Editore"s Note
Tilting at Windmills

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December 19, 2005
By: Kevin Drum

FISA AND HAM SANDWICHES....I haven't been reading the blogosphere very much for the past few days, so excuse me if this is old news. But I wanted to mention the part of the NSA bugging story that strikes me as the strangest.

Remember that old saw about how a grand jury will indict a ham sandwich if a prosecutor asks it to? Well, as near as I can tell, the secret FISA court that authorizes domestic wiretaps is pretty much the same way: it would approve a wiretap on a ham sandwich if the government asked it to. I don't think official numbers are available, but unofficially it's clear that out of thousands of requests over the past decade, FISA has turned down only a tiny handful. Getting a FISA warrant is the closest thing to a slam dunk there is in the criminal justice system.

In fact, the New York Times article that exposed the NSA program made this very point:

The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.

Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.

This explanation is so weak as to be laughable. So what's the real reason for this program? Working with the FISA court wouldn't stop the Bush administration from doing anything they want to do, so what's the point of bypassing them? The real point, that is.

Kevin Drum 11:47 AM Permalink | Trackbacks | Comments (191)

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The only conceivable reason is so there will no records.

Posted by: JayAckroyd on December 19, 2005 at 11:49 AM | PERMALINK

That and they want basically unlimited, unchecked executive power.

Posted by: Rad Racer on December 19, 2005 at 11:51 AM | PERMALINK

The point is the prove they can. It's all about power and satisfying their lust for it for this administration.

Posted by: Tom DC/VA on December 19, 2005 at 11:51 AM | PERMALINK

All of the above.

Posted by: Roger on December 19, 2005 at 11:52 AM | PERMALINK

Josh has the numbers:
http://www.talkingpointsmemo.com/archives/007280.php

And I think the motivation is clear--this is Rove's version of J Edgar Hoover tactics of keeping enemies in line. Political enemies, that is.

Posted by: Amit Joshi on December 19, 2005 at 11:53 AM | PERMALINK

IT is the third reason.

Bush violates the law because he believes that he is the law, and complying with the law is an admission that his power is not unlimited. He is attempting, thus far successfully, the restore the royalist executive with unlimited powers.

The Bush motto: L'estate, c'est moi

Posted by: POed Liberal on December 19, 2005 at 11:53 AM | PERMALINK

No records! Exactly.

What they want to do/are doing, may be refused by the FISA courts.

.

Posted by: agave on December 19, 2005 at 11:53 AM | PERMALINK

I'm not sure it's entirely weak.


Here's why.

Foreign al quaeda operative X calls a cell number in the U.S.....it could take hours to days to determine who the cell number belongs to and then procure a warrant. Meanwhile that conversation goes unrecorded.

Am I missing something here?

Posted by: Nathan on December 19, 2005 at 11:54 AM | PERMALINK

Administration officials counter that they sometimes need to move more urgently, the officials said.

This explanation doesn't hold water, as FISA allows for retroactive approval up to 72 hours after the surveillance.

So why are they doing it? So no one will no, so there'll be no trac or proof or evidence of their misdeeds.

Posted by: Stefan on December 19, 2005 at 11:54 AM | PERMALINK

It all reminds me of the Baldknobber vigilantes....

Goin' after bad guys.
Goin' after guys who aren't good.
Goin' after guys who arent' good enough.

Posted by: Darryl Pearce on December 19, 2005 at 11:55 AM | PERMALINK

You know how torture advocates always argue the merits of something like torture warrants? Geez, if the Bushites are afraid to let the FISA court know who they're wiretapping, does anyone really think they'd be any more inclined to reveal who they're torturing?

Posted by: R. Porrofatto on December 19, 2005 at 11:56 AM | PERMALINK

welcome back! This question has been much on the blogging mind, check out http://www.defensetech.org/archives/002030.html for some suggestions. He wonders if the change is technology based. Also Josh Marshall noted that there were no apparent rejections until 2003 (there's an ashcroft letter form 2002 saying no turndowns either) , so maybe the requests got more extreme, and they decided to sidestep.

Posted by: shrink in sf on December 19, 2005 at 11:56 AM | PERMALINK

Am I missing something here?

Retroactive authorization.

They are so arrogant, so contemptuous of the law that they will not even attempt to obtain retroactive authorization.

Posted by: POed Liberal on December 19, 2005 at 11:56 AM | PERMALINK

Our instincts tell us that Rad Racer and Tom are right - power for the sake of power. But could these guys have a form of power and not abuse it? Hard to fathom.

But if they were using this 'authority' to tap John Kerry's phone, why didn't the leaker who brought this to the light of day bring that out too? Perhaps s/he is just dripping things out??? Strange.

Josh Marshall seems to have found evidence that the few FISA court _rejections_ in the last decade and a half or so have all occurred quite recently. So there is some evidence that they are pushing things over there.

Posted by: BoulderDuck on December 19, 2005 at 11:56 AM | PERMALINK

The next round of WH spin will be: FISA warrants were so easy to get, they were practically worthless. So what's lost by not getting them??

Posted by: Grumpy on December 19, 2005 at 11:56 AM | PERMALINK

The point of the NSA domestic-spying program is to expand the powers of the Presidency. Cheney, for one, has either written or spoken (or both) to the fact that he believes the post-Watergate reforms went too far in circumscribing Presidential powers. Many, many things the Bush administration has done in action and policy show that they believe the Executive Branch should be allowed to act as the President pleases in secrecy and without checks and balances. Everything they get away with sets precedent.

Posted by: Christopher Nelson on December 19, 2005 at 11:56 AM | PERMALINK

POed Liberal is right on the mark: the Georgian Occupied Government simply believes it is the law, and anyone who doesn't agree is a traitor.

Posted by: tim on December 19, 2005 at 11:57 AM | PERMALINK

Maybe if we knew a few of the names that have been investigated without court approval it might answer some questions.

Pat Fitzgerald?
Murtha?
Kennedy?
Sheehan?
Moveon members?

I know, I know, I'm being a conspiracy theorist.

Posted by: whosays on December 19, 2005 at 11:57 AM | PERMALINK

Off topic a bit, but a must read for tbrosz and conspiracy nut and the assorted nutjob apologists for the Bushistas: an Izvestia aka WaPo article by a victim of torure, with a very good joke at the beginning of the article.

Posted by: lib on December 19, 2005 at 11:58 AM | PERMALINK

Here's my theory. It's kind of like the Alaskan King Crab fishery, or maybe the tuna fishery. They throw out their crab pots/huge nets, and pull in all kinds of critters along with their target fish. then they have to go back through the haul and toss overboard everything that they didn't intend to catch.

The NSA probably hauls in all kinds of their foreign "target fish" all the time in listening in on foreign traffic, and getting caught up in their haul are communications from domestic parties to ferners (which is what this hub-bub is all about, comms by citizens with foregners). They now have to identify the domestic-connected traffic and separate them out from the ferners and toss them over the side. In short, the fish are already in the hold, and they have to delete them.

They can't help but see some extremely useful things while in the process of deleting this traffic, which was collected without explicit warrant. It'd sure be nice to be able to retain it. It's almost impossible for them to "unknow" it.

That's my theory.

Posted by: Red State Mike on December 19, 2005 at 11:59 AM | PERMALINK

Since they can get a warrant retroactively, unrgency clearly isn't it - as you say.

So, two possibilities:

1) They just don't care. Fetters are for the weak, Constitutional niceties take time to learn and understand. Who wants to be bothered?

2) They're spying on domestic political opponents and they don't want a trail. Nixon did it and much of this administration is old Nixon hands.

or a combination of the two.

Posted by: Samuel Knight on December 19, 2005 at 11:59 AM | PERMALINK

Read Ezra's take. I dare tbroz to answer that.

Posted by: Gore/Obama '08 on December 19, 2005 at 11:59 AM | PERMALINK

my initial thought was "because they can", i see Tom DC/VA already came to that conclusion too. i'm not sure that not having a warrant means that there will be no records. because the convs are recorded, and presumably transcribed and analysed by someone, there will be that record. in my mind, this is just the latest example of the administration's decision that if they don't like the law, they'll ignore it, then try to come up with some justification for ignoring it later when they get caught.

Posted by: e1 on December 19, 2005 at 11:59 AM | PERMALINK

Abuse is the only expression of power they know.

Posted by: Darryl Pearce on December 19, 2005 at 12:00 PM | PERMALINK

Working with the FISA court wouldn't stop the Bush administration from doing anything they want to do, so what's the point of bypassing them?

I think you are making a common mistake of assuming that the content of the application is irrelevant -- because the Foreign Intelligence Surveillance Court rarely rejects any applications, it doesn't matter what is in the application, because there will be the same low probability of rejection in any case.

If there needs to be probable cause to believe the target is a "foreign power" under FISA, and the Bush Administration is unwilling to get warrants, the most likely explanation is that the evidence supporting those warrant applications is so weak that, based on the past proceedings before the Court, they know they are likely or certain to be rejected for failing to meet that standard. Probably because they are engaging in fishing expeditions based on the vaguest suspicions or very loose profiling and trying to develop information from it.

Posted by: cmdicely on December 19, 2005 at 12:00 PM | PERMALINK

And they could have asked for "permission" retrospectivally.

Posted by: Gore/Obama '08 on December 19, 2005 at 12:01 PM | PERMALINK

The FISA court turned down the FBI attempt to get a search warrant for Moussawi's laptop files.

http://www.time.com/time/covers/1101020603/memo.html

The time element involved is the critical factor. Credit card thieves know they have only hours to use a card until it is reported stolen. When a terrorist's cell phone is obtained, the numbers in the address book are a volatile asset. There is no time to get a search warrant.

I do agree that Bush should have gone retroactively to FISA but it is not a rubber stamp, see above, and a denial might have caused a crisis at a bad time.

The echelon program was approved by Clinton and does the same thing yet there is no controversy. Why ?

Posted by: Mike K on December 19, 2005 at 12:01 PM | PERMALINK

Now that we fully understand the meaning of the democracy that your president wants us to have -- snooping on the citizens: allowed, torture: allowed, secret prisons: allowed, detention without being charged: allowed-- we wholeheartedly agree that we too should also have elections. Please send us some Diebold machines.

If you had this in mind, why did you guys waste the lives of 2200 of your own and $250B? You could have just told us.

Posted by: middle east dictator on December 19, 2005 at 12:03 PM | PERMALINK

I wouldn't put it past these guys to spy on someone like John Kerry. Didn't John Bolton tap Bill Richardson's phones or something?

Posted by: Rad Racer on December 19, 2005 at 12:04 PM | PERMALINK

ah...fair enough on the retroactive point.

http://www.defensetech.org/archives/002030.html

gives something to chew on...perhaps the volume of traffic (being electronically searched for keywords) is the issue?

its pretty clear from who went along with the program in Congress that it's not about an executive power grab.

Posted by: Nathan on December 19, 2005 at 12:06 PM | PERMALINK

The echelon program was approved by Clinton and does the same thing yet there is no controversy.

Eschelon wasn't "approved by Clinton," it's been around since the 1970s. Stop making shit up.

Posted by: Rad Racer on December 19, 2005 at 12:06 PM | PERMALINK
The echelon program was approved by Clinton and does the same thing yet there is no controversy.

Leaving aside the question of equivalency, its either gross ignorance or amazing dishonesty to pretend that Echelon has not been a source of controversy.

Posted by: cmdicely on December 19, 2005 at 12:06 PM | PERMALINK

Am I missing something here?

Yes, the fact that the the law allows for retroactive approval of a wiretap. But the Bush regime never even sought that kind of approval, but flouted the law entirely.

Posted by: Stefan on December 19, 2005 at 12:08 PM | PERMALINK

Nathan--

FISA permits retroactive attainment of warrants, for up to 72 hours for precisely this reason.

Posted by: JayAckroyd on December 19, 2005 at 12:09 PM | PERMALINK

its pretty clear from who went along with the program in Congress that it's not about an executive power grab.

What an astonishing suckup and toady response.

Being informed about an upcoming violation of the law, and also being informed that if you blow the whistle you will be sent to Guantanemo and water-boarded is NOT REPEAT NOT the same as giving permission.

