah, wonderful Newsmax and t... (Below threshold)
mantis:

Ah, wonderful Newsmax and their thorough reporting.

Wait, they may have left something out! From testimony to the House Intelligence Committee (April, 2000):

There have been recent allegations that the Intelligence Community through NSA has improperly directed our SIGINT capabilities against the private conversations of US persons. That is not the case.

There is a rigorous regime of checks and balances which we—the CIA, the NSA and the FBI—scrupulously adhere to whenever the conversations of US persons are involved—directly or indirectly.

We do not collect against US persons unless they are agents of a foreign power, as that term is defined in law. We do not target their conversations for collection in the United States unless a FISA [Foreign Intelligence Surveillance Act] warrant has been obtained from the FISA court by the Justice Department. And we do not target their conversations for collection overseas unless Executive Order 12333 has been followed and the Attorney General has personally approved collection.

I guess under the Clinton administration there wasn't a problem obtaining FISA warrants.

This week's $24k question, it seems, is why did the administration decide they wouldn't get FISA court orders? They aren't hard to get, you can start surveillance and get the order after the fact if time is an issue. Why does the administration want to surveil communications between U.S. citizens and foreign agents without the judicial oversight designed for those very types of communications? Anyone?

As far as I can tell, NSA h... (Below threshold)

As far as I can tell, NSA has to intercept all cell phone calls ever made. That is the only way to explain the amount of disk and tape storage they have there. When someone finds a phone number that is hot, they simply retrieve the call from the storage repository and pass it to the analysts. They don't suddenly put a tap on a line. This is why the FISA statutes are so difficult to use in this environment. They already have the information. They just need authorization to examine what they have already saved.

mantis:This wee... (Below threshold)
Peter F.:

mantis:

This week's $24k question, it seems, is why did the administration decide they wouldn't get FISA court orders?

Whoa, where did you get that from?

Check out Orin Kerr's analysis at the Volokh Conspiracy here.

Pennywit turned me on to it yesterday; it's quite informative and thorough.

mantis,Sorry, oops... (Below threshold)
Peter F.:

mantis,

Sorry, oops. Nevermind, you're right!

Of course Mantis is right, ... (Below threshold)
jp3:

Of course Mantis is right, and of course Wizbang - as well as Malkin, FR and the Corner are all wrong. (I mean, when someone has to stoop to citing Newsmax, you know there is a huge problem)

I just would like to suggest...you don't HAVE to defend what this administration does. I know that there is nothing they could do that would really change you from supporting them, but you're paying the salaries of this administration and they are lying to you and breaking the law. You don't HAVE to!

"Now, by the way, 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."

-GWB

Oh, boy. More moonbats clai... (Below threshold)
Ed:

Oh, boy. More moonbats claiming their civil rights have been violated or Booosh broke the law. Here's a newflash numbnuts: no terrorist attack on American soil for over 4 years. Many terrorist cells broken up (Buffalo, Oregon??? Ring a bell??? Hmmmm...) And its not "domestic spying" as the MSM claims. Its spying on foreign terrorist agents in America. Furthermore, the law and the courts are not clear if the 4th Amendment applies here. See U.S. v bin Laden. Its only people that have something to hide that are worried. The NSA can spy on my electronic communications all they want. I'm not afraid of the "violations" of my civil rights. Especially in time of war.

The President emphasized se... (Below threshold)
Wayne:

The President emphasized several times in his reply to reporters questions that the executive order policy had to do with detection of communications from foreign entities. Detection communication and monitoring phone conversations are two different animals. I have a strong suspicion of what the policy pertains to and it’s not what most think it is. It’s the typical situation of the Dems and the MSM going off halve cock without really knowing what they are talking about. Remember the so call Shadow Government controversy.

The question is clear: A... (Below threshold)
Ed:

The question is clear: Are we or are we not at war with the terrorists? Osama bin Laden declared that war in 1998. The bipartisan 9/11 Commission wondered why the previous administration refused to do so and the incumbent held off until October 2001. The jihadists are present within the U.S., including those who carry U.S. passports. So are other terror jihadists in Spain, Britain, Holland, or France. By pure rationale, the U.S. government has the duty to use all means (approved by war conventions) to resist the penetration and infiltration of the United States. Doing otherwise is unlawful, unconstitutional, and more importantly to the detriment of the security, and therefore the liberty of the American people.

http://hughhewitt.com/archives/2005/12/18-week/index.php#a000819

There's no controversy about "spying". There should be an investigation into who leaked this information. I hold a clearance from the DoD. If I was to divulge U.S. secrets I'd be put in the slammer for a long time. WHERE IS THE OUTRAGE???

mantis is only right in tha... (Below threshold)
Peter F.:

mantis is only right in that I erred in wondering where she got that "no warrants" required information; it was right in front of my face and I just plain forgot about it.

As probing and correct as mantis' question is, I haven't found too much in regards to the "retroactive" warrant approval process that allows FISA to go "to the secret court up to 72 hours later for retroactive permission."

Now this retroactive time period may or may not be enough time to conduct adaquate surveillance in some or possibly many cases, hence why the Administration felt that 'wall' may have needed to come down. I have no problem with this, whatsoever.

