Why Not Just Get FISA Warrants?

Back on the subject of the NSA warrantless eavesdropping, we have some intriguing hypotheticals to trot out.

Let's give Brit Hume a chance to set the stage - here he is interviewing Jane Harman, ranking Democrat on the House Intelligence Committee:

HUME: So if you're listening in on an Al Qaida suspect overseas, and you're listening to all of his or her, as the case maybe, phone conversations, and suddenly he's on the phone to someone in the United States, or he's in the United States and you're listening, and he's talking to somebody in the United States, do you believe that you need, then, to shut the surveillance down and go to the FISA court to get it authorized, or to go there later, or what?

HARMAN: Well, I think that in the -- those conversations in the United States would be a perfect basis to get court approval. And there is a 72-hour delay mechanism in the FISA statute. So my answer to you is, number one, it is very important to learn the plans and intentions of our enemies.And number two, we can do that within a legal framework that would give Americans comfort and actually give our court system comfort that the Fourth Amendment is being observed and that our system of laws that Congress has passed, including FISA, which was supposed to be the exclusive way to do electronic surveillance on Americans in America, are being observed.

Let's give Mr. Hume modified props - assuming it is the AL Qaeda operative being targetted while overseas, and his US contact is incidental, a warrant would seem to be unnecessary, based on FISA 1801(f).

However, Mr. Hume modified his question to put both ends of the call within the US, so let's allow him his hypothetical in order to make another point:

Folks seem to be thinking of these taps in terms of real time, with agents wearing headphones listening in as our enemies chat.

However, let me propose my own hypothetical: 

Let's *ASSUME* that the NSA *records* every digital transmission from Afghanistan to the US that they can get ahold of.  Decrypting and translating take time, so initially they simply maintain a huge vault of raw intercepts.  Let's imagine that in June, a telephone of no apparent interest in Kabul dials a phone number of no apparent interest in Manhattan.

That phone in Manhattan is then used to dial a number in Washington DC; the call is also recorded but not decrypted.

A month goes by.  Then, come July, Osama himself calls the formerly-uninteresting phone in Kabul.  Wow!  The NSA is interested now, you betcha!

So, some questions for spies and lawyers:

(a)  Is it now worth the computer time to decrypt and translate the June calls from Kabul to Manhattan? 

Easy - of course it is, and I think there is broad agreement that, since one leg originated overseas and the interception occurred overseas (broadly defined, perhaps, to include the border), FISA warrants are not necessary.

(b)  Will spychasers want to decrypt the Manhattan-Washington DC phone call recorded in June?

I promise, the questions will get more difficult - as to decrypting the call to Washington, of course they will want to.

(c)  Can the NSA invoke the 72 hour rule and get a retrospective warrant for that call?

I don't know, but I do know that a lot more than 72 hours have passed since the recording was made.  Can the NSA argue that "interception" includes decryption?  Would that fly?  I don't know (but I would guess not).

So, what is a President to do?

It may be that our data storage capability simply does not mesh well with FISA.  Let's go back to 1801(f) for the definition of surveillance:

“Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication...

Emphasis added.  One might argue that, until the call has been decrypted and evaluated, the "contents" have not been captured - all that has been stored are digital ones and zeros.  If a tree falls in the forest and no one is there to hear it, did it make a sound?

Consequently, the act of "intercepting" and storing the call in digital form was legal (one might argue).  And decrypting it later?  Well, a probable cause argument is a lot easier if the connection to Osama can be shown.

Now, I am not a lawyer, and some of these points may have been settled.  But I'll say this without fear of contradiction - my hypothetical is a lot more interesting than Brit Hume's.

AG Gonzalez alluded to difficulties in amending FISA in ways that covered The Program without revealing it.  The second hypothetical may be the sort of thing he had in mind.  Or at least, it suggests ways in which the problem might be more complicated than folks realize.

MORE:  Keep Legal Eagle Orin Kerr in the mix for NSA coverage.

Comments

[Geek, Esq.]

The technology involved is the main reason I haven't gotten too worked up about this contretemps.

Still, it shouldn't have been too hard to get a provision covering this smuggled into the Patriot Act from the outset--it's not like anyone read the damn thing before it passed. When in doubt, be sure to comply with the law.

[clarice]

Read Kerr--apparently the language in Patrior II might have covered this.

[TM]

Still, it shouldn't have been too hard to get a provision covering this smuggled into the Patriot Act from the outset

Well, the first Patriot Act only got, like, 99 Senate votes.

[Geek, Esq.]

There shouldn't be any "might have's" when it comes to Federal snooping on American citizens, imo. Clear Congressional authorization should be required.

[Geek, Esq.]

Well, the first Patriot Act only got, like, 99 Senate votes.

True, that provision may have cost them another 0-1 votes. A 98-2 vote was simply unacceptable.

[TM]

Here is Orin Kerr on that point:

(Aside: Remember back in 2003 when a copy of the Administration's "Domestic Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to the press? Section 501 of that Act would have made "providing material support" to a terrorist group an automatic ground for terminating citizenship. This is just a guess, but I wonder if the thinking was that this would make the NSA warrantless monitoring program legal under FISA. An individual who made regular contact with Al Qaeda could be giving them material support, and the individual would then no longer be a United States person and could then be legally subject to monitoring. Just speculation, but it might explain the thinking behind the legislative proposal. Anyway, back to our regularly scheduled programming.)

Well, maybe. Of course, suspending a person's citizenship opens up a lot more obvious things in terms of arrest, confinement, coercive interrogation, etc.

Color me skeptical.

[oceanguy]

You might have different opinions if you had a fuler understanding of the technology involved. "Eavesdropping" and "wiretapping" are not accurate terms used in the screening process.

Your questions, and Brit Humes', are interesting but almost certainly they have little applicability to the technology that is likely being used.

[Dwilkers]

"...Let's imagine that in June, a telephone of no apparent interest in Kabul dials a phone number of no apparent interest in Manhattan.

That phone in Manhattan is then used to dial a number in Washington DC; the call is also recorded but not decrypted.

A month goes by. Then, come July, Osama himself calls the formerly-uninteresting phone in Kabul. Wow! The NSA is interested now, you betcha!

Good on you TM. This is, I suspect, much closer to the type of thing that is being done than what is being assumed in much of the conversation about this issue.

Add in all the complexities of modern communication, message boards, text messaging, and on and on and on. Voice recognition. Speech patterns. Massive data analysis on a scale unheard of before this.

It is this sort of thing that I think may be what's going on, and this is a much, much more complicated - and difficult - issue than has generally been discussed.

[Kevin B]

Excuse my ignorance,but as a Brit my knowledge of the US justice system comes from watching Laura Norder and

similar cop shows.

