I think this issue needs to go quickly to the Supreme Court. IMO, In a war situation, the President has the right to move quickly and get intel needed to protect us even if it means listening in on some overseas calls made by people we may have reason to suspect.

This secret Court sounds like it could be a bottleneck.. Anyone know how many judges sit to hear requests? If we needed to move quickly to tap into calls by say several hundred people how many weeks or months could that take?

Also I find it amusing that after the “Valerie” CIA scandal there is no discussion that I have seen to identify the traitor who leaked one of our most classified programs to the NYT. Are we going to see Teddy K demand to know who did this or is it not interesting to him and the Congress WHO is endangering our national security?

3. The United States is a country built upon certain freedoms we hold dear, is the potential benefit of this violation worth the cost?

We have yet to see the specific results here. We have yet to know how many in congress approved of these actions and know exactly how much of what the President did was solely the President. If more than one branch of government was involved and the taps were legal (which there is no evidence yet that they were not) then I would say that these potential benefits were not worth the risk, but as of yet I don't any reason to be upset at these instances. However perhaps we should have an invesitgation into the whole affair and then we'll see exatcly what happened. If there was a crime committed then we might look into discipline.

As important as individual freedoms are, our security is also important. It's only that freedoms prevail over security, when it is our government that by prohibiting our freedoms becomes a threat to our security.

The article on the Quakers has to do with peaceful protest groups making it onto terrorist watch lists and the like. There are numerous stories about peaceful anti-war protest groups making this list. It is not explicitly related to to the NSA matter Carlito but I think that it really should cast doubt on whether you should "trust" Bush and the NSA that they are only using this power judiciously. They are related because there is a philosophy behind them that is driving the actions of multiple departments. The White House feels that they should be able to do whatever they want and not be accountable to anyone.


How are you ever going to know Amlord? That is sort of the problem with secret investigations that have no judicial oversight. That seems like a highly unreasonable position to me, you might as well come out and say that you don't care what Bush does - you'll support him.


Once again a pretty unreasonable and unnecessary request. Bush hasn't been shy about confirming the existence of this order, in fact he has confirmed he has reissued it 30 times in the past few years. (article) Clearly the fact that this could be used against US Citizens is a common criticism, if that was prohibited don't you think Bush would have stated that was against the rules in defense of his decision? Had he stated that in his several radio addresses and could back it up with facts that would take a lot of wind out of the sails here. The fact that he hasn't speaks volumes.

Also from the article:


If CNN can't get the information then I highly doubt anyone will be able to, it is probably classified or something. But you certainly can't ask anyone here to go google and find it. But once again that is pretty unnecessary because the president has not said that it excludes US citizens in defense of the order.

Oh and FISA by the way authorizes warrantless searches for expediency, information must still be presented to a judge within 72 hours after the action was taken. This is completely outside the bounds of that and authorizes searches with absolutely no judicial oversight.


Not only is that off topic but I think you know that isn't what this discussion is about. If you'd like to discuss those issues feel free to start a new topic


We are not formally at "war" with anyone Amlord so the president has no special powers. Just because everyone has dubbed it the "war on terrorism" does not make it an official declaration of war which would give the President expanded powers. We also have a "war on drugs", a "war on poverty" and even a "war on Christmas" going on and none of those give the President any special powers either.


There is a significant difference between whistleblowing and revealing the identity of a covert operative for political gain. Those two things aren't even comparable.

If you don't think that war has been declared with terrorists, you'd better check again with the US Supreme Court who decided that the authorization of force against terrorists allows the military to detain US citizens indefinitely (I linked this earlier) if captured on a battlefield.

My objection to the statements about the executive order is supported by what you've said. We don't have access to it, so how can we conclude its scope or details? We can't. And yet some have...

I have already outlined that my position will change (potentially) if it is shown that US citizens were direct targets. That is clearly out of bounds if the FISA guidelines are used as justification. Whether or not the USSC will agree with AG Gonzalez that the authorization of force includes this expansion of power (as they did with detainees) remains to be seen.


I'd request you refrain from questioning my motivations for posting...it is not constructive.

Warrants may be issued retroactively if action needs to be taken immediately. The ability to move quickly exists without bypassing FISA. The question then becomes why did the President then feel it was necessary to do so. The need to move quickly is not a good reason because he has that ability already. The need, however, for a warrant to engage in surveillance of US citizens is necessary in order to be in compliance with the amendments to the Constitution that protect the rights of citizens from unlawful search and seizure. The problem is that the administration never attempted to get warrants for this surveillance not even retroactively.

I do agree that this needs to go to the Supreme Court.