What does it matter whether they go to the court 72 hours or 72 days after the fact? What is more important: learning of plots that may kill people or getting retroactive permission in the appropriate time frame? Positively no question there at all.

Moreover, after 9/11 the Congress gave broad resolution that authorized the President "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 Sept. 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."

And those calls concentrate(d) on international calls between "Americans" calling AQ members! Do you believe this is to exchange turkey pot pie recipes?

Maybe the most truly laughable part about all this is the retroactive indignation on the part of Senators Levin, Reed, Feingold and, worst of all, Rockefeller, a member of the SIC with direct knowledge about the program yet raised nary a stink about for over 4 years!

Give me a break. Oh, and while we're at it, now this not the Plame Affair, is compromising national security, New York Times.

CIA director George Tenet t... (Below threshold)

CIA director George Tenet testified to this before Congress on 4/12/00:

I’m here today to discuss specific issues about and allegations regarding Signals Intelligence activities and the so-called Echelon Program of the National Security Agency…

There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.

testified to this before... (Below threshold)

testified to this before Congress on 4/12/00

4/12/00 AHEM

Shall we break out another chorus of Let's party like it's 9/10/01?

Dick Tuck:You may ... (Below threshold)
Peter F.:

Dick Tuck:

You may also want to add to your post the definition who a "foreign agent" is under FISA and under who's behalf that "foreign agent" may be acting, linked here for everyone's convenience.

In short, someone communicating with a known a AQ member in Afghanistan can be considered as acting as a "foreign agent", regardless if they are "a person of the United States".

What does it matter whet... (Below threshold)
mantis:

What does it matter whether they go to the court 72 hours or 72 days after the fact? What is more important: learning of plots that may kill people or getting retroactive permission in the appropriate time frame?

Couldn't they do both?

"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 Sept. 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."

Now I know Gonzalez said this so it must be true, but do you actually read "force" that to mean that the government could listen in on conversations of U.S. citizens without a court order?

And those calls concentrate(d) on international calls between "Americans" calling AQ members!

Why can't they tell the FISA court that?

4/12/00 AHEM<p... (Below threshold)
mantis:

4/12/00 AHEM

Shall we break out another chorus of Let's party like it's 9/10/01?

Right, Darleen, because the meanings of all our laws changed on 9/11.

www.irishpennants.com has s... (Below threshold)
opine6:

www.irishpennants.com has some good info on this subject today

because the meanings of ... (Below threshold)

because the meanings of all our laws changed on 9/11

No, mantis, because, notwithstanding Article 1 section 9 of the US Constitution, we also have the Senate Joint Resolution 23 of 9/18/01

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.
How the hell do you think that the US caught Iyman Faris? (the one we have PUBLIC knowledge of.)

I damned well EXPECT the government to aggressively watch and develop leads in regards to terrorists

JUST as I have always taken for granted the surveillance of violent groups like the KKK by the FBI.

Don't YOU want the KKK and al Qaeda watched?

mantis:Re: retroac... (Below threshold)
Peter F.:

mantis:

Re: retroactive approval:

Couldn't they do both?

Not according to NYT article I was sourcing that from. Unfortunately, the article didn't go into any details after mentioning the 72 hours requirement. The only other news source I've found (so far) that brings why this retroactive process was necessary 'wall' to bring down, is from Byron York over at National Review. which you may or may not accept. (Frankly I usually have some reservations when columnist says "People familiar with the process..." and "says one source".)

"...but do you actually read "force" that to mean that the government could listen in on conversations of U.S. citizens without a court order?

Absolutely! And particularly after 9/11. Now we know the law allows the government has emergency powers under FISA that allows them "to tap international communications between of poeple of the United States and then go to a secret court up to 72 hours later for retroactive permission." So why the need to circumnaviagte the law? Well, there's got to be some reason or need to do so. I suspect that need may arise from 'legal walls' in the process, perhaps taking up to weeks to get approval on from the FISA secret court, as York's article alludes. In the meantime while the investigators await court approvals, what potentially happens? Well, the unthinkable.

Again, I can't confirm the legal process involved, but I simply can't accept that the Administration would take away such basic and fundamental rights without great reason or cause.

Why can't they tell the FISA court that?

What if they tried to and that process takes weeks, then what?

Forgive me for intruding...... (Below threshold)
stormcrow:

Forgive me for intruding...I'm not an american but I'm wondering where all the usual 'anti-big government' suspects are on this one; you know, the 'I hate big government' types? Are you ok with this stuff just because it's a Republican doing it? Or can Democrats do this too, should the next President be a democrat?

The rest of the world is watching this very carefully; you have such a beautifully worded constitution, and some are frankly a little creeped out by the casual reaction on the right. You remember fascism, don't you? It always starts out with the best intentions for what the country needs most, but then 'enemies lists' start, and then things turn kinda Kafka-esque, if you know what I mean. George Orwell, who wrote the ultimate anti-big government novel '1984', wasn't right-wing; he was a democratic socialist. And the men who volunteered to fight against fascism in the Spanish Civil War (many of them american) were democratic socialists if not outright communists. Look at history...you're on a slippery slope here, folks.

stormcrow:I can sa... (Below threshold)
Peter F.:

stormcrow:

I can say without regret or remorse that I wouldn't give a damn if a Republican OR a Democrat had OK'ed the surveillance. I'd still be fine with it.