Let's try another hypothetical

A cop is walking down the street and sees someone who looks a bit suspicious, follows him to his pad, busts in and finds

illegal guns, bombs, stolen propery etc. and arrests the guy. The DA won't even take the case to a judge because the

cop didn't have a warrant, wasn't in hot pursuit and didn't have probable cause.

But the cop is never arrested , charged with some felony and locked up. He just gets bawled out for not finding or

inventing some justification for the bust.

So why are so many people talking about what the NSA and Bush have done as 'illegal'. Surely the only problem is that

any evidence found may not be admissable,

Indeed I read in a column sowewhere that the FISA judges are not concerned with what the NSA is doing per se, but

whether evidence from unwarranted surveillance can be used to grant warrants for surveillance on US persons without

being tainted.

The NSA is sniffing out leads, looking for patterns and just generally being a cop, and if it gets a lead it passes it on to the

FBI to followup and go through the legal hoops.

So why all this talk of crimes and impeachment and the like.

Ok, I can see why NSA surveillance might be different, like CCTV and loyalty cards, but I still cn't see the indictable

crime.

Incidentally, I think the reason for Atrios et al taking the 'Leaks didn't cause any national security problems ' line is that the

pressure on the leakers is starting to grow.

Mind you, I think the extrordinary rendition of the two JRs is a tad excessive, (or is there some other reason we haven't

heard from them recently).

[cathyf]

Of course, suspending a person's citizenship opens up a lot more obvious things in terms of arrest, confinement, coercive interrogation, etc.

But that's already settled law, right? In WWII when the German sabatours came ashore, the president sent them to a military tribunal and they were summarily executed. The Supreme Court ruled (four months after they were dead) that the fact that 2 of the sabatours were American-born was irrelevant. Once they started working for the Germans they were no longer American citizens.

cathy :-)

[Charlie (Colorado)]

I think it gets a little better yet: if you don't have a FISA warrant, "minimization" requires you to delete the intercepts after 72 hours.

[Anonymous Liberal]

Tom,
This is an interesting post, as always, but it's still hard to see how it's relevant whether or not the prohibitions of FISA are "practical" in light of the surveillance we're now doing. If the prohibitions of FISA are unreasonable, the president has to go to Congress and get the statute amended. That's exactly what he did with the Patriot Act, which made a number of important changes to FISA, including doing away with the probable cause requirement. You seem to indicate in your post that FISA requires probable cause. It doesn't. The standard is now MUCH less stringent.

And your concern over the difference between "interception" and "decryption," if important, could easily be addressed by statutury amendment. There is no reason whatsoever to think that Congress would have refused to go along with such an amendment.

Long story short, unless it can be demonstrated that Bush's program is does not in fact in violation of FISA (which seems unlikely considering it is not even being argued by the administration), the practicability of FISA is totally irrelevant to consitutional issues presented by this case.

[searp]

The only way to get a useful opinion on the legality of the program is to get it reviewed by the courts. The FISA court seems like the right jurisdiction. Why doesn't the administration just do this?

No, it is not enough to brief in a single judge.

Hypotheticals simply may be completely wide of the mark.

[epphan]

There shouldn't be any "might have's" when it comes to national security. Clear Congressional authorization should not be required.

[Wonderland]

TM gallantly attempts to point out:

"One might argue that, until the call has been decrypted and evaluated, the "contents" have not been captured - all that has been stored are digital ones and zeros."

Yes, one might, but one might also be wrong. Read the statute again, Tom, because under 1801(n) the term "contents" is defined to include any information concerning even the "existence" of the intercepted communication. So even if its simply a computer recording some 1's and 0's, then the contents have been captured -- it's inarguably a record of the "existence" of the communication -- and FISA applies.

I readily admit that various hypotheticals pose some practical problems for FISA's application. And certainly, to the extent that the program was/is necessarily and we're talking weeks and months following 9/11, the President might be able to make some sort of necessity argument for its temporary authorization that would have spared him most of the grief he's now getting 4.5 years later. But, like AL, I believe that our system requires the President to go to Congress, in closed session if necessary, and get the law changed. He cannot have the unitary ability to do this on his own -- not, at least, when communications from the phones of Americans inside the US are concerned.

[Rick Ballard]

epphan,

One must consider the mischief that al-Queada's useful idiots might get up to to were they not focused on the "how many angels will this pinhead hold" question that now consumes their time.

Bringing treason charges against the leakers might provide a means of fully exploring the the wholly theoretical legal and constitutional questions in a practical manner. Lesser charges might do the trick but my preference would be Risen, Keller and Sulzberger in the dock alongside their "sources" in a nice lengthy trial followed by appeals that would last for five to seven years.

[marianna]

It takes 72 hours to get a warrant. For something possibly life-threatening, that is way too long. In a pre-911 world, FISA might have made sense. But in a post-911 world, it simply doesn't.

[clarice]

Bravo, Rick.

The FISA court, like all other courts, can only rule on justiciable controversies, which means someone has to show that he was harmed by the program. And unless we can haul in the apparently dead Osama and his buddies that might be hard.

[epphan]

Wonderland is right on the "existence" issue. TM's hypothetical in that area doesn't cut the legal mustard. Question: If you assume Bush is not a power-hungry dictator (a harder assumption for some than others), what is his motive for not pursing a change in law? Stupidity? An issue that is much more complex than anyone realizes?

[Rick Ballard]

Perhaps he's leaving the legislative funtion to the dolts theoretically responsible? Is there some bar against Harman or Rockefeller actually proposing legislation? Aside from ineptitude, of course.

If I'm told by a competent mechanic that my car ain't broke from whence does my duty to have it fixed arise? It runs, it takes me where I wish to go and my mechanic says it's good for another fifty thousand miles. Why should I overhaul the engine?

[maryrose]

Rick,
Lots of talk about separation of powers:
Let the legislators- legislate
Let the executive- execute

[BurkettHead]

What if the NSA doesn't maintain the database, but the telecommunications company does in the ordinary course of its business? If the NSA has to "destroy" the results of its intercept, does it just "destroy" the results of a sort or filter, or does the NSA "destroy" the contents of the telecommunications company database?

[Les Nessman]

Funny how during these latest Epidemic of Leaks the Lefties don't even question the motives and/or legalities of the leakers; but during the Plame non-story it was the ONLY thing they questioned.

[marianna]

"Lots of talk about separation of powers:
Let the legislators- legislate
Let the executive- execute"

Very well put.

