Snooping and Spying Oh My

There’s a huge rumpus about the disclosure that the NSA intercepted various communications within the US. Other people more knowledgeable than I have discussed the legality; I want to add one small point to the discussion.

First, I’m not outraged that they listened in. I hope they got useful intel.

But second, the boneheaded legal and administrative wrapper around this infuriates me and more, it undercuts the prosecution of the war.From what I can tell, the law (FSIA) allows the instant interception of communications – as long as, within 72 hours, a judge approves it. the track record of the judges in approving these things is pretty clear – they approve them. Per Orin Kerr, over at Volokh, what they did probably doesn’t pass the FISA test, although there may be other legally sustainable arguments that defend the Administration’s position. That’s not good enough when there is a clear and clearly legal path to the same result.

Why the heck didn’t the Administration go get those approvals?

It bespeaks either an insane arrogance, or more likely a sense of beleaguered isolation.

Both of those are good explanations of why it is that Bush has done so little, so late to maintain support for the war, and here I have been and am prepared to continue to be critical.

What is inexcusable to me is that no one inside the White House thought for a moment about the impact of revelations like this one on support for the war. It is a truism that this war will be won or lost here, at home, in our willingness to patiently move forward toward success.

Whatever undercuts that patience – whether the mutterings of Michael Moore or the blind arrogance of Administration officials who don’t understand how bad this makes them and the war effort look – deserves to be pushed back.

I don’t think the Administration has been competent enough in key areas like this. Sadly (or gladly, if you’re a Republican) my party doesn’t seem prepared to do any better.

92 thoughts on “Snooping and Spying Oh My”

  1. While I believe that you are correct in that there were lapses, I also believe that the record shows a remarkable number of “leaks”. I also believe that this was the reason, while being completely legal, (the use of the proscribed method was not used.) It is necessary that instant, not 72 hour responce is a necessity to make anti-terror teams workable. The major mistake being made by the left wing libs, is that they want to send an e-mail advertsing just exactly what is that we are doing.Damn them for this multicultural thought process. Guess maybe they think we should have sent another “team” to “talk” with Hitler. Well enough said, time to hit the sack. You all have a good evening, even those of you in New York walking home….lol
    Merry Christmas

  2. I’ve wondered the same thing.

    Alot of the hyperbole by the administration critics serves to hide what is I think a rather real complaint at the heart of this, which is simply, given that there would appear to be a legal and unambigious way to handle this – why go to a route that gives the appearance of extra legal activity?

    I personally don’t think that it was done in bad faith. The fact that they briefed Congress, made regular reports to the FISA court, and so forth seems to indicate that they wanted to do this in a way that at least appeared somewhat above the board. But if you go through those steps, why not go all the way given the very real likelihood that such survelence is going to be approved anyway?

    There are several possibilities. One is that there was some interagency power conflicts going on, and the President felt it necessary to go over the heads of a hostile bureacracy to get the job done. That’s semi-understandable, but not very satisfying in that it still dodges the basic question.

    I think a more likely explanation is that what we are seeing are reports about a program with technology that actually goes well beyond anything describable as mere ‘wiretapping’, to the extent that what really was going on was so secret that they didn’t even want to bring it before the FISA.

    I’m not an expert in telecommunications, but I know abit about how the internet works. It’s possible that if this was related to Echelon, that the techniques involved packet sniffing whole world electronic communications. In otherwords, they might have been veritably reading and sifting through EVERYONE’S ‘mail’ in order to find the desired information. There is some reason to believe that in a digital age when everyone’s communications spend time wireless, packetized and distributed, this is the only effective technique. It’s also possible that the program involves subverting foreign corporations and foreign national telephone networks. All these actions – which have probably been going on for a decade or more – would be potentially politically embarassing if the extent of them became fully known to our allies, and the degree to which we may be able to subvert foreign communication networks may be extremely sensitive for obvious reasons (Imagine for example that the Chinese telephone network contained embedded US spy trojans in its software. Imagine that we had hijacked foreign owned communication satellites.) Imagine also that the program involved subverted NSA created security systems such as SSH, the Diffie-Hillmen exchange itself, etc.

    Now imagine that this system was turned against domestic actors. It’s possible that this means that in one sense, the NSA listened to (and perforce electronically copied) every cellular phonecall in the US, in order to at least read the headers of all the packets. Even if it ultimately discarded all the packets that weren’t interesting to it, it still at least temporarily had a copy of everyone’s message. The implications of a distributed packet network in which everyone’s communications travels about like mail, and each address must be individually read before it can be determined who the packet belongs to is not something which are courts have yet addresssed. Current US law can’t cope with the technology. Even bringing up to a court the need to deal with the constitutionality of such a system involves admitting technical details of the system that we’d be very reluctant to reveal to anyone.

    This would go along way to explaining why the President felt it necessary to make a personal plea not to publish anything about the program, since the inevitable public inquiry will almost certainly bring speculation about the technical capabilities of the NSA to the fore and the domestic fallout over the program would then be the least of the US’s worries.

  3. Regarding the retroactive FISA rulings:

    What if DOJ/NSA did not think the legal burden [probable cause?] could be met for many of the intercepts?

    Furthermore, although the ultimate juducial decision may be relatively quick that ignores the legal groundwork that NSA/DOD/DOJ would need to complete just to present each new case to the FISA judge. I suspect that would greatly exceed the 72 hour retroactive deadline

  4. re #2 Swede:

    .bq It is necessary that instant, not 72 hour responce is a necessity to make anti-terror teams workable.

    You misunderstand – under FISA they can start tapping a line instantly, before a warrant is issued. They have 72 hours after that to obtain a warrant retroactively.

  5. The U.S. Signals Intelligence Directive, dated July 27, 1993, is the primary regulation governing NSA’s operations. It specifically states that there are different methods of authorization for the eavesdropping. One is by FISA, the other by the Attorney General. Section 4 is the relevant section.

    Under Section 4 of USSID 18, communications which are known to be to or from
    U.S. persons can’t be intentionally intercepted without: (a) the approval of
    the FISA court is obtained; OR (b) the approval of the Attorney General of
    the United States with respect to “communications to or from U.S. PERSONS
    outside the United States…international communications” and other
    categories of communications including for the purpose of collecting
    “significant foreign intelligence information.”

    Also, Clinton and Carter both signed executive orders authorizing similar actions.

  6. AL — the track record of pre and post 9/11 FISA warrants does not support your conclusion that FISA warrants present little or no problem.

    YES FISA warrants when presented to the court are almost always approved. No the process is fundamentally broken because the LAW itself has about eleven steps of major bottlenecks. Including reams of paperwork and no roving warrants. You have to by law describe in detail the phone or computer or what have you that you will use.

    This doesn’t match the guy who every day or so buys a pre-paid phone and throws it away for a new one, with rotating numbers he calls as part of SOP tradecraft. Given our complete lack of ability to infiltrate Al Qaeda and other terror cells who use people who are thoroughly vetted for planning and leadership (mostly extended family who’ve known each other for all their life) throwing away the only intel we have is suicidal.

    Read the law yourself it’s online at, about two weeks for heroics (about four man-months) just to get a warrant ready before a judge. It was written to tightly control the wiretapping process and keep it limited to the assistant attache for naval affairs at the Soviet Embassy or somesuch. It’s done it’s job very well, as FBI Whistleblower Colleen Riley pointed out in her 9/11 Commission testimony. The FBI could not get a FISA warrant ready before a judge fast enough to look at Mousaouie’s computer. Learning to only maneuver 747s not take off or land wasn’t enough. Nor was associations with terrorist groups.