As for fascism, we have these little things called elections every 2, 4 and 6 years that enable us to put in or throw out of power any official we see fit. And, yes, that includes GW whose term is up in January 2009. Fascism doesn't give you that choice. So thanks for the boogeyman 'we don't know history' , 'it all starts begins like this' nonsense teachings. Pffffft.

Very simply put, the NSA is... (Below threshold)
Varuth:

Very simply put, the NSA is 'spying' on al-Qaida or suspected al-Qaida terrorists. If an American happens to be on the other end of the conversation, they were not the target of the 'spying'. Thus, no American has had his civil rights abridged or damaged in any way.

If I'm walking down the street, talking to Osama and a guy in a van has a Mic pointed at Osama, is he supposed to delete or ignore everything I say, because I'm an American, who is previously unidentified as a terrorist, and he doesn't have a warrant to listen to my side of the conversation?

Of course not. He's going to record everything I say as well. That's what the NSA is doing here. Rather than covering its ears whenever one end of the conversation is based in America (just in case it might listen to an unsuspecting American citizen) it is listening to the whole conversation.

It already has the authority to spy on the terrorists. It's just exerting that authority smarter, instead of putting up a phony wall to make us all 'feel better'.

Darleen, Ed:This l... (Below threshold)
sean nyc:

Darleen, Ed:

This leak does not warrant the same outrage as the Plame leak for good reason. This leak (and the Black Sites leak) brings information which serves the public interest because of possible crimes committed by the administration.

The Plame leak was entirely different. As much as Rove et al despised Wilson, exposing his wife as a CIA agent only served their political interests, not the public interest in any way. Furthermore, all these leaks may or may not be crimes, but it was the leak of Plame's status which was the first possible crime in that case, while the other leaks are the reporting of possible crimes.

As for comparing national security losses, the Black Sites leak was probably the worst, then the Plame leak, then this leak. The leak of Plame's status is 2nd not because of just her, but also her cover company, an operation which utilized dozens (maybe hundreds) of agents, millions of dollars, and years of input. It also raises suspicion about ambassador's/envoy's spouses being agents, which may have already been there, but now there is evidence.

This leak is telling terrorists they're being spied on, which they undoubted already expected. And no operation is lost. This can continue as long as there is judicial and Congressional oversight which there already should have been.

Aside: Please stop trying to justify something just because Repubs do it. Bush should have obtained warrants, no matter how you want to interpret "force". Bush has been flying solo for quite some time and flying solo is not how our gov't was designed. It was bound to catch up with him eventually.

Sean NYC:Your post... (Below threshold)
Ed:

Sean NYC:

Your post is pure rubbish. Its full of stupidity, lies, and personal animosity to the President. Nice try.

Have a nice walk home. Dumbass.

For you left-wing moonbats,... (Below threshold)
Ed:

For you left-wing moonbats, here's good one from a Clintonista:

"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," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

"It is important to understand," Gorelick continued, "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."

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

ed:point out my st... (Below threshold)
sean nyc/aa:

ed:

point out my stupidity, lies, etc.

otherwise I consider your rebuttal pointless.

except there was some animosity towards the president, you got that right.

and insults do nothing to enhance your position, only demean it. or in simpler terms, "i'm made of rubber, you're made of glue," etc.

ps: I no longer live in nyc, just kept the name. but i still do walk/bike/bus home here in ann arbor to save money and gas.

"I'm not a lawyer. So it's ... (Below threshold)
cat:

"I'm not a lawyer. So it's kind of hard for me to kind of get bogged down in the law."

I...some unknown govt agent... (Below threshold)
Fran:

I...some unknown govt agent...think this website is

subversive.

Therefore...anyone who reads or posts here needs to

be checked out...credit cards...library...IRS.

Any suspicious connections...other people...should

also be checked out.


Then they said why not just do away with this piece

of trash...and they (the do gooders) threw the

Constitution in the trash.

So why the need to circu... (Below threshold)
Jon:

So why the need to circumnaviagte the law? Well, there's got to be some reason or need to do so. I suspect that need may arise from 'legal walls' in the process

Oh my God, do you even hear what you're saying? It's OK to circumvent the law when the law itself prevents you from doing what you want to do? The whole point of laws to define what you're not supposed to do! What good is a law when you can violate it when it gets in your way?

"Judge, I needed to circumvent the law against robbing the bank because it was a legal wall that prevented me from robbing the bank."

"Oh my God, do you even hea... (Below threshold)
Toby928:

"Oh my God, do you even hear what you're saying? It's OK to circumvent the law when the law itself prevents you from doing what you want to do?"

Jon, its similar to the difference between tax evasion and tax avoidence. Many of our laws in this area are so complex and contradictory as written and as case law is added that a legally reviewed and approved workaround is acceptable when the national security interests are great enough.