[Anonymous Liberal]

That is funny, Les, until you stop and realize that "Righties" were willing to give Karl Rove a medal for outing Plame (seriously, John Gibson of Fox wrote an editorial saying exactly that) but now are obsessed with prosecuting the nefarious leakers behind the NSA story. Hypocrisy is a two-way street.

There's also the fact that the topic of the Plame leak (that Plame was a spy) wasn't particularly interesting and didn't raise serious legal/consitutional issues. In the NSA case, the information that was leaked raises the possibility of executive branch illegality and overstepping of constitutional authority. I have no problem with investigating the leaks, but clearly the program itself it the more newsworthy item is justifiably getting the bulk of the attention.

[Cecil Turner]

Can the NSA invoke the 72 hour rule and get a retrospective warrant for that call?

Maybe I'm misreading FISA, but my understanding based on 1805.f. is that the AG can authorize a wiretap if:

1. an emergency situation exists [. . .] and
2. the factual basis for issuance of an order under this subchapter to approve such surveillance exists

He then has 72 hours to tell the judge. He doesn't have 72 hours to find probable cause. (And unless I'm misreading it, Harman's answer was unresponsive B.S.) Can I get an opinion from one of the professionals? Geek? Clarice?

the practicability of FISA is totally irrelevant to consitutional issues presented by this case

Nonsense. If it undermines the President's authority to wage war, it's arguably unconstitutional. It certainly isn't "irrelevant."

[Cecil Turner]

Hypocrisy is a two-way street.

No doubt, but that's a poor example. Whatever happened with Plame/Wilson and the Niger trip, he obviously leaked details of intelligence operations detrimental to national security . . . and she had a hand in it. Her identity leak was more like an NFL fracas where the second foul draws the flag.

[clarice]

Cecil--I just don't see how what little I know of the NSA program can fit into FISA which is designed for ordinary wiretapping where you've singled out a set person and begun listening in on all his calls. The FISA section you cired is illustrative of what I mean.

I doubt if 72 hours after we've connected to a link here we even know who he is--giving cell phones and internet connections.

[clarice]

givEN, not givING..

[Cecil Turner]

I just don't see how what little I know of the NSA program can fit into FISA . . .

That's where I was going (eventually) . . . the advances in technology for storing, scanning, sorting, etc. make it difficult to fit into existing law (which Tom's hypotheticals nicely illustrate). But on the basic legal question, posed competently by Hume:

do you believe that you need, then, to shut the surveillance down and go to the FISA court to get it authorized [?]

The only defensible answer from the statute would appear to be "yes." (And that's not the "right answer."™)

[clarice]

Which is why the gutless Rockefeller and Pelosi never tried to stop the project---FISA was simply not aplioacble.

Why didn't they offer up new legislation which might cover it? Why bother. As Rick says, the car's working just fine.

[Anonymous Liberal]

Correction:

In an earlier comment I said that FISA doesn't require probable cause. That's wrong. While FISA doesn't require probable cause that a crime has been or is about to be committed (like the 4th amendment), it does require probable cause that the target being wiretapped is a foriegn power or an agent of a foriegn power.

Not that anyone here pays attention to what I say anyway, but I justed wanted to correct the record.

[Geek, Esq.]

Do those who want the NY Times prosecuted also advocate jailing Richard Shelby? How about Orrin Hatch?

[Rick Ballard]

"Do those who want the NY Times prosecuted also advocate jailing Richard Shelby? How about Orrin Hatch?"

Sure, as long as Leahey, Biden, Schumer, Kennedy, Feingold and Levin will fit in the same cell. Any net that would take Shelby and Hatch has to be big enough to accomodate a rather larger number of Dems. Funny how that works.

I'll toss in Specter and McCain for no extra charge.

[Rick Ballard]

That would be for malfeasance though. Treachery belongs to the Time's men and their sources.

[Cecil Turner]

Not that anyone here pays attention to what I say anyway, but I justed wanted to correct the record.

Now, now, AL. We don't agree on much, but we pay attention. (Besides, what fun is it to argue with a bunch of folks who agree? We neeeed people like you.) Who loves ya, baby?

[cathyf]

Hey, AL, I listen to ya... :-)

While FISA doesn't require probable cause that a crime has been or is about to be committed (like the 4th amendment), it does require probable cause that the target being wiretapped is a foriegn power or an agent of a foriegn power.

And I'll point out here, as it seems to be a common source of confusion, this follows logically that warrants can only be applied to specific identifyable individual targets -- people, and you can't just get a warrant on a phone number.

Interestingly, I think that you have pointed out the strongest argument that FISA is unconstitutional. Instead of FISA being a law which implements 4th Amendment protections of Americans who might be suspected of committing crimes, it is a law which applies a sorta-kinda-like 4th Amendment regime to protect enemy combatants on the battlefield. But Article II of the constitution says that the president is not only allowed to fight against those who make war against our country, but obligated to do so. You could make the president's Article II obligations to spy on the US's enemies go away by amending the constitution to extend 4th-amendment-like protections to enemy spies and sabatours, but you can't just pass a plain old law. (FISA being a plain old law.) The fact that FISA explicitly requires probable cause of something other than what the 4th amendment is about makes it quite clear that FISA is trying to illicitly amend the constitution to give 4th-amendment-like rights to people who don't have them as opposed to implementing the 4th amendment for people who do have them.

cathy :-)

[Rick Ballard]

AL,

Based upon your previous comment on probable cause I looked up this Report on the Amendment

[marianna]

"That is funny, Les, until you stop and realize that "Righties" were willing to give Karl Rove a medal for outing Plame (seriously, John Gibson of Fox wrote an editorial saying exactly that)"

Rove was merely setting the record straight about Wilson. I'm not saying Rove "deserved a medal" (nor did any "righties" say that), but somebody had to point out that Wilson was, in fact, lying. Repeatedly lying. There was no damage done by the revelation that Ms. Plame worked for the CIA.

Compare that to the Times leak, which caused irreparable damage to a valuable operation, and you'll see why Bill Keller belongs in jail and Scooter Libby does not.

[Rick Ballard]

AL,

Based upon your previous comment on probable cause I looked up this Report on the Amendment of FISA which pretty much answers Tom's original question of Why Not Just Get FISA Warrants?

Currently the FISA court is issuing about 6 warrants per work day. Six whole warrants. At some point a law simply ceases to serve its intended purpose through impracticality. I would suggest reform of the law but I've seen very little evidence that the legislative branch has a clue concerning how to accomplish that task.

Bad TypeKey - no soup for you!

[Anonymous Liberal]

Cecil, Kathy, glad to know I'm not just talking into the void.

