Memeorandum


Powered by TypePad

« Media Bias - Groseclose And Milyo | Main | I *Totally* Get This Plame-Wilson Photo »

December 19, 2005

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451b2aa69e200d834267c5a53ef

Listed below are links to weblogs that reference NSA Eavesdropping - What Did Congress Know?:

» Bush let NSA listen in with no warrants from Unpartisan.com Political News and Blog Aggregator
WASHINGTON Months after the 2001 attacks, President Bush authorized the National Security Ag [Read More]

» Bush, War on Terror and Spying - Oh My! from Conservative Outpost
I often wonder if there's anything that a President, particularly this one, can do in the furtherance of his role as Commander in Chief while attempting to prosecute a war that would NOT set the usual suspects on edge and... [Read More]

» Bush, War on Terror and Spying - Oh My! from Conservative Outpost
I often wonder if there's anything that a President, particularly this one, can do in the furtherance of his role as Commander in Chief while attempting to prosecute a war that would NOT set the usual suspects on edge and... [Read More]

» NSA AND THE LAW: WHAT THE TIMES DIDN'T PRINT from Michelle Malkin
There's a wealth of new information and debate in the blogosphere on the NSA special collections program, including non-Bush-bashing independent legal opinions that the NYTimes, unsurprisingly, had no time and space to see fit to print--even after an e... [Read More]

» Why Didnt Bush Ask Congress? from Outside The Beltway
George Will asks a question that has surely occured to most of us: Why didnt President Bush ask Congress to expand his authority to conduct domestic spying, removing all doubt as to whether he had the authority? Without more information tha... [Read More]

» Salus populi infima lex? from Stromata Blog
Cicero’s maxim “The safety of the people is the highest law” is easy to abuse, as no one with any streak of libertarianism in his soul will deny. That doesn’t make its opposite the apogee of wisdom, though some of [Read More]

» NSA kerfuffle: redux from protein wisdom
Drawing on remarks from both the President and the Attorney General yesterday and on the responses I was reading around the blogosphere I began to suspect that the divisions were seeing in the debate over executive author... [Read More]

» Submitted for Your Approval from Watcher of Weasels
First off... any spambots reading this should immediately go here, here, here, and here. Die spambots, die! And now... here are all the links submitted by members of the Watcher's Council for this week's vote. Council link... [Read More]

Comments

TexasToast

I don't see what "briefing" certain congressmen changes - except as a divirc lawyer trick of "muddying up" everybody. We still have the overriding of a statute by executive order - and that is a no-no - despite what Eric U says.

There is a procedure in the law - it was designed to facilitate the need to be"quick on one's feet" - it was not followed - and now our President says "so what"?

Go Metro

This makes the whole Valerie Plame fiasco look really silly in comparison.

dorf

Echelon goes back to Clinton.

kim

This is Joe Wilson kaka again. I told you so when they didn't tell us so. It's the Boy Who Cried Wolf in reverse. Fine, as long as it's not our herd and our polity they are responsible for. Let 'em go run something else with that kind of ethic. Like the Democratic Party.
=============================================

kim

I imagine echelon has antique origins; it has improved as datamining has.
================================

Specter

TexasToast,

Just for your edification:

50 USC 1802
1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;

Now, I know that you will jump on section B - but read further:

Mark Levin Wrote:
The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens -- 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.
The reason the President probably had to sign an executive order is that the Justice Department office that processes FISA requests, the Office of Intelligence Policy and Review (OIPR), can take over 6 months to get a standard FISA request approved. It can become extremely bureaucratic, depending on who is handling the request. His executive order is not contrary to FISA if he believed, as he clearly did, that he needed to act quickly. The president has constitutional powers, too.

I did a little more research into this and found:

FISCR Opinion wrote:


United States Foreign Intelligence
Surveillance Court of Review

…Hung, 629 F.2d 908 (4th Cir. 1980). That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power. In approving the district court’s exclusion of evidence obtained through a warrantless surveillance subsequent to the point in time when the government’s investigation became “primarily” driven by law enforcement objectives, the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” Tongue Tiedtate>Stick out tonguelace>Id.Stick out tonguelace>Tongue Tiedtate> at 915. Targets must “receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.” Tongue Tiedtate>Stick out tonguelace>Id.Stick out tonguelace>Tongue Tiedtate> at 916…

…Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable….

The key in the above law is the definitions of "foreign power" and "foreign intelligence". Read §1801(b)(2): someone engaged in terrorism or the support of terrorism is an "agent of a foreign power" and that makes it "foreign intelligence." The opinion in "USA v. Usama bin Laden" from the US District Court (Southern District of New York) in 2000 upheld exactly that interpretation under Janet Reno and Bill Clinton.

boris

was designed to facilitate the need to be"quick on one's feet"

Maybe not ...

