Editore"s Note
Tilting at Windmills

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January 24, 2006
By: Kevin Drum

FISA UPDATE....I'm still confused about a number of things, but as near as I can tell here's the state of play on the NSA's domestic spying program:

  1. The administration has acknowledged that the NSA program violated the FISA act. However, Attorney General Alberto Gonzales argues that the Authorization for Use of Military Force, passed shortly after 9/11, superseded FISA.

  2. Yesterday, General Michael Hayden said that the reason they had to bypass FISA was because it required a showing of "probable cause" that the target of a wiretap request was a foreign power (i.e., either a terrorist organization or a foreign state). That standard was apparently too difficult to meet in many cases.

  3. As Glenn Greenwald reports today, in 2002 congressman Mike DeWine introduced an amendment to FISA that would have retained probable cause as the standard for U.S. persons (i.e., citizens or foreigners with permanent residency) but lowered it to "reasonable suspicion" for non-U.S. persons.

  4. Congress refused to pass DeWine's amendment. This makes it plain that Congress did not intend for AUMF to loosen the restrictions of FISA.

So this leaves only the argument that the president's inherent constitutional powers give him the authority to order wiretaps of U.S. citizens even when Congress has passed laws forbidding it. There is, as near as I can tell, no case law that supports this view.

It's worth noting, by the way, that the administration has been adamant that calls are only monitored if one end of the call is outside the United States. But why not also monitor calls within the United States? Last month General Hayden said simply that "that's where we've decided to draw that balance between security and liberty" in this case "we" meaning the president and the NSA. This rather strongly implies that George Bush believes there's nothing stopping him from ordering 100% domestic wiretapping if he feels like it, and nothing Congress can do about it if he does. So much for Article I Section 8.

Kevin Drum 7:20 PM Permalink | Trackbacks | Comments (147)

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Comments

Does this mean that e-mail is not being monitored at all? But why should anyone take these people at their word?

Posted by: bob h on January 24, 2006 at 7:26 PM | PERMALINK

it remains as true today as it was when the story first broke: the reason people use the word "impeachment" is that there does not seem to be any other way to make bush stop.

and impeachment isn't going to happen.

so nothing is going to make bush stop. their argument - so audacious in its sweep - crumbles if they start, like, obeying the law, and bush doesn't seem to see any upside in obeying the law, anyhow.

i sincerely doubt that they would stop even if the supreme court ruled against them, not that i think a court with roberts, scalia, thomas, and alito is going to rule against them.

however, there are now enough republican senators on the record as thinking that bush has exceeded his authority that the possibility of a special prosecutor to investigate looks a little more likely than it once did, but that's small cheer compared to the ongoing illegality.

Posted by: howard on January 24, 2006 at 7:28 PM | PERMALINK

howard is correct. The guy will not stop.

Also, Kevin, being able to spell "supersede" correctly puts you among maybe 2% of the population. Way to go.

Posted by: shortstop on January 24, 2006 at 7:34 PM | PERMALINK

I think the following indicates that your point #1 is too generous toward the Administration. Gonzalez seems to indicate that the executive has inherent authority outside of AUF to conduct such wiretapping:

I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity. Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, obviously, during the world wars, as we intercepted telegrams in and out of the United States. Signals intelligence is very important for the United States government to know what the enemy is doing, to know what the enemy is about to do. It is a fundamental incident of war, as Justice O'Connor talked about in the Hamdi decision. We believe that -- and those two authorities exist to allow, permit the United States government to engage in this kind of surveillance.

Gonzalez is suggesting that the AUthroization just further confirms the executive's inherent warmaking power to eavesdrop whenever they feel like it.

Posted by: dan on January 24, 2006 at 7:38 PM | PERMALINK

I wouldn't assume they are being honest that only international calls are monitored, any more than their assertions that they are 'targeting terrorists' proves that others are not caught in the net. They are purposely using ambiguous language to mask what has really occured.

Posted by: tinfoil on January 24, 2006 at 7:38 PM | PERMALINK

The only reason this shit keeps happening is that the Republicans control both Houses of Congress and the media. Cheney and Rove and Abu know that there are no consequences for their actions. I'm not optimistic that any meaningful change will occur unless the D's capture at least one House in 2006.

Posted by: eagleye on January 24, 2006 at 7:39 PM | PERMALINK

I brought up "reasonable suspicion" in a comment yesterday and the fact that the only argument Bush has is authorization pursuant to his emergency exception in Art. 2.

I initially analyzed this program as coming down to two conclusions: either the Administration knowingly violated the law or the program could not meet warrantless exceptions nor requirements for a warrant. Then the public disclosure brought up technology issues, national security concerns, new definitions of war and terrorism, etc.

Now, I am focusing on the NSA's original purpose of being able to do globally what it cannot do domestically, and that is a major snooping operation turned inwardly. Its one thing to spy on other countries' spies, agents, government activity, etc., but its another to focus on groups of people whose only association is with one another as opposed to being associated with a particular country and the "going's on" within.

Thus, this operation could be far more nefarious than I first suspected, most particularly with the subpoena upon Google to produce trade secrets, per se, or the government wanting to figure out how a Google operates within.

Could this really be a way for the government to finally have control over all communications?

Posted by: union on January 24, 2006 at 7:40 PM | PERMALINK

The other important points in Greenwald's writing is that the DoJ wouldn't support DeWine's amendment because 1) of the Constitutional 4th Amendment conflicts, and 2) they weren't having any problems getting their warrants out of the FISA court, anyway!!

Posted by: Robert Earle on January 24, 2006 at 7:42 PM | PERMALINK

So this leaves only the argument that the president's inherent constitutional powers give him the authority to order wiretaps of U.S. citizens even when Congress has passed laws forbidding it. There is, as near as I can tell, no case law that supports this view.

In fact, according to Chief Justice Roberts, where the president is acting contrary to congressional authoritythe presidents authority is at its lowest ebb. (referencing the landmark Supreme Court case Youngstown Sheet). via Thinkprogress.com

Posted by: bren on January 24, 2006 at 7:43 PM | PERMALINK

Here's a tongue-in-cheek treatment of how ridiculous is the administration's treatment of this issue: http://eclecticfloridian.blogspot.com/2006/01/bush-i-robbed-bank-other-day.html

or, how about a comment about the Attorney General's part in all this:
http://eclecticfloridian.blogspot.com/2006/01/us-attorney-general-as-presidents.html

Posted by: Eclectic Floridian on January 24, 2006 at 7:43 PM | PERMALINK

Our republic is in serious danger if both of the following become accepted -

a) we are at perpetual war, at the discretion of the president

b) civil liberties can be suspended during war, again at the discretion of the president

Posted by: tinfoil on January 24, 2006 at 7:45 PM | PERMALINK


So why is it that Cheney can decide to listen to our conversations, but we're not entitled to know who made our enegy policy? We're supposed to trust the gander (with gout?), when we're the goose? Oh, I forgot by asking I'm helping our enemies...Sorry.

Posted by: horatio on January 24, 2006 at 7:46 PM | PERMALINK

In '02 an amendment to the Patriot Act which would lower the standard from probable cause to "reasonable suspicion" when dealing with non-U.S. citizens was rejected by both the administration and ultimately Congress as unconstitutional.

So, someone please explain how this standard is okay to use with lawful American citizens?

Posted by: Scott Bannon on January 24, 2006 at 7:47 PM | PERMALINK

There is, as near as I can tell, no case law that supports this view.

Don't worry, Alito supports this view, as does Roberts, Scalia, Thomas.... who else on the SC?

Remember, under the Constitution, the President is the law, especially when fighting a war that only the President has declared.

Posted by: jim p on January 24, 2006 at 7:49 PM | PERMALINK

There is, as near as I can tell, no case law that supports this view.

Not just that; there's quite a bit of case law that directly contradicts that view.

Posted by: dj moonbat on January 24, 2006 at 7:54 PM | PERMALINK

On Scalia:

He's more ambivalent about government expansion of authority especially when technology is involved. (i.e.- case where he wrote majority opinion that infra-red scopes and goggles used by military cannot be used to spy into people's houses).

Posted by: union on January 24, 2006 at 7:55 PM | PERMALINK

Its like looking for a needle in a hay stack.

And you guys would have us get probable cause and a warrent for each piece of hay?

72 yours, whatever...
This is a new kind of war...and its an intelligence war...

(back off before you say or do something that you will regret!)

Posted by: Fitz on January 24, 2006 at 7:56 PM | PERMALINK

Jesus Christ why can't you just trust the man? Does he not breath the same air you do? If you cut him does he not bleed? What reason other than national security could he possibly have for intruding on your private life?

Enough with this irrational Bush hating.

Posted by: tbrosz on January 24, 2006 at 7:59 PM | PERMALINK

Yesterday, General Michael Hayden said that the reason they had to bypass FISA was because it required a showing of "probable cause" that the target of a wiretap request was a foreign power (i.e., either a terrorist organization or a foreign state). That standard was apparently too difficult to meet in many cases.

This seems to suggest that they are spying on "U.S. persons" and having a difficult go at coming up with "probable cause" to justify spying on whoever they are spying on, perhaps citizens, in terms of the being "foreign".

In other words, they're spying on "U.S. persons" and unable to come up with even "probable" cause for suspecting they are "foreign".

This also explains why they rejected the Congressional offer to amend FISA for "non-US persons", since to do this officially would really drive a stake through the fallback AUMF argument when it comes to spying on "U.S. persons". One could suspect that the Bush Administration really wanted the FISA expansion to cover more than non-US persons, and when that fell through they backed away altogether to save the last justification for spying on U.S. persons.

Of course, the knowledge that this occurred and there was interaction with Congress, and possibly failed negotiations to allow for spying on U.S. persons, is pretty much argument enough that the Bush Administration's interpretration of the overriding nature of AUMF is fantasy.

Posted by: Jimm on January 24, 2006 at 8:00 PM | PERMALINK

fake tbrosz alert. dont believe the hype.

Posted by: judy on January 24, 2006 at 8:01 PM | PERMALINK

Irrational?... Bush failed his oath to uphold the Constitution, pal.

Posted by: walterthump on January 24, 2006 at 8:03 PM | PERMALINK

Of course, the knowledge that this occurred and there was interaction with Congress, and possibly failed negotiations to allow for spying on U.S. persons, is pretty much argument enough that the Bush Administration's interpretration of the overriding nature of AUMF is fantasy.

Beyond all the other obvious legal reasons why AUMF is a crock, of course.

This seems to really come down to the Bush Administration spying on "U.S. persons", and not being able to get Congress to go along with that.

Posted by: Jimm on January 24, 2006 at 8:04 PM | PERMALINK

Perhaps some legal expert here can shed some light on my question, to wit, since he was advised by DOJ that it is legal for him to violate the 4th amendment, how can the President be held accountable for this crime? Can't he just say that my lawyers fucked up?