As for your point about probable cause, Kathy, I'm not sure I follow. The standard under FISA is significantly LESS rigorous than under the 4th amendment. And FISA makes it clear that you don't have to know specifically who the person being surveilled is. You can get a warrant for "John Doe." And I'm almost positive that the mere fact that someone is being called by a terrorist is enough to constitute probable cause under FISA to intercept the communication. The government shouldn't have any trouble getting a warrrant in that situation. My guess is that problems arise when you start getting out a few degrees of seperation away from the original call, i.e., intercepting the call of someone who talked to someone who talked to another person who talked to a terrorist. If the Bush administration wanted to listen to those calls, they may well have trouble securing a warrant under the current law.

But again, all this is beside the point. No one has ever questioned that Congress has the authority to regulate surveillance of U.S. citizens within the U.S. You can argue that somehow the president has exclusive authority over this subject and FISA is therefore unconstitutional, but that is a breathtakingly bold argument which has virtually no support in the case law.

[Davebo]

Interestingly, I think that you have pointed out the strongest argument that FISA is unconstitutional.

I'm no legal scholar and you may well be right that FISA was indeed unconstitutional.

However, even if it is blatantly unconstitutional we still have a very serious problem.

It is not the duty of the Executive branch of government, including the justice department, to determine whether or not a statute is unconstitutional.

Does the term "Boland Ammendment" ring a bell?

So the question becomes this. Who will be the next president and will he be willing, like Bush Sr was, to pardon people "for all the things they didn't do that I didn't know about"?

[marianna]

"I would suggest reform of the law but I've seen very little evidence that the legislative branch has a clue concerning how to accomplish that task."

The legislative branch has bean AWOL on WOT from the get go. Perhaps a filibuster-proof majority would change that, though I'm not sure even of that. It would certainly help not having Kennedy and Reid able to fillibuster common sense reforms.

The framers of the constitution meant for the executive to have extremely broad powers during a time of war. This is a time of war -- one of the most dangerous, if not the most dangerous, war this nation has ever fought. If there was ever a time for a strong executive, it is now.

Though part of me shudders at the thought that someone like Hillary would have powers this broad. That is why it is important to revisit some things when the war is over.

[Anonymous Liberal]

Davebo,

Another good point. FISA has been on the books since 1978 without anyone arguing that it's unconstitutional. And as you point it, even if it is, the President needs to have a court declare it to be such or have Congress repeal it. He can't just defy it. The president isn't the legislative, the executive, and the judicial all wrapped into one.

[Davebo]

Currently the FISA court is issuing about 6 warrants per work day. Six whole warrants. At some point a law simply ceases to serve its intended purpose through impracticality.

Where did you get this information? I would assume such information would be extremely classified, as is all information regarding the operation of the FISC.

Regardleses, could the reason for this figure be that DOJ only requested 6 warrants per day?

Actually, given what we know about the approval rate for FISA warrants, could there possibly be any other reason?

I might have been convinced to "look the other way" while the administration got legislation enacted to solve any issues new technology brought about with FISA. It would still be wrong, but that whole ticking bomb scenario and all....

But obviously the administration decided, for reasons I can't fathom given Patriots expedited passing, that it couldn't get congress to make the changes.

But to me, it's far more likely given the facts we currently have, that Congress might have had good reason (read bipartisan) to deny the change the Administration may have wanted.

[Davebo]

The legislative branch has bean AWOL on WOT from the get go.

Oh really? Can you think of a single war on terror related piece of legislation that has not been passed by congress?

Though part of me shudders at the thought that someone like Hillary would have powers this broad. That is why it is important to revisit some things when the war is over.

Huh? Hillary's grandchild could be president by the time this war is over. At least if you believe the Administrations goals in the global war on terror.

And again, exactly what terror related legislation was filibustered by Kennedy, Reid, or anyone else?

[marianna]

"Hillary's grandchild could be president by the time this war is over. At least if you believe the Administrations goals in the global war on terror."

We should be out of Iraq by early 2007. We may need one more invasion -- Syria or Iran -- and then, I predict within half a dozen years, the war on terror will be essentially won. So I think that by 2015 or thereabouts, we will have won this war. Maybe that's being too optimistic, but it's certainly preferable in my eyes to the defeatist rhetoric you are spouting.

[Rick Ballard]

"Where did you get this information? I would assume such information would be extremely classified, as is all information regarding the operation of the FISC."

There is this marvelous new invention called a "search engine" - when you learn its secrets it will take you to places like this where you can learn all sorts of mind numbingly boring things. I did use a trick to figure out the number per day though - it's called "long division". Too complicated to explain here.

If you read a bit of the previous link the reason for the lack of applications shines through like a supernova. FISA was designed to impede the collection of intelligence and is a remarkably good tool for the purpose. If there is any justice at all in the universe Frank Church is roasting for eternity for coming up with this (as well as other) abominations.

The reason the Executive did not pursue amendment rests with Russ Feingold and Tom Daschle. Tom has his reward and with a bit of patience Russ will receive the same.

[Cecil Turner]

And I'm almost positive that the mere fact that someone is being called by a terrorist is enough to constitute probable cause under FISA to intercept the communication.

If that's true, the protection is meaningless, and this whole argument is over the difficulty of complying with burdensome administrative requirements to a stupid law. But I think it isn't true, and the legal requirement is to show probable cause that the person answering or calling is in fact an agent. And I don't see how you could do that with an intercept that led you to the individual.

No one has ever questioned that Congress has the authority to regulate surveillance of U.S. citizens within the U.S.

The question becomes a bit more problematic when one of the people on the phone is overseas, especially in wartime. (Though I think Congress still has the authority to regulate it, as long as it doesn't make winning the war impossible.)

Oh really? Can you think of a single war on terror related piece of legislation that has not been passed by congress?

Oh great. What, is the Balloon Juice comment section shut down or something?

[TM]

Not that anyone here pays attention to what I say anyway, but I justed wanted to correct the record.

Not at all - I didn't think I was in a full dream state when I threw in the probable cause reference.

Read the statute again, Tom, because under 1801(n) the term "contents" is defined to include any information concerning even the "existence" of the intercepted communication.

"Again"? I'm not sure I made it down to (n) the first time.

Here we go:

(n) “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.

Ouch. "Substance, purport, or meaning" are easy to finesse.

"Existence"? Troubling. Perhaps NSA lawyers could get metephysical and point out that, until it is decrypted, we don't even know if it is just a dial tone.

Or maybe they could separate file headers from the body, so that, for computer purposes, the record only "exists" when they get the header info from, e.g., the phone company (in my example, the NSA asks the phone company in July for the call history of the Manhattan phone - this info lets them find the "non-existent" Manhattan-Washington recording, which has been hiding on the NSA servers.

