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Tilting at Windmills

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December 19, 2005
By: Kevin Drum

FISA FOLLOW-UP....Earlier this morning I noted that the FISA court is notorious for its willingness to approve any and all wiretap requests from the federal government. Via Josh, I see that EPIC has tallied up the record of FISA requests between 1980 and 2002, the year the NSA's secret domestic bugging program started, and has a hard number for the number of requests that had been turned down during that period:

None.

Since then, one or two applications have been turned down, but the basic point is still clear: FISA approves 99.98% of all surveillence applications presented to it. What's more, federal law already allows emergency wiretaps without a FISA warrant, as long as you apply for a warrant within 72 hours. Following the law wouldn't have hamstrung the administration in any way.

And there's more: it wasn't even a matter of keeping the NSA program a secret from the FISA court. The judge knew all about it, and even warned the administration not to use information from the unapproved program as the basis for further wiretap requests.

So what's the deal? It must be pretty obvious to everyone that there's more going on here than the administration is fessing up to. Since there was no apparent reason to bypass the law, there must be an unapparent one. But what?

Kevin Drum 1:07 PM Permalink | Trackbacks | Comments (182)

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Comments

Well, there is no rational reason for the Administration to violate the law if their descriptions of the actions they were taking are true.

Therefore, they are either lying, acting irrationally, are both.

Posted by: cmdicely on December 19, 2005 at 1:09 PM | PERMALINK

The unapparent reason is that he was spying on U.S. journalists, according to John Avarosis.

Posted by: Arminius on December 19, 2005 at 1:11 PM | PERMALINK

Now all we'll hear from the wingnutosphere is that the FISA court is superfluous and that Bush shouldn't have to deal with the bureaucracy.

Posted by: Eric on December 19, 2005 at 1:11 PM | PERMALINK

They already had the NSA spy on our allies at the UN during the run-up to the Iraq war. What would stop them from spying on American political opponents or journalists?

Posted by: The Crowd Goes Wild! on December 19, 2005 at 1:11 PM | PERMALINK

a) Spying on journalists with shady sources overseas

b) A massive new capability we are unaware of, to tap all phone calls from anyone named Drum in San Diego to DC without any physical intervention, but simply by typing parameters into a program. How can we know they weren't tapping the Kerry campaign? We can't.

Posted by: bob mcmanus on December 19, 2005 at 1:11 PM | PERMALINK

What exactly does "links to al qaeda" mean? If they thought they couldn't get a warrant, it's probably very liberally defined. You, me, (Kerry?), whoever.

Posted by: drainpipe on December 19, 2005 at 1:12 PM | PERMALINK

The issue of technology was raised by a commenter on an earlier thread. Modern systems can track thousands of connections at once, and I'm not sure how specific warrants deal with something like that. But since you've already dismissed that for some reason, not sure where to go from here.

Still haven't heard much from those Democratic leaders who were actually briefed on this, but I haven't seen all the news yet.

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

I suspect that if the list of "suspects" who were illegally wiretapped or eavesdropped was released to the public, then all motives for this evil Bushduggery would be made clear.

I say Release the List, Impeach Now, and avoid the post-2006 election rush!

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

What exactly does "links to al qaeda" mean?

Sy Hersh and all of his sources have "links to al Qaeda."

Posted by: The Crowd Goes Wild! on December 19, 2005 at 1:16 PM | PERMALINK

spying on journalists? sure why not? how about spying on democrats in congress? i have no factual basis for saying this, but would you put it past them? i wouldnt. and there is the problem. there is almost nothing i wouldnt believe they could stoop to and until they make public the list of who they were listening to i am going to have a strong suspicion the list includes their most feared enemies - Democrats.

Posted by: steve kyle on December 19, 2005 at 1:17 PM | PERMALINK

They already had the NSA spy on our allies at the UN during the run-up to the Iraq war.

Excellent point, showing that they have no problem spying on "friends" much less perceived enemies.

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

It is the evesdropping on political opponents, and maybe even members of your own party, that must be kept secret. A power like this is hard to keep from slopping over from foreign to domestic politics.
Remember the rethug who was tapping into the demos computer files? Remember the hubbub about the political files on rethugs in the Clinton WH?
I wish to be the first to declare my fealty to our new king, bush the first.

Posted by: dilbert dogbert on December 19, 2005 at 1:18 PM | PERMALINK

Still haven't heard much from those Democratic leaders who were actually briefed on this, but I haven't seen all the news yet.

A little tartar sauce with your red herring?

Posted by: Windhorse on December 19, 2005 at 1:20 PM | PERMALINK

Don't we already know that they were spying on UN ambassadors?

And what about Bolton's NSA intercepts?

The list of people who were monitored will be interesting indeed... No doubt they are burning the records as we speak. Who will be the whiste-blower?

Posted by: tinfoil on December 19, 2005 at 1:20 PM | PERMALINK

It fits into their entire governing strategy: Contempt for checks and balances, contempt for our system of governance, contempt for what even conservatives used to believe were constitutional rights.

They seem to truly believe that they can do whatever they want for whatever reason they want I don't really think at this late date this is a debateable premise.

Between this, torture, war and watching some fucking 'anti-terrorist' scuzzball on 60 minutes last night say that he's not concerned with what our government does, I've finally given up.

Really, what does it matter if there's another terrorist attack or not? A few hundred, or a few thousand, or a few hundred thousand more Americans will die one way or another in this lunacy. And now that we hold nothing -- literally nothing -- sacred in our civil life, what are we defending? Mortgages? Wal-Mart? It sure as shit can't be democracy.

Posted by: n.o.l.t.f on December 19, 2005 at 1:20 PM | PERMALINK

Why hasn't tbrosz heard anything from Democratic leaders who were briefed on this? Because the facts indicate that Democrats were NOT briefed. Here are some facts for tbrosz from American Progress:

Yesterday, Condoleezza Rice defended the eavesdropping program by arguing that congressional leaders -- specifically "leaders of the relevant oversight intelligence committees" -- had been briefed on the NSA activities. This is apparently not true. At the time the program was initiated, the Chairman of the Senate Intelligence Committee was former Sen. Bob Graham (D-FL). On Friday's "Nightline," Graham made clear he had never been briefed by the administration about the program: "There was no reference made to the fact that we were going to...begin unwarranted, illegal, and I think unconstitutional, eavesdropping on American citizens." Additionally, in a letter issued last night, House Minority Leader Nancy Pelosi (D-CA) said she had been "advised by Rep. Jane Harman (D-CA), Ranking Democrat on House Intelligence Committee, that the Bush Administration reversed its decision to brief the full House Intelligence Committee on the details of the activities."

Impeach Now and avoid the post-2006 election rush!

Posted by: The Dad on December 19, 2005 at 1:21 PM | PERMALINK

Don't we already know that they were spying on UN ambassadors?

And what about Bolton's NSA intercepts?

I brought this up in the other thread. Did Bill Richardson's name show up in Bolton's wiretaps? Doesn't that coupled with the revelation of this program raise eyebrows?

Posted by: The Crowd Goes Wild! on December 19, 2005 at 1:22 PM | PERMALINK

I think tbrosz is on to something.

With a warrant, a specific individual is presupposed.

I think the NSA has been conducting surveillance on communications streams, filtering for languages and keywords. It would be impossible to design a warrant for that type of surveillance.

Posted by: wetzel on December 19, 2005 at 1:23 PM | PERMALINK

I'd bet money at even odds they spied on Democrats, particularly the Kerry campaign.

After all, didn't the right wing media say that Kerry was Osama's best friend? Would YOU spy on Osama's best friend?

If it is ever discovered that this program was used to spy on the Kerry campaign, you can be certain that Limbaugh and Hannity will praise W.'s heroism for stopping the terrorist Kerry.

These people are crazy, and they will say absolutely anything to win the argument of the moment.

Posted by: Joe Bells on December 19, 2005 at 1:23 PM | PERMALINK

What's the source of the statement that a FISA judge learned of the program and warned the government against using its fruits in FISA applications? (I just don't see that in anything you linked to.)

Posted by: Christopher M on December 19, 2005 at 1:23 PM | PERMALINK

The practical argument for bypassing FISA was the surge in volume post 9/11. Bush didn't want NSA to feel constrained. The philosophical argument has to do with executive authority in a time of war. These are old arguments, neither of which I find convincing for reasons given here and elsewhere (e.g. FISA already allowed for substantial domestic activity).

As for the question about the Democratic response, Pelosi has said that she sent a classified protest letter to the White House after she was briefed. I don't know about the others.

Posted by: JR on December 19, 2005 at 1:23 PM | PERMALINK

We can't allow the LIBERAL ACTIVIST JUDICIARY to be the roadblock in approvals of national security investigation into our enemies!

The New York Times, Colin Powell, lefty blogger anti-war protestors, you know, ENEMIES!!!1!!one!!

Posted by: tbrosz on December 19, 2005 at 1:23 PM | PERMALINK

But, but, but . . . .

Bush is defending and protecting theamericanpeople!

Posted by: JB (definitely not John Bolton) on December 19, 2005 at 1:24 PM | PERMALINK

I stated this in the other thread. I will repeat it.

The King Stupid Administration believes that there are no limits to their power. They did not obey the law because obeying the law is tacit acceptance of the rule of law. They are the state, they are the law, and thus admiting that anyone else can have any say over their interpretation of the law is tacit acceptance of limits.

They did it because they could.

Posted by: POed Liberal on December 19, 2005 at 1:24 PM | PERMALINK

I think the NSA has been conducting surveillance on communications streams, filtering for languages and keywords.

No, the NYT report said the NSA was targeting indvidual Americans, such as the doctor from the South they thought was a terrorist but turned out not to be.

Read the article again, please.

Posted by: The Crowd Goes Wild! on December 19, 2005 at 1:25 PM | PERMALINK

Kevin, in your previous post on the topic, you analogize getting a FISA warrant as being the equivalent of a slam dunk, in the legal world. If you look at Josh Marshall's posts, you'll see that the FISA court actually returns to the Attorney General when they can't accept a warrant request, and that they'll fix that request FOR the AG in order to say "... but we'll accept this."

So when you miss that slam dunk, the referee counts it anyway.

Posted by: The Good Reverend on December 19, 2005 at 1:27 PM | PERMALINK

They might not only be spying on political opponents, or journalists, but on their 'friends' as well.

Recall the opposition that Bu$hCo had revealing who John Bolton was listening in upon? Maybe they want 'the goods' on the Congressional Republican leadership (Hastert, Delay, Frist, etc.) to do some J. Edgar Hoover-type blackmail to get their program through Congress?

Or perhaps, they are listening in upon key figures in the BushCo administration to ensure that no 'doubters' are on the loose.

These speculations are at the heart of why the Constitution forbids searches and seizures (including wiretaps, by extension). It is impossible to know who is in the dragnet, and BushCo surely won't be honest with any replies to questions on this topic.

Our freedom and our Republic are in grave danger from 'above the law' thinking that permeates the BushCo cabal.

Posted by: JimPortandOR on December 19, 2005 at 1:28 PM | PERMALINK

1) fishing expedition with too widely cast net (based on originating country, multipe degrees of separation from bad guys, key word monitoring)

2) fishing expedition targeting someone's prized koi (politicians, journalists, political donors, philanthropists, etc.)

Congress might want to hold an investigation that includes testimony from the new UN ambassador. I'm sure there is a basement broom closet somewhere they'd let the Democrat's have access to.