    Choose one: effective anti-terrorist measures including surveillance of conversations or religious adherence to legalistic process and thousands or millions dead. Choose one but don’t carp when the choice is hard.

  7. Swede
    Read the law. the law permits instant wiretaps. You have to go to a judge within 72 hours of intiating it.

    Jim Rockford
    Your choise is false. If AQ is on the run and their CCI is unstable and time consuming do to both our success in hunting them down and their own secutiry needs there is plently of time to find to get a wire tap when you find someone. Stop being a coward. The choices you are offering do not make sense.

  8. To Robert M:
    Your assumption that Rockford is cowardly is completely false. You, on the other hand, are completely naive. AQ is always on the run – they live like that. Catching UP to them is difficult – catching them is harder if, as Rockford intelligently pointed out, we have to go through eleven steps of major bottlenecks to get a tap. You, sir, are not realistic. Do we want them or do we want to just say “I almost had them except for the part where they got away and killed all these people.”
    By the way, Celebrim’s analysis is partially correct – the headers of email and voice packets are read all the time. It’s how this Internet thingy works – the address just points us there. Headers are easy to sift through and collate. VPN services live like this.

  9. Facts not in.

    There is a case to be made that the NSA, operating overseas, can and should intercept all communications from suspected terrorists to USA phone numbers and vice-versa. The NSA should probably use as wide a net as possible, in order to gather as much information as possible.

    For domestic surveillance, however, the law is clear: you gotta have a judge approve of it, probably in the FISA court. How the heck this is supposed to work with rotating numbers, phones, and emails is beyond me. I assume the Patriot Act handles this? If so, it is one provision that I would make permanent.

    There are two types of intelligence operations, the sweep-it-all-into-a-big-database operation and the target-the-nut operation. Overseas, and on the interface points to overseas communications, I am in favor of sweeping it all up. Domestically, we need checks and balances to target the nut. Trying to apply one set of standards to the other type of operation will cripple our intel capabilities.

    In either case, the word is currently that this has been going on since Jimmy Carter, so there is nothing new here. It’s one thing to protest too much, it’s quite another to pull sensitive, old, secret operational data out into the public and have a fit about it. If the appropriate congressional panels want to have closed hearings, let them go for it. But it all reeks of partisan and wimpy politics to me.

  10. Three reasons have been given:

    1. Process too burdensome. But from what we can gather from “Byron York,”: its not the FISA court that’s slow, its the internal bureaucracy. Its just as cumbersome to get the A.G.’s approval to undertake emergency surveillance as the regular process to the courts. This smells of internal bureaucracy, the kind in which agent A has to get the approval of agent B, agent C, etc. to use their intelligence in a warrant and each of them has to get approval from officer A1, officer B1, etc. Didn’t anybody read the 9/11 report?

    2. Lower burden of proof. The government wanted to avoid having to show probable cause and use some lesser standard. This one doesn’t make sense to me.

    3. New technology. The government is doing something that doesn’t fit into our preconceived notions. There have been some troubling suggestions by Josh Marshall about the nature of such technology, but so long as only international calls are being monitored, I am not that worried. And with new technology, there are new opportunities to check invasions of privacy. How about a privacy algorithm?

  11. But this is not about domestic intelligence. Its about communications originating or terminating overseas with known terrorists. Simply routing their communications through American soil shouldnt interfere with the presidents ability to intercept that intelligence. That is his responsibility as commander in chief as directed by congress against Al Qaeda in 2001.

  12. I’ve been designing this system in my head, and the more time you spend thinking about it, the more you realize that it goes beyond anything the courts have ever had to deal with.

    If I had to guess, the system works something like this.

    Suppose you initiate or recieve a call from a foreign actor of interest. The system detects and records the call and then adds you a tenative person of interest list. Now, whenever you make a call, it adds anyone you talk to the tenative person of interest list as well (and hense anyone they talk to also, albiet at a slightly lower initial level of interest). Then it analysises the content of the call automatically, looking for a list of keywords (quite possibly also detecting the language that the call is in) and in particular keywords that appear within a certain time of each other and repeatedly. Based on this content it assigns the call a score, and based on that score it either increases or decreases the ‘interest’ it has in caller. If the interest goes below a certain level, it removes you from the tentative list and no longer bothers to examine who you associate with. If the interest goes above a certain level, or if a call recieves a very high score it flags it and sends the message to a human analyst who then scores the call and decides if more immediate action is required.

    So each contact between the foreign actor of interest and the domestic actor could create a temporary web of thousands of wiretaps and latent wiretaps as the system tries to automatically determine which of the people that the domestic actor contacts are part of his network (or cell) and which are just incidental contacts innocently in touch with someone who is in touch with someone who is the cousin of a terrorist – and for that matter who is just the cousin of a terrorist innocently living in the US and who is a business associate here to either provide aid and assistance or even undertake terror operations.

    Clearly, adding a domestic actor to the person of interest list and turning the system on them could violate the privacy of alot of innocent people in a fashion that even a FISA court would be skeptical of. Equally clearly, if you don’t want to miss _anything_, such a system is the best way to build up a picture of who knows who and make sure nothing slips by. For example, a person who knows someone who knows someone who talks to a terrorist, and who also by a different route knows a different person who knows someone who knows someone who knows a different terrorist might well be the real cell leader – even though he never talks directly to anyone overseas on a person of interest list (and so believes he’s protecting his identity).

    I almost hate to speculate further, because if I’m accidently on target with this wild speculation, I could end up providing clues to how to defeat the system. There are some things I can already think of that would drive a guy who was writing the code for or monitoring such an automated system simply banannas, so I think maybe I’ll stop here.

    One last note though, I don’t think such a system necessarily violates the 4th ammendment so long as a reasonable person could believe its actually searching for evidence of foreign agents and so long as that evidence is never used in a court of law. The 4th ammendment is already understood (in FISA and elsewhere) to have rather limited protection the context of intelligence gathering where a foreign agent is expected to be involved. Once does not have a ‘reasonable’ expectation of privacy if one associates with a foreign agent or a suspected foreign agent, even if the association is in fact innocent and wholly unknowning on your part.

  13. You guys are mostly confusing apples and oranges here.

    If you are doing true SIGINT (and I’m mostly an idiot here, just wildly speculating), you could care less about the person, you are looking at the battlespace — the millions and billions of snippets of communication floating around the ether.

    Sure, there are ways, such as celebrim’s, for scoring individual people and conversations. But this is data mining, which can happen in a zillion different ways.

    Let’s say there is another terrorist attack. In the investigation, we find that the terrorists used the code phrase “climb Mount Rushmore” as a code for the operation. At that point we go back and re-mine the database for that phrase, pulling out conversations (not necessarily persons) of interest and finding where those trails lead.

    There are a lot of permutations to this story, but the point is: I don’t necessarily care about the people at this early stage. I want the information — how many calls were made this week to suspected AQ operatives in the world? How many emails? Did that increase or decrease over last week? Yes — I can and do tie this information into the content and participants of the conversation, but the sweep has to be broad and deep. Ideally, I would want every word from every communication system in the world cross-referenced and indexed.

    Now once you begin investigating a person, with a real FBI file and everything, you are making a criminal case and the rules change. The constitution governs how the state treats each person.

    NSA is not doing criminal investigations nor should it care about criminal cases. It’s doing SIGINT, which is another can of worms. You can take the constitution out and try to destroy their work, but you do so at your own peril.