Or let the Brits hold it - hah!

Pretty thin. But that said, I like my idea so much I sort of hope they *are* doing it. It is sort of like a time machine - why only listen to all calls *after* you take an interest in a particular number?

Bonus question - Bush talked about signing a 45 day finding to authorize this (we have had about 30 findings as part of the ongoing emergency).

Does anyone know what is up with that, and whether this gives him special short term powers? (And evidently, the long term is a series of short terms, as Keynes might have said).

As to why Congress did not push to regularize this? Troubling.

Why did Bush not push? Well, if his lawyers were arguing they were currently legal, how hard should they push to get more legal? And how much disclosure is risked?

I don't love that answer, BTW, but it looks as if I am stuck with it.

[Davebo]

Maybe that's being too optimistic, but it's certainly preferable in my eyes to the defeatist rhetoric you are spouting.

The FISA case is not about Iraq so I don't see where that's relevant.

You think invading Iran, a country with 3 times the population (and much more money) than Iraq is even feasible now? How do you think Saudi Arabia, Pakistan, Qatar and other countries supposedly allied with us will react to your house cleaning pipe dream?

I'm not a defeatist, I'm a realist. We've declared war on a tactic. A tactic that has been utilized for literally thousands of years.

Spare me the snide spouting defeatist rhetoric and take a look at a map of the mideast.

If our intention truly is to wipe out global terrorism, we will most likely be at it for at least 8 decades to a century.

[Davebo]

Oh great. What, is the Balloon Juice comment section shut down or something?

You could have just answered no Cecil. I know it isn't as Snarky but it is more accurate.

[Cecil Turner]

Davebo, if you want to argue with DougJ (or whatever variation "marianna" is), please take it back to BJ.

[Wonderland]

Tom writes:

"As to why Congress did not push to regularize this? Troubling.

Totally agreed. I can think of a scenario that at least nominally exonerates the Congresspersons. It's possible that the briefings were such that it was not obvious that FISA was implicated. Since we know that Congresspersons on not particularly bright bulbs, it is possible that they just didn't ever think that the program might have violated FISA. Rockefeller, for all his excessive weenieness, did write in his letter to Cheney that he was unable to properly evaluate aspects of the program -- "I am neither a technician nor an attorney" -- making this theory more plausible. Bonus question (from me) -- Did the briefings in any way impart to the Congresspersons that there were various persons with legal expertise within the Executive branch who had questions or misgivings about the legal authority for the program? Bonus answer (also me) -- Of course not. This coupled with the Congresspersons' literal inability to consult their own legal counsel made the probability that they would have been keyed into possible legal problems near zero. Right?

[Rick Ballard]

If the Congress doesn't possess the intellectual skills to interpret the "laws" that they write, who in their right minds would give them oversight over the execution of those laws?

The Clown Corps in full panoply is an awesome spectacle.

[larwyn]

Realize this is not monitoring the actual communications - but surely is a "privacy" violation that so far no ACLU or Reid or Pelosi has uttered a word about.

Does Schummer already have his staff working on the Repulican lists - pretty cheap @ $6,050.00 for the Republican side of the Senate! Pelosi will need a bigger
budget- but she's multimillionaire.

TDAXP,AbleDangerBlog and others have brought up the sale of phone records@ $110! reported in the Chicago Sun Times.

FROM TDAXP POST:
Huge Privacy Violation: Buy a List of Anyone's Calls for Only $110

Anyone can buy a list of your incoming and outgoing phone calls, cell or land-line, for $110 online," by John in DC, America Blog, 7 January 2006, http://americablog.blogspot.com/2006/01/anyone-can-buy-list-of-your-incoming.html (from Daily Kos, Jim River Report, Great Blogging, IntoxiNation, and MyDD).

Not good:

In a nutshell, the Chicago Sun-Times ran a story two days ago about a Web site that sells phone records, for cells and land-lines, for $110 a pop. The company boasts on its own Web site:

Give us the cell phone number and we will send you the calls made from the cell phone number.

So I went to their site, plopped down $110, and within a day I had a list of every single phone number that called my cell, or that I called from my cell, for the month of November. I even had the dates the calls were made, and for a premium I could find out how long the calls were.

In case this seems minor or pesky, AmericaBlog gives examples of when it probably isn't best to sell phone records to anyone with $110. An excerpt:

Are you an FBI agent with confidential sources?

Are you a police officer with confidential sources?

Are you a Democratic or Republican member of Congress?

Are you a Bush administration official?

Are you a special prosecutor by the name of Patrick Fitzgerald?

Are you an Al Qaeda terrorist?

Are you a regular old American criminal, a member of the Mafia for example?

Got AIDS, cancer or any other disease you might want to keep private?

In conclusion:

And finally, let's not forget the biggest criminals of all in this affair. The phone companies. There is no way that these online services are outright stealing this information, if they're able to get in just a few hours consistently. They've got access to the info, and from the reading I've done it seems the cell and land-line companies are selling our info for profit. So, the biggest slap in the face should be to any phone company out there who has ever sold one big of information about you to anyone else. Not only is it unethical, but they just might have helped Al Qaeda. Congrats.

RTWT:
http://tdaxp.blogspirit.com/archive/2006/01/07/huge-privacy-violation-buy-a-list-of-anyone-s-calls-for-only.html

[Anonymous Liberal]

Wonderland,

My hunch is that you're pretty close to the mark with your speculation. It sounds like the briefings were very tech-heavy and that the briefers never suggested that the program might violate FISA. That is certainly Bob Graham's story. Now that could be a self-serving excuse for having not raised objections sooner, or it could be the truth. Rockefeller's letter seems to back Graham up.

[Barbar]

Does anyone remember stories about the administration tracking "chatter" among suspected terrorists? You know, an alert going up because there was an increase in the chatter being tracked? You know, back when there used to be frequent terror alerts?

At the time, I believe Bush supporters viewed these stories, often reported in the New York Times, as further reinforcing the idea that terrorism is a threat, and that Bush was doing something about it. I do not recall anyone saying that these news stories seriously damaged national security by revealing information about how we track terrorism.

But when a news story comes out about the government spying on American citizens without a warrant, suddenly we hear a great deal about how these revelations are damaging our security, greatly.

It's all very interesting, really. It was good if terrorists knew that we were tracking their communications, but it is very bad if terrorists know that we are tracking American citizens without a warrant.

Of course. It all makes perfect sense.

[Wonderland]

Rick, you're wrong on a couple of levels, including your unwarranted snark.

You write: "If the Congress doesn't possess the intellectual skills to interpret the "laws" that they write, who in their right minds would give them oversight over the execution of those laws?"