Posted by: ranaaurora on December 19, 2005 at 1:28 PM | PERMALINK

"But what?"

Think Nixon. Think whom the real enemy of the Republican Party is, in the eyes of the Republican Party. Think how Watergate is described as a third-rate burglary. Think how Gordon Liddy described plans to murder the late Jack Anderson, but the Nixon White House passed (think about that; they considered it) on the idea. Think how the current Republican Party believes Nixon to have been a liberal on domestic policy. Think how Nixon ended up disgraced but Gordon Liddy (just one name among many) became a celeb. Then go back and think about those murder plans.

Posted by: John Thullen on December 19, 2005 at 1:29 PM | PERMALINK

wetzel and, sadly, tbrosz are probably close to the mark: NSA has probably applied its astonishing listening capabilities to a broad range of communications in the US - you know, economies of scale and all that - as opposed to creating a list first.

The list comes later, once the communications streams are filtered.

Posted by: Wonderin on December 19, 2005 at 1:29 PM | PERMALINK

The Dad:

Good luck to Pelosi and Graham. Rockefeller is already on the record as having understood the program and having expressing concerns. (Why it would have been a violation of national security for Rockefeller to speak out on it back then, but not a violation to have it spread on the front pages now, is something I'm still trying to figure out.)

Whatever story the Democrats that are or were on intelligence committees are going to cobble together, "nobody ever told us" isn't going to hold up very well.

Posted by: tbrosz on December 19, 2005 at 1:30 PM | PERMALINK

They were spying on people they knew the FISA court would turn down. The only question is: who would the FISA court turn down?

Taking what Bush said at face value (which is of course naive), think of who has a "tie to Al Qaeda" who the FISA would *not* authorize a wiretap on.

Politicians, government employees, journalists, activists, corporate officers, and court officials not suspected of terrorist involvement. Remember when McDermott went to Iraq? Daniel Pearl to Afghanistan? How about US employees of foreign companies involved in the Middle East?

All of these people have a "tie to Al Qaeda," but would certainly not pass muster before FISA without some hint they were going to provide information useful to national security.

But it wasn't about national security -- it was about political spying and corporate espionage. They want an excuse to hear everything said by Congressmen and reporters and researchers investigating Bush's handling of national security, and everything said by everyone who works for a foreign company.

This was Watergate times a thousand.

Posted by: Max on December 19, 2005 at 1:30 PM | PERMALINK

Whatever story the Democrats that are or were on intelligence committees are going to cobble together, "nobody ever told us" isn't going to hold up very well.

Shorter tbrosz: "You fucked up! You trusted us!"

Posted by: The Crowd Goes Wild! on December 19, 2005 at 1:31 PM | PERMALINK

I've just assumed that this authorization allows the NSA to monitor HUGE batches of calls...like every call into/out the middle east. They wouldn't be able to utilize FISA for that kind of fishing, or obtain a warrant for any phone number that they caught in that net.

Posted by: tinfoil on December 19, 2005 at 1:32 PM | PERMALINK

The Echelon project is neither defunct nor harmless. It is subject to abuse of power like other spy programs.

Posted by: Mike on December 19, 2005 at 1:32 PM | PERMALINK

tbrosz-

Let's say the Democrats did know. So what? Punish them if that was against the law. They deserve it for witholding this.

It still doesn't absolve Bush from having broken the law in doing this, nor provide any cover or justification except that members of Congress (on both sides of the aisle, let's not forget) were complicit in this.

Posted by: crytptoman on December 19, 2005 at 1:34 PM | PERMALINK

Since there was no apparent reason to bypass the law, there must be an unapparent one. But what?

The same reason that Clinton banged his intern. Because he could.

I agree that the reason for avoiding the FISA process is probably technology-related. They aren't tapping wires of specific suspects, they're fishing.

Yet in September 2001, the mood in the country was such that only one Senator dared to vote against the Patriot Act, which was shoved down our throats without any amendments or discussion. The difficulty level involved in passing a law authorizing the warrantless screening of international phone calls would have been minimal.

They circumvented the law because they could. Because they feel entitled to do whatever the fuck they please without going to the trouble of following the law and having to justify themselves in public.

The only reason they bothered to write the Patriot Act is because the FBI would have leaked it all to the press if they'd tried to keep it secret. I guess they figured the NSA was better at keeping quiet.

Posted by: Violet on December 19, 2005 at 1:36 PM | PERMALINK

I think the easiest answer (occam's razor) is that they just didn't want to do the paperwork. I don't like doing the paperwork associated with my life. If there were a dodge to it, I'd take it (and I love online billing for that reason). In the months after 9/11 no one was questioning anything Bush did. Probably, they thought they could just skip the formalily of approval (because it does appear to be just a formality), and no one would mind.

Posted by: Scott Herbst on December 19, 2005 at 1:38 PM | PERMALINK

I'd check Soros' line. I expect it's on the list.

Posted by: Spearhead on December 19, 2005 at 1:38 PM | PERMALINK

Kinda cuts to the heart of it all to recollect Kerry's accidentally-on-camera comment that went like "these guys are the biggest crooks in history."

It's all the fault of the republican voter. Every last one of em.

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

Knowing what you know about these people, is this a question that needs asking? They are keeping tabs on everyone to the left of bob dole who is in the public spehere. They are likely also putting together damaging info on future possible Democratic candidates for office or staffers. this is a no-brainer. They are spying on their critics.

The rest of your suggestion feel like trying to ram a square peg in a round hole. You assume normalcy and democratic leanings on people who have shown neither. My explanation is the obvious one, as such it is the most likely to be true. For any of you to have reached other conclusions you had to disregard my answer. Your reasoning is likely ,as I said, projection of normalcy.

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

Sheesh this is easy when you think about for a minute, it is obvoius that al-Qaeda was penetrated the Justice Department so they cannot tell anyone there. You liberals hate Bush so much you can't think straight anymore!

Posted by: Al on December 19, 2005 at 1:43 PM | PERMALINK

The Trolletariat: Defending the indefensible since 2000.

Action Items:
1) There's nothing improper about Bush doing X
2) Somewhere a democrat "gave approval" for X
3) X has always been done (attempt to compare X to A-W, Y and Z)
4) I bet Clinton did X too!
5) Look over there...our security is threatened!

Posted by: ckelly on December 19, 2005 at 1:43 PM | PERMALINK

The "unapparent" reason?

My guess is that the have the NSA doing wide-scale "sweeps" on internet and phone traffic. When they turn up a message with a certain keyword, they focus in on that person or channel. Trouble is, they can't go to FISA with probable cause being info obtained from the indiscriminate sweeps.

This should give ordinary citizens pause because it might mean that they could get caught in the survellance if they use the word "terorist" or "plot".

The other possibility: The wiretaps are on Democrats, Fitzgerald, Soros, etc.

Posted by: Libby Sosume on December 19, 2005 at 1:45 PM | PERMALINK

Anyway, a couple of reasons why they might want to act outside of the FISA court:

1) They're tapping anyone who might remotely be connected with a suspected member of al-Qaeda. In order to satisfy FISA, IIRC, the Attorney General must show that he or she has reasonable cause to believe that the target is a member of an oversees terrorist organization, not just communicating with someone who happens to be in one. In other words, they find a list of phone numbers (or phone records) of someone they think is working for al-Qaeda, so they tap all of those numbers.

2) Former Sen. Graham (former member of the Intelligence Committee) was on one of the morning political shows a few days ago, where he noted that there was a debate about whether they could tap telephony equipment housed by foreign companies. That's probably where the debate came from: can they tap calls between American citizens that travel through foreign-owned satellites, etc.?

Posted by: the good reverend on December 19, 2005 at 1:45 PM | PERMALINK

Since [2002], one or two applications have been turned down

...

The judge knew all about it, and even warned the administration not to use information from the unapproved program as the basis for further wiretap requests.

I think you already answered your own question, Kevin. After 2002 someone started pushing back, if only a little.

And you know how thin-skinned this administration is.

It is possible that even the few refusals, combined with the judge's reluctance to accept illegal evidence, was all the administration needed to just say "fuck the law."

Regardless of whether or not the Bush administration's list of people illegally tapped includes any political enemies or not, the administration HAS to push back on this, since even the specter of unaccountable eavesdropping makes it harder for their Libertarian wing to continue pretneding to be libertarians (and it's already hard enough). In other words, this is either an embarrasment or a disaster for Bush, hence the emergency press-conference this morning.
.

Posted by: Grand Moff Texan on December 19, 2005 at 1:45 PM | PERMALINK

Since there was no apparent reason to bypass the law, there must be an unapparent one. But what?

Well, apparently, the FISA court would approve spying on just about *anybody* with even a *remote* connection to terrorism or foreign agents. Therefore, logic would suggest the only reason to bypass the law is that they wanted to spy on somebody who *doesn't* have even a remote connection to terrorism or foreign agents.

Wonder who that might be?

Posted by: KarenJG on December 19, 2005 at 1:47 PM | PERMALINK

Take them to court and find out. It's not like you live in a dictatorship. But first, be sure to have a very thorough conversation with Sen Reid and Rep Pelosi to find out why (that is, the "real reason") they went along with it.

Posted by: papageno on December 19, 2005 at 1:47 PM | PERMALINK

Wow, this is just what the Nazi's did. Bush-a true fascist. And paranoid like Hitler, too.

Posted by: MRB on December 19, 2005 at 1:50 PM | PERMALINK

Before September 11 you couldn't go to FISA and say that you wanted to spy on every muslim with a phone card and an email account.

The funny thing about all of this is that there are probably thousands of hours of tapes sitting on a shelf somewhere un-translated. If Bush had even a vague example of how this un-law was used to protect americans he would have trotted it out by now.

The Vice President's argument that secret wiretapping could have stopped 9/11 should be turned on it's head. Bush and Cheney were one of only a small amount of people who had the "secret" information that Al-Qaeda was planning to attack the U.S., possibly by hijacking commercial airliners. They had secret information, they didn't share it with the public, and they failed to do anything about it. Fool me once...

Posted by: enozinho on December 19, 2005 at 1:51 PM | PERMALINK

Whatever story the Democrats that are or were on intelligence committees are going to cobble together, "nobody ever told us" isn't going to hold up very well.

tbrosz cuts right through the key information --the fact that an administration is spying illegally on american citizens and promises to continue to do so even though it is in direct conflict with statutes passed by Congress and signed by a former President--to the information that really doesn't make much difference--why didn't the democrats make a fuss?

Well, if the democrats didn't speak up, it is probably a characterological weakness--they have been trained to be helpless, powerless weaklings. The fact that Bush is defiantly asserting the justification of his criminal enterprise even in the light of public scrutiny should be enough warning to all of us: our Republic is in grave danger. tbrosz, I suggest you go play with your toys and let the adults confront the implications of what's going on here.

Posted by: Baldrick on December 19, 2005 at 1:52 PM | PERMALINK

It's not like you live in a dictatorship.

Coulda fooled me.

Posted by: ckelly on December 19, 2005 at 1:52 PM | PERMALINK

"With a warrant, a specific individual is presupposed.
I think the NSA has been conducting surveillance on communications streams, filtering for languages and keywords. It would be impossible to design a warrant for that type of surveillance.
Posted by: wetzel on December 19, 2005 at 1:23 PM

A couple years ago I heard of a technology based on mathematical graph theory that enabled people like the NSA to deduce conspiracies. At a simplistic level, if A calls B and two minutes later B calls C, chances are A is linked to C. If this was being done in real time by computers, then it wouldnt be possible to get authorization in advance.