Tob

FranGot any gangba... (Below threshold)

Fran

Got any gangbangers in your area? (if you see gang graffitii YOU DO whether your local PD and city council want to 'fess up)

Think gang task enforcement is a "violation" of your rights ... 'cuz the PD's that take gangbanging seriously (you know, because of organized crime, assault, murder, etc...all those 'hey it hasn't happened to me so why should I care' instances) gangs are under surveillance that the ACLU hates and has tried to stop...kinda like the ACLU right now trying to stop the government from intercepting and questioning people who leave the country to associate with possible terrorist groups upon re-entry into this country.

Fran, take a clue. Trying to make nice-nice with terrorists doesn't impress them. YOU are kaffir and you have ONLY 3 choices... Submit, convert or die.

a legally reviewed and a... (Below threshold)
Jon:

a legally reviewed and approved workaround is acceptable when the national security interests are great enough.

That's what FISA was for. It provided a "legally reviewed and approved" workaround to the 4th amendment. But by Bush circumventing even the workaround, what exactly was "legally reviewed and approved" in this case?

Also, FISA (the relevant part) and the 4th amendment are neither complex nor contradictory. One can argue (ridiculously, in my opinion) whether the authorization of "force" against an enemy includes wiretaps on American citizens, but the statutes themselves are pretty straightforward.

"what exactly was "legally ... (Below threshold)
Toby928:

"what exactly was "legally reviewed and approved" in this case?"

The legality of his executive order. Duh! The AG and the DOJ lawyers reviewed the plan and believed that it was consistent with the law and the powers of the president as granted un the Constitution. Select members of the congress were also informed (unnecessarily I think and directly leading to the illegal leak) and they did not protest in any meaningful way. These reviews were apparently repeated every couple of months and the program was suspended and modified whenever a serious objection was raised.

The President appears, to me atleast, to have acted in good faith to both protect the rights of 'American persons' and obey the law and Constitution while procecuting the GWOT. The NSA monitered conversations, that one could argue were illegal on their face, between known terrorists and their possible accomplices in the US. I expect nothing less from my President.

The nut of your argument is that Bush acted in bad faith, knowingly violating the law and thats an argument I reject completely.

Tob

oops, one correction to my ... (Below threshold)
Toby928:

oops, one correction to my previous post. If the news account are correct, it wasn't an executive order at the heart of this but rather a Presidential Finding which by definition is a statement of the Executive branches interpretation of the law or the Constitution. The Executive branch is charged with interpreting these just as are the other two branches. When they disagree, its a political dispute not a legal one and the only recourse is the political, ie Impeachment or defeat at election. The Democrats are quite free to attempt the latter and if they want to try the former, good luck.

Tob

I don't see how anyone can ... (Below threshold)
Chris:

I don't see how anyone can interpret Congressional authorization for the President to use "force" as allowing illegal surveillance. In what Orwellian world does surveillance equal force?

And for all those who say "The government can monitor me all they want, I've got nothing to hide," fine, welcome to the world of sheep, surrender all of your rights, but you have no standing to give up my rights.

And I think it's interesting that people say "if citizens don't like what the President's doing they can make their voices heard at the ballot box." It's more than a little contradictory to excoriate the leakers for letting us know what the Administration's doing, while at the same time saying we should use that information when we vote. If you folks had your way, we would never know Bush is doing this stuff. So how can that inform our vote? And both Rockefeller and Pelosi made clear that they didn't support this program on the day they were briefed about it, but since they were prohibited from even discussing it with their colleagues, I'd like to know what exactly anyone thinks they should have done.

And if we have to give up our liberties during a time of war, shouldn't we actually be at war? If we're at war every time a President wants to cover himself in glory by declaring himself a "wartime President" then we might as well kiss all of our civil liberties goodbye. When Reagan invades Granada, do we suspend civil liberties? How about Panama? How about a war on crime? 20,000 murders a year, you know. I'm aware that we're dealing with a serious threat from terrorists, but I find it interesting that the macho Republicans, who claim to be the only ones capable of defending this country, are the ones to use their own fear as a prime motivator.

But most importantly, I have yet to hear a real world example of how this program being exposed affects national security. Do you think the terrorists are now tipped off that we're keeping them under surveillance? Do you think they planned their communications around the fact that the government needs FISA authorization? This is another example of the Bush administration responding to criticism with "you're helping our enemies." What arrogance.

"But most importantly, I ha... (Below threshold)
Toby928:

"But most importantly, I have yet to hear a real world example of how this program being exposed affects national security. "

How about if political pressure causes the program to be suspended. Its already, as I understand it, saved the nation from attack. We might not be able to stop the next bombing. That would certainly effect the national security.

Tob

Interesting article: <a hre... (Below threshold)
Toby928:
Who says it's saved you fro... (Below threshold)
stormcrow:

Who says it's saved you from attack? The people employing this measure? How much more naiive can you be? Of course they're gonna say it works.

History does repeat, and the right-wing are always 'ok' with this until it's their turn to make the enemies list and get hauled away. Once your rights are stolen, what makes you think casting a vote is going to get them back? Now that's naiive.

TOh, bite me Frenchy. Our ... (Below threshold)
Toby928:

TOh, bite me Frenchy. Our system works. Deal with it.