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check

Tom Maguire

I don't see what "briefing" certain congressmen changes

It certainly changes their credibility when they clutch their hearts and proclaim this to be the most shocking thing they ever heard.

Why didn't Dschle and Reid die of heart attacks if this was so shocking?

Why is Rockefeller still on his feat (and not commenting)?

Eric

Doesn't Bob Graham take meticulous notes on everything he does?

Maybe those would be helpful in clearing up his memory, and I get the sense he wouldn't toss them. It really looks like an OCD.

maryrose

Funny when someone like Bob Graham forgets something he is disremembering it. When Libby can't recall he is indicted. Double standard at work here. I agree with Eric, I'm sure old Bob G. has it written down somewhere.

Attila (Pillage Idiot)

On Friday, the Times story included a much wider circle, including Congressional leaders and the judges who oversaw the FISA program. Now we are down to Bush and a few of his select aides. By Wednesday, I bet it will be George wearing the headphones while Laura transcribes the tapes.

The news changes to fit the changing political situation. I think Lanny Davis is editing the NY Times these days.

Attila (Pillage Idiot)

By the way, Tom, you might have transposed a couple of letters in the email addresses for the NY Times. Are you sure it isn't "nytnews" and not "ntynews"?

Neo

The Bush Administration considered these briefings to be notification, not a request for approval.

It would seem obvious that these briefings could be considered, at the very least, a minimalist view of "advise and consent" of Congress.

Even under this minimalist stricture, a Congressman or Senator should be quite free to express concern as to their legality, lest their manhood (or sisterhood) be placed in a hermetically sealed jar on the porch of Funk and Wagnalls till their term expires.

So has anyone checked the porch of Funk and Wagnalls ?

noah

Knickers in a twist all over aided by relentless MSM misrepresentation of what the President is doing.

The potential Big Brother implications are disturbing. But then those implications have been present for decades. After all the director of the NSA could spy on Americans on his own but probably could not get away with it...there are plenty of whistleblowers just itching for the chance to demolish their bosses. Same goes for the FBI, CIA, INR, etc.

And then there is the Bennett(Barnett?) report that alledgedly contains disclosures about abuse of the IRS for political purposes. Very disturbing. Yet some Democrat Senators have (may?) succeeded in blocking its release.

Where power exists there is always potential for its abuse. Problem is that no system has been devised that will guarantee that power will not be abused.

owl

Watched Graham on tv(FOX?) and I think someone can nail this guy. I have seen him too many times and this time, talking about the briefings, he was a too weak. This is not his normal mode.

kim

Yes, noah, the free press was supposed to prevent abuse of power; now we'll have to depend upon a free blogosphere; ultimately, we'll get by with a free imagination.

And Shysters, Gats, and Loot, of course.
==================================================

r flanagan

Why would Graham lie? He's retired.

owl

TM...I saw Reid....he almost whispered when he said 'a couple of months ago'. Okay, he must have had an official briefing then. But the way he whispered it....he has known about this thing a long time.

Specter

You know that it was theoretically such a small circle it should be pretty easy to pin down the leakers. I sense indictments.....in best Mr. Rogers voice, "Can you say 'democrat prison time?'"

owl

rflanagan....I have watched Graham a lot of times on tv. I didn't say he lied. I say he dodged when I saw him.

kim

rf: Why would retirement change him?

Owl: They can all see another Rovian mind beam circling in on them. It's pitiful when they cringe as they deliver the latest talking point.
=============================================

owl

After watching all these clowns on tv for a couple of days, this must have been another Plamegame and not a soul knew she even exited.

topsecretk9

TM
Ask and you shall receive! Looks like he has a Pelosi problem.

[Byron York]

DASCHLE SAYS HE OBJECTED TO NSA SPYING ON AL QAEDA
Former Senate Majority Leader Tom Daschle, who is now a fellow at the liberal think tank the Center for American Progress, has just released a statement accusing the Bush administration of withholding "key details" about the NSA surveillance program when it told him of the program beginning in 2002. But Daschle, who says he "raised significant concern" about the program, is vague about what "key details" the administration omitted:

Between 2002 and 2004, the White House notified me in classified briefings about NSA programs related to the war on terrorism. The briefers made clear they were not seeking my advice or consent, but were simply informing me about new actions. If subsequent public accounts are accurate, it now also appears the briefers omitted key details, including important information about the scope of the program.
Even with some of the more troublesome - and potentially illegal - details omitted, I still raised significant concern about these actions. As such, I am surprised and disappointed that the White House would now suggest that none of us informed of the program objected.