How do you ever expect to see that evidence Amlord, honestly? If US Citizens are being targeted it is very likely they don't even know about it. If the government goes further than listening in on communications do you think you'll hear about that? Is it somehow ok for someone's constitutional rights to be violated if they don't know about it?


Please point me to the formal declaration of war by Congress. Last time I checked they were the only ones with the power to declare war according to the Constitution, not the Supreme Court. This is the only thing, by our supreme law of the land, that gives the President expanded powers.


Ok then, please explain why the president hasn't put this whole argument to rest by stating definitively that US Citizens are not being targeted and will not be targeted by this specific order. Surely he's had advisors brief him on this criticism. He has been defending the order in the press as necessary to fight the war on terrorism, why not silence his critics?

The US Supreme Court issued a decision in 1980: United States v. Truong Dinh
Hung, 629 F.2d 908 (4th Cir. 1980) which specifically addressed warrantless searches as they relate to intelligence gathering.

This was a case which occured before FISA and thus the decision relates to the core Constitutionality of warrantless searches. Subsequent laws do not change the basic Constitional tenets, since Congress is not empowered to interpret the Constitution. In the 1980 case, the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” Targets must “receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.”

There seems to be precedent for warrantless searches in intelligence gathering cases going back to the 1970s.



I have no idea. Believe it or not, I'm not a Presidential advisor (although maybe I should be... )



Authorization for Use of Military Force Sept. 18, 2001

Right, but they are both crimes and revealing the existence and nature of one of the most classified programs in the country during time of War is a far worse crime.

So I ask again- why is it only the President and a few others are upset? The very fact that terrorists thought they were safe making calls (or they would not have done it) tells you this was working. Needless to say it is now dead.

That is not the same thing as a formal declaration of war Amlord. There is a big difference between authorizing military force and declaring war and the latter has several Constitutional implications which increase the power of the presidency. You can brush up on this concept over at Wikipedia if you'd like to. The United States has not formally declared war since WWII.

Many of the president's actions would be justified if we were formally and constitutionally at war, but we are not.


That doesn't really offer any proof to your side of the argument. There is a decent amount of circumstantial evidence building up here and all you can offer is "I trust the president"? If that is your point of view then you really need to justify it somehow. How do you make the logical conclusion in your mind that:
1. This order has not been used against US citizens and
2. That we would know about it if it had been

I'm really curious Amlord, I want to understand your thought process and how you are rationalizing this.

While it's true that there have been no flat out denials, it is also true there has been no confirmation. What is clear is that there are still some unanswered questions. The most important question: why bypass the process we have to get legal search warrants when those warrants can be requested retroactively AND, when requested, very few have been rejected? This question alone should send up red flags to those who have any interest in civil liberties. I agree with both Ted and entspeak that this issue should go to the Supreme Court. Moreover, I believe that an independent council should be appointed to determine if there has been any law breaking. By doing this, we can put to bed the issues raised by both the pro-security and pro-civil liberty folks.

The fact of the matter is that you are trying to make Amlord prove something that he honestly does not have (nor does anyone have) the answers to. Furthermore, just because someone cannot offer you with a sound answer on the subject due to lack on information doesn't automatically make your side correct.

We have to look at this issue from a practical standpoint. Has the NSA spied on ordinary American citizens? Its possible. Reality is that all the new types of technology has blurred the lines between what is private and what is not. Is an e-mail a private message or a telephone conversation? Obviously sometimes even judges believe it is not as they routinely allow law enforcement to tap phones and communications.

I think the main point here and the foundation for the whole debate is whether or not we think the government would purposefully monitor US citizens who have zero connection to terrorism or criminal activity. Do we think that the NSA or other agencies would waste time and resources by listening in on our useless conversations that deal with how to make the best chicken soup?...thinking that maybe for no apparent reason that this ordinary American would claim allegiance to Osama Bin Laden? OR do we think that the NSA and other agencies will use those resources towards pursuing actual leads?

The government has been spying on the acitivities of the mafia, drug cartels, and terrorism long before any of us were even born. The difference, as many contend, is that there is no judicial oversight. The FISA Court of course doesn't count because it is supposedly a "rubber stamp." But nobody has explained how it is any different than a regular court in terms of what warrants it hands out. Many are under the assumption that a regular court would be a lot more resistant to allowing for a warrant which in my opinion is bogus. The FISA Court IS judicial oversight. Congress IS congressional oversight. And finally, the people are THE greatest oversight anyone could have on a leader.

Everyone is in an uproar acting like all of this stuff is new and that somehow our civil liberties are destroyed overnight after a newspaper article reveals something that is already common knowledge. If this issue went to the Supreme Court, the president's position would probably be upheld because there is a lot of legal history on the matter that has time and again found for the use of intelligence activity through reasonable cause.

