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Nbadan

12-21-2005, 01:11 AM

Bush: I have power to order spying in U.S.
Some legal experts say president broke the law
RON HUTCHESON
Knight Ridder

WASHINGTON - President Bush said Monday he didn't need explicit permission from Congress or the courts for a secret domestic surveillance program to eavesdrop on suspected terrorists.

At a White House news conference, Bush expressed outrage that the program had become public and vowed to continue it. The president said his constitutional power as commander in chief and the congressional resolution that authorized the use of military force against terrorists gave him the authority to order the eavesdropping.

His explanation fueled more anger over the domestic spying, and some legal experts asserted that Bush broke the law on a scale that could warrant his impeachment.

"The president's dead wrong. It's not a close question. Federal law is clear," said Jonathan Turley, a law professor at George Washington University and a specialist in surveillance law. "When the president admits that he violated federal law, that raises serious constitutional questions of high crimes and misdemeanors."

Silicon Valley (http://www.siliconvalley.com/mld/charlotte/news/13446592.htm?source=rss&channel=charlotte_news)

When did Presidential executive powers equal the divine right to break Federal and international law anyway?

Spy Briefings Failed to Meet Legal Test, Lawmakers Say

WASHINGTON, Dec. 20 - The limited oral briefings provided by the White House to a handful of lawmakers about the domestic eavesdropping program may not have fulfilled a legal requirement under the National Security Act that calls for such reports to be in written form, Congressional officials from both parties said on Tuesday.

The White House has refused to describe the timing and scope of the briefings, except to say that there were more than a dozen. But among the small group of current and former Congressional leaders who have attended the high-level gatherings conducted by Vice President Dick Cheney at the White House, several have described them as sessions in which aides were barred and note-taking was prohibited.

...

Without a written record or the recollections of staff members to guide them, members of Congress who have attended the briefings have provided starkly different versions of what they were told at the sessions, which they said were almost invariably led by Mr. Cheney and Gen. Michael V. Hayden, who as director of the National Security Agency oversaw the effort.

...

A White House spokesman declined on Tuesday to say whether the administration had ever provided a written report to Congress about the eavesdropping program. Some reports have suggested that the first briefings to Congress took place in late 2001, before the law took effect.

NY Times (http://www.nytimes.com/2005/12/21/politics/21intel.html?adxnnl=1&adxnnlx=1135141901-cKwgYo4xbP4EjsELZE/X1g&pagewanted=print)

So what? Clinton did the same thing, right? Wrong...

From Think Progress:

The Echelon Myth
Prominent right-wing bloggers – including Michelle Malkin, the Corner, Wizbang and Free Republic — are pushing the argument that President Bush’s warrantless domestic spying program isn’t news because the Clinton administration did the same thing.

The right-wing outlet NewsMax sums up the basic argument:

During the 1990’s under President Clinton, the National Security Agency monitored millions of private phone calls placed by U.S. citizens and citizens of other countries under a super secret program code-named Echelon…all of it done without a court order, let alone a catalyst like the 9/11 attacks.

That’s flatly false. The Clinton administration program, code-named Echelon, complied with FISA. Before any conversations of U.S. persons were targeted, a FISA warrant was obtained. CIA director George Tenet testified to this before Congress on 4/12/00:

I’m here today to discuss specific issues about and allegations regarding Signals Intelligence activities and the so-called Echelon Program of the National Security Agency…

There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.

Meanwhile, the position of the Bush administration is that they can bypass the FISA court and every other court, even when they are monitoring the communications of U.S. persons. It is the difference between following the law and breaking it.

Think Progress (http://thinkprogress.org/2005/12/20/the-echelon-myth/)

The scary part of all this is that provisions in the soon to be extinct Patriot Act may muddy the legal waters on domestic survellience so much, that it may yet again give the ethically-challenged Bush Administration anotherlegal out from this mess. (http://www.eff.org/Privacy/Surveillance/Terrorism/20011031_eff_usa_patriot_analysis.php)

Oh, Gee!!

12-21-2005, 01:18 AM

I love the "but they did it too!!!" argument.

Nbadan

12-21-2005, 01:20 AM

In Republican world two wrongs always make a right.

Vashner

12-21-2005, 01:36 AM

Fuck you America Haters...

You would want to give up all the classified programs huh?

Go to Lackland and tell the hill that they can't spy anymore...

Maybe an SP with some dogs will throw your ass out of the base.

President of the U.S. is in charge of a lot of classified projects...

Too FUCKING BAD... maybe you can move to Canada?

Oh, Gee!!

12-21-2005, 01:42 AM

Hook Dem

12-21-2005, 10:56 AM

I love the "but they did it too!!!" argument.
It's good you know about that! Why all the bitchin then? :lol

Hook Dem

12-21-2005, 11:00 AM

Finally, someone came out and said what I have been passing on for the last
day or two regarding President Bush's use of the NSA for warrentless use of
his powers to obtain intelligence from calls outside the US to people in the
US. It is my understanding from other reports that I have read, that
Presidents Bush the Elder, and Reagan also used the NSA in this manner. This
should shut up the MSM's and the Democrats since their two "Darlings",
Clinton in particular, used these powers much more broadly than Bush is.

Matt Drudge just posted this on his website...

http://www.drudgereport.com/flash8.htm

CLINTON ADMINISTRATION SECRET SEARCH ON AMERICANS -- WITHOUT COURT ORDER

CARTER EXECUTIVE ORDER: 'ELECTRONIC SURVEILLANCE' WITHOUT COURT ORDER

Bill Clinton Signed Executive Order that allowed Attorney General to do
searches without court approval

Clinton, February 9, 1995: "The Attorney General is authorized to approve
physical searches, without a court order"

WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S.
citizens but also -- in the delicate words of a Justice Department official
-- to "places where you wouldn't find or would be unlikely to find
information involving a U.S. citizen... would allow the government to use
classified electronic surveillance techniques, such as infrared sensors to
observe people inside their homes, without a court order."

