NSA Legislation Advances

The Senate Judiciary Committee voted out the Specter compromise with the White House on legislation covering the NSA warrantless wiretap program.

The coverage of the Times and WaPo are strikingly different.  The Times leads with a description of an innocuous compromise under which the courts will review the program:

Democratic Effort to Limit Surveillance Bill Is Blocked

WASHINGTON, Sept. 13 — The Senate Judiciary Committee today endorsed a bill backed by the White House to have a secret court review the constitutionality of the Bush administration’s eavesdropping program.

By a party-line vote of 10 to 8, the committee sent the bill to the Senate floor, where a vote could come next week. The bill embodies an agreement reached by President Bush and the committee chairman, Senator Arlen Specter of Pennsylvania, under which the Foreign Intelligence Surveillance Court would review the eavesdropping program.

The WaPo leads with a dimmer view of the court's role:

Senate Committee Approves Wiretap Legislation

By Bill Brubaker

Washington Post Staff Writer
Wednesday, September 13, 2006; 5:24 PM

A Senate committee today approved a bill supported by President Bush that would enable the administration to continue a warrantless wiretapping program that the White House launched after the Sept. 11, 2001, attacks.

The approval came after Republicans on the Senate Judiciary Committee blocked an amendment by Democrats that would have limited Bush's eavesdropping program and required the National Security Agency to report more often to Congress on its surveillance activities.

Democrats say the bill approved by the committee would expand -- as well as legalize -- Bush's authority to monitor terrorism suspects.

The NY Times (but not the WaPo) note that Republicans Specter and Graham switched sides to vote out a competing bill from Dianne Feinstein:

Senator Feinstein offered a competing measure that would reaffirm the Foreign Intelligence Surveillance Act as the “exclusive” means by which wiretapping could be ordered in intelligence cases. Her measure, backed by all eight panel Democrats plus Mr. Specter and Senator Lindsey O. Graham, Republican of South Carolina, would seem incompatible with the Specter-White House agreement, even though Mr. Specter voted for Ms. Feinstein’s measure so it can be debated on the floor.

It's hard to guess at Specter's strategy here, but here is a quick, utterly uninformed hunch - Specter has worked out a compromise with Ms. Feinstein under which he has agreed to send her bill to the floor in exchange for a "no-filibuster" agreement.  I should note that I have no idea whether this is the type of bill which *can* be filibustered.

MORE:  The ACLU is outraged.

Comments

[AJStrata]

Seems like your trackbacks are not registering. I tried to tracback here and the Armitage post.

This is an interesting development! Wonder how many dems will vote against it.

[Cecil Turner]

Good. 'bout time these GOP Senators found some backbone. Let's see if the Dems are dumb enough to make it a campaign issue.

[Rick Ballard]

"I should note that I have no idea whether this is the type of bill which *can* be filibustered."

Any bill subject to debate can be stopped through defeat of a cloture motion.

"'bout time these GOP Senators found some backbone."

Let's hope that they rented by the week rather than the hour.

[Other Tom]

I confess that I have no idea what the excerpts from the two newspapers mean. What, exactly, is the Senate about to vote upon?

[Sue]

Democrats say the bill approved by the committee would expand -- as well as legalize -- Bush's authority to monitor terrorism suspects.

And therein lies the problems with democrats. Rational Americans want Bush monitoring terrorism suspects.

[Rick Ballard]

Other Tom,

If it's the Specter/Feinstein compromise it's S.3001. I always find it interesting that the media doesn't possess the competence to actually identify the legislation which they write about.

[Tom Maguire]

Any bill subject to debate...

IIRC, certain budget bills are not subject to unlimited debate. I would bet this bill stands alone and can be filibustered, but *maybe* it is going to be attached to some budget-related unstoppable bill.

[jpe]

Sue, I don't think you should viewing grown up sites without your mommy and daddy's permission.

[Rick Ballard]

Other Tom,

After looking over the Judiciary Committees Executive Schedule for today the bill[s] could also be S.2453 (Spector) and/or S.2445 DeWine/Graham.

[Sue]

Sue, I don't think you should viewing grown up sites without your mommy and daddy's permission.

Interesting....

[lurker]

Pat Leahy's Misinformation

"That's how excitable Pat Leahy described the legislation that passed from the Senate Judiciaary Committee to the Senate floor today, a proposal that will confirm the president's authority to order the NSA to conduct surveillance of al Qaeda contacting its operatives in the United States.

Most Senate Democrats oppose the legislation, and that opposition should be the centerpiece of the GOP campaign over the next eigth weeks. Democrats are simply not serious about the war or about preventing terrorism.

Every vote for any Congressional Democrat is a vote against victory and a vote for vulnerability."

[lurker]

OT:

New Blogging for Bolton

New Idea! Let's support Bolton and get him confirmed.

[Anonymous Liberal]

For the record, the WaPo account is much more accurate. Specter's bill doesn't require anything of the White House. It renders FISA meaningless (by removing the exclusivity clause) and does not require any judicial review of anything. Specter supposedly has the White House's word that it will submit the program for a program-wide constitutional review. Even if the administration follows through with this non-binding agreement, however, it's important to keep in mind that the judicial review being contemplated is only Fourth Amendment review. Because the bill would eliminate all of FISA's prohibitions, the program would no longer be illegal. The only remaining question for the court would be whether it violates the Fourth Amendment (and on that issue, the Administration's position is stronger).

Long story short, the "deal" Specter brokered is essentially an agreement by the Administration to submit the NSA program to (non-mandated) judicial review, but only after the program has been officially legalized.

[Anonymous Liberal]

And therein lies the problems with democrats. Rational Americans want Bush monitoring terrorism suspects.

Sue, do you actually believe that crap? Name one single Democrat who is against monitoring terrorism suspects. That is such a ridiculous straw man. The debate is about whether terrorists suspects should be monitored with or without judicial oversight, not whether they should be monitored. Get a clue.

[lurker]

AJStrata will tell you that this NSA program is already legal. So why legalize an already legal program? From this perspective, if passed, it's an attempt for Congress to merely accept the fact that it is legal, anyway.

