Whither The NSA Warrantless Surveillance?

The Anon Lib made a good point a few days back about the limited significance of the Lanny Davis endorsement of the NSA warrantless surveillance program.  His gist - even if it is well designed to protect our privacy, it is still not in compliance with FISA.  I push back in his comments, and now the WaPo has more on the likely fate of the program:

The Bush administration is unlikely to allow the incoming Democratic majority in Congress to learn details about its domestic spying program and interrogation policy, a Republican senator said on Thursday.

Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania, who has criticized the Bush White House's secrecy about national security issues, said he would welcome detailed congressional oversight of the National Security Agency's warrantless eavesdropping.

"It would be ideal," said Specter, whose committee was blocked by the administration this year from conducting a full review of the program, despite an outcry among some lawmakers that the spying was illegal.

"We have to really get into the details as to what the program is, as to how many people they are tapping, what they're finding out," he told an American Bar Association conference on national security.

But he said he had "grave reservations" that Congress would end up getting the information from the administration.

...

Now, after victory in the November 7 election, Democrats will take control next year and are vowing to press the White House for greater cooperation on domestic spying as well as the CIA's detention and treatment of terrorism suspects.

"Only then, can we conduct thorough oversight of these programs and determine whether they are legal," Sen. John Rockefeller, incoming Democratic chairman of the Senate Intelligence Committee, said in a recent statement.

I am leaning on the fact that Rockefeller is unwilling to state that the program is not legal - doesn't he read the blogs?  [Or, one cup of coffee later, let's note that he may be shrewdly insulating himself from the charge that he has pre-judged any hearings.]

My Bold Prediction - the fate of the NSA program will mirror that of the detainee bill: look for Dem huffing and puffing and hiding.  Eventually, somethig will be passed that lets Dems pretend the program was then illegal and is now OK, and which lets Reps (and me!) pretend that the issue was never in doubt.

Comments

[Pofarmer]

By all means. Let's just post the entirety of this, and the SWIFT program in the NY Times. Then we can all judge for ourselves how fair it is. At the same time, we should open up NSA offices for "Bring the public for a tour" days. I think it would be great.

[Infin]

Apparently we can't comment and explain what is going to happen to the US, so it's okay Rockefeller doesn't.

I'm going to laugh very hard!

[Ranger]

The problem is that the Dems are holding FISA hostage. The executive branch likes FISA because it gives them a mechanism for entering FIS into evidence for domestic court cases. Without it, DOJ can't use anything that is collected for FIS purposes. Unfortunately, there are parts of FISA that are clearly unconstitutional because they attempt to limit the power of the executive in the field of foreign intel gathering, which is clearly the executives responsibility and authority. Most at issue is FISA's wartime restrictions, which the congress itself thought were probably unconstitutional when they wrote the bill, but they left in anyway figuring that they had a panzy ass in Carter who wouldn't defend executive authority who would sign it anyway, and if they were wrong, the courts could fix it later. So, the Dems have forced the Administration into the position of arguing that FISA is consitutional so they can keep using it (that is a big part of what the in res. sealed case was about) while at the same time coming up with legal justifications to get around the unconstitutional parts of FISA (such as the AUMF argument).

The problem the Dems have is that most of them know their arguments are bogus, but how do they gingerly back away from the legal crisis they have caused?

As a side note, if I were the White House, I would refuse to hand over anything to the Senate about this until Sen. Rockefeller can explain how a secret, hand writen document (of which there were only ever two copies), kept in his safe wound up in the NYT.

[Semanticleo]

"Bring the public for a tour"

A tad on the disingenuous isn't it, farmer?

Security issues that are 'need to know' should never be used as human shields against getting the truth out. For the scenario to work out like many here feel it should, (keep it under wraps so we can win) it would need to be administered by those who have earned our trust as protectors of the Constitution. Instead we have short-cutters whose reputation borders more on skirting the law and finding the loophole that gets us our way.