As a result of the significant legal and security concerns raised by the President's actions, I believe it is incumbent on the President to explain the specific legal justification for his actions, for the Congress to fully investigate these actions, and for the Administration to fully cooperate with that investigation.

drjohn

These reporters are complete idiots. It's now impossible to watch Sanger without thinking about what a liar he is. Roberts has been a buffoon for a long time.

noah

I am listening to a replay of Pres. Bush's press conference on C-SPAN. In case you missed I heard him for the first time pronounce 'nuclear' correctly!!

Jim E.

owl wrote: "he almost whispered . . . But the way he whispered it"

Aren't you the same guy who told us all about the height of Andrea Mitchell's eyebrows regarding a Hardball appearance of hers?

Do you fashion yourself as a human lie-detector or something?

And what about Reid's eyebrows? That's the necessary information we are all waiting for! Tell us about the eyebrows, dammit!

topsecretk9

You know...with all this backtracking CYA the Dems are doing, this story has really done a tail spin and slammed them up against the wall...I'm thinking they never expected the Pres. to come out and "own" this thing and so the officials briefed dozens of times just f'ed them up.

drjohn

And nicely done once more, Tom.

Jim E.

So everyone's gonna be cool if President Hillary Clinton, sometime around 2010, is still personally authorizing warrentless wiretaps in order to protect the safety of America? Will everyone trust her, without oversight, to strike a reasonable balance between security and civil liberties?

I know I won't.

topsecretk9

Jim E
Apparently that was the case pre-2000. Unless of course you are bothered by Echelon too.

Appalled Moderate

All right, gang. What were the Dems supposed to do? Hold hearings? Leak? Courageously reveal a secret operation on the floor of the Senate?

I see a theme of folks claiming that they did not get a full briefing on what happened. I'm not sure the White House has made its escape, yet. If the WH waited until they had the majority in Congress before the full and frank briefing...well, hmmmm.

On the other hand, I do expect the folks outraged, outraged by Ms. Plame's outing to muster a similar sense of outrage here. Or explain why they can't.

Marcel

If any one of Congressional leaders who were briefed had revealed what they had been told, they could have been prosecuted for revealing secrets. That's what Powerline, Rush and Hannity would have demanded (as they have before). Unable to speak publicly, here was nothing the leaders of Congress could have done except to privately express their reservations. This is what Pelosi did. We don't yet now how the Republican leaders reacted.

topsecretk9

Our very own Cecil Turner back by popular demand....

If they spoke out they would be savaged for revealing secrets the way you are savaging the New York Times for its war on America. So what were they supposed to do?

Why not have one of those closed sessions of Congress? Or, if it's truly a constitutional abomination and needs to be abolished, why not speak out in open session? Surely the electorate will see the need, no?

Posted by: Cecil Turner | December 18, 2005 at 09:17 AM

Cecil Turner 2

Um, wrong. "Sitting on it" does make sense if you are truly alarmed, but don't want to reveal classified information.

Oh, hogwash. In this case, the only classified information is of a program you apparently believe is illegal and outrageous. If lawmakers are alarmed by such actions of the Executive, they have a duty to debate it. And a constitutional immunity for things they say in the process: "for any Speech or Debate in either House, they shall not be questioned in any other Place."

kim

There is a reason we watch faces, Jim E. Watching Richard Clarke was enough for me. I don't even remember his words.

Nucular is regionally correct pronunciation and in the dictionary. How do you think Carter, a nuclear physicist, pronounced it? The implicit sneer, by otherlanders, is a mark of ignorance, not superior pronunciation.
===========================================

noah

No, I would not trust Hillary Clinton to limit domestic surveillance to American residents with terrorist links. I believe that she is dangerous. But she, like Bush, could never get away with broad surveillance by the NSA of the American people for political puposes. Just ain't gonna happen...there are too many whistleblowers...very few of the employees in the intel community are political appointees.

JM Hanes

Appalled

"On the other hand, I do expect the folks outraged, outraged by Ms. Plame's outing to muster a similar sense of outrage here. Or explain why they can't."

Huh?

Tom Maguire

What were the Dems supposed to do? Hold hearings? Leak? Courageously reveal a secret operation on the floor of the Senate?

If this operation is that shocking and so clearly unconstitutional, a Senator who denounced it on the Senate floor would be a hero.

OF course, the leadership doesn't seem to have been shocked until the program was made public, so I assume this is all posturing.

And setting aside from a floor speech, they had plenty of other option - the appropriate Dem (Reid or Rokcefeller) could have quietly informed Frist that the Patriot Act is DOA until this NSA program is regularized, and then engaged in the usual parliamentary stalling.