Deputy Attorney General Jamie S. Gorelick, the Clinton administration
believes the president "has inherent authority to conduct warrantless
searches for foreign intelligence purposes."

Secret searches and wiretaps of Aldrich Ames's office and home in June and
October 1993, both without a federal warrant.

Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is
authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order."
END

You can also find excellent discussions regarding the Bush use of the NSA on
PowerLine. http://www.powerlineblog.com/

Just as in the CBS fiasco, the New York Times report and reporters are being
torn apart by those who know the law, making the New York Times look like
the idiots they have become all in the name of liberalism...

Their reporting is much to do about nothing. President Bush's actions are
much to do about everything. He is trying to keep Americans from being blown
to kingdom come by WMD that Saddam smuggled out of Iraq, into Syria before
we got there. I noticed yesterday that Syria and Iran have signed an
agreement for Iran to store their WMD in Syria, if needs be. Probably right
next to the numerous sites I saw detailed months ago where the Iraqi WMD's
are stored....

Cant_Be_Faded

12-21-2005, 03:59 PM

mookie2001

12-21-2005, 04:18 PM

yes he did
a federal law

ChumpDumper

12-21-2005, 04:26 PM

I noticed yesterday that Syria and Iran have signed an
agreement for Iran to store their WMD in Syria, if needs be. Probably right
next to the numerous sites I saw detailed months ago where the Iraqi WMD's
are stored....Why not tell Bush about these sites?

Yonivore

12-21-2005, 05:17 PM

John Schmidt, associate attorney general of the United States in the Clinton administration, superbly explains (http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed) why the NSA intercept program is legal under all authorities and precedents:

"President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

"In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

"Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
Schmidt quotes the same language from the 2002 decision of the Foreign Intelligence Surveillance Court of Review that I cited in another post:

"...the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that 'All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority.'"

mookie2001

12-21-2005, 05:20 PM

post 9/11 doesnt mean more than 3 or 4 days

ChumpDumper

12-21-2005, 05:22 PM

So really, since Bush already had the authority to call for wiretaps and ask for a warrant later -- warrants that are hardly ever denied btw -- why didn't he just do that?

Will you defend a Democratic President's right to do this if we're still "at war" a few years down the line?

JohnnyMarzetti

12-21-2005, 05:22 PM

Phhht!! Why don't we just throw out the laws and just put a "citizens beware" warning on our driver's licenses? Why even have laws against unlawfull search and seizure if the president can say screw the law!?

mookie2001

12-21-2005, 05:23 PM

yeah i read somewhere that secret courts approved 15,000 warrants since 1979 and not one was denied
not one

Yonivore

12-21-2005, 05:23 PM

post 9/11 doesnt mean more than 3 or 4 days
What's your point?

The courts' opinions held true prior to 9/11 as well and, in fact, were issued prior to 9/11. Face it, the President of the United States of America can authorize warrantless searches or wiretaps if it's related to a foreign threat.

Period.

Extra Stout

12-21-2005, 05:56 PM

Wait a minute...

when a police officer conducts an illegal search without a warrant, he doesn't get charged with a crime for doing so. The evidence just gets thrown out. At worst, the officer gets fired. This "impeachment" talk is typical loony left crap. They'd want to impeach Bush if he had an overdue library book.

This is only an issue if the feds try to use evidence obtained from the wiretaps to try a U.S. citizen/resident/other person owed due process in court.

Crookshanks

12-21-2005, 06:17 PM

boutons

12-21-2005, 06:23 PM

"They're not using this to spy on American citizens"

You right-wingers who hate the federal govt to death look silly when you trust the fed govt to be Boy-Scout honest and virtuous. aka, ideological blindess.

The assumption must always be that abuse will occur. So preventing or at least detecting abuse is central to any govt powers. Paranoia is expressed in the Constitution in the system of checks and balances, which assume that (unchecked) power will be abused, because power, like $$$, is always corrupting.

mookie2001

12-21-2005, 06:24 PM

You right-wingers who hate the federal govt to death look silly when you trust the fed govt to be Boy-Scout honest and virtuous. aka, ideological blindess.

The assumption must always be that abuse will occur. So preventing or at least detecting abuse is central to any govt powers. Paranoia is expressed in the Constitution in the system of checks and balances, which assume that (unchecked) power will be abused, because power, like $$$, is always corrupting.
well said boutons

Oh, Gee!!

12-21-2005, 06:25 PM

you have nothing to worry about!!

famous last words of a free society

Mr. Defense

12-21-2005, 06:36 PM

what are people afraid of?

are they talking about cheating on their spouse or how they stole something?

who cares.

this is about national security.

the gov't can listen in on my convo's if it means they are listening in on terrorists nuclear plots as well. :tu

ChumpDumper

12-21-2005, 06:40 PM

Under the Foreign Intelligence Surveillance Act, the NSA in urgent situations can already eavesdrop on international telephone calls for 72 hours without a warrant, as long as it goes to a secret intelligence court by the end of that period for retroactive permission. Since the law was passed in 1978 after intelligence scandals, the court has rejected just five of 18,748 requests for wiretaps and search warrants, according to the government.http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR2005121900211_2.html

No one has explained how FISA is wholly inadequate to counter today's threats.

mookie2001

12-21-2005, 06:40 PM

maybe you can move to Canada?

boutons

12-21-2005, 09:40 PM

"No one has explained how FISA is wholly inadequate to counter today's threats."

anyone? anyone? Ferris?

Just as the Repug Iraq war wasn't about WMD or terrorism or 9/11, the current dubya/dickhead push for unlimited, unending executive power is not about national security.