Posted by: lib on January 24, 2006 at 8:06 PM | PERMALINK

Fake tbrosz:

Liked the Shakespeare in there.

"Does a Bush have eyes?"

From the Shylock courtroom scene, no less :)

Bob

Posted by: rmck1 on January 24, 2006 at 8:07 PM | PERMALINK

I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity.

Gonzalez has to throw this one out there too, as a last gasp, because he knows that the AUMF justification, already on really shifty and unstable ground, is going to fall like a house of cards once the interaction with Congress becomes publicly known.

Thus, they are left with only the "inherent authority of the president" during wartime, and/or the "signals intelligence" thing, to hang their hat on.

Posted by: Jimm on January 24, 2006 at 8:07 PM | PERMALINK

Makes you wonder if Al Queda had destroyed Congress on 9/11 with that Flight 93, President Bush would have been powerless to do anything, because Congress wouldn't have been able to vote.

Way to go Kevin, you just discovered how to bring America to its end, destroy Congress and make sure the President can't solely execute any of his Executive Powers under Article 2.

It seems the liberals believe the President has no inherent powers, just whatever Congress gives him...strange way of looking at what we use to call CO-EQUAL branches of government.

Posted by: Patton on January 24, 2006 at 8:08 PM | PERMALINK

Nothing will come of any of this....

#1. The President is the commander and chief with broad authority under his war powers..
#2. Congress has the power to declare war and the ability to control the purse strings...

FISA and everything else is a red hearing..

If Congress wants to reign in this program they will.
They dont and they wont.
The supreme court will want nothing to do with this.
And either do you..
Let the man do his job...
Let the intelllegence agencies collect intellegence...

We cant allowed ourselves to be hit again

Posted by: Fitz on January 24, 2006 at 8:09 PM | PERMALINK

I can see Kevin Drum now screaming about President Bush going to war against Al Queda when Congress hadn't declared war...of course everyone in Congress is dead but that doesn't mean we can't attack George Bush for saving the country.

Posted by: Patton on January 24, 2006 at 8:10 PM | PERMALINK

Perhaps some legal expert here can shed some light on my question, to wit, since he was advised by DOJ that it is legal for him to violate the 4th amendment, how can the President be held accountable for this crime? Can't he just say that my lawyers fucked up?

Not really. He can certainly complain to the Bar Association, and possibly even file suit against his lawyers for negligence and damages, but it is not going to change your guilt in the matter, especially since lawyers are nothing but weaselish a lot of times, and will always qualify their determinations with healthy skepticism in order to protect their own professional reputations and careers, and there surely had to have been communications with the president by people who pointed out the ambiguity and dangers of the approach, no matter whether the lawyers in the end signed off on it.

Posted by: Jimm on January 24, 2006 at 8:10 PM | PERMALINK

actually tbrosz, fake or not, poses a valid issue. why can't we just trust the President when he says that he will spy only on Al Queda and those connected to the terrorists? We trusted GWB and the administration for the reasons for the Iraq war, which has brought so much freedom and democracy and happiness to the previously oppressed Iraqis? So why not for this purpose as well? Makes sense to me.

Posted by: nut on January 24, 2006 at 8:11 PM | PERMALINK

How about BIG BAD John Kerry...I oppose tapping Osama Bin Ladens phone calls to America...but I will not vote to cut off funding for it.

Profile in Courage.

Posted by: Patton on January 24, 2006 at 8:12 PM | PERMALINK

That said, it might be enough for Bush to weasel out from beneath a Republican-controlled Congress with this excuse. He'll say he had "only the best intentions", but I suspect that much more will come out about what he's been hiding, and it will be hard not to come to the conclusion there was some dastardly behavior going on here, that ought at least be sanctioned and followed up by Congress taking a much stronger role of oversight (i.e. backfiring Cheney's plan to roll back to Nixonian power).

Hannibal - "I love it when a plan comes together...", puffing away on a cigar. :)

Posted by: Jimm on January 24, 2006 at 8:13 PM | PERMALINK

eagleye:

The only reason this shit keeps happening is that the Republicans control both Houses of Congress and the media.

Yeah, we haven't heard anything about this issue from the media, have we?

Kevin:

This rather strongly implies that George Bush believes there's nothing stopping him from ordering 100% domestic wiretapping if he feels like it, and nothing Congress can do about it if he does. So much for Article I Section 8.

Unfortunately for the Democrats, a "strong implication that Bush might do something if he feels like it" isn't quite an impeachable offense.

Posted by: tbrosz on January 24, 2006 at 8:13 PM | PERMALINK

Conversely, if al Q managed to hit the White House instead and kill Bush, Cheney would have been president for about 20 minutes until some faceless government employee stabbed him in the chest with a letter opener, just for being, you know, Dick Cheney.

And President of the United States ... *shudder*.

Wonder how far President Hastert would have gotten trying to push Social Security reform ...

Bob

Posted by: rmck1 on January 24, 2006 at 8:13 PM | PERMALINK

When was the last time congress subpoenaed someone other than baseball player?

Posted by: B on January 24, 2006 at 8:13 PM | PERMALINK

Makes you wonder if Al Queda had destroyed Congress on 9/11 with that Flight 93, President Bush would have been powerless to do anything, because Congress wouldn't have been able to vote.

Way to go Kevin, you just discovered how to bring America to its end, destroy Congress and make sure the President can't solely execute any of his Executive Powers under Article 2.

It seems the liberals believe the President has no inherent powers, just whatever Congress gives him...strange way of looking at what we use to call CO-EQUAL branches of government.

Posted by: Patton on January 24, 2006 at 8:14 PM | PERMALINK

Congress refused to pass DeWine's amendment. This makes it plain that Congress did not intend for AUMF to loosen the restrictions of FISA.

Kevin you somehow overlooked the bit in Glenn's piece that said that the administration, too, was against the DeWine amendment.

Posted by: lib on January 24, 2006 at 8:19 PM | PERMALINK

For the record, I am no legal expert, far from it actually, more in the vein of political and philosophical analysis, so evaluate accordingly.

Posted by: Jimm on January 24, 2006 at 8:19 PM | PERMALINK

Look kids...

I had this discussion right after 911, years back when I was still in law school..

Its funny... but I predicted this exact situation.
(Tom Clancy novels are idespensibly accurate ..to accurate)
People know (like Clancy and me) that the NSA has super computers capable of minning information intercepted through communications (domestic or international).

They can program in automatic computer monotoring of anything from a phone number, general locations (middle east - western germany)to a paticular word or dialest (or both "Bomb" or "Alah" or "nuclear")
No one really knows the full capabilities
AND WE DONT WANT ANYONE KNOWING!!!!!!


So dont be stupid little kids pretending you got the president with his willy in an intern..


The solution we came up with...settled on (me and my con law proffesor and the rest of the class)
Was to give it ten years, through various administrations... and see what happens (i.e. any real abuses..like under nixon or Johnson, political abuses)

Give it ten years kids...
This is National Security (really!)

Posted by: Fitz on January 24, 2006 at 8:20 PM | PERMALINK

Kevin you somehow overlooked the bit in Glenn's piece that said that the administration, too, was against the DeWine amendment.

For all the wrong reasons, I'm sure.

Of course when the outcome was clear the administration supported protecting the constitutional rights of Americans...the real question was what was their negotiating position all along, and how does this jibe with the illegal NSA program?

Posted by: Jimm on January 24, 2006 at 8:24 PM | PERMALINK

To those supporting Bush on another detour to nowhere:

Read up on the history of crime. No self-respecting terrorist, criminal, or gang member, much less the Mafia, will be broadcasting their intent publicly, which includes the use of all technology, whether telephone, e-mail, U.S. Postal Service, or comments on a blog. These guys have developed stealth operations over centuries, so the only way to really know what they are up to is to infiltrate.

Infiltration, to this day, remains the best quality of intelligence; it is human intelligence, or human beings on the ground, hanging out like they are on of them. Other than that, as one commenter said, you're looking for a needle in a haystack, and that method is not worth giving up your civil rights or liberties.

Posted by: union on January 24, 2006 at 8:24 PM | PERMALINK

Seems to me that this is a disagreement between members of the NSA and the department of justice. Under the theory of the unitary executive the judicial branch can not adjudicate the dispute and the legislative branch can not pass judgement.

Posted by: Al on January 24, 2006 at 8:25 PM | PERMALINK

Fitz, are you for real?

Are you suggesting we suspend and repeal our 4th amendment rights, and allow the president to directly defy enacted law, for 10 years because 4 airplanes were hijacked and crashed into buildings or the ground?

Change your diapers.

Posted by: Jimm on January 24, 2006 at 8:26 PM | PERMALINK

Sorry the president was given the opprotunity to bring his program in line with the law in 2002, and his team actively decieved the Congress and the public in order not to.

This speaks to some serious problems with the intentions and implementation of the program- hence the truckloads of whistleblowers, who were silenced until after the election.

The president is guilty and the core of the republican party is already making the transition plans for after the impeachment. This is why Bush is out to pasture taking questions, it's to try to build a public perception of human character, so as to limit public anger during the fall.

Iran and other current administration activities are just hill-mary passes trying to grab as much as possible before Team Bush/Cheney is ousted. Ironically they are at the most dangerous now because they know they have little more they can lose. It is no accident polls are reporting 36% popularity.

When the NYT editors approached the post in December those in the know had seen the writing on the wall.

Alito is the last republican agenda item in play before the transition, and given the poor showing by repubs during the hearing it doesn't deserve to pass. Iran is the last play on the table for Team Bush/Cheney's foreign policy lobbies, this looks to be a disaster for those pushing it, as well as another failure to launch. Pushing either of theses issues will cost those that push everything and more.

It will be an interesting 2006. BTW Editors of the Monthly I still want my impeachment tickets.I've wanted them since Abu Ghraib came to light.

Posted by: patience on January 24, 2006 at 8:26 PM | PERMALINK

I still don't get it that some people are so enamored of spying that uses datamining, as if it's ok for the government to intrude on our privacy so long as the intrusion entails the use of advanced 'sophisticated' computationally-intensive algorithms.

Posted by: lib on January 24, 2006 at 8:27 PM | PERMALINK

Seems to me that this is a disagreement between members of the NSA and the department of justice. Under the theory of the unitary executive the judicial branch can not adjudicate the dispute and the legislative branch can not pass judgement.

Congress can certainly investigate, to determine if there was illegal activity by the president, since they have the power to impeach the president. The question is whether Congress will, if only to stick up for the separation of powers and their own position in it.

And the judiciary can certainly weigh in and say the program was unconstitutional, and not just a bureaucratic dispute between executive agencies, so don't count them out either.

Posted by: Jimm on January 24, 2006 at 8:29 PM | PERMALINK

lib, to return to your point, the only way a president can be held accountable for any violation of the law as president is to be impeached. since this won't happen, it's probably pointless to speculate what bush's legal defense would be to the charge that he violated his oath of office to see the laws faithfully executed by willfully asserting a right to wiretap that far exceeded congressional authority, but just by summing up the charge, i've painted the nature of his defense if it came to it.

bad advice won't even enter into it: he'll say i did it all for national security and i'd do it all again.