  14. Judge Posner, who IMHO wrote one of the best critiques of the 9/11 report, has some thoughts in today’s “Washington Post”: about domestic intelligence gathering. He wants more of it, particularly like Able Danger.

    bq. The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.

    I think the Judge is going further than Celabrim is contemplating and he doesn’t seem over concerned with the Constitutional issues. He argues that there is privacy in the anonymity of a broad-based computer search, no fear of political or economic blackmail because (ironically) the government leaks like a sieve, and civil liberties are protected because the data cannot be cursed for criminal prosecutions.

  15. Great Comments Folks

    Especially, Jim Rockford and Celebrim.

    Scroll the comments thread I linked to at Atlas Shrugs above.

    OT do you see what’s evolving here? The enormus collective intellectual power of an intelligent of an evolving distributive computer network with intelligent nodes. The Blogos!



    [Marie Antoinette]

    All’s fair in love and war. I guess let them eat cake too!

    Bottom line is this Country is at freaking war with a very cunning, embedded, dangerous and asymetrical enemy that hides in the shadows. The enemy’s objective is to destroy our very way life, culture, and all that we hold dear. The GWOT is really a clash of ideologies, cultures and religions. It should be more aptly called the War Against Islamofascism.

    During times of peace the normal paradigm of the criminal justice system can plod along. This paradigm is ill prepared to fight this war. During normal times FISA is appropriate, but in times of war it’s too plodding and slow to respond to an enemy’s moves and countermoves. The legal system needs to take a backseat. The US Supreme Court has recognized the need to give the Commander and Chief broad lattitude during times of hostilities. Imagine a company commander seeking direction from deliberative bodies while engaging the enemy on the battlefield.

    The concept of “first responders” is inherently flawed as it implicitly gives the enemy first strike capability. You can’t win a war by playing defense. You can’t defend all the potential targets from attack. You must play offense and disrupt the enemy before it can attack. The consequences of an enemy attack are now too great to allow a strike. Besides because of the ideological beliefs of the enemy agents, they generally blow themselves up in the attack so there isn’t anyone left around to prosecute anyway. In short you must go for the ball.

    As a LE professional of some thirty-five years, I don’t think the founding fathers intended to extend our constitutional rights to the enemy.


    Marie Antoinette,

    Follow the links in my comments above and you will find your answers.

    Yes, in a perfect world, the judicial review of electronic surveillance would be the order of the day. And I operated within that framework. But think for a moment why the enemy was successful in its 9/11 attack. The 9/11 commissions all found key elements were lack of imagination, creativity, innovation, and sharing info/intel by and within the domestic law enforcement agencies.

    The short answer is that our organizational structures became too “bureaucratic,” self-perserving, and risk adverse to detect and respond to the enemy’s attack. While on paper, the procedures of the FISA appear appropriate and necessary for normal times, but these are not normal times. Nor is this a perfect and rational world. Nor is the enemy and it’s ideology something that can be reasoned with. Our ideologies are diametrically opposed e.g., good vs. evil.

  16. Daniel Markham: I think the suspicion here (or at least mine) is that the line between data-mining and communciations surveilance is being blurred by technology.

  17. Read “this”:,0,3553632.story?coll=chi-newsopinioncommentary-hed by John Schmidt, Bill Clintons former associate Attorney General.

    Money quotes:
    “But even if the NSA activity is “electronic surveillance” and the Sept. 11 resolution is not “statutory authorization” within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, “encroach upon the president’s constitutional power.””

    “I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again”

    _Exactly._ Note that Schmidt is a democrat (ran for the democratic nomination for AG of Illinois in 02) and worked for Bill Clinton in the Justice Dept.

  18. PD:

    Then you build a chinese wall around the SIGINT work, and set up rules about how the information transfers from SIGINT to criminal cases. This has been done in the corporate world for decades.

    This is the way you solve the problem, not by trying to take a wonderful document (the U.S. Constitution) which is meant as an internal social contract and trying to apply it to intelligence operations. (which should not directly impact the relationship between the state and the people)

    Don’t get me wrong — I don’t want anybody knowing who I call or what I say. But I think we can certainly fix the system so we all don’t have to worry about that. Ranting and hand-waving might be a lot of fun, but really it’s just a simple problem that can be simply solved. Not sure that there’s a lot of votes in solving it, though.

  19. Hey folks this just went up at The American Thinker. Great piece on the double standard of the media:

    NSA Eavesdropping and Media Double Standards

    December 21st, 2005

    There’s an old saying: What’s sauce for the goose is sauce for the gander. When it comes to mainstream media reporting, nothing could be further from the truth.

    No finer example of a media double standard has been recently evident than in the furor that has evolved over revelations of National Security Agency eavesdropping. To be more precise, the press response to The New York Times report on this subject last Friday is in stark contract to how they reacted in the ’90s when the Clinton administration was found to be engaging in extraordinarily similar activities.



  20. Fundamental to the American way of life, and to our understanding of the relation between government power and citizens’ rights, are *checks and balances* and *separation of powers*.

    Our Founding Fathers were deeply and rightly suspicious of concentrated power, and they designed the Constitution to prevent it.

    The reason the FISA court is so important is that it represents the Judicial branch, providing a check on the power of the Executive branch. When President Bush assures reporters that there are all sorts of oversight on the use of these powers, he is being disingenuous. That oversight is voluntary oversight of the Executive branch by itself, not an example of checks and balances.

    If the Administration can establish their right to avoid constraint by the Judicial and Legislative branches of government, as long as the GWOT continues (decades? centuries?), then you can kiss the American form of government good-bye. Sure, we’ll still have courts and elections, but they will just be window-dressing over Executive power.

    And even if you trust the guys currently in power (which I don’t), you have to know that absolute power corrupts absolutely, so the future only gets bleaker.

    Sure, there’s an enemy to fight, and there’s lots of interesting and difficult technical dilemmas to solve. But if we abandon the Great American Experiment, anything we gain will all turn to ashes.

  21. Good grief.

    Yes. The system has to work such that we should not trust the government and there should be checks and balances. The criminal justice system, that is.

    Phrases like “abandoning the Great American Experiment” overstate the case. If this has been going on since Jimmy Carter, give it a rest.

    If the president takes any action to limit my freedoms, I want full protection of the constitution. So demonstrate how this would do that. Please. And then we both can have a concern to address.

  22. This just up from the legal eagles at Powerline:

    December 21, 2005
    It’s Legal

    John Schmidt, associate attorney general of the United States in the Clinton administration, superbly explains why the NSA intercept program is legal under all authorities and precedents:


    Read More


  23. “I think the Judge is going further than Celabrim is contemplating and he doesn’t seem over concerned with the Constitutional issues. He argues that there is privacy in the anonymity of a broad-based computer search, no fear of political or economic blackmail because (ironically) the government leaks like a sieve, and civil liberties are protected because the data cannot be cursed for criminal prosecutions.”

    I wouldn’t go so far as the Judge.

    The same system which in one situation reasonably protects ones privacy becomes intrusive depending on what you mine out of it, and whether that information can cross barriers to other branches of government. Even if the original information is ‘cursed’ by virtue of being acquired without a warrant, if that information can be used as a stepping stone to warrants or more to the point, to some other form of harrassment, then the government can intrude with such systems.

    The real protection is probably to avoid putting vague laws on the books which criminalize vague things, like for example ‘hate speach’.