Yonivore

12-21-2005, 09:54 PM

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR2005121900211_2.html

No one has explained how FISA is wholly inadequate to counter today's threats.
No, what has been explained is that the President has the constitutional authority to do what he did and that FISA doesn't change that. In fact, FISA courts have repeatedly reached that opinion whenever the question has arisen.

He is under no obligation to conduct his national security policies to your liking. What he did is legal and, by all accounts, within his constitutional powers to exercise.

Tell me, exactly which constitutional article or federal statute was violated?

ChumpDumper

12-21-2005, 10:31 PM

Tell me why it was necessary to ignore the law.

ChumpDumper

12-21-2005, 10:37 PM

I mean besides the fact there was a 0.0270592055% chance any single request might be turned down....

Yonivore

12-22-2005, 06:27 AM

Tell me why it was necessary to ignore the law.

I'm telling you it wasn't necessary to go through FISA. They didn't ignore the law, they chose a different path. And, from some of the stuff I'm reading, FISA's definitions of "electronic surveillance" made the type of wiretapping involved "problematic."

So, if you're unclear if FISA allows the type of surveillance you want to do and you have a long list of court opinions that say you don't have to go to FISA to do the type of surveillance you want to do, why make problems for yourself?

ChumpDumper

12-22-2005, 01:44 PM

So they ignore the law because they are lazy?

Nice.

Oh, Gee!!

12-22-2005, 01:48 PM

and arrogant. you forgot arrogant.

foodie2

12-22-2005, 02:01 PM

They're not using this to spy on American citizens. They are spying (on a very limited basis - 45 days) on people in this country who have are suspected of having ties to terrorist organizations.

So unless you're calling your Al-Qaida cronies, you have nothing to worry about!!

Huh? So you're saying that I, as an American citizen, only have to worry if I'm calling someone in Al-Qaeda, but you're also saying that they don't spy on American citizens. Which is it?

And as I understand it, all these court decisions you all are prattling on about relate to spying on foreign nationals, NOT Americans. To spy on Americans, you have to go through FISA. Period.

Yonivore

12-22-2005, 02:42 PM

If one reviews the controlling legal authorities, it is hard to see what the fuss is about. For purposes of this analysis, I have assumed that the NSA intercepts electronic messages (phone calls and emails); that when the agency learns of a foreign cell phone or email address that is being used by a terrorist, it inputs that phone number or address into its surveillance system and is then able to intercept all incoming and outgoing communications; that the intent of the program is to intercept only international communications, i.e., those where at least one of the parties is located outside the United States; but on relatively rare occasions, communications between two people who are both located in the U.S. are intercepted. Under the governing legal principles, however, the precise details of the program shouldn't make any difference.

The starting point, of course, is the Constitution. Article II of the Constitution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order.

Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."

No one questions this basic principle. If our soldiers or intelligence agencies discover a terrorist in Afghanistan, Iraq or elsewhere, the President or his designees can order an air strike or other attack to kill him. It would be very odd if the President has the authority to kill a terrorist, but not to intercept his telephone calls or search his cave.

There is one relevant constitutional provision that acts as a restraint on the President's inherent power as Commander in Chief. That is the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable. Note, however, that this requirement does not apply to terrorists overseas. A Special Forces soldier can pick a cave arbitrarily and search it. He isn't trying to prosecute terrorists, he is trying to kill them. He doesn't need probable cause.

The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations (http://www.nationalreview.com/mccarthy/mccarthy200512201735.asp) where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable.

One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.

In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth. The Court held that the Fourth Amendment applies to such conversations, and that in an ordinary criminal prosecution (subject to many exceptions, as noted above) a warrant is required for wiretap information to be admissible in court. The Court specifically noted, however, that its decision did not apply to situations involving national security:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
Five years later, the Court decided United States v. United States District Court, 407 U.S. 297 (1972). This case arose out of a criminal prosecution for conspiracy to destroy government property. (One of the defendants was charged with dynamiting a Michigan office of the C.I.A.) The Court's majority opinion framed the issue as follows:

[This case] involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.
While acknowledging that American governments had conducted warrantless surveillance in internal security cases "for more than one-quarter of a century," the Court held such surveillance unconstitutional under the circumstances presented.

For the present purpose, the relevant portions of the opinion are those that distinguish the case before the Court from cases involving foreign intelligence gathering:

[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.
And again:

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.
It should be noted, too, that the Court did not hold that in domestic security cases, warrants are always required; it merely rejected the government's assertion of a blanket exemption for all such surveillance.

The third relevant Supreme Court case is Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. The government offered alternative theories in support of Hamdi's detention; the Court's plurality opinion describes them as follows:

The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force].
The Court noted that apprehending military combatants is a necessary incident of the use of military force:

We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
Thus, neither the language of the Constitution nor the Supreme Court’s jurisprudence can justify a claim that the NSA program is illegal. While the Court has never specifically ruled on the issue, its decisions are entirely consistent with the administration's view that the President has the inherent constitutional authority to obtain foreign intelligence information through warrantless searches. We turn now to the decisions of the federal Courts of Appeal.

This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting defendant’s claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:

The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of obtaining foreign intelligence information is constitutionally permissible [citation omitted], though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment.

We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest.
In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:

In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”
Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:

Foreign security wiretaps are a recognized exception to the general warrant requirement….
In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:

The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court agreed with the government’s position:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.

The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

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.
That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.

It’s worth noting that all of the cases cited above involved warrantless searches inside the United States. The NSA program, in contrast, involves international communications only, and the intercepts take place at least in part outside the United States. Thus, the NSA case is even clearer than the cases that have already upheld Presidential power.

I’m tempted to stop there, since action by Congress can neither add to, nor detract from, the constitutional powers of the executive branch. Because others on both sides have introduced various statutes into the debate, however, I will deal with them briefly.

