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January 25, 2006


David Walser

The problem with the DeWine amendment was that it would still have required a warrant. However, warrant's cannot be issued on a "reasonable suspicion" standard. The 4th Amendment states: "[N]o Warrants shall issue, but upon probable cause...." How could DeWine's amendment been anything BUT unconstitutional?

Appalled Moderate

The consequence of not following FISA are wiretaps that cannot be used in court. If the goal is to stop terrorist actions, as opposed to arrest people for committing them, I'm not sure the eavesdroppers are going to be all that worried that what they do gets used in a courtroom.

I think this explains, better than you do, TM, about what's going on. Because the NSA position on the DeWine bill seems to be worry that ordinary prosecutions could get thrown out of court on 4th amendment grounds. The thought in the NSA mind would be "why endanger current and future prosecutions based on the compliant stuff we do, when we're already doing what the DeWine bill would let us do"?

All this feels very real world to me. The President probably should not break the law, but he is in the business of preventing more 9-11s. My guess is the Dems and McCain and company will go harumphing off into the sunset.


The Dems are already toning down their shrieks. I guess they are realizing this is not a winning issue.

And TM, thais is a great catch.


Kevin Drum provides a handy summary of the state of play which incorporates the proposed DeWine amendment.

No, he doesn't. Kevin is completely wrong about every single one of the four points he makes.

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Attorney General Alberto Gonzales argues that the Authorization for Use of Military Force, passed shortly after 9/11, superseded FISA."

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 And the Administration does not argue that the AUMF "superseded" FISA (except in one short footnote to the White Paper).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 with the NSA program 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.


TM quotes Glenn Greenwald, who writes: In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA.

Um, can anyone explain to me how this is in any way true? I'm puzzling over it, and I can't figure it out.

Isn't the problem with the NSA program that it might be spying on US PERSONS??? And, if so, how does it fix anything at all to lower the standard with respect to NON-US persons?


Currently with a legal wiretap on the local crime boss the FBI can monitor a call to the out of state hitman, alias Lefty Icepick, without also having a warrant on Lefty. Also the monitored content can then be used to obtain a warrant on Lefty to monitor further communications with yet others.

That first call is the problem with FISA. Surveillance of overseas terror suspects IS ALREADY LEGAL. When they contact US parties the content of that communication is necessary information for obtaining FISA warrants. Lowering the standard for a warrent is irrelevant to the problem.

The administration wants the valid FISA warrants for further investigation/prosecution within the criminal justice system.


Kevin Drum provides a handy summary of the state of play which incorporates the proposed DeWine amendment.

No, he doesn't. Kevin is completely wrong about every single one of the four points he makes.

Well, it is still handy... sort of like a map that is fine exceopt that North and South are reversed - just hold it upside down.


As I recall, (a) both ends of call overseas 0 OK; (b) one end US, one end foreign - OK *IF* it is the foreign end being "targetted" - e.g, we are tapping a phone booth in Kabul that is used for calls to Munich and New York.

But what about (c) - Kabul calls NYC, NYC then calls Bonn - is it OK to tap that, where NYC is targetted? Is the probable cause met, even if the conversation *sounded* harmless (it might be a code)?

But what about (c) - Kabul calls NYC, NYC then calls Bonn - is it OK to tap that, where NYC is targetted? Is the probable cause met, even if the conversation *sounded* harmless (it might be a code)?
If the content of the 1st call can be used to obtain a FISA warrant on the NYC target within 72 hrs ...

What about (d) a (212) area code number is found in Khalid Sheikh Mohammed's laptop - no name attached.

It that "probable cause" to surveil the international calls from that 212 number? Sure, maybe Mohammed Atta Jr. has that 212 phone number. But maybe Khalid Sheikh just wanted to remember the number of that really good pizza place on 2nd Avenue.


Good thoughtful thread and excellent points to ponder in the posts.
I agree with Clarice dems are already throttling back with Reid and Schumer asking "What would you have us do here?" Of course Reid has to somehow atate that President Bush isn't responding to him. Why does it always have to be all about the dems?


I noticed on the evening news shows that the comments from detractors are being toned down. I still haven't seen Rockefeller. Anyone else catch him talking?


to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

The non-US persons has me scratching my head. I'm not sure I understand the non-US persons. The way I understood it, NSA does not need probable cause or reasonable suspicion to wiretap non-US persons. Am I wrong?


Mac says he's tied up in the DoJ FISA investigation (along with Levin)..Haven't seen him in public for a while..Has anyone?



I saw Levin today. No sign of Rockefeller.