Posted by: POed Liberal on December 19, 2005 at 12:09 PM | PERMALINK

Well, I hate to disagree with just about everyone here, but to go to FISA you need at least a name in the first place, and perhaps a ginned up reason. The NSA did not know the names. It was not looking for evidence on known Al Qaeda, they were looking to find Al Qaeda U.S. cells in the first place. After 9-11 they realized that they had no real ideal of the level of active cells in the U.S. and went looking any way they could. They probably monitored just about every phone call and email placed to certain countries from the U.S. over the last few years and the ones they could not actually listen to because of resources, they ran through a program to select calls based on key words or other such paradigm.
When you know so little about the enemy you have to go searching. This makes it a different problem with different solutions than what FISA was meant to handle. I'm not saying its a good thing, nor am I saying Bush should just have done whatever he wanted without consulting other branches of government. But given the basic problem -- large scale attacks by an unknown enemy, I would have done a lot to make it a known enemy myself. I would have consulted more, but that is not this guys style.

Posted by: patrick on December 19, 2005 at 12:10 PM | PERMALINK

complying with the law is an admission that his power is not unlimited

This would be the correct ham sandwich.

Posted by: fiat lux on December 19, 2005 at 12:10 PM | PERMALINK

Just so that all bases are covered:

A week or so ago Drum asked after the existence of any TOP SECRET LAWS - that is laws whose contents are themselve secret.

Is there even a remote possibility that there's a classified law giving, in effect, gw this kind of dictatorial power?

(Disclaimer: I only ask this in the interests of not excluding any possibilities.)

Posted by: cdj on December 19, 2005 at 12:10 PM | PERMALINK

FISA permits retroactive attainment of warrants, for up to 72 hours for precisely this reason.

Is that 72 hours from transmission of message, from receipt of message, or from decrypting? I'd be curious to know.

Posted by: Red State Mike on December 19, 2005 at 12:11 PM | PERMALINK

i'm not sure that not having a warrant means that there will be no records. because the convs are recorded, and presumably transcribed and analysed by someone, there will be that record.

Yes, but that't the record that they control. They don't control the courts's records (much as they'd dearly wish to.)

Posted by: Stefan on December 19, 2005 at 12:11 PM | PERMALINK

"Eschelon wasn't "approved by Clinton," it's been around since the 1970s. Stop making shit up."

Why? It is their only way of defending the criminal BushCo and their ongoing efforts to destroy everything the U.S. stood for in 2000 -- just make shit up.

Posted by: Gore/Obama '08 on December 19, 2005 at 12:11 PM | PERMALINK

John Dean writes about Cheney's disdain for Congressional oversight here:
http://writ.news.findlaw.com/dean/20021011.html

"Plainly, Cheney thinks presidents should not only execute the laws, but write them as they wish they had been. Never mind that Congress has passed a law the President has not vetoed, or as to which his veto was overrided. It is still up to him whether to abide by that law, Cheney seems to believe. "

Posted by: Christopher Nelson on December 19, 2005 at 12:12 PM | PERMALINK

Count me in with the "to show they can" crowd. Bob Herbert in today's NY Times makes the perfect analogy: it's the equivalent of Alfonso Bedoya's immortal "I don't have to show you any stinking badges" in Treasure of Sierra Madre.

We're really at something of a dividing line now, for Republicans. Are you just in the "easily fooled" category, or have you moved over to "willfully gullible"? Only the latter will be out defending this. (Note to McCain-swooners: he's tossed away a few more bona fides by taking the second course)

Posted by: demtom on December 19, 2005 at 12:13 PM | PERMALINK

As Jay said...No records.

Welcome to our new police state. Please turn on your cell phone so we can follow you. Implants, while painful, will assure us that you won't forget to turn on your tracking devices. Pleas take a number and wait.

Posted by: bobbywally on December 19, 2005 at 12:13 PM | PERMALINK
Is there even a remote possibility that there's a classified law giving, in effect, gw this kind of dictatorial power?

If there were, it would pretty clearly be unconstitutional, and thus without legal effect. Its also pretty unlikely politically; Congress' historical MO on these kinds of things is more along the lines of simply failing to respond to executive abuses than covertly authorizing them. The effect is exactly the same, but the latter would be more likely to result in political blowback on members of Congress if someone decided to let the cat out of the bag.

Posted by: cmdicely on December 19, 2005 at 12:14 PM | PERMALINK

Rad Racer:

I have wondered about Bolton's requests to spy on his own staff as well and whether or not in the volume that the Bush folks pushed through ("too busy" to get the retroactive warrants, "too much volume" to check everything) Bolton and Cheney pushed this through. Someone mentioned the number of old Nixon hands this administration has. Their ethos really informs this whole bunch (see the FIA restrictions for example). So yes, I would love to know a few things -- were any of the intercepts of US government employees? Let's start there, then find out which employees, and what was gathered.

Posted by: old_Bert on December 19, 2005 at 12:16 PM | PERMALINK

Mike K

There was quite a bit of controversy with the echelon program, so much so, that for all intents and purposes it was shut down. It violated no laws, yet is now a shell of itself.

OTOH, the Busch cabal violated public law, for what reason?

They could have taken that terrorists "address book", and, when none of the addresses panned out (done well within 72 hours), applied for a warrant (to maintain appearances) and been turned down. No harm.

Yet, they wished to violate clearly stated law, which leads me to believe that there is another reason they do not wish to follow procedure.

Posted by: Sky-Ho on December 19, 2005 at 12:16 PM | PERMALINK

Bush just pretty much claimed his right to do virtually anything, to anyone, anytime he wants.

Justification: It's part of the President's job "to protect Americans". As far as I can tell, this assertion of executive power carries no limitations or restrictions whatsoever.

Dangerous times folks.

Posted by: Buford on December 19, 2005 at 12:16 PM | PERMALINK

hmm...a thought just occurred.

Can a FISA warrant be issued for a "John Doe" based merely on a cell-number?


Assume a prepaid cellphone. a call to that number is placed by a suspect overseas. Is it possible to get a retroactive warrant for that cellphone without any knowledge of who possesses it?

Posted by: Nathan on December 19, 2005 at 12:17 PM | PERMALINK

Stefan:Yes, but that't the record that they control. They don't control the courts's records

good point. but if it's the fisa court, re a classified program, wouldn't the existance of that warrant be classified too? (i'm thinking like those national security letters that you have to comply with and can't tell anyone if you've gotten) otoh, looks like someone got fed up w/ the program and decided leaking was the better part of valor anyway.

Posted by: e1 on December 19, 2005 at 12:19 PM | PERMALINK

I would have consulted more, but that is not this guys style.

Unfortunately, it's not a matter of "style," but of the law.

Posted by: Stefan on December 19, 2005 at 12:20 PM | PERMALINK
Well, I hate to disagree with just about everyone here, but to go to FISA you need at least a name in the first place, and perhaps a ginned up reason. The NSA did not know the names.

Wrong. There requirements for a FISA warrant application are here (quoted from 50 USC 1804(a)):

(1) the identity of the Federal officer making the application; (2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application; (3) the identity, if known, or a description of the target of the electronic surveillance; (4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; (5) a statement of the proposed minimization procedures; (6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance; (7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate (A) that the certifying official deems the information sought to be foreign intelligence information; (B) that a significant purpose of the surveillance is to obtain foreign intelligence information; (C) that such information cannot reasonably be obtained by normal investigative techniques; (D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and (E) including a statement of the basis for the certification that (i) the information sought is the type of foreign intelligence information designated; and (ii) such information cannot reasonably be obtained by normal investigative techniques; (8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance; (9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; (10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and (11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.
Posted by: cmdicely on December 19, 2005 at 12:20 PM | PERMALINK

Nathan:

Yes, a John Doe and a number is fine.

Posted by: old_Bert on December 19, 2005 at 12:22 PM | PERMALINK
Can a FISA warrant be issued for a "John Doe" based merely on a cell-number?

Yes. See (3) in the above list of requirements for a FISA warrant.

Posted by: cmdicely on December 19, 2005 at 12:23 PM | PERMALINK

Am I missing something here?


Link to Josh Marshall's post on retroactive authorization. They can do as many emergency wiretaps as they like as long as they go to the FISA court withing 72 hours.

Posted by: they'll always shock you on December 19, 2005 at 12:23 PM | PERMALINK

cmdicely:

ah. interesting. what I wonder is does "a description of the target of the surveillance" allow for only a cellphone number? (or web-based e-mail address...its easy enough to get an untraceable e-mail account) if they had FISA warrants rejected on those grounds in the past I can see some justification here.

Posted by: Nathan on December 19, 2005 at 12:23 PM | PERMALINK

Justification: It's part of the President's job "to protect Americans"

In his press conference this morning, he mentioned several times that it was his job to "protect" Americans.

Protect. Hmmm. I not so sure this word means what he things it means.

Posted by: E. Henry Thripshaw on December 19, 2005 at 12:23 PM | PERMALINK

The echelon program was approved by Clinton and does the same thing yet there is no controversy. Why ?

Echelon is a collection method, not a real program. In fact, the term 'echelon' is out of circulation and doesn't really apply to anything in the case of NSA spying on US citizens.

Echelon is a key word search/recognition program that culls items of interest out of the vast piles of intercept out there. Regardless of what is said or written about the echelon search method, anything that it collects becomes subject to FISA and USSID 18 rules.

And, because I'm tired of having to point this out again and again, USSID 18 does not allow for the collection and storing of material on US citizens unless the FISA court has granted permission. Echelon search methods fall under USSID 18 and must comply with those laws, same as the wiretaps or whatever else is out there.

See this link:

http://cryptome.org/nsa-ussid18.htm

For more information.

Posted by: Pale Rider on December 19, 2005 at 12:25 PM | PERMALINK

We're really at something of a dividing line now, for Republicans. Are you just in the "easily fooled" category, or have you moved over to "willfully gullible"? Only the latter will be out defending this. (Note to McCain-swooners: he's tossed away a few more bona fides by taking the second course)
Posted by: demtom on December 19, 2005 at 12:13 PM | PERMALINK

No - we crossed the line to "willfully gullible" a long time ago.

Posted by: freedom_been_forgotten on December 19, 2005 at 12:26 PM | PERMALINK

Well whatever it was they were looking at, it was enough to disturb two FISA Court Judges, one a reliable conservative Reagan appointee, think about it.

Posted by: aline on December 19, 2005 at 12:27 PM | PERMALINK

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power;

so i'm thinkin' "we found this number in a know Al Queda members cell phone book and we wanta check it out for a coupla days" prolly would cover it, esp ""shortly after 9/11"" when this thing supposedly started.

and as far as the "urgency" thing goes, if you can wake a district or superior court judge up at 2am to do an emergency child custody removal, or get an injunction, then why the hell wouldn't the FISA court judge have some way you could get ahold of her 24/7, this being NAtionAL SECurity and ALL??

Posted by: e1 on December 19, 2005 at 12:27 PM | PERMALINK

Ronald Reagan said, "The nine most terrifying words in the English language are, 'I'm from the government and I'm here to help."

Posted by: Darryl Pearce on December 19, 2005 at 12:28 PM | PERMALINK

Mike K said:

The FISA court turned down the FBI attempt to get a search warrant for Moussawi's laptop files

In fact, Mike's statement is absolutely false. Here's what the article cited by him actually said:

the process allowed the Headquarters Supervisor to ... get out of the work of having to see the FISA application through or possibly to avoid taking what he may have perceived as an unnecessary career risk.

In short, FISA never saw the request (at least according to the article; if Mike has another source, he needs to provide it.)

Posted by: Close Reader on December 19, 2005 at 12:28 PM | PERMALINK

It's simple. The Bush administration has obtained intelligence that Al Qaeda has infiltrated the FISA court.

Posted by: theperegrine on December 19, 2005 at 12:28 PM | PERMALINK

The 4th Amendment states "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated...." What, pray tell, is unreasonable about listening in on conversations between hostile foreign powers engaged in war against the United States (overseas al Qaeda agents) and their colleagues, agents, and contacts in the US?

The warrant requirement of the 4th Amendment ("no Warrants shall issue, but upon probable cause....") is in a separate clause altogether and is not relevant to this case.

The only issue here is whether the NSA's eavesdropping was reasonable or unreasonable.

Posted by: DBL on December 19, 2005 at 12:34 PM | PERMALINK

Is that 72 hours from transmission of message, from receipt of message, or from decrypting? I'd be curious to know.

It's 72 hours from start of surveillance, as covered in Section 1805 of the Act:

(f) Emergency orders
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.

Posted by: Stefan on December 19, 2005 at 12:34 PM | PERMALINK

Not to leap to the defense of this administration, but the only possible justification would be if they thought there was a baddie in the FISA courts.