First, the administration has argued that in addition to its inherent powers, the NSA program is legal because it was authorized by Congress in the post-September 11 Authorization for the Use of Military Force. It is easy to see why the administration wants to employ this argument, since this is the rationale that was adopted by the Supreme Court in Hamdi. And one can certainly argue that the authorization, which says the administration can “use all necessary and appropriate force,” covers intercepting communications, since intelligence gathering is just as much a “fundamental and accepted incident of war” as detaining enemy combatants.

Nevertheless, I don’t think that the statutory argument adds anything to the administration’s position. The response from the other side would be, “Certainly we authorized the executive to collect intelligence, but we didn’t authorize it to break the law or violate the Constitution.” I think that point is well taken. The AUMF would not be interpreted to authorize the President to take actions that are otherwise illegal, just as, in Hamdi, the Court upheld the detention of enemy combatants but also imposed a procedure that it viewed as constitutionally required. So the argument quickly becomes circular: the AUMF did authorize the administration to engage in intelligence gathering, but only where such intelligence gathering is already proper by virtue of the President’s inherent constitutional powers, or other authority. So, in my view, the statutory argument adds nothing to the already clearly-established proposition that the NSA program is legal.

The other statute that has been discussed in connection with the legality of the NSA intercept program is FISA. It has been argued that FISA explicitly or implicitly requires the administration to conduct foreign intelligence surveillance only pursuant to the procedures set up under that statute.

As an initial matter, this argument has already been rejected by the very appellate court that is charged with interpreting and applying FISA, in Sealed Case No. 02-001. So, from the standpoint of critics of the administration’s program, the argument is a non-starter.

It’s interesting, nevertheless, to examine the provisions of FISA with a view toward answering this question: Given that the administration used the FISA warrant procedure for the vast majority of its anti-terror electronic intercepts, why did it bypass the FISA procedure in the relative handful of instances represented by the NSA program? One good answer to this question, of course, is speed. Obtaining a FISA warrant would require a matter of days, at least, and perhaps much longer. But when our forces overseas capture a terrorist and take possession of his laptop or cell phone, time is of the essence. Those phone numbers and email addresses will be useful only until the terrorist’s associates realize that he has been captured or killed. So the first days, hours or even minutes after the numbers and addresses fall into our possession are likely to be critical.

But there may be a second explanation that relates to the jurisdiction of the FISA court. The courts of the United States have jurisdiction within the United States and its possessions; they have no jurisdiction in, say, France or Afghanistan. In the U.S., a court can issue a warrant that requires a telephone company, for example, to cooperate with a government wiretap. It can make no such order in a foreign country. The jurisdictional limits of American courts are reflected, I think, in the scope of the FISA court’s authority as set out in Title 50, Section 1801 of the U.S. Code, the first section of the FISA statute. That section defines the “electronic surveillance” over which the FISA court has jurisdiction:

(f) “Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Under this definition, FISA applies to four categories of electronic surveillance. The first—“ wire or radio communication[s] sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes…”—does not apply, as I understand the NSA program. The NSA intercepts target foreign terrorists overseas and sweep in all of their communications. To my knowledge, they do not “target” “particular, known United States person[s]” who are in the U.S.

The third category likewise has no application. It relates to interception of communications where both the sender and all intended recipients are located inside the United States. The NSA intercepts were authorized only for international communications.

That leaves the second and fourth categories. Note that the applicability of both sections turns on whether the surveillance activity in question takes place inside the United States. In subsection (2), the “acquisition” must occur in the United States. In subsection (4), the surveillance device must be “installed” or “used” inside the United States.

This is the one point where it would be helpful to know more about the details of the NSA operation. Based on what has been publicly disclosed, it seems likely that the NSA intercepts are picked up overseas, not inside the U.S. If that is the case, FISA simply has no application to the program. The answer to the question, “Why didn’t you obtain FISA orders authorizing these surveillances?” may be, “Because we couldn’t.” If the surveillance was outside the jurisdiction of the FISA court, no such orders could be issued. The administration could conclusively answer this question by disclosing where the surveillance equipment is located. But that is, of course, precisely the kind of secret information that the administration doesn’t want the terrorists to know.

In any event, as noted above, FISA might expand, but could not impinge on, the President’s inherent powers under the Constitution, which are more than sufficient to support the electronic intercepts at issue here, wherever they occurred.

One more statute is worth mentioning in the context of the above discussion of FISA: Chapter 19 of Title 18 of the U.S. Code. This is the Electronic Communications Privacy Act of 1986, the basic federal statute that prohibits you and me from wiretapping.

Section 2511 (2) (f) states:

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Thus, Congress has made explicit the fact that no federal statute is intended to affect or limit any foreign intelligence gathering that is conducted outside the scope of “electronic surveillance, as defined in [FISA].” In other words, Congress has made no effort to address electronic surveillance that is carried out outside the United States, and does not target specifically identified American persons. This is consistent with Section 2511 (2)(f)’s statement that FISA and the Electronic Communications Privacy Act are the exclusive means by which the government may intercept domestic communications. Except to the very limited extent encompassed by FISA’s definition of “electronic surveillance,” Congress has never purported to address in any way the interception of foreign or international communications.

There is no mystery about the legality of the NSA intercept program. It is intended to capture foreign intelligence information, including information about potential terrorist threats, and as such, every federal court that has addressed the issue has held that it is within the inherent constitutional power of the President as Commander in Chief. Everything else is immaterial.

This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when--some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.

There are, of course, liberal law professors who would like the law to be different from what it is. They are free to develop theories according to which the Supreme Court, should it someday address this issue directly, would rule as they wish. But the administration is entitled to rely on the law as it currently exists. And there is simply no question about the fact that under the Constitution and all controlling precedents, the NSA intercept program is legal.

Oh, Gee!!

12-22-2005, 02:47 PM

It's Different When The Prez Is Intercepting Calls Originating In This Country By Us Citizens Or Others Here Legally. That's What He Did.

Oh, Gee!!

12-22-2005, 02:51 PM

foodie2

12-22-2005, 02:59 PM

This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when--some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.