Then they protect their position by
classifying the lunch menu, or declaring executive privilege. Not a lot of trust
is inspired by this bunch.

[Pagar]

"Only then, can we conduct thorough oversight of these programs and determine whether they are legal," Sen. John Rockefeller, incoming Democratic chairman of the Senate Intelligence Committee, said in a recent statement."""""""

You can read this entire exchange here;

http://www.freerepublic.com/focus/f-news/1523090/posts

WALLACE: Now, the president never said that Saddam Hussein was an imminent threat. As you saw, you did say that. If anyone hyped the intelligence, isn't it Jay Rockefeller?

ROCKEFELLER: No. I mean, this question is asked a thousand times and I'll be happy to answer it a thousand times. I took a trip by myself in January of 2002 to Saudi Arabia, Jordan and Syria, and I told each of the heads of state that it was my view that George Bush had already made up his mind to go to war against Iraq, that that was a predetermined set course which had taken shape shortly after 9/11. """""""""""""

No wonder the Communist Party of America and terrorists thruout the world are overjoyed that the Democrats won the election.

[boris]

would need to be administered by those who have ...

... been elected to protect the country.

[Ric Locke]

Well, semi-ant, the problem there is that the "reputation" -- to the extent it exists -- has been generated solely by the hysterical bigoted shouts, multiply repeated, of you and your allies. Actual evidence that there's anything behind it is either questionable or entirely absent. More feeeeeeeeeeelings taken as absolute. It's as clear to you that a Republican from Texas who's also a "Christianist" cannot be trusted as it was to me in 1960 that a black person can't do anything but manual labor, and with precisely the same degree of objective justification, i.e. none.

In all the cases I've seen so far, anyone and everyone who examines the program at all closely and is willing to put their name on their opinions comes away saying that it's legal, Constitutional, and somewhere between "useful" and "necessary". All the objections come from those, like yourself, who don't know anything and will admit that if pressed, but are pleased and happy to create and inflate third-hand rumors based on speculation, which in turn is based on bigoted stereotypes of the individuals currently in charge and the overriding goal of damaging them in any way possible.

The exceptions consist of people who are so thoroughly partisan, so egotistically confident of their moral superiority, and so jingoistically secure in the nonexistence of significant forces outside the country, that they are willing to expose the program(s) or portions thereof, confident that they will damage a President they don't like without causing themselves any problems.

So what we can look forward to is a period in which Democrats toss you and the rest of the bigots a few lumps of red meat, followed by establishment of a Genuine, Democratic™ communications-intercept program identical to the existing one except that the person(s) running it have been permitted to kiss Teddy Kennedy's, ah, ring. Meet the new boss, same as the old boss except for the Imprimatur of Moral Authority™ graciously bestowed by the DNC and the Press.

Regards,
Ric

[Other Tom]

I seem to recall that Rockefeller was one of those who was briefed several years ago, and that his reaction was to send a rather vague letter expressing some unspecified reservations, but never asserting illegality. Ditto Jane Harman, although she did say that the law might require that more members be briefed.

[jpe]

Unfortunately, there are parts of FISA that are clearly unconstitutional

People are still pushing this farce?

[clarice]

And Jane Harman tries to hop aboard the Pelosi express AFTER it's left the station.
"12-02) 04:00 PST Washington -- Rep. Jane Harman, the ranking member of the House Intelligence Committee, told a gathering of the American Bar Association on Friday that the Bush administration's secret wiretapping program for suspected terrorists is illegal.

Harman, D-Venice (Los Angeles County), who has become increasingly critical of President Bush's policies in recent months after her initial support for the Iraq war and her defense of the Patriot Act, also blasted the administration for refusing to provide legal opinions and authorizations for its wiretap program, interrogations policy and detentions of accused terrorists.