But why didnt they just get a warrant within 72 hours? Did they try and the judge say no? Was the volume of calls traced too huge? Were they doing real time monitoring of ALL international calls?

It may be that this technology has its place, but surely something this Big Brotherish should be debated before being adopted.

Posted by: 2.7182818 on December 19, 2005 at 1:52 PM | PERMALINK

The Occam's Razor for this really is Watergate.

I like the idea of "line fishing"...but with one exception. If it really was line fishing, wouldn't there be one order and then that's it? But there's more than one. A lot more. So that would indicate that we're talking about more specifics than that.

Is it that it was too much work? Doesn't look like it. Because the Bush admin went to FISA for most cases still. It was just a few really.

So the simplest..the only explanation that could be is that they didn't go to FISA for orders because they wouldn't be approved.

We need a list of phone numbers. I'm going to take a guess, and say that the names are not going to match the phone numbers.

Posted by: Karmakin on December 19, 2005 at 1:53 PM | PERMALINK

If recent history has taught us anything, it would be to never underestimate basic human stupidity as an underlying reason for any event.

When I was a kid, the "James Bond" theory of world events provided comfort. That theory was that despite outward appearances of the potential for random, unlucky disaster, there were ultra capable secret agents out there, somewhere, taking care of business.

Of course, it turns out the reality is that a bunch of guys can sigh up for flying lessons with a special emphasis on not bothering with take-off and landings and it never even makes it up the higherarchy to even be looked at, let alone dealt with by James Bond.

I saw Syriana last night, and even though the makers of that movie did backflips to emphasize the complexity and ambiguity of the situation, we still end up with a bunch of CIA guys in a room, watching satellite imagry as one lone "bad guy" is taken out at leisure.

I'm sure, in the last seconds of his movie life, the George Clooney character wondered why he had to have several of his fingernails pulled out if all that was needed was some dude pushing a button in Langley.

Similarly, those Army commercials. Now, I would bet any amount of money those Speical Forces troops are tougher than me, but the scenario is ridiculous. We're actually going to send a couple of highly trained soldiers out with 5 days of food for a 12 day mission to observe, motionless on a hill, a bunch of guys in turbans driving 1980's pickup trucks. The U.S. Army has no possible technology which could accomplish that task? You've got to be fucking kidding me!

So, as we ponder what to do about this latest screw up concerning our civil rights, remember that there is no James Bond, and we can't even properly process and act on the very public information we have, let alone the information sought by massive, clandestine, illegal surveillance.

Think about that when the next Republican gets on T.V. to point out how "valuable" such information is.

Posted by: hank on December 19, 2005 at 1:54 PM | PERMALINK
I think the NSA has been conducting surveillance on communications streams, filtering for languages and keywords. It would be impossible to design a warrant for that type of surveillance.

Not only would it not be impossible, it would be quite simple to do so under FISA -- FISA doesn't require that the target of warrant-based surveillance be a named individual, and doesn't require that information from others isn't caught up in the sweep -- though it does require minimization procedures to control that.

What may be problematic is if there is a wide-net program aimed, nominally, at (for example) al-Qaeda, but there is no effective minimization strategy designed for it, and the administration fears that the program would not be acceptable because of the absence of adequate minimization procedures.

This clashes with their overt explanations of their actions somewhat, as those explanations suggest the targeting of individuals based on specific information, and other excuses for not going to the court, but it would explain (though not legally justify) their reluctance without resort to outright malevolence (whether, given their actions in other areas, avoiding this explanation makes the scenario more or less credible could be subject to spirited debate.)

Posted by: cmdicely on December 19, 2005 at 1:55 PM | PERMALINK

tbone,

You ponder "(Why it would have been a violation of national security for Rockefeller to speak out on it back then, but not a violation to have it spread on the front pages now, is something I'm still trying to figure out.)"

Don't be disingenuous. You're a smart guy - surely you know the difference between a politician with security clearances laboring under a solemn oath of secrecy, and a newspaper reporter with a scoop.

But you are right in one regard - the revelation of the illegal spying is not a danger to national security. The only danger it poses is to the chronically dishonest administration that authorized it.

Posted by: athos on December 19, 2005 at 1:55 PM | PERMALINK

yeah, the only reason that makes any sense is that they didn't want anyone to know who they were spying on. I suppose its possible that this could still be someone with legitmate questions, but most likely it means they were spying on someone they shouldn't have been. i.e. journalists, Democrats, Republicans, etc.

Posted by: mixwhit on December 19, 2005 at 1:55 PM | PERMALINK

"What may be problematic is if there is a wide-net program aimed, nominally, at (for example) al-Qaeda, but there is no effective minimization strategy designed for it, and the administration fears that the program would not be acceptable because of the absence of adequate minimization procedures."

This might be on the right track. Throw in that it may be impossible to devise effective minimization procedures...

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

Whatever story the Democrats that are or were on intelligence committees are going to cobble together, "nobody ever told us" isn't going to hold up very well.

Somebody was listening to Rush during lunch.

Uh, no: Bush is saying that Congress APPROVED it, and the Dem.'s who knew about it heard about the program in a confidential briefing.

Looks like you're going to need a new place to hide.
.

Posted by: Grand Moff Texan on December 19, 2005 at 2:02 PM | PERMALINK

tbrosz, every argument you make puts you firmly on "the other side." Look, just because you're not supporting Islamic terrorists doesn't make you any less of an element who supports the subversion of the Constitution. Evil and criminality is still evil and criminality, even if it's not based in extremist Islam.

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

Karakin
The Occam's Razor for this really is Watergate.

No, because they knew the NY Times knew for over a year now. Watergate doesn't make sense.

Posted by: Red State Mike on December 19, 2005 at 2:04 PM | PERMALINK

tbrosz, every argument you make puts you firmly on "the other side." Look, just because you're not supporting Islamic terrorists doesn't make you any less of an element who supports the subversion of the Constitution. Evil and criminality is still evil and criminality, even if it's not based in extremist Islam.

Posted by: Constantine on December 19, 2005 at 2:04 PM | PERMALINK

Something to keep in mind about this administration is their incompetence. I don't believe the "they're tapping the phone lines of all the Congressional Democrats" theory simply because it would be more work than they could handle.

No, it's the principle of the thing. We're not going to wiretap any more or any less under this directive. We're not going to torture any more or any less (very depressing link) if it's explicitly legal. But the idea that there might be any checks on executive power -- this cannot stand.

Posted by: Allen K. on December 19, 2005 at 2:05 PM | PERMALINK

Moff,

Actually, one of the earlier reports about this indicated that at least Rockafeller knew about this before the story became public and expressed his displeasure about it in a letter. Pelosi indicates (http://jesseberney.com/?p=51) that she also was told and expressed concern.

But that makes no real difference, does it? It's illegal because it's against the law, not because people at the Hill didn't know. They'd have to pas, you know, a law to allow it. It's just another red herring issue.

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

Violet on December 19, 2005 at 1:36 PM:

I agree that the reason for avoiding the FISA process is probably technology-related. They aren't tapping wires of specific suspects, they're fishing.

Nope, it's more than just that. From MSNBC:

WASHINGTON - A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn't know was that their meeting had come to the attention of the U.S. military.

A secret 400-page Defense Department document obtained by NBC News (g_c: pdf, large file size) lists the Lake Worth meeting as a threat and one of more than 1,500 suspicious incidents across the country over a recent 10-month period.

This peaceful, educationally oriented group being a threat is incredible, says Evy Grachow, a member of the Florida group called The Truth Project.

This is incredible, adds group member Rich Hersh. It's an example of paranoia by our government, he says. We're not doing anything illegal.

The Defense Department document is the first inside look at how the U.S. military has stepped up intelligence collection inside this country since 9/11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups.

It's absolute paranoia at the highest levels of our government, says Hersh.

I mean, we're based here at the Quaker Meeting House, says Truth Project member Marie Zwicker, and several of us are Quakers.

The Defense Department refused to comment on how it obtained information on the Lake Worth meeting or why it considers a dozen or so anti-war activists a threat.

So what we are seeing here is more than warrantless eavesdropping; it is Watergate on a much larger scale.

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

The doofus on CNN said that Bush made a distinction between "detecting" and "monitoring", and that he wouldn't ask for a warrant to do "detecting" but he would for "monitoring".

Well there you go.

NSA is sweeping the communicatiopns channels, "detecting" use of forbidden words.

Posted by: Libby Sosume on December 19, 2005 at 2:10 PM | PERMALINK

Actually, one of the earlier reports about this indicated that at least Rockafeller knew about this before the story became public and expressed his displeasure about it in a letter. Pelosi indicates (http://jesseberney.com/?p=51) that she also was told and expressed concern

Yes, but the information is still confidential by its very nature. So in order to say that the Democrats in Congress either should have done something about that, or that since they didn't do anything it's OK, requires that the talking-point gargler forget the very nature of the thing being discussed.

They're very good at that, btw.

Didn't you notice Bush going after the leaker this morning? There goes the drunk: "there are no problems, just bad people who won't shut up about problems."
.

Posted by: Grand Moff Texan on December 19, 2005 at 2:14 PM | PERMALINK

Similarly, those Army commercials. Now, I would bet any amount of money those Speical Forces troops are tougher than me, but the scenario is ridiculous. We're actually going to send a couple of highly trained soldiers out with 5 days of food for a 12 day mission to observe, motionless on a hill, a bunch of guys in turbans driving 1980's pickup trucks. The U.S. Army has no possible technology which could accomplish that task? You've got to be fucking kidding me!

Happens every day. Our guys do this kind of thing every day all over the world as standard ops. What's wrong with that?

Posted by: Pale Rider on December 19, 2005 at 2:17 PM | PERMALINK

Josh Marshall points out that in 2003 the FISA court did start questioning a few applications (though I think they were all eventually approved). My guess is that infuriated the Bushies, who don't like anyone telling them what to do. My suspicion is that they were wanting to tap opponents, journalists, etc., and the court balked. Something along those lines is probably what's going on here. I'm very pessimistic that anything useful will be done; there might be a few token hearings, but they'll be whitewashed by Congressional Republicans, similar to the 911 commission.

Posted by: Rebecca Allen, RN,PhD on December 19, 2005 at 2:19 PM | PERMALINK

hank
Similarly, those Army commercials. Now, I would bet any amount of money those Speical Forces troops are tougher than me, but the scenario is ridiculous. We're actually going to send a couple of highly trained soldiers out with 5 days of food for a 12 day mission to observe, motionless on a hill, a bunch of guys in turbans driving 1980's pickup trucks. The U.S. Army has no possible technology which could accomplish that task? You've got to be fucking kidding me!

Not yet. Not that they aren't working on it as hard and fast as they can. but those highly trained guys are very capable in maintaining observation and making decisions on site. The whole premise of the ad was that they headed out for 5 days, but stayed for 12 based on what they saw. On the spot decision making.

Posted by: Red State Mike on December 19, 2005 at 2:19 PM | PERMALINK

I think the many commenters are correct that the Bush regime wanted to eavesdrop on people unconnected to terrorists who were connectied to political opposition, which is why FISA authorization was not pursued. If correct, using the NSA to spy on political oppostition would be objectively treasonous because it is using scarce anti-terrorist resourses for political gamesmanship.