Rockefeller only talking about reform in the coal mining industry.

IMO he looks paler and less animated than is normal for him -
DOA for most humans - other than Reid.


If I was a lefty conspiracy type I'd be very suspicious tonight because every single news program I've seen this evening has toned the outrage way, way down in everything from their tone to the way they label the issue.

Hayden was extremely persuasive, and I suspect the Dems have looked over the edge and seen a yawning abyss below.



It probably doesn't have anything to do with poll numbers...


Someone--I think Daily Howler--noted it was coming down to who do you want to handle terrorism-- lawyers or special forces? Kind of clears the air,I think. Man, that is one really stupid party.


Right now with this surveillance question and the Alito vote the dems are looking not as smart as they think they are.


mayrose is exactly right when she comments: "Right now with this surveillance question and the Alito vote the dems are looking not as smart as they think they are."

In fact, the dems look like a lynch mob. not unike the eurolefties who STILL want to lynch buushblair over the "secet prisons" even though their official report found there is no proof they ever existed - except in the newspapers and the bds minds of the left.

heck: surbin and teddy jo and opatrick leahy each requested written answers from aliton on certain issues but then annouced their NO votes BEFORE alito had sent them his ansers.

that's a lynch mob. an alito nsa gitmo abu ghraib lynch mob.

but they ALL want saddam to get a fair trial at the icc.



Someone--I think Daily Howler--noted it was coming down to who do you want to handle terrorism-- lawyers or special forces?

Maureen Dowd, saints preserve us, noted that on this issue, George Bush is Jack Bauer of 24.

As a fan, I can tell you - Jack Bauer doesn't always follow the law, but his heart is pure and he gets results (and a staggering body count).

And at some pont, Dems will have to stand up and say, Gen. Hayden can't be trusted - we support the troops, but not these troops. Good luck with that.

Gary Maxwell

So to stick a fork in another failed scandal du jour, as Roseann Roseanna Danna would say after a little pause "Never Mind."


Anchoress today:
A Jack Bauer-rich moment

Filed under: America
I rarely laugh so hard that I’m holding my sides, but listmaker’s comments regarding Special Agent Jack Bauer at Polipundit got me. It’s brilliant.

ME: I liked:
10) Superman wears Jack Bauer pajamas.

And I would add:

Jack Bauer wears GW pajamas.


Here's the Link to Listmaker:

Click here: PoliPundit.com » “24? Thread
Some random facts about Jack Bauer:
1) If you wake up in the morning, it’s because Jack Bauer spared your life.




This morning even Matt & Katie on the Today Show are using the terminology "eavesdrop on suspected terrorists" when 48 hours ago they were using "domestic spying program".

On the other hand, my local paper dropped this little gem on me this morning:

"In a rare visit to the secretive National Security Agency, President Bush warned Americans Wednesday to remain fearful of terrorists and promoted a covert eavesdropping program as a vital tool to prevent further attacks."

I'll be damned. I watched that speech and never heard him say we should "remain fearful".

Agenda journalism? Bias?




I'll make two points, one related to something you wrote in your post, one related to a later comment.

"A possible answer, stated emphatically by Gen. Hayden - they don't think it is illegal.

Well, obviously not. But here's the rub: If the AUMF did not authorize the warrantless surveillance at issue -- and I'd say that the majority of legal experts, Congresspersons, and judges applying well-established rules of statutory construction would say that it did not -- then the surveillance was not only illegal, but criminal. FISA section 1809 states, in relevant part:

"(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute;"

You'll notice that there's no intent requirement there; they don't need to know they're breaking a law; they just have to intentionally engage in prohibited surveillance. If the AUMF argument fails, there's no statutory authorization. Just to make this clear, Congress had the enxt section, 1809(b), read: "It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction" (emphasis added). It's as clear as day: conducting surveillance defined in 1801(f) without court order = crime.


"But what about (c) - Kabul calls NYC, NYC then calls Bonn - is it OK to tap that, where NYC is targetted? Is the probable cause met, even if the conversation *sounded* harmless (it might be a code)?"

These are precisely the calls that NSA has plainly admitted to tapping without a FISA warrant, and are the source of the controversy. Nothing in FISA makes a distinction between (a) calls that have end points abroad and (b) calls that have end points in the US -- when a US Person in the US is targeted.

Also, as a practical matter -- when Kabul calls NYC, and the NSA therefore wants to tap further calls from NYC, it just taps that phone. It doesn't know where the next call is going to go; could be Bonn, but also could be Boston. And, under the arguments put forth by the Administration and its defenders, when NYC makes the next call, and the NSA sees its to Bonn, they can listen in. If they see it's to Boston, they have to hang up.