If you review the thread you'll see that Amlord has been one of the strongest defenders of the White House on this issue based as you said on not much information. Now the information we do have doesn't look good.

I know Amlord to be a very thoughtful and intelligent person and that is why I want to know how he arrived at his conclusions - what evidence he based them on, how he has rationalized events. There is certainly a chance there is an angle I've missed and if so I'd like to consider it. He is not the kind of person that takes marching orders from the right wing noise machine so I really want to know about his thought process. That isn't something that should be hard to answer provided one has a reason for the things they believe.


I don't really believe that to be the core issue of the debate at all. We are faced with a situation where our constitutional rights might not only be compromised, but it might be done in secret with no judicial oversight.

I'd have little problem with this type of expansion if it was done with proper judicial oversight to ensure that the people being monitored were really valid targets and that they had due process if they were citizens. That is a right our constitution guarantees us and in the abscense of a formal declaration of war the government has no right to encroach upon that, I don't care what artificial war we have manufactured.

I don't think the NSA is listening in on chicken soup recipes but I'm pretty sure they are inclined to monitor American citizens with middle eastern roots for no good reason or for a very weak reason. Regardless of whether they find something these people have had their civil rights violated, probably without their knowledge. That doesn't make it any less wrong.

Let's say FISA were a rubber stamp. Why then didn't the Whitehouse use FISA to get a legal warrant? And if the counter-argument is "it would take too long", keep in mind that the law permits asking for warrants retroactively. So, again I ask, why not go through the legal process to obtain a warrant? This whole debate is about the fact that FISA was bypassed.


What is new is that the Whitehouse may have done something illegal. Surely, we want our leadership to follow the rule of law, don't we? Furthermore, there is nothing "common" about the recent revelations that FISA was bypassed.

The straw man isn’t directed at the CIA leaking like a sieve. Yeah, they’ve been leaking and throwing punches at the White House. It’s not good, but I understand why they’re doing it. Bush has been blaming the CIA for the “total collapse of its prewar contentions” for nearly two years. Again, it’s not good, but I understand why Bush did it: to save his behind.

The straw man is directed at what I thought was your main point—a comparison between ousting a covert agent (according to Fitzgerald) and ousting illegal or unauthorized clandestine operations. The Intelligence Identities Protection Act of 1982 may be why Rove is indicted at all, but I can’t find a bill authorizing our intelligence agencies or the Pentagon to outsource suspects to foreign states for torture or shoving sundry inanimate objects up the anal cavities of Muslims, or spying on American citizens, for that matter.

CJ,

I think you need to make up your mind whether I am a partisan spin doctor or a "very thoughtful and intelligent person". Inquiring minds want to know .

Here's how I went about this one:

The President came out and said that his legal team had reviewed this and they said it was ok. He did not elaborate on the legal justification (this has been widely criticized) and thus I had to do my own digging.

I am not a lawyer, nor do I pretend to be one. However, I do have some ability to read, which ideally would be enough to figure out the law (sadly, it is often not enough...).

I did some poking around to see if warrantless searches were allowed and what the circumstances would be. I cited the provision under FISA which allows such (for a period of up to one year). This failed to convince anyone, I guess.

So, after a little deeper digging, I find that previous to FISA, the US Supreme Court had decided that suspects who were not "US persons" had a lessor protection of their privacy. If a person is an agent of a foreign power engaged in espionage, that person has few protections available.

I cited that the USSC has ruled (in United States v. Truong Dinh Hung) that warrants are not needed for foreign agents if the surveillance is "primarily" (not even solely) for foreign intelligence reasons. If the government is looking to prosecute for a crime, such persons enjoy the protections of requiring a warrant.

The primary thing I was looking for was whether or not there was a precedent for this type of activity and I have discovered that there is.

The fact that the persons in question in this case have been on the receiving end of terrorists apprehended overseas leads me to believe that these people are agents of a foreign power (i.e. terrorists themselves). I can see how this is a leap of logic for some, but I highly doubt that Khalid Shaikh Mohammed was ordering pizza from Pakistan or that the e-mail addresses from his laptop were Amazon.com customer service guys.

The fact that there have only been a few hundred cases of the monitoring cited here speaks to the limited usage it has been put to. Keep in mind that the NSA scans thousands upon thousands of e-mails and checks thousands of cell phones callsdaily via is Echelon program.

The last point is the rationalization of whether this practice, even if it is technically legal, is the right thing to do. The source of the targets (cell phones and laptops obtained from terrorists captured overseas) and the limited use that this has been put to, combined with the fact that it has actually led to apprehensions leads me to lean towards using such a tactic.