So everyone's gonna be cool if President Hillary Clinton, sometime around 2010, is still personally authorizing warrentless wiretaps in order to protect the safety of America? Will everyone trust her, without oversight, to strike a reasonable balance between security and civil liberties?

There seems to be some oversight now.

That said, I am not particularly cool with this as an ongoing emergency program. I would rather see the adults in Washington figure out the problems with the FISA system ands fix it.

However, Congressional Dem adults seem to be a bit thin on the ground - all of them feel obliged to pretend that this is the most abusive thing they have ever heard of, presumably to placate Michael Moore.

JM Hanes

Appalled
Oops. Nevermind, I'm afraid I misread your comment.

JM Hanes

Rockefeller's silence on this so far is particularly telling. If, as it appears quite possible, some of his (and/or others') express concerns actually resulted in changes to the program, it may take him longer than usual to figure out how to spin this story to political advantage.

j.foster

Those that think that unlawful deeds are under way , must file legislation outlawing this stuff. Or maybe a SC challenge. Or they can get out the tall ladders and mount up. Stand up or stop blubbering. IT should be routine.

topsecretk9

This just in...[Byron York] again

DNC: BUSH IS LYING ABOUT BRIEFING CONGRESS
The Democratic National Committee has just released a statement which appears to claim that the president is lying when he says the administration briefed members of Congress on the NSA spying program:

With his credibility in tatters, President Bush may have fielded questions, but he failed to explain why he may have ignored both federal law and the Constitution in ordering the NSA to spy on Americans. This disturbing abuse of power has become a disturbing hallmark of the Bush administration over the past five years. The President now seems to be hiding behind a false claim that he briefed members of Congress.

In the spirit of the President's newfound candor, we call upon him to correct the record, explain why members of Congress were left in the dark and support an investigation into this secret spying program..."

JAZ

Currently, we have the senate handwringing over the protections negotiated and re-negotiated under the Patriot Act. The Hypocrats and Sununu can't even get behind the Patriot Act legislation which has been in place for four years. Can anyone seriously imagine the senate enacting legislation which would give the president real time authority to wiretap conversations in the interests of national security?

noah

And so it begins...Bush lied redux. Hopefully, Bush has records of the briefings and the contents. Or will his hands be tied by the desire not to reveal even more??

Lew Clark

Well, if the DNC says he lied, HE LIED!!!!!!!!!
I think we should forget impeachment and have him shot right now!

Bob Loblaw

Reid has also issued a statement:

“The President asserted in his December 17th radio address that “leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.” This statement gives the American public a very misleading impression that the President fully consulted with Congress.

“First, it is quite likely that 96 Senators of 100 Senators, including 13 of 15 on the Senate Intelligence Committee first learned about this program in the New York Times, not from any Administration briefing.

“I personally received a single very short briefing on this program earlier this year prior to its public disclosure. That briefing occurred more than three years after the President said this program began.

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

“Under current Administration briefing guidelines, members of Congress are informed after decisions are made, have virtually no ability to either approve or reject a program, and are prohibited from discussing these types of programs with nearly all of their fellow members and all of their staff.

“We need to investigate this program and the President’s legal authority to carry it out. We also need to review this flawed congressional consultation system. I will be asking the President to cooperate in both reviews.”

Since the Republican definition of "democracy" seems to be that Ignorance is Bliss, I doubt it will impact anyone's opinion here. The absolute faith you all place in your Lord Bush above our timeworn Constitution is very touching...kind of like how my kiddies feel about Santy Claus.

topsecretk9

I smell "out of our league" on the horizon...the DNC presser is just predicable meme stuff, but I just don't think Bush would be coming out so forceful on this one if they weren't prepared...remember the NYT's were sitting on this for a year...

Cecil Turner

That said, I am not particularly cool with this as an ongoing emergency program. I would rather see the adults in Washington figure out the problems with the FISA system ands fix it.

If we're using the term "emergency" to mean an unexpected serious situation, then I agree wholeheartedly. But if we're talking about a "national emergency," for which Congress subsequently passed a Joint Resolution on use of force, then it's really just a euphemism for "war." (And this is just another example that a forthright declaration of war is generally preferable to the alternatives.) That said, FISA clearly is meant to apply in wartime, and those parts don't make a lot of sense (e.g., would we really have wanted a court order prior to intercepting communications with Nazi spies in WWII?). And if we accept the interpretation liberals and the media apparently desire, it also looks to me to be an unconstitutional limit to the Executive's commander-in-chief powers (though the limited court precedents give a much looser interpretation). Regardless, I agree the wartime sections ought probably to be rewritten (among other things, to rephrase the "declaration of war" bit, if Joint Resolutions are going to be the wave of the future).

owl

JimE..Aren't you the same guy who told us all about the height of Andrea Mitchell's eyebrows regarding a Hardball appearance of hers? Do you fashion yourself as a human lie-detector or something?"