Let's assume, for a moment, that it is reasonable, which I don't agree with, but let's say it is. The thing that no one has answered yet to my satisfaction is why, with FISA in place and compliant in almost every instance, was it necessary to go around it? It just doesn't make sense if your motives are on the up and up. If makes sense to go around FISA, though, if you know that your activities are so blatantly wrong--i.e., you are spying on your political enemies and not terrorists--that FISA would not agree to it. I just don't see the rationale for going around FISA if terrorists were really the target. The system is set up to make it supremely easy to spy on foreign terrorists--why not use it?

Yonivore

12-22-2005, 03:11 PM

The thing that no one has answered yet to my satisfaction is why, with FISA in place and compliant in almost every instance, was it necessary to go around it? It just doesn't make sense if your motives are on the up and up. If makes sense to go around FISA, though, if you know that your activities are so blatantly wrong--i.e., you are spying on your political enemies and not terrorists--that FISA would not agree to it. I just don't see the rationale for going around FISA if terrorists were really the target. The system is set up to make it supremely easy to spy on foreign terrorists--why not use it?
That's addressed in my post as well. The short answer is, maybe they couldn't use FISA because of the nature of the surveillance device or the location.

But, to satisfy you on this question would require further divulgence of what is probably top secret information.

Yonivore

12-22-2005, 03:13 PM

It's Different When The Prez Is Intercepting Calls Originating In This Country By Us Citizens Or Others Here Legally. That's What He Did.
Not according to the courts and all precedents, it's not different. Try reading my post again.

Yonivore

12-22-2005, 03:15 PM

we will never know how many people in the USA were illegally tapped and for how long. that's the "fuss." There were no checks on the executive's power to avail himself of the narrow exception to the warrant requirement of the 4th amendment. There was no oversight. He could have gotten approval by a court after the fact and avoided the "fuss." But no, he's the king, right? He doesn't have to explain himself or ask for permission. He's fighting a war that knows no boundaries. He can go back only after he's been outed and say that terroristic threats were averted and I guess if you believe in ID you'd probably believe that too.
Well, the traitors that leaked this top secrety program -- if they were being so altruistic about it -- would have told you if the NSA program were being used to spy on U. S. Citizens for other than exactly what the President has confirmed.

The leakers, who should be found, tried, and executed for their treason, would have told you if it was being used abusively, don't you think?

Oh, Gee!!

12-22-2005, 03:15 PM

That's addressed in my post as well. The short answer is, maybe they couldn't use FISA because of the nature of the surveillance device or the location.

But, to satisfy you on this question would require further divulgence of what is probably top secret information.

the short answer is that you don't know and you'll say anything to support dubya because you're a right-wing nut.

sound like Bush: don't ask us why we do what we do. It's top secret and will stay that way for your protection. Thanks, King.

Yonivore

12-22-2005, 03:16 PM

Yonivore

12-22-2005, 03:21 PM

the short answer is that you don't know and you'll say anything to support dubya because you're a right-wing nut.

sound like Bush: don't ask us why we do what we do. It's top secret and will stay that way for your protection. Thanks, King.
Okay, I'm through wasting my time and energy on you. If you won't at least read and respond to the points raised, why have a discussion?

In his famous concurring opinion in Youngstown Sheet & Tube, the case involving President Truman's seizure of steel mills pursuant to his executive power during war time, Justice Jackson identified three categories of presidential exercise of power:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum . . . .

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

In which category does President Bush's authorization of warrantless wiretaps of the communications between terrorists abroad and individuals in America fall?

Arguably, it falls in the first, since Congress granted the president broad authority to take necessary and appropriate action to prevent another 9/11.

Arguably it falls in the second, if one construes the post 9/11 resolution more narrowly and also finds that FISA is not a clear denial of the president's right to authorize the wiretaps.

Arguably it falls in the third, if one construes the post 9/11 resolution narrowly and finds that FISA clearly expresses Congress's intent not to allow the NSA wiretaps. Or perhaps we need a fourth category to cover cases in which Congress talks out of both sides of its mouth.

Even if Bush's action does fall in the third category, it may be that the president's inherent authority to protect the country from foreign attack, minus Congress's power to legislate on the subject, leaves him with the power to act as he did here. The steel mills case involved the president taking private property and intervening in a labor dispute, areas of traditional legislative power. It is less clear that congressional power to legislate about the specific ways in which the government deals with foreign threats exceeds the president's power in this area.

Perhaps this question falls into the "zone of twilight" to which Justice Jackson referred.

If you're really interested in this subject you should consult the Harvard Law Review article by Professors Curtis Bradley and Jack Goldsmith: "Congressional Authorization and the War on Terrorism (http://www.harvardlawreview.org/issues/118/May05/Bradley_Goldsmith01FTX.pdf)."

Oh, Gee!!

12-22-2005, 03:22 PM

If you want to have a serious discussion of the facts, please read my post, you're repeating things that are already answered.

If you're just wanting to continue ragging on President Bush -- let me know, I have no interest in answering baseless invective.

you haven't answered shit, yoni, you're just parroting right-wing bloggers and copying and pasting from other people's articles that you googled this morning. Don't come off like some expert on constitutional law because you're not, you have no original thoughts on the matter.

xrayzebra

12-22-2005, 03:23 PM

we will never know how many people in the USA were illegally tapped and for how long. that's the "fuss." There were no checks on the executive's power to avail himself of the narrow exception to the warrant requirement of the 4th amendment. There was no oversight. He could have gotten approval by a court after the fact and avoided the "fuss." But no, he's the king, right? He doesn't have to explain himself or ask for permission. He's fighting a war that knows no boundaries. He can go back only after he's been outed and say that terroristic threats were averted and I guess if you believe in ID you'd probably believe that too.

oh,gee. You are such a dummy sometimes. Go back and read a little bit
about history. People in the USA my foot, they were on an international
phone call. They have no right to any type of privacy. Just like you don't
if you are on a cell phone or wireless phone. Grow up. Get a life and
understand you have a President who is trying to keep you butt all in one
piece. Start worrying about the queers getting married, not having
Christmas scenes on public land and everyone carrying guns, well with
the exception of your friends in Al Qaeda. Besides all the malarkey about
privacy is just that malarkey. There is no guaranteed right to privacy.