Posted by: Hostile on December 19, 2005 at 2:20 PM | PERMALINK

forgot to mention: Sen. Rockefeller is the vice-chairman of the Select Committee on Intel., a body formed in the 1970s specifically to address abuses at the NSA, so I would be surprised if he DIDN'T know about this.

But again: being the ignored opposition doesn't mean you've consented.
.

Posted by: Grand Moff Texan on December 19, 2005 at 2:20 PM | PERMALINK

Why has the FISA court reguarly approved more than the number of requests it gets?

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

Moff,

So, I somehow managed to miss the sentence in the post where you mention the confidential briefing. Sorry, finals, I'm tired.

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

Grape Crush--

My understanding is that these two incidents are unrelated. The DoD was conducting surveillance on peace protesters by stretching the definition of "threats to military installations" to the breaking point. The NSA was conducting warrantless eavesdropping on domestic phone calls without any statuatory basis whatsoever.

Two separate cogs in the same wheel of civil-liberty-destruction.

Now, if it turns out that the NSA was eavesdropping on Quakers, and sharing information with the DoD, that would be a huge development. But this has not yet been proven.

Posted by: Violet on December 19, 2005 at 2:23 PM | PERMALINK

tbrosz, I thought you were something of a Libertarian. Guess I was wrong. Any self-respecting Libertarian understands the importance of governmental checks and balances, and would be deeply concerned about the executive branch of the federal government spying upon American citizens with no constraints whatsoever.

Posted by: chasmrich on December 19, 2005 at 2:23 PM | PERMALINK
We're actually going to send a couple of highly trained soldiers out with 5 days of food for a 12 day mission to observe, motionless on a hill, a bunch of guys in turbans driving 1980's pickup trucks.

Well, if they were sent out with 5 days of food, it was probably a five (or, more likely, less) day mission, and then something went wrong.

OTOH, what I've never understood about that commercial (especially compared to other military recruitment commercials) is how it is supposed to be an enticement.

Posted by: cmdicely on December 19, 2005 at 2:23 PM | PERMALINK

Let's stay focused on Bush's actions, not on his targets. Figuring out who were his targets is a parlor game (no disrespect to Kevin Drum and to John Aravosis).

The issue here is Bubble Boy pissing on the 4th Amendment, and the legal theory of Presidential Infallibility. Whether he wanted the NSA to phone tap me, or Mohammed Al Scary Terrorist, is beside the point.

Due process is dying a slow death, and Congress has to get to work.

Posted by: Lame Man on December 19, 2005 at 2:24 PM | PERMALINK

Ok, I admit it. I want the terrorists to win. The President made it clear yesterday that there are only two choices; victory or defeat. I choose defeat, in fact I chose it from the beginning. Every morning I get up and ask myself how I can harm my nation's security and give in to the terrorists. On weekends I work on ways to undermine our troops. Tbroz and Al/Cheney/Chuckes/Alice have had it right all these years. They have been bravely protecting the country, and the world, from the likes of me. Isn't it time to admit that they have won? Isn't it time to admit, finally, and sincerly, that freedom is indeed on the march?

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

So, I somehow managed to miss the sentence in the post where you mention the confidential briefing. Sorry, finals, I'm tired.

Well, I was sufficiently uncaffeinated to writing "briefing" instead of "briefings," so I thought your objection warranted.
.

Posted by: Grand Moff Texan on December 19, 2005 at 2:34 PM | PERMALINK

I re-watched Enemy of the State the other night -- seems a bit different today. You might find it amusing to rent.
I don't think there's really very much doubt that at least some of the surveillance was on the Dems -- I haven't read EVERY post in this thread (sorry), but none of the ones I did read carried any reminder of the mis-use of Homeland Security in tracking the Texas Democratic state reps who left the state a few oyears ago to deny a quorum for Delay's gerrymandering for a month or so. Remember that? We don't have to hypothesize whether this Administration will abuse surveillance on the domestic opposition -- it's on record that they have already done so.

Posted by: smartalek on December 19, 2005 at 2:35 PM | PERMALINK

Have we not known for years that the NSA has the ability to intercept, record and monitor literally almost every form of electronic correspondence everywhere on this planet?
That there are computers programmed to pick out key words or phrases? That this very post is being monitored as soon as I hit "post"?

Does anyone really have any control over what the NSA does?

Plus, we had plenty of dots to connect before 9/11. Bush's using the missing dot connection scenario to defend his powers to collect more dots does not in any way mitigate their ignoring the big red red flashing dots like "Bin laden plans to hijack domestic aircraft". The big red flashing dot turned into the big green flashing dot: "OK to INVADE IRAQ NOW!" Good God, can we trust GW with any more dots?

OK, NSA, my post is coming right NOW.............................................

Posted by: lou on December 19, 2005 at 2:40 PM | PERMALINK

Machiavelli wrote plenty about this type of President. The oligarchy will continue to rule in our poor nation while the disparity between the haves and havenots grows. Look at New Orleans not Baghdad. Our people are fighting the enemy - poverty. Despair is taking root in Baghdad and New Orleans. The issue is being addressed in Baghdad.

Posted by: dillyberto on December 19, 2005 at 2:40 PM | PERMALINK

OTOH, what I've never understood about that commercial (especially compared to other military recruitment commercials) is how it is supposed to be an enticement.

Every US Army unit that I've ever been a part of planned and organized itself exactly the way it is depicted in the commercial. Planned to be out a certain time, everything went to hell, ran out of everything, had to drink water unfit for human consumption, everybody sick, portapotties overflowing, Battalion Commander running around trying to find her weapon, exercise halted due to lack of communications, NCOs evacuated from the field because of dehydration because they brought out alcohol in their canteens, vehicles...don't even get me started on vehicles being out of diesel when a SSG asserted to the NCOIC that the vehicle had a full tank...

Yes, that's the US Army. The commercial depicts reality perfectly.

Posted by: Pale Rider on December 19, 2005 at 2:41 PM | PERMALINK

There is always, of course, the motive of personal enrichment. Didn't it start at about the time Enron got in trouble? And now a lot of really well-hooked up people are in trouble at once. Delay, Abramoff, Brent Wilkes, Scooter --all of these people are associated with hundreds of other well-hooked up people. Surely some of them are involved with this program.

Posted by: cld on December 19, 2005 at 2:42 PM | PERMALINK

PR,

I never meant to challenge the idea that commercial depicts reality. My own, very brief, association with the US Army led me to the conclusion that it did.

I just said I didn't understand how it was supposed to be an enticement. You don't usually advertise a product by playing up how screwed up it is.

Posted by: cmdicely on December 19, 2005 at 2:44 PM | PERMALINK

OTOH, what I've never understood about that commercial (especially compared to other military recruitment commercials) is how it is supposed to be an enticement.

Some explorer a long time ago put out an ad out that was along the lines of "low pay, hard work, risk of painful death, chance of glory". He had a line of folks waiting to apply. There's a whole group of folks who want to be challenged in life, to do the hard things. They play off that.

Posted by: Red State Mike on December 19, 2005 at 2:46 PM | PERMALINK

Violet on December 19, 2005 at 2:23 PM:

Two separate cogs in the same wheel of civil-liberty-destruction.

And that is how they are related. Each of these separate incidents are indicative of low regard the Bush administration has for civil liberties and the lengths they will go to to counter political opposition. Remember that the original impetus for the passage of FISA was evidence of intelligence-gathering on domestic Vietnam War protestors and civil rights activists...

Posted by: grape_crush on December 19, 2005 at 2:47 PM | PERMALINK

cmdicely,

I never meant to challenge the idea that commercial depicts reality.

I understood that. I wasn't aiming my snark at you. I was taking a brief trip down memory lane, trying to remember every disasterous deployment that I was a part of. I remember when one of our vehicles, one with an automatic transmission, was nevertheless permanently stuck in 2nd gear and could only go 25 mph on a highway where we needed it to go 55 mph. It made a horrific sound...had to be towed all the way back.

My own, very brief, association with the US Army led me to the conclusion that it did.

Now THAT's interesting. When/why/without revealing too much did you serve? Was it briefly? There is no shame in that. Many very good people don't make it past certain parts of the training process for a variety of good reasons. The Army uses no logic in kicking people out.

RSM,

What? No reference to SERE school?

Posted by: Pale Rider on December 19, 2005 at 2:51 PM | PERMALINK

I remember in flight school one of our small group had to declare an emergency while on his first solo, and end his flight early. He came back and landed with crash trucks chasing after him, and jumped out as soon as he stopped. Fuel leak.

Sitting around later, he was telling us about it. The rest of us were offering condolences on his near-death experience while he offered back his "weren't nuthin", and we were all secretly jealous as hell that he'd had a real life emergency, until one guy just comes out and says, "cool".

I imagine being stuck in the field scoping bad guys for a few extra days would be similar.

As for SERE school...nice place to have in your rear view mirror.

Posted by: Red State Mike on December 19, 2005 at 2:54 PM | PERMALINK

Everyone who is a US citizen needs to submit FOIA requests to the NSA and, perhaps, the FBI to determine if you are a victim of illegal spying. If so, a large class action lawsuit can be brought against Bush and the NSA (and FBI) as per FISA.

Posted by: Praedor Atrebates on December 19, 2005 at 2:58 PM | PERMALINK

It's clear from Gonzales press conference this morning that they have two principle justifications for what they've done:

(i) that the 9/14/01 resolution gives them the statutory authorization, "Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence [as required by FISA]."; and

(ii) even if the 9/14/01 resolution doesn't cover them, "I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity."

The whole press conference is pretty damn scary.

Posted by: Ugh on December 19, 2005 at 3:00 PM | PERMALINK
Now THAT's interesting. When/why/without revealing too much did you serve? Was it briefly?

I didn't serve -- I participated in ROTC "Camp Challenge" in 1998, but elected not to contract with ROTC when I returned to UC Davis. OTOH, seeing how "well-organized and efficient" the military could be in conditions far more controlled than combat could be was, well, an interesting experience.

Posted by: cmdicely on December 19, 2005 at 3:03 PM | PERMALINK

RSM,

It would certainly be best to go through life without having to declare an emergency, but its nice to know you can depend on people when you do.

The bad thing about the Army was always that you saw the best people leaving any which way they could. Everyone who was worth a damn always seemed to be getting out and then you'd have to stand there for the re-enlistment ceremony of the asshole who deliberately fucked things up for everyone or couldn't do his job.

Not all officers were bad. I'm glad to have Korea in my rear view mirror. I never want to go back there.

Posted by: Pale Rider on December 19, 2005 at 3:04 PM | PERMALINK

NSA is sweeping the communicatiopns channels, "detecting" use of forbidden words.

This is why I recommend signature blocks that contain certain "key words" just to fuck with them: weaponized anthrax, washington mall, bubonic plague, jihad, sarin, water supply, nuclear device, detonate, maximize casualties, etc. Make some up and mix-match. Make them look at ALL emails.

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

The Echelon Project is probably able to suck in every phone call made on Earth.

The sheer mass of it puts it beyond practical review, so a separate project would be required to data-mine it. What company would be hopping to volunteer to help do it? A certain Halliburton, perhaps? Or some other Republican company. This might be a very Texas thing.

Posted by: cld on December 19, 2005 at 3:07 PM | PERMALINK

I participated in ROTC "Camp Challenge" in 1998, but elected not to contract with ROTC when I returned to UC Davis.

Well, that's cool. You had a look at it and decided it wasn't for you. I had more than enough college to consider going officer but I stuck with being enlisted because you could actually do the job. In fact, that was the incentive to stay in the lower ranks because the higher up you went, the less chance of doing the job you would have.