Posted by: howard on January 24, 2006 at 8:30 PM | PERMALINK

I still don't get it that some people are so enamored of spying that uses datamining, as if it's ok for the government to intrude on our privacy so long as the intrusion entails the use of advanced 'sophisticated' computationally-intensive algorithms.

Good point.

Data mining just operates on the property/information after it's already been seized.

For instance, if I walk over to your house and take your mail, that's the seizure (and illegal), and when I open it and scan it for dollar signs and/or social security numbers, that's "data mining" (albeit on a very small scale, but I'm doing pattern matching and basic analysis). If there were porn videos in your mailbox, part of my data mining operation could involve viewing them as well.

Posted by: Jimm on January 24, 2006 at 8:32 PM | PERMALINK

If there were porn videos in your mailbox, part of my data mining operation could involve viewing them as well.

For large breasts, J-Lo booty, or whatever meets my hypothetical data mining fancy... :) Indeed, I could just fast-forward at 4x until an image meets my criterion, thus speeding up the operation.

Posted by: Jimm on January 24, 2006 at 8:34 PM | PERMALINK

You are correct Jimm..

Thats right... the very analysis of the data is a search under the constitution..
Before you even get a red flag or a human anaylist.
Thats why FISA is inapplicable, and its why we wont/cant write feasable legislation for it.

Just have to throw it under inhearent presidential powers, signals intellegence
OR Stop doing it..


I'll leave the choice to you guys..

Posted by: Fitz on January 24, 2006 at 8:37 PM | PERMALINK

Jimm,

The new supreme court might just find that FISA was unconstitutional for restraining the U.S. President in the exercise of his Constitutional war powers. Justice Yoo will say that when it comes to administering the executive branch, congressional requirements are merely advisory.

Posted by: Al on January 24, 2006 at 8:38 PM | PERMALINK

by willfully asserting a right to wiretap

Just a small nitpick, but the president (in that capacity) and the state do not have rights, they have duties, and powers granted to them in order to carry out these duties.

Except for the diaper brigade, it's hard to see too many cases where the duties of government would trump the rights of citizens who founded this government as an expression of those rights.

The president has no "inherent powers", and neither does the state, aside from that we give it in the Constitution as a result of free citizens with rights forming a contract to "forge a more perfect union".

Posted by: Jimm on January 24, 2006 at 8:39 PM | PERMALINK

http://glenngreenwald.blogspot.com/2006/01/administrations-new-fisa-defense-is.html

I don't think Kevin has been as detailed as he could be in summarizing Greenwald. The reason Congress failed to pass Dewine's amendment was because the DoJ said it would be unconstitutional. Surely that fact counts for something.

Here's Greenwald. Note his quoting of Baker at DoJ:

During that time, the Administration was asked to advise Congress as to its position on this proposed amendment to loosen the standard for obtaining FISA warrants, and in response, they submitted a Statement from James A. Baker, the Justice Department lawyer who oversees that DoJ's Office of Intelligence Policy and Review, which is the group that "prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court)." If anyone would be familiar with problems in obtaining FISA warrants, it would be Baker.

And yet, look at what Baker said in his Statement. He began by effusively praising the Patriot Act on the ground that the 72-hour window provided by the Patriot Act had given the Administration the speed and flexibility it needed in order to engage in eavesdropping:

The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.


And then, regarding DeWine's specific proposal to lower the evidentiary standard required for a FISA warrant, Baker said that:

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

So, in June, 2002, the Administration refused to support elimination of the very barrier ("probable cause") which Gen. Hayden claimed yesterday necessitated the circumvention of FISA. In doing so, the Administration identified two independent reasons for opposing this amendment. One reason was that the Justice Department was not aware of any problems which the Administration was having in getting the warrants it needed under FISA:

The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

Posted by: Skank on January 24, 2006 at 8:42 PM | PERMALINK

I recall a lot of people jumping up and down yelling about the chief executive's conformity with the law back in '98 and '99,
-conformity even though the issue was trivial,
-conformity even though the actions in question weren't performed by the executive in his capacity as chief executive,
-conformity in the absence of any forseeable harm to anyone in the nation at large.

Anybody seen them around lately? They used to be all over my television...

Posted by: Davis X. Machina on January 24, 2006 at 8:43 PM | PERMALINK

The new supreme court might just find that FISA was unconstitutional for restraining the U.S. President in the exercise of his Constitutional war powers. Justice Yoo will say that when it comes to administering the executive branch, congressional requirements are merely advisory.

Interesting argument, and I'm not saying it couldn't happen, but will say I greatly doubt it. Stranger things have happened...

There would still be a more powerful argument in my opinion that the 4th amendment does not make a distinction between peacetime and wartime, whereas amendments before and after it do, and therefore it's clear that the president not only must honor the 4th amendment in any case (except perhaps an existential emergency), but also quite clearly has constraints on his use of power during wartime.

Posted by: Jimm on January 24, 2006 at 8:43 PM | PERMALINK

Spector to Blitzer yesterday backed far away from his impeachment comments. He referenced mens rea - and said that since the President acted in "good faith" impeachment wouldn't likely happen. How legit an argument (legally) is that?

Posted by: bren on January 24, 2006 at 8:44 PM | PERMALINK

I would add that, in wartime, the president would be able to circumvent the 4th amendment if the civilian courts were not in operation, as consistent with other rulings along these lines stemming from the Abe Lincoln debacle.

Posted by: Jimm on January 24, 2006 at 8:45 PM | PERMALINK

Spector to Blitzer yesterday backed far away from his impeachment comments. He referenced mens rea - and said that since the President acted in "good faith" impeachment wouldn't likely happen. How legit an argument (legally) is that?

There we have it...like clockwork. The real question is whether this "good faith" assumption will hold up as all the details and chicanery leaks out.

Posted by: Jimm on January 24, 2006 at 8:46 PM | PERMALINK

So how do we prove "bad faith"?

Posted by: bren on January 24, 2006 at 8:49 PM | PERMALINK

Porn videos in mailbox --- does marketing Trojans impact national security ?
There should be no shortage of supply if my experience just this past year are anything to go by.
Can we get the NSA to target spammers for a change ?

Posted by: opit on January 24, 2006 at 8:52 PM | PERMALINK

bren, as that eminent constitutional scholar, gerald ford, once said, "high crimes and misdemanors is whatever a majority of the house thinks they are."

there is no majority in the house to impeach bush, and even if the dems make significant pickups, there won't be, unless an investigation reveals something completely out of control.

i personally doubt something is completely out of control, bearing in mind, of course, that the fundamental premise - the president has the right to do this - is itself completely out of control.

but yes, jimm, i wondered how long it would take specter - the guy who today completed his sellout of 30 years of roe v. wade public support - to recant the impeachment word....

Posted by: howard on January 24, 2006 at 8:54 PM | PERMALINK

So how do we prove "bad faith"?

I don't think you do, you just chip away at and undermine the "good faith", which is exculpatory even when illegality is determined. If there is not clear "good faith", then it's not going to wash as an excuse or justification.

To be honest, unless something new comes out, I've yet to really see any hard evidence that would kill the "good faith" brigade, but I'm wouldn't be surprised at further leaks and embarassing details to come.

For my money, and rights, this is about the 4th amendment first, and then whether the administration directly defied Congress second, and impeachment really isn't my concern, but the protection and integrity of our rights and system of government, separation of powers, and checks and balances.

Plus, tie this in with all the other Bush scandals and deception, corruption and criminality, and we can get a change of leadership and some fresh air in 2006, which we desperately need in Congress.

Posted by: Jimm on January 24, 2006 at 8:56 PM | PERMALINK

"Spector to Blitzer yesterday backed far away from his impeachment comments. He referenced mens rea - and said that since the President acted in "good faith" impeachment wouldn't likely happen. How legit an argument (legally) is that?"

Only as long as "good faith" exists. If Bush misrepresented the program, and he has stated particulars about it, and an investigation discovers that boundaries such as, one person international and one person domestic, and only of Al Queda or Al Queda associated, are not true, then the defense of good faith weakens.

Posted by: union on January 24, 2006 at 9:00 PM | PERMALINK

I thought I'd heard this on the Thom Hartman show this morning...

Gen. Hayden spent quite some time yesterday asserting the 4th amendment is all about "unreasonable search and seizure" and pooh-poohing this concept of "probable cause". It was quite clear he had know idea where the phrase--and its specific definition--came from.

Some effective justification ain't it? But wait, after all, that whole probable cause phrase refers to issuing warrants, right? So since this is all about warrantless searching, probable cause shouldn't be an issue. Right?

Posted by: seattlebird on January 24, 2006 at 9:03 PM | PERMALINK

How about "everytime we search someone, there has to be a warrant you see..."? I'd really like to hear Bush credibly explain this, and get pushed on it by journalists (and congresspersons).

Posted by: Jimm on January 24, 2006 at 9:04 PM | PERMALINK

I'm willing to forego our 72 hour requirement if it means the other guys forego their 72 virgins.

Posted by: wks on January 24, 2006 at 9:09 PM | PERMALINK

Warrantless search would be, by definition, at least practically, a "general warrant", which is the express purpose of the 4th amendment to forbid.

It's just an unconventional general warrant, given a different label (whatever the NSA calls their "action sheets"). I assume there's still some kind of document and formality to these NSA searches, for justification purposes, and for all intents and purposes these are "general warrants".

Posted by: Jimm on January 24, 2006 at 9:10 PM | PERMALINK

It's like we're all the way back to the 18th century when people stood up for their rights and demanded a government that would not rule arbitrarily or violate the rights of citizens.

I was reading today on the origins of the Bill of Rights, and there were several cases (both in the colonies and in England) of abuse of general warrants and writs (the reason we have a 4th amendment), that effectively inspired our revolution and Constitution itself!

Of James Otis' defense of the rights of citizens over general writ, a young John Adams (in the courtroom) had this to say (50 years later as an old man), from Leonard Levy's Origins of the Bill of Rights):

"Otis was a flame of Fire! ... Then and there was the first scene of the first Act of Opposition to the Arbitrary Claims of Great Britain. Then and there the child Independance [sic] was born."

On the night before the Declaration of Independence, Adams asserted that he [Jefferson] consider "the Argument concerning Writs of Assistance...as the Commencement of the Controversy, between Great Britain and America."

Adam's reaction to Otis' speech is so important because a straight line of progression runs from Otis' argument in 1761 to Adam's framing of Article XIV of the Massachusetts Declaration of Rights of 1780 to Madison's introduction of the proposal that became the Fourth Amendment.

Posted by: Jimm on January 24, 2006 at 9:21 PM | PERMALINK

WKS posts: "I'm willing to forego our 72 hour requirement if it means the other guys forego their 72 virgins."