Yonivore

12-22-2005, 03:25 PM

you haven't answered shit, yoni, you're just parroting right-wing bloggers and copying and pasting from other people's articles that you googled this morning. Don't come off like some expert on constitutional law because you're not, you have no original thoughts on the matter.
So, respond to the unoriginal thoughts -- with specific legal cites, I hasten to add.

Oh, Gee!!

12-22-2005, 03:25 PM

oh,gee. You are such a dummy sometimes. Go back and read a little bit
about history. People in the USA my foot, they were on an international
phone call. They have no right to any type of privacy. Just like you don't
if you are on a cell phone or wireless phone. Grow up. Get a life and
understand you have a President who is trying to keep you butt all in one
piece. Start worrying about the queers getting married, not having
Christmas scenes on public land and everyone carrying guns, well with
the exception of your friends in Al Qaeda. Besides all the malarkey about
privacy is just that malarkey. There is no guaranteed right to privacy.

there is a guarantee against unreasonable search and seizure and warrantless searches, xray, which is what this discussion is about.

Oh, Gee!!

12-22-2005, 03:26 PM

So, respond to the unoriginal thoughts -- with specific legal cites, I hasten to add.

I have expressed my disagreement. We don't agree on this issue and never will I guess.

foodie2

12-22-2005, 03:30 PM

But, to satisfy you on this question would require further divulgence of what is probably top secret information.

Well, that's just unanswerable, isn't it? Trust in W, because he is wise and good, and would never steer us wrong. We poor dumb peons are not meant to know all the secret shit that goes on in the name of keeping us safe, right?

Jeebus.

Oh, Gee!!

12-22-2005, 03:31 PM

Well, that's just unanswerable, isn't it? Trust in W, because he is wise and good, and would never steer us wrong. We poor dumb peons are not meant to know all the secret shit that goes on in the name of keeping us safe, right?

Jeebus.

you're now a republican. God bless you.

Yonivore

12-22-2005, 03:32 PM

I have expressed my disagreement. We don't agree on this issue and never will I guess.
No kidding?

I just wanted to point out that you've lent no support -- historical, legal, or factual -- to your assertion that President Bush has violated the law or any articles of the U.S. Constitution in his employment of a secret NSA surveillance program to spy on foreign agents.

So, I'll leave it up to the readers of this forum as to who made the more persuasive argument; you or me.

xrayzebra

12-22-2005, 03:32 PM

there is a guarantee against unreasonable search and seizure and warrantless searches, xray, which is what this discussion is about.

Once you put it on the air, especially on an international basis, you have
not rights, none, nil, Nada. Got it. Otherwise, others, not just the good
old USA would not be listening to your conversation, dummy. Which part
of international do you not understand? You think we are only ones
monitoring phone/internet transmissions? Damn, you are stupid as a
doorknob.

Yonivore

12-22-2005, 03:34 PM

there is a guarantee against unreasonable search and seizure and warrantless searches, xray, which is what this discussion is about.
That's assuming two things...first, the searches were "unreasonable" and two, they are subject to fourth amendment protections.

You've shown no evidence nor have you provided any arguments to support either of those assumptions.

foodie2

12-22-2005, 03:34 PM

Once you put it on the air, especially on an international basis, you have
not rights, none, nil, Nada. Got it. Otherwise, others, not just the good
old USA would not be listening to your conversation, dummy. Which part
of international do you not understand? You think we are only ones
monitoring phone/internet transmissions? Damn, you are stupid as a
doorknob.

Here's a question for you. How do you know, since your President-King has seen fit to go around the Constitution, that he is confining his "activities" to international and foreign entities? Just blind faith and trust?

Yonivore

12-22-2005, 03:36 PM

Well, that's just unanswerable, isn't it?
It may be. But, considering the leakers didn't indicate any spying beyond what was reported in the New York Times, you can't point to anything that would make it suspect.

Trust in W, because he is wise and good, and would never steer us wrong. We poor dumb peons are not meant to know all the secret shit that goes on in the name of keeping us safe, right?

Jeebus.
Do these types of statements really lend any support to your position?

Oh, Gee!!

12-22-2005, 03:38 PM

That's assuming two things...first, the searches were "unreasonable" and two, they are subject to fourth amendment protections.

You've shown no evidence nor have you provided any arguments to support either of those assumptions.

because the burden is on the government to show that they either complied with the 4th or some valid exception to the normal rule. I say they didn't given the fact that they were so secretive about what they were doing as to not even avail themselves of a secret court that rubber-stamps 99.9999999% of the requests for warrants. You say they did and copied-and-pasted some googled articles.

Yonivore

12-22-2005, 03:39 PM

Here's a question for you. How do you know, since your President-King has seen fit to go around the Constitution, that he is confining his "activities" to international and foreign entities? Just blind faith and trust?
Well, since the current and former NSA employees who leaked the information, clearly violated the law I'm assuming they would have had no problem exposing any operations that exceeded what has already been reported.

You're jumping to conclusions that are neither supported by the evidence nor by those who illegally leaked the program in the first place. Don't you think these traitors would have leaked the most egregious violations committed by the President?

Answer: They did.