"The administration has too often operated under vague legal guidelines, pursuant to secret legal opinions generated by few and vetted by almost none," she said Friday. "

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/12/02/MNGKFMO5VU1.DTL

[clarice]

Some palate cleansing sherbet--stolen straight from Roger L. Simon. (Was TM asleep at the switch? How could he have missed this?)
For those few of you interested, Ms. Gwenyth Paltrow has "ankled" Hollywood for the tonier atmosphere of Blighty. "I like living here because I don't fit into the bad side of American psychology. The British are much more intelligent and civilized than the Americans."

Her example: She said having US pop star Madonna, 48, who married British film director Guy Ritchie six years ago, nearby was another advantage to living in London.

[Sue]

Anyone miss Gwyneth living here?

I. Didn't. Think. So.

[Syl]

I suspect Congress is going to overhaul FISA especially because it's too cumbersome. It needs major streamlining.

It will be interesting to watch. I think the Left and the civil libertarian absolutists are going to be in for a bit of a surprise. We do not live in a vacuum and their utopian ideals will be exposed for what they are.

[Syl]

Gwenyth is a ditz, but she's fine actress. I frankly don't care what her views are.

[Syl]

Did anyone watch on C-SPAN the presentation by a counterterrorism consultant, lovely young Arabic woman, who specializes in monitoring and analysis of jihadi activity on the internet?

Lots of monitoring in Europe and Britain but she does none in the U.S. because of privacy concerns.

I'm still looking for that right to privacy in the Constitution.

[Jim Rockford]

So what happens if, say, Al Qaeda poisons lots of people fatally at a hospital or football stadium with Polonium? Or something else?

What happens if another plane flies into, say, the Sears Tower? OR the LA Library Towers?

What happens if another Beslan is done by more Muslim terrorists here in this country?

As noted, we do not live in a vacuum. Dems are caught between the Nutroots who want NO measures at all to defend this country and the VALID point that foregoing these measures means Al Qaeda succeeds in killing Americans.

Bush can simply DARE Congress to kill his wiretaps and let Al Qaeda kill Americans. Dems would on balance call, and then pay the price (be directly blamed) for any successful terrorist attacks.

[Patrick R. Sullivan]

'Anyone miss Gwyneth living here?'

By moving from here to there, she probably raised the average IQ of both countries.

[MayBee]

'Anyone miss Gwyneth living here?'

It's a silly thing to say because there is NOBODY that would consider themselves part of the 'bad' psychology of America. Didn't she grow up in a Hollywood family and attend boarding school in Switzerland and spend time as an exchange student in Spain (with a family that gave her land as a wedding gift)? How many "real" American dinners has she participated in?

[MayBee]

I meant what she said is silly, not what Patrick said was silly.

[narciso]

This was "Slow Joe" Biden's crowning achievement;the FISA bill, I mean.
It reversed every aspect of military
signals intelligence policy (including
Venona)how good could it be.

[mark c.]

i see the Dems want to give tax breaks so that the "middle class" can write off college tuition. if the situation is that bad, why not a national tuition program. It could be fashioned after the health plan they favor. the gov't could negotiate cheaper rates by regulating professors'and administrators' salaries and reducing the cost of their personally authored textbooks (12th edition)through bulk purchase. can you imagine college economics professors having to negotiate their pay scales with an indifferent government. Priceless.

[lurker]

I read an article about the hype over "cut and run" waning down. I suspect the same will happen for this NSA terrorist surveillance program.

I suspect that more and more with intimate details in this program as well as the security details will be telling the dems to leave this program alone.

Are the dems going to be willing to restore it back to the Gorelick wall situation and allow another 9/11 attack?

Time will tell. The Americans had better hold those dems responsible.

[billy missle]

Why Didn't you connect the dots?
Why Didn't you connect the dots?
Why Didn't you connect the dots?
Don't you dare try to connect any dot at any time..you might find me doing something illegal..Where the hell is my lawyers phone number?
Why Didn't you connect the dots?
Why Didn't you connect the dots?
Ad nauseum

[Walter]

Off-topic, but the Rumsfeld Iraq memo is out.