Shame on you. The terrorists are winning, and you are their cheerleader, WKS. Exactly what Osama wants you to say.

"Those who are willing to sacrifice essential freedom for security deserve neither."

~Ben Franklin

Posted by: Joel on January 24, 2006 at 9:25 PM | PERMALINK

I think it all comes down to "probabiliness". If the NSA agent found that there was a "probabiliness" that a person was somehow linked to terrorists the agent could ask the other side of the agents brain for a general warrant to intercept calls and emails. If the other side of the brain concurred the general warrant was signed and transferred via an untraceable electrochemical signal back to the first side and the NSA agent was free to press the enter key if it hadn't already been pressed by reflex reaction. The efficiency of the "probabiliness" standard probabily greatly exceeds that spelled out in the FISA statute and is an acceptable alternative path if a decision has to be made quickly before a coffee break or toward the end of ones shift.

Posted by: B on January 24, 2006 at 9:26 PM | PERMALINK

Has anyone ever pointed out to Bush that Article I of the Constitution is The Legislative Branch, Article II is The Executive Branch, and Article III is The Judicial Branch?

If The Executive Branch is SO superior, why did it get 2nd place?

Posted by: karog on January 24, 2006 at 9:27 PM | PERMALINK

Does this sound familiar?

Wiliams Cuddihy asserts that a "colonial epidemic of general searches" existed - indeed that until the 1760s "a man's house was even less a castle in America than in England," because the Americans, when adapting English models, ignored exceptions. As a result, warrants in America tended to give their enforcers every discretion. The Fourth Amendment would not emerge from colonial precedents; rather it would repudiate them; or, as Cuddihy states, "The ideas comprising the Fourth Amendment reversed rather than formalized colonial precedents. Reasonable search and seizure in colonial America closely approximated whatever the searcher thought reasonable."

Officers or their informants merely reported than an infraction of the law occurred or that they had a suspicion, not that a particular person was suspected or that a particular place contained evidence of a crime; on the basis of such an assertion, a magistrate...had the obligation to provide such a warrant...[and] neither custom, judicial precedent nor statutory law provided that he should interrogate the seeker of the warrant to determine the credibility of the suspicion or of his informant. The magistrate made no independent determination of his own whether a basis consisted for the warrant...[and] probable cause in a modern sense did not exist"

And, this is one of the main rights and freedoms we fought for, gave up our lives for, that our forefathers gave up their lives for, that millions of Americans since have given their lives for.

Are we to surrender that wetting the bed at the thought of Al Qaeda, merely because they managed to pull off a spectacular and generally unanticipated attack on a single day that killed 3,000 people (and something they will never be able to do again, at least in that same way)?

Posted by: Jimm on January 24, 2006 at 9:33 PM | PERMALINK

Could it be that DeWine was trying to legalize wiretaps that he already knew to be taking place outside FISA? Could the administration have rebuffed the attempt because they didn't want it publicized and they didn't want any limits on their snooping? Was the DOJ opinion just so much civil liberties window dressing to appear faithful to the Constitution in public while eviscerating it in private?

Posted by: noname on January 24, 2006 at 9:35 PM | PERMALINK

Gen. Hayden and our brain-damaged president both share two misconceptions: (1) They greatly exaggerate and wrongly assess the level of risk that al-Qaeda represents, and (2) They mistakenly believe that the existing FISA law is inadequate for these purposes.

Bush's ego leads him to believe he is on par with FDR and WWII ("I'm a war president), when statistically, you are more likely to die from bee stings than from an al-Qaeda attack. Bush is a putz. As it relates to (2), Dems should use the same argument as conservatives use for gun control - namely, let's simply enforce the laws that are already on the books, instead of inventing new ones....

Posted by: Stephen Kriz on January 24, 2006 at 10:07 PM | PERMALINK

One must have patience. The scope and size of warrantless wiretaps of US citizens will be revealed.

I had no idea that Howard Dean was considered linked to the bad guys.

Maybe he was just a subversive on the enemys list leftover from Richard Nixon.

Or was that John Dean?

Oh well, better safe than sorry.

Posted by: Sideline on January 24, 2006 at 10:19 PM | PERMALINK

statistically, you are more likely to die from bee stings than from an al-Qaeda attack

Bush has good reason to be wary...the odds of dying in an Al Qaeda attack may be less than dying from a bee sting, but is far greater than suffering a lethal blow from a pretzel.

Posted by: Jimm on January 24, 2006 at 10:19 PM | PERMALINK

So how do we prove "bad faith"?

Simple. They claim torture works. Further implications are left to the reader's imagination.

Posted by: bobbyp on January 24, 2006 at 10:24 PM | PERMALINK

The obvious conclusion is that we had better work to make the Supreme Court deliver an actual verdict on whether the President really is a wartime emperor before Justice Stevens quits or dies and Bush gets an opportunity to appoint Shithead #5 to the Court to approve that idea.

Posted by: Bruce Moomaw on January 24, 2006 at 10:29 PM | PERMALINK

I MADE TWO POSTS EARLIER AND DIDN'T USE CAPS! EVERYONE IGNORED ME!!! THAT'S WHY I HAVE TO USE CAPS!!!

Posted by: patton on January 24, 2006 at 10:30 PM | PERMALINK

It is important that the White House itself is NOT claiming that FISA is unconstitutional (though that it is certainly applied). To do so sets a high bar for them.

Bush's allies aren't shy about questioning the constitutionality of FISA. For more, see:

"Yoo Da Man."

Posted by: AvengingAngel on January 24, 2006 at 10:54 PM | PERMALINK

Good luck running on an anti-Bush platform in 2006.

Scream "NSA spying" loudly enough and it sounds almost like "Halliburton" or "My Pet Goat".

Posted by: Birkel on January 24, 2006 at 10:56 PM | PERMALINK

Birkel,

So there's nothing to the story about Halliburton poisoning our troops with bad water? There's nothing to it all--despite the fact that most of what we know about Halliburton comes from their own employees exposing fraud waste and abuse?

I guess so long as you think you're being protected, you don't care who they eavesdrop on, torture, or invade. Just as long as you and your ilk don't have to think about it or be scared anymore, right?

What a great country. Break the law to save us, monitor the little sisters of the poor and the Quakers, leave the border unsecured and the shipping containers uninspected but for God's sake keep giving us tax cuts and runaway spending.

Posted by: Pale Rider on January 24, 2006 at 11:02 PM | PERMALINK

this only "international calls" talking point is bunk.
Domestic calls are often routed through Canada anyways these days, like this one:
"Further, the AT&T filing included examples of in-state calls between the Wisconsin district offices of U.S. Rep. Ron Kind (D-Wisc.). The offices are pre-subscribed to MCI/WorldCom for long-distance calling, but calls between the offices were routed over AT&Ts network after being diverted through Canada."
AT&T news release.
We also know that the Bush Administration gained access to the switches.
What we dont know is whether Bush listened to Democratic Rep. Ron Kinds phone call, because this spying is being done with no oversight outside of Bushs inner circle.
And i'm sure with all the gizmos the NSA has it wouldn't take but a click of a mouse to turn a domestic call into an international one.
--
p.s. Anyone seen Andrea Mitchell lately. 10 days or so ago she asked a question that indicated she knew that Christiane Amanpour had been wiretapped. Is she in Gitmo now, or what?

Posted by: warbly on January 24, 2006 at 11:13 PM | PERMALINK
** Warning ** This e-mail message, without warrant or warning, and despite US law as set forth in the Foreign Intelligence Surveillance Act of 1978, may be subject to monitoring by the United States National Security Agency and/or the Department of Defense. Information contained in this message may be used against any senders or recipients, now or in the future, in a public trial or secret tribunal.

'nuff said.

Posted by: John on January 24, 2006 at 11:36 PM | PERMALINK

well, birkel, whatever hardships there are in running against bush in 2006, they are as nothing compared to the hardships of running for bush in 2006. only the most extremely deranged republican candidates will embrace bush by november and wait until january, when his majority will have shrunk to virtually nothing and all the republicans he's fucked will turn around and fuck him at last.

PS. if bush sitting in a class, unable to think, is your idea of an enduring image of george bush, i can't say as i blame you....

Posted by: howard on January 24, 2006 at 11:39 PM | PERMALINK

What part of "uphold and defend the Constitution" did he not understand? He hides under a God of his own creation, but that is not the intent of the oath of office. He has defiled the 4th Amendment in a way most tyrannical and he now threatens our Republic. His incompentence and arrogance crossed the Rubicon without understanding what it meant. Perhaps if he had really won a free and fair election he would understand his responsibility.

Posted by: Sparko on January 24, 2006 at 11:43 PM | PERMALINK

This is what the decline of US democracy looks like.

Slow motion catastrophe.

Posted by: obscure on January 25, 2006 at 12:01 AM | PERMALINK

I despise these lawless fucks in the White House. They aren't even pretending to follow the rules; it's just a game to them and their sociopathic legal counsel, a game where they feel free to ignore every inconvenient impediment between them and their drunken stampede towards totalitarianism.

Posted by: Monty on January 25, 2006 at 1:11 AM | PERMALINK

but yes, jimm, i wondered how long it would take specter - the guy who today completed his sellout of 30 years of roe v. wade public support - to recant the impeachment word....

Howard, please -- this is beneath your usual thoughtful and cogent analysis. Did it ever occur to you that Specter still supports Roe, and wishes it to remain the law of the land, but that he also realizes Alito is eminently qualified to sit on the court, and cares not to impose a litmus test based on this one issue? I know to the Roe uber alles crowd such reasoning is unthinkable, but there actually exist people who don't pledge allegience to Roe every morning (even though in many cases they deem it a valid and correct piece of constitutional juriprudence). Specter, in other words, may well feel that Alito would make an excellent justice despite the likelihood that the latter disagrees with him about Roe.

Posted by: Santorum on January 25, 2006 at 1:34 AM | PERMALINK

There is not a shred of evidence the administration is in violation of the 4th Ammendment, which says that people are secure against unreasonable searches. Targeting the electronic communication of suspected terrorists in a time of war is not unreasonable. Nor is searching your and my luggage when we board a plane. Nor is patting you or me down when we enter a public building. Nor is having our belongings inspected and x-rayed when we enter a courthouse. The government doesn't need the permission of a judge (a warrant) to do any of these things. Judges are called upon to weigh legal issues and interpret laws. They do not grant or withold permission for the federal government to defend us against foreign powers. They are not our kings.

The president is rightly exercising his prerogatives and responsibilities as commander-in-chief and defender of the constitution against all enemies, and he will rightly ignore the patently unconstitutional curbs on his power that the legislative branch has enacted.

Even with the fascist Bush in office, the American government still faces stronger barriers to surveillance and anti-terrorist activity than the governments of those enlightened Europeans.