Yonivore

12-22-2005, 03:40 PM

because the burden is on the government to show that they either complied with the 4th or some valid exception to the normal rule. I say they didn't given the fact that they were so secretive about what they were doing as to not even avail themselves of a secret court that rubber-stamps 99.9999999% of the requests for warrants. You say they did and copied-and-pasted some googled articles.
Why? You've presented nothing that shows a violation of the 4th amendment protection against unreasonable searches. Nor have you given any evidence any law was violated. Incidentally, neither have those that leaked the secret program in the first place.

xrayzebra

12-22-2005, 03:41 PM

Here's a question for you. How do you know, since your President-King has seen fit to go around the Constitution, that he is confining his "activities" to international and foreign entities? Just blind faith and trust?

I guess since he went to Congress many times with what he was doing.
I want to ask you a question. How come you aren't questioning the Clinton
administrations actions, since they went into a US CITIZENS home without
a warrant and searched it. Since they had 500 FBI files of citizens of this
country. Since they TOOK foreign money for political purposes. Since they
went before a Congressional committee and said the President had inherent
powers to do warrant less searches. Give me a break, People who live in
glass houses shouldn't throw stones. You can go back in history and find
all the Presidents exercised their authority.

Oh, Gee!!

12-22-2005, 03:43 PM

Why? You've presented nothing that shows a violation of the 4th amendment protection against unreasonable searches. Nor have you given any evidence any law was violated. Incidentally, neither have those that leaked the secret program in the first place.

super-secret spying on US citizens which occurs and originates in the US without a warrant (either before or after the fact) is the violation. There's not an exception for that.

Yonivore

12-22-2005, 03:44 PM

I say they didn't given the fact that they were so secretive about what they were doing as to not even avail themselves of a secret court that rubber-stamps 99.9999999% of the requests for warrants. You say they did and copied-and-pasted some googled articles.
Actually, I said it is likely they will argue they couldn't use FISA because of restrictive language.

But, clearly, it is futile to discuss national security issues on a forum in which none of the participants have (nor should have) access to the necessary information to make a conclusive judgement.

I'll rely on my point that those who leaked the program would have -- since they were clearly violating the law anyway -- given the New York Times the most egregious instances of Presidential excesses.

If they have, then that is to what we should confine our arguments. If they haven't, well, how stupid are they? Risk prison for revealing a secret program that turns out to be legal? That's pretty stupid.

Oh, Gee!!

12-22-2005, 03:46 PM

Yeah, let's not question the King on the internets. Cuz that's how rumors get started

Yonivore

12-22-2005, 03:47 PM

super-secret spying on US citizens which occurs and originates in the US without a warrant (either before or after the fact) is the violation. There's not an exception for that.
Where have you heard it said that the spying originated in the U.S.?

And, there is an exception. I've already explained them; but, for your benefit, 1) reasonableness of the search, 2) executed pursuant to article II Constitutional powers of the President as Commander in Chief of the Armed Forces and responsible for the security of the country, and 3) Authority granted by Congress in the Use of Force in Afghanistan legislation.

Pay attention.

foodie2

12-22-2005, 03:51 PM

Do these types of statements really lend any support to your position?

What are you, the fucking debate police?

Yonivore

12-22-2005, 03:52 PM

Yeah, let's not question the King on the internets. Cuz that's how rumors get started
I was just saying neither you nor I have the requisite information -- nor do we even hope of having it -- to reach a conclusion.

But, even so; don't you think that the people who leaked this to the New York Times believed -- as you do -- that the President was doing something wrong or they wouldn't have leaked it? Further, do you believe that a person who is willing to stake their career and freedom on the premise that the public has a right to know about this program would bother to provide us with the most damning instances of abuse -- not those which have already been successfully argued to be legal and constitutional?

So, since the leakers didn't make an adequate case, you feel the license to start making shit up, like he was "probably" spying on regular people or "how do we know what he was doing."

Well, if he was doing those things, I'm presuming his opponents who actually were involved in the program and leaked the information to the press would have said so. Don't you?

Yonivore

12-22-2005, 03:52 PM

What are you, the fucking debate police?
Yeah, why?

Oh, Gee!!

12-22-2005, 03:54 PM

Where have you heard it said that the spying originated in the U.S.?

http://www.cnn.com/2005/POLITICS/12/17/bush.nsa/

The New York Times reported, and CNN confirmed, a claim that Bush gave the National Security Agency license to eavesdrop on Americans communicating with people overseas, the president said that his actions were permissible, but that leaking the revelation to the media was illegal.

I googled this and I will not take credit for its content. These are not my words.

Notice, Yoni, it doesn't say Americans overseas, it say Americans communicating with people overseas.

xrayzebra

12-22-2005, 04:05 PM

Yonivore

12-22-2005, 04:08 PM

http://www.cnn.com/2005/POLITICS/12/17/bush.nsa/

The New York Times reported, and CNN confirmed, a claim that Bush gave the National Security Agency license to eavesdrop on Americans communicating with people overseas, the president said that his actions were permissible, but that leaking the revelation to the media was illegal.

I googled this and I will not take credit for its content. These are not my words.

Notice, Yoni, it doesn't say Americans overseas, it say Americans communicating with people overseas.
Where were the NSA agents and the surveillance equipment when the spying was being conducted?

We weren't talking about upon whom they were spying but from where they were doing the spying.

If they're sitting in an embassy in Moscow, they're not exactly originating in the U.S., are they Einstein?

Like I said, we don't know enough. But, we do know the traitors didn't make any allegations like those you've started spewing.

Oh, Gee!!

12-22-2005, 04:12 PM

Where were the NSA agents and the surveillance equipment when the spying was being conducted?

We weren't talking about upon whom they were spying but from where they were doing the spying.

If they're sitting in an embassy in Moscow, they're not exactly originating in the U.S., are they Einstein?

Like I said, we don't know enough. But, we do know the traitors didn't make any allegations like those you've started spewing.

We don't know enough but we know that Dubya did nothing wrong and shouldn't be questioned? Wow.