    I think Daniel is probably on the right track. However, I would be rather surprised if the information storage capability for storing ALL the world’s communication exists – even if the means to collect it existed. I could of course be wrong, but my guess is that the world’s communication is in the tetrabytes per day range and possibly even in the pentabytes per day range, and as such you’d want to do some sort of initial filtering. But then again, perhaps we are at the point were storing tetrabyes per day is practical. Certainly Google seems to do a pretty good job of indexing a reasonably large slice of the world’s communication on a daily basis.

  24. celebrim.

    A little off-topic, but in a former life I was a large systems architect. Yes, you’d use something like the Google model with cheap boxes, lots of cheap storage, redundant file and operations capability. I would guess daily world traffic to be somewhere in the tens of TBs. (once digitized and transcribed) But that’s just a guess. That would put ten-year storage at somewhere around 100PB. It’s doable.

  25. I concur with your main point; the administration could have done more to legitamize its actions, rather than simply use its presidental powers. (an important aside is that the presidental powers are ‘legal’, but not in the same sense as following the FISA process).

    We don’t know why the gov’t chose to do it this way. Lots of interesting speculation in this thread on this issue.

    My take would be to boil this down to a very sharp contrast. In order to be most efficient and effective in attacking the enemy, the gov’t must act in an extra-legal manner. This would include (but not be limited to) no presumption of innocence, no civil liberties protections, no due process. That is how to fight a war, that is consistant with our war-making history.

    This is unquestionably very inconvenient politically because the enemy is resident in the USA and in friendly contries, meaning that war-making involves violating civil liberties of persons (enemies perhaps)in friendly areas.

    This provides a very understandable explaination as to why the gov’t has acted this way. If you beleive we are at war then these actions have precident and are appropriate. If you believe we should approach this via “legal” means then extra-legal measures look rather dictatorial.

    My Blog:
    “Political Fred”:

  26. Daniel Markham, Patrick:

    Re: Carter, Clinton did the same thing.

    “That is absolutely untrue”:

    “More here.”:

    Given that your statement is completely untrue, if you wish to be taken seriously, then abandon that claim.

    And given you got such an easy thing wrong, at this point, there is no reason to listen to anything else you have to say.

    You can make a case that the rules for spying need to change to adapt to the new reality, as both the President and “Judge Posner”:
    have done.

    But as Alberto Gonzales also said, there was a discussion to go to Congress and have them change the law – and they decided NOT to pursue this course, because they did not believe they would get the votes.

    Nevertheless, they went ahead anyway.

    You can consider them patriots for this, if you wish – I don’t, and neither does Bob Barr, and “George Will”: disagree, as do a “bipartisan group of senators”:

    But in the meantime, the Bush administration broke the law, and must face the consequences for that. You do the crime, you do the time.

    That’s the conversative thing to do.

  27. From the Minneapolis Tribune
    “…This isn’t about the spying, although that’s a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago — on the last occasion that the executive branch abused its power so broadly.

    In defending this secret spying on Americans, Bush said that he relied on his constitutional powers (Article 2) and the joint resolution passed by Congress after 9/11 that led to the war in Iraq. This rationale was spelled out in a memo written by John Yoo, a White House attorney, less than two weeks after the attacks of 9/11. It’s a dense read and a terrifying piece of legal contortionism, but it basically says that the president has unlimited powers to fight terrorism. He can spy on anyone, arrest anyone, and kidnap anyone and ship him to another country … merely on the suspicion that he might be a terrorist. And according to the memo, this power lasts until there is no more terrorism in the world.

    Yoo starts by arguing that the Constitution gives the president total power during wartime. He also notes that Congress has recently been quiescent when the president takes some military action on his own, citing President Clinton’s 1998 strike against Sudan and Afghanistan.

    Yoo then says: “The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. … The President’s power to respond militarily to the later attacks must be correspondingly broader.”

    This is novel reasoning. It’s as if the police would have greater powers when investigating a murder than a burglary.

    More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House’s initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.

    Yoo’s memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that “the Joint Resolution is somewhat narrower than the President’s constitutional authority,” but argued “the President’s broad constitutional power to use military force … would allow the President to … [take] whatever actions he deems appropriate … to pre-empt or respond to terrorist threats from new quarters.”

    Even if Congress specifically says no.

    The result is that the president’s wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical “War on Terror”: a war with no fronts, no boundaries, no opposing army, and — most ominously — no knowable “victory.” Investigations, arrests and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain “at war” for as long as he chooses.

    This is indefinite dictatorial power. And I don’t use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

    This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.

    This is not a partisan issue between Democrats and Republicans; it’s a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don’t want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter.

    Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we’re all less safe as a result.”

  28. LOL.

    Oh come on, do a little research. Your first link refers to Echelon, “…We do not collect against U.S. persons…” which is not what I am talking about. The second link simply quotes the first, specifically referring to “…Attorney General is authorized to approve physical searches…”

    Hey look. If I’m wrong, I’m wrong. I’ll gladly admit it. I’m not an expert nor am I pretending to be one.

    “…And given you got such an easy thing wrong, at this point, there is no reason to listen to anything else you have to say…”

    ROFL! Hey that’s a good one. If I post one thing that is untrue, then everything I post must also be untrue. That’s pretty funny.

    Once again, you are mixing apples and oranges. Domestic criminal cases are NOT the same as singals intelligence, even though there is some conceptual overlap. If you don’t understand the terms and definitions of the discussion, how can you contribute in a positive manner?

    And if I’m wrong, I’ll freely admit it. I’m simply trying to help out. I have no desire for the president to have unfettered powered to surveil the American public. I believe the law should assume the presidnet is an evil powermonger — that’s the way it’s supposed to work. I haven’t seen proof of those powers, though. All I see is a bunch of hand-waving and yelling.

  29. Armed Liberal,

    Do you often allow comments like Jeff Feagles? Like you – guess what – I’m an Armed Liberal, more than capable of defending myself – and I would think that comments like that can get out of hand pretty quickly.

    What say you?

    This is A.L. – I just checked the site, and it appears that the offending comment was removed already. I’ll leave this comment up but prune any that follow this.

  30. By refusing to discuss the full extent of the Clinton actions, thinkprogress and dailykos succeed at debunking only a slice of the claims being made. For example, you do not address the points made by Ron Wright citing the American Thinker article. In particular:

    “But government officials decided in the Ames case that no warrant was required because the searches were conducted for ‘foreign intelligence purposes,’ a goal of such vital national security interest that they said it justified extraordinary police powers.”


    “Citing national security concerns, federal agents have continued a cold war policy of secretly searching the homes and offices of American citizens suspected of aiding foreign powers.

    “These ‘’black-bag jobs,’’ conducted without court orders, have gotten the go-ahead from President Clinton and Attorney General Janet Reno, just as they did from two previous presidents.”

    If these wiretaps were initiated after contact between a US citizen and a known or suspect foriegn agent, then it would seem to me at least reasonable to argue that these actions are consistant with past US policy – whether or not you believe that present and past US policies are legal.

    I believe that you are correct in saying that Patrick mischaracterizes the document signed by Jimmy Carter, but I do not believe that you have come close to successfully showing that there is no correspondance between the position taken by the Clinton administration and the Bush administration so you are abit premature in demanding that such claims be abandoned if rational debate is to continue.

  31. This is A.L. – Comment deleted.

    Folks, this isn’t Kos or Free Republic. Personal invective isn’t welcome here, and vaildog, this is your final and only warning. Another comment like this and you’re banned from WoC.


  32. Tom: I don’t mind you linking to articles, but could you stop with the cut and paste jobs. See JC’s post for how you are supposed to do such things.

  33. JC — I thought he was making a reference to the _other_ JC. Not a good joke, but I don’t believe directed at you. But it’s hard to tell.