LOL..no and probably yes. Think you got it wrong. Andrea 'muttered and shook her head' as Matthews was doing one of his talk-overs. Yes, I will put my ESP up against Corn's ESP.

FYI....Reid almost 'whispered'.

owl

ts....I am not surprised. I heard Boxer in an interview today say that John Dean thinks this is impeachable.

boris

Joint Resolution = Declaration of War

I don't think the words matter really. Granting the president war fighting power is all that really matters.

SteveMG

TexasToast:
We still have the overriding of a statute by executive order

Bush cited the congressional authorization permitting him to wage war against terrorism in addition to his EO as legal justification for this warrantless surveillance.

Moreover, the Clinton Administration also believed, without the above two measures mind you (that is before 9/11) - that the government could conduct warrantless searches for the purpose of intelligence collection which targeted agents of a foreign power.

See USA v Usama Bin Laden, 2000. Section II.

SMG

maryrose

Well we've come full circle now. Once again we're back to the lying accusation. The administration has to list days and times, according to them every 45 days. Wanted: Another honest Dem besides Joe Lieberman.

topsecretk9

Owl-
Sigh...I know...I heard that too. (OH I IDID IT, CALL THE SP)...reminded me of her fretting over what Kim Jong Il must be feeling when the Pres. included him as part of the Axis of Evil.

Marcel

The President's actions have dubious legal authority, but we all know it is wrong to criticize a President in wartime. Instead, let's find reasons to criticize the Democrats because, well, they are Democrats. And speaking of that party, would those defending this secret NSA eavesdropping program be willing to let a Democrat President do it? Just wondering.

topsecretk9

DougJ haven't you been outed enough?

boris

would those defending this secret NSA eavesdropping program be willing to let a Democrat President do it?

If any Defeatocrat would defending the US to the same degree as W, it would be a pleasant suprise.

Marcel

Boris, is there any reason why the eavedropping could not have gone through the clearly legal FISA route?

SteveMG

Marcel:
The President's actions have dubious legal authority, but we all know it is wrong to criticize a President in wartime

Criticism of the President during wartime is fine.

It's the incessant "Impeach the fascist bastard!!" cry every time there's a report that someone somewhere in the Administration may have jaywalked that is frustrating.

Sure, some folks defend anything and everything Bush does. But you have to admit that there are lots of people on your side - including some top political leaders - who are just ridiculously irresponsible when accusing this W.H. of wrongdoing.

SMG

boris

From 10:54AM this thread, see previous post also:

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check

Appalled Moderate

I think a release from the WH on what they actually said to Senators, representatives (covering just what was in the NYT) is appropriate. Problem is, both sides can fib withoput revealing much of anything on the grounds of National Security.

(Note: I am disinclined to disbelieve folks like Bob Graham, who is known for obsessive note taking that verges on wierdness.)

Marcel

Under FISA, they can start eavsdropping at any time, and get court approval up to 72 hours later.

Cecil Turner

I don't think the words matter really. Granting the president war fighting power is all that really matters.

As a legal matter, I'm sure you're right. I also trust Joe Biden's judgment as to the practical legal effect:

I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed . . . Under the Constitution, . . . there is no distinction between a formal declaration of war, and an authorization of use of force. [emphasis added]
However, there are still plenty of folks who deny we're at war, and others who dispute the war clauses of various statutes. In any event, a plainspoken declaration has a moral effect, at home and abroad, which I believe would be salutary.

boris

they actually said to Senators

Sure thing publicize all the secret details! What a frakkin great idea that is !!!

How 'bout just ask one of the Republicans if the breifings were adequate? Not good enough?

SteveMG

Marcel:
through the clearly legal FISA route?

It's also clearly legal in some circumstances to monitor communications without warrants. The Fourth Amendment requires warrants for unreasonable searches; it doesn't require one for reasonable searches. The courts (not SCOTUS though) have allowed warrantless searches of foreign agents for intelligence collection only (not for criminal investigations).

In fact, the Clinton Administration argued this when they were monitoring al-Qaeda.

It seems to me that the W.H. is on stable - if not completely solid - ground here. I don't particularly like what they did (I'd want warrants) but they appear to have the right to do it.

