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Tilting at Windmills

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December 19, 2005
By: Kevin Drum

THE NSA AND THE LAW....What's the technical legal status of the NSA bugging program exposed by the New York Times last week? As near as I can tell, here's the nickel version of the legal issues involved:

Q: Is the NSA program a violation of the Fourth Amendment?

A: That's unclear. The Supreme Court has previously ruled that warrants are required in cases involving purely domestic surveillance, but has punted on the question of whether the same rules apply to domestic surveillance for the purpose of gathering foreign intelligence. A couple of cases during the 60s and 70s suggest that warrantless wiretaps are constitutional if their "primary purpose" is collection of foreign intelligence, but there have been no definitive rulings on this.

Q: Did the NSA program violate the FISA act?

A: Yes. FISA, which was specifically enacted in 1978 to clear up some of the questions left unresolved by the Supreme Court, allows warrantless surveillance of conversations between "foreign powers" (and their agents) only if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." We don't know all the details of how the NSA bugging plan operated, but it seems pretty clear that tapping conversations of "United States persons" was not only a substantial likelihood, but practically the whole point of the program.

Q: Does the president's inherent power as commander-in-chief during wartime override the provisions of FISA?

A: No. The president has made the rather remarkable claim that the Authorization to Use Military Force (passed shortly after 9/11 and aimed at al-Qaeda) allows him to override FISA and authorize domestic surveillance on his own authority. But just as its name implies, a fair reading of the AUMF suggests that it was meant to apply only to military force. In fact, the Supreme Court only barely agreed that it extended even to the detention of enemy combatants, a fairly standard wartime power. Legalizing domestic surveillance of U.S. persons simply wasn't the intent of Congress when it passed the AUMF, and this is precisely why they spent so much time amending FISA to apply to terrorism investigations after passing the AUMF. After all, why bother codifying all this if the AUMF already gave the president plenary powers in this area?

Likewise, the proposition that Congress has no power to interfere in any way with the president's Article II commander-in-chief power is ludicrous. There's no case law to back this up and no reason to believe this except for the president's own apparent belief in his unlimited authority during wartime.

In other words, the president's program is almost certainly illegal unless you accept his unprecedented notion that we are currently in a state of war so grave that he has virtually unlimited power to override federal law whenever he considers it necessary. Even more importantly, by keeping his program secret, he has set himself up as the sole arbiter of whether his actions are legal or not. Neither Congress nor the courts are allowed any oversight, a position that is both breathtaking and dangerous.

Note that this post is based primarily on three sources:

  • A 2004 overview by the nonpartisan Congressional Research Service about the statutory framework of the FISA act.

  • A detailed post by Orin Kerr at the Volokh Conspiracy analyzing the legal status of the NSA program.

  • A couple of posts (here and here) by Marty Lederman focusing primarily on the issue of the president's inherent powers.

Read all three if you want more detail on the legal issues surrounding all this.

Kevin Drum 7:05 PM Permalink | Trackbacks | Comments (168)

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Comments

If GOP apologists want to support this nonsense, then I hope they are prepared for Hillary to use the same powers in 2008.

That's what I thought.

Posted by: craigie on December 19, 2005 at 7:08 PM | PERMALINK

Benjamin Franklin, who signed the Constitution, also said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Ambrose Bierce defined "Liberty: One of Imagination's most precious possessions."

It has ever been thus: Daniel Webster wrote, "The contest for ages has been to rescue liberty from the grasp of executive power."

Will Rogers said, "Liberty doesn't work as well in practice as it does in speeches."

Posted by: Darryl Pearce on December 19, 2005 at 7:09 PM | PERMALINK

Q: Does the president's inherent power as commander-in-chief during wartime override the provisions of FISA?

A: No.

The Foreign Intelligence Surveillance Court of Review disagrees:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the Presidents constitutional power.

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

This seems scandalous enough to stick although by now when you line up all of the Bush admin's crimes against lying about oral sex you wonder if there is ANYTHING that can finally convince people that these people are really, really corrupt...

Posted by: j.s. on December 19, 2005 at 7:11 PM | PERMALINK

Q: Does modern corporate American media love the thought of a super-strong republican Presidency?

Yes. Modern corporate American media is built on creating an insatiable desire for all things related to celebrities. Having a republican-based Fuhrer is thus good for their business model.

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

Kevin, sometimes your sensible middle-of-the road stance drives me crazy. But posts like this remind me of why I come back to your blog.
Thank you, Kevin.

Posted by: Chukuriuk on December 19, 2005 at 7:15 PM | PERMALINK

Well, you may want to wallow in analysis and facts but I heard Mark Levin on the radio while driving home. He was quite clear that these "slip and fall" lawyers you're getting information from are just wrong. This is a war-time president protecting us from people who want to kill us. Any action he takes is to protect us and this is all legal and above board.
We should be tracking down and putting away those traitorous scum who dropped a dime on the president.

And that is the talk radio position. The far left wants us to lose and to go down to defeat. So there.

Posted by: TJM on December 19, 2005 at 7:15 PM | PERMALINK

FISA is unconstitutional. It's never been challenged in the courts. That's probably because those people whose 4th amendment rights are being violated don't learn about it.

There is no question at all that Bush is breaking the law. It's outrageous, and I can't believe that anybody is trying to defend this.

Posted by: Andrew on December 19, 2005 at 7:17 PM | PERMALINK

Its worth noting, particularly, that the process supposedly being used (involving 45-day reviews) exceeds even the 15-day exceptional warrantless surveillance power granted the President under FISA in time of declared war.

It is an untenable argument that the AUMF somehow implicitly acted as a broader authorizations of surveillance than a formal declaration of war would have.

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

The Madness of King George.

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

Aside from the point above that an actual court disagrees with Kevin's analysis on the Article II point, I find this questionsable:

Neither Congress nor the courts are allowed any oversight, a position that is both both breathtaking and dangerous.

Huh? Congress WAS consulted. If Congress had a problem with the program, they should have (and could have) passed a law specifically outlawing it.

So it seems to me that Kevin is just plain lying here.

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

Would they trust President Hillary Clinton with these powers?

Posted by: Darryl Pearce on December 19, 2005 at 7:21 PM | PERMALINK
Huh? Congress WAS consulted.

Congress was given limited, and from the statements of numerous Congressmembers in response to the scandal, critical incomplete or inaccurate information about the program, and many members raised objections or at least concerns about the legality and propriety of the operation at the time they learned something of it. Still, as FISA already prohibited by its plain terms what has recently been revealed, it would have been meaningless for Congress to try to stop it -- even if they had complete and accurate information -- by passing another law, since clearly the fact that the actions were prohibited by criminal law wasn't stopping the Administration already.

But the key point is that Congress wasn't consulted, it was informed -- incompletely and/or inaccurately -- after the program was in place. That's not the same thing as being consulted.

Posted by: cmdicely on December 19, 2005 at 7:22 PM | PERMALINK

A couple of cases during the 60s and 70s suggest that warrantless wiretaps might be constitutional if their "primary purpose" is collection of foreign intelligence, but there have been no definitive rulings on this.

HUH???

The cases from the '60s, '70s, and '80s HOLD, definitively, that warrantless wiretaps ARE constitutional if their "primary purpose" is collection of foreign intelligence. (For an '80s case, see United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).

Posted by: Al on December 19, 2005 at 7:22 PM | PERMALINK

Anyone see that new Washington Post poll? It looks like a lot of Americans are with the president on the issue of domestic spying these days.

Posted by: KC on December 19, 2005 at 7:23 PM | PERMALINK

But the key point is that Congress wasn't consulted, it was informed -- incompletely and/or inaccurately -- after the program was in place. That's not the same thing as being consulted.

There is no difference. Congressional leaders were informed. Congress could have cut off funding for the program. They didn't.

End of Story.

Posted by: Al on December 19, 2005 at 7:24 PM | PERMALINK

This has been visited by the Supreme Court:

President Richard Nixon, in 1971, made the same argument as President George W. Bush makes today to justify domestic spying without the need for judicial approval. Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States.


That very argument was litigated all the way to the United States Supreme Court after the Nixon administration lost in the federal district court and the court of appeals for the Sixth Circuit. In its filed brief the Justice Department claimed there were 1,562 bombing incidents in the United States from January 1, 1971 to July 1, 1971, including the bombing of the Capitol building, and that the "seriousness and magnitude, (of these) threats and acts of sabotage against the government exist in sufficient number to justify [these] powers." Robert Mardian, who was later to become a Watergate defendant, argued before the Court on behalf of the government that there was, in effect, an ongoing war within the United States that justified invoking the president's powers as Commander-in-Chief, a power which overrode the privacy rights of American citizens as provided for in the Fourth Amendment to the constitution of the United States.
A unanimous Supreme Court (the vote was 8-0, with Justice Rehnquist recusing himself because he was in the Justice Department legal counsel's office when the domestic spying program was formulated), with Justice Powell writing the opinion, in United States v. U.S. District Court, unambiguously rejected any such notion, articulating a clear-cut admonition to those who would diminish the import of the Fourth Amendment by suggesting that domestic spying at the whim of the president would be permitted under any circumstances.

However, in a single aside, the court noted that previous presidents had engaged in domestic surveillance without securing warrants as part of ongoing efforts to secure foreign intelligence (mainly involving counter-espionage efforts directed against German and Italian embassies and counsulated by the Roosevelt Administration) and that the Court expresses no opinion on such efforts. That opening led to the enactment of Foreign Intelligence Surveillance Act (FISA) in 1978, a bill sponsored by Senator Ted Kennedy of Massachusetts with the blessing of the American Civil Liberties Union. FISA established for the first time in our history a "court" that existed outside the framework of the Fourth Amendment, a secret court that most Americans don't even know exists. It has a single function: to authorize by way of issuing warrants at the request of federal agents, surveillance within the United States on a minimal showing that the target is acting on behalf of a foreign power and that the foreign intelligence to be gathered is necessary for national security. The courtroom itself is in a vault-like chamber, a windowless room on the top floor of the Department of Justice, guarded by military security. There are seven rotating judges. The Court meets in secret, with no published opinions or public records. Nearly all of those spied upon never knew they were under surveillance.

No one, except the FISA judge involved and the Department of Justice knows what is done. No one, except the government and FISA judge knows who the warrants are aimed at. There is no review by anyone, neither the regular federal Appellate Courts nor the Congress, of its decisions. Over 15,000 search warrants, permitting eavesdropping, surveillance and break-ins, have been sought by the government and granted. Although the FISA court is required to determine if there are enough facts to justify a warrant, only eight times has it ever denied a warrant sought by the government. The FISA statute specifically gives the FISA Court the exclusive right to issue domestic spying warrants and that power has been generously exercised. There are more warrants issued by the FISA Court than by the over 1,000 district judges who sit throughout the United States in the Federal system.