When Democratic politicians or liberal columnists start getting targeted by the NSA we'll have cause for alarm. But they won't, so we won't. You pathetic, whining, sniveling little bastards don't deserve the protection this White House is striving to provide. You richly deserve the 4th consecutive bitchslapping you'll receive in November if you keep it up. Americans like lots of your programs. But they'd just as soon be alive to enjoy them.

Posted by: Santorum on January 25, 2006 at 1:57 AM | PERMALINK

Targeting the electronic communication of suspected terrorists in a time of war is not unreasonable.

Just flowing with your argument here for a second, this would depend on the judgement process that determined who is and is not considered a "suspected" terrorist. It may very well be unreasonable. If this process involved group profiling, than it is unreasonable. If this involved 99% innocent people, and the program was continued even after knowing this, it was unreasonable. If it meant spying on mosques indiscriminately in the beginning, and winnowing them out one by one as innocuous, this would be unreasonable. Inside your own frame, so be careful, since you have enough problems with my frame.

You pathetic, whining, sniveling little bastards don't deserve the protection this White House is striving to provide.

You're the one wetting your diaper because of 9-11 bitch. I will not give up my rights for any reason, and have little faith and confidence in the competence or protection that this White House "provides". So excuse me for the descent into street lingo there, and it is not meant to be degrading to women, but don't ever bring that tone to anonymous discussion forums. It's the height of pathetic cowardice.

Posted by: Jimm on January 25, 2006 at 2:10 AM | PERMALINK

Oh, and you should at least credit the source of your little bedwetting tough guy diatribes too...I believe the screenwriter for A Few Good Men was Aaron Sorkin, so maybe you can send him a check. Don't worry, a token amount will do. Diaper boy.

Posted by: Jimm on January 25, 2006 at 2:13 AM | PERMALINK

All this outcry is kinda hilarious to me. Look up the ECHELON program, which has been public knowledge for years now. The NSA is monitoring telephone calls (they get triggered based off certain words), sent e-mails, faxes and has been doing so for years. It will probably pick up this comment. Reportedly the 9/11 hijackers got around this by composing messages (I believe in Yahoo!) and saving them as a draft using a communal account, so they were never actually sent.

So in this whole saga, keep going after the administration, (especially if there are innocent victims out there. there must be at least one right?) but just know it will only get political points out of it, nothing will change operationally. Maybe they won't be able to use it in a court, but trust me, they'll still be gathering the SigInt.

Posted by: Echelon on January 25, 2006 at 3:02 AM | PERMALINK

All this outcry is kinda hilarious to me. Look up the ECHELON program, which has been public knowledge for years now.

Yes, Echelon.

Echelon is an officially unacknowledged U.S.-led global spy network that operates an automated system for the interception and relay of electronic communications. Monitored transmissions are said to include up to 3 billion communications daily, including all the telephone calls, e-mail messages, faxes, satellite transmissions, and Internet downloads of both public and private organizations and citizens worldwide. Led by the U.S. National Security Agency (NSA), Echelon is operated collaboratively by the intelligence agencies of the United States, the United Kingdom, Australia, Canada, and New Zealand. The organization's name originated as the code name for the system component responsible for intercepting satellite communications.

Echelon is actually a method, not a specific machine. It is data mining and it is perfectly legal under the FISA act.

The NSA is monitoring telephone calls (they get triggered based off certain words), sent e-mails, faxes and has been doing so for years.

Yes, and it is perfectly legal. Warrantless wiretaps on US persons is illegal. Do you grasp what the difference is and how ridiculous it is to equate a LEGAL activity with an ILLEGAL activity to provide equivocation for a government that has been caught breaking the law?

It will probably pick up this comment.

Uh huh. And they're so worried about what you think and what you do that only by wearing a special shield made of tin foil will keep them from intercepting the frequency of your brain waves.

Posted by: Pale Rider on January 25, 2006 at 8:50 AM | PERMALINK

Kevin,

Argument #1 (the Authorization for Use of Military Force, passed shortly after 9/11, superseded FISA) is the best one from the Administration's perspective. It is the same argument the Supreme Court supported in Hamdi, in which the Court said the Authorization by Congress gave the President the right to hold "enemy combatants." The difference, as you point out, is that there is no explicit federal law barring the detention of enemy combatants the same way FISA bars wiretapping.

Still...in Hamdi, the Court basically held that Congress granted the President a broad range of unenumerated powers under the Congressional Authorization. The Authorization said *nothing* about enemy combatants, but the Court decided that power was included in the Authorization's general language. Thus, one could read the Authorization to also include the power to conduct warrantless wiretapping. Getting past FISA is the big hurdle, but it's not insurmountable.

If Sam Alito is on the Court when the NSA issue gets there, I wouldn't be surprised if they followed Hamdi. From the Court's perspective, ruling that the President got the power from the Congressional Authorization actually preserves Congress's power, since Congress technically has the power to repeal the Authorization and "take back" the power it granted to the President. For the Court, this is much preferable to a situation where the President is saying he has this power *regardless* of what Congress says based on his "inherant constitutional authority as commander-in-chief."

If the Court could find away to fit the NSA under Hamdi, the Court will get some bad press...but avoid the constitutional crisis that could ensue if the White House is forced to the test the Yoo Doctrine, under which the President claims he has the right to supercede Congress. As much as Hamdi strains logic, it provides a legal framework for the Court to say that Congress *gave* the power to the President.

Posted by: owenz on January 25, 2006 at 9:19 AM | PERMALINK

I'm going to put up this article, nearly all of it, to illustrate what is going on with regards to the political manuevering that is going on as it relates to the Able Danger program.

Neither the Bush nor the Clinton Administration look too good as it relates to this issue. But failure to learn our lesson from this incident shows how far we need to go before we get serious about defending this country.

This is by Rory O'Connor and can be found at this link: http://www.sftt.org/main.cfm?actionId=globalShowStaticContent&screenKey=cmpIntel

Able Danger and the USS Cole
Is Kirk Lippold, commander of the ill-fated USS Cole, the latest career military officer to be victimized by the political miasma now surrounding the controversial Able Danger intelligence program? Although Lippold lacked "the specific intelligence" to prevent the October, 2000 al-Qaeda attack on the Cole, his superiors did not.

Lippold was in charge of the Cole on October 12, 2000 when the guided missile destroyer was attacked in the harbor of Aden, Yemen by Osama bin Laden's al-Qaeda terrorist organization. Suicide bombers Ibrahim al-Thawr and Abdullah al-Misawa approached the port side of the Cole in a small craft laden with explosives and blew a 40-by-40-foot gash in the destroyer's port side. Seventeen sailors were killed and 39 others were wounded in the blast.

The official Navy Judge Advocate General Manual (JAGMAN) investigation of the incident that Lippold "acted reasonably in adjusting his force protection posture based on his assessment of the situation that presented itself" when the Cole arrived in Aden to refuel. The investigation further concluded that "the commanding officer of Cole did not have the specific intelligence, focused training, appropriate equipment or on-scene security support to effectively prevent or deter such a determined, preplanned assault on his ship."

Although Lippold lacked "the specific intelligence" to prevent the attack on the Cole, his superiors did not.

Analysts associated with the secretive Able Danger program, including Army Reserve Lieutenant Commander Anthony Shaffer and Navy Captain Scott Phillpott, who say they identified Mohamed Atta and three other 9/11 hijackers a year before the Al Qaeda-connected terror attacks on America, also say their team passed on warnings about al Qaeda activity in Aden before the attack on the Cole to high officials at both Special Operations Command (SOCOM) and Central Command (CENTCOM).

Shaffer, Phillpott and others tried unsuccessfully to bring the Able Danger information to the attention of the FBI and later to the 9/11 Commission. But when a frustrated Shaffer eventually went public with the findings, he was placed on administrative leave from his post at the Defense Intelligence Agency, had his security clearance lifted, was repeatedly and falsely vilified as an alcoholic, philandering kleptomaniac by his superiors at the Defense Department, and was effectively muzzled from speaking further either to reporters or to Congress.

The Able Danger team had uncovered evidence of five 'hot spots' of Al Qaeda activity: Mauritania; Malaysia; Hamburg, Germany; Brooklyn, New York; and Aden, Yemen. Captain Phillpott even briefed then-SOCOM head General Peter Schoomaker (now Chief of Staff, U.S. Army) on the findings just two days prior to the attack on the Cole. Phillpott reportedly warned Schoomaker that Able Danger had uncovered information of increased al-Qaeda "activity" in Aden harbor a warning that was gleaned through a search of bin Laden's business ties.

Able Danger analysts also passed along the information to the brass at CENTCOM, who had authority over the Fifth Fleet to which the Cole was assigned, but inexplicably took no action to head off the attack on the Cole. Rep. Curt Weldon (R-Pennsylvania), who has been leading the push inside Congress to get to the bottom of the Able Danger affair, later told Fox News: "[T]wo weeks before the attack on the Cole, in fact, two days before the attack on the Cole, [Able Danger] saw an increase of activity that led them to say to the senior leadership in the Pentagon at that time, in the Clinton administration, there's something going to happen in Yemen and we better be on high alert, but it was discounted."

Had the Able Danger information not been "discounted," a decision could have been made NOT to refuel in Aden, and the attack on the Cole would have been prevented.

In any event, since the Able Danger alert was classified SCI (special compartmented information) no one onboard the Cole, including Commander Lippold, was even cleared to receive it.

[snip]

Despite the many questions still swirling around Able Danger, several aspects of the controversy are coming into sharp focus. First, the politically compromised 9/11 Commission - both staff and commissioners ignored Able Danger, and one even termed it "historically insignificant" -- is looking more and more like the Warren Commission of our time, and must be understood as such. Second, the attack on the USS Cole was clearly a 'validating event' for Able Danger. Third, Congress must move -- publicly and soon -- to examine the details of everything Able Danger uncovered, not only concerning Mohamed Atta and the 9/11 attacks, but also relative to the Cole and the al-Qaeda 'hot spot' in Yemen that the program uncovered and later briefed SOCOM's General Schoomaker and CENTCOM officials about. Hearings into the Able Danger affair canceled abruptly in September when top Defense Department officials refused to allow Shaffer, Phillpott, and others to testify as scheduled before the Senate Judiciary Committee are long overdue.

Posted by: Pale Rider on January 25, 2006 at 9:36 AM | PERMALINK

- FISA is useful and appropriate in many cases and we've used it many times. But FISA does not fit, operationally, with this program. (But we can't tell you why cause it's classified.) According to Gonzalez.

- But we don't have to worry about FISA anyway since the Prez was granted the necessary authority by Congress in the resolution to use force against Iraq.

- But we don't need the grant of authority from Congress anyway since the program (and anything, really) is within Executive powers during wartime.

If we throw enough mud against the wall something's gonna stick, won't it?

On Scalia: He holds no principle that can't be finessed to produce the (politically) desired outcome.