Apparently, he actually had the capability to recognize when a strategy was no longer working.

The memo also calls into question the resignation timeline--written two days before his resignation, it does not refer to him leaving. Of course, one of Rumsfeld's Rules* states: "Be able to resign. It will improve your value to the president and do wonders for your performance."

*Ironically, one of the epigrams is remarkably prescient:

It is easier to get into something than to get out of it.

[lurker]

Didn't Rummy offer to resign more than once in the last few years but Bush wouldn't accept his resignation?

Rummy didn't seem to have a problem resigning but he knows that he would be scrutinized by the MSM regardless of when he resigns.

[Walter]

Lurker,

You thought I was referring to Iraq as "easier to get into..."?

I was talking about accepting the SecDef job once but having to resign three times to be able to quit.

[lurker]

Oh, ok! Gotcha! Guess he finally found a way to resign this time, huh?

Sometimes I wonder how hard it is to retire.

[Pofarmer]

"Bring the public for a tour"

A tad on the disingenuous isn't it, farmer?

No, not really, considering the history of leaks we've got going. Excessive oversight = a nonsecure/ineffective program.

[Cecil Turner]

Excessive oversight = a nonsecure/ineffective program.

No kidding. Contrast the security on this one with the analogous WWII "Operation Magic." Makes you think we (or at least some of us) can't be taking this seriously.

[lurker]

I read that the details of the NSA terrorist surveillance program as well as the SWIFT will not be revealed to the democrats. Those dems will be rendered ineffective. They probably will have to go the court for subpoenas or something?

[Anonymous Liberal]

Tom,
Not to look a gift horse in the mouth, but the link in your post doesn't go to my post.

As for your suggestion that the NSA program will go the way of the MCA, I'm skeptical. The passage of the MCA was made possible only by the existance of a Republican majority and the need to create a perceived winning election issue in the runup to the midterms. If you privately polled Republicans and Democratics in Congress, I suspect that very few genuinely thought that was a good bill. Much of the Republican support for that bill was based on party loyalty. Republicans like Specter and Graham will no longer feel obligated to vote for legislation like that now that they are in the minority, and legislation like that just won't make it to the floor anyway (unless, of course, the Bush administration can manage to cram through something before the lame duck session ends)

The Democrats aren't going to legislate in the dark. If the Bush administration doesn't comply with its requests for information, there won't be any overhaul of FISA. It's that simple. The Democrats will just leave the law as it is and let the courts sort things out (a few more court rulings will greatly strengthen their hand). Plus, the administration (see Cheney, Dick) still argues that it doesn't need any additional legislation. Why give the administration something they claim they don't need?

[lurker]

Because they are within the law according to the US Constitution.

[Larry]

Pontificating as if any one of us knew exactly how the NSA program works is getting old. All official opinion has deemed it legal. It's been used by successive administrations without complaint. Apparently, we've gained some info useful in apprehending terrorists and/or stopping terrorist attacks. No, nary, zero, zip, nada, not a single U S citizen has had their rights trampled. Someone want to explain to me exactly what the problem is? Are you there Glenn?

[Semanticleo]

"Off-topic, but the Rumsfeld Iraq memo is out."

Stephen Hadley was on MTP today demonstrating,
once more, why so few good people want to enter public life. He had the honor of trying
to spin Bush intransigence.

[Semanticleo]

"No kidding."

Cecil;

All kidding aside. Do you lock your front door at night?

[Cecil Turner]

Do you lock your front door at night?

Like I said: unserious.

[Larry]

Leo, Rumsfeld is right. I was 26 years in the USAF. Not one iota was ever trained about nation building. It's not DOD's job. We owe a huge debt of gratitude to D R's long record of outstanding public service. Bush, rightly, has the bigger picture to account for, of which DOD is only a part. If any of this is too complicated for you......