Since 1978 every administration has had the FISA court available, but, as far as is known, none have rejected its use when foreign intelligence gathering was necessary. The passage of the Patriot Act in 2001 even made it more accessible and expanded its powers. However, this apparently was not sufficient for the Bush Administration.

What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers.

Nothing that has gone on before in this post 9-11 period, including the Patriot Act, will so drastically alter the rights of Americans to be free of governmental intrusion than a reversal of that landmark decision prohibiting government surveillance without a warrant.

http://www.huffingtonpost.com/martin-garbus/nixon-loses-bush-wins_b_12547.html

Posted by: James on December 19, 2005 at 7:25 PM | PERMALINK

"We should be tracking down and putting away those traitorous scum who dropped a dime on the president."

Yes, by all means, let's be sure to track down the traitorous scum. It should be relatively easy; we know where they work - The National Security Agency (NSA).

From where else did you think the New York Times got their story?

Posted by: eponymous on December 19, 2005 at 7:25 PM | PERMALINK

Corporate author Al --
I remember when I was a kid and stopped reading the "Hardy Boys" when I learned that Franklin W. Dixon (?) was not a person, but a bank of write-to-order scriveners. I was disgusted and stopped reading the stuff.
I feel the same when I am unfortunate enough to encounter "your" posts. You are like some kind of disgusting hive. Ugh.

Posted by: Chukuriuk on December 19, 2005 at 7:26 PM | PERMALINK

Hmmm, what war-time? Show me Congress' declaration of War. It does not exist. The whole thing from the Authorization on is unconstitional, and we are now a Monarchy with not a Congress, but a Soviet of Rich People's Deputies.


Posted by: jim p on December 19, 2005 at 7:27 PM | PERMALINK

Al, you can't cut off funding for a black op program for a number of reasons.

The most obvious is that very few members of Congress were informed and it was illegal for them to talk about it with anybody.

Black op funding is off the books anyway, so Bush can always shift money from somewhere else.

Posted by: Lisa on December 19, 2005 at 7:28 PM | PERMALINK

Please mister president - protect us from those evul terrists. Listen to my phone conversations, make sure I only hear state-approved propaganda on the news, and keep a list of the books I check out of the library. Only then can I feel safe and secure.

And maybe, if you find I've been bad, you could spank me a little?

Posted by: Republicans_are_submissive_sheep on December 19, 2005 at 7:29 PM | PERMALINK

What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying.

You keep using that word "domestic". I do not think it means what you think it means.

Posted by: Al on December 19, 2005 at 7:31 PM | PERMALINK

There is no difference. Congressional leaders were informed. Congress could have cut off funding for the program. They didn't.

Apparently, not everyone on the Right agrees with you

Posted by: craigie on December 19, 2005 at 7:31 PM | PERMALINK

So, we enjoy rights only at the discretion of the President. Why would anyone have a problem with that?

Posted by: dan on December 19, 2005 at 7:32 PM | PERMALINK

Cue Tbrosz to explain why everything in this post is wrong and we can't discuss this issue further until the 'facts' are all known.

Posted by: WhoSays on December 19, 2005 at 7:32 PM | PERMALINK

No, I would not trust President Hillary Clinton with these powers, but I would trust President Lieberman or President Mark Warner.

Posted by: Albert Gallatin on December 19, 2005 at 7:32 PM | PERMALINK

not everyone on the Right agrees with you

If you are going to say that, you ought to cite to someone actually on the Right.

Posted by: Al on December 19, 2005 at 7:32 PM | PERMALINK
There is no difference. Congressional leaders were informed.

According to several of the Congressional leaders that were "informed", they were not informed about many of the key details of the program even as outlined in the Administration's current public defenses of the program.

Given that, its pretty hard to advance a claim that it is clear that Congress was, in any meaningful sense, informed.

Further, Congress failure to react to a violation of a criminal statute does not make the violation any less criminal, even if Congress does know about the violation.

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

James: Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States.

Absolutely. Sometimes you have to destroy the Constitution in order to save it.

Posted by: R. Milhouse on December 19, 2005 at 7:33 PM | PERMALINK

Martin Garbus gives us another brilliant insight into what is happening here -

The President's Men

Mafia and white-collar defendants want legal opinions that they know are wrong but are defenses if they are prosecuted. The criminal defendants claim they thought they were doing what's right because their lawyers said so. This disproves any claim that they had a criminal intent, where intent is an essential nature of the crime.


It is a rock-solid defense that more often than not persuades the jury that even though what the defendant did was wrong, he should be found innocent because he relied on his lawyers.
There is never proof that the criminal defendants told their lawyers to write wrong legal opinions. On the contrary, the proof is that the defendant did not know if it was right or wrong and wanted to make sure that it was right before he did the money-laundering or bought stocks on inside information.

This shows how careful the defendants were.

The lawyers know exactly what they have to do. The lawyers know their jobs, and the wonderful pay they receive is dependent on these contrived decisions. The stronger the opinion, the better the client likes it.

If the lawyers don't do it, there are hundreds of other lawyers who will do it. The rewards are attractive. In order to self-justify, they will often start to believe their own lies.

That's how President Bush, Vice President Cheney, and Secretary of Defense Rumsfeld work. When they need legal opinions to justify torture, Alberto Gonzales, the Attorney General, John Ashcroft, his predecessor, and those who work for them, particularly Jon Yoo, the most scholarly and reckless of them, all give the required opinions.

They write, citing dozens of cases, in forty-page briefs, that the Geneva Convention does not apply to unlawful combatants. That torture is uniquely permissible because of the unique nature of the War on Terror.

When the politicians need a legal opinion that says you can jail American citizens and aliens nearly forever, the lawyers deliver it. When they need a legal opinion that says habeas corpus does not apply to the detainees, and the federal courts have no jurisdiction over them, the lawyers deliver it. When the President wants an opinion that says illegal surveillance of American citizens is legal, he gets it.

The warrantless wiretapping and eavesdropping violates the Federal Communications Act and is crime. There is no question of that. It is an impeachable offense. The politicians' defense is that they rely on the best lawyers on the country, those who work for them at the Department of Justice, and at the Attorney General's office.

When the President wants an opinion that the unique war on terror gives him unique Presidential powers that allow him to do nearly anything, he gets it. I fear that if he wanted to get a legal opinion stating that he had the power to execute people without the intrusion of the legal system, he would get it.

The President, Vice President, and Secretary of Defense win, we lose.

http://www.huffingtonpost.com/martin-garbus/the-presidents-men_b_12485.html

With Bush refusing to stop this wiretapping, there really is no other recourse but impeachment and removal from office. This is a rogue administration.

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

According to several of the Congressional leaders that were "informed",

You mean the Congressional leaders who now have to explain their inaction to Moveon.org? You must be kidding.

How about citing to several Congressional leaders who do NOT have to answer to Moveon.org? Were they misinformed?

Posted by: Al on December 19, 2005 at 7:35 PM | PERMALINK

Further, Congress failure to react to a violation of a criminal statute does not make the violation any less criminal, even if Congress does know about the violation.

Since Congress cannot constitutionally criminalize the President's powers under Article II, there was no possible violation of a criminal statute.

Posted by: Al on December 19, 2005 at 7:37 PM | PERMALINK
If you are going to say that, you ought to cite to someone actually on the Right.

Well, how about a Republican committee chair? From the The Australian:

The Republican head of the Senate judiciary committee, Arlen Specter, said it was "inexcusable to have spying on people in the US without court surveillance, in violation of our law".
Posted by: cmdicely on December 19, 2005 at 7:37 PM | PERMALINK

Congress was not consulted. A small number of Congress members were given information, but not allowed to share it. Big difference.

Posted by: MobiusKlein on December 19, 2005 at 7:39 PM | PERMALINK

The Republican head of the Senate judiciary committee, Arlen Specter,

Specter was NOT one of those briefed. So, no.

Posted by: Al on December 19, 2005 at 7:41 PM | PERMALINK

I think I understand. The President declares war (and victory) : Congress does nothing. The President continues to wield wartime powers : without any stated enemy except : Occupied Iraq and terrorists (who can't have war declared on them because they are not a polical organization with defined limits or geography). Are Congress and the Senate ready to pack their bags and go home ? There doesn't seem to be anything for them to do. The all powerful executive is ready for anything (except maybe contend with the diverse challenges that no small group is competent to oversee because of complexity and self-interest). Just in case anyone should think differently, secrecy shall be the order of the day (there's a war on, don't ya know). I'm not overlooking the mess in Iraq ; that's the point - it's in Iraq. I never had that much faith in self-proclaimed leaders.

Posted by: opit on December 19, 2005 at 7:42 PM | PERMALINK

As far as I'm concerned, unless Bush has the supreme executive power to bend me over his desk and pop one off up my poop chute whenever he feels like it, then he's not doing his job of protecting me. You libs seem to be arguing that you'd rather have a terrorist grab you by the hair, slice your head off, and have their way with it. That will never happen to me though, because I'm always safely tied up in George's closet.

Posted by: Al on December 19, 2005 at 7:43 PM | PERMALINK
Specter was NOT one of those briefed.

So Congress, as such, was not briefed, and could not have passed legislation based on their knowledge of it. QED, you lose.

Posted by: cmdicely on December 19, 2005 at 7:43 PM | PERMALINK

None of this matters if there's no one about (in Congress or the Courts) to bell this cat.

Expect the spying on U. S. Citizens to continue until at least the end of 2006, and probably until at least the end of 2008. This is a question of (political) power, not of legal rights or institutional prerogatives.

Posted by: Dave Alway on December 19, 2005 at 7:43 PM | PERMALINK

I think I understand what going on here. Posters here are hysterical because Bush is rising rapidly in the polls - up 8 points in the latest ABC poll.

Posted by: Al on December 19, 2005 at 7:43 PM | PERMALINK

Republicans care neither for our security nor for our liberty.

Absolute power unencumbered by niceties of the law is their ultimate goal.

Posted by: LorenzAttractor on December 19, 2005 at 7:44 PM | PERMALINK

In case anyone's interested, TPM's got a copy of a letter sent to darth cheney from Rockefeller expressing his concerns over this.

So much for the, "if the Dems were so concerned, why didn't they complain" argument.

Posted by: GMF on December 19, 2005 at 7:45 PM | PERMALINK

So Congress, as such, was not briefed, and could not have passed legislation based on their knowledge of it.