Read the link about Pat Leahy's misinformation game regarding this bill. Yes, I believe that crap.

[lurker]

If you follow the "Pat Leahy" link, the title of that post (and commented by this same man):

""This bill is all about authorizing the President to invade the homes, e-mails and telephone conversations of American citizens in ways that are expressly forbidden by law."

Yes, of course, this is what the democrats are telling us and they are flat out wrong.

[lurker]

"The debate is about whether terrorists suspects should be monitored with or without judicial oversight, not whether they should be monitored."

NSA terrorist surveillance program is simply a military operation. Well, I'll let AJStrata explain it again but I'm sure you won't listen or agree with it.

[lurker]

And why to terrorist suspects require judicial oversight????

[Sue]

The debate is about whether terrorists suspects should be monitored with or without judicial oversight, not whether they should be monitored. Get a clue.

Let's have the debate. And see who wins it.

[lurker]

ACLU confirms the problems with democrats while the majority of Americans want Bush to monitor terrorists. Link is provided by Tom McGuire if you want to go read it.

Is there a bill that will stop federal funds from being allocated to ACLU? If so, what's the status?

[lurker]

"The debate is about whether terrorists suspects should be monitored with or without judicial oversight, not whether they should be monitored. Get a clue."

If they require judicial oversight, then those ten+ planes departing from UK, heading towards USA would blow up BIG time; instead of being thwarted like they were a few weeks ago.

[Anonymous Liberal]

"This bill is all about authorizing the President to invade the homes, e-mails and telephone conversations of American citizens in ways that are expressly forbidden by law."

Yes, of course, this is what the democrats are telling us and they are flat out wrong.

You're totally ignoring my point, Lurker, but since your wrong about this too, I'll address it. Leahy's point is that the Specter bill would remove any judicial oversight over how the executive branch conducts surveillance. It would return us to the pre-FISA days when J.Edgar Hoover was free to spy on whoever he wanted without being held accountable.

Under the current law, the executive branch can conduct surveillance on anyone suspected of being a terrorist. All they have to do is get a rubber-stamped warrant, which they can apply for retroactively and in an ex parte proceeding. By doing away with FISA's exclusivity provision, however, you are giving the executive branch carte blanche to spy on anyone. And having zero individualized oversight is an invitation for abuse. If it doesn't happen under Bush's administration, I guarantee you it will happen eventually, under some future administration, perhaps even a Democrat. At which point all the conservatives who are now clammering for doing away with any warrant requirement will realize what kind of pandora's box they've opened.

[lurker]

"It would return us to the pre-FISA days when J.Edgar Hoover was free to spy on whoever he wanted without being held accountable."

I disagree on this point. Why? Because there should be checks and balances. And there already is a mechanism for checks and balances by way of repetitive reviews. Congress should ensure that this "pandora's box" would never happen again. It is their responsibility to make sure this does not happen and that this power will never be abused again. Yes, we have to accept this risk to preserve National Security.

FISA Requires Warrant To Spy?

[Anonymous Liberal]

If they require judicial oversight, then those ten+ planes departing from UK, heading towards USA would blow up BIG time; instead of being thwarted like they were a few weeks ago.

Lurker, do you even read the news? There was no illegal surveillance involved in that bust. The brits used warrants. Moreover, that plot was nowhere near actually happening. The bombers didn't have passports, didn't have tickets, and didn't yet know how to mix the liquid explosives (which it turns out is really quite hard to do).

[lurker]

"By doing away with FISA's exclusivity provision, however, you are giving the executive branch carte blanche to spy on anyone."

I disagree on this point. This does not give the executive branch carte blanche to spy on anyone. This is still limited to terrorist suspects.

[Sue]

But they had martyr tapes. Just in case.

[Rick Ballard]

AL,

You mean an administration could use the DoJ in a manner similiar to that which the Clinton's used the IRS for eight years?

How will the Republic survive?

[Anonymous Liberal]

Let's have the debate. And see who wins it.

Okay, Sue, I'm waiting. Explain to me why it is essential that the surveillance of terrorists be conducted without judicial oversight of any kind?

[lurker]

Yes, I've been reading the news. The Brits used a combination of intelligence and police work to thwart these attacks.

[lurker]

From my readings, the Brit laws allow them to surveil these terrorists with or without warrants. BTW, the NSA terrorist surveillance program was never illegal.

[lurker]

stopaclu's position, which, of course, you wouldn't agree.

"She goes on to say,

“Congress has a right and obligation to conduct meaningful oversight on the unlawful actions of the president. But instead of investigating lawbreaking, the Senate Judiciary Committee wants to make it legal. We urge the full Senate to reject any attempts to ratify this illegal program.”What makes this illegal? Because they say so? And because you say so?

First off, the idea that this is wiretapping is ignorance. The NSA program is a data mining program. They are capturing electronic signals being transmitted from inside the United States to foreign lands or from foreign soil to the United States.

Next, the data being collected is that of who is being called, the length of the call, which other numbers that party is calling and so forth. This is called data mining. It is nothing more than what is being done each and every time you search for an item over then internet. Information is being collected which is then used to send you offers via email.

So what’s the ACLU’s beef? They are against the war on terrorism. To them, the 2,996 lives lost on September 11, 2001 mean nothing. They have obstructed and denounced every effort this government has taken in order to secure the people of this nation from additional attacks.

They opposed random searches of the New York Subways. They opposed the renewal of the Patriot Act. They opposed the detention of foreign terrorists at Guantanamo Bay Cuba. They claim the detainees are being abused if they aren’t given their nightly ice cream bars.

Like most Americans, I don’t give a flying fig about terrorists’ human rights. They think nothing of killing their own women and children if there is a possibility of killing just one American. They have been known to behead Americans working to restore infrastructure and amenities to the people of Iraq. So, as far as I’m concerned, if Ahmed doesn’t get his Eskimo Pie tonight I’m not going to lose any sleep over it.

What they also fail to realize is that the NSA is a military intelligence operation. That the information that they gather is used to prosecute the war on global terrorism and to secure the people of the United States. We don’t intend on prosecuting these people. We intend on killing them. That’s what you do in war.