RSM can certainly attest to that. I'm sure he gets less flight time now than when he was an 0-2, 0-3.

Posted by: Pale Rider on December 19, 2005 at 3:09 PM | PERMALINK

As some of you seem to know about this, are we really sending people out to hide under a bush and observe guys for DAYS? Hours, I could understand, perhaps a day if it was really interesting.

But the thing I cannot get over is the ridiculous mismatch. The guys in the turbans have literally no technology, obvioulsy excluding whatever weopons they have. The U.S., with the most technologically advanced Army in the world responds to this by having guys hide under a bush for, I repeat 12 DAYS?

It boggles the mind.

Posted by: hank on December 19, 2005 at 3:09 PM | PERMALINK

Sorry if this has been said above...

In 2002 two administration requests for surveillance were partially rejected by the FISA court (according the report you link to over at TPM). In 2002 the administration decided that it should just bypass the FISA court. Where is the mystery?

Posted by: Steve S. on December 19, 2005 at 3:15 PM | PERMALINK

In the mid-1990s I did discovery work for the San Francisco Public Defenders Office, which consisted of listening to hundreds of hours of federal surveillance tapes of suspected drug dealers. The indictment of several suspects was known as "the North Beach case" because it centered around restaurants in that old Italian neighborhood in SF.

My job was to listen to the tapes of phone conversations and make sure the feds were adhering to the "minimization" guidelines, which require surveillance agents to cut off the wiretap after a certain amount of time if the conversation doesn't concern the specific crimes being investigated under the auspices of the bench warrant. There was no set time at which the agents' would have to cut off the tap, but the idea was that if the feds listened in on a 30-minute phone conversation about somebody's prostate treatment, they had better only have taped roughly 15 minutes of it.

What happened in reality, though, was that the feds would devise long lists of "code words" they claimed the suspects used to discuss drugs, to justify not cutting off the wiretap. And in fact, there *were* code words used by some suspects (my favorites were "Jimi Hendrix posters" for acid, "Bob Marley posters" for weed and "Eric Clapton posters" for cocaine).

And, according to the lead public defender on the case, no one had ever successfully challenged a federal wire tap in a drug case on the basis of non-adherence to the minimization guidelines. Which meant we, the paralegals logging the tapes, were very much on a wild goose chase (but one that needed to be conducted nevertheless).

My only point in telling this story is to show that when it comes to electronic surveillance, the deck is stacked hugely in the feds' favor. Even when they use questionable surveillance practices, they are generally able to go back and retroactively justify why they did so.

I'm not sure how guidelines differ between drug investigations and terroism investigations, but I'd bet they're pretty similar. And if the Bush administration couldn't even be bothered to make the minimal show of playing by the rules required in wiretap investigations (getting a bench warrant ... which they could have actually done *retroactively*), when it is really quite easy to get around those rules while paying lip-service to them, then I have to conclude there is something very, very fishy going on here.

Posted by: Demogenes Aristophanes on December 19, 2005 at 3:17 PM | PERMALINK

What was the point? The point was to make it clear, contrary to the fuzzy thinking liberal aphorism, that this country is a nation of men, not of laws.

Posted by: urspond on December 19, 2005 at 3:21 PM | PERMALINK

Simple answer is two parts:

1. The primary difference between FISA and violating US law is that the latter doesn't leave an official paper trail. Very convenient when composing an "enemies list" or conducting the groundwork campaign for political extortion.

2. The secondary difference between FISA and violating US law is that the latter asserts the legitimacy of the longstanding neocon fantasy of unchecked (btw, you see how flustered Bush got when a reporter used that word this morning?) executive power. It establishes precedent without necessarily requiring review or potential objection. Now that objection has been raised, we need to ensure that the proper conclusion is met (that this is illegal, wrong, and exactly what we fought against that other George for two hundred some years ago) else the precedent being set is wholly legitimate. In short, throw enough crap against the wall and eventually some of it will stick.

IMHO, the second is the true reason. This is long-game tactics. In fact, I wouldn't be surprised that soon the entire list of people investigated because of this came out and every last one of them was legit. "See? Nothing to fear here! This is a benificent king you have elected!"

Posted by: Jet Tredmont on December 19, 2005 at 3:22 PM | PERMALINK

My suspicion is that there are two reasons for keeping the wiretaps secret even from FISA.

First, they were spying on people that even FISA would not accept. I am willing to bet $5 that the classified intelligence documents that John Bolton concealed during his confirmation hearings were on Colin Powell and other internal government targets of Bolton and the Neocons, and they he got the reports through the Vice President's office. FISA would not have approved of those wiretaps.

Second, FISA is still part of the Judicial Branch. Cheney took office vowing to regain the power that the Presidency had lost after Nixon. Part of that is the theory that as Commander-in-Chief, no other branch of government can place any limitations on the President. This was a clear application of that theory, and may be an effort to set a precedent that in his role as CiC, no other branch including the Judiciary can limit his powers.

Godwin's Law is dead. These guys really are Nazis, and Cheney is their chief. I'll bet that dream at night that Bush were able to give speeches as well as Hitler did.

Posted by: Rick B on December 19, 2005 at 3:27 PM | PERMALINK

"portapotties overflowing"

Okay, that's it! The hardship is just too much! How would that ever be an inducement to enlist?

I mean, damn. Screw the worthless flak vests! I want clean portapotties...damn it!

Posted by: Sky-Ho on December 19, 2005 at 3:30 PM | PERMALINK

Isn't it obvious? Avoiding any independent oversight . . . EVER, i.e., even after the fact . . . of what they're doing. But, gee, why would that be so important you'd issue an illegal Presidential order to accomplish it?

I think Larry Johnson may be onto something:

Spying on Americans and John Bolton
By Larry Johnson | bio
From: Politics
The revelation that the National Security Agency was allowed to conduct non-FISA intercepts of American citizens should bring last summer's hearing on John Bolton's nomination to the United Nations back into focus. As Legal times noted in September of this year, "During the confirmation hearings of John Bolton as the U.S. representative to the United Nations, it came to light that the NSA had freely revealed intercepted conversations of U.S. citizens to Bolton while he served at the State Department. . . . More generally, Newsweek reports that from January 2004 to May 2005, the NSA supplied intercepts and names of 10,000 U.S. citizens to policy-makers at many departments, other U.S. intelligence services, and law enforcement agencies."

We still don't know who he was looking at and what information was contained in those intercepts. More importantly, were they legally obtained? In light of the latest revelation, we have another possible explanation why the Bush Administration fought so strenuously to keep those intercepts secret and out of the hearing. Snooping without judicial review is wrong and must be punished.

Dec 16, 2005 -- 02:26:20 PM EST

Posted by: gary1 on December 19, 2005 at 3:32 PM | PERMALINK

WASHINGTON (Reuters) - President George W. Bush vowed on Monday to authorize more eavesdropping on Americans suspected of ties to terrorists and said he believed a probe was underway into who committed "the shameful act" of revealing the covert program......

Whether or not Bush was justified in the days after 9/11 due to a potential immediate threat to use searches that violated FISA and 4th amendment is one thing. Now that questions have been raised about its legality and immediate need however, his blantant "f... y.. I'm going to keep doing whatever I want" needs to be called. Go to court, or start impeachment hearings, or whatever, but get this guy to understand there are limits.

Posted by: patrick on December 19, 2005 at 3:32 PM | PERMALINK

"It's illegal because it's against the law, not because people at the Hill didn't know."

Absolutely, and the red herring is that if some members of Congress - especially, Democrats! - knew about this crime, then we should be spending even a minute of time looking into that before the original criminals are investigated.

As if we'd want the police to spend resources going after someone who failed to report a murder before the actual murderer was arrested.

The *only* relevant thing about some members of Congress having known about this illegal electronic surveillance is the extent to which we can tap them for information about the original criminals in the administration.

If and when those criminals are apprehended, we can turn our attention to the accessories.

Posted by: Demogenes Aristophanes on December 19, 2005 at 3:33 PM | PERMALINK

IMHO, the second is the true reason. This is long-game tactics. In fact, I wouldn't be surprised that soon the entire list of people investigated because of this came out and every last one of them was legit. "See? Nothing to fear here! This is a benificent king you have elected!"

Except that they cannot be "legit". Any surveillance of US citizens requires a warrant via FISA. They specifically ignored the FISA requirements. Intentionally. That makes ANY spying on US citizens illegal. They cannot magically be made into legit taps simply because they show, far after the fact, that the list of the violated includes people with "terrorist contacts". THAT is irrelevant. Don't take your eye off the ball. Nothing they do NOW can make illegitimate and illegal spying/taps legal. That can ONLY be done via a properly acquired warrant within 72 hours of beginning a tap.

Posted by: Praedor Atrebates on December 19, 2005 at 3:35 PM | PERMALINK

It seems clear that the administration wanted to spy on people that it believed the secret court would not allow them.

Since the success of getting this secret court to agree to wiretaps was effectively 100%, this must mean that they wanted to target individuals and organizations who were not obviously or even plausibly terrorists.

Draw your own conclusions.

Posted by: Jimm on December 19, 2005 at 3:36 PM | PERMALINK

NSA "sweeps" of internet traffic are absurd ... Doesn't mean they wouldn't do it, but it is absurd to expect that by listening to routine internet traffic and watching for keywords you'd likely catch anyone at anything.

I mean, do they also filter on the equivalent words in l33t sp3@k, igpay atinlay, *and* /|SC1 /|RT? I mean, if I were a terraist, I think I'd pick up one of those programs that makes the "human-readable-only" word-inside-squiggly-lines graphics for web site comment postings and use that to send my messages back and forth, at the very least. And maybe even make that in code, like "kettle" for "bomb" and "tissue paper" for "radioactive ashe" and "shrimp on the barbie" for "burning human flesh" or something. And all times off by 37 minutes.

So, it'd be, like "A 3ttlekay of 1ssuetay @perpay will @kemay 1mpshray on teh @rb13bay at 12:37, shrp!!1! Aisepray Allahay!!1!!!1!" And all in light green text with squiggly waves flowing through it ...

Dude, no NSA filter would get that!


[post permanently archived as NSA Exhibit 12856.49058]

Posted by: Jet Tredmont on December 19, 2005 at 3:48 PM | PERMALINK
Well, if the democrats didn't speak up, it is probably a characterological weakness--they have been trained to be helpless, powerless weaklings.
Baldric,

The other reason is that if Nancy Pelosi had "spoken up" that would give the admininstration freedom to eliminate all Democrats from any information that might be useful.

It's roughly like when Churchill learned by secret intercepts of coded German radio messages that the German Air Force was going to bomb Coventry, and had to let them do it because to warn the people of Coventry would have blown the Allied ability to decode the German signals.

Sometimes you can't immediately reveal or use information obtained from the enemy because it would close that channel down when it might be need for something more important later.

Posted by: Rick B on December 19, 2005 at 3:51 PM | PERMALINK

Every legal document between the Magna Carta and the U.S. Constitution that purports to give the government people rights that are protected from the government has been violated by this administration.

Either the Bush adnimistration and the Republican Party has to be removed from government, or this recent experiment we once called democracy is over. We might as well burn those legal documents and prohibit all mention of them ever again if the Republicans get their way. The future politics of the U.S. will consist of conflicts between the secular tyrants and the theocrats.