    Tom. That was a great post. This issue is easy to get lost in the weeds. The president has broad authority outside the United States which cannot be constitutionally limited by Congress, I believe. (I am sure someone will correct me). For instance, a counter-terror unit in the Horn of Africa that picks up OBL would have much broader freedom than the FBI picking him up in NYC. I believe this is just basic executive power, which has been around since Washington.

    Likewise, a signals intelligence unit operating in Great Britain has different rules than the same outfit working in Maryland.

    Surveiling a specific person inside the United States is a different thing entirely. This is what FISA is for. But that is different than blanket traces and taps, which do not have a law enforcement purpose. If you cannot be arrested or have your freedoms taken away by such activity, there is no danger to the constitution, imo.

    This is a bipartisan issue. But it’s also a rhetorical bombshell. As you said, assume that the president you hate most is in office, and ask yourself if you would want him to have these powers. But keep in mind that terrorists are going to strike the US with WMD, it is just a matter of when. You don’t have to be extreme on either side of this, but you do have to understand the basic facts.

  34. Daniel,

    You may be right – hard to tell, when all you see is – well, what’s gone now.

    All the commenting I’ve done, I hadn’t seen THAT particular threat before, so I reacted.

  35. Interesting thread (except for the little blip), but I don’t think I made my core point well enough.

    There’s an interesting legal discussion to have around this, but it is laregly irrelevant. The reality is that this is extremely damaging to the case for the war, and as the Administration seems to be blind to the need to make that case, it’s of a piece with the other blunders in morale-building that the Administration has committed.


  36. Yeah AL, but that kinda misses the point.

    Let’s Assume that fighting the war has some sort of “popularity quotient” — we must do things in a popular way in order to continue support for the cause.

    We’re doing legal but unpopular things all the time all over the world. You think half of the countries we’re running ops in want that news to appear on CNN?

    Whoever leaked this did so in an attempt to make the war unpopular. Lives may be lost because somebody wanted to score political points. And it’s a game you can play all day — we’ve got enough secrets that you could just leak one every couple of months or so, keeping up the public pressure to stop the GWOT. This month it’s tapping, next month it’s torture, then it’s rendition, then covert operations, then secret agreements, etc. Somebody, somewhere is making sure we’ll all have blogging material for the foreseeable future.

  37. AL I disagree 180 degrees. Its the legal dustup that is hiding the key point, that the president must have the ability to execute ‘force’ against Al Qaeda to protect this country. Not to be demagogic, but if listening in on a conversation bewteen Zawahiri in Pakistan and Mohammed Attah in Boston (something similar “actually”: happened) without a warrant could have prevented 911, would any sane person complain? Its too easy in this conversation to forget exactly who this program was aimed at.

  38. One reason for the Administration not bringing the cases before the FISA judges that hasn’t been mentioned much yet is lager mentality. For which they have some basis.

    I also wonder if the technology of automatic data gathering and analysis hasn’t completely transcended the notion of “probable cause”. Do lawyers these days typically receive much training in statistics or network theory? Presumably expert testimony would be required which would add another level of complexity in meeting the timeframe.

    Still, I want to reserve judgment on both the legality and the prudence of the President’s actions. I don’t really know enough at this point to make a judgment. As I wrote this morning I think there are good political reasons why Congress might not want to press this issue too hard.

  39. AL: Whether its a good idea in general depends on what the heck the President is doing. When you get away from the President is always/never right p.o.v., I think the rest of us would want to know a little bit about how effective the program is and how extensively it touches on personal information and how much of an impedement a special magistate’s approval is.

    Problem is we’re all blind men trying to describe a camel.

  40. #37 Political Fred

    You get the gist of this debate!

    You just cut through all the BS!

    The key issue is how to protect the civil rights of the American people while at the same time waging war with an embedded enemy both from within and without the US that has a religious fanatical ideological zeal and demonstrated drive to use weapons of Armageddon.

    Further this enemy has been waging this war since it’s decline in the 12th Century. Mind you the Marine Corps Anthem, “From the Halls of Montezuma, To the Shores of Tripoli; . . .” reflects our last battles with the world of Islamofascism. It was the Barbary Pirates of Tripoli that the EU was paying tribute to that we embarassed into finally taking action by sending in our Marines.

    We only somewhat last took notice of this ideological war on 9/11. This enemy is very determined and has a long-term frame of reference unlike our constant demand for immediate action and gratification.

    This debate is centers on the classic ethical dilemma of the good of the many vs. the good of the few.

    In another thread I linked to a quote by Abraham Lincoln for historical perspective:


    HT The Belmont Club

    A very cogent discussion re the disclosure by the NYT of the NSA signal intercepts of enemy communications during time of war at The Belmont Club.


    Also President Lincoln had similar difficult decisions to make in time of war as noted by the No Left Turns Blog at the Ashbrook Center for Public Affairs at Ashland University


    No Left Turns


    Update: The estimable Herr Professor Doktor Schramm beat me to it (below). I’ll add a little to the mix, from Abraham Lincoln, who deserves even more space on this issue than I’m going to give him:

    I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. Nor am I able to appreciate the danger, apprehended by the meeting, that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong ! an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.

    The real root of the debate is how serious the threat posed by al Qaeda and its allies is. President Bush takes the threat seriously. Do his critics?



  41. A.L.

    I totally agree that this administration until very recently has not stated the case for war against Islamofascism very well.

    I don’t know what they are afraid of unless they don’t want to take the sticks and stones of the LL and the MSM.

    They won the election and are in power. Speak clearly to the American people with the high stakes that are in this war. I give the American people the credit to understant and unite to win this war. In essence this is a war of information and validity/credibility of our ideology to meet the needs and wants of its people.

    Our core value of the free will of men and women is why our ideology will prevail.

    I give the American people credit to understand this if the LL and the MSM would quit filtering/blocking objective information in their penchant for aiding and abeting the enemy in this war.

  42. While I remain unoutraged, one of the problems I have with the President’s position is in the implications of relying on Congressional authorization to take all necessary action against al-Qaeda.

    Now if you’re an advocate of Dan Darling’s (Gunaratnan) analysis, the President’s actions are not alarming. Al-Queada is a foreign power with an organizational structure to be discovered and defeated.

    But the President seems to have made some statements that suggest he views al-Qaeda as becoming more of an idealogical movement (Burkean). How you view al-Qaeda makes a big difference in the scope of the President’s actions. Dan has wrote about the differences “here.”:

    Al-qaeda, foreign power or foreign idealogy?

  43. AL-

    bq. The reality is that this is extremely damaging to the case for the war, and as the Administration seems to be blind to the need to make that case, it’s of a piece with the other blunders in morale-building that the Administration has committed.

    I very much agree with this point, AL. But I humbly submit that if you can’t get the denizens of a relatively moderate pro-war blog like Winds of Change to agree with your point (or even parse it properly), then the chances of anybody getting the Administration to change their stance on the matter is virtually non-existent.

    So follow the chain of reasoning from there, AL. What does having an incorrigibly ham-handed administration in charge of the WoT imply about the future prospects of that war?

    And Daniel:

    bq. Whoever leaked this did so in an attempt to make the war unpopular.

    Life’s so much easier when you can reduce the motives of people who disagree with you to base political motivations, isn’t it? They _can’t possibly_ be concerned about civil liberties and unchecked executive power, it’s always all about bringing Bush down.