HOWEVER, that's why we have a congress and courts in addition to an executive. These are CO EQUAL branches of government. Sadly, this CONGRESS, possibly comprising the biggest collection of morons ever assembled, has conducted NO OVERSIGHT of the executive. This Congress should be impeached for malfeasance.

Posted by: marblex on December 19, 2005 at 12:35 PM | PERMALINK

Nathan: Am I missing something here?

Yeah, a brain.

The same argument could be made for every other crime or suspected crime taking place in the US.

It has always been inconvenient for government, including law enforcement, to act within the framework of the Constitution.

The really tragic thing is that you don't see that this is exact, EXACTLY, the same excuses that the Hitlers, Stalins, and Saddams of the world use to justify their own secret police, interrogation tactics, secret prisons, denials of due process, secret courts, warrantless arrests, and all around executive power over all things and all people.

Executive power limited only by the conscience of the executive is unlimited executive power.

Unlimited executive power is not constitutional and was an abomination to our Founding Fathers.

Those who favor it are traitors to our constitutional regime.

Posted by: Advocate for God on December 19, 2005 at 12:35 PM | PERMALINK

Seriously folks, quit with the fairytale good/evil bullshit. Bush probably wanted to conduct routine, widespread surveillance...the kind for which he couldn't realistically prepare a legal brief.

To get FISA court approval, you have to know who you want to survey, why you want to survey them and how long you'll be surveying. The NSA programs are probably generalized 'fishing expeditions', like the peace protestor database at the Pentagon. Yes, it's evil and wrong to want to steal this power surreptitiously, but they aren't doing anything 'just to prove that they can'.

Posted by: theperegrine on December 19, 2005 at 12:35 PM | PERMALINK

theperegrine -

(1) lol

(2) Good! That means we're that much closer to being about to say without criticism that gw is the biggest Al Quaeda aider and abettor in history.

Posted by: cdj on December 19, 2005 at 12:35 PM | PERMALINK

This fishing expedition analogy seems fairly accurate, but also incredibly ineffective. Is it not all that dissimilar to Ashcroft's amazing number of arrests and even more stunningly number of convictions, 0.

Posted by: donnie on December 19, 2005 at 12:36 PM | PERMALINK

Patrick has a point. It may well be that they are doing very widespread keyword surveillance, and do not want that known.

Posted by: JayAckroyd on December 19, 2005 at 12:37 PM | PERMALINK

Spying on political enemies,which for this administration means everyone else.

Posted by: marblex on December 19, 2005 at 12:37 PM | PERMALINK

John from AmericaBlog wonders if the Bushies have been spying on journalists. Scary to say this doesn't sound like it's beyond the realm of possibility with this paranoid, power-hungry crew.

Posted by: The Crowd Goes Wild! on December 19, 2005 at 12:38 PM | PERMALINK

It's really hard to say what the NSA capabilities are in this regard. Carnivore was a very ambitious program. And the NSA is not Ashcroft.

Posted by: JayAckroyd on December 19, 2005 at 12:39 PM | PERMALINK

The Bush administration has obtained intelligence that Al Qaeda has infiltrated the FISA court.

...ha-Ha-aH-HA-ha--hoo, hee, hee

Posted by: Darryl Pearce on December 19, 2005 at 12:39 PM | PERMALINK

patrick: Well, I hate to disagree with just about everyone here, but to go to FISA you need at least a name in the first place, and perhaps a ginned up reason. The NSA did not know the names.

cmdicely: Wrong. There requirements for a FISA warrant application are here (quoted from 50 USC 1804(a)):

(1) the identity of the Federal officer making the application; (2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application; (3) the identity, if known, or a description of the target of the electronic surveillance; (4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; (5) a statement of the proposed minimization procedures; (6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance; (7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the......etc.

Ok, so you don't need to know the actual name. However, you do need to know some things ahead of time, whether it be "facts or circumstance" or "surveillance is a foreign power or an agent of a foreign power" or "detailed information of the information sought". The point is, all of these are things that means your already know at least a little about who your target is and why they are your target. The point of Bush's phone and email searches was not to gather more information on known or suspected targets, but to find some targets in the first place. Different problem. Once again, after 9-11, they had no idea of the size or location of their enemy and felt compelled to find them fast. The fact that he is still doing it without any coordination or attempt to codify it is despicable. But, once again, I do not think FISA solved the perceived problem of a needing broad-scale search for unknown enemies.

Posted by: patrick on December 19, 2005 at 12:39 PM | PERMALINK

forgive me if this is mentioned elsewhere the count since 1979, according to one of the reporters who stated this is 19,000 approvals with FIVE REJECTIONS in all that time.

Posted by: robbymack on December 19, 2005 at 12:39 PM | PERMALINK

Red State Mike: "Is that 72 hours from transmission of message, from receipt of message, or from decrypting? I'd be curious to know."

If we're talking about eavesdropping on phone conversations, it seems that 72 hours from transmission or receipt is a distinction without a difference. Most certainly, the amount of time it might take to decrypt anything would be irrelevant, for the purpose of your question. But it's hard to imagine why your question matters. The fact is that this is ample time to get approval from courts. If this is the essential tool that the administration claims it to be, there's no reason to think that the court would deny them.

Posted by: chaunceyatrest on December 19, 2005 at 12:40 PM | PERMALINK

Bush probably wanted to conduct routine, widespread surveillance...the kind for which he couldn't realistically prepare a legal brief.

Since when is warrantless surveillance for which the White House couldn't possibly prepare a legal justification "routine"?

Posted by: The Crowd Goes Wild! on December 19, 2005 at 12:40 PM | PERMALINK

ah. interesting. what I wonder is does "a description of the target of the surveillance" allow for only a cellphone number? (or web-based e-mail address...its easy enough to get an untraceable e-mail account)

Yes, a description of the target can allow for only a cellphone number.

if they had FISA warrants rejected on those grounds in the past I can see some justification here.

What??? You're saying that the fact that the court rejected their reasoning in the past is justification for them to flout the law and bypass the court? And you claim to be an attorney??? Fucking incredible.

Posted by: Stefan on December 19, 2005 at 12:41 PM | PERMALINK

The Crowd Goes Wild:

Since 2003, apparently.

Posted by: theperegrine on December 19, 2005 at 12:42 PM | PERMALINK

It's really hard to say what the NSA capabilities are in this regard. Carnivore was a very ambitious program.

Carnivore was run by the FBI, not the NSA. And it was just a packet sniffer with a scary name. Still Big Brother-ish, no doubt.

Posted by: The Crowd Goes Wild! on December 19, 2005 at 12:43 PM | PERMALINK

To get FISA court approval, you have to know who you want to survey, why you want to survey them and how long you'll be surveying.

Well, duh. If you don't know who you want to surveill and why you want to surveill them then are you doing any surveilling at all? Otherwise it's just a fishing expedition.

Posted by: Stefan on December 19, 2005 at 12:43 PM | PERMALINK

My vote is that the monitoring went far beyond what we have told. They wouldn't have received FISA approval and they didn't want records.

For example:

1) they may have been monitoring numbers that were 6 calls removed from a phone that was acquired during primary intelligence. i.e. bad guy - bad guy - pizza guy - exgirlfriend - jewish grandmother - hairdresser - Eqyptian shampoo saleman who likes to wear plaid.

2) they may have been using computers to monitor all calls from the US to target countries (Afghanistan, Pakistan, Yemen, Sudan, etc.),

and/or
3) they may have been monitoring the numbers of citizens or groups who had expressed empathy for afghani or iraqi citizens (peace groups, the red crescent and red crescent donors, LTE writers, etc.)

Posted by: ranaaurora on December 19, 2005 at 12:43 PM | PERMALINK
However, you do need to know some things ahead of time, whether it be "facts or circumstance" or "surveillance is a foreign power or an agent of a foreign power" or "detailed information of the information sought". The point is, all of these are things that means your already know at least a little about who your target is and why they are your target.

Which, if you aren't just tapping phones randomly, you will, in fact, have. So this is not a substantial problem.

The point of Bush's phone and email searches was not to gather more information on known or suspected targets, but to find some targets in the first place.

That's not what the Bush Administration claims, and, if true, it would not only violate FISA but, more importantly, the Fourth Amendment. The Bush Administration claims time problems and other difficulties (all of which are incredible, but that is beside the point), they do not claim to have been engaging in random fishing expeditions not based on any reasonable cause to identify people that there might be cause to examine more closely, as you suggest.

Posted by: cmdicely on December 19, 2005 at 12:44 PM | PERMALINK

Why does Bush take this stance?

Because he can.
Because he's an idiot.
Because that policy let's him spy on political opponents.
Because the Republicans WANT to destroy America, so they can save it with another REVOLUTION (remember the Reagan Revolution?).
Maybe the revelation about having Musab Al Zarqawi in our possession and then releasing him was too embarassing, so he had to go and violate the Constitution.

It doesn't really pay to try to "get into Bush's head". That way only leads to insanity (and pretzels that choke).

Posted by: MarkH on December 19, 2005 at 12:44 PM | PERMALINK

You're saying that the fact that the court rejected their reasoning in the past is justification for them to flout the law and bypass the court?

Silly Stefan--the courts mean nothing to the Republican War Machine.

These liberal stinking judges are meant to be thrown aside when it comes to protecting America from...from...

Who are we fighting, again? Which fake enemy are we trying to prop up as an imminent threat to this country?

Posted by: Pale Rider on December 19, 2005 at 12:46 PM | PERMALINK


The answer has to be that the Feds wanted to do wiretaps that no court would ever approve, not even in the climate just after 9-11.

There's a good chance we'll find out who was tapped. My favorite theory is that it was done for personal reasons, something like Arnold bugging Jamie Lee Curtis in True Lies; maybe Laura was stepping out with one of her Secret Service guards. Even as we speak, flacks are readying themselves to defend the indefensible: I figure they'll say that Bush is a Texan and cite the unwritten law. Or perhaps the twins were hanging around with Cheney's daughter.
Those flacks are dedicated, as long as the checks don't bounce; if we caught him buggering an armadillo, they'd say it was a strong man's weakness.

Posted by: gcochran on December 19, 2005 at 12:46 PM | PERMALINK

I was startled by the comment that FISA blocked the search of moussawi's laptop, and have been reading up. Are you aware of this article? http://www.fear.org/ffjournal/FISAcourt.html Written I think in 2003. So the powers were expanded and then bypassed?

"For the first time in spy court history the secret "FISA" court denied a government wiretap request, and sharply criticized widespread abuse by Justice Department and FBI. Governments appeal results in first ever ruling by FISA Court of Review, granting governments appeal for greater powers to spy on US citizens.?

Posted by: Shrink in SF on December 19, 2005 at 12:47 PM | PERMALINK

"The only issue here is whether the NSA's eavesdropping was reasonable or unreasonable."

Wait a minute.

That would be if we were only declaring these acts unconstitutional -- which is a valid question, but not the immediate one.

the real question is if it's criminal, and it sure looks like it. from WaPost --

"The exact language of the law is: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute."

Where's the statute? The Afghanistan authorization, as Gonzales says? That's beyond weak -- it's delusional. Without a statute, it's a crime.

Posted by: Fake Police on December 19, 2005 at 12:48 PM | PERMALINK

If Kevin will permit me to be uncharacteristically shrill for a moment- it's impossible, in the face of these reports, not to think back on Orwell and wonder when exactly our government intends to terminate this 'war'?

Posted by: theperegrine on December 19, 2005 at 12:49 PM | PERMALINK

Thanks closereader, for finding the very sentence I was hunting for. It seemed to me that if this were true it would have been the only think out of the adminstrations mouth. Its a very compelling sounding argument.

Posted by: Shrink in SF on December 19, 2005 at 12:53 PM | PERMALINK
The warrant requirement of the 4th Amendment ("no Warrants shall issue, but upon probable cause....") is in a separate clause altogether and is not relevant to this case.

The fairly consistent holdings of the Supreme Court and the lower appellate courts are that the warrant clause is not detached from reasonableness, and except for certain extreme exigencies in which warrants are utterly impracticable (search incident to arrest, etc.), a warrantless search is per se unreasonable. Which is the only sensible reading -- your preferred reading would render the warrant clause entirely without effect, as there would be no reason to ever seek a warrant so long as you were prepared to justify your search after-the-fact as reasonable.