First, one of the great things about America is that you don't need to be a lawyer, or even educated to be elected to Congress.

Second, Congress passes lots and lots of really complicated statutes. Statutes so complicated that is takes federal judges who, like, went to Harvard for both undergrad and law school dozens of hours and dozens of pages to decipher. Those laws are usually drafted by Congressional staffers, which include trained lawyers, and other experts, technicians, etc. And they're explained in laymans terms, on the floor and in private conversations by those in the know, to those who will vote on them. So it's not at all bizarre that a technical law on electronic surveillance passed almost 30 years ago would throw some non-lawyer, non-expert Congresspersons for a loop.

Third, FISA gives specially appointed FISA judges the micro-oversight that Congresspersons are too busy [or stupid?] to conduct. The oversight provided by those judges is the only check, really, on the whole damn electronic surveillance operation. Congress has some macro-oversight, if memory serves, with regard to certain certifications made by the AG, and perhaps other stuff, plus of course the ability to hold hearings and amend the statute -- all stuff that's done primarily (if not exclusively) under the auspices Intelligence Committee, which is [ostensibly] expert about such things.

Regardless of how stupid Congress is -- and I agree, it's dumb dumb dumb -- it still is the legislative branch, it still gets to make the laws, and even though those laws might be dumb, they're still laws. Which are, yes, law. Law.

[MayBee]

"Existence"? Troubling. Perhaps NSA lawyers could get metephysical and point out that, until it is decrypted, we don't even know if it is just a dial tone.

Pen registers- the listing of phone numbers called- have been determined by the Supreme Court to not be covered by a reasonable expectation of privacy within the US, for US citizens. Andy McCarthy at NRO had a long post discussing it.

I cannot imagine FISA meant to give more privacy rights in this matter to an international phone call and international persons.

[boris]

Since we know that Congresspersons on not particularly bright bulbs, it is possible that they just didn't ever think that the program might have violated FISA.

AND

It sounds like the briefings were very tech-heavy and that the briefers never suggested that the program might violate FISA.

Here for everyone to observe is ignorance, lack of imagination and poor reading comprehension presented as a substitute for reasonable argument.

[Cecil Turner]

I do not recall anyone saying that these news stories seriously damaged national security by revealing information about how we track terrorism.

"Chatter" is measuring the volume of traffic. It's one step short of "pen register" type information, intercepting which is unquestionably legal (and information about it is of minimal utility). And the reason it was seen as an indicator is that a similar bump in traffic was reported to've been observed prior to 9/11. I don't know of anyone claiming it indicated "Bush was doing something about it." Nobody with a clue would.

[maryrose]

Davebo:
"Name one Reid or Feingold have filibustered"
Feingold has consistently voted against the Patriot Act and is the hope of the far left for 2008. He's probably the biggest threat to Hillary in 08 says Begala on Imus today.
Reid has stated publicly " we killed the Patriot Act. These are your senators in pursuit of the war onterror. You sound just like them, butin this day and age "that dog won't hunt."

[Anonymous Liberal]

Here for everyone to observe is ignorance, lack of imagination and poor reading comprehension presented as a substitute for reasonable argument.

Are you talking about your own statements, or ours? As usual, Boris, your assertions aren't nearly as self-evidently true as you think they are. They could stand to be fleshed out a little bit. What specifically about the statements reflects ignorance, lack of imagination and/or lack of reading comprehension?

[topsecretk9]

I'm getting whiplash...NOW Kaus's says he was a source for Risen...

"The same day The New York Times broke the story of the NSA eavesdropping without warrants, Tice surfaced as a whistleblower in the agency. He told ABC News that he was a source for the Times' reporters. But Tice maintains that his conscience is clear."

[topsecretk9]

sorry, it's not Kaus, but "Tice"...cut and paste, bad, bad, bad topsecretk9

[boris]

Congresspersons on not particularly bright bulbs, it is possible that they just didn't ever think

Is that like ...

ignorance, lack of imagination and/or lack of reading comprehension ???

What would you call it ???

[Davebo]

Wow MaryRose.

Voting against a bill and filibustering it are two wholly different critters.

Heck one house Republican voted against the authorization to invade Iraq, but since one guy can hardly filibuster anything it's just irrelevent.

Reid has stated publicly " we killed the Patriot Act.

I think he must be confused as the Patriot Act was extended.

Cecil, I may owe you an apology. Although I've seen many honest conservatives (and liberals and independants) who couldn't grasp the most basic concepts, MaryRose here may well be a Dougj wannabe.

And by the way MaryRose. I was born and raised in Texas. You really look silly trying the old "that dog won't hunt" line with me.

[Rick Ballard]

Wonderland,

Those legislators also have staffs chock full of lawyers with the talent to take crayon to butcher paper and draw cartoons that even a congressperson could follow - given time. The fact that those in question could not find the time to have their own technical staff explain the law that they voted on to them may explain their ignorance but does not exculpate them in any sense. FISA was modified (acted upon) by Congress last year. Lack of knowledge concerning its coverage and impact is simple malfeasance on the part of those who now claim vague if inarticulate concerns.

Your argument concerning the laws high degree of technicality is prima facie evidence of its lack of utility. It does make AG Gonzales' claim of a 60,000 hour saving of attorneys time due to the implementation of Section 207 of the Patriot Act very believable. Thirty man years of lawyering at Main Justice saved - not to include FBI agent hours and FBI lawyer's hours spent on preparation of fewer than 2,000 requests for warrants. I'm very curious as to the number of man hours necessary to prepare a request for a warrant. If Main Justice is saving thirty hours of support lawyering for every warrant issued how many hours are they spending?

You are incorrect in your assertion concerning the FISA court's oversight responsibility. It has process responsibility concerning matters brought before it - it does not possess oversight authority in the sense that Congress does with regard to the Executive departments whatsoever.

[Anonymous Liberal]

Maybe I misunderstood your comment, Boris. Were you talking about members of Congress or the commenters here?

[Davebo]

Your argument concerning the laws high degree of technicality is prima facie evidence of its lack of utility. It does make AG Gonzales' claim of a 60,000 hour saving of attorneys time due to the implementation of Section 207 of the Patriot Act very believable.

Well, lets accept that this burden actually exists (though we'll have to ignore officials who've sayed they've procured warrants in just a few hours through FISA).

That fact that a law amounts to an undue burdon on either law enforcement or national security officials doesn't mean they can just ignore it.

[Anonymous Liberal]

Rick:

As usual, you present an argument for why FISA should be repealed as if it were an argument that FISA is repealed. It does not matter one whit if FISA requires too many man hours. It's the law. If it's a bad law, maybe the Republican Congress should change it.