Yonivore

12-22-2005, 04:20 PM

We don't know enough but we know that Dubya did nothing wrong and shouldn't be questioned? Wow.
No, I'm saying given what we do know, the general concensus is that he violated no laws or constitutional articles.

So, you've questioned. No one said you shouldn't. I believe the questions have been adequately answered and I've gone to great lengths to show why. You don't he's answered adequately but, you can't explain on what you base your disatisfaction other than a basic distrust of George W. Bush -- also on which you have provided no basis.

Oh, Gee!!

12-22-2005, 04:24 PM

No, I'm saying given what we do know, the general concensus is that he violated no laws or constitutional articles.

Where, on right-wing blogs and talk radio?

So, you've questioned. No one said you shouldn't. I believe the questions have been adequately answered and I've gone to great lengths to show why. You don't he's answered adequately but, you can't explain on what you base your disatisfaction other than a basic distrust of George W. Bush -- also on which you have provided no basis.

I gave my reasons but you disregard that. It's okay I've stopped taking anything you post seriously awhile ago.

Yonivore

12-22-2005, 04:26 PM

Where, on right-wing blogs and talk radio?
No, the New York Times article and every legal opinion cited in my previous posts.

I gave my reasons but you disregard that. It's okay I've stopped taking anything you post seriously awhile ago.
Really, list one reason you posted that shows what the President did was illegal or unconstitutional.

Oh, Gee!!

12-22-2005, 04:29 PM

nah, I'm bored. Merry Christmas

Yonivore

12-22-2005, 04:36 PM

nah, I'm bored. Merry Christmas
Merry Christmas to you too.

Yonivore

12-22-2005, 05:54 PM

http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf

Here you go Bush-haters. Can't wait to see your responses.

SA210

12-22-2005, 08:47 PM

Oh yes, i hear the impeachment talk. Did Dumbya get a blowjob?

boutons

12-23-2005, 05:26 AM

washingtonpost.com

Daschle: Congress Denied Bush War Powers in U.S.

By Barton Gellman
Washington Post Staff Writer
Friday, December 23, 2005; A04

The Bush administration requested, and Congress rejected, war-making authority "in the United States" in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today's Washington Post.

Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.

The Justice Department acknowledged yesterday, in a letter to Congress, that the president's October 2001 eavesdropping order did not comply with "the 'procedures' of" the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, "except as authorized by statute."

There is one other statutory authority for wiretapping, which covers conventional criminal cases. That law describes itself, along with FISA, as "the exclusive means by which electronic surveillance . . . may be conducted."

Yesterday's letter, signed by Assistant Attorney General William Moschella, asserted that Congress implicitly created an exception to FISA's warrant requirement by authorizing President Bush to use military force in response to the destruction of the World Trade Center and a wing of the Pentagon. The congressional resolution of Sept. 18, 2001, formally titled "Authorization for the Use of Military Force," made no reference to surveillance or to the president's intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation.

But Moschella argued yesterday that espionage is "a fundamental incident to the use of military force" and that its absence from the resolution "cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy." Such eavesdropping, he wrote, necessarily included conversations in which one party is in the United States.

Daschle's article reveals an important new episode in the resolution's legislative history.

As drafted, and as finally passed, the resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons" who "planned, authorized, committed or aided" the Sept. 11 attacks.

"Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."

Daschle wrote that Congress also rejected draft language from the White House that would have authorized the use of force to "deter and pre-empt any future acts of terrorism or aggression against the United States," not only against those responsible for the Sept. 11 attacks.

Republican legislators involved in the negotiations could not be reached for comment last night.
© 2005 The Washington Post Company

SA210

12-23-2005, 01:08 PM

It's all catchin up to the King now.

Aggie Hoopsfan

12-23-2005, 01:23 PM

ou right-wingers who hate the federal govt to death look silly when you trust the fed govt to be Boy-Scout honest and virtuous. aka, ideological blindess.

The assumption must always be that abuse will occur. So preventing or at least detecting abuse is central to any govt powers. Paranoia is expressed in the Constitution in the system of checks and balances, which assume that (unchecked) power will be abused, because power, like $$$, is always corrupting.

Late to the party here but...

Give it up croutons. It's not like they're spying on you visiting midget porn sites. They're going after bad guys.

I love how when it's brought up that Clinton did it, bleeding cunts like yourself scream Monica and persecution, but when W. does it (on a smaller scale than Cigar Boy) you all scream impeachment and corruption of power.

H Y P O C R I T.

Aggie Hoopsfan

12-23-2005, 01:28 PM

BTW, this cracks me up. You all act like they were spying on cute little Jenny down the street calling some guy she met on the internet that lives in London.

They were tapping conversations of people in the US talking with people in places like Afghanistan, Iran, Syria, Iraq, Sudan, etc.

Is there anything but illegitimate reasons for about 95% of Americans to be calling any of those places? :lol

SOme of you need to get out of your republican hating ivory fucking towers and join us in this place called reality where the bad guys won't rest until all Americans are either dead or bowing to Mecca five times a day.

SA210

12-23-2005, 01:37 PM

Big Bush Lies: Bush Lies, Then McClellen Lies In Cover-Up Attempt, Jerry Politex

"A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources....At the White House, spokesman Scott McClellan was asked to explain why Bush last year said, "Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." McClellan said the quote referred only to the USA Patriot Act." --Washington Post, Dec. 21, '05.

This is not true. Bush was explaining that there was no difference between wiretaps before the Patriot Act and wiretaps after the Patriot Act: "Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution." This was a lie, given the New York Times story on the subject on Dec. 16 and Bush's admission on December 17: "On Friday, the New York Times revealed that, after the 2001 terrorist attacks, Bush authorized the NSA to eavesdrop inside the United States without court-approved warrants. The newspaper said thousands of people may have had their phone calls and e-mail monitored as a result. Bush, appearing angry during his radio address, called the program lawful and crucial to safeguarding America from further attacks." --Houston Chronicle.

Dubya's words.