Using their own rules of engagement, why should we give any terrorist quarter? Information that’s why. And our Military Intelligence officers know how to extract that info without causing bodily harm.

The problem with the ACLU is that they think too much like lawyers instead of soldiers. A soldier doesn’t go seeking a warrant to intercept radio communications of the enemy. That goes also for phone communications as well.

So Caroline Fredrickson as far as I am concerned is a prime candidate for a frontal lobotomy. Perhaps it will cure her of her need to tilt at windmills.

Two other proposals were voted out to the floor today as well. One actually proposes actually requiring the administration to wait until a terrorist attack to open an electronic surveillance program. Of course the ACLU supports the proposal that would be the most cumbersome in listening to our enemies proposed by Ms. Dianne Feinstein."

[Anonymous Liberal]

You mean an administration could use the DoJ in a manner similiar to that which the Clinton's used the IRS for eight years?

How will the Republic survive?

Wow, that's a compelling argument Rick. Let me see if I get this straight. Because Bill Clinton supposedly misused to the IRS, we should pass a law that removes the only effective oversight mechanism on the government's use of its massive surveillance powers on its own citizens. Gee, I never thought of that way. Now I'm convinced.

[Sue]

Okay, Sue, I'm waiting.

Okay, but the winner won't be declared until November.

[lurker]

Not what stopaclu says, AL. You were already convinced, anyway. I don't agree that passing a law to remove the only effective oversight mechanism on the govt's use of its massive surveillance limited to terrorist suspects.

I do agree that there shouldn't be any surveillance on its own citizens unless they are terrorist suspects and there are already laws over this.

[boris]

All they have to do is get a rubber-stamped warrant, which they can apply for retroactively

But only if they have probable cause.

Look, judges should not be directly involved with national security issues. Period. Let them do their job sorting out legislation and constitutinality. Putting them in the position of making decisions that weigh security against principle is out of their job description. That's exactly what politicians are for.

[Anonymous Liberal]

From Lurker:

First off, the idea that this is wiretapping is ignorance. The NSA program is a data mining program. They are capturing electronic signals being transmitted from inside the United States to foreign lands or from foreign soil to the United States.

From the NSA.">http://www.rawstory.com/news/2006/Raw_acquires_NSA_wiretap_talking_points_0913.html">NSA.

The Program is not "data-mining"; It targets only international communications closely connected to Al Qa'ida or an affiliated group.

You'd be wise not to take anything you read at StoptheACLU seriously. They are utterly clueless.

[lurker]

The Path to 9/11 showed how FISA turned down a warrant on the surveilling of the 9/11 terrorists. This same movie showed how the female police officer in Phillipines was able to look into Ramzi's laptop and discovered the Bojinka plot.

FISA prevented USA from tapping into Zacharias M.'s laptop, which had the details about the 9/11 plans.

Anon Lib, you have the 9/10 mentality arguing against the 9/11 mentality.

[Rick Ballard]

AL,

I just have this tiny bias towards trusting elected officals accountable to voters rather than faceless bureaucrats or appointed "guardians" who have proven as apt to play politics as anyone else.

Those tremendous watchdogs snored through Clinton's usurpation of power and I have absolutely no reason that they will snore through others doing the same.

Now is the time to shout from the roof tops that you have more faith in the feckless FISA court than in elected officials. Good luck.

[Sue]

It targets only international communications closely connected to Al Qa'ida or an affiliated group.

I thought it was domestic communications you were worried about.

[lurker]

"The Program is not "data-mining"; It targets only international communications closely connected to Al Qa'ida or an affiliated group."

StopACLU is providing a simplistic explanation. Sorry, I don't see that they are clueless. This program does not limit targets to AQ but any foreigners with the intent of sabotaging our country and our assets. By legal definition, anyone inside this country that have clear intent of working with foreigners having the intent of sabotaging our country should be placed under surveillance.

[Anonymous Liberal]

Look, judges should not be directly involved with national security issues. Period. Let them do their job sorting out legislation and constitutinality. Putting them in the position of making decisions that weigh security against principle is out of their job description. That's exactly what politicians are for.

This is so silly. Judges sign off on millions of warrants a day in criminal matters. And the Supreme Court also requires warrants for any domestic national security threats (think Timothy McVeigh). Put simply, this is exactly what judges do, all the time. They're good at it. And they're not particularly demanding either. As any law enforcent or FBI agent will tell you, it's pretty damn easy to get a warrant if you have any good reason to do so.

And FISA judges have granted all but a handful of warrants they've been presented with over the last three decades.

[Rick Ballard]

OT,

The Tradesport contract on Republicans holding the House is now at 52 with the Senate at 84.

[boris]

in criminal matters

Who was the last criminal who killed 3000 innocent Americans?

You do have a 910 mentality.

[Sue]

Judges sign off on millions of warrants a day in criminal matters.

I think this is where we mainly part ways. I don't consider this a criminal matter.

[boris]

it's pretty damn easy to get a warrant if you have any good reason to do so.

Why couldn't the FBI examine the terrorist's laptop? Not enough probable cause.

[Anonymous Liberal]

I thought it was domestic communications you were worried about.

I am. First, I was quoting the NSA, and they are using the term "international" to mean communications where one party is in the U.S.

Second, and more importantly, the concern is that Specter's bill legalizes way more than just this program. By completely gutting FISA, it removes all judicial oversight. With no oversight, what's to stop the government from spying on purely domestic communcations?

[lurker]

AL, right, FISA still turned down warrants on surveilling the 9/11 terrorists that tore down both World Trade Centers, damaged the Pentagon, downed one other plane, and killed 3000 innocent civilians.

No, it wasn't easy to get a warrant.

Your 9/10 mentality will provide us greater assurance of another 9/11 or worse attacks against our country...and sooner.

[lurker]

"what's to stop the government from spying on purely domestic communcations?"

Because we already have laws to prevent our government from spying on purely domestic communications unless they are intent in sabotage, which, in this case, warrants are applied. Oversight is already in place.

[boris]

With no oversight, what's to stop the government from spying on purely domestic communcations?