Which, again, doesn't mean it was the right thing to do.

owl

And you have that one that just can't remember.

boris

approval up to 72 hours later

Point? Rehash: Takes Longer. System Overload. Always granted. Meaningless Red Tape. Unnecessary.

owl

Just once....could we please have Repug Senators get out there and defend this WH? And put a little spine in that backbone? Is that too much to ask?

r flanagan

Why should retirement affect Graham's lying
or dodging ? Because it would remove his
main motivation- getting elected again.

To chime in on the main issue: did Clinton authorize similar wiretapping ? For all I know he did.

Was the wire tapping Bush authorized illegal ?No.

Then what's the problem ? It's that Bush
claims he has the authority to do this
particular sort of wire tapping without complying with the law requiring approval by a special court.

In other words there was no "check" as
I just heard Bruce Fein opine.

Briefing Congress that he has acted without a check , is not a check .


This isn't an unprededented power grab
by an evil Bush. Every president seems to do
this sort of thing and is supported
by the less thoughtful members of his party
and opposed by an opposition much of which had foolishly supported their own guy in his
(hopefully failed) power grab.

And BTW I grant that Bush probably has
better justification for this particular power grap than many of his predecessors.

But I still hope it fails.

Meanwhile it's mildly ironic that the former Joe Loserman has become the admired Joe
Lieberman.

boris

If the oversight committee (controlled by the same party as the president) just rubberstamps the executive surveillance proposals (or fails to take issue), that still satisfies the constitution. Nowhere does the constitution require judicial or minority party permission.

... For A Very Good Reason ...

The founding fathers were quite familiar with fighting war.

noah

If it takes months of bureacratic papershuffling to get FISA clearance how meaningful is it to have to get approval within 72 hours or am I missing something?

owl

rflanagan....the only thing I see wrong about the power grab, is that I prefer it to go to the WH. I sure do not trust the Congress. I sure do not trust the Judicial. In case you have not noticed, that last bunch has been grabbing with both fists for a long time.

Cecil Turner

Under FISA, they can start eavsdropping at any time, and get court approval up to 72 hours later.

Read the statute. A procedure that requires approval from one man is designed to limit usage (there's a practical limit to the number of times he can jump through the administrative hoops), which is also reflected in the "minimization procedures" requirement in section 1801. All of which appear to me to be perfectly reasonable limitations for peacetime surveillance of foreign intelligence services. It doesn't, however, make a lot of sense when applied to foreign agents or saboteurs in wartime. And I don't give much for the DNC's chances of selling the average voter on the dangers of the government monitoring overseas phonecalls to terrorist organizations. (I may be wrong . . . we'll see.)

owl

They particularly seem to have developed a hankerin' for taking homes.

maryrose

Joe Lieberman is the only dem with the courage of his convictions. Dems made a mistake in 04 and should have rallied behind Lieberman. Instead they went with wishy washy, flip flopper Kerry by far the lesser candidate.

topsecretk9

and least Joe been able to shed his Goreness...Actually Gore did that and look what it did for Dean!

Sylvia

I was thinking about the Defense Tech posting. Perhaps the "new technology" the NSA is using is antithetical to a "warrant". Perhaps the NSA have developed some sort of 'combing' technique that can sift through hundreds of domestic phone calls electronically to recognize one foreign voice they are looking for. In that case seeking a "warrant" would be useless because a warrant is only good against one person, and they might be listening to many people's conversations in the course of this search.

SteveMG

Orin Kerr has an excellent, albeit pretty rough, summary at The Volokh Conspiracy on the legality of these searches.

It appears, Kerr argues, that the W.H. didn't follow FISA requirements; but other legislation apparently gives the President/Commander in Chief the authority to permit this type of warrantless activity.

Looking at FISA, it seems to me that the law has some fundamental shortcomings when the government has to monitor or watch terrorists/soldiers who are in the US plotting attacks (among other things) against us.

It's a law enforcement tool and not a war making instrument. And because the Bush Administration had to adust things on the fly, so to speak, their ability to make changes in the law were problematic.

And if one views this as a law enforcement problem, then one will find Bush's actions unacceptable. If, on the other hand, you see this as a more serious battle, then using the war making tools makes more sense.

I.e.:
President as Chief Executive Officer = bad
President as C-in-C = good

SMG

Sue

Or possibly a word or phrase. For instance a computer that registers the word Afghanistan, Usama, bin Laden, anthrax, etc. Then a quick peek (or listen, rather) to see what the conversation is, if it is nothing, move on. No need, no way for a warrant.

Anonymous Liberal

Tom,

A few observations. One, you seem to be holding Democratic leaders to a "damned if they do, damned if they don't" stardard here. Let's assume that they were fully briefed about this program (which isn't at all clear yet). Had they gone public with their concerns, they would have been tarred by the Right as traitors and possibly prosecuted. But you seem to be arguing that by not publicly criticizing the program when they first learned about it, these Democrats forever forfeited their right to be critical. That seems weak to me.