Congress, as such, WAS briefed. Briefing Congress does not require a personal brief of every single Congressman and Senator.

Posted by: Al on December 19, 2005 at 7:45 PM | PERMALINK

Can someone else pick up the ball and run with it? We're having a bad day here.

Posted by: tbrosz on December 19, 2005 at 7:45 PM | PERMALINK

cmdicely, very few members of Congress were informed, and they were prohibited from talking to anyone about it, by law. They couldn't even talk to other members of Congress who had security clearances.

On Hardball right now, Dianne Feinstein (who sits on at least 2 relevant committees, and who has top secret security clearance) is talking about trying to talk with Jay Rockefeller about this (one of those who Bush allegedly informed) and Rockefeller told her that he can't talk it. Andrea Mitchell has just pulled out a letter that Rockefeller sealed when he was first informed by Bush, objecting and saying that he was constrained from talking about it publicly. Smart man (Rockefeller) and weaselly President.

Posted by: eddie on December 19, 2005 at 7:45 PM | PERMALINK

Al: "End of Story."

Anyone else got a problem with some nitwit saying "End of Story"?

Posted by: Guy Banister on December 19, 2005 at 7:45 PM | PERMALINK

Kevin makes an honest effort here, and I'm no expert, but it seems like he has some points wrong.

It appears FISA does not authorize the program, but I do not believe Presidend Bush claims it does. The fact that FISA does not authorize the program does not mean that it violates FISA. So Kevin appears wrong on that point.

The issues of inherant power is more complicated that Kevin suggests. It seems clear that the Congress could prohibit the President from conducting such a program (which they did not attempt to do here even after being briefed to some extent). Since they have not done so, Kevin's statutory analysis seems irrelevant.

I think the important issue here is for Congress to find out in classified hearings what was done and then decide whether they want to outlaw it. But I think that, assuming no abuse of the program by the administration (e.g., monitoring opponenets, not enemies), most of the country will be with the President and against the liberal outcry that conceptually protects citizens but realistically protects terrorists.

Posted by: brian on December 19, 2005 at 7:46 PM | PERMALINK

Congress has not declared war. We are not in wartime.

We have been facing nuclear holocaust in the Cold War for how many decades, with no question about warrantless search, and a few airplanes are crashed into some large buildings and everything changes?

Posted by: Jimm on December 19, 2005 at 7:47 PM | PERMALINK

Neither Congress nor the courts are allowed any oversight, a position that is both breathtaking and dangerous.

Are we back to the position that the Congressional Democratic leadership didn't know?

I repeat my earlier recommendation: take the persons involved to court. The courts can certainly decide in that fashion whether they do or do not have oversight. Get Ramsey Clark: it might be a chance for him to work on behalf of American civil liberties.

Posted by: papageno on December 19, 2005 at 7:48 PM | PERMALINK

Anyone else got a problem with some nitwit saying "End of Story"?

I've got a problem with this blog's trolls, period. How can one nitwit post so many times? "Al" is a hive of little Publicans at their keyboards. Kevin, what is the difference between Al-spam and Chinese porno spam? Why tolerate it?

Posted by: Chukuriuk on December 19, 2005 at 7:50 PM | PERMALINK

Brian,

But I think that, assuming no abuse of the program by the administration (e.g., monitoring opponenets, not enemies),

How do we get a solid assurance of "no abuse"?

Posted by: Edo on December 19, 2005 at 7:50 PM | PERMALINK

Remember in Star Wars, when the senate gave Prime Minister Palpatine emergency war powers, and then when the war was over, and he wouldn't give them up, and then he declared himself emperor, and ruled over the galaxy for 20 years?

Posted by: tborzs skywalker on December 19, 2005 at 7:51 PM | PERMALINK

Al

I need your help. I'd like to get more info on your statement Since Congress cannot constitutionally criminalize the President's powers under Article II, there was no possible violation of a criminal statute.

I'm doing some research on this very subject. I'd like to communicate with you outside of these "comments." Could you send me a private email?

I'd like to find out how you came to this conclusion, who you've talked to about this, and if you have any relatives outside the United States.

Waiting on your email!

Posted by: Billie Tracker on December 19, 2005 at 7:54 PM | PERMALINK

Al wrote this: The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the Presidents constitutional power.

does anybody have evidence that Al's quote is factually incorrect?

Posted by: papageno on December 19, 2005 at 7:54 PM | PERMALINK

How do we get a solid assurance of "no abuse"?
Posted by: Edo on December 19, 2005 at 7:50 PM | PERMALINK

Why would you need solid assurance? Don't you trust George W Bush? He's a man of integrity. In fact, I heard that Vladamir Putin looked into his soul, and has said that George W Bush is "a good man".

Posted by: Republican sheep on December 19, 2005 at 7:55 PM | PERMALINK

Who did Bush wiretap that he couldn't get authorization from FISA?

That's really the issue.

This is an out-of-control President who believes he doesn't have to answer to anybody.

Posted by: Tony on December 19, 2005 at 7:56 PM | PERMALINK
Since Congress cannot constitutionally criminalize the President's powers under Article II, there was no possible violation of a criminal statute.

To bad, then, that this isn't, say, a pardon or some other act within an express Article II power, but an rule governing foreign commerce created by the executive, or, alternatively, the executive declaring its own rules for wartime capture of communications that are believed to be instruments of war, or, in the third alternative, the executive declaring that it can decide how to regulate the land and naval forces, and militia, when called to repel an invasion.

Whichever it is, though, its clearly within the Article I, Section 8 power of Congress to regulate.

Posted by: cmdicely on December 19, 2005 at 7:56 PM | PERMALINK

Bush is a crook and a king wannabe.

End of story.

Posted by: BatGuano on December 19, 2005 at 7:56 PM | PERMALINK

Reposted from another thread in response to a troll there, in case anyone is inclined to believe "Al"'s background noise on the issue.

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 7:57 PM | PERMALINK

... wait, no, it's the middle of the story. The end comes when he is thrown in jail.

Posted by: BatGuano on December 19, 2005 at 7:57 PM | PERMALINK

Would they trust President Hillary Clinton with these powers?

Why not her husband President Clinton was the one who started the NSA program to monitor all electronic data within the US borders.

Posted by: Sinop85 on December 19, 2005 at 7:58 PM | PERMALINK

Since the Bill of Rights was passed after the constitution, as a means of framing the context of state powers versus citizen rights, I find any and all arguments unpersuasive that the president has the power by commander-in-chief as granted in the Constitution to do whatever he wants, in contravention of the Bill of Rights.

If that is the case, why did we pass the Bill of Rights at all? In my mind, what comes later gives context to and frames what came before, and that applies to all the Articles of the Constitution, insofar as the amendments are concerned (unless the amendments specifically limit their scope).

Posted by: Jimm on December 19, 2005 at 7:58 PM | PERMALINK
The fact that FISA does not authorize the program does not mean that it violates FISA.

The fact that neither FISA nor any other statute authorizes it, and that FISA criminalizes every knowing use of surveillance under color of law not authorized by statute, does, however, mean that it violates FISA.

Posted by: cmdicely on December 19, 2005 at 7:58 PM | PERMALINK

As Commander-in-Chief, during a time of war, Bush argues that he has unstated powers to conduct that war that do not require congressional oversight. Since the WOT is endless, does that mean that Bush can declare himself President until the WOT is over?

Posted by: WhoSays on December 19, 2005 at 8:01 PM | PERMALINK

sinop85,

you win the "its all Clinton's fault" I'm-an-idiot prize.

Posted by: Edo on December 19, 2005 at 8:01 PM | PERMALINK

Of course, the argument I just made about the Constitution and Bill of Rights, and which has priority and context, and which informs the other, is not based upon any understanding of case law, which I'm sure to some degree has been corrupted by executive power, but on a philosophical understanding of constitutional and human rights law.

Posted by: Jimm on December 19, 2005 at 8:01 PM | PERMALINK

cmdicely wrote this: According to several of the Congressional leaders that were "informed", they were not informed about many of the key details of the program even as outlined in the Administration's current public defenses of the program.
Given that, its pretty hard to advance a claim that it is clear that Congress was, in any meaningful sense, informed.
Further, Congress failure to react to a violation of a criminal statute does not make the violation any less criminal, even if Congress does know about the violation.

congress' failure to act does in fact show support. They have subpoena power to acquire the information that they want, as well as power of the purse to halt programs of which they are suspicious. It may yet prove to be the case (I doubt it) that the president acted illegally, but it is plain wrong to claim that he acted without congressional oversight.

Quit debating this online, and debate it where it counts: take the president and his subordinates to court and try to win the debate there.

Posted by: papageno on December 19, 2005 at 8:02 PM | PERMALINK

Why tolerate it?
Posted by: Chukuriuk on December 19, 2005 at 7:50 PM | PERMALINK

Because if you go onto Little Green Footballs, or Free Republic, and post one word of dissent or criticism, your post gets deleted, and you get banned.

We're better than they are. That's why.

Though I disagree with what Al says, I'll defend his right to say it. Though not to the death. His death, maybe.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 8:04 PM | PERMALINK
Congress, as such, WAS briefed. Briefing Congress does not require a personal brief of every single Congressman and Senator.

It certainly requires more than selective briefing that cannot be legally discussed with staff or other members if your argument is that the briefing and inaction of the Congress is evidence that the Congress approved.

Since clearly the vast majority of members who did not vote for legislation banning what was already prohibited by FISA did not know and could not legally be told by their colleagues who did anything about what was going on. Ergo, the failure to take additional legislative action cannot remotely be spun as an endorsement.

Posted by: cmdicely on December 19, 2005 at 8:04 PM | PERMALINK

Doesn't congressional oversight imply that congress has some level of input as to what is going on. What good is congressional oversight if the President can just say this is what I'm doing and if you don't like it, go fuck yourselves.

Posted by: WhoSays on December 19, 2005 at 8:05 PM | PERMALINK

In the entire Bill of Rights, I don't recall an abundance of "commander-in-chief" exceptions. And there shouldn't be, if these protections are going to mean anything, since "emergency powers" could be claimed and never relinquished. And the Bill of Rights obviously informs and frames the powers laid out in the Articles of the Constitution in more explicit terms of the rights of the individual (and states).

Posted by: Jimm on December 19, 2005 at 8:06 PM | PERMALINK

does anybody have evidence that Al's quote is factually incorrect?

The opinion is here: http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

Posted by: Al on December 19, 2005 at 8:07 PM | PERMALINK
Quit debating this online, and debate it where it counts: take the president and his subordinates to court and try to win the debate there.