Posted by: Rick B on December 19, 2005 at 4:00 PM | PERMALINK

clearly the audaciousness of a judicial court turning down a request from the court of King George the Lessor is reason enough to chuck the strictures of that quaint document: the constitution.

Posted by: zoot on December 19, 2005 at 4:14 PM | PERMALINK

You people sure have been having a lot of fun with all this. The great thing about politically exploiting security leaks is that you know damn well the intelligence agencies aren't going to be able to tell all of their side of the story in an open forum.

I suggest checking out what those in the Democratic Party who actually expect to compete in elections over the next few years are doing and saying. My personal favorite canary in that coal mine is Hillary Clinton.

Unlike Harry Reid, I don't think she's going to be standing in front of a bunch of Democrats bragging that "we killed the Patriot Act." Look for that little sound bite to come back and haunt the Democrats.

Nancy Pelosi? She can say whatever she wants. She represents the city of San Francisco, and couldn't lose to a Republican if she was filmed live eating a bucket of Kentucky Fried Baby.

Posted by: tbrosz on December 19, 2005 at 4:15 PM | PERMALINK

From Bloomberg: US President George W. Bush said he has the constitutional authority to approve eavesdropping on American citizens and foreign nationals in the US to protect Americans from the threat of terrorism.

So Bush says he has to go around the FISA in order to protect US citizens so he send out Rice to make the same old argument again - the old "how could anyone imagine that jihad terrorist would slam a plane into a building" BS.

Rice was sent out to stop another investigation, just like she tried to stop the 9/11 investigation. Bush wasn't investigating terrorist "related activities", nope, Bush was investigating people that opposed his many crooked, cooked-up policies.

Would nice to see Dick Cheney, Condi Rice, Rumsfeld, Gonzales, Ashcroft and George Bush do some federal pen time on these creative, made-up "constitutional authority" they gave themselves.

Posted by: Cheryl on December 19, 2005 at 4:19 PM | PERMALINK
[From Preador Atrebates] Everyone who is a US citizen needs to submit FOIA requests to the NSA and, perhaps, the FBI to determine if you are a victim of illegal spying. If so, a large class action lawsuit can be brought against Bush and the NSA (and FBI) as per FISA.
I did that a few years ago out of curriosity. Got a reply from the FBI that they had no file on me. [Didn't they do my Top Secret clearance?] and later, a letter from the CIA asking me to tell them why they might have a file on me. These are the two responses you will get.

I damned sure wasn't going to tell the governmet why they should have a file on me, even - or especially - if I thought there was any reason.

Posted by: Rick B on December 19, 2005 at 4:23 PM | PERMALINK

One thing I like about this blog is that often the correct question is asked.

"Since there was no apparent reason to bypass the law, there must be an unapparent one. But what?"

Kevin! That's right question!

Another thing I like is that sometimes my fellow commenters seem to apply the same logic as me.

The obvious answer this time: the Bush Administration knew that it wanted to conduct at least some surveillance that the court, and many Americans, would not approve of. Why take chances? Just create a mechanism that has absolutely no accountability.

After all, only only wimps allow the letter and the spirit of the law get in the way, right?

Posted by: little ole jim from red country on December 19, 2005 at 4:25 PM | PERMALINK
Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.

According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters.

Sorry Tom, it was the very intelligence officials themselves who had reservations about Bush's use of this program and talked with the NYT exactly so they could tell their side of the story, notwithstanding your attempt to frame what happened in precisely the opposite way.

Secondly: red herring, red herring, red herring on the political issue. We're having a discussion on what the law provides for in intelligence gathering and how civil liberties of all Americans may have been transgressed.

Please discontinue attempts to troll the thread by talking about what will or won't happen to Democrats in the future in your malign opinion, which is irrelevant.

Posted by: Windhorse on December 19, 2005 at 4:27 PM | PERMALINK

it is obvoius that al-Qaeda was penetrated the Justice Department so they cannot tell anyone there

Hmmm . . . an al-Qaeda mole who has penetrated the highest reaches of the federal government?
Now there's an interesting theory . . .

Posted by: Brautigan on December 19, 2005 at 4:29 PM | PERMALINK
[From Preador Atrebates This is why I recommend signature blocks that contain certain "key words" just to fuck with them: weaponized anthrax, washington mall, bubonic plague, jihad, sarin, water supply, nuclear device, detonate, maximize casualties, etc. Make some up and mix-match. Make them look at ALL emails.
Oh good going. Now you have brought them right here to this thread. Didn't you know that you'd be followed? They'll think they hit a goldmine!

[/snark]

Posted by: Rick B on December 19, 2005 at 4:30 PM | PERMALINK

Unlike Harry Reid, I don't think she's going to be standing in front of a bunch of Democrats bragging that "we killed the Patriot Act." Look for that little sound bite to come back and haunt the Democrats.

tbrosz, you are no libertarian, or limited state guy. it's not your speculation about political advantage that gives you away, since it may be right on, but your tone when referring to the patriot act. you are always so triumphant at GOP success, but never seem to give a whit about things that should trouble you, and that trouble all authentic classical liberals.

Posted by: Jimm on December 19, 2005 at 4:41 PM | PERMALINK

Anybody else annoyed as all hell by the way most news outlets are spinning the furor over this?

CNN: "Both Democrats and Republicans have questioned the legality of the program."

Questioned? It clearly contravenes the law. You ned a warrant, and Bush has bragged about not getting warrants. Black and white.

But my favorite comes from the LA Times: "Critics, including some experts in Congress, have said that current law, which demands approval by a special national security court, should have been followed."

It's become a matter of debate whether the President should follow the law. Fucking beautiful.

Posted by: Viserys on December 19, 2005 at 4:42 PM | PERMALINK

The state never has a right to indefinitely postpone habeas corpus, due process, or allow warrantless search, in my own and classical liberal opinion, as this is the very basis of our theory of limited government. Since the people are the basis of power and the state, none of our members can be indefinitely held by the state without permission of the people, and without due process. And, in the case of habeas corpus, this is not and should never be just an indirect permission by way of election to stand as a representative.

If you believe in the benevolence of the state, and power, which in the end always comes back to some people, one way or the other, in a bad or good state, in an oppressive or free state, in a dictatorship or democracy, then so be it. But I do not share that belief, and neither did the Founders, and we seek for this basis of power and the state to be founded upon the widest swath of people, not the narrowest. In the Declaration of Independence, this wide swath includes all God's children, but for the moment we can limit our concern, in this debate, to all American citizens, if you prefer.

Posted by: Jimm on December 19, 2005 at 4:45 PM | PERMALINK

You people sure have been having a lot of fun with all this..

Yeah, it's a ton of fun watching our democracy go down the drain.

Posted by: ckelly on December 19, 2005 at 4:51 PM | PERMALINK

Since the FISA court would grant a warrant if there was any evidence at all (however tenuous) to terrorism or some other wrongdoing, it seems likely that they wanted to tap the phones and e-mails of people on whom they had no evidence whatever.

Posted by: xtalguy on December 19, 2005 at 4:59 PM | PERMALINK

The funny thing about all of this is that there are probably thousands of hours of tapes sitting on a shelf somewhere un-translated.

Yeah. Arabic tapes. From terrorism targets. Enemies of the state.

But the tapes of journalists covering the Kerry campaign?
The wiretaps to see who in the real world Powell had the temerity to talk to?
Traffic across Cindy Sheehan's cellphone?

Not enemies of the State -- the State is just an ATM machine for these bastards.

Enemies of the regime.

Raws hand-delivered by courier within the hour. Or even real time over an encrypted link.

Straight to the Undisclosed Location with the political stuff. George gets the soft core porn and personal stuff.

You know it.

Let's party like it's 1972!

Posted by: Davis X. Machina on December 19, 2005 at 5:00 PM | PERMALINK

George Bush does not serve the institutions of the United States nor does he serve their traditions in as much as they are promulgated and constructed by inept liberal civil servants, bureaucrats and infighting politicians. Instead he is serving an abstract notion- of America or the Homeland or the People (or himself). His judgment, we are told, trumps any of the institutions and now laws that would bind him no matter how fundamental to the Anglo-American tradition. Limited power of the executive IS the Anglo-American tradition. Invocation of emergency powers to extend the power of the executive- until he deems them unnecessary- is the very stuff of dictatorship. It is the legal means turned illegal that brought Hitlers radical conservative movement into power and finally collapsed German democracy into a one-party state.

Over and over Bush and his ministers have shown a willingness to remove every aspect of this war from the jurisdiction of civil institutions from the CIA to the courts. They even set up prisons beyond the reach of the American legal system as if they were running a private war.

We are seeing the manifestation of a nationalist movement and their worldview, as I wrote a few days ago, is as follows:


1. Republican Party doctrine = American values

2. There are no universal human values beyond the values recognized and sanctioned by the Party. If there were than there could a moral human position AGAINST the Party and that is illogical since the Party embodies morality.

3. related to this is the belief that the group represented by the Party- the True Americans- are beyond good and evil. Whatever is done in the name of the True Americans and for the Nation is justified. Atrocities committed by Saddam Hussein are evil but atrocities committed by the United States cannot be evil. This is logical because the Party represents the moral order. America does not torture. Amnesty International, international courts, the Red Cross, the United Nations- these are all irrelevant and obstructionist because they are predicated on the belief that there are universal values outside of the Party and beyond the Nation.

4. Patriots are selfless men and women who are not interested in their own prestige but the prestige of the Party and the True American nation. Europeans and Canadians are failures. They are irrelevant. The Power of the Party and the true American Nation do not need to value their opinions. Only the powerful matter.

5. The Party is always winning. The leaders are always correct. Loss is the failure of those outside the Party- usually the traitors within the borders of the state or within the Party. The ideology of the Party is always aware of the undying power of the enemy although the enemy, by definition, is always too weak. This contradiction cannot be resolved.

6. All of history is the relation of power units. All life is a struggle. Detente and pacifism are trafficking with the enemy. Nothing for the Nation is illegal since all law is based on power relationships.

7. All truth is in accordance with the Party. Facts are irrelevant. Whatever the progress of the war in Iraq, whatever the course of history, whatever the motivations of the actors- all flows into the narrative of the Party and the success of the True Nation.

8. From the viewpoint of an organization which functions according to the principle that whoever is not included is excluded, whoever is not with me is against me, the world at large loses all the nuances, differentiations, and pluralistic aspects which had in any event become confusing and unbearable to the masses which had lost their place and their orientation in it. Hannah Arendt Origins of Totalitarianism 1958


Posted by: bellumregio on December 19, 2005 at 5:22 PM | PERMALINK

Screw the worthless flak vests! I want clean portapotties...damn it!

If you knew anything about proper field sanitation, overflowing portapotties are more of a threat to your general health and well-being than a faulty flak vest.

Unless you like having permanent screaming diarrea for several weeks.

Seriously though, we were always lucky to at least have portapotties. The alternative is far worse.

Posted by: Pale Rider on December 19, 2005 at 5:35 PM | PERMALINK

permanent screaming diarrea...

Hey, sounds like this blog.

I crack myself up. Heh.

Posted by: Red State Mike on December 19, 2005 at 5:40 PM | PERMALINK

Please discontinue attempts to troll the thread by talking about what will or won't happen to Democrats in the future in your malign opinion, which is irrelevant.

Well, it's irrelevant to you, but it sure as hell isn't irrelevant to your representatives in Washington. And there's the problem for real and consistent liberals, isn't it?

Do you honestly think the Democratic politicians are pursuing this line of attack solely because of high ideals about privacy and civil rights?