You're the one who brought up Timothy McVeigh.

[Anonymous Liberal]

Why couldn't the FBI examine the terrorist's laptop? Not enough probable cause.

The decision not to search Moussaoui's laptop was made by the FBI, not the FISA court. The 9/11 commission later found that there was probable cause and that they should have applied for a warrant.

[lurker]

"Second, and more importantly, the concern is that Specter's bill legalizes way more than just this program. By completely gutting FISA, it removes all judicial oversight."

No, it doesn't. It limits to foreign surveillance. There remains repetitive reviews to ensure that this surveillance is limited to foreign surveillance.

Talk to Mary Jo White about her battles against Janet Reno and J. Gorelick.

[lurker]

What are the odds that FISA would approve the warrant to examine Moussaoui's laptop? The judge would probably rule it as not enough probably cause. Not a guarantee.

[Sue]

I am. First, I was quoting the NSA, and they are using the term "international" to mean communications where one party is in the U.S.

First off, both of us are arguing from a position of ignorance. Neither one of us have the full idea of exactly what is being done. What you are objecting to is NSA listening in on international communications then passing information to the FBI. I don't object to that. A warrant is obtained if the FBI investigates. The NSA does not investigate inside the US.

"They just don't know if the product of wiretaps were used for FISA warrants - to kind of cleanse the information. What I've heard some of the judges say is they feel they've participated in a Potemkin court."

You are objecting to NSA giving information to the FBI who in turn asks for a warrant. I'm not.

[Anonymous Liberal]

Because we already have laws to prevent our government from spying on purely domestic communications unless they are intent in sabotage, which, in this case, warrants are applied. Oversight is already in place.

Yeah, it's called FISA, and the Specter bill would gut it.

[boris]

The 9/11 commission later found that there was probable cause and that they should have applied for a warrant.

Yeah too bad the commission wasn't the judge. Pretty sure the FBI knew what would fly in front of a judge. It certainly adds the agent boss's decision to even take it to a judges. Big deal, the boss said no instead of a judge. The problem is saying no.

[Anonymous Liberal]

You are objecting to NSA giving information to the FBI who in turn asks for a warrant. I'm not.

Umm. No. I'm objecting to the NSA intercepting communications, without a warrant and in violation of the law, that involve U.S. citizens within the U.S. I don't care who NSA shares information with as long as it is legally obtained.

[lurker]

"You are objecting to NSA giving information to the FBI who in turn asks for a warrant. I'm not."

You are objecting to NSA giving information to the FBI - 9/10 mentality - Gorelick Wall 9 feet high. NSA was not allowed to submit its findings to FBI.

I'm not. - 9/11 mentality - Gorelick Wall torn down. Guess what. FBI saw an increasing number of NSA requests and began complaining about its workload. This was what NYT reported. And people misread into this.

[lurker]

NSA is a military operation under the auspices of Article 2. This is perfectly legal. This program was initiated in 1952 and has not changed its scope since. I don't have a problem with NSA intercepting communications and submitting its findings to FBI. FBI investigates and if it finds it probable cause, it then submits a warrant for further domestic surveillance.

[Anonymous Liberal]

Yeah too bad the commission wasn't the judge. Pretty sure the FBI knew what would fly in front of a judge. It certainly adds the agent boss's decision to even take it to a judges. Big deal, the boss said no instead of a judge. The problem is saying no.

No, the commission concluded that FBI applied a "heighten-standard" that the FISA court would not have. The FISA court almost never denies warrants. Moreover, this is all beside the point, because the bills at issue don't even involve physical searches. Unless I missed it, Bush has never even claimed the authority to do physical searches without a warrant.

[lurker]

"I'm objecting to the NSA intercepting communications, without a warrant and in violation of the law, that involve U.S. citizens within the U.S. I don't care who NSA shares information with as long as it is legally obtained."

No, it doesn't involve and and all US citizens unless they are in contact with foreigners that are under suspicions. And this is perfectly legal.

[paulv]

The dems will have to put up or shut up. I expect them to support the President in this war against Islamo fascists because that is what the people want

[Cecil Turner]

I am. First, I was quoting the NSA, and they are using the term "international" to mean communications where one party is in the U.S.

That's the definition of "international."

American Heritage:
1. Of, relating to, or involving two or more nations: an international commission; international affairs.
2. Extending across or transcending national boundaries: international fame.

And sorry, A.L., but you're missing the point here. The goal is to intercept communications from Al Qaeda sources to "sleeper agents" in the US. It's clearly a military necessity, and just as clearly impossible if you require probable cause on each of the domestic termini of the communications. The whole point is to surveil calls from known international sites to unknown domestic sites. Claiming it ought to be illegal is analogous to claiming a letter from Osama is privileged from search unless the recipient is already a known Al Qaeda agent. Ludicrous.

[Anonymous Liberal]

Lurker,

You've been sipping the AJ Strata koolaid. This has nothing to do with "the wall". The NSA/FBI wall was eliminated by the Patriot Act. And I fully agree with that aspect of the Patriot Act. I have no problem with the agencies sharing legally obtained information.

[lurker]

The commission's findings are after the 9/11 attacks. Would the same commission come to the same conclusion before 9/11? I doubt it. The Path to 9/11 movie showed that a judge denied the warrant on that particular event.

"Unless I missed it, Bush has never even claimed the authority to do physical searches without a warrant."

This is correct. NSA has nothing to do with physical searches. Besides, we are subject to physical searches withOUT warrants. Where? AIRPORTS!!

[cathyf]

All they have to do is get a rubber-stamped warrant, which they can apply for retroactively and in an ex parte proceeding.

No, FISA does not rubber-stamp warrants. While the NSA surveillance program is a military operation and according to the constitution no judicial input is required, rubber-stamp warrants are a completely separate issue and they are quite explicitly prohibited by the 4th amendment. According to the constitution, a "warrant" has to have specificity as to the identity of the person targetted, and may only be issued upon probable cause. In a "retroactive" FISA warrant, only the paperwork is retroactive; the government must have the required-by-the-constitution-for-all-warrants specificity and probable cause satisfied before the surveillance takes place.