Add that to the common complaint that we should have been able to connect the dots before 9/11. Add to that the bi-partisan complaints in 2002 that the FISA process was "slow and inefficient" . Byron York has a good summary of why this may have been used:



York quotes the 9/11 Commission report:


With the sunset of the Patriot Act looming (even though a majority of Congress supports its renewal: thank goodness for filibusters!! ), the government will be even more burdened when trying to connect the dots. Hey, but at least people residing in the US with undisputed connections to terrorists can sleep at night knowing the government probably isn't watching for fear that some knee jerk reactionist will cry foul.

Because it specifically states that parties involved in the communication must not be United States citizens... that's why it's not convincing.



Again, foreign agents... not US citizens.



Yet again with the foreign agents



The precedent for this type of activity is when Nixon tried to do it... the response to this attempt was the Foreign Intelligence Surveillance Act.



Did you ever consider the possibility that US citizens might have family in those countries? Should these private phone calls be monitored without a warrant simply because the recipient might be a terrorist in a foreign country? No. There is a requirement for due process for US citizens.



Great, then there won't be quite so many counts of violation of the law to worry about. It's good that the President only violated the law a few hundred times as opposed to thousands.



If there was definite evidence or reasonable cause for the taps, why bypass FISA? Especially considering that the administration can act first and get a warrant retroactively?



It is truly unfortunate that our civil liberties and the Constitution make work for law enforcement agencies so difficult. Perhaps it would be easiest if we just open our doors to them and let them walk all over us whenever they feel like it. I mean, wouldn't that make their job easier? One name: Benjamin Franklin. What he said then applies now.



The Patriot Act will not expire unless the majority refuses to extend it... the option to do so exists. 9/11 was a tragedy that we were unable to avoid due to difficulties in gathering intelligence... some of the difficulties were due to incompetence and a lack of communication between agencies... some of it may have been due to the fact that spying on US citizens is difficult because of that wacky ol' Constitution we have. Fix the first, deal with the second.

You see, it's not about whether or not the administration can conduct warrantless searches... it can, but there are laws governing the manner in which they occur. These laws exist to protect the liberties of US citizens. The President violated that law.

The President cannot use the fact that he is the Commander in Chief of the Military and the Authorization for Use of Military Force to justify the use of a non-military agency to violate the civil liberties of US citizens... suspected bad ones or no. Innocent until proven guilty. You do not have your rights violated without due process. That is the benefit of being a US citizen even if you are a terrorist. It sucks that there are US citizens out there engaging in terrorist activity, but we still have to give them due process. Why? Because doing so ensures that those liberties that these terrorists are taking advantage of and abusing remain for the rest of us.

Depends on the day of the month... just kidding Ok on to your post...


Ok, allow me to cite a press conference today where Alberto Gonzales spoke on this subject. First Gonzales claims that the "authorization of force" by Congress allows Bush the legal authority to do this:

Now if you read this that is a pretty weak justification. Gonzales is saying here that he knows full well that this type of behavior would be governed under FISA unless Congress authorized otherwise. He then goes on to make an argument that they did in fact authorize this and this is based on the fact that the Supreme Court might rule favorably on this based on something completely unrelated. He further goes on to argue that being at war authorizes the President to do this when in fact we are not formally at war from a constitutional standpoint and the president gains no additional powers as a result.

His whole argument is full of holes Amlord.

But wait, it gets better. The press conference continues with the basic line of questioing as to why FISA wasn't sufficient to do what they wanted to do. A reporter asks why they didn't just change FISA:

The above response is simply unbelievable. In one press conference he has gone from saying that he believes the authorization of force against Al Qaeda gives the President this power because a Congressional act is required to saying that he didn't believe Congress would vote to give the President this power by amending the original FISA act! That's right he didn't even consult with the full Congress on this they consulted with "select" members of Congress and they told him it wouldn't happen.

That pretty much puts the nail in the coffin of justifying this legally based on Gonzales' rationale.

Also a rebuttal from Sen Feingold from the Washington Post:



The original SF Chronicle article I cited said this (remember this is coming directly from those who blew the whistle on this activity):

So basically that refutes what you just said Amlord, the links start with Al Qaeda connections and get increasingly expansive which would lead one to logically conclude activites aren't limited to "foreign agents".


Whatever the reported number I'm sure the actual number is a lot higher. Seeing as how all of this is classified, secret and without judicial oversight the only people that actually know are in Bush's circle or at the NSA. Even if it is just a few hundred cases it is still a few hundred times where the law was broken. Would a cop let you off if you just ran 3 stop lights instead of 10?