Posted by: cmdicely on December 19, 2005 at 12:53 PM | PERMALINK

patrick--- If you (the gov't) have an ability tojustifiably listen in on any conversation taking place and within 72 hours can get a warrant giving you offical legal cover to do so it would be nothing less than executive hubris to claim that you needed to go around the mechanism provided to you.

Posted by: robbymack on December 19, 2005 at 12:54 PM | PERMALINK

Stefan:

"Yes, a description of the target can allow for only a cellphone number."

Do you know this for a fact? How?

"What??? You're saying that the fact that the court rejected their reasoning in the past is justification for them to flout the law and bypass the court? And you claim to be an attorney??? Fucking incredible."

That's not what I'm saying at all. We know that they have legal opinions stating that the 2001 AUMF provided them with legal sanction. Whether this is valid or not is to be determined by a court...not by us.
But Kevin's question remains -- why?
I'm trying to speculate as to that...let's say that the FISA court had rejected warrant applications in the past based solely on an e-mail address or cell number. Assume that under the 2001 AUMF they no longer need a warrant and thus it is legal to avoid the FISA court for such applications.

Posted by: Nathan on December 19, 2005 at 12:56 PM | PERMALINK

Doesn't the 72-hour FISA window mean that NSA can essentially tap anyone for three days, and then if they don't have a good reason they're supposed to stop?
Also, Dick Cheney said yesterday that the administration could have prevented 9/11, but decided not to because the FISA court was just too much hassle. Doesn't this bears looking into?

Posted by: Alan in SF on December 19, 2005 at 12:56 PM | PERMALINK

If you criticize Bush then you are a lefty moonbat, and that's why you lose elections.

Posted by: conspiracy nut on December 19, 2005 at 12:57 PM | PERMALINK
We know that they have legal opinions stating that the 2001 AUMF provided them with legal sanction. Whether this is valid or not is to be determined by a court...not by us.

I don't think you've quite figured out how this popular soveriegnty idea works. Keep trying.

Posted by: cmdicely on December 19, 2005 at 12:58 PM | PERMALINK
Doesn't the 72-hour FISA window mean that NSA can essentially tap anyone for three days, and then if they don't have a good reason they're supposed to stop?

If by "NSA" you mean "Attorney General", yes, it does, though of course there are mandatory determinations which must be made, and violating the conditions of the statue is a crime.

Posted by: cmdicely on December 19, 2005 at 1:00 PM | PERMALINK

longer (fake) conspiracy nut: If you criticise Bush during an open-ended war then you are a lefty moonbat and that's why you lose elections.

Posted by: robbymack on December 19, 2005 at 1:00 PM | PERMALINK

I'm trying to speculate as to that...let's say that the FISA court had rejected warrant applications in the past based solely on an e-mail address or cell number. Assume that under the 2001 AUMF they no longer need a warrant and thus it is legal to avoid the FISA court for such applications.

What about burden of proof and just cause for actually going forward? I would hope that the government would have something of a case to make towards getting the warrant.

If the FISA courts declined the request, I would have to think that the burden of proof wasn't met, and that isn't saying much.

And, think about this: Any reporter who makes a contact with someone who has links to Al Qaeda could theoretically be collected upon.

Daniel Pearl, for instance.

If someone wants to start their own blog on that particular issue--was Daniel Pearl monitored while in the United States while he was trying to set up the series of interviews with Al Qaeda that ultimately got him killed (by Al Qaeda or by someone else?)

Posted by: Pale Rider on December 19, 2005 at 1:01 PM | PERMALINK

If Kevin will permit me to be uncharacteristically shrill for a moment- it's impossible, in the face of these reports, not to think back on Orwell and wonder when exactly our government intends to terminate this 'war'?

He was asked essentially this question in the press conference. Frightening response:

[Peter Baker, WaPo]: I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a president during wartime.

And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?

BUSH: First of all, I disagree with your assertion of unchecked power.

QUESTION: (OFF-MIKE)

BUSH: Hold on for a second, please.

There is the check of people being sworn to uphold the law, for starters.

BUSH: There is oversight. We're talking to Congress all the time.

And on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times.

This is an awesome responsibility, to make decisions on behalf of the American people. And I understand that. And we'll continue to work with the Congress, as well as people within our own administration, to constantly monitor a program such as the one I described to you, to make sure that we're protecting the civil liberties of the United States.

To say "unchecked power" basically is ascribing some kind of dictatorial position to the president, which I strongly reject.

QUESTION: (OFF-MIKE)

BUSH: I just described limits on this particular program, and that's what's important for the American people to understand. I am doing what you expect me to do and, at the same time, safeguarding the civil liberties of the country

Posted by: JayAckroyd on December 19, 2005 at 1:01 PM | PERMALINK

But Kevin's question remains -- why?

They're spying on journalists.

Posted by: Ugh on December 19, 2005 at 1:02 PM | PERMALINK
I'm trying to speculate as to that...let's say that the FISA court had rejected warrant applications in the past based solely on an e-mail address or cell number.

There's no reason to believe the court would rule that way, since search warrants are generally valid that are issued by a target described only by relationship to the thing to be searched everywhere else in the law, and there is no language in the FISA statute suggesting anything to the contrary, and no one has presented any reason to think that FISA has been construed differently.

Assume that under the 2001 AUMF they no longer need a warrant and thus it is legal to avoid the FISA court for such applications.

Since the AUMF does not, in fact, contain any language authorizing searches, nor does it expressly declare war (thus invoking the "declared war" rules for warrantless searches), there is no credible argument that the AUMF does, in fact, alter in any way the warrant requirements.

Posted by: cmdicely on December 19, 2005 at 1:05 PM | PERMALINK

Why didn't they just interrupt journalists take-out orders to leak them information.

Posted by: ranaaurora on December 19, 2005 at 1:13 PM | PERMALINK

"Since the AUMF does not, in fact, contain any language authorizing searches, nor does it expressly declare war (thus invoking the "declared war" rules for warrantless searches), there is no credible argument that the AUMF does, in fact, alter in any way the warrant requirements."

cmdicely:

1. You're not an attorney.
2. I'm an attorney, but I don't work or write in the relevant fields.
3. Attorneys who do work in the relevant fields wrote opinions stating that this warrantless surveillance was legal under the 2001 AUMF. Remember that they are bound by oath to write those opinions in good faith.

The only conclusion: neither of us should be pronouncing on the legality of this surveillance. If it's illegal, it will be determined so in a court of law...not by a bunch of bloggers. If you're so certain in your legal acumen (and what 1-L isn't?)...find a way to achieve standing, sue, and argue it yourself.
If you won't, then I suggest a little less certainty might help your credibility.

Posted by: Nathan on December 19, 2005 at 1:14 PM | PERMALINK

Bush doesn't understand what he is sworn to protect. He doesn't understand 'freedom' and he doesn't understand 'democracy.'

Respect for the law is what makes freedom possible. Respect for opinion is what makes democracy possible.

Can we get a Democrat to draw a line in the sand?

Posted by: obscure on December 19, 2005 at 1:14 PM | PERMALINK

Nathan intones:

1. You're not an attorney.
2. I'm an attorney, but I don't work or write in the relevant fields.
3. Attorneys who do work in the relevant fields wrote opinions stating that this warrantless surveillance was legal under the 2001 AUMF. Remember that they are bound by oath to write those opinions in good faith.

What, like Harriet Miers?

Seems to me that if my ass was on the line, I'd go with the legal opinions of Chris Dicely over Nathan or Harriet Miers. (Actually, none of you--I'd go with the delightful Reese Witherspoon in Legally Blonde.)

And now we know why Bush wanted to put Harriet Miers on the Supreme Court. She was obviously screwing things up so bad when it came to drafting FISA requests that the 'Peter Principle' kicked in and he wanted to promote her and get someone competent.

Posted by: Pale Rider on December 19, 2005 at 1:18 PM | PERMALINK

Remember that they are bound by oath to write those opinions in good faith.

So was Scooter Libby.

Posted by: obscure on December 19, 2005 at 1:19 PM | PERMALINK

Since the AUMF does not, in fact, contain any language authorizing searches, nor does it expressly declare war (thus invoking the "declared war" rules for warrantless searches), there is no credible argument that the AUMF does, in fact, alter in any way the warrant requirements.

As neither you, nor I, nor anyone else who is not privy to the DoJ's classified legal opinions which Bush based his authority to issue warrantless surveillance orders, I can only conclude that you are talking out your tiresomely pontificating ass. Until more information is gleaned from those opinions, it's rather presumptuous to make dogmatic statements about the legal standing of the President's actions.

Posted by: I hate pedantic law students on December 19, 2005 at 1:22 PM | PERMALINK

Nathan,

I can only conclude that you are talking out your tiresomely pontificating ass...

Taking two shots at cmdicely now?

How mature is that?

Posted by: Pale Rider on December 19, 2005 at 1:24 PM | PERMALINK

"Until more information is gleaned from those opinions, it's rather presumptuous to make dogmatic statements about the legal standing of the President's actions."

my point exactly.

in cmdicely's defense -- he performs a valuable service by finding relevant statutes and regulations and posting them here on occasion. he has the advantage of that free student Lexis/Westlaw access.

Posted by: Nathan on December 19, 2005 at 1:26 PM | PERMALINK

Pale Rider: I always post under my name.

Posted by: Nathan on December 19, 2005 at 1:27 PM | PERMALINK
1. You're not an attorney.

I don't recall claiming otherwise. Again, I don't think you understand how this popular sovereignty thing works.

2. I'm an attorney, but I don't work or write in the relevant fields.

Good for you.

3. Attorneys who do work in the relevant fields wrote opinions stating that this warrantless surveillance was legal under the 2001 AUMF.

Yes, they did. Other attorneys have written to the contrary. The AUMF is not a particularly complicated enactment. There are no terms of the AUMF to which one can credibly claim any alteration of the laws appying to domestic searches. Wiretaps are not "force" -- the only thing authorized by the AUMF -- nor are the wiretaps directed at people who have not yet been determined to be associated with any group the President has determined responsible for 9/11 directed at any target against whom anything is authorized by the AUMF. So to claim that the AUMF authorizes the searches at issue, one must maintain the AUMF authorizes action its language makes no reference to authorizing against persons other than those against whom its plain language provides authority for action against. There is no reasonable interpretation of the AUMF that supports this conclusion.

Remember that they are bound by oath to write those opinions in good faith.

Since I am arguing that their action appears, barring some contrary information to which I am not privy, to be part of a criminal conspiracy and a conspiracy against the Constitutional order of government, I'm not sure why you think reminding me that it might also be a violation of legal ethics is going to get me to change my position.

Posted by: cmdicely on December 19, 2005 at 1:33 PM | PERMALINK
in cmdicely's defense -- he performs a valuable service by finding relevant statutes and regulations and posting them here on occasion. he has the advantage of that free student Lexis/Westlaw access.

Which, actually, I don't use for that purpose. The citations I post here I find using free, publicly available sources, usually the Cornell LII and Findlaw's search engine.

Posted by: cmdicely on December 19, 2005 at 1:35 PM | PERMALINK
"Until more information is gleaned from those opinions, it's rather presumptuous to make dogmatic statements about the legal standing of the President's actions."

God forbid anyone should mention Bush's pants are down.

Posted by: Lawrence of Arabia on December 19, 2005 at 1:39 PM | PERMALINK
If you're so certain in your legal acumen (and what 1-L isn't?)...find a way to achieve standing, sue, and argue it yourself.

The only way to acheive standing would be to be a target of the unwarranted surveillance -- and to somehow become aware of that. That's somewhat impractical. Instead, given as how this is the type of crime for which criminal sanction is an inadequate remedy and which goes to the heart of the Constitutional order of government, I will instead encourage my representatives in Congress to to address the matter.

Posted by: cmdicely on December 19, 2005 at 1:41 PM | PERMALINK

chaunceyatrest...
If we're talking about eavesdropping on phone conversations, it seems that 72 hours from transmission or receipt is a distinction without a difference.

I agree. I doubt that's what we are talking about.

Most certainly, the amount of time it might take to decrypt anything would be irrelevant, for the purpose of your question.

I dunno. Decrypting secure email would be a *very* difficult problem, and the idea that they could take any email and pop it open on the order of hours would be significant.

But it's hard to imagine why your question matters. The fact is that this is ample time to get approval from courts.

If it takes a week+ to sift/decrypt through the endless terrabytes of data that is the internet, and this violates the 72 hour retro allowance, then it matters.

If this is the essential tool that the administration claims it to be, there's no reason to think that the court would deny them.