  44. Celebrum

    I think your on spot. I remember right after 9-11 a lot itel and taps that after being sorted through made putting 2+2 together posible although it didnt happen becuase their was not enough analyst to process it all. I remeber that sent NSA in two directions one mad hiring of Arabic speaking analyst and the other tech that could use a data minner to key word search intel like a dog for a hunter or the analyst that would only analize relevent hits flushed by the tech. I think this tech became a reality and along with the jump in analyst was ready for mass production use. This would have meant FISA cases en-mass with most of the taps not even being analized so was thier privacy even broken??? Of course such a program would have major risk of abuse like changing the key to more like those used by China but what military tech and especially intel tech is not capable of extreme abuse, a certian amount of trust must be given to those in gov and at a min they should be considered innocent until proven guilty.

    That last statement is part of the reason why these leaks should be chased and prosecuted to the max, the allowing of excuses for breaking and withering of that trust that is given to our elected and gov officials is a slipery slope one man may not see the need for “classified” on certian info but the allowing of the officials to make the determination after the classified stamp has been placed in one case sets the example that exemption maybe OK in his case too even when it maynot.

  45. “…Whoever leaked this did so in an attempt to make the war unpopular.

    Life’s so much easier when you can reduce the motives of people who disagree with you to base political motivations, isn’t it? They can’t possibly be concerned about civil liberties and unchecked executive power, it’s always all about bringing Bush down…”

    I may have overstepped here, and if so, I apologize. It remains to be seen whether this is a foreign government, partisan hacks, or just random noise. Whatever it is, the constant drum of leaked intelligence and feigned outrage is not good for the country.

    As far as being concerned about civil liberties, I believe a leaker would have a moral obligation to resign before leaking such damaging material. After all, presumably people’s lives are at stake. To keep your job and then lob sensitive information out to the NYT is not honorable, in my opinion. At the very least, it is self-serving (believing your viewpoint to be better than those in your chain of command but lacking the conviction to take a stand) and slimy. It reeks of not winning the debate the first few times around, so “going around” the system to make a public stink. In my book, that’s politics, no matter who does it.

    Note that this argument does not apply for the Pentagon Papers or Deep Throat, which were not about personal opinions but disinformation from public officials. In that case, the leaker obviously is setting the record straight.

  46. The New York Times story is a characteristic “made-up” story – one which has nothing new in it but is promoted as though it did. The Los Angeles Times has a story speculating that the real motive of the New York Times is to promote a forthcoming book by a NY Times reporter. Here is a link to that story and a quote of its first two paragraphs:,1,1407570.story

    Critics Question Timing of Surveillance Story
    The New York Times, which knew about the secret wiretaps for more than a year, published because of a reporter’s new book, sources say.

    By James Rainey, Times Staff Writer

    The New York Times first debated publishing a story about secret eavesdropping on Americans as early as last fall, before the 2004 presidential election.

    But the newspaper held the story for more than a year and only revealed the secret wiretaps last Friday, when it became apparent a book by one of its reporters was about to break the news, according to journalists familiar with the paper’s internal discussions …”

    Screaming by other parties is due to their objection that a Republican is President. The NY Times story is being used by them as a vehicle to express their indignation that a Republican is President. It is perfectly OK with them if a Democratic President does it, and they have. Democratic incumbents add an additional motive – this is a fund-raising opportunity (well, so is everything else, but some are more lucrative than others).

    The Drudge Report has, at the moment, links to Executive Orders by President Carter in 1979, and President Clinton in 1995, authorizing the Attorney General to “to approve electronic surveillance to acquire foreign intelligence information without a court order”. Here are the links:

    1979 Carter:

    1995 Clinton:

    Both refer to “sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 (“Act”) (50 U.S.C. 1801,et seq.)”, so it is that statute which authorizes monitoring & surveillance of all electronic communications to and from foreign countries.

    As far as I know, every President starting with Carter has used this statute to authorize the Attorney General to approve warrantless national security searches, which includes “wiretaps” of all electronic communications betwen the U.S. and foreign countries.

    Approval of a judge under the Foreign Intelligence Security Act is required for searches within the U.S., and for wiretaps of electronic communications where all parties are present within the U.S.

    I repeat, if the communication goes overseas, no warrant is required if the Attonrey General approves. If the communication does not go overseas, a warrant is required.

  47. Denial and delusion are not strategies. 9/11 was not a one-off: Beslan, Bali, Bangladesh, New Delhi, Madrid, Istanbul, Tunisia, Sharm-el-Sheik, London, Amman, the Lodi Cell, the Lackawanna Six, etc. Al Qaeda far from being dead and broken has killed more people than ever. All over the world.

    There are other players in this issue. The American people. After 9/11 there were no mobs, no burnt Mosques, no attacks on Muslims. If the Law and Government puts process and dry legalisms to placate “Malibu Mansion” Liberals and the Media then people will decide to act for themselves. Like Prohibition it will be ugly. The Law and legitimacy are fragile things. Don’t be on the side of keeping the average guy safe and he’ll act for himself. You won’t like it either.

    I’ve said it before and I’ll say it again. On this issue GWB has been a great defender of civil liberties by taking measured action to forestall the mob.

  48. I don’t know what they are afraid of unless they don’t want to take the sticks and stones of the LL and the MSM.

    Perhaps they’re afraid of the competing strategy: isolationism. If the American people understand the scope of the problem, there may be a great temptation to retrench from despair. This would be damaging to the United States and to the world at large. Not to mention the Hamiltonians who continue to form a critical leg of Bush’s support base.

  49. The Media, the NSA and the PATRIOT Act

    HT The Counterterrorism Blog

    A usefule addition to this discussion.



    A former FBI collegue of mine, Clint Van Zandt, wrote the commentary set forth below. It offers a thoughtful, well articulated perspective about the PATRIOT Act and issues concerning our civil liberties and national security.

    The media, the NSA and the Patriot Act
    Former FBI Profiler Van Zandt shares his thoughts on privacy and security
    By Clint Van Zandt
    MSNBC analyst & former FBI profiler
    Updated: 4:28 p.m. ET Dec. 20, 2005

    Does the National Security Agency (NSA), also known as “No Such Agency,” listen in on your every telephone call and track you every time you use the Internet? Does the FBI use the Patriot Act to find out what library books you check out? Both of these allegations could not be further from the truth. But were you to get your news from only certain elements of the media, you might believe them.



  50. HT Powerline

    John Hinderaker is having an email discussion with the NYT over whether their story really contains a “scoop.”



    December 21, 2005
    A Colloquy With the Times

    Reporter Eric Lichtblau of the New York Times responded to the email I sent earlier today; we had the following exchange.


    Read More


  51. One, that know one sees that regardless of the legal debate this is a ham handed thing to do have to be the same people whom wanted Clinton impeached for lying about f@#$%^& a woman in the White House with a cigar. So let’s just impeach this President and get it over with.

    Two this is abuse of authority because the case is made before the FISA court specifically designed to deal with the situation. What is more likely to have happened is the President did not want the court to see whom they were spying on. As to the issue of technology this is the court where precedent is set regarding technology and its use in domestic surviallance and security. Just like in a court case involving proprietary business information it can be given to a judge on the record without it being introduced into the record. Of course since everyone here supports Tom De Lay and his abuse of the grand jury by subpoenaing the grand jury participants this is now a real threat. Damned by your own actions eh

    Three, while I totally disagree with AL’s dismissal of it being necessary why does the President always act as though he is the law? The authorization does not allow him to do whatever the hell he wants; see here:
    further realizing that the leaks about this are coming from the NSA it is clear they do not want to hold the bag for this illegal act; see here:

    Four, the strategic value of the USA as a country of laws not men is not some play thing that one gives away.Machiavelli reminds the Prince that men will fight and hate more for the lose of their patrimony than there fathers. Our patrimony is the finest rule of law institutionalized in our Constitution. I’ll fight you and the Jihadhists before I give that up.