Tob

Clinton did all this Echelo... (Below threshold)
Dkarma:

Clinton did all this Echelon spying through the NSA WITH appropriate warrants!!!! He (Clinton) actually went to the courts and got warrants before intercepting these calls. Bush did not get any warrants even retroactively. Clinton acted within the law when itercepting transmissions. Bush didn't. IMPEACHMENT NOW!!!!

As far as I can tell, NSA h... (Below threshold)
Truth:

As far as I can tell, NSA has to intercept all cell phone calls ever made. That is the only way to explain the amount of disk and tape storage they have there. When someone finds a phone number that is hot, they simply retrieve the call from the storage repository and pass it to the analysts. They don't suddenly put a tap on a line. This is why the FISA statutes are so difficult to use in this environment. They already have the information. They just need authorization to examine what they have already saved.
Posted by: Charlie Quidnunc

*************
This doesn't even make sense...so according to this guy the NSA taps everyones line all the time??? comon....

Dk, follow the link above a... (Below threshold)
Toby928:

Dk, follow the link above and google for the Gorelick statement from 1994. Its not as you say, alas.

T, as I understand it, the NSA taps all international communication that they can, copper and satelite. The accessing of this info is what's at issue. They have enormous capacity to capture, much less capacity to analyse.

Tob

"what exactly was "legal... (Below threshold)
Jon:

"what exactly was "legally reviewed and approved" in this case?"

The legality of his executive order. Duh! The AG and the DOJ lawyers reviewed the plan and believed that it was consistent with the law

LOL! You call getting your own lawyers to tell you what you want to hear "legal review and approval"? That's what courts are for! Duh!

"That's what courts are for... (Below threshold)
Toby928:

"That's what courts are for! Duh!"

Nope, don't they teach AmerGov and Civics anymore? Each branch is charged with and sworn to uphold the Constitution and Law of the United States of America. This means that each coequal branch is obligated to interpret same to the best of its ability and act in godd faith thereto. If the President/Congress/Judiciary sincerely believes that its interpretation is correct and that the other branch is wrong, that branch is required to wage politics over its interpretation or their oaths are void. Its the separation of powers, google it.

Tob

Not to imply that that is h... (Below threshold)
Toby928:

Not to imply that that is happening here as no other branch has taken a different view institutionally from the Executive. Just that its incorrect to suggest that the courts are the only arbeiters of legality and constitutionality.

Tob

The courts, by the way, whe... (Below threshold)
Toby928:

The courts, by the way, where considered thw weakest branch at the founding as they have not the power of the purse nor any enforcement arm. Indeed, they cannot even act unless a case is brought before them by someone or some institution with standing.

Tob

I'll cease belaboring this ... (Below threshold)
Toby928:

I'll cease belaboring this point now if no one minds. It just bothers me how many people don't understand the separation of powers doctrine and federalism and how these concepts protect We the People. This is especially true of the young and the foreigners who comment on our political process. I don't know if the educational system has just gone to hell or whether these are classes that students can just sleep through and still pass.

Tob

This means that each coe... (Below threshold)
Jon:

This means that each coequal branch is obligated to interpret same to the best of its ability and act in godd faith thereto. If the President/Congress/Judiciary sincerely believes that its interpretation is correct and that the other branch is wrong, that branch is required to wage politics

I don't know where you get this stuff. True, each branch is obligated to interpret to the best of its ability. But if there are disagreements, the courts are the final arbiters (short of a constitutional amendment).

Any law Congress passes is subject to judicial review. Any directive the President orders is subject to judicial review. The judiciary is the weakest branch in that it cannot initiate action. But its findings are the strongest.

But regardless of all that, you're just straying from the initial point. Getting your lawyers to tell you something is OK is not "legal review and approval" to the extent that it completely excuses you from any judicial review by a court.

Really? The courts are the... (Below threshold)
Toby928:

Really? The courts are the final arbeiters you think? What if the executive doesn't obey and refuses to accept their judgement? What if the Congress eliminated the lower courts or impeached the justices themselves. The court has no enforcement arm or money of its own. Do you just not understand the political system? The Cherokee sure do. Google Jackson Marsahll Cherokee and you will see an example of a real separation of powers dustup.

The political system is set up such that no one branch can attain mastery but rather the concordance of two branches is required. This seeking of concordance is really politics. What we generally refer to as politics today is really partisan politics, that is, factional machinations for power within the constitutional system.

I swear, its not the things you don't that hurt you kids, its the the things that you know that aint so.

Tob

"But regardless of all that... (Below threshold)
Toby928:

"But regardless of all that, you're just straying from the initial point. Getting your lawyers to tell you something is OK is not "legal review and approval" to the extent that it completely excuses you from any judicial review by a court."

Oddly, I don't think that I strayed, perhaps you didn't read all my posts. The President, through the staff of the executive branch, made a decision or judgement that his executive order was within his rights and duties under A2 of the Constitution and statutes as passed by Congress. Congress, through its leadership, did not object to this interpretation in any meaningful manner. Thats two branches in effective accord. How would the SC get involved?

Congress, acting as an institution, may agree that the executive had disregarded their will, enacted through statute. They would then have standing to ask the SC to 'break the tie' or they could just vote articles of impeachment and have the trial themselves.