The flip side is that anybody who expects a juicy secret in Wash DC to stay a secret is a fool. If you *already know* that the NY Times has the info, and you have a year to do damage control prior to their releasing the article, you're a bigger fool.

And I am curious as to the NY Times' timing of their release. Why on the day of the Iraqi elections? What triggered the release? A new piece of info that was lacking? The Patriot Act renewal?

There's a lot of news that tyhe NY Times isn't releasing, an awful lot of background that I'd love to hear about.

Posted by: Red State Mike on December 19, 2005 at 1:42 PM | PERMALINK

Oh, and btw, Nathan, in regard to your advice:

If you won't, then I suggest a little less certainty might help your credibility.

I don't make a habit of taking advice on how I should engage in political advocacy from people whose own political interests seem almost diametrically opposed to mine.

Posted by: cmdicely on December 19, 2005 at 1:43 PM | PERMALINK
As neither you, nor I, nor anyone else who is not privy to the DoJ's classified legal opinions which Bush based his authority to issue warrantless surveillance orders, I can only conclude that you are talking out your tiresomely pontificating ass.

How about this. You pull out a copy of the AUMF, and point to me the provision authorizing warrantless searches that would otherwise be prohibited by FISA.

Posted by: cmdicely on December 19, 2005 at 1:46 PM | PERMALINK

Because the sight of the presidents cock & balls is pretty damn embarrassing to all right-thinking Americans.

Posted by: Lawrence of Arabia on December 19, 2005 at 1:53 PM | PERMALINK

"How about this. You pull out a copy of the AUMF, and point to me the provision authorizing warrantless searches that would otherwise be prohibited by FISA."

I'm not the poster you were responding to but I can hazard a guess (which is at least as good as yours): Sec.2(a) -- "all necessary and appropriate force" -- insofar as such surveillance is a precursor to the use of force, it may, in fact, be implied by this provision.

oh, and that wasn't political advice, take it as kind advice to a student -- you're in for some major surprises in real practice.

Posted by: Nathan on December 19, 2005 at 1:54 PM | PERMALINK

Seems to me that if my ass was on the line, I'd go with the legal opinions of Chris Dicely over Nathan or Harriet Miers. (Actually, none of you--I'd go with the delightful Reese Witherspoon in Legally Blonde.)

Oh Christ, yes. Speaking as a lawyer myself it's embarrassing to watch a 1-L wipe the floor with an admitted attorney like this. But also quite fun....

Posted by: Stefan on December 19, 2005 at 1:58 PM | PERMALINK

patrick: However, you do need to know some things ahead of time, whether it be "facts or circumstance" or "surveillance is a foreign power or an agent of a foreign power" or "detailed information of the information sought". The point is, all of these are things that means your already know at least a little about who your target is and why they are your target.

cmdicely: Which, if you aren't just tapping phones randomly, you will, in fact, have. So this is not a substantial problem.

We disagree -- it is a substantial problem when you don't know who you are looking for in the first place. If you have a serious enemy but you have no idea of who your enemy is or where they are, you do a broad based search to find them. You may call it a fishing expedition if you like, but the purpose is to find where the fish are located, and then do more specific investigations. I know full well this is against the 4th amendment, I am just saying that is why you would do it.

patrick: The point of Bush's phone and email searches was not to gather more information on known or suspected targets, but to find some targets in the first place.

cmdicely: That's not what the Bush Administration claims, and, if true, it would not only violate FISA but, more importantly, the Fourth Amendment. The Bush Administration claims time problems and other difficulties (all of which are incredible, but that is beside the point), they do not claim to have been engaging in random fishing expeditions not based on any reasonable cause to identify people that there might be cause to examine more closely, as you suggest.


Yeah, I know it is not what the Bush Administration claims, but as you say, the reasons they are giving now are "incredible". The reason they are giving such "incredible" and weak arguments is they don't want to tell the truth (I'm just speculating here) and face the even more dire consequences of the public knowing they are even more flagrantly violating FISA and the fourth amendment. Bush does not want to say, "We listened in to every phone call or email from a Mosque back to Saudi, and all phone calls from geographic locations that have a heavy Muslim population calling Afghanistan or Pakistan". But I think he did something of the sort. In light of his breaking the FISA laws and the 4th amendment -- was he justified? I think for a short time after 9-11 he was. After that, the fact that he did little or nothing to temper and codify his actions shows his usual lack of thinking things through.

Posted by: patrick on December 19, 2005 at 1:59 PM | PERMALINK

Remember that they are bound by oath to write those opinions in good faith.

And Bush and Cheney are bound by oath to uphold the Constitution of the United States. How's that going?

Posted by: Stefan on December 19, 2005 at 1:59 PM | PERMALINK

Nathan: Attorneys who do work in the relevant fields wrote opinions stating that this warrantless surveillance was legal under the 2001 AUMF. Remember that they are bound by oath to write those opinions in good faith.

Care to produce those "written" opinions?

I bet Stalin had a ton of lawyers telling him all his actions were legal also.

Given the unethical behavior of administration lawyers in sanctioning torture and the fact that these lawyers' opinions have lost in mostly conservative federal courts on several occasions, their "opinions" do not appear to be trustworthy or credible, but instead self-servingly partisan.

In any event, Congress cannot override the Constitution with a statute or resolution, something even a non-attorney understands.

Neither the AUMF nor the FISA can override the Fourth Amendment, no matter what legal theory you or the Bush administration's lawyers invoke.

Either the warrantless searches are constitutional or they are not; the AUMF is irrelevant to that question and so is the FISA.

If the warrantless searches are unconstitutional and violate further statutory restrictions, then the president has not only acted unconstitutionally, he has violated statutory laws that bind him.

Either or both, these are impeachable offenses.

Posted by: Advocate for God on December 19, 2005 at 2:01 PM | PERMALINK

Stefan:

Have any substantive arguments to make? Or is it that you're fully aware that any statement pronouncing with certainty on the legality of such surveillance assumes facts not in evidence? I'm sure you noted that cmdicely decided to throw in a caveat all of a sudden.

Posted by: Nathan on December 19, 2005 at 2:03 PM | PERMALINK

oh, and that wasn't political advice, take it as kind advice to a student -- you're in for some major surprises in real practice.

Yes, such as the prevalence of blowhard attorneys who cover up their lack of legal knowledge with bluster and appeals to authority.

Posted by: Stefan on December 19, 2005 at 2:04 PM | PERMALINK
I'm not the poster you were responding to but I can hazard a guess (which is at least as good as yours): Sec.2(a) -- "all necessary and appropriate force" -- insofar as such surveillance is a precursor to the use of force, it may, in fact, be implied by this provision.

If the targets were exclusively persons the President had determined were part of some group responsible for 9/11 -- which the Administration does not claim and, I suspect, will not claim -- that would be at least a remotely tenable argument.

Where, however, the purpose of the surveillance is to gather intelligence to make the determination of who is or is not in the group of targets against whom force is authorized by the AUMF, that is certainly no grounds for arguing that the AUMF expanded the legal scope of surveillance inside the United States, overruling prior law.

oh, and that wasn't political advice, take it as kind advice to a student -- you're in for some major surprises in real practice.

If it wasn't advice on how to conduct political advocacy, you are very much confused about what exactly it is I'm doing in these comment threads.

Posted by: cmdicely on December 19, 2005 at 2:06 PM | PERMALINK

Nathan: oh, and that wasn't political advice, take it as kind advice to a student -- you're in for some major surprises in real practice.

There is nothing "kind" in your advice.

And if your idea of "ethics" is everything you can get away with is okay and that it is okay to claim something is legal because your lawyer advised you it was, particularly a political toadie lawyer, then you are one of the reasons the legal profession is held in such low esteem.

Posted by: Advocate for God on December 19, 2005 at 2:07 PM | PERMALINK

Nathan,

Maybe if you had more fake people giving you an 'attaboy' you'd feel a little better.

Why do Republicans always invent new ways of interpreting fake laws to defend GWB? Can't one of them just think for themselves? Why haven't more of them turned on this administration and started representing the American people vs. their own craven political interests?

Oh that's right--we'll have good government some other time.

Posted by: Pale Rider on December 19, 2005 at 2:07 PM | PERMALINK

I'm not an attorney, but I think I could play one in the white house. Every once in a while I would just say, "Yes, Mr. President, it is within the President's power to do so".

What do you think a job like that pays?

Posted by: patrick on December 19, 2005 at 2:08 PM | PERMALINK

I wonder what conservative's opinion would have been if this had involved searching the records of gun owners ?

The party that traditionally distrusts the government is suddenly encouraging us to simply
"trust" the government.

US Constitution-

"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."

Strict constructionists ?

Posted by: Stephen on December 19, 2005 at 2:09 PM | PERMALINK

Compare cmdicely's unequivocal statement that:

"Since the AUMF does not, in fact, contain any language authorizing searches, nor does it expressly declare war (thus invoking the "declared war" rules for warrantless searches), there is no credible argument that the AUMF does, in fact, alter in any way the warrant requirements."
to this:
"barring some contrary information to which I am not privy,"

sounds like someone backed down. in other words:
"this is illegal, unless something in the 90% of the facts that we don't know makes it legal."

oh, and were unarmed Predator A overflights "force" under your definition?

Posted by: Nathan on December 19, 2005 at 2:09 PM | PERMALINK

Whoa! Stephen--

Excellent point!

Gun owners are more protected than the average American from the intrusion of the government.

Imagine what would have happened if a gun owner in Texas was monitored making a deal to sell .50 cal sniper rifles to Osama Bin Laden's rotating number three guy.

Staggers the imagination.

Posted by: Pale Rider on December 19, 2005 at 2:10 PM | PERMALINK

"If it wasn't advice on how to conduct political advocacy, you are very much confused about what exactly it is I'm doing in these comment threads."

Last time I checked, you were making unequivocal statements as to the legality of certain actions.

Posted by: Nathan on December 19, 2005 at 2:11 PM | PERMALINK

oh, and were unarmed Predator A overflights "force" under your definition?

Jeez, kid. What did you just step in? Do you have any relevant points to make or is it your job to continue making the Bush Administration look worse each and every time you post something? Better quit while you're way, waaaay behind.

Increasing use in civilian airspace raises safety issues
By Bruce V. Bigelow
UNION-TRIBUNE STAFF WRITER
April 19, 2004

UAVs, such as the Global Hawk developed in San Diego by Northrop Grumman, are permitted to fly in civilian airspace under FAA authorization.

Robotic spy planes such as the Predator have been playing an increasing role in U.S. military operations in Iraq and elsewhere overseas.

Yet few people realize that the Predator and other unmanned aircraft also have been flying in civilian airspace above California and other states for years. Such flights are supervised at least partly by civilian air traffic controllers, who coordinate the aircraft with commercial passenger jets and other aircraft.

The use of such aircraft was underscored last month when the Department of Homeland Security announced plans to use unmanned surveillance planes to fly above Arizona's border with Mexico.

The flights, expected to begin by the end of this month, are part of a $10 million plan to stem the flow of illegal immigrants and drug traffickers.

"It's ideal terrain," said Robert Bonner, commissioner of U.S. Customs and Border Protection. "There's nothing to hide, not a tree in sight."

The military usually operates robotic surveillance aircraft in restricted areas throughout the United States.

But efforts to broaden the use of robotic aircraft in civilian airspace have furrowed some brows in the aviation community, and one aviation safety group opposes it.

The propeller-driven Predator resembles a small airplane with no cockpit. The plane is directed by a pilot sitting in a ground control station that receives live images transmitted by cameras in the aircraft's spoon-shaped nose. It was designed to remain aloft for 40 hours at altitudes as high as 25,000 feet.

Posted by: Pale Rider on December 19, 2005 at 2:14 PM | PERMALINK

I am arguing without qualification that the AUMF does not provide the authorization asserted.

There is always the possibility of unknown facts that, notwithstanding the fact that the claimed basis of authority is clearly false, would render the actors involved innocent of criminal violation of the appropriate statute.

Noting the latter is not the same as backing down on the former.

Posted by: cmdicely on December 19, 2005 at 2:14 PM | PERMALINK

Stefan: Have any substantive arguments to make?

No, I'm just sitting back, eating a sandwich and enjoying the rout.

Posted by: Stefan on December 19, 2005 at 2:16 PM | PERMALINK

Nathan: Have any substantive arguments to make?