[lurker]

"Lurker,

You've been sipping the AJ Strata koolaid. This has nothing to do with "the wall". The NSA/FBI wall was eliminated by the Patriot Act. And I fully agree with that aspect of the Patriot Act. I have no problem with the agencies sharing legally obtained information."

Oh, I'm surprised you fully agree with that aspect of the Patriot Act. Well, then you should be strongly endorsing and supporting the fully legal NSA foreign surveillance program. The NYT article did point out that the FBI was complaining about its increasing workload because the "wall" was torn down.

[Anonymous Liberal]

And sorry, A.L., but you're missing the point here. The goal is to intercept communications from Al Qaeda sources to "sleeper agents" in the US. It's clearly a military necessity, and just as clearly impossible if you require probable cause on each of the domestic termini of the communications. The whole point is to surveil calls from known international sites to unknown domestic sites.

Rubbish. First, if a known al Qaida suspect calls the U.S., I'm pretty sure you can get a warrant, even if you don't know who they're calling. But more importantly, even if you can't, that could be corrected by a simple cosmetic change to FISA that everyone in the world would agree to. Specter's bill goes WAY farther than that. It basically makes FISA optional (and therefore meaningless). That would mean the government can spy on anyone without any oversight.

[Sue]

Umm. No. I'm objecting to the NSA intercepting communications, without a warrant and in violation of the law, that involve U.S. citizens within the U.S. I don't care who NSA shares information with as long as it is legally obtained.

We shall see if it is illegal or not.

It is late in my time zone, so I'll leave you with this...I doubt Specter's bill passes the Senate in the form it came out of committee. They never do.

Goodnight.

[lurker]

I disagree that it is rubbish. No, FISA has been known to decline warrants when a foreigner under suspicion (not limited to Al Qaida) contacting someone inside USA. Remember Mohammad Atta? He was inside USA while under phone contacts with a foreigner outside USA.

I disagree about some simple cosmetic change to FISA. Why change it? And it should be made optional to adapt to fast technology advancement. And no, this does not and should not allow the government to spy on anyone without oversight. Why? Because there are already laws that prevent our government from spying on domestic communications unless they are planning to sabotage our country.

[Anonymous Liberal]

According to the constitution, a "warrant" has to have specificity as to the identity of the person targetted, and may only be issued upon probable cause.

Two things. First, FISA warrants are statutory, not constitutional. Judge's look to the text of FISA, not the 4th amendment, when issuing FISA warrants.

Second, when I say "rubber-stamp" I'm refering to the reality of the situation. FISA judges almost never deny warrants. They don't want to be blamed if something bad happens. The primary value of having them do this sort of oversight is not so they can second guess the government's decision, but rather so they can make sure the government isn't using their surveillance authority to spy on political enemies or non-terrorists.

[Cecil Turner]

Rubbish. First, if a known al Qaida suspect calls the U.S., I'm pretty sure you can get a warrant, even if you don't know who they're calling.

You keep referencing FISA, and I'm thinkin' you probably ought to read it. The requirement for a court order is:

probable cause to believe that—
• (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power

Just because someone's being called by an Al Qaeda type is obviously not the pertinent probable cause, and that's exactly what we're talking about here.

Specter's bill goes WAY farther than that. It basically makes FISA optional (and therefore meaningless).

I admit not having a copy of Specter's bill. What exactly does it say on that point?

[lurker]

Based on your posts, AL, you seriously lack sufficient technical background to fully understand the subtle differences in how the NSA foreign surveillance program works and why this is made legal. As long as you continue to put forth your arguments based on the 9/10 mentality, you will never understand.

Sorry but my position is that the NSA foreign surveillance program is perfectly legal and I don't see a problem with this program. They should always have sufficient authority to spy on foreigners and their contacts under suspicion and there are oversights that governs domestic surveillance over any and all US citizens, including political enemies and non-terrorists already.

Good night.

[Neo]

I'm going to go out on a limb and point out that virtually every bill presented by the Democrats that involves DHS or national security seems to also involve unions.

I find it tedious that every national security problem gets converted into a union jobs bill.

I'm sure that more than a few Democratic votes could be rounded up if they unionized the NSA.

[lurker]

Cecil, the link to Specter's bill is

here (provided earlier in this thread).

[cathyf]

I'm objecting to the NSA intercepting communications, without a warrant and in violation of the law, that involve U.S. citizens within the U.S.

So the NSA intercepts communications between a drug kingpin in Columbia and somebody the kingpin calls in Toledo. Without a warrant. Because they don't need a warrant to conduct surveillance in Columbia, and they don't have probable cause against the Toledo contact until the Columbian contacts him.

There is no FDSA (Foreign Drug Surveillance Act) and no judicial oversight of the surveillance. If the NSA finds something interesting, they hand it over to the DEA to investigate. If they decide that there is probable cause, they go get a warrant, or if not, they move on to other things. If the DEA or FBI never get to the probable cause point before dropping things, there is no judicial oversight.

Why is that it's ok to operate without warrants when conducting surveillance of foreign drug dealers who just might happen to contact US citizens, but not ok to operate without warrants when conducting surveillance of foreign terrorists who just might happen to contact US citizens?

[Anonymous Liberal]

Cecil, you just have to get a warrant for the target, not the person the target calls. So if an Al Qaeda suspect calls person X in the U.S., I'm almost positive the warrant for the AQ suspect covers that call. If you want to then listen in on all the calls of person X, you of course need a separate warrant, but that's not what we're talking about.

I admit not having a copy of Specter's bill. What exactly does it say on that point?

The Specter bill does a whole bunch of things. First, it removes the exclusivity provision of FISA and replaces it with a provision explicitly stating that the president has the power to do surveillance on his own authority. That effectively makes FISA optional. In addition, though, the bill also amends many of the substantive provisions of FISA and allows for program-wide "warrants". It's a real piece of work. Suffice it to say, there will be NO meaningful oversight or restrictions on the president's surveillance power if the bill passes.