You know its strange how, most of the time, the right-wingers whine about liberals trying to force their agenda through the courts rather than convincing the public, but then, when the specter of an issue that might have public traction raises its head, they turn to the "stop the public advocacy and try to win through the courts" argument.

Posted by: cmdicely on December 19, 2005 at 8:07 PM | PERMALINK

Republican sheep: Why would you need solid assurance? Don't you trust George W Bush? He's a man of integrity. In fact, I heard that Vladamir Putin looked into his soul, and has said that George W Bush is "a good man".

george W bush is a good man, but he's been drugged by the deputy fuhrer. It's an echo from the future - just like Melakon is going to do to Jonh Gill on stardate 2534.0. We need Bones to revive W!

http://en.wikipedia.org/wiki/Patterns_of_Force

Posted by: Republican sheep [trekkie division] on December 19, 2005 at 8:08 PM | PERMALINK

Though I disagree with what Al says, I'll defend his right to say it.

OBF, you've missed my point. "Al" is not a person posting, it is a team of keyboard-beaters spamming. Look at the number of posts, ferchrissake. I would likewise defend an individual's right to post his or her point of view. Are "we better" when we let some machine post its fliers all over a substantive discussion?

Posted by: Chukuriuk on December 19, 2005 at 8:08 PM | PERMALINK

Papageno
In the document Kevin cited on page 82. Also Kevin's own source disputes his claim that this violates the 'no US citizen clause". If a source is used it should be used in it's entirety.
Page 72 clearly makes Kevin a liar (if we stick with the standard that thinking is true based on information makes you a liar. I believe Kevin is just wrong, but that is the standard set on this website)
The reviewing court focused upon the close connection between criminal activity and the definitions of agent of a foreign power applicable to United States persons contained in 50 U.S.C. 1801(b)(2)(A) and (C), to wit:
(b) Agent of a foreign power means
. . .
(2) any person who
(A) knowingly engages in clandestine intelligence gathering activities
for or on behalf of a foreign power, which activities involve or may
involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of
a foreign power, knowingly engages in any other clandestine
intelligence activities for or on behalf of such foreign power, which
activities involve or are about to involve a violation of the criminal
statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or
activities that are in preparation therefor, for or on behalf of a foreign
power;
(D) knowingly enters the United States under a false or fraudulent
identity for or on behalf of a foreign power, or, while in the United
States, knowingly assumes a false or fraudulent identity for or on
behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities
described in subparagraph (A), (B), or (C) or knowingly conspires
with any person to engage in activities described in subparagraph (A),
(B), or (C).

Posted by: Sinop85` on December 19, 2005 at 8:10 PM | PERMALINK

I think I understand what going on here. Posters here are hysterical because Bush is rising rapidly in the polls - up 8 points in the latest ABC poll.
Posted by: Al on December 19, 2005 at 7:43 PM | PERMALINK

Side effect of the Iraqi election. Just like Bush's approval rating going up right after 9/11.

It will return to it's natural state at 36%, after Iraqi election hype dies down.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 8:11 PM | PERMALINK

People who are saying Congressional leaders were informed and 'did nothing' are failing to remember that if they did do anything the only way they could do it would have been to talk about it and talking about it would have been violating the law.

How are the Congressional Democrats who had some inkling of this supposed to have done anything at all, their Republican colleagues weren't doing anything, and without the committee power, their hands were completely tied.

When GOP flakes here and on other boards try to complain that Democrats didn't do anything, they really have to explain what they think the Democrats could have done.

Posted by: cld on December 19, 2005 at 8:11 PM | PERMALINK

OBF, you've missed my point. "Al" is not a person posting, it is a team of keyboard-beaters spamming. Look at the number of posts, ferchrissake. I would likewise defend an individual's right to post his or her point of view. Are "we better" when we let some machine post its fliers all over a substantive discussion?
Posted by: Chukuriuk on December 19, 2005 at 8:08 PM | PERMALINK

I don't care. Let them post. Every single time they hit that Post button, they expose themselves for the morons that they are. They lose every single argument on the facts, every single time. And every single time, they live on in the twisted denial assured that they've won. They're idiots, and they don't even know they're idiots.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 8:14 PM | PERMALINK

shudda hit the Preview button.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 8:15 PM | PERMALINK

sinop85,

you win the "its all Clinton's fault" I'm-an-idiot prize.

Why do you go to that line everytime? I did not blame Cliton. It is historical fact that this capability has been around since Clinton authorized it's use. The Questions was would I trust Pres. Hillary Clinton and my answer was yes. I trusted when her husband made the capability. I trusted when Bush used it, and I will trust when the next President uses it. THat is because we have checks and balances, even if Reid wants to cry, he did it, I was just watching. Quit whining when your let's get Bush activites blow up with facts.

Posted by: sinop85 on December 19, 2005 at 8:18 PM | PERMALINK

I found Rockerfeller's letter pretty lame. It was just making a record that he was making some unspecified objections. It is the kind of thing designed to protect Rockerfeller, but does nothing to address or correct any problems. If there was a significant problem, Rockerfeller took no real action to address it. Couldn't he at least of identified the purported problem in his letter, if he was trying to do anything other than to cover his behind?

Posted by: brian on December 19, 2005 at 8:18 PM | PERMALINK

They're idiots, and they don't even know they're idiots.

But they're useful idiots in the true meaning of Lenin's phrase.

Posted by: Windhorse on December 19, 2005 at 8:18 PM | PERMALINK

george W bush is a good man, but he's been drugged by the deputy fuhrer. It's an echo from the future - just like Melakon is going to do to Jonh Gill on stardate 2534.0. We need Bones to revive W!
http://en.wikipedia.org/wiki/Patterns_of_Force
Posted by: Republican sheep [trekkie division] on December 19, 2005 at 8:08 PM | PERMALINK

I would have used the story about when Lex Luthor (Saddam Hussein) used Red Kryptonite (http://en.wikipedia.org/wiki/Kryponite) on Superman (George W Bush), and made him rob all those banks. . .

Posted by: Republican sheep on December 19, 2005 at 8:20 PM | PERMALINK

I trusted when Bush used it, and I will trust when the next President uses it. THat is because we have checks and balances, even if Reid wants to cry, he did it, I was just watching. Quit whining when your let's get Bush activites blow up with facts.
Posted by: sinop85 on December 19, 2005 at 8:18 PM | PERMALINK

Forgive me if I don't trust Bush. He's been known to lie in the past. Honesly, I think you're kind of gullible, and maybe borderline moronic. Quit whining when your "let's trust Bush" activities result in a fascist reich.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 8:26 PM | PERMALINK

All the President needs to do to protect the American people from terrorists is read his PDB's. He didn't do that in August of 2001 and 9/11 occurred.

The state of war is one created by an illegal invasion of a sovereign country. Many of Bush and the Republican Congress's rich friends have not sacrificed much for this war. In fact, many have profitted extremely well from this war. It appears that most of the Bush apologists have not sacrificed much for this "state of war." And, those of you who think Bush agonized over his decision to go to war in Iraq, I have a bridge in Brooklyn I'd like to sell you.

Posted by: Mazurka on December 19, 2005 at 8:29 PM | PERMALINK

sinop85 said:
It is historical fact that this capability has been around since Clinton authorized it's use.

That's patently false.

Echelon has been around since the end of WWII, and it was developed for the NSA's use on civilian intercepts in 1974. The NSA had operated and continued to operate without oversight until Clinton got legislation through Congress for Congress to oversee the NSA's operation.

Posted by: Marian on December 19, 2005 at 8:30 PM | PERMALINK

L'etat C'est moi fuckers.

W.

Posted by: Vinnie on December 19, 2005 at 8:30 PM | PERMALINK

I trusted when Bush used it, and I will trust when the next President uses it. THat is because we have checks and balances, even if Reid wants to cry, he did it, I was just watching. Quit whining when your let's get Bush activites blow up with facts.
Posted by: sinop85 on December 19, 2005 at 8:18 PM | PERMALINK

What checks and balances are you talking about? Bush is claiming that he's free to operate outside of checks and balances.

Posted by: Donna on December 19, 2005 at 8:33 PM | PERMALINK

Wingnuts think that 'briefing' certain members of congress constitute a check on the executive

Posted by: WhoSays on December 19, 2005 at 8:37 PM | PERMALINK

What checks and balances are you talking about? Bush is claiming that he's free to operate outside of checks and balances.
Posted by: Donna on December 19, 2005 at 8:33 PM | PERMALINK

Bush's Id and Superego, I think, is what he's talking about. But then again, sometimes a cigar is just a cigar.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 8:39 PM | PERMALINK

If there was a significant problem, Rockerfeller took no real action to address it. Couldn't he at least of identified the purported problem in his letter, if he was trying to do anything other than to cover his behind?

It's pretty obvious Rockefeller couldn't be specific about his issues in that letter precisely because it was critical that all confidential aspects of the program be kept secret, and out of that letter. Obviously, he would have been more specific if he had felt it was right to record his objections in a letter he would be keeping in a presumably unsecured place.

I have all along been puzzled by why Democrats in Congress have said nothing in public in protest about this program until recently. I had wondered whether it was failure to disclose fully by the WH, or cowardice on the part of the Dems, or whether the relevant laws and context made the issue simply murky.

Putting it all together now, it seems like it's a combination of the three.

What is obvious is that the Bush WH took advantage of the very great secrecy of the program to ramrod it through and past Congressional "oversight". At least one Democratic former Senator, Graham of Florida, said that he simply wasn't informed in any adequate way. Rockefeller may have been informed - to what degree of adequacy is unclear -- but felt unable by background simply to pronounce it a legal or constitutional outrage, though he clearly registered his protest as best he could given the secrecy of the program.

Given the general complexity of the issues here, I don't see how anyone short of a Constitutional lawyer who has kept up with the progress of these issues could really pronounce with certainty on them. (I do wish we'd hear more such people weighing in on the matter.) It's pretty understandable that Democratic Congressional leaders would NOT feel comfortable raising a public outcry without being able to consult their own lawyers about this.

I also, though, have very little doubt but that Dems didn't push back hard against the program in a public way earlier because they feared political repurcussions if they seemed to be opposing Bush on an issue of national security. I'm sure that they realized, as did Rockefeller, that there was something far wrong about what was going on, but did not wish to take the political risks of even alluding in public to the potential for problems in this general area. It would hardly have been impossible for them to find SOME way of describing the problem publicly, or simply insisting that there WAS a problem in how intelligence was being gathered that they were very concerned about, which could not have been easily smeared as "leaking" confidential information.

