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 the law, how far does the conspiracy reach?

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

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 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 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. Nevermind, you're right!

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 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 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: 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 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 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 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 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 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

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 some good info on this subject today

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.

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: 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...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 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 '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 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 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, 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 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 kind of hard for me to kind of get bogged down in the law."