Remember "connecting the dots," when the line of attack was the inability of our security system to collect and integrate data from a wide variety of sources and an even wider range of legal protocols?

This isn't about principle. It's about political power. I would further venture a guess that a lot of the people here wouldn't give a rat's ass about this if they didn't think there was some way to nail Bush with it.

Posted by: tbrosz on December 19, 2005 at 5:41 PM | PERMALINK

Hmmmm... eavesdropping on a J. Kerry from Mass., and a H. Dean from Vermont....

Posted by: johnny6644 on December 19, 2005 at 5:42 PM | PERMALINK

Your tax dollars at work, by the way.

When do we end the insane don't ask/don't tell policy and let people serve?

309th MI BN is a training unit. Ft Huachuca is where most of the Army's MI people are trained.

--------------
Gay soldier leaving Army after assault at Fort Huachuca
By Carol Ann Alaimo
ARIZONA DAILY STAR
Tucson, Arizona | Published: 12.18.2005
advertisement SIERRA VISTA Fear is keeping Pvt. Kyle Lawson awake at night not of the enemy, but of his fellow soldiers.
For weeks, the 19-year-old Tucson native has been sleeping on a cot in his drill sergeant's office to protect him from further attacks because he is gay.

He's already had his nose broken and says he also was threatened with a knife after a friend let Lawson's secret slip at a party attended by members of the 309th Military Intelligence Battalion, a training unit at Fort Huachuca 75 miles southeast of Tucson.
Lawson now feels he has no choice but to leave the military and has requested a discharge. He was training to be an Army interrogator, a high-demand job in the age of terrorism.

"I can't keep living a lie. It's not safe for me here," said Lawson, who is described by friends and family as smart, moral and hardworking qualities the Army says it values in soldiers.

Posted by: Pale Rider on December 19, 2005 at 5:44 PM | PERMALINK

tbrosz' latest post puts the last nail on the coffin of any lingering suspicions that he understands what democracy is.

Posted by: lib on December 19, 2005 at 5:46 PM | PERMALINK

Do you honestly think the Democratic politicians are pursuing this line of attack solely because of high ideals about privacy and civil rights?

Civil rights? I thought they were given to the American people, courtesy of the Democratic Party and no fucking thanks to the Republican Party.

Posted by: Pale Rider on December 19, 2005 at 5:47 PM | PERMALINK

I would further venture a guess that a lot of the people here wouldn't give a rat's ass about this if they didn't think there was some way to nail Bush with it.

Look, if you want to have a substantive debate on issues, we can do that. But presenting your speculations about what your opponents would do in counterfactual circumstances as if they were somehow meaningful arguments, isn't going to achieve anything. Even your belief is taken as true, all it does is demonstrate how you think about those who disagree with you, not anything about the issue being discussed.

If all you've got is ad hominem based not even in fact but instead on your own speculation, well, you don't really have anything, do you?

Posted by: cmdicely on December 19, 2005 at 5:58 PM | PERMALINK

Remember "connecting the dots," when the line of attack was the inability of our security system to collect and integrate data from a wide variety of sources and an even wider range of legal protocols?

No. But I remember My Pet Goat. There seemed to be some other noisy thing going on, like a plane crash somewhere. But by gum, I stood there and read to those kids, cuz kids is important.

Posted by: W Bush on December 19, 2005 at 6:01 PM | PERMALINK

Seems he might have been wiretapping someone who was also in a position to monitor FISA requests - i.e. someone in government. Bush is wiretapping someone else in the government.

Posted by: Peter Waksman on December 19, 2005 at 6:11 PM | PERMALINK

Kevin, isn't it obvious? You, yourself, wrote earlier that to be considered for a FISA warrant, the suspect must only be considered (for probable cause) to be an agent of a foregn power. FISA cannot issue warrants on domestic survelance of those that these bastards consider a threat simply because they disagree with the dominant ideology of this WH. That means that if they want to spy on those who have nothing to do with terrorism (like opposition political candidates), they can't take it to FISA. Don't you know that John Kerry was their Terrorist #1 until the November elections? Hell! They are monitoring this post right now! ;-)

Posted by: buck turgidson on December 19, 2005 at 6:13 PM | PERMALINK

Do you honestly think the Democratic politicians are pursuing this line of attack solely because of high ideals about privacy and civil rights?

I don't know if they are or are not, but I think that if we check George Bush's wiretapping logs, we can probably gain some insight on what Democratic politicians say in private, rather than relying on your specious speculative bullshit.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 6:14 PM | PERMALINK

I would further venture a guess that a lot of the people here wouldn't give a rat's ass about this if they didn't think there was some way to nail Bush with it.

Warrantless searches? Unlimited executive power? When Congress has not even declared war?

tbrosz, as a person who claims to be a classical liberal, or libertarian, listen to yourself.

You've become addicted to the debate, to being the adversary, in the pathetic halls of partisanism, and sacrificed the values you claim to stand for. These values show no evidence of appearing in any of your posts, which all seem related to immediate relative political power considerations.

Posted by: Jimm on December 19, 2005 at 6:25 PM | PERMALINK

Stand up for yourself, and our liberties and limited state.

A few airplanes crashing into building shouldn't demand the sacrifice of this.

Posted by: Jimm on December 19, 2005 at 6:27 PM | PERMALINK

As for being in a celebratory and happy mood on the joyous occasion of our 43rd president deciding that he is above the law, no, I'm not having a great time with this.

One of the main reasons is, I had all of this FISA and USSID 18 stuff in various classes throughout the years. We had to sit through videotapes and sign documents and acknowledge that we would not collect on US persons. Hello, I'll repeat it for the newbies: The Pale Rider held MOS 98C in the US Army, and that's Signals Intel Analyst. Not a big deal, never been hooah hooah, but I have seen military vehicles break down and people taken away in am-blances when they got sick in the field.

Kinda all went out the window last Saturday morning. That was the day that I realized, once and for all, that I'm actually smarter than the President of the United States of America.

See, if dumb old me knows that you can't collect on US Persons without a warrant, and if the 43rd President of the United States doesn't know it, we need to move on and get number 44 in there, and I don't give two shits what political party he belongs to.

Just so long as he's smarter than dumb old me.

Posted by: Pale Rider on December 19, 2005 at 6:28 PM | PERMALINK

The 4th amendment is pretty clear about whether you need a warrant or not. It's written a hell of a lot more clearly than the 2nd amendment.

Posted by: WhoSays on December 19, 2005 at 6:34 PM | PERMALINK

tbrosz-

You know, it's ok to be wrong. It is not an indictment of your character or your intelligence to have bet on the wrong horse (in this case Bush).

This illegal spying on Americans that bubble boy has been up to is indefensible and you shouldn't feel compelled to defend it just because you mistakenly put your faith in him before.

As much as it might be your desire to do so-this isn't about Harry Reid or Hilary or Pelosi or George McGovern or Harriet Tubman or Drew Barrymore or whomever it is you would rather we talk about so that we weren't talking about bubble boy.

The fact is that Bush thinks that your Bill of Rights is a nuisance and an annoyance and no matter how much kool-aid you drink your civil liberties are still more important than your ideology. Don't embarrass yourself trying to defend these guys any longer. They have betrayed the ideals they claimed to believe in. Barry Goldwater is turning over in his grave.

Posted by: Rangler on December 19, 2005 at 6:45 PM | PERMALINK

lib:

tbrosz' latest post puts the last nail on the coffin of any lingering suspicions that he understands what democracy is.

There's a lot of that going around:

"We've become like the House of Commons. Whoever has the most votes wins. It hasn't worked that way in 216 years." -- Harry Reid

Pale Rider:

Civil rights? I thought they were given to the American people, courtesy of the Democratic Party and no fucking thanks to the Republican Party.

You might want to go back and recheck the history of civil rights legislation.

cmdicely:

If all you've got is ad hominem based not even in fact but instead on your own speculation, well, you don't really have anything, do you?

Oh? If this comment board filtered for ad hominems, there'd be about five posts left on each one.

Same for if there was a filter to eliminate wild speculations about this issue instead of known facts.

Posted by: tbrosz on December 19, 2005 at 6:46 PM | PERMALINK

I'm wondering if anyone has sent Bush a picture of Tbrosz in his Darth Vader outfit? I'm sure George would like to see the 'regular' people that are defending his illegal actions.

Posted by: WhoSays on December 19, 2005 at 6:47 PM | PERMALINK

Do you honestly think the Democratic politicians are pursuing this line of attack solely because of high ideals about privacy and civil rights?

And you think that Democrats never act from ideals, only politics? That they're sorta like regular humans, only morally defective and inferior?

If anyone has been revealed as nothing but a pure partisan hack,it's you.

Posted by: Windhorse on December 19, 2005 at 6:48 PM | PERMALINK

Tbrosz, you know damn well you don't want the facts. I'll be surprised if we get any facts from this congress or admin. Repubs control the government and they will decide what 'facts' concerning this issue are released.

Posted by: WhoSays on December 19, 2005 at 6:50 PM | PERMALINK

Rangler:

Short of a bunch of backroom lawyers on blogs, as far as I can see, nobody has shown any hard proof that anything illegal has been done at all. And I hate to point this out, but five hundred Democrats screaming "illegal!" at the top of their lungs isn't evidence in a court.

I'd welcome an investigation, including Congressmen under oath explaining what they think they knew or didn't know.

Posted by: tbrosz on December 19, 2005 at 6:51 PM | PERMALINK

The 4th amendment is pretty clear about whether you need a warrant or not. It's written a hell of a lot more clearly than the 2nd amendment.

If it was only so simple.
Usama vs. Somebody, 2000. Not so simple.

Analysis of current situation by law Prof (his initial thought, not unconstitutional, but illegal by FISA).
http://volokh.com/posts/1135029722.shtml

Posted by: Red State Mike on December 19, 2005 at 6:53 PM | PERMALINK

Just occurred to me --Our Great Leader keeps insisting that the Congressional resolution authorizing him to use military force is what gives him the authority to tap phones without a warrant --in other words, it's a military program.

It doesn't involve people from the Justice department, the fbi, the Secret Service, the CIA or the NSA.

Which I suppose is why he's on tv right now carping on about how desperately the Patriot Act is needed; though, knowing Republicans, that's likely to be just a smoke screen to mask that they really do think accountability is beneath them.

Posted by: cld on December 19, 2005 at 6:53 PM | PERMALINK

I'd welcome an investigation, including Congressmen under oath explaining what they think they knew or didn't know.

Then I can spin the results of the investigation to show how great a job W is doing protecting us.

Posted by: WhoSays on December 19, 2005 at 6:53 PM | PERMALINK
Oh? If this comment board filtered for ad hominems, there'd be about five posts left on each one.

"But Mommy, they started it!" -- that excuse, leaving aside whether or not its true, rarely works for anyone over 5.

Posted by: cmdicely on December 19, 2005 at 6:54 PM | PERMALINK

I would further venture a guess that a lot of the people here wouldn't give a rat's ass about this if they didn't think there was some way to nail Bush with it.

And you would be wrong.

Posted by: Windhorse on December 19, 2005 at 6:55 PM | PERMALINK

The Bush wiretap revelations mean its probably time to raise Conservative Threat Level.

The Consertative Threat Level (CTL) is currently Orange/Elevated: Church and State to Merge.

Posted by: AvengingAngel on December 19, 2005 at 6:55 PM | PERMALINK

I'll be surprised if we get any facts from this congress or admin. Repubs control the government and they will decide what 'facts' concerning this issue are released.