Secondly, why should the legitimate criticism of the many Democrats and Republicans (and commentators) who weren't "in the know" be dismissed because a handful of Congressional Democrats didn't make a big enough stink when they were briefed on the program. That strikes me as an artful way of dodging the substantive discussion.

Third, this criticism focuses on the wrong branch of government. It is the role of the judicial branch, not the legislative branch, that was usurped by the administration. Not only was FISA violated, but so was the very constitutional structure of government. The important separation of powers in our government is not between the Republican and Democratic parties, but between the three branch of government. Even if the Bush administration and tacit endorsement of all of Congress, they can't ignore the proper role of the judicial branch, at least not without passing a constitutional amendment.

Sylvia

I agree Sue. I wouldn't know how we could draft legal rules for that kind of search.

boris

Had they gone public with their concerns

They could have forced debate and a vote (sure loser) with no risk.

noah

Sorry AL. As far as I am concerned debating with you is a waste of pixels,

boris

they can't ignore the proper role of the judicial branch

The proper role of the judicial is to stay out of the way during wartime.

SteveMG

Anonymous Liberal:
Not only was FISA violated, but so was the very constitutional structure of government.

First, we don't know whether FISA was violated or not.

The Clinton Administration, to no protests from folks, argued that the government may conduct warrantless searches against al-Qaeda for foreign intelligence gathering purposes. Which apparently is the same thing that the Bush NSA did.

See USA v. bin Laden.

Second, if one views this as a law enforcement debate, one can make a good solid argument that the W.H. bypassed the necessary checks on the executive branch.

However, if one views this a part of the war making powers of the Presidency and takes into account other legislation that apparently granted him authority to monitor foreign terrorists (not domestic one) operating in the country, then the executive branch acted properly.

Most important, the courts have ruled that the government may conduct warrantless searches of foreign agents for intelligence purposes. It's considered a reasonable search and doesn't require judicial approval.

If the NSA's actions fall under this category, then there was no threat to the separation of powers layed out in the Constitution.

Please, Anonymous, before drawing up impeachment papers, let's make sure that laws were violated.

That's in the Constitution too remember.

SMG

Dwilkers

"It is the role of the judicial branch, not the legislative branch, that was usurped by the administration."

Sigh.

Why don't you tell us what you think the role of the judiciary is regarding signals interception during wartime AL?

MF

Couple things:

AL: Usually agree with you, but I'd say that the Administration usurped the legislative power as well. This became especially clear to me after re-reading the steel seizure case. The President attempted to do by Executive Order what he couldn't do through appeals to Congress. AG AG said as much during his presser today; see Balkinization on that point.

Everybody else:
With regard to Rockefeller's response to being briefed on the program, see Josh Marshall's site. Also, I'd like to point out that apparently Rockie wasn't told about the program until July 2003, some 20 or so months after Bush and McClellan said the Order was issued.

Also, Steve MG, above, completely misstates what Professor Kerr concluded, so I'd advise going over the Volokh.com and reading his post yourself, if you haven't done so yet.

noah

Remember this AL claims to be a lawyer? If in a criminal investigation, the government fails to get a warrant and does a search then the rights of the citizen are violated...it would certainly be a 'high crime or misdemeanor' if Bush had a general 'no warrant' policy for such investigations.

But in light of the ongoing terrorist threat, Bush is in essence making the claim that these are reasonable searches in order to protect the nation. If reasonable they do not require a warrant...just like it is reasonable to search people getting on airplanes.

Now put on your lawyer hat and explain why that is an impeachable offense.

noah

And correct me if I am wrong but doesn't the War Powers Act codify the consultation with congress?

noah

And correct me if I am wrong but doesn't the War Powers Act codify the consultation with congress?

SteveMG

MF:
Also, Steve MG, above, completely misstates what Professor Kerr concluded, so I'd advise going over the Volokh.com and reading his post yourself, if you haven't done so yet.

Yes, please read Kerr's post and you'll quickly discover that our anonymous MG is the one misstating things. Not me.

Kerr did not "conclude" anything. He qualifies his comments throughout the post as he reminds his readers that his statements were tentative and incomplete and based on a quick reading of the FISA law and other laws and decisions.

He believes, inter alia, that FISA was probably violated but its also likely that other legislation and court rulings may have legally allowed the NSA to wiretap communications without warrants.

It's all quite tentative.

SMG

SteveMG

Sorry, the anonymous poster above accusing me of misstatements was, appropriately enough, MF and not MG.