Posted by: lewp on January 25, 2006 at 9:58 AM | PERMALINK

I'm still confused why you haven't mentioned the Fourth Amendment to the Constitution. Are you under the impression that a Congressional act would make spying on US citizens without probable cause a legal activity for the US government? The Fourth Amendment requires 1) a warrant, and 2) probable cause. Even if Congress passed a law saying reasonable belief was a sufficient basis to permit tapping the phone of a US citizen it would still be unconstitutional.

Legally speaking this talk about AUFA and Mike DeWine is missing the point.

Posted by: IMU on January 25, 2006 at 10:07 AM | PERMALINK

we throw enough mud against the wall something's gonna stick, won't it?

Posted by: lewp on January 25, 2006 at 9:58 AM | PERMALINK

Sometimes to you and not the wall.

Posted by: McA on January 25, 2006 at 10:13 AM | PERMALINK

Hey McAnus:

This is in response to your trying to hijack the health care thread with your mindless braying about the Canadian elections:

"But look here -- Steven Harper's Conservatives got . . . 36 percent of the vote against four other "anti-American" political parties. That was good enough to win about 40 percent of the seats in parliament, which is good enough for Harper to form a minority government as prime minister. But this is hardly a ringing Canadian endorsement of the Bush administration. Instead, voters fed up with Liberal corruption split their votes between two left-of-center parties (the combined Liberal-NDP vote total and seat-count exceeds the Conservatives'), allowing Harper to slip into office."

You are the very definition of a troll, and you should be banned from this site. When you post on-topic, which is about a quarter of the time, you recite knee-jerk conservative talking points or simply gibberish.

Why don't you get involved in the politics in your own country instead of wasting our time with your nonsense?

Posted by: brewmn on January 25, 2006 at 10:30 AM | PERMALINK

"unitary executive" is just another term for "dictator".

Republicans want a dictator and not a Republic.

What despicable scum.

Posted by: Dr. Morpheus on January 25, 2006 at 10:36 AM | PERMALINK

Let the man do his job...
Let the intelllegence agencies collect intellegence...

We cant allowed ourselves to be hit again

Uh oh, the strong stench of urine... Fitz pissed himself again.

Oh and Fitz. I don't give a shit if you crap your pants daily in fear of Terrah. Leave my liberties alone you sorry fucking pussy coward.

Posted by: ckelly on January 25, 2006 at 10:40 AM | PERMALINK

Jesus Christ why can't you just trust the man? Does he not breath the same air you do? If you cut him does he not bleed? What reason other than national security could he possibly have for intruding on your private life?

To spit in the face of Godwin, for valid and defensible reason, I ask you this: Did not Hitler breath the same air you do? If you cut him would he not have bled? What other reason except national security could Hitler have had for all that shit against the Jews? Couldn't you just TRUST the man? Give up on the crazy Hitler hatred? C'mon!

Same goes for Nixon. Why couldn't everyone just trust the air-breathing, red-blood-bleeding guy? He likely wasn't spying on YOU, just the other guy(s) that disagreed with his positions and policies and politics. That's all. Spying without oversight and contrary to law in a country bound by the rule of law is not a problem. TRUST everyone and anyone doing the spying. They're not going to target dissenters (like, oh, I don't know...Quakers?).

Posted by: Praedor Atrebates on January 25, 2006 at 10:41 AM | PERMALINK

Oh and Fitz. I don't give a shit if you crap your pants daily in fear of Terrah. Leave my liberties alone you sorry fucking pussy coward.

I'll second that emotion. Tell you what. You pussycowards peeing down your pantlegs at every sudden noise can opt out of your civil and Constitutional rights. But I'll be damned if I'll let YOUR fear and cowardice trammel MY civil and Constitutional rights.

Get it into your numb, thick, encrusted, hollow skulls. The "Cold War" was a MUCH greater threat to our very existence than any bunch of nutty fanatics with widdle tiny boom-boom belts. A couple thousand nukes beats the ever lovin' shit out of any number of crashing airliners any day...and not once did any President, save Nixon, try to chew up and spit out those "goddamn pieces of paper" called the Constitution and Bill of Rights.

YOU can give up YOUR rights but not those of the rest of us. Keep your cowardice to yourself. Oh, and change your diaper. It's full again.

Posted by: Praedor Atrebates on January 25, 2006 at 10:47 AM | PERMALINK

brewmn,

Good points about the Canadian election. More of a wakeup call to the Liberal Party. Yeah, Harper takes over, but with little power. It was a "Get your house in order, Libs, but we are not going to let Harper wreck our country".

Posted by: thethirdPaul on January 25, 2006 at 10:47 AM | PERMALINK

Its like looking for a needle in a hay stack.

And you guys would have us get probable cause and a warrent for each piece of hay?

72 yours, whatever...
This is a new kind of war...and its an intelligence war...

Ah, I see Oliver Wendell Fitz is back, a college graduate who can barely write in his native language, and who has just tossed the 4th Amendment aside with a blithe dismissal. Welcome back, counselor! Business at your strip-mall law office must be slow, huh?

Posted by: Alek Hidell on January 25, 2006 at 10:53 AM | PERMALINK

Now that we know that the President can create any law he likes, can the President create a law so strong even he can't break it?

Posted by: Tripp on January 25, 2006 at 10:55 AM | PERMALINK

WHAT DO YOU LEFTIES SAY ABOUT THE FACT THAT BOTH THE SCOTUS (IN THE 1972 KEITH CASE) AND THE FISCR (IN THE RECENT HAMDI CASE) BOTH REITERATED EXPLICITLY THAT THE POTUS (AS CIC) HAS THE INHERENT CONSTITUTIONAL POWER TO ORDER SURVEILLANCE/SIGINT OF THE ENEMY?

ANFD THAT ALL FED COURTS HAVE UPHELD WARRANTLESS SEARCH/SEIZURE AND SURVEILLANCE FOR SPECIAL NEEDS?

AND THAT FISA ALSO ALLOWS WARRANTLESS SURVEILLANCE BY THE POUTS IN SOME INSTANCES (1801 AND 1802 SPECIFIY WHICH, AND A FEDERAL DISTRICT COURT IN 2002 HELD THAT AL QAEDA SATISFIES THE DEFINITON OF AN EXCEPTION IN 1802)?

THESE ARE FACTS. PLEASE DEAL WITH THEM.

Posted by: reliapundit on January 25, 2006 at 11:21 AM | PERMALINK

reliapundit,

Change yourself back into Alice/Patton. You're just not reliable enough to post under a new handle, sweetie.

Posted by: Pale Rider on January 25, 2006 at 11:29 AM | PERMALINK

Alek Hidell,

Yeah, and Bill Murray is going to play him in the movie.

Posted by: thethirdPaul on January 25, 2006 at 11:33 AM | PERMALINK

Stretched by frequent troop rotations to Iraq and Afghanistan, the Army has become a "thin green line" that could snap unless relief comes soon, according to a study for the Pentagon.

Why do Rumsfeld and Bush hate our American soldiers so much?

Why do Rumsfeld and Bush put tax cuts for the wealthy, revenge, and partisan politics ahead of national security?

Why do Rumsfeld and Bush hate America?

And most importantly . . .

why do Bush and Rumsfeld supporters hate America and put their partisan loyalty ahead of national security and our troops?

Posted by: Advocate for God on January 25, 2006 at 11:38 AM | PERMALINK

The strip mall lawyer played by Bill Murray was in "Wild Things" - smallest office since "Whiplash Willie's in "Fortune Cookie".

Posted by: thethirdPaul on January 25, 2006 at 11:39 AM | PERMALINK

reliapundit,

Thanks for remembering that I am left-handed.

I say this - I'm no lawyer. Why should I believe you when you cut and paste, make global statements, and can't even be bothered to turn off caps lock and fix typos?

I have a question for you. Why do you think you have any credibility?

Posted by: Tripp on January 25, 2006 at 11:42 AM | PERMALINK

Why do Rumsfeld and Bush hate our American soldiers so much?

Advocate - I'm sure you already know this. Bush is a CEO president. We wanted someone who would run Government like a business.

CEOs don't care about workers. Workers are simply an expensive means to generate profit. Sometimes the workers can be used as marketing props like any other piece of theatrical staging but they are expendable.

The soldiers knew this when they signed up to be an "Army of One." That means when their ass is hanging out they can turn around and depend on, ummmm, personal responsibility to save them.

An "Army of One" means you supply the sweat and equipment and save your own ass.

Posted by: Tripp on January 25, 2006 at 11:51 AM | PERMALINK

If that deputy director is retired why is he still in uniform?

Posted by: cld on January 25, 2006 at 12:13 PM | PERMALINK

"An Army of One" - However, do not purchase your own body armor as you will forfeit your life insurance.

Posted by: thethirdPaul on January 25, 2006 at 12:30 PM | PERMALINK

Kevin is confused, as he admits.

The administration has acknowledged that the NSA program violated the FISA act.

I dont believe they have. The Admin contends that FISA allows this type of surveillance when authorized by other statute. FISA requires that we get a court order, unless authorized by a statute, and we believe that authorization has occurred.

However, Attorney General Alberto Gonzales argues that the Authorization for Use of Military Force, passed shortly after 9/11, superseded FISA.

He does not argue that the Auth supercedes FISA this is a willful mischaracterization. He argues that the Auth is that statute passed by Congress that authorizes this type of surveillance that FISA anticipates. The Foreign Intelligence Surveillance Act requires a court order before engaging in this kind of surveillance unless otherwise authorized by statute or by Congress. Our position is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

"Yesterday, General Michael Hayden said that the reason they had to bypass FISA was because it required a showing of "probable cause" that the target of a wiretap request was a foreign power (i.e., either a terrorist organization or a foreign state). That standard was apparently too difficult to meet in many cases."

Incomplete and inaccurate. A foreign power can be, if you follow Kevins link, A group engaged in international terrorism or activities in preparation therefore. Further, an agent of a foreign power can be any person [US person or not] who knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power.

As Glenn Greenwald reports today, in 2002 congressman Mike DeWine introduced an amendment to FISA that would have retained probable cause as the standard for U.S. persons (i.e., citizens or foreigners with permanent residency) but lowered it to "reasonable suspicion" for non-U.S. persons.

Two issues here:

(1) There is a great likelihood that had FISA been amended in this way it would have been rendered unconstitutional.

(2) The proposed amendment, at any rate, would not have fixed FISA in the manner that the Admin wanted because we want to be able to apply the reasonable suspicion standard to both US persons and non-US persons.

The Admin wants to spy on US citizens even if they dont have probable cause if they have a reasonable suspicion that this person is speaking with the enemy. FISA does not permit such a warrant, but allows for bypassing FISA when this type of surveillance is permitted by other statute.

Congress refused to pass DeWine's amendment. This makes it plain that Congress did not intend for AUMF to loosen the restrictions of FISA.

(1) Plain to who? Kevin the mindreader? If I can find one Repub congressman who says that he/she DID intend for the Auth to loosen FISA does that render Kevins point moot?