And that, frankly, is preposterous, from both an operational/effectiveness standpoint and a legal standpoint. See what kind of silliness all this international/domestic parsing gets us into?


FISA was a weak section of the wall construced by incompetent engineers. The siege would have ended with disaster for the defenders had not loopholes, fortunately not closed by DeWine, allowed aiming at those attempting to breach the wall.


I'll bet you are right - I could see Congress wanting to take away the Nuremberg defense.

However, that will be one fine trial - some DoJ lawyers will prosecute while the defense puits other DoJ lawyers on the stand for the defense. (And can the NSA sue the DoJ for malpractice or incompetent representation?)

And as a practical matter, Hayden will say that he had his own three in-house lawyers tell him it was a lawful order - do we really want to sned him to jail? How are we supposed to run a military when the Pres gives what he believes is a lawful order, the General has it reviewed independently, concludes it is lawful and proceeds? And as a bonus, the General personally briefed COngressional leaders.

I don't see it - I think on this one, they get Bush, or no one. Which means, no one.

But if the Dems want to push for the prosecution of Hayden, well, Dr. Kevorkian has become a political consultant.


Honestly - I suspect the NSA vs. FISA will never get to a court to be tested. It's the same reason that the War Powers Act of 1973 was never tested. Because it's not a legal issue as much as it is a political animal.

You know when Matt and Katie change their terminology that the democrats are finally looking beyond, "Let's put up more scandals and get Bush" to "OMG - did you see that the polls actually support what Bush is doing." To bring it to court would look very, very bad for them - and this is an election year. Hence my assumption that it will never get to a court.



I obviously don't see anyone getting prosecuted (unless evidence of political spying emerges or Gonzales cusses out Specter at the hearings), but my point was that simply thinking you're acting legally is oftentimes -- like here -- not a defense to crimes where there's no intent requirement.

It was an somewhat inapposite point attempting to counter the implication that we shouldn't care too much about this whole NSA thing because Hayden, nonlawyer NSA chief, had a good faith belief it was legal.


As TM stated, it's child's play to conjure up some fact scenario that runs afoul of FISA & the Fourth Amendment. Just envision some NSA operative with headphones listening in on domestic telephone calls or some other retro scenario. The real challenge is to try to figure out what's really happening.

It seems unlikely to me that so many administration officials & so many administration lawyers are relying on some strained, convoluted interpretation of FISA & the Fourth Amendment & proclaiming so vociferously that The program is legal if the facts otherwise run afoul of FISA & the Fourth Amendment.

Professor Kerr seemed to think that The Program involved something more like packet sniffing than data mining or traditional wiretaps. That would be more like reading the outside of envelopes (with no reasonable expectation of privacy) running through the mail than listening in on telephone conversations. Do they intercept signals at the switches? Inside or outside the US? By satellite? But what happened with the Brooklyn Bridge incident? Was that in the subject line of e-mail headers? Sounds to me like that was based on content from telephone intercepts. Were there warrants for those calls? Were US persons even participating in the conversations?

The only people who know what's actually going on strongly assert that The Program is legal. But they can't tell us what's going on because it's classified. The people who assert that The Program is clearly illegal do so based solely on their assumptions, but what are those assumptions?


Those assumptions are that this Administration is like JFK and Johnson's and that it learned nothing from Nixon. In other words, projection.


This ia ll going to fade fast.

General Sada has just come out with a book confirming what has been patently obvious:Just prior to the war, Saddam moved his WMDs to Syria. (See rightwing nuthouse for the best survey of the evidence of this --also Macsmind on Rockefeller's problems growing out of this and today's NY Sun cited in both blogs.) Once again, the press downplayed what the best evidence indicated and lured the Dems out on the Bush lied limb.


Here's the cite to Moran's piece: http://rightwingnuthouse.com/archives/2006/01/26/oh-those-pesky-iraqi-wmds/

Appalled Moderate


Someone's got to show me the actual weapons sitting in Damascus and evidence of where they came from before I believe that. (Syria has had chemical wmds for years. Merely saying "look, Syria has weapons, does not suffice".)


Does he document the Russian trucks used to move the stuff?


Jeorkge Bauerush turns DeWine into water.

And trucks into airplanes.

Remember the queen who responded, "Roses, My Lord.", and my Lord, they were.


A 'good faith belief' that something is legal is sufficient for action, something moderately critical in this debate. Whether instructed to or not, juries always consider intent.


Assad may soon give you your wish, AM. Open, Sesame.

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