Now as for the rest of this, there were a large number of recommendations that came out of the 9/11 commission and as of the 2004 election (and I don't believe this has changed but could be wrong) Bush had filed that report in the trash and none of them had been implemented. This was one of the arguments against Bush from the election if you remember correctly from the various debates on the subject. Your article points to things that could be improved and the answer is to improve them, not go around the system and strip away our civil rights.

When you have a problem it is better to fix the problem then ignore it and try and work around it.

Intelligence reform is needed, that 9/11 report had some good suggestions but they do not and should not include compromising our civil liberties.

I just thought I'd add this little tidbit regarding the President's claim that his authority to engage in this activity is inherent in the Constitution under Article II.




There is a constitutional interpretation by a sitting Supreme Court Justice that applies to this issue. This is why, should this come before the Supreme Court, the President's Article II justification would not hold water.

The only justification that we are left with in this light is that the authority was granted in the AUMF resolution of 2001. Gonzales concedes that Congressional authorization must be given in order to bypass FISA. (Of course, this goes counter to his "inherent Constitutional authority" argument", but with this administration such contradictions within the space of minutes is a common occurrence.) But, the authorization specifically makes reference to the United States Armed Forces... is the NSA an official branch of the United States Armed Forces?

What exactly does the United States Armed Forces consist of? What are it's branches? Well, let's see what we can find...

Maes National Magazine



You'll notice that there is no mention of the FBI, the CIA, or the NSA as being branches of the United States Armed Forces. These groups can and do interact with the branches of the military but are not branches of the military themselves. Of course, this magazine may have gotten it wrong. Let's see what else we can find...

The Armed Forces of the United States



Hmmm... the same thing here and...

Jobs in the various branches of the United States Armed Forces



Hmmm... not there either... and...

Here's a little Armed Forces fill in the blanks you can play...

The United States Armed Forces

Hint: you won't find NSA anywhere in the list of available words.

And just to put an official nail into the coffin:

A lovely link brought to you by the Department of Defense

Where is NSA Day?

Here is a Department of Labor page referencing the US Armed Forces:

Department of Labor - Bureau of Statistics

So it seems when we, including the government, talk about the United States Armed Forces, we are referring to something very specific.

So, here is the title of the section from which the President and the Attorney General claim to get their authority:



So when members of Congress state that they never intended to authorize NSA wiretaps in passing the AUMF, it appears that they are correct.

From entspeak:



Yes they are a part of the United States Armed Forces.

From Wikipedia:





and the list of directors:



Their budget is accquired through the DoD and they are overseen by the Joint Cheifs of Staff as well. To my knowledge all those letters after those peoples names make them military staff, of the United States Armed Forces.

It would appear that Presdent Bush's speech was right on the money.

I have been waiting for more information on this subject before forming my opinion and reply to this subject.

1. Is this a violation of our constitutional rights? Why or why not? If this case were before the Supreme Court how would they rule?
Without any doubt this is a black letter violation of law. Which has risen to the level of an impeachable offense. As a Republican I am deeply sadden to see the office of the President be used to in a manner that is so reminiscent of the days of Richard Nixon. This is a clear cut abuse of power.

2. Does the President, charged with enforcing our laws, have the right to suspend them with an executive order when war has not been declared?
It has become very apparent that he does not have the right, nor did he inform Congress of these decisions. He did inform certain Republican members, but did not inform the Congress as required. This rises to the level of President Lincoln's usurpation of the Bill of Rights

3. The United States is a country built upon certain freedoms we hold dear, is the potential benefit of this violation worth the cost?
No absolutely not. Either we are a nation of laws or we are not. This is clearly too much for the American people.

As for the comments of the NSA and the military. Personal military routinely operate as Super Spooks. They serve within the NSA and return to the military with no so-called break in service, because they never left active service. So the line between the two is extremely blurred. There are a lot of civilians within NSA that have never been part of the military, but there are many military personnel as well. So I guess you would have to refer to it as a quasi-branch of the service, depending on the person involved.

Thank you, loreng59, for your assessment. This is a very serious matter. Bush has taken on too much authority.

As many legislators were practicing attorneys before they were elected to office, I hope that they will use their expertise to address this. I would like to see President Bush impeached. The implications of Bush's actions are far worse than Watergate or a stained blue dress.

The more I learn about this, the more mixed feelings I get about it.

This seemed to be one issue I agreed with Bush on. I think he needs wide levity to be able to be more sneaky then the peace-loving Muslims trying to kill us thousands at a time. In being consistent, Bush did a great job handling 9/11 and Afganistan, but should have resigned for simple incompetence regarding Iraq. There was nothing in invading Iraq that was either helpful to the war on terror or our economy. In fact, it made things much much worse.