(2) The first place we must look to to determine the intent of Congress is not the words of Daschle after he is out of office, or to a particular failed amendment, but rather, to the text of the Auth itself. The text directs the Pres to use whatever force he deems necessary to protect us here and abroad.

What Congress said and did at the time gives us some context, but what about the context of the attack itself? US Persons, within the US, for whom we did not have probable cause to search, executed an horrific attack. The Auth clearly was intended to give the Pres the force necessary to stop this particular type of attack from being carried out again. It would be nonsensical to interpret it any other way. While FISA does not give the pres the capability to stop this type of attack from happening again, the NSA program does, and it does it by bypassing FISA in a legal way as FISA anticipates.

It is ridiculous to claim that the Auth does not direct the Pres to stop this type of attack from happening again.

So this leaves only the argument that the president's inherent constitutional powers give him the authority to order wiretaps of U.S. citizens even when Congress has passed laws forbidding it. There is, as near as I can tell, no case law that supports this view.

This leaves only one argument, no Gonzalez claims two authorities, you havent shot them down yet, Kevin. Remember, FISA forbids the wiretapping of US citizens without probable cause, unless such surveillance is authorized by other statute.

Additionally, another poster earlier made a great point:

From the [Supreme] Court's perspective, ruling that the President got the power from the Congressional Authorization actually preserves Congress's power, since Congress technically has the power to repeal the Authorization and "take back" the power it granted to the President."

Posted by: jerry on January 25, 2006 at 12:38 PM | PERMALINK

The arguement is why didn't they work to make the taps legal, even after the fact. They have a GOP controlled congress for God's sake? This could have been buried in a bill anytime since 9/11. Me thinks the GOP congress would have balked at the spying lark whick leads me to wildly spectulate about what kind of survellince a post 911 GOP congress would balk at.

FISA wouldn't approve it!
GOP congress would approve it!

Must be really juicy stuff.

Posted by: the fake Fake Al on January 25, 2006 at 12:57 PM | PERMALINK

santorum, i don't know if you're still reading, but if you are, you're wrong: specter has made many statements over the years, including relatively recently (post-2004 election) that he would, indeed, oppose someone who would overturn roe v. wade. he is hoping to get around this by saying that he doesn't think that alito will vote to overturn roe v. wade, which is nothing but willful mischaracterization made to cover his butt.

his decision has zippo to do with being prepared to support someone who would overturn roe v. wade because he thinks alito is such an admirable judge.

jerry, i'm sorry, you don't seem like a loon, but your arguments are quite silly. We'll focus in on the most absurd: the idea that the afghani force resolution authorized the president to do whatever he wanted to prevent another terror attack.

no, it didn't. it's really that simple. ask the people who voted for it. they've already told you.

we have here presidential lawlessness, and i don't really care how scared the shallow little man who ignored th 8/6/01 PDB is, he doesn't have the right to break the law. He has the right to ask congress to change the law, and if he had any integrity, he would and take his chances.

but he'd rather break the law and dare anyone to do something about it. that's nixonian behavior, but scarier, because at the time of nixon, there wasn't an active propaganda robot movement in america that supported anything that a republican said.

Posted by: howard on January 25, 2006 at 12:58 PM | PERMALINK

The DeWine amendment is a dead-end and not really relevant. The 4th Amendment explicitly prevents WARRANTS being issued except upon probable cause. That is the reason the DeWine amendment to FISA would never pass constitutional muster - it would have permitted WARRANTS to be issued by the FISA court on less than probable cause - that's clearly unconstitutional.

The various exceptions to the probable cause standard are situations where a warrant is never requested. The only way the govt can use a standard lower than probable cause (the reasonableness standard in the first clause of the 4th Amendment) is by creating one of those situations where a warrant is not sought because of whatever exigency there is.

The exigency they seem to be arguing is a combination of 1) It's too hard to meet probable cause (a very weak argument) and 2) It's national security, we're at war, and lives may be in danger right now for all we know, so we must be able to wiretap without having to worry about meeting probable cause (a slightly stronger but still weak argument).

Either way, they could never amend FISA to lower the standard to less than probable cause (for citizens or foreigners) because any such warrant would be unconstitutional. They have to find an exigency to justify a lower (reasonableness) standard. That's why they went around FISA - they wanted to tap phones without probable cause, only with a vague suspicion.

Posted by: Victor on January 25, 2006 at 1:07 PM | PERMALINK


pale: Hearings into the Able Danger affair canceled abruptly in September when top Defense Department officials refused to allow Shaffer, Phillpott, and others to testify as scheduled before the Senate Judiciary Committee are long overdue.

so is phase-2 of the "promised" investigation into the hyping of intell by the bush administration...

sen. pat roberts said....he would conduct it --after-- the nov.2004 election....

that was 15-months ago......

Posted by: thisspaceavailable on January 25, 2006 at 1:22 PM | PERMALINK

thisspace,

You'll never see hearings on Able Danger. At least, you won't see a comprehensive hearing where the Congress performs any measure of oversight and demands documents, subpoenas witnesses, and does anything substantive.

We have to wait a while before we get good government...

Posted by: Pale Rider on January 25, 2006 at 1:31 PM | PERMALINK

Howard:

Thanks for replying.

"i'm sorry, you don't seem like a loon."

I am, but thanks anyway.

"The idea that the afghani force resolution authorized the president to do whatever he wanted to prevent another terror attack."

Talk about absurd! Where exactly did I claim that the 'Afghani force resolution' gave the President the power to do whatever he wants? Talk about misrepresenting what I wrote! That's just not fair, Howard, because I wrote no such thing.

First of all, it was not an 'Afghani force resolution,' it was authorization to use force against, "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

So you got that bit wrong.

"ask the people who voted for it. they've already told you."

Secondly, I don't have to ask anyone what the written document means - it says in plain English what it authorizes:

"Joint Resolution [Al Qaeda]
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. ... such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; ... the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

The resolution clearly states that it is necessary for the US to protect citizens both at home and abroad, and that the President has this authority under the Constitution."

I won't spend anymore time knocking down your strawmen - please respond to my points and don't put words into my mouth. No one is claiming the Pres can do whatever he wants, no one claims that the auth for force says that the pres can do what he wants. The auth directs the pres to do his job as described in the Const and using the the authority granted to him by the Const.

Posted by: jerry on January 25, 2006 at 1:37 PM | PERMALINK

JERRY: The auth directs the pres to do his job as described in the Const and using the the authority granted to him by the Const.


the president and his administration make it difficult to pin them down because they keep flip flopping through their varying excuses as to why they have the power....

"There was no discussion in anything that I was around that gave the president a broad surveillance authority with that resolution [the Patriot Act]." - Sen. Sam Brownback (R-Kansas)

Posted by: thisspaceavailable on January 25, 2006 at 1:46 PM | PERMALINK

oh, for goodness sakes, jerry: i used the term "afghani forces resolution" because on 9/18/01, that's what everyone understood it to be. i'm not putting any words in your mouth.

but you are putting words into the mouth of congress through your ellipses. here is the full phrasing:

"SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution."

In short, bush was authorized to use military force against those who planned or abetted the 9/11 attacks. It fell under the War Powers Resulotion and was called an authorization for the use of military force because everyone understood at the time precisely what was called for.

by your reading, since george bush claims that iraq is part of the war on terrorism, which he derives in some bizarre way from this authorization insofar as he derives it from anything, he didn't need an iraqi force resolution.

and as daschle and others have told us, there was an attempt to put further language into this resolution that would have broadened it, and that attempt was rejected.

The idea that you can go from a response to those who planned 9/11 to an open-ended right as commander-in-chief to break the law is quite silly. where do you see any limits whatsoever in your reading? i'm not putting words in your mouth here, either: you believe that this simple resolution enables the president to break a law and violate the 4th ammendment.

Posted by: howard on January 25, 2006 at 1:55 PM | PERMALINK

thisspaceavailable, to be fair to jerry, he's referring to the 9/18/01 authorization to use miliatry force resolution, not to the Patriot Act.

on the other hand, perhaps jerry might ponder that if even sam brownback thinks the president is exercising authority he doesn't have, maybe there's a problem here....

Posted by: howard on January 25, 2006 at 1:57 PM | PERMALINK

Jerry, you really are full of crap. After you got it handed to you yesterday about your "FISA authorizes warrantless searches against American citizens" (it doesn't), now you come back with this?

I won't spend anymore time knocking down your arguments.

Posted by: Jimm on January 25, 2006 at 2:03 PM | PERMALINK

For the record, Jerry's argumentation has completely changed since yesterday...now he's apparently a FISA expert and basing his justifications on the administration fallback position.

Jerry, we already predicted this, and dismissed it. Try to be a little creative.

Posted by: Jimm on January 25, 2006 at 2:06 PM | PERMALINK

Kevin is completely wrong about every single one of the four points he is trying to make.

1. The administration has acknowledged that the NSA program violated the FISA act. However, Attorney General Alberto Gonzales argues that the Authorization for Use of Military Force, passed shortly after 9/11, superseded FISA.

No, this is false.

The administration has NOT "acknowledged that the NSA program violated the FISA act." And the Administration does not argue that the AUMF "superseded" FISA (except in one short footnote to the White Paper).

In fact, the Administration argues that the AUMF satisfied one of the exceptions to the warrant requirement set forth in the AUMF. Accordingly, the Administration argues that FISA was satisfied.

2. Yesterday, General Michael Hayden said that the reason they had to bypass FISA was because it required a showing of "probable cause" that the target of a wiretap request was a foreign power (i.e., either a terrorist organization or a foreign state). That standard was apparently too difficult to meet in many cases.

No, actually he didn't say that at all. In fact, I challenge Kevin to show where Hayden said anything at all supporting Kevin's statement that the probable cause standard "was apparently too difficult to meet in many cases". A direct quotation from Hayden would be appreciated. (The transcript is at: http://www.fas.org/irp/news/2006/01/hayden012306.pdf)

3. As Glenn Greenwald reports today, in 2002 congressman Mike DeWine introduced an amendment to FISA that would have retained probable cause as the standard for U.S. persons (i.e., citizens or foreigners with permanent residency) but lowered it to "reasonable suspicion" for non-U.S. persons.

But the issue is NOT U.S. Persons vs. non-U.S. person. So this amendment has nothing to do with the legality of the NSA program.

4. Congress refused to pass DeWine's amendment. This makes it plain that Congress did not intend for AUMF to loosen the restrictions of FISA.

This makes no sense whatsoever. As stated above, the argument made by the Administration is that the AUMF satisfied the FISA exception for the purposes of the NSA program. Since DeWine's amendment has nothing to do with the NSA program, it is irrelevant whether Congress passed it or not. It makes no sense to say, as Kevin does, that because Congress refused to amend FISA in one way, then the AUMF can't have satisfied FISA in a completely different way. The two things are not logically connected at all.

Can't Kevin do any better than this?