Obviously you don't, since all you do is refer to alleged written opinions of unnamed administration lawyer toadies, invoke a claim that lawyers never violate their oaths to produce opinions in good faith (I'd be interested in which ABA rule of professional responsibility you believe requires this), and imply that those lawyers' opinions are competent and unbiased by the nature of their jobs as partisan political appointees.

Nixon was a lawyer also, I believe.

Didn't seem to bind him to any ethical considerations, so it is not clear to me why you think attorneys in an administration with a similar philosophy regarding the law would be any more compliant with such standards.

Posted by: Advocate for God on December 19, 2005 at 2:19 PM | PERMALINK

Oh Christ, yes. Speaking as a lawyer myself it's embarrassing to watch a 1-L wipe the floor with an admitted attorney like this. But also quite fun....

It's fun even if you're not an attorney.

And you beat me to the punch about the appeals to authority, so very ironic in a case where we're discussing authorities who may have committed crimes and sought to conceal them, an irony further exacerbated by the fact that at every turn in Bush's life the authorities surrounding him have happily exempted him from the following the law, be it Treaty Law or the UCMJ.

Posted by: Windhorse on December 19, 2005 at 2:22 PM | PERMALINK

So far, I think we've figured out that Harriet Miers told Bush that it was okay to intercept Daniel Pearl's communications with al Qaeda and her reasoning was that, because Bush is a Number One Super Guy!!!, it was legal. Coincidentally, Nathan is a Number One Super Guy!!! and he thinks it's OK, too.

And the attention span of the American people is...

Posted by: Pale Rider on December 19, 2005 at 2:27 PM | PERMALINK

ah..let's see, my suggestion that maybe a court and not bloggers determines the legality of a given action is derisively referred to as an "appeal to authority"

Posted by: Nathan on December 19, 2005 at 2:29 PM | PERMALINK

my suggestion that maybe a court and not bloggers determines the legality of a given action is derisively referred to as an "appeal to authority"

No, that was in reference to "I'm an attorney and you're not nyah nyah nyah!"

I'm also unaware that anyone here is arguing that our opinion and not United States laws should be the determining factor here, despite your dishonest (or, let's be charitable, maybe stupid) attempt to characterize it as such.

Posted by: Stefan on December 19, 2005 at 2:35 PM | PERMALINK
let's see, my suggestion that maybe a court and not bloggers determines the legality of a given action is derisively referred to as an "appeal to authority"

You've made other appeals to authority, but that is more properly referred to as a non sequitur, as the procedural description of how the question would ultimately be resolved in the normal course of events has no bearing on the merits of the substantive arguments being discussed.

It is as if in a debate over a controversial federal public policy, you put up "Well, Congress, not bloggers will decide the issue of what should be written into the law". This is true in procedural terms, but pointless in the substantive debate on the merits.

Posted by: cmdicely on December 19, 2005 at 2:36 PM | PERMALINK

chaunceyatrest: "But it's hard to imagine why your question matters. The fact is that this is ample time to get approval from courts."

Red State Mike: "If it takes a week+ to sift/decrypt through the endless terrabytes of data that is the internet, and this violates the 72 hour retro allowance, then it matters."

I'm no lawyer, but it's difficult for me to imagine why this kind of time constraint/window would apply to what you do with the information you obtained through this kind of surveillance. Call it wild speculation, but I'm betting that the clock starts ticking from the moment you begin the surveillance. Assuming that the administration would get retroactive approval (and there's no reason to think they wouldn't), they have all the time they need to work through those endless terabytes.

Posted by: chaunceyatrest on December 19, 2005 at 2:39 PM | PERMALINK

Nathan's next gambit is to start insulting people based on the number of sexual partners that they've had.

I also love how he never fails to begin asserting his credentials where credentials don't really mean anything. Is there a bit of an inferiority complex at work here?

Posted by: Pale Rider on December 19, 2005 at 2:45 PM | PERMALINK
If it takes a week+ to sift/decrypt through the endless terrabytes of data that is the internet, and this violates the 72 hour retro allowance, then it matters.

The actual product of the search isn't the legal basis for the search. The 72-hour allowance is to put together the paperwork on your before-the-fact reason for doing the search, not to use the results of the search to construct a retrospective justification for conducting the search in the first place.

Posted by: cmdicely on December 19, 2005 at 2:50 PM | PERMALINK

"It is as if in a debate over a controversial federal public policy, you put up "Well, Congress, not bloggers will decide the issue of what should be written into the law". This is true in procedural terms, but pointless in the substantive debate on the merits."

er no...bad analogy. that deals with an "ought" or "should" policy choice. not comparable to the simple duality of legal/not legal.

as for credentials...I merely pointed out that I didn't have expertise in the field and that cmdicely certainly doesn't. as another poster also pointed out, cmdicely suffers from 1-L'itus -- the tendency to make certain pronouncements about legal matters after 1 semester of coursework. the reality of practice is quite different as he will learn.

Posted by: Nathan on December 19, 2005 at 2:52 PM | PERMALINK

as another poster also pointed out, cmdicely suffers from 1-L'itus

Come on, you lying sack of shit--that was you trying to take a second shot at cmdicely.

Everyone who reads his posts can see, quite plainly, that he can back up his assertions. Stefan's a lawyer--his opinion seemed to be that cmdicely does NOT seem to have that problem and is actually more versed and astute with the law than yourself.

And, as I added, Harriet Miers. In fact, cmdicely probably looks better in a dress.

But what do I know? I work in a bottle washing factory. And I look fabulous in a dress, so long as I can wear the right kind of girdle. So there!

Posted by: Pale Rider on December 19, 2005 at 2:56 PM | PERMALINK

cmd- In Agnello v. United States, 269 U.S. 20 (1925), the Court held for the first time that it was unreasonable under the 4th Amendment to search a "private dwelling" without a warrant (except incident to arrest). A series of cases since then have extended the "unreasonable per se" analysis to other kinds of searches. But I am not aware of any cases that extend it to eavesdropping on wartime communications between hostile foreign powers and their agents or contacts in the U.S.

Posted by: DBL on December 19, 2005 at 3:00 PM | PERMALINK

cmdicely
The actual product of the search isn't the legal basis for the search. The 72-hour allowance is to put together the paperwork on your before-the-fact reason for doing the search, not to use the results of the search to construct a retrospective justification for conducting the search in the first place.

Yea, I finally got read up on the topic. Which makes it seem more likely to me that they are broadly monitoring foreign comms without required warrant, getting domestic->foreign and foreign->domestic traffic caught up in the net, spotting things of interest in them as they identify that they are in fact domestic in origin or destination (which would have required a warrant if they were targeting), then retaining them under the ruling. They couldn't ask for a warrant against the targets using what they pull in from their broadly cast net, as per the ruling, which puts them in a FISA Catch 20.

Which isn't to say I like it. But the narrative makes sense.

Posted by: Red State Mike on December 19, 2005 at 3:01 PM | PERMALINK

Yea, I finally got read up on the topic. Which makes it seem more likely to me that they are broadly monitoring foreign comms without required warrant

To be exact, I meant to say no warrant is required for the foreign comms.

Posted by: Red State Mike on December 19, 2005 at 3:02 PM | PERMALINK

"Come on, you lying sack of shit--that was you trying to take a second shot at cmdicely."

er, no. neither was that poster's writing style remotely similar to mine. I can guess who it was.

Posted by: Nathan on December 19, 2005 at 3:05 PM | PERMALINK

I can think of a very simple reason other than simply arrogant presumption why this was done. Consider for a moment that according to the GOP leadership and the rhetoric they and their advisors love using makes the claim that Dems and liberals are sympathetic to the aims of the terrorists. Therefore this makes them viable targets for security surveillance in their minds. Now, since that also looks like domestic spying on political opponents it is extremely unlikely that even the FISA court is going to grant warrants for such. So to be able to protect America from the terrorists and their allies in the left that the GOP and Bush claim are prevalent within the Democratic party and its supporters they must be able to listen into what the Dems and liberals and those supporting liberal groups are saying. It is clearly all about the security of the nation, after all the GOP knows that the left cannot be trusted with American security, they make that point at every possible opportunity, indeed based last years Presidential campaign on that premise.

That it enables Bush and the GOP to expand Presidential powers while they happen to be in power is a nice bonus I suspect, but I really do think this happened to allow domestic opposition politically to be spied upon. I also have not forgotten that Bolton's hearing for UN Ambassador was pulled because the Senate would not relent on wanting to know who was wiretapped by the NSA that Bolton got transcripts for. Instead of handing them over the Bush Administration sent Bolton to the UN on a recess appointment, the very first time any UN Ambassador had been given a recess appointment instead of Senate confirmation.

Taken together, as well with all the other things Bushco said they did not do but ended up being shown that they did, it is extremely difficult to see any other explanation for circumventing FISA. Let's face it, if torturing prisoners to death, claiming Geneva does not apply to terrorists, and treating Iraqis as being without the protections of Geneva DESPITE clearly stating that Geneva would apply in Iraq, isn't enough to convince a person that something very ugly, dangerous, deceptive, and inherently corrosive to the American way of life and structure of government then nothing will. This is the imperial Presidency that so many of the Founding Fathers wanted desperately to prevent ever occurring, and the irony of it being the conservatives that claim to worship/respect the Constitution more than the left/liberals/Dems is the party creating this imperial Presidency is truly of epic proportions. It also shows that all of the GOP rhetoric during the Clinton Presidency about honesty in government, Presidents having to be accountable and truthfully forthcoming to the American people, and the dangers of big government especially in regards to monitoring Americas secretly was nothing but empty rhetoric, not principle.

Yes, I know, anyone paying attention should have known this already, and I certainly did, but it never hurts to underscore this reality when such clear evidence to support it continues to shake loose from this everything we do is secret Presidency.

Posted by: Scotian on December 19, 2005 at 3:11 PM | PERMALINK

Scotian
...it is extremely difficult to see any other explanation for circumventing FISA.

How does the fact that the Bush Administration knew that the NY Times knew for over a year meld with your conspiracy theory?

Posted by: Red State Mike on December 19, 2005 at 3:16 PM | PERMALINK

Nathan: . . . my suggestion that maybe a court and not bloggers determines the legality of a given action is derisively referred to as an "appeal to authority"

No, your suggestion was that the Bush administration could be trusted until a court decides otherwise because its attorneys are bound by the rules of ethics and have issued "written" opinions on this matter.

BTW, I'm still waiting for your link to those written opinions. You sure they weren't verbal advice?

This is simply a puerile and pedantic argument divorced from the real real-world where a boatload of attorneys act unethically every day, something that conservatives themselves constantly rant about when talking tort reform, criminal defense, or free speech, just to name a few topics.

Even if you had identified who would have standing to challenge this, much less had you shown that the court would not reject it as a political question, the legality of such matters is rightfully a subject of public debate, as are all political matters, no matter that they are also determinable in a court of law.

Funny that conservatives who insist that certain conservatives (e.g., abortion opponents) who opine about the legality and constitutionality of abortion and privacy should be accorded respect simultaneously deride certain liberals who opine about the legality and constitutionality of warrantless searches.

Posted by: Advocate for God on December 19, 2005 at 3:41 PM | PERMALINK

"BTW, I'm still waiting for your link to those written opinions. You sure they weren't verbal advice?"

I think you mean "oral advice" -- "verbal" means "written" -- at least in legal parlance. I'd be extremely surprised if there weren't written opinions. I'd also be surprised if they weren't classified.

" the legality of such matters is rightfully a subject of public debate, as are all political matters, no matter that they are also determinable in a court of law."

wrong. Whether such actions should be legal is a rightful subject of public debate. Whether, if legal, such actions should be undertaken is a rightful subject of public debate. Whether such actions are, in fact, legal is not a rightful subject of public debate. Do you see the distinction?

"Funny that conservatives who insist that certain conservatives (e.g., abortion opponents) who opine about the legality and constitutionality of abortion and privacy should be accorded respect"

Anyone who opines that all abortions ARE illegal is full of it. Someone who opines that some (or all) abortions SHOULD be illegal may be accorded respect.

Posted by: Nathan on December 19, 2005 at 3:58 PM | PERMALINK

Red State Mike: How does the fact that the Bush Administration knew that the NY Times knew for over a year meld with your conspiracy theory?

It melds as well as your mouth to Bush's ass.

In other words, pretty tightly.


Posted by: Blue State Michelle on December 19, 2005 at 3:59 PM | PERMALINK

"No, your suggestion was that the Bush administration could be trusted until a court decides otherwise because its attorneys are bound by the rules of ethics and have issued "written" opinions on this matter."