With that being said, being able to keep a step ahead is a step in the right direction. If there is a method that can save lives, I believe it needs to happen. So, I agree with Bush on this.

But here's the problem. Bush had the tools necessary with oversight to accomplish this. He can do whatever he wants and clean up the bodies later (retroactive FISA warrants). Why did he not do this? What is there to hide?

He floated this program by a few senators, but they couldn't even seek legal/technical advice on it. Rockefeller - one of those consulted - went on the record to state this program was wrong.

So now, the claim will be that the Constitution and statute have been trumped by executive powers. How is there supposed to be a separation of these branches of government if Bush can do anything he wants?

If Bush can legally circumvent established checks and balances, isn't it reasonable to assume that the Constitution has been suspended? Why is there any need for any type of oversight? Why the need for a McCain bill? Apparently, Bush can ignore the law and order torture if he deems it necessary.

Everything I've read thus far has been related specifically to the parties responsible for the 9/11 attacks. And everything I've read states verbiage to the effect "under the Constitution" - not "over the Constitution".

Finally, if this is illegal, who is the aggrieved party? There is nobody to charge him because nobody knows they were a target.

As far as the leak, this seems to be more of a whistleblower event than political punishment. I think trying to compare this to the Plame leak is completely disingenuous.

You cited Hamdi v Rumsfeld . That case allowed the US to hold US citizens as "enemy combatants," without charge, if they had effectively become enemy belligerents by associating themselves with the enemy. Some of the reasoning was based on the US Civil War, if I recall correctly. Are you saying that the Supreme Court would allow us to imprison enemy combatants including US citizens indefinitely without charge, but not to monitor their email? I would say that imprisonment is a much greater violation of civil liberties.


I think that Feingold is trying to have his cake and eat it too. He authorized the Prez to go to war with these people. I'm sure when a building in New York City fell down, Senator Feingold had a sneaky hunch that some of these guys were on US soil, not just in Afghanistan. Here is what Feingold said on September 14, 2001 regarding the resolution he voted for regarding the President's anti-terrorism authority.

In 2001, Feingold recognized the unique nature about the enemy we faced (and still face today). Does anyone here really believe that we can engage and kill an enemy, but we can't monitor that enemy via phone and email? How do you kill someone if you don't know where they are? Congress voted on the war powers giving the president the authority to use "all appropriate and necessary force" except reading email?

I would agree that this is a fine line, but how uncompromising can we really be? We know that terrorists are using every high-tech tool in their power to communicate. Let's say that we capture a guy and his laptop. There are contacts in the laptop. We have, what, maybe hours to exploit that info before his buddies notice he's off the grid. Speed is surely of the essence. As for going back and filing FISA warrants afterwards, that is the only think that stinks about this for me. I don't know why they haven't, and I'd like to know why Gonzalez argues that it is OK. Maybe all of the leaks have them spooked?

We don’t know that the retro warrants would have worked. They had 72 hours to convince a “Judge”. How many judges were there? How much “proof” was required? Was the fact that the name of the person in the US calling overseas matched a name found on a hard drive in Afghanistan enough? How long would it take to go through all the requests and do the taps? Weeks? Months? What happens if we miss a plot? We need to have more info before we just shoot Bush. Does he have the ability to do this under the War Powers given to him by Congress. Was this doen in other wars in a similar way?


What really shocks me is the lack of outrage that the NYT and a traitor within the Government has “outed” this entire program for all time. We can be sure the calls were made because the people making them felt they could do it in safety – now that is over and we will lose all future intel that could prevent a future attack. I HOPE the NYT reporter is forced to come up with his source and that the person goes to jail for this crime. This is not whistle blowing IMO

I think the story is not as big as many claim it is as this has happened before and it did go all the way to the SC...Hamdi. And I agree with carlitoswhey because imprisonment was a far more serious extension of executive powers.

I think the Hamdi case is the best example as to what or why the Bush admin believed their powers could extend like this. Obviously FISA is meaningless in this debate because the Bush admin admits they were overstepping this law because they are now guided by the law of war...a direct term they use in the Hamdi case. So perhaps it is AUMF that needs a closer look, not FISA.

Personally what I am finding most interesting is the congressional response from those who since 2002 KNEW of this and only now seem to be angry. What took them so long to get upset about this? Not to mention the collection of comments I have read this morning are just dizzying. No one seems to really agree or have a consensus on what and when they were briefed...and some still have not gotten brave enough to talk about it publicly.