[Anonymous Liberal]

Why is that it's ok to operate without warrants when conducting surveillance of foreign drug dealers who just might happen to contact US citizens, but not ok to operate without warrants when conducting surveillance of foreign terrorists who just might happen to contact US citizens?

It's not. You have to get a Title III warrant to do that. And getting a Title III warrant is more difficult than getting a FISA warrant.

[Cecil Turner]

Cecil, you just have to get a warrant for the target, not the person the target calls. So if an Al Qaeda suspect calls person X in the U.S., I'm almost positive the warrant for the AQ suspect covers that call.

I'm almost positive you need to reread the bill. (Specifically look at the warrantless exclusions for purely overseas communications and requirements for those which involve "United States persons.")

Cecil, the link to Specter's bill is here (provided earlier in this thread).

Thanks, Lurker, obviously I missed it. On point, I'd note Section 101

Exclusive Means- Notwithstanding any other provision of law, chapters 119, 121, and 206 of title 18, United States Code, and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which electronic surveillance may be conducted on a United States person in the United States. [emphasis added]

On first reading, the big difference appears to be a 24-hour "look see," followed by an apologetic letter if nothing is found (but I'm still digesting it and would love to hear other opinions). "Making it optional" is not quite right.

[cathyf]

Why is that it's ok to operate without warrants when conducting surveillance of foreign drug dealers who just might happen to contact US citizens, but not ok to operate without warrants when conducting surveillance of foreign terrorists who just might happen to contact US citizens?

It's not. You have to get a Title III warrant to do that. And getting a Title III warrant is more difficult than getting a FISA warrant

ROFLPIMP -- before the NSA puts a tap on Juan Doe's phone in Bogata, they get a Title III warrant from a court in the United States?!?!? What are you smoking, hon?!?!?

[Anonymous Liberal]

On first reading, the big difference appears to be a 24-hour "look see," followed by an apologetic letter if nothing is found (but I'm still digesting it and would love to hear other opinions). "Making it optional" is not quite right.

Cecil, the bill Lurker linked to and you quote is the Feinstein bill. That's totally different. I support the Feinstein bill. The one I was talking about before is the Specter/White House "compromise" bill.

[Anonymous Liberal]

ROFLPIMP -- before the NSA puts a tap on Juan Doe's phone in Bogata, they get a Title III warrant from a court in the United States?!?!? What are you smoking, hon?!?!?

Cathy, you can ROFL all you want to, but the rules aren't any less strict when it comes to regular criminal activity. They're more strict, actually. If you are a U.S. person within in the U.S. your calls cannot be intercepted absent a warrant (either FISA or Title III). That's what the law says.

I don't think the NSA spends a whole lot of time wiretapping druglords (that's generally the purview of the FBI/DEA/U.S. Attorneys). But whoever is doing the tapping, they get warrants before intercepting calls involving people in the U.S. (or they get foreign governments to do their dirty work for them). Either way, you're wrong.

[Cecil Turner]

Cecil, the bill Lurker linked to and you quote is the Feinstein bill. That's totally different. I support the Feinstein bill. The one I was talking about before is the Specter/White House "compromise" bill.

Whew! (Because that one sucks.) Got a link to the other one?

[Anonymous Liberal]

Cecil, I can't find the text of the bill right now, but here's an old post of mine with links to the news articles describing it.

Gotta go. Enjoyed the debate as always.

[Cecil Turner]

Cecil, I can't find the text of the bill right now, but here's an old post of mine with links to the news articles describing it.

Thanks, but the first link is dead (and I'm not buying a WaPo overview any more than an ACLU one in any event). My personal opinion on the subject is that a FISA statute ought to acknowledge the C-in-C's wartime authority to intercept enemy communications (without warrants, wherever they occur--especially if they originate overseas). FISA initially allowed that with the provision that as long as the interception was made offshore, it didn't fall under FISA. I suspect the main reason for the current contentious atmosphere is because of advancing technology (and specifically of foreign use of domestic switches, which makes the interceptions "domestic")--and now that the terrorists are informed of the CommSec issue, it's mostly water under the bridge. (And if so, the NYTimes and its informers ought to be hanged, drawn and quartered--possibly after some recreational waterboarding.) Not sure what the remedy ought to be, but a 24 hour "look see" is probably insufficient.

Gotta go. Enjoyed the debate as always.

Same here. Cheers.

[Syl]

Anonymous

You are dead wrong because you understand neither the program, what it does, or who does, nor where the information goes if they find any!

The NSA is NOT a law enforcement agency. They can't DO anything with any information they get. If they turn something suspicious over to the FBI, the FBI then, guess what, GETS A WARRANT for further surveillance.

I just don't have a clue what the damn fuss is all about.

[lurker]

Syl is right.

"The Specter bill does a whole bunch of things. First, it removes the exclusivity provision of FISA and replaces it with a provision explicitly stating that the president has the power to do surveillance on his own authority. That effectively makes FISA optional. In addition, though, the bill also amends many of the substantive provisions of FISA and allows for program-wide "warrants". It's a real piece of work. Suffice it to say, there will be NO meaningful oversight or restrictions on the president's surveillance power if the bill passes."

The US president is authorized under Article II as defined by our Founding Fathers to run the military operations while at war. We are at war against terrorism. The US president should not be constrained nor restricted nor limited in his or her power to use the military services when fit and necessary to win wars. There should always be oversight and reviews of our US president's power and use of military operations. NSA is a military operation.

Coming from the democrats, they're gonna blow smoke and mirrors over the Specter bill like they did with the original Patriot Act when there are no significant issues with either.

[lurker]

The US president also has authority to run US military operations during peacetime.

Ok, answer the following questions and do us all a huge favor before blowing more smoke and mirrors:

1. When a person enters a government site or building or a company site (e.g., IBM, Motorola, Intel, Boeing, Lockeed-Martin, USA, etc.), all of these sites and buildings have signs up that say something like, "You and your handbags, briefcases, backpacks are subjected to searches before entering the site or building".

These are incoming "requests" without warrants.

Do you have a problem with this? Do you endorse this? If not, why?

If you work in a law firm, does your law firm have these signs up? Have you objected to these signs as unconstitutional? If not, why not?