When/where did I say that?

As usual, the whole lot of you persist in attributing straw man sentiments to anyone who
has the temerity to suggest that talk of frog-marching may be a little premature.

Posted by: Nathan on December 19, 2005 at 4:02 PM | PERMALINK
Aer no...bad analogy. that deals with an "ought" or "should" policy choice. not comparable to the simple duality of legal/not legal.

Its a perfect analogy. You are waving around the procedural decisionmaker instead of addressing the substantive issue. This either indicates that (1) you don't understand the question being discussed, and are mistaking a substantive question for a procedural one, or (2) you object in principle to American citizens discussing questions that procedurally will be decided by some government body.

Now, in my repeated accusation that you don't get popular soveriegnty, I will admit that I have been assuming that (1) is not the case.

Posted by: cmdicely on December 19, 2005 at 4:06 PM | PERMALINK

Nathan: "verbal" means "written"

No, "verbal" means "oral", in legal parlance or otherwise.

As in an oral or verbal contract.

Black's Dictionary (West 1991): "Verbal contract: An oral, nonwritten agreement."

Are you really that incompetent as an attorney or just incredibly dishonest?

Nathan: Whether such actions are, in fact, legal is not a rightful subject of public debate.

Then why is Bush debating it, rather than asking a court to validate his position?

Yes, whether actions are legal or not legal is a valid subject of public debate, even though the matter must ultimately be resolved by a court or the legislature, by clarifying amendment, to be of any use.

That's the type of public debate, in fact, that precedes a clarifying legislative amendment on many occasions.

Truly pathetic logic on your part, especially since the examples of conservatives opining on what the law is, not just what the law should be, is abundant.

Posted by: Advocate for God on December 19, 2005 at 4:06 PM | PERMALINK

I'm thinking we need fewer lawyers and more parasitologists.

Posted by: whosays on December 19, 2005 at 4:08 PM | PERMALINK

Nathan: "Attorneys who do work in the relevant fields wrote opinions stating that this warrantless surveillance was legal under the 2001 AUMF. Remember that they are bound by oath to write those opinions in good faith."

Posted by: Advocate for God on December 19, 2005 at 4:09 PM | PERMALINK

whosays: I'm thinking we need fewer lawyers and more parasitologists.

Then what would the latter study?

;-)

Posted by: Advocate for God on December 19, 2005 at 4:10 PM | PERMALINK

good point!

Posted by: whosays on December 19, 2005 at 4:12 PM | PERMALINK
Whether such actions should be legal is a rightful subject of public debate. Whether, if legal, such actions should be undertaken is a rightful subject of public debate. Whether such actions are, in fact, legal is not a rightful subject of public debate. Do you see the distinction?

Um, yeah, the apparent distinction is that you are from what I call the "high priesthood" school of legal analysis that holds the law as a truth revealed to the people the (implicitly infallible) offices of the judiciary, and views the populace at large as intrinsically incapable of understanding or discussing the content of the law.

Whereas I, on the other hand, come from the "rational debate" school which holds that people can marshal facts, evidence, and reason and present arguments which stand on their own merits, in legitimate debate, and that while the courts decide the law in practice, there is no more reason than for the public to withold from debates about legality than any other matter decided by official decisionmakers, and indeed, for popular sovereignty to work, it is essential that the public engage in such debate and to monitor the output of the courts.

Admittedly, this doesn't, as your model does, make the legal profession a kind of "outer priesthood" raised above the rest of society in public debate, but I'm okay with that.

Posted by: cmdicely on December 19, 2005 at 4:12 PM | PERMALINK
No, "verbal" means "oral", in legal parlance or otherwise.

I've seen a few uses -- though I don't recall any in the field of law -- where verbal is used literally ("in words") rather than as a synonym for "oral". This has usually been in reference to verbal descriptions versus, say, drawings, and encompasses written works, but doesn't narrowly refer to written vs. oral works as Nathan would suggest it does in "legal parlance".

Posted by: cmdicely on December 19, 2005 at 4:16 PM | PERMALINK

"How does the fact that the Bush Administration knew that the NY Times knew for over a year meld with your conspiracy theory?"

Posted by: Red State Mike on December 19, 2005 at 3:16 PM

What exactly is your point with this question? The fact that the NYT held back for over a year on this story has absolutely no bearing on what I was writing about. I provided a feasible explanation that presumes Bushco did not do this for purely partisan political spying or simply as a power grab for powers never before arrogated to a President. I was willing to presume they were acting in what their minds would consider good faith, that one of the main areas to hunt for terrorist links are in the groups one believes are sympathetic to the terrorist aims, and it is a fact that there is a belief throughout the GOP and Bush Presidency that liberals/lefties/Dems have within them a significant core of America haters that want to see the terrorists succeed in their war against America. This has been a staple of GOP rhetoric since 9/11/01. Therefore if they truly believe this (as opposed to saying it because they know it can hurt their opposition yet has no actual fact/merit to such a charge) then this is a logical outgrowth of such a belief for the need to monitor any/all GOP opponents domestically.

Incidentally, this is not a conspiracy theory so much as taking what the GOP says about the Dems/left at face value and seeing how it fits into this need to bypass FISA to monitor American citizens without any warrant whatsoever. Basically there are three probable explanations for why this was done that I along with many others can see. To spy on political opposition like the Nixon Presidency did (which given the many senior Administration officials that got their start in that Administration is not that difficult to see), to grab more powers to the Presidency than are Constitutionally understood to be the case and to be able to disregard America laws and Rights in the name of security, or because they believe that their domestic opposition is a hotbed of support and therefore connections to the terrorists/Islamist extremists. My hypothesis gives Bushco the benefit of the doubt on their belief about the terrorist supporting left in America as opposed to just believing they are so crooked, so corrupt, and so immoral/unethical that they abuse security protocols and tools for partisan political purposes only. The one thing I am sure of is that there is no genuine security rationale behind this action, since FISA exists and is known to be extremely easy to get warrants from and that they can be gotten up to 72 hrs after the start of surveillance.

You are still willing to give this Presidency the benefit of the doubt despite the many cases of where they either lied extensively or were too incompetent to determine the facts of a matter before coming out and making claims as fact that later turn out to be entirely wrong. That they claim torture is solely occurring because of isolated bad apples, despite the massive increase in such treatment since Bushco took over from prior Presidencies. That they claimed that prisoners taken in Iraq would be subject to the Geneva Convention protections, only to find out Abu Ghraib proved the exact opposite was true.

I do not understand how any thinking individual can see this track record of failure/deceit/incompetence and still be willing to trust anything that this WH says. Especially not when you combine it with the fact that this is the most secretive Presidency in decades, possibly in the history of the USA. No, RSM, your question makes no sense, and neither does your support at this date of a President that has lied repeatedly either knowingly or by being fed lies by his staff to tell Americans, and then never holding these staffers responsible for so misinforming a President and making him look incompetent/dishonest.

Posted by: Scotian on December 19, 2005 at 4:16 PM | PERMALINK

"(2) you object in principle to American citizens discussing questions that procedurally will be decided by some government body."

I do indeed. Since such discussion is inevitably from a standpoint of ignorance.

The public, through its elected representatives or otherwise, determines what is legal and what is illegal. However, the interpretation of legal statutes, once promulgated, lies with the courts. as you know full well, a jury determines questions of fact not law.

sorry advocate for god, but in legal parlance "verbal" refers to "written"...if cmdicely bothers to check a few cases he will ascertain this as well.

Posted by: Nathan on December 19, 2005 at 4:28 PM | PERMALINK

I should be more exact, sometimes "verbal" can refer to either oral or written communication...however, it must be communication involving words. It is always incorrect (at least in law) to use "verbal" as a synonym for "oral" which was the mistake advocate for god made above.

Posted by: Nathan on December 19, 2005 at 4:31 PM | PERMALINK

Scotian
I was willing to presume they were acting in what their minds would consider good faith, that one of the main areas to hunt for terrorist links are in the groups one believes are sympathetic to the terrorist aims...

I'm liking what you're saying so far...

and it is a fact that there is a belief throughout the GOP and Bush Presidency that liberals/lefties/Dems have within them a significant core of America haters that want to see the terrorists succeed in their war against America.

Whoop, whoop, whoop! Deranged Bush Hatred Syndrome alert!

At this point you are fitting the facts to your world view, not vice-versa. the fact that the NY Times knew about the stuff going on, chose to hold back,and then chose to reveal... you completely gloss over that. Any narrative needs to include it or figure out why it doesn't matter.

No, RSM, your question makes no sense, and neither does your support at this date of a President...

You crack me up. Failure to run around with my head cut off exclaiming Watergate Version 2.0 means I'm supporting the President. I am interested in figuring what exactly is going on, and making sense out of the whole story, as opposed to you who have completely sorted this thing out minus a hell of a lot of information yet to come.

I treat Bush like I treated Clinton. A politician who serves my interest or not, not some sort of deity.

Posted by: Red State Mike on December 19, 2005 at 4:34 PM | PERMALINK

Nathan: I do indeed. Since such discussion is inevitably from a standpoint of ignorance.

So, no scholars of the law exist who are not judges.

Wrong.

Nathan: sorry advocate for god, but in legal parlance "verbal" refers to "written"...if cmdicely bothers to check a few cases he will ascertain this as well.

Black's Law Dictionary disagrees with you.

Black's is an accepted source of "legal parlance".

But if you have cases that show otherwise, by all means cite them and especially to the portions that demonstrate that the most common meaning of "verbal" in the legal world is "written" rather than "oral."

Posted by: Advocate for God on December 19, 2005 at 4:35 PM | PERMALINK

"So, no scholars of the law exist who are not judges."

I would say rather that the number of laymen with legal understanding is extremely limited (much, much smaller than the number of laymen who think they have legal understanding). The only non-lawyer I can think of offhand who really knew anything about law is Stanley Fish...who used to teach Contracts at Duke curiously enough.

Posted by: Nathan on December 19, 2005 at 4:39 PM | PERMALINK
"(2) you object in principle to American citizens discussing questions that procedurally will be decided by some government body."

I do indeed. Since such discussion is inevitably from a standpoint of ignorance.

See, I told you you didn't get the whole idea of popular sovereignty.

The cure for ignorance is information, not avoiding the discussion. The legislature, the courts, and the executive all must act, and must all monitor and respond to eachothers actions, and in various combinations whold eachother accountable, and the electorate must monitor all three and hold them accountable. That last bit is the essential, defining element of popular soveriegnty. In order for that to work, debate over all matters decided by any of those bodies must be within the legitimate purview of the public.

The public, through its elected representatives or otherwise, determines what is legal and what is illegal. However, the interpretation of legal statutes, once promulgated, lies with the courts.

The courts, though not elected, are as much delegates of the public and acting in its name as are the legislators, and the public has no less legitimate right to debate matters that might come before the courts than it does those that might come before the legislature.

as you know full well, a jury determines questions of fact not law.

The procedure role of the jury is absolutely immaterial to the question of what is within the legitimate scope of public debate.

sorry advocate for god, but in legal parlance "verbal" refers to "written"...if cmdicely bothers to check a few cases he will ascertain this as well.

I'm not sure the Supreme Court of Kansas agrees with you, there. I can find examples of "verbal" being clearly used to mean "oral", and examples in legal use (though not, immediately, in cases) being used to mean "in words" and encompassing both written and oral, but I can't see any examples of "verbal" specifically meaning "written", as you claim.

Could you provide at least one clear example?


Posted by: cmdicely on December 19, 2005 at 4:47 PM | PERMALINK

"being used to mean "in words" and encompassing both written and oral, but I can't see any examples of "verbal" specifically meaning "written", as you claim."

you'll notice that I clarified that statement -- "in words" is indeed an accurate definition..thus it can refer to either written or oral statements so long as they are in words. what is incorrect is to use "verbal" as a synonym for "oral" since there are oral utterances that are not verbal.

(I was once corrected by a partner for using "verbal" as a synonym for "oral" and I've seen a judge correct another attorney for the same mistake.)

Posted by: Nathan on December 19, 2005 at 5:06 PM | PERMALINK

RSM: At this point you are fitting the facts to your world view, not vice-versa. the fact that the NY Times knew about the stuff going on, chose to hold back,and then chose to reveal... you completely gloss over that. Any narrative needs to include it or figure out why it doesn't matter.

The NYT is not an elected official and has no responsibility to the American people, other than what it earns or must earn through the marketplace.