[Semanticleo]

"Excessive oversight"

I am serious.

Can you honestly macro the focus on 'soft
terror measures' or 'payback'?

Is there perhaps some other reason for;

'excessive oversight'?

[boris]

a few more court rulings will greatly strengthen their hand

Still doubt that courts will intrude into foreign surveillance. The detainee situation was far less risky for them and their meddling can be interpreted as goading congress to do their job. Impeding or interferring in surveillance after 911 carries substantial risk of geting Americans killed. That doesn't worry the MSM who consider Republicans a greater threat than Bin Laden, but one hopes a modicum of reason and restraint remains in the judicial branch.

Preticiton: Courts will lay off and then when Hillary gets elected spying on Americans to protect the country will suddenly be ok.

[Larry]

Any oversight by Jay "the leaker" Rockefeller is excessive. After reading his memo, I wondered what his qualifications are for the position. He apparently can't tie his shoes or wipe his butt without his staff.

Where was the criticism of the NSA before the NYT leak? Ranking democrats were repeatedly briefed, but nary a squawk from them til it went public.

[Semanticleo]

"He apparently can't tie his shoes or wipe his butt without his staff."

I tend to agree. But is there some reasonable middle ground between over-reliance on staff,
and completely ignoring their recommendations?

[lurker]

a few more court rulings will greatly strengthen their hand

This would be a violation of the US Constitution.

Management and delegation are reliance on staff. No problem.

Management and delegation is also ignorance on some recommendation but honoring others. No problem.

[lurker]

Larry, funny how Jane Harmon said that the NSA program is legal before she lost to Reyes. Now she says it's illegal. What a hypocrite.

[boris]

Now she says it's illegal

The NSA program can be constitutional yet in violation of the letter of the law. Until a higher court decides otherwise, the sealed case ruling provides a valid interpretation of FISA for the administration to uphold.

We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

[lurker]

Then the law should have been ruled as unconstitutional.

[Cecil Turner]

Can you honestly macro the focus on 'soft
terror measures' or 'payback'?

Not sure if this is "unserious" or "incoherent."

We have active foes attempting to do us harm; and their preferred method of attack is by infiltration. Every day, thousands of aircraft fly in our airspace and tens of thousands of containers are transported along our coasts and waterways. Any of them could be used for mass mayhem. The only possible defense is to intercept enemy communications and interdict their operations, and that's obviously impossible if they're allowed to read about our techniques in the newspaper. Balanced against this is the hypothetical violation of a non-existent privacy right, or political abuse that hasn't even been alleged. Tough call.

Again, the historical equivalents (e.g., "Magic") weren't even widely briefed among those who had a legitimate need-to-know. (Adm Kimmel at Pearl Harbor, for example, wasn't on the Magic distribution list, and Gen Short, the Army commander, wasn't even cleared for it.) As a result, the Japanese didn't know we were reading their messages, which led to the decisive victory at Midway. The idea that we need more briefings and public hearings on our most sensitive national security information--so that it can be leaked more efficiently to the NY Times--is a bit hard to credit.

[clarice]

"Tough call"--Love you, Cecil.

[Semanticleo]

The idea that we need more briefings and public hearings on our most sensitive national security information-

Unresponsive.

Who is to blame for this situation?

[Pagar]

""""The Democrats aren't going to legislate in the dark.""""""
I don't think anyone thought they were.
The plan was all laid out and has been available to everyone since 24 Jun 2006. Who were going to be the new committee chairs, what they were going to do to insure the agenda was moved forward. In case anyone didn't get a copy, you can find it at this website.
http://www.cpusa.org/article/articleview/769/1/135/

[Larry]

Who is to blame for this situation?
Posted by: Semanticleo | December 03, 2006 at 11:41 AM
Simply put, the traitorous leakers.