It will be interesting and important to get exact accounts from Democratic COngressional leaders about what they knew, and what they did about what they knew, throughout this process.

At minimum, these people have some serious explaining to do.

Posted by: frankly0 on December 19, 2005 at 8:41 PM | PERMALINK

"The fact that FISA does not authorize the program does not mean that it violates FISA."

The entire point of FISA is to regulate spying by the executive branch. To whom else would it possibly be intended to apply? With FISA, Congress made spying on Americans illegal. FISA also provides a way to legally spy on Americans with the permission of the FISA court.

The President's argument is that he is not bound by the law. That's it, plain and simple, and he doesn't pretend otherwise. He gives us his personal assurance that he will only violate the law to make us safe, and he becomes petulant when we don't find his assurance very satisfying.

Great summary, Kevin, but best post (so far) on this subject goes to Michael Berube. We'll be talking about this one for a long time. I think it will go to the Supreme Court sooner rather than later, and I'm hopeful they'll reaffirm that our laws do indeed apply to everyone, even the president.

Posted by: Mark Gilbert on December 19, 2005 at 8:43 PM | PERMALINK

Donna-
you are incorrect when you state "Bush is claiming that he's free to operate outside of checks and balances." Please find any quote from Bush that supports this claim. I will listen to your argument.
Congress was briefed, and is continually briefed. Reid and Rockefeller both knew about the program and did nothing. They have oversight responsibility. They were free to follow up and demand further investigation, and didn't. Rule 4.2 of intell oversight states
"4.2 In any case in which the Committee is unable to reach a unanimous decision, separate views or reports may be presented by any member or members of the Committee."
Judicial has reviewed the precedences in the use and have ruled that this is not an illegal activity.

Posted by: Sinop85 on December 19, 2005 at 8:43 PM | PERMALINK

Windhorse
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.

Well, I expect the loyal opposition to always push back, and if they didn't, they failed in their role. I don't think Jay Rockefeller is going to appear on "Profiles in Courage" anytime soon by writing his bold sealed letter providing himself with political coverage. If he thought that Bush had gathered about powers to spy on his political opponents (which is what has been repeatedly suggested here) or just violated a federal law he ought to have stepped up and done something about it, rather than wait for someone to leak it to the NY Times.

Posted by: Red State Mike on December 19, 2005 at 8:44 PM | PERMALINK

Franko-
Actually Hugh Hewitt is a constitutional lawyer and has some interesting points on the legal matter (both sides, but obviously slanted to the right)

Posted by: Sinop85 on December 19, 2005 at 8:46 PM | PERMALINK

I've been reading the comments over at TPM, as well as Rockefeller's letter to Cheney, and a couple of questions keep nagging at me.

Rockefeller's comment in the letter about neither being a lawyer or a techie.

Bush's "there's no time so I can't go to FISA court" is ridiculous since the law allows for a wiretap to begin without authorization as long as they go within days/weeks. In all of the thousands of times Bush went to FISA, he was only turned down 1-4 times (depending on which cable channel you're watching). In the days after 9/11, Congress gave Bush everything he wanted, and then some.

The question then is what's so special about these wiretaps that Bush didn't go to FISA? Was it the method? Or the who?

That comment in Rockefeller's letter, about "where this administration is taking us" is ominous.

Anybody got any ideas about this?

Posted by: Amanda on December 19, 2005 at 8:51 PM | PERMALINK

frankly0 says: "Given the general complexity of the issues here, I don't see how anyone short of a Constitutional lawyer who has kept up with the progress of these issues could really pronounce with certainty on them."

Interesting. This is exactly what I stated on a prior thread only to be flamed heavily. I assume that you will all now do the same? I'd throw in one further caveat...that even an attorney working in national security law will need to know more in the way of scope and technical information than we now possess in order to give any sort of real pronouncement.

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

TJM writes:

This is a war-time president protecting us from people who want to kill us. Any action he takes is to protect us and this is all legal and above board.

If this is the case, why not ask a judge, as the law requires. In fact, the law (FISA) even allows you to ask a judge up to 72 hours retroactively.

Since this is the case, why in the world not ask a judge first? Answer that, and we'll take you seriously.

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

If FISA provides that all monitoring of relevant communications not authorized by FISA are unlawful, as someone earlier suggested, then there is an argument that the program violated FISA. But if it just authorizes certain monitoring, that does not mean all other monitoring is illegal (i.e., there could be authorization for it elsewhere).

On Rockerfeller's letter, I still don't think much of it. If Cheney provided him classified information in an oral conversation, why couldn't Rockerfeller's written response to Cheney on the same subject cover such issues specifically? He obviously thought he was keeping the letter secret, so it seems like the contents of the letter to Cheney (who obviously has clearance to receive classified information -- heck, he had given it to Rockerfeller) could have covered classified information. Seems like a very strange cover his behind letter from Rockerfeller

Posted by: brian on December 19, 2005 at 8:53 PM | PERMALINK

Shorter Al:

We have to ursurp the Constitution to protect it.

See Village, Destroying the to Save the . . .

Posted by: chuck on December 19, 2005 at 8:54 PM | PERMALINK

If every member of Congress had been fully informed and they had all said, "okey-dokey," that still wouldn't make it legal. They can only change the law BY CHANGING THE LAW.

Posted by: Mark Gilbert on December 19, 2005 at 8:55 PM | PERMALINK

"Given the general complexity of the issues here, I don't see how anyone short of a Constitutional lawyer who has kept up with the progress of these issues could really pronounce with certainty on them."

Seems to me that ought to be his job. He's a lawmaker, so he ought to be in the business of understanding them, or giving himself a crash course in FISA and other regulations. Checks and balances, and all that.

I think there's a lot more to this story. If it proves out OK, Bush made a mistake for not bringing in oversight in a *much* stronger way. If it proves out wrong...Bush is wrong for that.

Posted by: Red State Mike on December 19, 2005 at 8:56 PM | PERMALINK

Imagine, "Al" misrepresented the conclusions of the Truong court, which found:

'Although the Truong court acknowledged that almost all foreign intelligence investigations are in part criminal ones, it rejected the governments assertion that if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment. Id. at 915.'

Judging by the number of trolls hitting this thread, the Freepers must be nervous.

Posted by: SW on December 19, 2005 at 8:57 PM | PERMALINK

If this is the case, why not ask a judge, as the law requires. In fact, the law (FISA) even allows you to ask a judge up to 72 hours retroactively.

I suspect that they didn't know what "retroactively" meant.

Posted by: Boronx on December 19, 2005 at 8:57 PM | PERMALINK

Amanda: I think the answer (giving the best light possible to the administration) that Rockefeller's letter may suggest is that what is at stake is a technological capability (more on this on the comments to Orin Kerr's post at volokh.com) such that following FISA procedures is not practical. This may also explain why FISA was not amended -- the ways in which it was amended would reveal such capabilities to some extent. The fact that cmdicely (and others) cannot conceive of such a capability does not mean that it doesn't exist.

Posted by: Nathan on December 19, 2005 at 8:57 PM | PERMALINK

Chukuriuk:

OBF, you've missed my point. "Al" is not a person posting, it is a team of keyboard-beaters spamming. Look at the number of posts, ferchrissake. I would likewise defend an individual's right to post his or her point of view. Are "we better" when we let some machine post its fliers all over a substantive discussion?

Actually, all of us conservative posters are really AI computer programs, running on a variety of hardware platforms. The size and complexity of the platform and software are directly related to how much processing power is required to effectively respond to the level of rational discourse and intelligence on any given target site.

My program, for example, is running on an Osborne One.

Oh, BTW, that's a secret.

Posted by: tbrosz on December 19, 2005 at 9:00 PM | PERMALINK

Incidentally, I'm seeing a lot of people here who seem to be implying that informing the Intelligence Committee members isn't really "informing the Congress." Never mind that this is the entire point of the Intelligence Committees.

Is it your contention that national security matters in the future be presented to the entire House and Senate? Would they at least be able to empty the galleries first?

Posted by: tbrosz on December 19, 2005 at 9:03 PM | PERMALINK

Can somebody, preferably a techie, explain to me how Poindexter's TIA actually works?

Rockefeller mentioned it in his letter to Cheney, and after reading the letter a few times, I'm beginning to think that Rockefeller left a trail of breadcrumbs.

I think that what Bush has authorized the NSA to do with this spy program is a technological breakthrough that is such a violation of privacy that FISA (or any American court) would rule against its' use no matter who the target of the wiretap was.

Posted by: Amanda on December 19, 2005 at 9:04 PM | PERMALINK

other random thoughts:

1. the NSA is under the DOD...which makes an argument for using its capabilities under the 2001 AUMF a little more tenable than say so using the FBI.

2. it'd be interesting to see what was done with statutory construction in this matter by the lawyers who vetted it-- i.e. would it matter for FISA purposes if the intercept took place abroad in a physical sense?

3. I'm curious as to whether NSA counsel signed on -- if they did, that's big, because intelligence agency attorneys tend to be quite cautious and and are generally career employees.

Posted by: Nathan on December 19, 2005 at 9:04 PM | PERMALINK

I'd throw in one further caveat...that even an attorney working in national security law will need to know more in the way of scope and technical information than we now possess in order to give any sort of real pronouncement.

I do think context and history and in-depth understanding of the law are important here.

But here's my bet, given what I've heard so far: that virtually ANY person competent to make these judgments, who is NOT ideologically committed, will come down hard AGAINST what the Bush has done, as a breathtaking arrogation of improper power.

Just because it's complicated doesn't mean there isn't a clear right answer to those who DO understand all the issues - whether it be science or the law.

We'll see how well my prediction holds up -- there will be inquiries.

Posted by: frankly0 on December 19, 2005 at 9:04 PM | PERMALINK

Tbroz -- not my bro -- if you really have such a low opinion of the level of discourse here, then why do you show up at all? Is it just repetition compulsion?
You and your Osborne don't really do much to raise the level of sophistication, in any case.

Posted by: Chukuriuk on December 19, 2005 at 9:06 PM | PERMALINK

Amanda: I think the answer (giving the best light possible to the administration) that Rockefeller's letter may suggest is that what is at stake is a technological capability . . .
Posted by: Nathan on December 19, 2005 at 8:57 PM | PERMALINK

I think you're probably right. How Rockefeller talks about TIA. . . we're probably looking at some kind of tool that filters and collects data on a massive scale, and puts it into databases and subjects the data to various orderings and queries to uncover patterns - and if such a thing did exist, it would be very much like a "Fishing Expedition" - though it would be like taking a net from Alaska to Tierra del Fuego, and sweeping it across the Pacific ocean until you hit Asia/Australia, scooping up all the sea life, in order to find a Great White Whale.