If you are not working now but have worked in the past recently, have you worked for someone that has those signs up? If so, Have you objected to these signs as unconstitutional? If not, why not?

After all, you are an incoming "request" entering those buildings without warrants.

2. Think back on the UAE port deal. UAE offered to search ships at their original departure and/or sites close to their destination (e.g., Bermuda within vicinity of USA borders).

These are incoming "requests" without warrants.

Do you have a problem with this? Do you endorse this? If not, why?

Do you see these searches as unconstitutional and potential for abuse with lack of oversight?

3. Snail mail shipped into USA from outside sources are subject to searches. Many are opened up and repackaged.

These are incoming "requests" without warrants.

Do you have a problem with this? Do you endorse this? If not, why?

Do you see these searches as unconstitutional and potential for abuse with lack of oversight?

4. All of our baggages are searched and X-rayed without warrants.

These are incoming "requests" into access to an airplane without warrants.

Do you have a problem with this? Do you endorse this? If not, why?

Do you see these searches as unconstitutional and potential for abuse with lack of oversight?

5. All passengers are all searched before going into the secure part of the airports without warrants.

All passengers are incoming "requests" entering an airport without warrants.

Do you have a problem with this? Do you endorse this? If not, why?

Do you see these searches as unconstitutional and potential for abuse with lack of oversight?

6. Corporations in America are searching for emails entering their intranets.

These are incoming "requests" entering their property without warrants.

Do you have a problem with this? Do you endorse this? If not, why?

7. When a house is burning, our firefighters enter that house without warrants.

These are incoming "requests" entering their property without warrants.

Do you see these searches as unconstitutional and potential for abuse with lack of oversight?

Do you have a problem with this? Do you endorse this? If not, why?

8. NSA foreign terrorist surveillance monitors incoming "requests", including phone calls, emails, etc., as a military operation without warrants.

How is this any different from 1 - 7 above? I am sure we can all cite far more examples of legal searches without warrants. Many of us believe that the NSA foreign terrorist surveillance are legal searches without warrants.

Now do us a huge favor. Find time in your busy schedule to go to a NSA facility that offers tours, especially a private and detailed tour and find out exactly what they are, what they do, and why they do it. Try to replace your irrational, emotional picture with a far bigger, more serious picture, if you can.

[Wonderland]

I just want to throw out a hypothetical, because I fear that many commenters are talking past one another and don't even agree on what is going on.

1) Non-US person terrorist suspect X is in Pakistan. The NSA has a beat on his phone and listens to all calls that he makes. No warrant needed.

2) X calls (previously unknown/unidentified) US person Y in New York. NSA hears the conversation, because they're tapping X's calls, regardless of where they are directed. No warrant needed.

3) NSA hears X tell Y, in code that NSA can decipher, to "look out for the wire transfer" so that he can "purchase materials" for the "big one."

Now, at this point, NSA clearly wants to begin listening to Y's phone calls. So what happens?

Do we agree that the NSA (or, say, FBI) must get a FISA warrant before (or within three days after) beginning to listen to Y's subsequent phone calls?

[boris]

X calls (previously unknown/unidentified) US person Y in New York. NSA hears the conversation, because they're tapping X's calls, regardless of where they are directed. No warrant needed.

This seems to be the issue in conflict. Current NSA interpretation is No warrent needed, while others claim that's in violation of FISA.

Do we agree that the NSA (or, say, FBI) must get a FISA warrant before (or within three days after) beginning to listen to Y's subsequent phone calls?

This may be the new conflict. Most pro-NSA are ok with this. Does the Specter bill remove this requirement?

[Other Tom]

"Explain to me why it is essential that the surveillance of terrorists be conducted without judicial oversight of any kind?"

Because the president cannot subject his decisions on gathering foreign intelligence to the veto of a judge. Bear in mind, at all times, the distinction between law enforcement and national security. Recall that Aldrich Ames's house was searched without a warrant of any kind.

The existing NSA program, while not seeking judicial approval of intercepts of communications where one party is abroad, is indeed subject to review by selective members of congress of both parties. That makes it quite distinct from Bobby Kennedy and J. Edgar Hoover tapping Martin Luther King's phone.

Everyone acknowledges that Americans will have to make some sacrifices in conducting this unprecedented kind of warfare. Most of them are willing to sacrifice that modicum of privacy involved in talking with overseas suspects. The congress knows this.

[Anonymous Liberal]

Because the president cannot subject his decisions on gathering foreign intelligence to the veto of a judge. Bear in mind, at all times, the distinction between law enforcement and national security. Recall that Aldrich Ames's house was searched without a warrant of any kind.

You're confused, OT. Physical searches were not covered by FISA at the time of the Ames search. Congress then overwhelming passed an amendment to FISA requiring warrants for such searches. Judges aren't "vetoing" security decisions. Only a few warrant applications have ever been denied. They're main job is just to make sure the president is spying the people he says he's spying on.

[Bob]

So Kerry want's to go a second round eh!

“I’m prepared to kick their ass from one end of America to the other,” he declares. “I am so confident of my abilities to address that and to demolish it and to even turn it into a positive.”

http://www.examiner.com/a-284761~Meet_the_Next_President__Kerry_s_Second_Shot.html>
Meet the Next President is a real hoot!

Did you know he served in Vietnam....

[lurker]

"X calls (previously unknown/unidentified) US person Y in New York. NSA hears the conversation, because they're tapping X's calls, regardless of where they are directed. No warrant needed.

This seems to be the issue in conflict. Current NSA interpretation is No warrent needed, while others claim that's in violation of FISA."

Funny that this has always been this way and even Church acknowledges that this is legal as AJStrata was quickly to include as a link in his last post on FISA / NSA:

FISA Requires Warrant To Spy? with the sublink:

Why The NSA Never Tipped Off The FBI

"What I am seeing here is similar. Clearly worried about incidental contacts (something the Church Committee acknowledged in the late 70’s happens and is NOT a problem) it seems there were some secret policies that were overly cautious and restricted spying on people overseas. Probably if there was a chance they might come in contact with a US person or someone in the US. Back in the 80’s, before the internet and cell phones, his was probably not considered overly restrictive. It is now of course. Any legal eagles claiming the generals needs to get a warrant to spy on our enemies? Because that seems to be the linchpin issue here. An outdated, overly cautious policy that allowed 9-11 highjackers to talk to their masters overseas without any ability of the intel community to alert law enforcement."