    Five, this acting above the law is not a choice between suicide or survival. It goes to the heart of the issue which is the difference between _US_ and the Jihadists. For them their is no law but that of the reward of _GOD_ in Paradise. For us it is the rule of law among men. Why should we become Jihadists? Why should we surrender our moral authority in the world to them?

    Damn bring back duels so I can deal w/ you cowards.

  52. PS If the President is right that outing the program will cost American lives why was he willing to out an undercover CIA agent whom dealt with nuclear profliferation and guaranteed the death to just about anybody she spoke to in foreign countries? Isn’t the biggest legitimate fear that somehow AQ will get its hands on nuclear weapons and/or material? Where is the outrage Cowards?

  53. The New French Connection

    #62 Robert M.

    A little OT but since you bring it up.

    Apples and Oranges here. Joe Wilson was a source of disinformation whether knowingly or not. He has been discredited in any number of different ways.

    I believe the administration was trying to warn off friends in the MSM that this was a rabbit hole they didn’t want to go down. Plame was collateral damage . Further it’s apparent her current undercover status does not fall within the federal criminal disclosure statute. Hence it’s MOOT legally!

    Now really OT – check this out. Perhaps the whole Plame-Wilson Affair was a clever disinformation operation carried out by high level French intelligence to cover the butts of the French government who were up to their eyeballs in the UN Oil for Food Scandal while at the sametime playing the “holier than though game” at the UN Security Council.

    Notice any correlation between their “no” vote and the French UN Ambassador pulling the rug out from under then Secretary of State Colin Powell at the same time.

    See this thread over at Dean’s World:


  54. Robert,
    Your comments just flatly are not serious. This issue needs serious adult participation and those kind of comments are not meeting that burden.

    When there is such a real question about the interpretation of the relevant statutory and constitutional authorities, claiming that the President’s authorization to the NSA as an abuse of authority is clearly hyperbole.

    The cheap namecalling you engage in just lowers my opinion of you marginally more.

  55. Life’s so much easier when you can reduce the motives of people who disagree with you to base political motivations, isn’t it?

    Perhaps you should put that question to the folks with their hands over their ears chanting ‘Bush Lied!’ and accusing him and everybody who supports him of dishonesty, arrogance, greed, and/or cowardice. You could start with Robert, a little further up this thread, since he’s handy.

  56. Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal.

    ….Presiding Judge Colleen Kollar-Kotelly…told fellow FISA court members by e-mail Monday that she is arranging for them to convene in Washington, preferably early next month, for a secret briefing on the program, several judges confirmed yesterday.

    ….The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president’s suggestion that he has the power to bypass the court. (WaPo)

    Highly trained and very highly regarded legal experts think there is a problem here.

    Quite frankly I don’t see how any of you people that are “ok” with Bush’s actions and attitudes in this regard can see yourselves as being Americans.

    We are not supposed to blindly trust our government to maintain out rights.

    We are not supposed to be so afraid that we surrended our rights and our democratic institutions the first time something goes awry in our world.

    The war on terrorism – which you people see as going on for ever – is not an excuse to surrender normal checks on presidential power.

    Whoever used the word “cowards” above to describe you people was correct.

  57. avedis,

    Some people have trouble reading the BIG PRINT.

    Intercepts outside the U.S., of electronic communications from a foreign country to the U.S., or from the U.S. to a foreign country, are not subject to FISA’s warrant requirement if the President authorizes the Attorney General to make such intercepts. It makes no difference whether a U.S. citizen is a sender or a recipient. AFAIK every President from Carter on has given the AG such permission.

    I posted links above to Executive Orders by President Carter in 1979, and by President Clinton in 1979, doing just that.

    Intercepts of communications which are sent AND received within the U.S. are subject to FISA’s warrant requirement.

    Technological changes since FISA was enacted in 1978 have caused some complications. It was easy to determine the sender and recipient’s location of the analog communications common in 1978, without reading the communication’s contents. That is not possible with most digital communications today.

    OTOH, wholly automatic computerized search programs today are much more advanced than those in 1978, and can generally determine if a communication is both sent to and received by a U.S. address without a human operator becoming involved. This has created a much greater distinction between automatic computerized “monitoring” of electronic communications, and “surveillance” aka examination by human staff of the contents of electronic communications. The latter is subject to the “spirit” of FISA’s legislative intent. Automatic monitoring probably isn’t.

    The distinction between foreign communications (either sender or recipient is outside the U.S.) and domestic communications is crucial. Foreign communications are not subject to FISA’s warrant requirement. Domestic communications are.

    There are genuine issues to discuss concerning government surveillance of domestic communications. Surveillance of foreign communications is neither news nor illegal. It has been going on in Democratic and Republican administrations for more than thirty years.

    At some point repeated carping about foreign communications in this discussion will be viewed as prima facie evidence of partisan bias.

  58. T.H.,
    you’re obfuscating (re:big print, etc).

    The issue is spying on US citizens in this country. And that does require a warrant. I know you like to play at being a lawyer, but you’re dead wrong on this one.

    The rest of your comment is your usual paternalistic (and totally anti-American) spewing of reasons we should shut-up and trust our government).

    BTW, I know a lot more about datamining and related applications than you ever will.

    Also, the situation has morphed into something even more putrid when Bush – and then Cheney – came out and – by way of excuse for the spying without warrant – stated that we are at war and, therefore, they can do whatever they want (interestingly, in offering such excuses, they seem to be demonstrating awareness that, normally, they would need a warrant for their activities; activities the extent of which neither you nor I are apprised off. Otherwise, they would simply use the Hoslinger defense and be done with it. They don’t and can’t because Hoslinger is without a legal leg to stand on).

    Again, I will point out that people like you love to describe the WOT as a generational affair.

    So, are we to have a suspension of checks on presidential power for generations? Are we to have martial law-lite (at least and maybe worse because you never know where you are going to end up once you head down this road) indefinitely?

    If we are, then we are no longer the USA and “our way of life” is no longer worth defending because it will have ceased to exist.

  59. From a 12/21 CNN interview,

    “BASH: You talked about the fact that you briefed Congress voluntarily, that you do have a review process. But let’s just say, in ten years or a few years, a president is elected who doesn’t want to do those things, but you’ve given him this kind of power. What happens then?

    CHENEY: Well, it will be up to him whether or not he us it.

    BASH: Does it concern you that somebody you met you wouldn’t necessarily trust with that kind of power.

    CHENEY: The fact is the law is the law. The Constitution is there. It’s been adhered to and followed in this case. And you know, when you go to war, when you’re attacked on your homeland, when you lose 3,000 people in a couple of hours one morning, and you’re faced with a possibility that same organization might try to attack the United States with even a deadlier weapon, perhaps nuclear weapon if they could get their hands on it, or a biological agent, you have to actively go after the terrorists.

    Now, after 9/11, the 9/11 Commission that criticized everybody in the government because you couldn’t connect the dots. Now we’re connecting the dots and they’re still complaining. So seems to me you can’t have it both ways.

    The fact of the matter is this is a good solid program. It has saved thousands of lives. We’re doing exactly the right thing. We’re doing it in accordance with the Constitution and the laws of the United States. And it ought to be supported.