The NYT does not have to answer to me other than as a customer.

You act as if they NYT is some official governmental organ whom the voters must evaluate.

Ain't true and the NYT's actions are of microscopic importance next to those of the president.

And despite your claims to the contrary, you emphatically suffer from BIS (Bush Infatuation Syndrome).

I treat Bush like I treated Clinton.

Bullshit.

Nathan: It is always incorrect (at least in law) to use "verbal" as a synonym for "oral" which was the mistake advocate for god made above.

Again, Black's Dictionary says you are wrong.

That source expressly used "verbal" as a synonym for "oral".

I trust a well-respected legal resource more than your self-serving definition of "verbal" and a single judge who "corrected an attorney."

I've seen quite a few judges incorrectly correct attorneys.

Your citation to one judge and none to any judicial opinions that expressly state that "verbal" is not a synomym for "oral" speaks volumes.

Posted by: Advocate for God on December 19, 2005 at 5:33 PM | PERMALINK

Webster's New Collegiate Dictionary (1981):

"verbal: (3) spoken rather than written"

"(1) of, relating to, or consisting of words [rather than meaning or substance]"

Nothing about being confined to or primarily "written".

"(2) of, relating to, or formed from a verb"

Nothing about being confined to or primarily "written".

It was not incorrect to use "verbal" for "oral" especially when the context was clear, as it was, since it was being opposed to "written".

Your argument and point was enthusiastically pedantic in light of that context.

And, there are written things that are not "verbal", e.g., music, making your second argument after "correcting" yourself specious at best.

See, I can be as pedantic as you.

Posted by: Advocate for God on December 19, 2005 at 5:46 PM | PERMALINK

Iraq speeches, election don't help Bush

Losers.

Hey, maybe Bush's admission that he spied on Americans and his attorney's claims that it was all legal under a clause in a congressional law, regardless of the Constitution, will be a winning "strategery" for improving those polls numbers.

Everything else has failed, so why not.

Posted by: Advocate for God on December 19, 2005 at 5:49 PM | PERMALINK

I haven't read all the comments, but I think it is about Bush. He never has had to follow rules. There always were exceptions made because of his family.

In a way, teaching Bush that there are rules and that they have to be followed is giving him an upbringing.

Posted by: Bengt Larsson on December 19, 2005 at 6:22 PM | PERMALINK

Ever since VPCheney inserted my anal probe I am being tracked. My tinfoil has holes in it, and the NSA is probing my brain. They are revealing my desire to give birth to Osama's baby. I long for the embrace of Zarqawi. How can I serve you oh master? I can only blog my anger, as I weigh 700 LBs and am trapped in my bedroom. My body could feed the mujaheddin. You can park your camel in my front yard.

Posted by: Advocate for God on December 19, 2005 at 6:35 PM | PERMALINK

I agree with cmdicely's comment way upthread: It had to have been because the evidence they had was exceptionally weak -- the ham sandwich had no mayo and the crusts were cut off.

A WaPo piece earlier said that in they'd confiscate an overseas suspect's laptop after arresting him, and then want to monitor the conversations of everybody in his address book. Since that's pure fishing expedition, it's not likely any judge would approve it.

And this is really what's so frightening about this; while all of us Good White Christian American Foak(tm) don't have *anything* to worry about from Uncle George steadfastly watching over us, of course -- I think of the Arab and Persian Americans who routinely call their families overseas. Or I think of some naive white grandmother in Podunk who happened to have gotten an email solicitation to help the Pakistani earthquake victims. She sends in a $100 check, and the group turns out to be a front for al Qaeda. What do they do, whisk Granny off to Gitmo?

Not likely if she were, uhh, white. But Prince Bandar's wife notoriously sent $20k to one of the Saudi 9/11 soldiers thinking she was helping out some poor woman with medical expenses.

I'd say that Bush issued the executive order to circumvent having to present real evidence to a judge, because the eavesdropping would be based on whether you happened to be related to or friends with a suspect they happened to arrest.

Oh -- and John, Alberto and Harriet hardly qualify as *cough* "oversight."

Bob

Posted by: rmck1 on December 19, 2005 at 6:36 PM | PERMALINK

Oh and cmdicely:

I went back up and read the thread ...

Excellent job in the debate.

Bob

Posted by: rmck1 on December 19, 2005 at 7:33 PM | PERMALINK

"RSM: At this point you are fitting the facts to your world view, not vice-versa. the fact that the NY Times knew about the stuff going on, chose to hold back,and then chose to reveal... you completely gloss over that. Any narrative needs to include it or figure out why it doesn't matter.

(AVG only from here)The NYT is not an elected official and has no responsibility to the American people, other than what it earns or must earn through the marketplace.

The NYT does not have to answer to me other than as a customer.

You act as if they NYT is some official governmental organ whom the voters must evaluate.

Ain't true and the NYT's actions are of microscopic importance next to those of the president.

And despite your claims to the contrary, you emphatically suffer from BIS (Bush Infatuation Syndrome).

I treat Bush like I treated Clinton.

Bullshit."

Posted by: Advocate for God on December 19, 2005 at 5:33 PM

RSM:

See, AFG understands why your question is entirely irrelevant to the main issue, that being a President of the United States of America chose to admit that yes he violated statutory law regarding the surveillance of American citizens, and claimed that his war powers that the Constitution grants him is all the legal justification he needs. That he chose to disregard the proper legal channels for such wiretap warrants, a court that has refused a literal handful in something like 19,000 applications. This is what is the core issue here, and the actions and inactions of the NYT does not change matters at all. As I understand it, the NYT was told it was a national security request for a hold last year, and they did so for at least a year. Now, one can debate whether by that point the Bush Administration had sufficient credibility on truthfulness in such descriptions, but it would have been unreasonable for the NYT to not at least give it serious consideration.

I do think this is something the American people deserved to know was being done before the last election, but that is true of a lot that this Administration hides behind the wall of classified. This Administration has one of if not the worst history for expanding the material under classification of government operations, and not just in security and directly related fields either. Indeed, the transparency of basic government functions have become murky in this Administration thanks to this policy. Any government that can hide what it wants and not be required to justify that in some manner of oversight seems to run counter to all that American separation of powers doctrine has stood for. For a conservative Mike you appear to hold to some fairly radical ideas with what you support this President in.

In any event, this is just the latest in a long line of scandals slipping out from under the cloak of Bushs 9/11/01 trustworthy status. I know you think that much that I declare about this Administration is out there in left field (so to speak) and while I agree that some of my speculation is purely that, generally speaking I try not so much to focus on the motives of those in power so much as the impacts of the decisions they are making as best as I can tell. I simply cannot come up with any other explanations for this circumvention of FISA other than the ones I cited earlier.

You seem to find the idea that the widespread belief within conservative circles that liberals/lefties/Dems are sympathetic to terrorists could not cause such wiretapping in the genuine belief that this was the best place to start fishing for leads against the terrorists conspiracy theory level thinking. If you really believe that then you do not appreciate either the power of the belief regarding liberals and terrorism nor do you grasp the power of human belief in the righteousness of ones cause to causing serious abuses done in its name. Indeed, one can make a very good case that the torture debate/issue in America is evidence of this very type of thinking dominating the Executive branch these days. It is because of these facts that I can believe that this Administration may well believe that this was a valid security concern whereas a court, even FISA would not have. Since they believe in the essentially absolute power of this President in wartime to fight this war on terror it is not even a slight leap to see them doing exactly what the NYT accuses them of against political opponents.

The important thing though is that there is no way to know whether this is what happened or not. What little Congressional oversight that appears to have occurred on this is bad enough, and the attempt to blame Dems told is really hypocritical of the GOP. When senators are worn to secrecy on information from even their fellow senators, and this is backed up with serious criminal sanctions, exactly how are these Dem senators/Congresspeople supposed to be telling anyone about it, let alone their concerns with the program before it broke in the public realm like it just has? The very fact that this line is being spun so heavily is also an indication of just how thin the WH case here is, since this can be debunked so easily. They must be really desperate to get this to fade away like all the other scandals like Katrina, Abu Ghraib, Miers, no WMDs in Iraq to be reaching for this as a defence.

For someone that claims to love their country and serve it, you do not seem to have all that much respect for your Constitution in all its magnificence. The American Constitution and Bill of Rights is one of the main templates followed for the creation of similar documents in newly free countries wishing to have a democratic rule of law society. This has been true for many decades now, and to see the one thing all elected officials and military personnel sworn to protect and preserve being betrayed on so many levels by those holding the highest offices in the land is truly sickening. This latest business with the American wiretapping without warrants is only the latest symptom/element in a very complex web set up in the wake of 9/11/01, and the true impacts this has on the balance of power between the government and its citizens and how far it has shifted towards the government side of the scale.

Posted by: Scotian on December 19, 2005 at 8:52 PM | PERMALINK

Scotian, I almost skipped your post since you quoted AFG, and I make a concerted effort to read nothing that that uniquely moronic village idiot writes. I also noticed you end with the typical mud flinging "why do I hate the constitution" BS. I assume you just can't help yourself, personality flaw and all that.

You came out and basically said all of this was about spying on liberals because repubs/rights believe they aid and abet the terrorists since both sides are against the war. I think you're full of it on that one. You said...

You seem to find the idea that the widespread belief within conservative circles that liberals/lefties/Dems are sympathetic to terrorists could not cause such wiretapping in the genuine belief that this was the best place to start fishing for leads against the terrorists conspiracy theory level thinking.

That sentence makes no sense to me. Missing some commas?

When senators are worn to secrecy on information from even their fellow senators, and this is backed up with serious criminal sanctions, exactly how are these Dem senators/Congresspeople supposed to be telling anyone about it, let alone their concerns with the program before it broke in the public realm like it just has?

So just what horrible crime has to occur for a democratic senator to violate secrecy? If what you are prepared to accuse the WH of, that they were wiretapping americans becuase they are liberals, is true...are you comfortable with their silence? Why is it wrong for them to speak up, but OK for someone to leak this highly classified info? In short, it takes real courage to speak up, none to leak.

This has been true for many decades now, and to see the one thing all elected officials and military personnel sworn to protect and preserve being betrayed on so many levels by those holding the highest offices in the land is truly sickening.

It sickens me to see your kneejerk response. What Bush did was likely illegal by FISA, but not unconstitutional. Read up.

And spare me the sanctimonious sideways impugnments of my motivations. I've risked my life more time in tension on CAT 1 than most folks here have within a hundred miles of the ocean. I did it for Clinton, Reagan, Bush I, bush II, and I'd do it for Gore, Obama or (grit my teeth)Kerry (ouch).

Posted by: Red State Mike on December 19, 2005 at 9:11 PM | PERMALINK

Stefan's a lawyer--his opinion seemed to be that cmdicely does NOT seem to have that problem and is actually more versed and astute with the law than yourself.

Stepped away for the last six hours so missed this debate, unfortunately, but now, invoking my great and fearsome authority as a lawyer, I can say: Nathan's tap-dancing as fast as he can. He knows he doesn't have the law on his side so he's trying desperately to sidetrack the discussion into persnickety dictionary definitions and whether the great unwashed masses should even be allowed to have an opinion on legal matters.

When you don't have the law, argue the facts; when you don't have the facts, argue the law; when you don't have the facts or the law, argue the defintion of "verbal."


Posted by: Stefan on December 19, 2005 at 9:19 PM | PERMALINK

Nathan,

You better listen to Stefan if you want to be a good lawyer some day.

Posted by: Pale Rider on December 19, 2005 at 9:27 PM | PERMALINK

When you don't have the law, argue the facts; when you don't have the facts, argue the law; when you don't have the facts or the law, argue the defintion of "verbal."

Where does Pale Rider's "Screaming Diarrhea" fit into the picture?

Which, by the way, would be an excellent name for a rock group.

Posted by: Red State Mike on December 19, 2005 at 9:55 PM | PERMALINK

RSM,

I wouldn't try fitting it in. I'd pray that it never finds a nesting place in your intestines.

What I wish we could do in this debate is subtract the partisan politics from it. If we could strip away the idea that this is Bush bashing or whatever, it would be open and shut--

Nobody wants the government listening in, nobody wants the government to have unchecked powers residing in one branch without oversight and nobody thinks the President is above the law.

I mean, you could probably get 90 percent of the country to agree to those three things. I'm not vouching for the other 10 percent, which seems to be the raving lunatic crowd that can't take the cap locks off.

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