"Do we agree that the NSA (or, say, FBI) must get a FISA warrant before (or within three days after) beginning to listen to Y's subsequent phone calls?

This may be the new conflict. Most pro-NSA are ok with this. Does the Specter bill remove this requirement?"

Well, here is what AJStrata says in partly about the solo Specter bill says:

"This ridiculous policy creep is probably why Specter and others are working to authorize what Bush is doing and modernize FISA. Tom Maguire reports on Specter’s legislation being passed out of committee - which allows Bush to continue as is and get a FIS Court review, which will concur as they did in 2002."

But, in light of Other Tom's last post about "The existing NSA program, while not seeking judicial approval of intercepts of communications where one party is abroad, is indeed subject to review by selective members of congress of both parties.", I understand that the solo Specter bill simply extends the committee review PLUS FISA judge review to a periodic constitutional review as optional.

The solo Specter bill simply adds another level of review but optional, if I understand it correctly. I don't see this as opening it wide open and subject to lack of oversight and potential abuse.

[Anonymous Liberal]

After some sleep and a cup of coffee, I think I may need to issue a correction. I think Wonderland is right regarding when FISA warrants are needed, and I was incorrect to suggest otherwise. I think you only need a warrant when the U.S. person is targetted.

That said, there is every reason to believe that the NSA program involves the targetting of U.S. persons. Gonzales essentially admitted this when the story broke. Moreover, if what they were doing did not run afoul of FISA, there would be no controversy, no need to advance ridiculous legal theories, and there would be no push for additional legislation.

In other words, if the program merely involved listening in on the calls of foreign al Qaeda suspects into the U.S., we wouldn't be where we are today. Clearly it involves more than that.

[Other Tom]

I didn't mean to suggest that physical searches were covered by FISA; they were covered by the Fourth Amendment. A judge is, indeed, vetoing a presidential decision if and when he denies an application for a warrant. It does not advance your argument to say that, hell, they rarely deny them anyway.

Every president since Jimmy Carter (who signed the original FISA statute) has maintained that the statute does not and cannot infringe upon his inherent constitutional authority to gather foreign intelligence. (The position is not unique to George W. Bush at all.) That position has been endorsed, in dicta, by the FISA Court of Appeal.

[Wonderland]

Boris:

With respect to the first issue, I need to look again at FISA's definitions of "electronic surveillance," so let's let that pass for now.

The second issue, it seems to me, is clear cut. A warrant is required under the current FISA regime, should be required as a matter of policy, and (my guess is) would be required by the Fourth Amendment if a court ever got a chance to say so.

The Specter bill, though, specifically allows warrantless surveillance under the amorphous "constitutional authority" of the President (i.e., Article II CinC/Executive powers). As you note, the bedwetter/Big Brother-loving faction of the GOP would argue -- and I'm sure Bush's lawyers would adopt -- the position that the war on Al Qaeda means that the President's war powers extend to Al Qaeda everywhere, including suspected American terrorists. (Heck, didn't they already rely on this position in locking up US citizen Padilla for four years without charges?) So, given the Administration's prior legal predilection, Specter's bill would in fact "authorize" warrantless surveillance of purely domestic transmissions, so long as the President has assertedly decided, in secret, that the target is "affiliated" with Al Qaeda.

If one fails to see the massive potential for abuse, one is purposefully avoiding doing so.

[Other Tom]

Here's what the FISA Court of Appeal said in 2002:

"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."

[lurker]

"Recall that Aldrich Ames's house was searched without a warrant of any kind."

I was going to say that this "loophole" ended up being covered at a later time but AL beat me to it.

"After some sleep and a cup of coffee, I think I may need to issue a correction. I think Wonderland is right regarding when FISA warrants are needed, and I was incorrect to suggest otherwise. I think you only need a warrant when the U.S. person is targetted."

Whew, finally nailing down to the details with AL and many of us getting close to agreeing to the same conclusion. wonderland's first question makes the NSA foreign terrorist surveillance perfectly legal. This is the part that has not changed in many years.

Going back to wonderland's second question, the NSA findings on any inside USA targets under suspicions do end up being subjected to FISA warrants if FBI determines probable cause.

"That said, there is every reason to believe that the NSA program involves the targetting of U.S. persons. Gonzales essentially admitted this when the story broke. Moreover, if what they were doing did not run afoul of FISA, there would be no controversy, no need to advance ridiculous legal theories, and there would be no push for additional legislation."

This kind of monitoring is absolutely necessary to thwart attacks. What Gonsales said did was to provide an explanation of a process that is already approved by law and this was already subjected to review by FISA judges and declared legal; therefore, it never ran afoul of FISA.

The controversy came about because of lack of knowledge and understanding of this program.

There is still no need to push for additional legislation except to allow FISA, FBI, CIA, NSA to adapt to rapidly-changing technology advancement. That's all it is.

In other words, if the program merely involved listening in on the calls of foreign al Qaeda suspects into the U.S., we wouldn't be where we are today. Clearly it involves more than that."

No, it doesn't. It has always been this way. The process as answered by wonderland is where NSA submits its findings to FBI, if FBI determines probable cause, it submits warrants to FISA.

[Sue]

AL,

I think the argument is whether the FISA warrants are tainted because the information used to reach the probable cause required for issuance of a FISA warrant is obtained by NSA without a warrant. Warrants were and are being issued. That is the reason stated by the WaPo for Roberts resignation. Afraid he had issued tainted warrants because the probable cause was not cleansed. To me, we are arguing on whether information gathered by NSA can be used to issue the warrants. What do you think? Should they be able to pass on the information that is used by the FBI to obtain the warrant?

[Rick Ballard]

Cecil,

The bill in question is the Specter version - S.2453.