The Court could also intervene if someone could prove that they themselves were harmed. Tough to prove when the executive could just disregard the discovery of evidence by the plaintiff or orders from the court. Again, only Congress, through its constitutional right of impeachment, can force the executive branch to do a damn thing.

Thats why I say its a political question. Luckily for our polity, it almost never goes that far. One or more of the branches will decide that their interpretation many not be right since they stand alone or they may fear the electorate if they get too upset. (although, how they get around their sworn ath to uphold the Constitution I don't know but I guess nobodys perfect ;-)

Tob

Or perhaps, I miss your poi... (Below threshold)
Toby928:

Or perhaps, I miss your point. Are you saying that the President and his lawyers are lying? That they don't really believe that they have this authority? If so, just go ahead and say it so that I can quit wasting my time with your foolishness.

Tob

"Again, only Congress, thro... (Below threshold)
Toby928:

"Again, only Congress, through its constitutional right of impeachment, can force the executive branch to do a damn thing."

oops, and the power of the purse, don't forget the purse Toby. ;-)

Tob

There is even a third, arca... (Below threshold)
Toby928:

There is even a third, arcane, coup d'etat-ish method. The congress could use the 25th ammendment:

(Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.)

to create just such a body, override an obvious presidential veto, and declare that the President is obiously insane, due to his continuing disregard for the law, and therefore unable to act as president.

They'd have to be really pissed or scared to act in such a manner but it would be 'legal and constitutional'.

And on that frightening example of my insanity, I'm going to bed.

Tob

Please just disregard that ... (Below threshold)
Toby928:

Please just disregard that last post, it really was insane since to override the veto means they would have the votes to just impeach the sucker. Unfortunately, the post will be preserved in google cache for all eternity. :-( I may never live this one down.

Tob

Really, just disregard it ... please.

DarleenI'm not sur... (Below threshold)
Fran:

Darleen

I'm not sure what gang banging has to do with this, other than as a scare tactic.

The only citizens who won't submit to the govt are the bad guys...right?

You seem to believe that everyone that that wants a little liberty with their so called democracy is against the president.

I would submit that Ben Franklin said it right:

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both."

How about if all those like you, who don't mind the govt snooping in their business, sign a waiver. Give them permission to review your library records, credit card purchases, phone calls, monitor your internet connection, email...etc.

If you felt real secure they could just stick a bug on you and track all your movements.

Please reconsider what it means to have a free society, even while it has enemies that would like to eliminate us.

He (Clinton) actually we... (Below threshold)
snowballs:

He (Clinton) actually went to the courts and got warrants before intercepting these calls. Bush did not get any warrants even retroactively.

That's because Clinton had to go to the courts to actually find the phone numbers - now Bush has the convenience of the Do-Not-Call list for his listening pleasure...

:)

Really? The courts are t... (Below threshold)
Jon:

Really? The courts are the final arbeiters you think? What if the executive doesn't obey and refuses to accept their judgement? What if the Congress eliminated the lower courts or impeached the justices themselves.

Oh, please. I'm talking about who has the final legally-binding say on an issue. I'm not talking about who has the ability to attack the branch of government that disagrees with that final determination. Yes, the Congress could dissolve the courts. Yes, the President can ignore the Supreme Court's decision. The President can even order the army to shell the Supreme Court itself. I doubt the SC would approve, but that wouldn't stop the President from having the final word.

Those are unrealistic scenarios that indicate a severe legal and/or constitutional crisis never before faced by this country. Why you would throw your support behind a president who you think would put the country in such a position is mind-boggling.

Don't you worry about what I teach my kids... worry about your own.

Actually, I assumed you wer... (Below threshold)
Toby928:

Actually, I assumed you were a kid.

Note that I down played the chances of any of that happening, I merely used it as an argument of exaggeration to point out the operative underpinings of the separation of powers doctrine. The two things the founder feared were, for want of better terms, Royalty and King Mob. They feared a concentration of power with any one branch or group. That included but was not limited to the government branches and so designed a system where ambition fights ambition and sharing of power is required. They further designed a Republican form of government and required the states to have the same in order to convince the people that elections and the political process were superior to mob action

Under this system, its ludicrous to suggest that any branch, by itself, gets the final word as you suggested by banging the drum for judicial review. The executives Constitutional powers as granted by Article 2, most particularly the executive's powers as commander of the navy and army, cannot be challenged by either remaining branch, just as the law making powers granted to the Congress cannot be usurped by the executive.

If, and the news accounts are unclear, the executive branch has determined that the intercepts in question were legitimate under the CINC powers of the President, no judicial review is required. The other branches could try to force the issue but only through politics not law.

How about this: Legality is when all the branches agree on the constitutional issues, Politics is when they don't.

Tob

PS Since you came back, how about answering my query, to wit: Do you think that the President and his lawyers are sincere in their stated belief that this is a valid exercise of the executives war powers or do you think they are just lying?

Under this system, its l... (Below threshold)
Jon:

Under this system, its ludicrous to suggest that any branch, by itself, gets the final word as you suggested by banging the drum for judicial review. The executives Constitutional powers as granted by Article 2, most particularly the executive's powers as commander of the navy and army, cannot be challenged by either remaining branch, just as the law making powers granted to the Congress cannot be usurped by the executive.