This probably explains why they're doing such a poor job explaining it's justification. The poor saps probably don't understand it themselves. In fact, my guess is that it's probably something coded up by MZM, costing billions of dollars, and it probably doesn't actually do anything at all.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 9:06 PM | PERMALINK

Let's talk about the dog that didn't bark.

Kevin has had NOTHING to say about the year's biggest story -- the emerging democracy in Iraq and the overwhelming success story of our President's efforts in waging the war against terror(ists). Kevin, there was the third (and most peaceful) election this year in Iraq last week -- yet you take NO NOTICE of it. Why is that, Kevin? Is good news in Iraq bad news for you and your kind?

Kevin has had NOTHING to say about the leaks (to the New York Times reporter) about the President's authorizations for warrantless intercepts of communications between foreign powers and their agents within our borders. Surely, this disclosure harms all of us. And Kevin was apoplectic about the putative harm that the disclosure of the not-so-secret-agent Valerie-whatsername did and demanded time and again that the evil genius Karl Rove be disemboweled and beheaded. Why are you silent about these leaks, Kevin?

Now let's talk about this dog's barking.

The left's whining about these claimed "misdeeds" by our President is going to push his poll numbers well over 50% (he's back in the high forties now). The American public will overwhelmingly back a strong chief executive who takes our security seriously -- as opposed to you aging lefties who still want to party like it's 1999.

Now here's a lesson in Constitutional Law: No act of Congress can diminish the powers expressly granted to the President in our Constitution. It doesn't matter what's in or is not in FISA -- when the President acts in his capacity as commander-in-chief in defense of these United States, Congress may not interfere (and the Courts will not -- and have not).

Yeah, Kevin -- it's "ludicrous" that there's no case law on this. Right! And you wonder why I think you're a moron?

Posted by: Norman on December 19, 2005 at 9:06 PM | PERMALINK


KEVIN DRUM: In other words, the president's program is almost certainly illegal unless you accept his unprecedented notion that we are currently in a state of war so grave that he has virtually unlimited power to override federal law whenever he considers it necessary.

A war so grave that it has so far (assuming it began on 9/11/01) taken approximately 4,000 American lives, compared with the scores of thousands, hundreds of thousands, or millions that have been lost in other implicitly less grave wars. Clearly, the "state" of this war cannot be considered grave. If what he means is that the "potential" is grave, I don't know of anyone, even among the most ardent cautionaries of dire consequences from inaction, who predicts that casualties of terrorist attacks will exceed those of previous wars. Probably the most feared threat of terrorists is WMD, i.e., dirty bomb, biological or chemical weapons. While any of these has the potential to bring about death in numbers similar to 9/11, or even beyond that by some comparatively smallish factor, they are extremely unlikely to result in numbers of dead which would approach (much less exceed) those of previous wars. Thus, just as our current "state" of war is not "so grave," neither is its potential. Certainly, whatever potential there is for a state of war that would somehow surpass all other wars before, it is no greater than that potential has always been -- particularly since the development of atomic weapons. "So grave" is a made up term to describe a war that they made up.

So, yeah, like the war itself (hell, like his presidency, like .. like everything he touches), and as you say, Bush's program is illegal. But what I don't understand is how you could come to that conclusion and still refrain from openly, confidently, plainly and, well,-- for you, courageously -- calling for his impeachment.


Posted by: jayarbee on December 19, 2005 at 9:06 PM | PERMALINK

3. I'm curious as to whether NSA counsel signed on -- if they did, that's big, because intelligence agency attorneys tend to be quite cautious and and are generally career employees.

Posted by: Nathan on December 19, 2005 at 9:04 PM | PERMALINK

Nobody is talking, although Andrea Mitchell is reporting that the leak to the NYT came from within the NSA.

Posted by: Amanda on December 19, 2005 at 9:10 PM | PERMALINK

"I found Rockerfeller's letter pretty lame."

I find Rockfeller's lame. Period.
He could have resigned. When has this Senator stood
up for anything? And why have the Democrats put as
a ranking member on the Intelligence Committee their
lamest of all. His Chairman from Kansas is p... on him everyday, and Rockfeller pretends it is raining.

Posted by: Yoni on December 19, 2005 at 9:13 PM | PERMALINK

Seems to me that ought to be his job. He's a lawmaker, so he ought to be in the business of understanding them, or giving himself a crash course in FISA and other regulations. Checks and balances, and all that.

Look, clearly there are many issues in which legislators, quite intelligently, feel obliged to consult with their own staff regarding legal and Constitutional issues. The problem is, he COULDN'T DO SO, because of the secrecy of the issue.

He plainly understood the limits imposed by his own ignorance. Would that there were more in government, and even, say, on this very board, who did the same.

Posted by: frankly0 on December 19, 2005 at 9:14 PM | PERMALINK

Nice to see how Nathan has been posting like a madman on this topic and hasn't made a single relevant point.

The President has broken the law. Articles of impeachment should be forthcoming.

No President is above the law. Every good Republican who believes in what this country was founded upon and who believes that the Constitution is bigger than the man who sits in the White House better sign on to impeaching and removing this President.

I don't care if it is a Democrat or Republican in the White House--it's over. He's got to go.

Posted by: Pale Rider on December 19, 2005 at 9:15 PM | PERMALINK

Hello folks!

Just a tiny reminder about the bargain on Fourth Amendment white Tee's that are on sale at Cafepress

Be the first on your block to own this smart-looking tee which has the Fourth Admendment to the US Constitution printed boldly on the front. Wear it proudly, and enjoy the warm nostalgia of a bygone era when the 4th amendment actually meant something to people it was designed to serve.

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


I don't care if it is a Democrat or Republican in the White House--it's over. He's got to go.

Posted by: Pale Rider on December 19, 2005 at 9:15 PM | PERMALINK


I agree. However, there is a mystery attached to this story. It won't, as far as I'm concerned, change the fact that Bush has brought us to a Constitutional crisis and he has to go. But it seems that he's opened a Pandora's box and we are going to have to deal with it.

Posted by: Amanda on December 19, 2005 at 9:20 PM | PERMALINK

"Nobody is talking, although Andrea Mitchell is reporting that the leak to the NYT came from within the NSA."

which doesn't tell us much since there would be hundreds of employees with some knowledge.

one final thought: I assume most here consider themselves patriotic at some level. Are you willing to consider the possibility, the barest possibility -- that a significant amount of what you think you know about this matter is wrong? and further, the barest possibility that this technology is some extraordinary breakthrough which has done a world of good...and that a revelation of its capabilities would be incredibly harmful? are you at least willing to consider this before pushing too hard to have everything revealed?

the above possibility may well be wrong or even remote, but that doesn't mean it shouldn't be considered. if you consider the foregoing to be trolling, I don't think there's any hope for meaningful discussion.

Posted by: Nathan on December 19, 2005 at 9:35 PM | PERMALINK

Can somebody, preferably a techie, explain to me how Poindexter's TIA actually works?Posted by: Amanda on December 19, 2005 at 9:04 PM | PERMALINK

TIA was supposedly a project to cull your credit history from credit agency databases in to a single super database, to look for "suspicious behavior" or purchasing patterns. (flying lessons, nuclear materials, home anthrax brewing kits, donations to MoveOn.org, etc.)

... I'm beginning to think that Rockefeller left a trail of breadcrumbs.

Let's hope he's not that stupid. At least not as stupid as Libby with his "they turn in clusters" garbage. (well, I guess he only fooled the people that matter).

Look at it this way.

We've all heard of the infamous Carnivore. But most people don't know that Carnivore was a second generation version of an original tool called "Omnivore". The problem with Omnivore was that it ate everything. In other words, when it scanned internet traffic, it took in ALL the data, and the FBI was actually worried that it made it inadmissible in court, because information that was not named in the warrant would make the whole tap bogus. So they came up with Carnivore, which encrypted all of the data it brought in, and collated and categorized it, so that only specific information could be decrypted by an agent with the proper keys provided by his or her supervisor, with approval from a judge.

But the problem with Carnivore was, the protection is too easy for a BAD agent to circumvent, so they could still snoop on data they were not permitted to see under the warrant.

Only now, I guess, Carnivore has been abandoned in favor of some commercial tool. (and if you check Verisign's web site, you'll see them selling what is probably a good candidate).

Now, the difference between Carnivore, and Omnivore, and TIA -is: the first two being data stored perhaps in a structured way, but not in a relational database, but TIA would be a relational database. But TIA was only applying to financial transactions and records, supposedly. (I wonder if they found out who made all those PUT options on UAL and AMR the morning of 9/11 - *cough* Saudi Royals *cough*). TIA was supposedly going to be anonymized so that only activity patterns were going to raise red flags, to trigger investigations that would identify actual suspects. What Rockefeller seems to be intimating to is a tool to put communications/taps into a relational database.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 9:36 PM | PERMALINK

Nathan: Are you willing to consider the possibility, the barest possibility -- that a significant amount of what you think you know about this matter is wrong?

Sure I am. Please post again when you have some evidence rather than (what even you admit) is wild speculation.

BTW, are you willing to consider the possibility, the barest possibility -- that a significant amount of what you think you know about this matter is wrong, and that this is actually far worse than what has already been revealed?

Let's see, eavesdropping on political opponents (nah, no president has ever done that).

See, wild speculation cuts both ways.

and further, the barest possibility that this technology is some extraordinary breakthrough which has done a world of good...and that a revelation of its capabilities would be incredibly harmful? are you at least willing to consider this before pushing too hard to have everything revealed?

And are you willing to say that throwing the Constitution (which is "just a piece of paper", right?) into the trash, because of unjustified faith and wild speculation about the latest wonder technology, is a bad idea?

Posted by: alex on December 19, 2005 at 9:53 PM | PERMALINK

Nathan,

Are you willing to consider the possibility, the barest possibility -- that a significant amount of what you think you know about this matter is wrong? and further, the barest possibility that this technology is some extraordinary breakthrough which has done a world of good...and that a revelation of its capabilities would be incredibly harmful?

No.

Sorry, kid. I had to live with this stuff and abide by it in my duties. I had to serve around people who had to live this stuff, pay attention to this stuff, and maintain their compliance with these laws under constant threat of having their clearances revoked and under constant reminder that they could be prosecuted for violating the law.

The way you present the question sums up the ridiculousness of defending Bush43. I don't care who sits in the White House and I don't care if it was Bush, Clinton, Reagan or Warren G Harding--

It's wrong. It breaks the law. No President is above the law or above the Constitution and can do whatever the hell he wants.