Posted by: Al on January 25, 2006 at 2:08 PM | PERMALINK

i don't have endless time this a.m., so i focussed on #2 of whichever Al this is's remarks, and i must say, if Al can't figure out from Hayden's remarks that probable cause is too high a standard, then it's a reading comprehension problem.

Hayden says that: a.) FISA is a good law; b.) the president's authorization is softer and quicker on the trigger than FISA; c.) that the 72 hours retrospective approval by the Attorney General still needs to meet the test of the FISA court, meaning, class, "probable cause."

next?

Posted by: howard on January 25, 2006 at 2:28 PM | PERMALINK

Hey Howard:

"i'm not putting any words in your mouth."

Well the proof is right there on the page. It is quite important to understand that the resolution applies to al qaeda and not to Afghanistan. I wasnt sure you understood that.

"but you are putting words into the mouth of congress through your ellipses. here is the full phrasing:"

Ellipses dont put words in, they leave them out. I havent changed the meaning in any way.

"In short, bush was authorized to use military force against those who planned or abetted the 9/11 attacks. It fell under the War Powers Resulotion and was called an authorization for the use of military force because everyone understood at the time precisely what was called for."

Um, yes, thanks for repeating what Ive been saying.

"by your reading, since george bush claims that iraq is part of the war on terrorism, which he derives in some bizarre way from this authorization insofar as he derives it from anything, he didn't need an iraqi force resolution."

By my reading, he needed an Iraq War resolution because Iraq had nothing to do with the 911 attacks. He does not need another resolution to fight those who planned, participated etc in 911. That's why i was worried about your mislabeleing of the Al Qaeda resolution. One gives him the auth to attack 911 terrorists, the other gives him the auth to attack Iraq.

"and as daschle and others have told us, there was an attempt to put further language into this resolution that would have broadened it, and that attempt was rejected."

The first place any court will look to to determine intent is the text of the authorization itself. Next would be context, legislative history, and of course, the context that we had just been attacked on US soil by persons hiding in sleeper cells within the US. If the resolution does not give the Pres the authority to prevent such attacks then what in the heck is it for?

"The idea that you can go from a response to those who planned 9/11 to an open-ended right as commander-in-chief to break the law is quite silly."

Once again [boring] this war is not open ended and can be declared over at any time by congressional action. The Pres does not have the right to declare war. The Pres claims the right to exercise his constitutional authority during war, not the right to break the law.

"where do you see any limits whatsoever in your reading?"

Its fairly simple, congress can end the war by rescinding their authorization. The NSA program would have to be wrapped up because absent authorization there would not be a statute that permits warrantless surveillance.

"i'm not putting words in your mouth here, either: you believe that this simple resolution enables the president to break a law and violate the 4th ammendment."

AG: The Fourth Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant. Those searches do not violate the Fourth Amendment because they involve special needs beyond routine law enforcement. The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this special needs category. The Justice Department during the Clinton Administration testified in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment. The key question, then, under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. This requires balancing privacy with the governments interests and ensuring that we maintain appropriate safeguards.

Posted by: jerry on January 25, 2006 at 2:32 PM | PERMALINK

Howard:

I can't stand Brownback. He might be right, I'm no legal scholar. I am merely presenting the Admin's argument since Kevin does not seem to be accurately portraying their case.

Posted by: jerry on January 25, 2006 at 2:39 PM | PERMALINK

So Bush is subverting the Constitution, Article I, Section 8. That's no big deal--the Republicans have done it before. But subverting the Magna Carta? Now that's original!

Posted by: MargaretfromNJ on January 25, 2006 at 4:38 PM | PERMALINK

So this leaves only the argument that the president's inherent constitutional powers give him the authority to order wiretaps of U.S. citizens even when Congress has passed laws forbidding it. There is, as near as I can tell, no case law that supports this view.

This is incorrect.

Prior to the enactment of FISA, three federal circuit courts of appeal have ruled that the President has the plenary constitutional authority to conduct searches for foreign intelligence purposes without securing a judicial warrant. United States v. Truong, 629 F.2d 908 (4th Cir. 1980); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974); United States v. Brown, 484 F.2d 418 (5th Cir 1973).

After the enactment of FISA, the FISA Court of Review stated: [A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . 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. In re Sealed Case, 310 F.3d 717, 742 (FISA Ct. of Rev. 2002).

There is no contrary case law.

This issue begins and ends with the Constitution. The President has the plenary authority to gather intelligence on foreign groups and their agents in the United States and Congress has no power to amend the Constitution by enacting FISA to compel the President to seek the permission of a court to exercise his or her constitutional powers.

Posted by: bart on January 25, 2006 at 5:26 PM | PERMALINK

Would bart be willing to pick out clauses of the USC and show why we should accept these interpretations? For example, the CIC role doesn't say anything about powers beyond controlling the military forces themselves. I can't imagine how that is stretched into other powers. Whatever happened to "strict construction."

Posted by: Neil' on January 25, 2006 at 6:16 PM | PERMALINK

"It seems the liberals believe the President has no inherent powers, just whatever Congress gives him...strange way of looking at what we use to call CO-EQUAL branches of government."
Posted by: Patton on January 24, 2006 at 8:14 PM | PERMALINK


What do you suggest those 'inherent powers' are and where in the Constitution are they specified?

Posted by: MarkH on January 25, 2006 at 8:04 PM | PERMALINK

"Justice Yoo will say that when it comes to administering the executive branch, congressional requirements are merely advisory."
Posted by: Al on January 24, 2006 at 8:38 PM | PERMALINK


So, once Congress creates this agency or that and then funds it they would have no other role?

To what ends would a President apply those agencies, manpower, machinery and monies?

Would you be cool with President Nader (for a wild-assed example that would never happen) deciding what to do all on his own, with no direction or limitations from a Republican Congress or Republican Court?

I think you'd better think all this out a little further and consider the 'unintended consequences'.

Posted by: MarkH on January 25, 2006 at 8:08 PM | PERMALINK

"Reportedly the 9/11 hijackers got around this by composing messages (I believe in Yahoo!) and saving them as a draft using a communal account, so they were never actually sent."
Posted by: Echelon on January 25, 2006 at 3:02 AM | PERMALINK


Wow! Very tricky high-tech stuff that.

So, telling the world we're scanning phones and e-mails is really gonna give 'em crucial help, eh?

Posted by: MarkH on January 25, 2006 at 8:22 PM | PERMALINK

Santorum writes:
"Targeting the electronic communication of suspected terrorists in a time of war is not unreasonable."


To some people there is no such thing as 'unreasonable' during a time of war. Of course, if you start the war to achieve that unenlightened state of affairs, then you're certainly guilty of a terrible social faux pas. Not that there's anything wrong with that.


Santorum continues:
"The government doesn't need the permission of a judge (a warrant) to do any of these things."

Says who?


Santorum goes on:
"Judges are called upon to weigh legal issues and interpret laws. They do not grant or withold permission for the federal government to defend us against foreign powers. They are not our kings."


No, they're not our kings as the Congress and President are not either.

Since we know Iraq never threatened us and we know they have no nukes (Dubya looked around his office and the military looked around Iraq) and we got Saddam Hussein there shouldn't be any more threat from Iraq and we haven't been attacked by anyone else since the anthrax letters and 9/11.

So, can you prove there is still a 'foreign power' which threatens us?


Santorum:
"You pathetic, whining, sniveling little bastards don't deserve the protection this White House is striving to provide."
Posted by: Santorum on January 25, 2006 at 1:57 AM | PERMALINK


Yeah, that's right. You freepers had better shut the f*** up and sit down.


Posted by: MarkH on January 25, 2006 at 8:32 PM | PERMALINK

"On Scalia: He holds no principle that can't be finessed to produce the (politically) desired outcome."
Posted by: lewp on January 25, 2006 at 9:58 AM | PERMALINK


Bush v. Gore 2000 showed that.

Posted by: MarkH on January 25, 2006 at 8:40 PM | PERMALINK

"So Bush is subverting the Constitution, Article I, Section 8. That's no big deal--the Republicans have done it before. But subverting the Magna Carta? Now that's original!"
Posted by: MargaretfromNJ on January 25, 2006 at 4:38 PM | PERMALINK


They've been repeating recently that they won't look to foreign law for guidance on anything. So, the Magna Carta is insignificant history to them. Neanderthals!

I suppose they'd junk any American law and precedent (which they've already dismissed) which relates to English common law. Geez, I thought the possibility of tossing out Marbury was significant; what kind of horrible falling of dominoes (precedents) would tossing out Common law have on all American law?

Posted by: MarkH on January 25, 2006 at 8:55 PM | PERMALINK

Are American citizens "foreign groups" just because their phone call to another American in America is routed through Canada?

Posted by: MarkH on January 25, 2006 at 8:58 PM | PERMALINK

Would bart be willing to pick out clauses of the USC and show why we should accept these interpretations? For example, the CIC role doesn't say anything about powers beyond controlling the military forces themselves. I can't imagine how that is stretched into other powers. Whatever happened to "strict construction."

Gathering intelligence on our foreign enemies clearly falls under the Presidents plenary authority under Article II to conduct the nation's foreign policy and as the nation's military commander-in-chief.

I am an attorney who believes in following the text of the Constitution as Scalia generally does. I am also a former Army intelligence officer who is well aware that intelligence gathering is a key component of commanding a successful military.

If Mr. Bush was abusing his powers by spying on domestic political opponents like Nixon did through wiretaps and Clinton did through FBI file, I would be all in favor of impeaching him.

However, this NSA data mining program sounds very similar to the one DoD was operating during the Clinton Administration which reportedly found the Atta terrorist cell before 9/11, but was prevented from reporting this information to the FBI because of the concerns about "domestic spying" by some DoD lawyers.

We can't allow that kind of lapse in our defenses again.

Posted by: bart on January 26, 2006 at 9:04 AM | PERMALINK

Are American citizens "foreign groups" just because their phone call to another American in America is routed through Canada?

As defined by the Courts, this Presidential power extends not only to foreign groups, but also their agents in the United States, whether native or foreign born.

Posted by: bart on January 26, 2006 at 9:08 AM | PERMALINK

Here is something else to chew on...

The case law I cited above which recognizes the President's power to gather foreign intelligence through warrantless electronic surveillance is largely silent about whether evidence obtained through such surveillance can be used in a civilian criminal trial against the target of that surveillance.

One of the cases admitted evidence gathered this way against a third party whose communications were not intercepted.

Mort Kondracke published an interview with Chertoff a few days ago and Chertoff indicated that the Administartion had been obtaining warrants to conduct searches of alleged foreign agents identified by this NSA data mining program.

This is wise because I would not want to try to prove a espionage or terrorism case as a prosecutor with nothing but evidence gained through warrantless searches.

Posted by: bart on January 26, 2006 at 9:13 AM | PERMALINK

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Posted by: news on January 27, 2006 at 6:27 PM | PERMALINK




 

 

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