Boy, you are 100% wrong. The executive's powers can absolutely be challenged by the judiciary. As previously stated, the judiciary can't initiate the challenge, but once a challenge is initiated by someone with proper standing, the judiciary can certainly declare an executive order unconstitutional. And while congressional power cannot be usurped by the executive, it can similary be struck down by the judiciary. Short of a constitutional amendment, neither the executive nor legislative branches can legally overrule the judicial branch.

If, and the news accounts are unclear, the executive branch has determined that the intercepts in question were legitimate under the CINC powers of the President, no judicial review is required. The other branches could try to force the issue but only through politics not law.

The executive branch does not get to "determine" that. They may offer an opinion, and Congress may offer an opinion. The disagreement is settled by the judiciary (again, once some party with proper standing brings action). As you pointed out, anyone can ignore the ruling of the SCOTUS, but now you're talking coupe scenarios.

Do you think that the President and his lawyers are sincere in their stated belief that this is a valid exercise of the executives war powers or do you think they are just lying?

I think they pretty clearly stated their train of thought. Gonzales himself said that the administration considered going to Congress and asking for laws allowing them to do what they did, but they felt that Congress would never grant them that power. So they then proffered that Congress had already implicitly given them this power by authorizing "force" against the enemy. I think this justification tells you all you need to know about how secure they are about the extent of the president's power.

"Boy, you are 100% wrong. T... (Below threshold)
Toby928:

"Boy, you are 100% wrong. The executive's powers can absolutely be challenged by the judiciary."

I dispair. ;-) Fine, continue on with your beliefs and then you can wonder why things just don't work out for your side when its self evident that your side is correct.

Of course the SC or the Congress can challenge, they just don't have the power to prevail without a consensus with another branch. This root fact is why it never goes that far. I'm sure that its a comfort to you that the AG and his lawyers took into account previous court decisions when formulating their opinion on whether this snooping was an A2 power or not so that's sort of constituted a judicial review. Its in the realm of politics now. If the Congress wants to fight (unlikely IMHO) or the court to intervene, or the opposition party to go to the people with the plank that the Republicans are just too zealous in hunting and killing our enemies, then get it on.

I'm done, but I will leave with an interesting link: http://writ.news.findlaw.com/dean/20020607.html

Excerpt:

While FDR continued to ask Congress for what he needed, he gave them no choice as to whether they would accede. For example, in demanding that Congress repeal provisions in the Price Control Act (prohibiting ceilings on certain food products), he told the Congress: "In the event the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act." And he reminded the Congress: "The President has the power ... to take measures necessary to avert a disaster which would interfere with winning of the war."

Goodbye and good luck.

Tob

Let me cover my backside by... (Below threshold)
Toby928:

Let me cover my backside by noting that Bush could puss out if challenged as he did with Campaign Finance Reform which he stated was unconstitutional but signed anyway. I don't think that he will since he invoked his A2 powers which presidents tend to be quite zealous about protecting but you never know with this guy since he's not a true conservation IMHO.

So you may win in the end through politics but that doesn't change my argument from principle. I just dont think it will work out that way.

Again Goodbye.

Tob

Of course the SC or the ... (Below threshold)
Jon:

Of course the SC or the Congress can challenge, they just don't have the power to prevail without a consensus with another branch.

Wow, that is so incorrect, my jaw is on the floor. The SC can find a presidential order to be unconstitutional, period. It does not need Congress to consent. That is the law, not politics. I guess it's impossible to make this clear to someone who has such a poor understanding of the role of the three branches.

"Wow, that is so incorrect,... (Below threshold)
Toby928:

"Wow, that is so incorrect, my jaw is on the floor. The SC can find a presidential order to be unconstitutional, period. It does not need Congress to consent."

Damn, I keep trying to leave and you keep calling me back ;-)

The SC can do find however they want, they just can't make it happen alone. Even in cases where the executive accepts the courts interpretation, thats two brances in accord. I don't think that is that fine a distinction but rather a clear difference in our views. Again, have the blessings of the season on you and may you continue in your beliefs to your bafflement why nothing will come of this blatant crime.

Tob

One last thought (and it re... (Below threshold)
Toby928:

One last thought (and it really is my last as this discussion thread has become a conversation just between you and me).

I am perturbed at myself for my seeming inablity to get you to see my viewpoint regardless of whether you argee with it or not. I'm sure its completely my fault. I may be speaking in such broad term as to make this countrys political system appear lawless so let me posit a scenerio, narrowly drawn (indeed, ripped from today's headlines as L&O would say) that presumes your worst fears.

It is revealed that Bush has authorized warrantless wiretaps and, further, warrantless physical searches of American citizens, not just 'American persons'.

Bush defends these actions as necessary to defend the nation in a time of war and invokes his expressed article 2 powers as justification.

Someone is able to present evidence, that the SC will accept, that they, personally, have been harmed, and so gain standing to sue. The SC finds in their favor and orders the executive branch to cease.

Bush is adamant that he has these powers and is required by his oath of office to defend the country and the Constitution 'against all enemies, foreign and domestic'. He refuses to comply.

The Congress, either because they agree with the President or they are party loyalists or they fear the righteous wrath of the voting public, stays out of the affair.