Nice try though. Keep working at that whole law practicing thing. Might work out for you.

Posted by: Pale Rider on December 19, 2005 at 9:56 PM | PERMALINK

Nathan, I'll take the Bill of Rights thanks.

Posted by: WhoSays on December 19, 2005 at 9:58 PM | PERMALINK

This whole "technological" argument is nonsense, as far as it making obsolete the 72-hour window to get secret court approval.

The only reason not to go to the secret court is that the scope of what was being monitored would have been rejected by said court, or that the nature of the "technology" did not allow for the 72-hour window - for instance if the president just decided to record all international phone calls, and was just going to do some data mining against it, in order to pick up communications that may be suspect, so that they then could go get more traditional warrants.

If this is the case, this is a lot like TIA, and clearly unconstitutional.

Posted by: Jimm on December 19, 2005 at 9:58 PM | PERMALINK

In any case, we obviously need to put an amendment into the constitution to protect the right to privacy. It is such a popular issue, it will pass easily, and it will be political suicide to oppose it.

Posted by: Jimm on December 19, 2005 at 9:59 PM | PERMALINK

Jimm, I bet anything Tbrosz, rdw, FWG, cheney/charlie, alice/patton, Norman etc would definitely be against an amendment that protected privacy.

Posted by: WhoSays on December 19, 2005 at 10:00 PM | PERMALINK

Nathan: the barest possibility that this technology is some extraordinary breakthrough which has done a world of good...and that a revelation of its capabilities would be incredibly harmful? are you at least willing to consider this before pushing too hard to have everything revealed?

What's absurd about the claim that we need new wonder technologies for eavesdropping, and to throw the Constitution in the toilet, is that it ignores the lessons of 9/11.

Lack of intel was not the problem - a failure to act on it was. Anybody remember the FBI guy in the Phoenix office screaming about suspicious characters learning to fly planes but not land them? There's other stuff, but this is the most blatant. Heck, they could have picked up some of the perpetrators on visa violations - no Big Brother needed.

Posted by: alex on December 19, 2005 at 10:06 PM | PERMALINK

Let's talk about the dog that didn't bark.
Posted by: Norman on December 19, 2005 at 9:06 PM | PERMALINK

Can we please refrain from talking about your mom for one thread? Jeez.

Kevin has had NOTHING to say about the year's biggest story --

. . in your mind. . .

the emerging democracy in Iraq

. . . for a sufficiently loose definition of "democracy". . .

and the overwhelming success story of our President's efforts in waging the war against terror(ists)

. . . is it a success if it bankrupts the nation both fiscally and morally?

Kevin has had NOTHING to say about the leaks

What do you want him to say? If the law was broken, the lawbreaker should be punished. End of story, nothing more to see. Nobody's defending the leaker.

And if Bush broke the law - he should also be punished.

Surely, this disclosure harms all of us.

Yes, especially those terrorists who didn't suspect they were being spied on. Dumbass. When privacy is outlawed, only outlaws will have privacy.

And Kevin was apoplectic about the putative harm that the disclosure of the not-so-secret-agent Valerie-whatsername did

Good evening, and welcome to another episode of "Apples and Oranges". Tonight, we'll talk about how outing an agent working on nonproliferation for purposes of political revenge, character assassination, and obstructing the investigation on intentionally faked intelligence, bears absolutely no equivalency to blowing the whistle on an illegal state surveillance program that violates the 4th Amendment rights of all Americans.

The left's whining about these claimed "misdeeds" by our President is going to push his poll numbers

Bush's poll numbers right now, are a function of election hype. In twelve months time, when the mullahs are having women stoned, and adulterers beheaded in the public square in Iraq, and their economy is still in the shitter, and the Iraqi prime minister starts singing a duet with the Iranian prime minister of "Let's burn Israel off the map with nukes" - will Bush's poll numbers be so high?

Now here's a lesson in Constitutional Law: No act of Congress can diminish the powers expressly granted to the President in our Constitution.

False pretenses=false war=false powers.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 10:08 PM | PERMALINK

I bet anything Tbrosz, rdw, FWG, cheney/charlie, alice/patton, Norman etc would definitely be against an amendment that protected privacy.

Yea, but these fools are radical right wing dead enders. Even tbrosz has basically given up all his original pretense about being a classical liberal/libertarian.

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

Ok, now lets leave peoples mothers out of the debate

Posted by: WhoSays on December 19, 2005 at 10:13 PM | PERMALINK

In any case, we obviously need to put an amendment into the constitution to protect the right to privacy.
Posted by: Jimm on December 19, 2005 at 9:59 PM | PERMALINK

Such an amendment will be watered down by the righties with ambiguous wording and loopholes, and such an animal would only make matters worse. Let's just honor the 4th amendment, m'kay?

Posted by: Osama_Been_Forgotten on December 19, 2005 at 10:15 PM | PERMALINK

There is no comparison to Valerie Plame leak, since that was not whistleblowing, but leaking classified information for partisan political (self) interest.

This NSA leak seems clearly to be coming from someone concerned about illegal activities that were being hidden from the American people, and thus quite clearly fits the description of whistleblowing.

If it turns out the government did nothing illegal, and that this should have been obvious to the leaker, then the leaker should be prosecuted.

But, as we can already see, and especially can detect from the conflicting stories and nonsense coming from the Bush Administration about 'speed', as if 72 hours from now is too slow, it is not clear at all that the leaked program is legal, and the initial presumption seems to be the opposite, that is very definitely in illegal and in contravention of the Constitution.

Posted by: Jimm on December 19, 2005 at 10:15 PM | PERMALINK

Such an amendment will be watered down by the righties with ambiguous wording and loopholes, and such an animal would only make matters worse. Let's just honor the 4th amendment, m'kay?

No, and with all due respect, this is not your brightest statement OBF. Us talking about "honoring" the 4th amendment doesn't mean jack shit to a judiciary led by Scalia and Thomas. The 4th amendment is good for what is good for, which is NOT protection of a general right to privacy.

When you hear the courts deliberating about whether there is or is not a right to privacy, it is obvious the 4th amendment is not definitive. We need to make it definitive, and not something dreamed up by the judiciary reading between the lines (and subject to the whim of the ideological lean of the court at the time in question).

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

Craigie -- Hillary would prolly be all in favor of using those powers. In fact, let's listen to the deafening noise of ex-presidents commenting on Bush's illegality.

Posted by: SocraticGadfly on December 19, 2005 at 10:20 PM | PERMALINK

Fuck the ex-presidents...they hardly speak for the people. Either it is legal, or it is not. If it is legal, we need an explanation on our constitutional rights, and how they are trumped without even Congress having to bother with declaring war.

Posted by: Jimm on December 19, 2005 at 10:25 PM | PERMALINK

Kevin, e-mails from within the U.S., by U.S. citizens like me, to Bolton, are NOT in any way related to foreign intelligence.

Please either do a follow-up to your "NSA and the law" post or rewrite the first graf. It's wayyyy too weak.

From someone who was participated in multiple antiwar rallies in multiple cities, quite possibly e-mailed Boton via an action alert from Amnesty International, the ACLU or somebody else, and who wrote his first antiwar op-ed in the summer of 2002, I'm pissed.

In other words, as someone who seriously wonders if he has been spied on, I'm pissed.

Please, let's not go mealymouthed on this.

Posted by: SocraticGadfly on December 19, 2005 at 10:26 PM | PERMALINK

No, and with all due respect, this is not your brightest statement OBF.

That's okay. I'm not here for respect.
-
I just don't believe that our congress has the brain power (not THIS congress, probably not the next one) to come up with an amendment that's going to be worth the paper it's written on. What you say about Scalia (etc.) is true - but it's not the law we need to change. It's our elected officials. The leg-spreader wing of the Democratic party as well. The Zell Millers, the Hillary Clintons, the Joe Liebermans. They handed this country over to the Bushists.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 10:27 PM | PERMALINK

Jimmm:

Totally agreed about an explicit right-to-privacy Amendment.

It needn't be complexly worded.

Bob

Posted by: rmck1 on December 19, 2005 at 10:28 PM | PERMALINK

. . . If it is legal, we need an explanation on our constitutional rights, and how they are trumped without even Congress having to bother with declaring war.
Posted by: Jimm on December 19, 2005 at 10:25 PM | PERMALINK

This is true.

If our elected officials are going to ignore the constitution, then other than as a piece of pro-US propaganda, what's it even good for.

Posted by: Osama_Been_Forgotten on December 19, 2005 at 10:31 PM | PERMALINK

SocraticGadfly: Hillary would prolly be all in favor of using those powers. In fact, let's listen to the deafening noise of ex-presidents commenting on Bush's illegality.

Let me make a suggestion. Perhaps we should have a government based on laws, rather than people. Maybe we should even agree on a set of organic laws, which are difficult (but not impossible) to change, and which, in addition to defining the structure of our government, list various rights which may not be overriden by ordinary statutes, case law, or by any person regardless of office. For extra protection, we could divide this government into various branches, each with a role in keeping the other from abusing these rights ...

Nah.

Posted by: alex on December 19, 2005 at 10:33 PM | PERMALINK

Kevin,

Read Volokh again. You cited him as a source and ignored his conclusions- which is typical liberal pseudo-intellectualism. There's a question on whether FISA can restrict the President on 'foreign intelligence' - which would override all of this.

Plus you are missing the public opinion aspect of this. Keep pushing this and the Democrat party will truly end up the Party of Carter for all time.

Posted by: McAristotle on December 19, 2005 at 10:43 PM | PERMALINK

There is no public opinion risk or threat to freedom, rights, and Constitution loving Americans.

After all, Bush has been promoting this grand constitutional democracy we have in selling the war for 4 years now. It's fresh in people's minds.

People are not going to look the other way, and there is no blowback for pursuing this violation of our constitutional rights. If we not protect them, we don't have them.

Posted by: Jimm on December 19, 2005 at 10:56 PM | PERMALINK

McGriddles lecturing anyone on 'reading comprehension' is high satire and wry irony all mixed in with a touch of slapstick.

Posted by: Pale Rider on December 19, 2005 at 10:58 PM | PERMALINK

Kevin didn't site Volokh, but a commentator on Volokh's site. Thus, Volokh's conclusions are irrelevant (though Orin Kerr's might be relevant, if Kevin was limited to the conclusions of those he draws information from, rather than those he chooses to draw on his own from the available information that Orin partially accounted for).

Posted by: Jimm on December 19, 2005 at 10:58 PM | PERMALINK

Here's a follow-up to my plea to Kevin, who claims case law isn't clear on this.