    This is not about violating civil liberties because we’re not. This is about defending the country against further terrorist attacks. That’s exactly what we’re sworn to do.” The VP in Pakistan today. CNN

    Cheney is attempting to use the spying as a launch pad to get the idea of POTUS as unchecked/all powerful supreme leader across to the public.

    BTW; since we’re at war and Bush can do whatever he likes (legal or not) what’s to say he doesn’t just suspend term limits and all that sort of thing.

    Maybe in 2008 he will just declare himself POTUS for another ten years.

    Anyone who complains will be accused of aiding the terrorists an not wanting a secure “Ahmerca”

  60. “Cheney is attempting to use the spying as a launch pad to get the idea of POTUS as unchecked/all powerful supreme leader across to the public.”

    Er, no. He’s explaining what the law says. What it says today, what it said yesterday, and in 1999. If you are upset with that, change the constitution, but the fact of the matter is, this is no different that what the Clinton administration and others did and will continue to do. We have a political process to deal with abuses.

  61. “BTW; since we’re at war and Bush can do whatever he likes (legal or not) what’s to say he doesn’t just suspend term limits and all that sort of thing.

    Maybe in 2008 he will just declare himself POTUS for another ten years.”

    Do you have any idea how much statements like that destroy your credibility?

    There are alot of us here that believe that there is a qualitative difference between this scandal and the manufactured scandal’s de jour that the press has been trying to pin on Bush for years now. But in the eyes of the general public, if the case against the President is made in the same hysterical terms that you are using here, then all questions around this incident will be dismissed as yet more partisan ranting by immature and unserious minds.

  62. Everyone,

    Note how avedis ran away from a discussion of the legality of NSA intercepts of foreign communications (one end is in a foreign country) and tried to change the subject to “spying on U.S. citizens in this country”.

    He’s got nothing. He’s all wind and anti-American flim-flam. “Pay no attention to the man behnd the curtain!”

  63. A responsible media would have printed an analysis of the situation, any applicable laws, and the administrations arguments. What we get instead are endless stories that automatically assume that Bush is abusing presidential authority.

    One big example is how the interception of international communications is always comflated with domestic spying. If even this huge distinction can’t be made clear, then there is little hope that a rational debate can be had with anyone that relies soley on MSM sources.

  64. Imagine the difference if this story had been spun by the MSM as “Government discovers Americans in communication with overseas Al Qaeda members”. Equally true, equally if not more important, utterly different spin. When it sinks in that that is exactly what was going on with this program, once again the opposition party is going to be standing out on a limb looking awfully lonely.

  65. bq. Note how avedis ran away from a discussion of the legality of NSA intercepts of foreign communications (one end is in a foreign country) and tried to change the subject to “spying on U.S. citizens in this country”.

    Tom, quick question: what’s your legal background? Are you trained as a lawyer, and have you passed a state bar?

  66. Chris,

    Yes and yes.

    Interception of electronic communications in or going to foreign countries is not “spying on American citizens in this country.”

    Lurker correctly stated: “One big example is how the interception of international communications is always comflated with domestic spying.”

    aventis did just this again AFTER I had said, “At some point repeated carping about foreign communications in this discussion will be viewed as prima facie evidence of partisan bias.”

    He wants to vent, not have a discussion. I called him on it.

    There is a real problem with government interception of domestic electronic communications which is not being addressed due to the hyperventilation of Democratic partisans who persist in conflating foreign and domestic communications.

  67. bq. Chris,

    bq. Yes and yes.

    Ok, second question: what professional experience do you have working in this field of law (civil liberties and electronic monitoring)?

  68. “Ok, second question: what professional experience do you have working in this field of law (civil liberties and electronic monitoring)?”

    Please allow me to skip to the third question if he doesnt like the answer to that one: “how many times have you argued before the Supreme Court, and are you in fact a member?”. Otherwise, i cant imagine how you have any possible standing for analyzing the available evidence.

  69. I don’t care at all what Tom Holsinger’s qualifications are.

    No one has enough training to be able to see facts that are not yet public or make pronouncements of guilt or innocence before the fact.

    So if anyone is trying to argue either that Bush is guilty or that he isn’t, they’re arguing from a weak position.

    I say, enough evidence exists to investigate this issue further and find out all the facts, hear all the testimony and arguments centered around the only basic question that is of any relevence to this issue:

    Did the President violate the law, and if so what should his penalties be?

    I want to see this looked into at the highest level.

  70. The Learned Legal Eagles of Powerline Have Rendered an Opinion

    Powerline just put up a very useful case review and analysis of the issue at hand. Definitely worth a read:

    [Concluding paragraphs]

    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. [emphasis added]

    Read the whole thing:


    I offered my two cents on this issue in 04 in another paper. I’ll find it and link to it later.

  71. “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. ”

    This is exactly what Clintons former associate attorney general concluded in the Chicago Trib yesterday. I havent seen anyone able to produce evidence to the contrary, particularly any USSC decision that confines the presidents powers as CIC when dealing with enemy communications.

  72. bq. Please allow me to skip to the third question if he doesnt like the answer to that one: “how many times have you argued before the Supreme Court, and are you in fact a member?”. Otherwise, i cant imagine how you have any possible standing for analyzing the available evidence.

    Well, I freely admit that I’m not a lawyer, so on the one hand I’m certainly willing to grant that Tom knows more than I on this subject. On the other hand, Tom’s vociferously arguing right-wing talking points, and seems willing to label anybody who doesn’t agree with him as a know-nothing coward.

    So I’m willing to entertain the possibility that Tom may in fact _be_ right in this instance, but assertaining his qualifications to make the statements he’s making seems like a reasonable move at this point in time.

  73. Thanks, Ron, I see my point about Tom can be equally applied to the “Learned Legal Eagles” at Powerline!

    At least you have to give them credit for recognizing the inherent limitations in their analysis and opinion (“And there is simply no question about the fact…that the NSA intercept program is legal”).

    It’s heartening to see lawyers applying their craft in such an unbiased manner to help us all understand the issues better. And they have such bad reputations! Who’d think?

  74. bq. Chris,

    bq. Go here:

    …and irritating behavior like that is just one more reason to blow Tom’s opinions off as those of a crank, albeit an educated one.

  75. Chris,

    Playing credentials games on this board, especially with people you don’t know, means several things:

    a) You are not serious.

    b) You have no idea what you are talking about.

    c) You are a fool.

    I was polite up to a point. Then I gave you the consideration you deserve.

  76. There is a real problem with government interception of domestic electronic communications which is not being addressed due to the hyperventilation of Democratic partisans who persist in conflating foreign and domestic communications.

    Exactly. By not addressing this honestly and completely and conflating domestic and international monitoring, the Democrats and the MSM are harming national security AND protections for our civil rights.

  77. “So I’m willing to entertain the possibility that Tom may in fact be right in this instance, but assertaining his qualifications to make the statements he’s making seems like a reasonable move at this point in time.”

    You could have asked him nicely instead of trying to initiate a game of gotcha. Like:

    ‘Hey Tom, just for the record what is your background in law, in case anybody is wondering?’

  78. Chris,
    If Tom had said he was a Supreme Court justice, what then?

    Credentialism on a forum like this is silly.

    Oh yeah. I am a Supreme Court justice.

  79. Folks, the level of discussion I’m seeing is kind of below everyone here.

    Each side in the discussion is stepping dangerously close to substituting slanging for argument, and personal insult for thoughtful points – and from my point of view, argument and thoughtful points are what we’re all here for.

    So step away from the keyboard and have some more egg nog, everyone. I’m going to close the comments on this for now.


Comments are closed.