As for your other point, members of Congress who were briefed on the NSA program were not allowed to consult their staff regarding the issue. Yes, they could have asked to have been briefed by their staff on the law afterward, but if you don't understand the law very well and the administration never even hints that it's relevant, it might not occur to you to even ask. And even if it did, you couldn't share any of the facts with your staff and you'd have to work from memory regarding what you yourself knew. That's not a very good recipe for thorough legal analysis.

And the notion that members of Congress are familiar with the nitty-gritty details of the statutes they pass is silly. Most of them don't read ANY of the laws they pass. That's a bipartisan phenomenon I'm afraid.

[MayBee]

If we can't expect members of Congress to understand FISA enough to evaluate this program against it, how in the world do we think *we* are capable of doing so?

[boris]

Maybe I misunderstood your comment, Boris. Were you talking about members of Congress or the commenters here?

My original "self evident" comment was never intended to imply that anybody substituting ignorance, lack of imagination, and poor reading comprehension was themselves ignorant, without imagination or poor readers.

The "self evident" meaning is those things are a poor substitute for reasonable argument, whether the presenter is using their own ignorance, lack of imagination, and poor reading comprehension or somebody elses.

[maryrose]

Davebo,
I find it fascinating that every time I point out obvious truths like Feingold being against the Patriot Act and Reid stating verbatim"We Killed the Patriot Act., I am immediately attacked as a person who can't grasp basic concepts{Davebo} aperson who's opinions I could not care less{gary} assorted others saying I am DougJ[also false and Kim and TS referring to me as moaning myrtle or murmuring marie. Is this some type of hazing that goes on for new posters to this blog? I don't see other posters being treated this way, with disrespect. I'm staarting to think I need to rely on that old Groucho Marx line: " I don't wish to belong to a club that would have me as a member"

[Rick Ballard]

AL,

I find the argument advanced by the Executive to be sufficient and compelling. Barring an actual case being adjudicated, the various assertions being put forward have precisely zero impact on reality. Entertaining to discuss, perhaps, and very entertaining to read the bloviations of the various groups of "law" professors but fortunately meaningless.

The surveillance continues and hopefully there are additional measures being used that we will never know of. To that end it is necessary that those who broke their oaths in revealing this program be brought to justice. Doing so might provide a judicial venue for resolution of the various and sundry hypotheticals being advanced.

I would never advance the notion that Congresspersons of either party have any idea as to the legislation that they vote upon. The fact that FISA exists at all is dispositive in that respect. That fact does not release them from their responsibilty, it simply means that they don't deserve to be entrusted with anything as serious as war.

[Anonymous Liberal]

The "self evident" meaning is those things are a poor substitute for reasonable argument, whether the presenter is using their own ignorance, lack of imagination, and poor reading comprehension or somebody elses.

So let me see if I understand, Boris, if I point out that someone else may have been ignorant, lacking in imagination, or a poor reader, then I personally am engage in a "poor substitute for reasoned debate"? That makes no sense whatsoever. What if what I'm saying is an accurate description of reality?

I'm not not saying it's a good thing that members of Congress didn't figure out on their own that the program violated FISA; I'm just pointing out that, in fact, they may not have. It's not an implausible scenario. I doubt very much that the Bush administration telegraphed the illegality of the program in their briefings. In fact, I doubt they even bothered to give any sort of legal justification. That would just invite difficult questions.

[boris]

why should they???

[boris]

I point out that someone else may have been ignorant

You didn't point it out, you supposed it as an explanation for something else.

[Anonymous Liberal]

I find the argument advanced by the Executive to be sufficient and compelling. Barring an actual case being adjudicated, the various assertions being put forward have precisely zero impact on reality. Entertaining to discuss, perhaps, and very entertaining to read the bloviations of the various groups of "law" professors but fortunately meaningless.

So as long as the administration writes a self-serving letter, any executive action is, ipso facto, justified, regardless of the constitution or case law? That seems to be what you're saying. The legal position presented in that DOJ letter is incredibly weak. There is no case law that supports it and lots of case law that seems to invalidate it. But I guess all that is "meaningless."

[Anonymous Liberal]

"I point out that someone else may have been ignorant"

You didn't point it out, you supposed it as an explanation for something else.

How are these to sentences any different? Notice in the word "may" in my sentence. Talk about a distinction without a difference. Weak rebuttal, Boris.

[David Walser]

Why didn't Bush just get the FISA warrants? As TM said, it may have been a practical impossibility. Too much volume for the FISA court to handle and too little probable cause or specificity may have made it impractical to get the warrants NSA would have needed. To AL and Wonderland the analysis ends there. If the President cannot obtain the warrants, he should have gone to Congress to get FISA modified BEFORE allowing NSA to go forward. As a law and order kind of guy, I agree...

Unless, FISA does not prohibit what NSA was doing. The President does NOT need Congress' permission to act in the area of foreign intelligence. Before FISA, the government legally used electronic surveillance techniques to gather foreign intelligence. After FISA, the government was required to follow certain procedures to use some techniques and prohibited from using others. In 1978, Congress thought it had covered the complete set of electronic surveillance techniques. What if, in the current day, FISA no longer covers the complete set techniques? Since Congress said the President cannot do "x", is he obligated to get their permission to do "y"? Note, before FISA was enacted the President could legally do both "x" and "y" (even though the technology making "y" possible had yet to be invented, it would have been legal to do "y"). Because "x" is prohibited, it its not required that "y" be prohibited, too.

That's what I think is going on here. The President's team of legal eagles have determined that, for whatever reason, FISA does not cover what NSA is doing. If it does not, as far as this program is concerned, we are in the pre-FISA state of not needing Congress' permission. That's why the President felt no obligation to get Congress to modify FISA. No Administration seeks limits on its own ability to act.

[clarice]

Really, larwyn , why should we care about the sale of personal phone records--even if it means criminals can find out which of their friends is chatting to the cops? I mean like it isn't as if Bushitler is doing that.

[Barney Frank]

This conversation raises an issue that has always bugged me.
Its this fairly recent idea that the branches of government are somehow bound to brook an unconstitutional encroachment on their power until the Supreme Court says they don't have to. And if the court says they do, even if the encroachment is clearly unconstitutional, then they do. And the same goes for the states.
What rubbish. The founders didn't think that way. Andy Jackson, hero of Democrats everywhere, certainly didn't.
The branches of government have a vested interest in fettering each other. This blind acceptance of the Supreme's supremacy, not over other courts, but over other branches now has us in the ludicrous position of the other two branches essentially operating by permission of the judiciary. What would it take for the other two branches to rebel I wonder?
All this orderly obsequiesness on the part of Congress and the Executive makes me long for the days of real Constitutional conflicts. Its better than this mind numbing kow-tow to nine unelected knot heads.
BTW whether FISA is unconstitutional I don't know or care. What I do care about is this and other Presidents and congresses doing intellectual gymnastics because they're afraid of the SCOTUS. Can't they just grow the gonads to say "this is our turf back off", instead of the mendacious baloney of trying to pass laws which require one branch to voluntarily forsake its Constitutional authority in the name of expediency?
Congress can't even declare a freakin' war anymore, for cryin' out loud.