Well, that's not what Alter says, in the very story you linked:

"No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. "

Note the phrase, "Clear violation."

Now, you can argue Alter's cherrypicking his lawyers, but outside of BushCo, I haven't even heard White House counsels for previous presidents stand up to take a hit for Bush on this one yet.

I stand by my contention. And it's not just mine, obviously.

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

Every good Republican who believes in what this country was founded upon and who believes that the Constitution is bigger than the man who sits in the White House better sign on to impeaching and removing this President...I don't care if it is a Democrat or Republican in the White House--it's over. He's got to go.

Pale Rider: What differece does it make? If Bush goes, Cheney will still be president.

Posted by: Henry IV on December 19, 2005 at 11:10 PM | PERMALINK

Henry IV,

Is he healthy enough? Probably not. Then you go to Hastert and Ted Stevens.

Not exactly a wonderful series of brilliant choices, but oh well.

Posted by: Pale Rider on December 19, 2005 at 11:15 PM | PERMALINK

Chukuriuk:

OBF, you've missed my point. "Al" is not a person posting, it is a team of keyboard-beaters spamming. Look at the number of posts, ferchrissake. I would likewise defend an individual's right to post his or her point of view. Are "we better" when we let some machine post its fliers all over a substantive discussion?

Okay. Here is how it looks like it is working to me, anyway: Ever since the Do Not Call Registry has been enacted, all those irritating boiler room employees had to go looking for another gig. Lo and behold, what is a burgeoning industry? Blogging!!!! So, there are now boiler rooms of Cheneys/Charlies/Als/The Troll of the Month. Perhaps, instead of being paid per teleconnection made, they are paid per blog posted. Easy enough to measure and document.

They are handed their talking points and cherry picked references for the days news from a political hack committee....and the rest is what you see before you. There could be many Als or Cheney's or Who-ever in any given boiler room. From the frequency of the posts by any given Troll here, this seems entirely plausable to me.

Just an idea, anyway...

Posted by: rainyday on December 19, 2005 at 11:17 PM | PERMALINK

Impeachment of President Bush will never happen in a GOP-controlled Congress, or in the midst of their fantasy of "wartime", and the point is to shame, tar, and feather them, and imprison as many of them as practical, while positioning to win the next election, at least one wing of Congress, so that we can put some sanity back into leadership and governance, and the American people can have some confidence again (instead of the comedy of errors and tragedy currently foisted upon us).

Posted by: Jimm on December 19, 2005 at 11:26 PM | PERMALINK

Now, you can argue Alter's cherrypicking his lawyers, but outside of BushCo, I haven't even heard White House counsels for previous presidents stand up to take a hit for Bush on this one yet.

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

Maybe this is why?:
http://www.huffingtonpost.com/martin-garbus/the-presidents-men_b_12485.html

Posted by: Amanda on December 20, 2005 at 12:46 AM | PERMALINK

Some more follow-up on "Al's" repeated assertions regarding United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980): "Al" left out a few important things from the court's opinion in that case. For one, the wiretapping in that case began before FISA was enacted, as the court noted:

The practical difficulties of obtaining a warrant for foreign intelligence surveillance were particularly acute at the time this surveillance was conducted, because Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-20, which specifies warrant procedures, contained no procedures tailored to foreign intelligence surveillance. In fact, in Title III Congress explicitly chose not to address the sort of surveillance involved in this case when it disclaimed any intent to "limit the constitutional power of the President to take such measures as he deems necessary . . . to protect national security information against foreign intelligence activities." 18 U.S.C. 2511(3). That disclaimer was repealed by the Foreign Intelligence Surveillance Act of 1978, see note 4, infra, which established a mechanism to govern the issuance of warrants for foreign intelligence surveillance.

Id. at 913 n.2. Obviously, it would have been hard for the government to comply with the FISA procedures before they existed.

The Fourth Circuit was faced with an untenable situation: If it ruled the warrantless wiretapping in that case was unconstitional, it would have overturned the espionage conviction of a clear North Vietnamese agent. As courts often do when faced with such tough situations, it temporized by creating a narrow "foreign intelligence" exception to the Fourth Amendment. (Note to nonlawyers: Courts make law all the time. They're supposed to.) In creating this exception, the court expressed concern about its being unduly wide:

However, because individual privacy interests are severely compromised any time the government conducts surveillance without prior judicial approval, this foreign intelligence exception to the Fourth Amendment warrant requirement must be carefully limited to those situations in which the interests of the executive are paramount.

Id. at 915. The court went on to list several limitations on such wiretaps:

First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators. ... When there is no foreign connection, the executive's needs become less compelling; and the surveillance more closely resembles the surveillance of suspected criminals, which must be authorized by warrant.

[...]

Second, as the district court ruled, the executive should be excused from securing a warrant only when the surveillance is conducted "primarily" for foreign intelligence reasons. We think that the district court adopted the proper test, because once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution. We thus reject the government's assertion that, if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.

[...]

Even if a warrant is not required, the Fourth Amendment requires that the surveillance be "reasonable." The reasonableness of the surveillance is determined by examining the circumstances of the particular case.

Id. at 915-16. In short, "Al" overstates the holding of a case that is of limited relevance today, given the subsequent enactment of a statute providing procedures for warrantless wiretaps. From reading the opinion, I think it's doubtful the result would have been the same had FISA been in place at the time.

Posted by: Kenneth Fair on December 20, 2005 at 1:14 AM | PERMALINK

There is no way that bush should take all the blame for this, though. Congress knew, they did nothing, which is just as bad if not worse since they did have the power to halt it.

Posted by: Alex Brahleen on December 20, 2005 at 5:21 AM | PERMALINK

First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators. ...

Posted by: Kenneth Fair on December 20, 2005 at 1:14 AM | PERMALINK

This looks pretty relevant when only one end of the call is American based. Doesn't it?
How can you quote it and ignore its relevance?

Oh, too many years of liberal dogma ossified your brain.

Posted by: McAristotle on December 20, 2005 at 8:35 AM | PERMALINK

So far as I can read:
1) There was already a good method in place if the White House/NSA felt that conversations needed to be monitored: get a warrant from the FISA court. It was secret, fast, and could even be used retroactively. And, it almost never turned down requests.

2) No one who supports the double-secret, no-warrant eavesdropping has offered any compelling reason why this process could not be followed.

3) The President of the United States is not above the law. Not in wartime, not in peacetime.

4) No declaration of war = the President should be immediately shot down for any claims of *any* special *wartime* powers.

5) No one outside of Freeper nation buys the concept that the AUMF authorizes no-warrant spying.

Posted by: short fuse on December 20, 2005 at 11:30 AM | PERMALINK

Is impeachment the only legal recourse against a sitting President? If the President broke federal law, can he be tried in Federal Court?

Posted by: hokiefan on December 20, 2005 at 12:13 PM | PERMALINK
No declaration of war = the President should be immediately shot down for any claims of *any* special *wartime* powers.

Its also worth noting that the legal effect of declared war on FISA is spelled out in FISA -- the President may authorize 15-day warrantless wiretaps without adhering to the provisions usually restricting warranted or warrantless surveillance under FISA. The claim being made here is of power that exceeds what would be gained with declared war.

Posted by: cmdicely on December 20, 2005 at 12:14 PM | PERMALINK

Huh? Congress WAS consulted. If Congress had a problem with the program, they should have (and could have) passed a law specifically outlawing it

Al, Congress doesn't give out warrants, the judiciary does.

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

Also see:

http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html

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

Posted by: Stephen on December 20, 2005 at 12:28 PM | PERMALINK

Amanda

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 4:31 PM | PERMALINK

The Gorelick Memo?

Please. What a pathetic canard.

If Clinton did it, Bush can do it, and let's blame Jamie Gorelick when everything goes to shit.

The fact of the matter is, Reagan and the elder Bush didn't run around blaming others for their problems. I seem to recall both of them being man enough to admit their mistakes and stand before the American people and answer for themselves.

Hey, could Bush43, you know, take a few major press conferences once in a while? Like, instead of canned speeches in front of the uniformed military? The recent exposure he's had ain't cutting it.

Prime time, 90 minutes with the press, no question off the table.

Once a month, til every American soldier is home safe and sound.

Posted by: Pale Rider on December 20, 2005 at 5:53 PM | PERMALINK

pale rider,

I remember slick willie admitting his mistakes, 9 months after denying he made any and a day after a certain blue dress appeared.

GWB will do what he thinks is best. If he thinks your advice is smart he'll follow it. Otherwise he won't. Since he's won 4 elections and you none I don't think he'll be listening to you.

Get used to hearing Jamie on this subject as well as Slick Willie. It's perfect politically. Here's something else:

PATRIOT ACT POLLING
A new CNN/Gallup/USA Today poll finds that only 34 percent of the public thinks that the Patriot Act goes too far. Sixty-two percent approve of it (44 percent) or think it doesn't go far enough (18 percent).
Posted at 04:00 PM

You have to see how powerful this is politically. GWB has the polls on his side, Bill Clinton on his side and the law on his side.

He can't lose. He will dare the Congress to file a legal challenge. He gets to take this to his supreme court and kick their asses.

Brit Hume just gave Jamie Gorlich and Bill Clinton center stage playing their quotes and positions on this subject. You can expect GWB to suethis as well.

Posted by: rdw on December 20, 2005 at 6:42 PM | PERMALINK

RDW:
In a related note, Stalin's policies had a 97% approval rate.

It doesn't mean they were legal, or otherwise defensible.

Posted by: short fuse on December 20, 2005 at 8:55 PM | PERMALINK

short fuse,

what are you babbling about with Joe?

The process is both legal and defensible. The Clinton AND Carter administrations approved wiretaps directly. You twits have youe hair on fire over nothing.

It is my hope and prayer the DNC leadership pursues a legal case and this go to the Supreme court. It will be a historic victory for GWB.

Posted by: rdw on December 20, 2005 at 9:51 PM | PERMALINK

Brit Hume just gave Jamie Gorlich and Bill Clinton center stage playing their quotes and positions on this subject. You can expect GWB to suethis as well.

Thank God someone is still watching Fox News. Whoops, it turns out more Republicans are starting to flip, rdw. Must suck being pulled under by the weight of your self-parodying bullshit.

Posted by: Pale Rider on December 21, 2005 at 8:47 AM | PERMALINK

pale rider,

The ratings are 4 to 1 versus CNN.

Someone is watching.


Posted by: rdw on December 21, 2005 at 11:20 AM | PERMALINK




 

 

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