This is where my disgust lies...with Congress. To be honest I expect this of Bush..this is but one event in a series of attempts from the president to further exert executive powers. Yet it is Congress who granted the Bush admin these powers to wage war and time and time again they have just refused to take responsibility for their actions and decisions. Handing the president of the US of A the rights under the AUMF needs a little more consideration and foresight then obviously many of them claim they bothered to consider. Time and time again they say...we had no idea..or we never thought. It is their job and duty to do this kind of applicatory thinking. I really hope that this issue focuses more and more on what role congress had in all this.

I'd second this as well. This Sunday on Fox Harry Reid was given every opportunity to answer the following simple question:
Were you aware of this program and, if so, did you object?
Reid's answer - don't try to push this on me! This is a Bush program! He would not answer either way. Spineless.

As for the "It's ok to leak info if you're a whistleblower" defense:
here is the relevant section of the US Code.
I don't see a whistleblower exception.

I feel very strongly that there needs to be a whistle blowing mechanism. Our citizens and soldiers should not be compelled to break the law and should get the word out if they are being made to secretly participate in breaking the law.

The outrage is rightly directed at a system that is being set up to put all of the checks and controls under the executive branch and well out of the light of day.

I further don't get the outrage expressed by President Bush beyond the increasingly tired tactic of attacking the accuser.



link

I don't see the value of this rhetoric other than trying to silence debate. We are not helping the enemy by discussing this tactic. We are exploring allegations of abuse of power against American citizens. We are defending American freedoms. I also see a contradtiction of defenses of this program here. It is either legal and not worthy of debate, or it was a secret illegal program that some feel was essential for defending America. To think that people plotting terror attacks against the United States feel that the government is not trying to eavesdrop on their communications would be to paint these people as incredible imbeciles.

Also, and to be honest I don't like secret courts at all, and I think such courts need several different types of oversight if they are necessary to use. But the truth is that we have these black-ops courts. They are incredibly compliant in issuing warrants.



link

Are we seriously thinking that if a backlog in getting warrants issued is the problem that the court can't be expanded to accommodate the greater need for these warrants?

I think the president has a serious issue here. Claiming that we are poking are noses into national security issues here probably will be no more effective for Bush than it was for Nixon with the Pentagon Papers.

We do not need secret programs that violate our liberties. Programs that violate our constitutional rights and avoid the designed checks and balances of our government need secrecy to exist because they are illegal. We are in a prolonged war-like engagement. We have time to craft legal systems and keep due process and checks and balances in their appropriate balance during this campaign. Let's do it the right way, not the administration's only way.

I will again state that as of now I have seen no incident of a US citizen being a target. If the targets were non-US citizens, then this is without question a legal tactic.

Even in the case of US citizens, however, persons are able to be searched at the border without reasonable suspicion, probable cause, or warrant. This was decided in United States v Montoya de Hernandez (473 U. S. 531 (1985). These searches are legal even if the basis for the search is based on ethnicity.

It is unclear to me whether messages (e-mail or phone) being sent across the border would be subject to similar searches as persons are. Clearly packages being sent across the border are subject to such suspicionless searches. In fact, many people clamor that we need tighter searches of international packages. If we are ok with packages which are intended for US citizens, why not e-mails or cell phone calls?

Note that Jimmy Carter issued an executive order authorizing warrantless searches in 1978: Exercise of Certain Authority Respecting Electronic Surveillance
He invokes FISA and makes the qualification that the Attorney General must make the certifications under the appropriate section of FISA.

It is unclear whether or not Ashcroft and/or Gonzalez have done that paperwork (certifying the reasons behind the warrantless searches) and whether or not Bush's Executive Order forces them to do so.

If the NYT headline had said "Jimmy Carter authorizes warrantless searches in 1978" would we be so up in arms?

I believe there is a Federal whistle blowing law and I believe that the secret court could have been contacted to start the process. I find it hard to believe that you would need to go to the NYT. See below.

http://www.whistleblowers.org/federal.htm

http://whistleblowerlaws.com/protection.htm


And I am outraged as well. The program did not have to be destroyed, with all its future benefits if the person just used the law. Obviously this was done to embarrass the administration and in so doing it destroyed the usefulness of a highly classified program.

1. Is this a violation of our constitutional rights? Why or why not?

Bush says that it isn't because

That is just a flat out lie. Someone show me where the heck it says in Article 2 of the US Constitution that the President has the authority to unilaterally circumvent the Fourth Amendment. This is a violation of our rights to be secure from unreasonable search and seizure because the President has appointed himself as the determiner of what is reasonable. Big Brother is watching.

You are confusing "unreasonable" searches with "any" searches. When I returned to this country last week, I was searched at the border (the airport). A beagle went through my suitcase, which had previously contained some produce. Was this reasonable? Did it violate the Fourth Amendment? If a suitcase can be searched at the border, why not an email?