[boris]

Weak rebuttal, Boris.

No need to apologize, you did the best you could with what you had.

[topsecretk9]

Really, larwyn , why should we care about the sale of personal phone records--even if it means criminals can find out which of their friends is chatting to the cops? I mean like it isn't as if Bushitler is doing that.

Democratscare.

[Specter]

You know....much of this debate is pointless. The existing court rulings at the circuit level and elsewhere clearly state that the president has the authority to order warrantless surveillance. Therefore the issue is moot until a higher court rules - i.e. the Supreme Court. Lawyerspeak aside....

Now, if it is true that FISA encroaches on the president's powers, then FISA is unconstitutional. Again - a higher court needs to decide this.

I've seen several posts that said, "Well the administration should have worked with the legislative branch to amend the Patriot Act to make this work better - in essence to revamp how FISA works". As far as I know it was Harry Reid that stated, "WE DEFEATED THE PATRIOT ACT." And that goes directly against those that state, "there hasn't been one act that the legislators did not go along with."

And I know you will say, "But it passed." However, it passed in spite of the democratic party rather than with the help of it. And the really interesting thing is that the more true left democrats push this, the more the electorate is being pushed to the right. I mean the appearance to the regular person is that the democrats are soft on national security. And while that doesn't effect the current debate, it will play heavily in the midterm elections.

[maryrose]

Specter:
I concur with your analysis.

[larwyn]

TSK9:
The DEMOCRAT link you provided leaves me speechless (NPI).

I wondered if the sites selling the phone call records would sell their customer records. That must be what DEMOCRAT is worried about when offering to reimburse others for doing the actual purchasing.

So guess, even some if friendly hacker got the customer records - we won't see a purchase order from Schummer's gang. Dems have lots of experience with "around the law" activities.

Just in case you don't already know - a reminder
TICE to be on ABC'S Nightline tonight.

[chuck]

Ooooh. Oooooh. I Know.... Go to Congress and get authorization for what he needs to do! Then, he will be doing whatever mysterious super-technical spying he needs to do, AND it will be... (wait for it...)... Leagal!!!

That is what a president's to do.

Or, he could just do whatever he wants whenever he wants... for some that will be cool, until 2008, when it will very suddenly become bad. Depends on whether you're a rule-of-law, principle type, or a fidgetty partisan, I guess.

[Specter]

So what's your point chuck?

[Sue]

Specter,

I remember Kerry stating proudly he helped write portions of the Patriot Act...of course, that was when he was for it...before he was against it.

[R FLANAGAN]

like it isn't as if Bushitler .......

Don't do that.

My side has lots of childish epithets for Bush but if we use that one , we shouldn't.
You too.

[Anonymous Liberal]

You know....much of this debate is pointless. The existing court rulings at the circuit level and elsewhere clearly state that the president has the authority to order warrantless surveillance. Therefore the issue is moot until a higher court rules - i.e. the Supreme Court.

Specter, your grasp of existing case law is incredibly weak. The cases you are referring to (I assume) are the ones decided prior to the passage of FISA. They are therefore totally inapposite. As the Supreme Court made clear in Youngstown, there is a world of difference between what the president is allowed to do absent a statute and what the president is allowed to do when a statute is directly on point. Youngstown is the relevant case here, and in light of that precedent, the president's legal justification for ignoring FISA is incredibly weak.

David Walser:
I agree with your legal analysis but I find the scenario you describe hard to believe. If you're right, and the technology being used is so novel that its use doesn't violate FISA, then why on earth wouldn't the Bush administration just say so instead of putting forth such easily refutable legal justifications for ignoring FISA? If the program doesn't violate FISA, there's no issue here, no controversy, no need to make crazy arguments about the AUMF and article II. Why wouldn't they just point that out if it were true?

[MayBee]

Just in case you don't already know - a reminder
TICE to be on ABC'S Nightline tonight.

Somebody make sure to post about it afterwards (please!). It isn't shown here.

[MayBee]

If the program doesn't violate FISA, there's no issue here, no controversy, no need to make crazy arguments about the AUMF and article II. Why wouldn't they just point that out if it were true?

And you think anyone in the public debate would have just taken their word for it?

[Specter]

AL,

Sorry to burst the bubble you must be living in, but, in Sealed Case 02-001, by the United States Foreign Intelligence Surveillance Court of Review (read it for yourself here) specifically stated that (emphasis mine):

It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

Please note AL, that this decision is POST FISA. Maybe you should go back and study the case law some more....

[David Walser]

AL, why wouldn't the Administration simply say that the technology has changed such that FISA does not apply? Perhaps, because that would require an explanation of the technology that they are trying to keep secret. My supposition, and it is only that, is the Administration is hamstrung by the necessities of actually prosecuting the war which prevents them from advancing their best arguments with the candor we might desire.

As I argued in another thread, the Administration's actions argue persuasively that the Administration believes its actions are legal (even if those actions do not comply with FISA). Congressional leaders of both parties have been regularly briefed on the particulars of the program. The DOJ regularly reviews the program for departure from established procedure. The program was suspended when the acting AG raised questions about its legality and the program was only resumed after those concerns were addressed. These are not the actions of an Administration bent on violating the law. It is clear evidence of Bush's good faith belief he has the legal authority to order the NSA to do what is being done. My only explanation for why they have not made a more convincing argument of the program's legality is that the explanation would further harm our capabilities.

[Rick Ballard]

MayBee,

From ABC's tickler:

"The NSA revoked Tice's security clearance in May of last year based on what it called psychological concerns and later dismissed him. Tice calls that bunk and says that's the way the NSA deals with troublemakers and whistleblowers. Today the NSA said it had "no information to provide." "

He certainly has the bona fides to qualify as a NYT prime source.

[kim]

Dear Moaning Myrtle: You happened to wander in just when our little idyll had been so rudely perverted by 'trolls' pretending to be wingnuts. You tripped CT's wire and rang off bells in the echo chamber. You were collateral damage. You have earned your bona fides. I value your contribution and know it is honest. Sometimes, though, I wonder if you and I are the only honest people in the world. And sometimes I wonder about you.
==========================================