SMG

Sue

Do we even know exactly what was done? The terms spying, wire tapping, eavesdropping or being thrown around but as I said, what if we are merely talking about a computer system that can pick up certain words or phrases and sound an alert. A brief listen in to determine it is nothing and back to the comic books until the next alert. How would you obtain a warrant to do the sneak peek?

Anonymous Liberal

Noah, SteveMG,

Who said anything about impeachment? I certainly didn't.

As the FISA issue, that statute was fairly clearly violated. Just about everyone agrees on that (including, I suspect, the administration given they're not really arguing this point). Read Orin Kerr's post over at the Volokh Conspiracy if you're confused. The question of whether the program violates the 4th Amendment is a little tougher. I think Kerr overstates the argument for constitutionality, but I admit, that issue is not as clear cut. But the bottomline is that there is a law in place to deal with precisely this situation, so there is no need to resort to a constitutional analysis. It's not the President's role to bypass Congress and the Judiciary. There was a process in place for doing this kind of surveillance. Warrants were easily obtainable, FISA courts were highly deferential, and there were mechanisms in place to allow for warrants to be obtained AFTER the searches were conducted if time was of the essense. The Bush administration has yet to offer any compelling reasons for bypassing this process.

And by the way, I love this quote from Boris:
"The proper role of the judicial is to stay out of the way during wartime."

That's about the nuttiest thing I've heard in a long time. Boris, you are aware that the "war on terrorism" has never been officially declared and is likely to last in perpetuity, right? Is it really your position that the judicial branch should just "get out of the way" for the foreseeable future? That's crazy. Plus, it makes it sound as if the FISA courts were routinely denying warrants. That's just not true. Those courts granted almost every request for a warrant; they were/are highly deferential (and secretive). So what exactly is the problem?

Gary Maxwell

Who thinks the American people are going to think that the President in war time does not have the power to authorize listening in to a conversation with a known terorist( the people we are at war with)in a foreign country? I cant for the life of me see why the Democrats want to bring this up. But why not put it to a vote in the House of Representatives. A sense of the House resolution.

I am betting with the election campaign being right around the corner, that we could see another stampede to get away from Democrat talking points.

A dozen times in 4 years! I would say that it sounds like the tactic has been way under used.

Jim E.

I'm getting this from another blog, so I can't attest to whether it's true or not:

The Bush White House is *not* arguing that the president has the ability to issue warrentless wiretaps because of the Congressional authorization to use force. The Bush White House is arguing that the congressional resolution *affirmed* his authority to do such a thing. In other words, with or without 9/11, the Bush white house thinks it can issue warrentless wiretaps.

Just throwing that out there. I'm not sure if that is actually the Bush administration argument.

MayBee

Sylvia, Sue-
Your theories make sense to me. Bob Graham said he understood it to be a new technology more than anything else. That would fit in with Echalon vs. this new program, if you are correct.

An ex-NSA agent on CNN speculated this program was most likely an automated system, generated from a communication from a known terrorist and branching out to collect all the numbers that communication reached, then the numbers those numbers called, and so on. Hundreds of communications (or maybe just telephone numbers) intercepted, not all listened to. But too high volume and too instantaneous to make warrants feasible for each.

Just as a warrant wasn't issued for all emails in Echalon, a warrant wouldn't be issued for all of the communications in the new program. Graham could easy see this as a new technology rather than a new policy.

Had this been presented as 'survelliance of terrorists on American soil', politicians would have no reason to CYA. But throw in the words "Spying on Americans" and the denials are going to crawl out of the woodwork.

SteveMG

Anonymous Liberal:
Not only was FISA violated, but so was the very constitutional structure of government.

FISA violated, the structure of the constitution rendered useless but you're not in favor of impeachment?

Okay; but if I thought the President had done either of the two, I'd be drawing up impeachment charges.

Second: in USA vs. Usama Bin Laden 2000, the Clinton Administration argued that warrantless searches of foreign agents (al-Qaeda) was constitutional.

Care to respond?

SMG

Sue

Why did the 9/11 Commission question the ability of FISA to act quickly enough? I keep hearing how fast a warrant could be obtained, yet the 9/11 Commission had their doubts.

boris

It's not the President's role to bypass Congress and the Judiciary.

new straw ... same dummy

During war the President and Congress can bypass the Judiciary.

Gary Maxwell

SMG

Totally different facts in the case. Why for example the Whitle was controlled by a Democrat...

The comments to this entry are closed.

Amazon

  • Lee Child, Kindle short story
  • Lee Child
  • Gary Taubes

Traffic

Wilson/Plame