Has anything changed? Are we at that point, living in a fascist nightmare, or is it the political system that the founders intended? Did the opinion of the SC, standing alone have any real power? Are the presidents actions illegal or unconstitutional at that point? Does it matter?

I know that its a strawman argument since nothing like this is happening but I use it to illustrate my point. I hope you will generalize from it to what I'm trying to say.

Agree, disagree, or whatever. I'm done using the Wiz's bandwidth on this issue. Send me an email or something, I may or may not reply.

Tob

I will read any response but I will post no more, forever, on this thread. (wild cheering from the crowd and shouts of Good Riddance! Begone foul dwimmerlaik!)

Are you kidding? The execut... (Below threshold)
Jon:

Are you kidding? The executive branch ignoring the findings of the SCOTUS that their actions are unconstitutional? Yes, that is the very definition a dictatorship, a "fascist nightmare", as you put it. Because it places zero limits on the executive power. Could Bush have Harry Reid executed, citing national security? Could Bush unilaterally void the 2nd amendment, citing national security? Could Bush order all citizens to wear their underwear on the outside, citing national security? All of this is possible under the system of government that you desire. It defines a system in which the president says "trust me" instead of following the law. It defines a system where the only criteria for whether something is legal is whether we believe (as you keep offering up as if it's meaningful) that the administration is acting "in good faith". However, that is absolutely not "the political system that the founders intended". If you want unchecked executive power, move to Cuba.

You propose a scenario:
The SC ... orders the executive branch to cease. Bush is adamant that he has these powers and is required by his oath of office to defend the country and the Constitution 'against all enemies, foreign and domestic'. He refuses to comply.

That is a "political" response, as you like to call it. Bush cannot legally refuse to comply with the SCOTUS. The SCOTUS has the final say on the law. (See Marbury vs. Madison, if you don't believe me.) If Bush were to do what you suggest in your scenario it would be a government coupe. Remember, Bush's oath of office is to preserve, protect and defend the constitution, not the "country". This was purposefully written into the constitution itself. The framers knew that granting the president power to protect the "country" would imply that he could violate the constitution in doing so. That is why he is sworn to follow the constitution instead.

There is precedent that demonstrates this. Your example of FDR threatening Congress that "if you do not act, I will" is incomplete because it did not involve a constitutional challenge. So let's look at a case that actually did: Youngstown vs. Sawyer, which you can read about here: http://www.mercurynews.com/mld/mercurynews/13472780.htm

In this case, Truman, citing lack of congressional action, acted on his own, invoking presidential constitutional authority in a time of war. The SCOTUS ruled his actions unconstitutional, stating that, "...government with distributed authority, subject to be challenged in the courts of law -- labors under restrictions...." That is to say, the president does not have unrestricted power granted to him by the constitution. That power is ALWAYS subject to the ruling of a court of law. Even when under the guise of national security.

Japanese internment was a presidential order, but it was also subject to judicial review. In that case, the SCOTUS ruled it constitutional (although they later apologized for that ruling and struck it down as precedent). Had they ruled the other way, the president would not have had any legal standing to refuse to comply.

The SCOTUS absolutely has the power to declare an executive order unconstitutional, with that being the final legally recognized finding. Even in times of war.

You have not failed to get me to see your view. I see it very clearly. However, no matter how many times you say it, and even if you click your heels together while doing so, it is wholly meritless, unsupported by any legal case or scholar, without precedent, and completely wrong! You have what is worse than no understanding of our government. You have an incomplete understanding, coupled with the belief that you have a complete understanding. That is the most dangerous position of all, as it allows you to be easily taken in by specious arguments. The public debate is about whether Bush's actions are constitutional. There is absolutely no serious debate over whether the SCOTUS has the authority to make that declaration, nor over whether Bush is required to follow their decision.

So go, run and hide, as you repeatedly threaten but fail to follow through. But know that it's because you have no support for your mind-numbingly faulty understanding of the constitution, your hopelessly unsubstantiated assertions, and your chronic lack of legal precedent. I wish upon you the very government that you desire, though it shall be in a different country, under a different constitution, or none at all. I shall waste no more time with you.

"If you've done nothing wro... (Below threshold)
George O.:

"If you've done nothing wrong, you have nothing to worry about"

If this is justification for warrantless wiretaps, then it is also justification for warrantless home searches, car searches, and government owned cameras inside your house & car.

Why have judges either? If warrants aren't needed, why would judges be needed? Law Enforcement Officers could act as judges themselves, no? It would "speed up" the "ancient" legal system.

This argument is completely and utterly absurd. FISA has never turned down a request for wiretap. Never. Not once. Did I mention NEVER? They give the government 72 hours to wiretap someone before you have to face a judge and present a reason for the wiretap (so that it may continue.)

If 72 hours is not enough, why was there NO ATTEMPT TO LENGTHEN THE TIME WITH A REPUBLICAN EXECUTIVE AND LEGISLATIVE BRANCH AND MODERATE TO CONSERVATIVE SUPREME COURT?

Probable Cause is fairly vague. It ain't hard to get a warrant. No one has ever been refused by the FISA court. Cases can be thrown out of court if evidence was obtained illegally.




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