Jay Rockefeller was briefed on this? He's not a repub. Why isn't he speaking up, if it was as grievious as it might appear? Isn't he the "check and balance" on this?

Posted by: Red State Mike on December 19, 2005 at 6:56 PM | PERMALINK
Short of a bunch of backroom lawyers on blogs, as far as I can see, nobody has shown any hard proof that anything illegal has been done at all.

What, precisely, do you mean by "hard proof"? Do you mean that the evidence necessary to support a criminal conviction hasn't been presented in a forum which allows challenge and cross-examination? Or what?

Posted by: cmdicely on December 19, 2005 at 6:58 PM | PERMALINK
Jay Rockefeller was briefed on this?

Where, exactly, is the evidence that Rockefeller was fully briefed on this? The only thing I've read is that he learned some information about it, and raised concerns with the Administration which were, from the information I've seen, never substantively responded to.

Posted by: cmdicely on December 19, 2005 at 7:02 PM | PERMALINK

What, precisely, do you mean by "hard proof"?

He means George hasn't resigned, tearfully confessing his gruesome crime.

But if that happened, he'd say the Democrats had been holding Laura hostage, or something.

Posted by: cld on December 19, 2005 at 7:02 PM | PERMALINK

It's my understanding that the 'briefings' were classified and no one could speak up about them.

Rockefeller did speak up

Posted by: WhoSays on December 19, 2005 at 7:04 PM | PERMALINK

Tbrosz-

I could care less if everyone who knew of this illegal spying on Americans had to answer for it-regardless of their political party. What concerns me about your answer is the particular interest you have in the actions of Congress. This interest seems to far outpace your interests in what the actual initiators/participants (George W. Bush) in this illegal spying were up to.

This leaves me thinking that you still have a hard time accepting what is staring you right in the face-Bush & Co. have been illegally spying on Americans and trampling on your Bill of Rights. Again, this isn't about political allegiance or ideology. The principles at stake are much bigger than who might prevail in a two year election cycle.

Whether you realize it or not when your president illegally spies on the American people the terrorists win.

Posted by: Rangler on December 19, 2005 at 7:05 PM | PERMALINK

Harry Reid says "The Administration briefers did not seek my advice or consent about the program, and based on what I have heard publicly since, key details about the program apparently were not provided to me."

Posted by: WhoSays on December 19, 2005 at 7:06 PM | PERMALINK

What is particularly nonsensical is Gonzales' argument that the AUMF, without either expressly declaring war or expressly expanding surveillance powers, grants the President broader discretionary authority to order warrantless surveillance under FISA than the FISA provisions allowing 15-day surveillance without warrant in time of declared war.

Posted by: cmdicely on December 19, 2005 at 7:06 PM | PERMALINK

Tom Daschle says "Between 2002 and 2004, the White House notified me in classified briefings about NSA programs related to the war on terrorism. The briefers made clear they were not seeking my advice or consent, but were simply informing me about new actions. If subsequent public accounts are accurate, it now also appears the briefers omitted key details, including important information about the scope of the program."

Posted by: WhoSays on December 19, 2005 at 7:10 PM | PERMALINK

Notice the 2nd to the last paragraph of Rockefellers letter states "I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication."

I wonder if he was worried about something?

Posted by: WhoSays on December 19, 2005 at 7:12 PM | PERMALINK

Do you honestly think the Democratic politicians are pursuing this line of attack solely because of high ideals about privacy and civil rights?

Do you honestly think the pResident and his henchmen are pursuing illegal wiretaps of American citizens because of high ideals about protecting American citizens?

The question for me is: do I think the actions of the pResident and his evil flying monkey corps threaten my liberties and those of my fellow Americans? Do I think the Democrats who are making a big deal of this are, by doing so, effectively helping to protect my liberties?

Fuck you, you unprincipled, corrupt, soulless piece of Republican shit.

Posted by: Baldrick on December 19, 2005 at 7:12 PM | PERMALINK

Do you honestly think the Democratic politicians are pursuing this line of attack solely because of high ideals about privacy and civil rights?

Tbrosz, I don't know and I don't care. What I do care about is that Bush did something wrong, and anyone who doesn't condemn him for his actions has some serious moral problems. Bush declared that Iraq, Iran, and North Korea were all part of the "axis of evil" despite the fact that they were not in any way allied with each other. If one is to accept this reasoning, then anyone committing evil acts, whether based in Islamic Fundamentalism, Stalinist Communism, or not, is, in their own way, on the same side as North Korea, Iran, and Saddam-Hussein-era Iraq. Your choice.

Posted by: Constantine on December 19, 2005 at 7:18 PM | PERMALINK

It's not a question of factual evidence. Bush has confessed to things that are prohibited under FISA.

The only question that remains is if he is full of shit in his assertion of not having broken any laws. On the face of it it is quite clear that he is indeed full of shit.

Unless of course you are tbrosz and think that even if the law was broken by Bush, it must not have been broken since the motivation of the people who are claiming that Bush engaged in illegal acts is suspect.

Posted by: lib on December 19, 2005 at 7:20 PM | PERMALINK

The relevant part of Sen. Rockefeller's letter to Cheney:

I am writing to reiterate my concerns regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

Rockefeller objected to the program but was helpless to do anything about it short of illegally leaking it's existence, a move that would surely have shifted the entire focus of the discussion from its criminality and unconstitutionality to what a traitorous wanker Rockefeller is.

Now that Bush is openly discussing on national television the wiretaps that his own intelligence people leaked to the NYT, tbone is complaining aloud both that Rockefeller shouldn't be discussing classified material that Bush is chattering away about on tv and at the same time that he should have leaked it earlier if he thought it was such a big deal?

And the fact that he didn't break the law and leak information related to national security that he had no oversight over just means that no law was broken - because we all know that in this country the reaction of Democrats is the true measure of whether something is illegal, not application of the relevant statutes.

Time to tweak the meds.

Posted by: Windhorse on December 19, 2005 at 7:34 PM | PERMALINK

Unapparent reasons? For example, Robert Fisk (must be "connected" to Al Quaida since he's lived so much in the middle East, and criticises Bush). So then, Amy Goodman, since after all she's talked with Fisk on her show. And, in turn, anyone connected with Dish TV, Pacifica, or any other of Amy's outlets....

Then of course, Juan Cole and anyone who has ever communicated with him, or clicked on his web site....

Hell, might as include *all* the bloggers and visitors to any policital web site to the left of the happy little hatemongers at LGF....

and so on....

Posted by: brujo banjo on December 19, 2005 at 7:49 PM | PERMALINK

Rockefeller objected to the program but was helpless to do anything about it short of illegally leaking it's existence, a move that would surely have shifted the entire focus of the discussion from its criminality and unconstitutionality to what a traitorous wanker Rockefeller is.

No appearances on "Profiles in Courage" for Rockefeller then. What the hell good is he if he won't step up and do what he thinks is right? Basically, he wrote a letter providing himself with political cover by claiming ignorance. He is neither a technician (doesn't understand the ones and zeros) or an attorney (but he is a lawmaker, isn't he?) So what good is he? Jeeez...

Posted by: Red State Mike on December 19, 2005 at 8:35 PM | PERMALINK

I guess I'd like to know why 'briefed' Democrats didn't speak up sooner also. It was most likely for political reasons. One or two may not have spoken up because it was a classified briefing and they didn't want to do what this administration does so often.

Posted by: WhoSays on December 19, 2005 at 8:56 PM | PERMALINK

Do you honestly think the Democratic politicians are pursuing this line of attack solely because of high ideals about privacy and civil rights?

Basically, yes.

I think it is difficult for a person who doesn't care about X to imagine that another person cares about X.

tbrosz writes about the things that he cares about. Like political power.

Democratic gov't? Not so much.

Posted by: obscure on December 19, 2005 at 9:18 PM | PERMALINK

You might want to go back and recheck the history of civil rights legislation.

You might want to go back and learn a little something about Bull Connor and little girls being blown up in churches. Ask Condi Rice if she remembers what that was about and why she's a part of the political party that gave cover to the people who held those people down.

The idea that the Republican Party had anything to do with 'helping' civil rights along is about as ludicrous as anything Mr. Brosz has had to share with us lately. The only reason why he hems and haws and deflects from the topic at hand is because everything he's spent months and months defending just unravelled over the weekend and he knows what that means...

Tax increases, starting in 2007. Yep, tbrosz doesn't give a damn about anything except keeping Republicans in power so he doesn't have to pay more in taxes.

Don't hate him for it. It's about money.

Posted by: Pale Rider on December 19, 2005 at 9:25 PM | PERMALINK

I would not be the least bit surprised if the illegal wiretaps were against journalists, whistleblowers, and opposition politicians.

Cheney said explicitly that voting for Kerry would place the U.S. at greater risk of terrorism attacks.

BushCo claims that they have the power to disregard U.S. law and the Constitution because of the inherent power of the presidency and/or the authorization to fight the war on terra.

Therefore, if electing a Democrat, in their minds, places the U.S. at risk of a terrorist attack, wiretapping that politician is necessary in order to protect the country from terrorism.

If this logic sounds tortured to you, remember to give yourself a gut check before defending an administration that currently tortures not only logic, but human beings as well.

Posted by: Coltergeist on December 19, 2005 at 9:52 PM | PERMALINK

PR dont worry. Tbrosz is going to let his kids pay off the national debt

Posted by: WhoSays on December 19, 2005 at 9:55 PM | PERMALINK

Well, we can leave mothers and kids out of it, too.

Posted by: Pale Rider on December 19, 2005 at 10:17 PM | PERMALINK

A lot of Defensetech guys were speculating that the govt. has a way to eavesdrop on whole channels of calls - but not specific calls. The warrantless was necessary because a warrant would be impossible for a gathering measure that can't identify the user intil the call is decoded in the first place.

Posted by: McAristotle on December 19, 2005 at 10:47 PM | PERMALINK

McGriddles,

Guess what? You're not even on the freeway to the town where the ballpark is located.

Nice try. Malaysians like yourself of Chinese extraction aren't on anyone's watch list. We kind of figure you're too busy wandering around, looking for someone to turn in to the secret police so they can serve a life sentence in prison for kissing on a park bench.

Posted by: Pale Rider on December 19, 2005 at 11:00 PM | PERMALINK

tbrosz sure hates him some Founding Fathers, whose genius was to create a system of checks and balances run in the context of an adversarial political culture, because, hey I trust you fine, pal, but I trust you more when I can see both of your hands.

So, yes, child, the Democrats are able to score political points when they expose Republican misdeeds. That's the cheese at the end of Constitutional maze that the Founders created for us American meeses.

And it's worked for two centuries pretty good.

Posted by: Demogenes Aristophanes on December 20, 2005 at 12:38 AM | PERMALINK

Clinton Claimed Authority to Order No-Warrant Searches

In a little-remembered debate from 1994, the Clinton administration argued that the president has "inherent authority" to order physical searches including break-ins at the homes of U.S. citizens for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.

"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

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

In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. "Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise," Gorelick said. "Information gathering for policy making and prevention, rather than prosecution, are its primary focus."

I wonder if Jamie is willing to represent GWB at his impeachment hearings? I was going to suggest Bill Clinton represent the Administration at the Supreme Court but alas, Bill can't practice law before the supreme court.

Posted by: rdw on December 20, 2005 at 3:34 PM | PERMALINK




 

 

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