The Times sat on this story for a year at the behest of the White House before releasing it to the public.

http://www.washingtonpost.com/wp-dyn/conte...5121601716.html

I think considerable steps had been taken by the NY Times to ensure the same sort of problem which occurred with Plame did not occur here. This allowed the White House plenty of time to track down a leak, and to prepare for inevitable discovery of their illegal actions. This is the key fact, I believe: Any irreversable damage that was done to the program could have been resolved by the government by conforming it's practices to within the bounds of the law.

Responsibility lies squarely on the Whitehouse's doorstep if this program has been compromised in any way.

I don't agree with the NY Times actions in delaying the story(as in they should not have to obtain White House approval before releasing a story), but I do think they took every action neccessary to make sure the revelation of such information did not "hurt America."



But there are unreasonable searches. The United States cannot strip search it's own citizens upon return to the country without cause. You can also request that the police get a warrent before searching your person or your property if you are a citizen of the United States.

The Fourth-Amendment laws regarding surveillance of communication and searches of a person are completely different, it's very much apples and oranges.

Sorry, but the parrarrell you're trying to erect does not hold here.

I would say that we don't know who NSA spied on. They have not released that information. As for trusting the Executive Branch to tell us the truth, not a chance. This adminstration has lied repeatedly and will continue to do so.

As for President Carter's actions, I would say that first prior criminal acts do not make a current one legal. That would be akin to a murderer stating that another murderer got away with it so he should too?

The Executive Branch has many ways to gather information, legally, but this President has chosen to act in total disregard to the laws of the land. I too realize that terror needs to be fought and it is a different type of enemy that we are fighting. Nevertheless I do not agree that we need to stoop to their level otherwise we are no better than they.

If we give up all our rights to be free, are we?

I'm not sure about the constitution, but what you're talking about is similar to random drunk driving lanes locally. They can't single out anyone person, they have to show it's random or do it for everyone.

What consitututes unreasonable? If you say it's ok for the president on his own judgement to validate spying via email/phone interception then really where does it stop? If he has this authority, then Nixon did nothing wrong aside from breaking and entering.

I think it sounds very illegal. And I'm not sure why anyone would defend it. Bush has the ability to ask for this permission yet he didn't ask, he told what he was going to do. That's really the problem here, he has no accountability and could spy on anyone.

Are you saying that it is reasonable for the President to monitor anyone he chooses without informing them, and without a warrant? Smorpheus and Red Cedar have done well in showing the differences in your example. An e-mail can be searched whenever, without my knowledge even, if you have the proper warrant. That is all that is wrong here. We have a system, with rules, checks and balances and whatnot. Why is it a good idea to let anyone get away with violating those rules?

From smorpheus:




The Times sat on the story for a year because one of their writers was going to write a book about it and a Times editor was the editor of the book. That book's release date is next week. Imagaine that.



You think? Anything more than conjecture? As of right now you can't even prove the taps were illegal despite the hysteria in here.



Those are not the facts of the case here. You don't know yet who was tapped. I would wait a while before proclaiming him a Big Brother Dictator.

Well, this isn't the first time I've been accused of poorly erecting something, but I'll press on nonetheless. The border search is actually a pretty relevant exception to the Fourth Amendment. In USA v. Ramsey, the court ruled that international mail could be searched without a warrant. Is international email that much of a stretch? There are also exceptions for information on PCs and hard drives entering the country. If you look at Katz v. United States, you'll see that President Johnson had this authority, as did successive presidents up to and including this one.



This kind of rhetoric is unhelpful. Where in my post did I say "it is reasonable for the President to monitor anyone he chooses without informing them, and without a warrant?" You are being ridiculous. Checks and balances and what not? Congress granted the president War Powers vs. Al Qaeda. The President, with counsel from the AG, with (some at least) consultation with congress, has the NSA (part of the armed forces) monitoring electronic communication between US persons and overseas contacts that have had connections with Al Qaeda. He's not keeping some kind of enemies list or FBI files on political enemies, he's trying to prevent a freaking terrorist attack.

Here is the administrations actual argument, filed with the FISA court. (note - "authoritv" is misspelled in the original. Looks like a scanned document, and the underline made the Y a V.)



I suspect the whole thing hinges on whether FISA pre-empts the president's authority. That is, he had the (no-warrant) overseas wiretap authority before FISA, but FISA gives him a way to expedite warrants, so is he required then to get warrants, even retroactively?

By the way, it took me a couple of hours online over a few days to come up with this information. The New York Times had a year, but couldn't seem to find one Constitutional scholar to comment on the side of the administration. Oh, and they just happened to run the story the day after the Iraqi election. That righty corporate media machine keeps on rollin.