I tend to agree but the reality is that the CONGRESS has the primary responsibility and very much like the FISA process they are SLOW. IMO 9/11 would have never have happened if the Congress didn’t pass laws against the FBI and CIA talking and if they ever took the terrorism threat seriously. And by that I mean FUNDING the CIA and FBI to do the job instead of the opposite.

Finally I agree with the AG. It is not breaking the law. Let’s take it to the SC and see.

As I recall, the 9/11 commission and the joint inquiry into this particular case both concluded that it was a failure of inter-agency communication and not a result of problems associated with FISA that allowed these two to operate.

Josh Meyer's article as reported in the LA Times, Dec 21, 2005:


Let's see... the Cole... that was October 12, 2000. The NSA could've given the FBI information regarding the calls coming into the US from the Yemen facility so that FISA could've been used to tap the line... but the NSA sat on the number until after September 11, 2001. That is the problem... That was the missed opportunity.

Now let's look at the actual Inquiry:

Congressional Joint Inquiry into 9/11 attacks

If you actually read this, you will see all the intelligence failures – none of which had to do with a problem in FISA – that lead to the government's "missed opportunity" to stop the two terrorists in San Diego. They didn't need to bypass FISA, the agencies just needed to communicate with each other. The CIA knew al-Hazmi was in California in 2000; the al-Hazmi and al-Mihdhar were in contact with an active FBI counterterrorism informant while in San Diego in 2000; and the NSA had a known terrorist facility in Yemen making calls to a phone number in San Diego, California in 2000 and 2001. What we have here is a failure to communicate.

Now you can bring up 24 and E-ring and even Sesame Street if you want to. I know fact from fiction. It is a fact that the failure to stop al-Hazmi and al-Mihdhar had nothing to do with a problem in the FISA process. To imply otherwise is pure propaganda.



If the President actually needed the latitute, I'd give it to him in a heartbeat... but he doesn't. And if Katrina has taught us anything, it has taught us that the President learned nothing from the communication failures of 9/11.

And what were these laws passed by Congress that prevented the CIA and the FBI from sharing information? Can you list them, please?

This is purely you opinion. And the fact that NSA did not use the FISA process might mean they did not feel that had enough hard evidence on the person in the US to get them to agree to the tap. I don’t know and don’t care. This is just another example of how BAD bureaucracies are and this is why I when someone tells us it takes weeks or months to go through the “process” I believe them. And you should too since our lives depend on it.

And it means little who is in the White House. Government at all levels is slow and stupid. And IMO most of the blame for Katrina belongs to the moron mayor of New Orleans and the Governor. They made at least ½ the mistakes but of course liberals all try to put it all on Bush. NONSENSE.
.

Yes. It is.



Ah-hah! Genius... why didn't I think of that. And, more importantly, why did the NSA not mention that particular bit of information at the inquiry? Sounds important. And of course, we'll never know if they had enough hard evidence to warrant a tap because they never applied for one. FISA only works if you use it.


That much is clear.



Yes, because it is good strategery to listen to what people say and take it as gospel without even questioning the source or the source's history of manipulating the truth.

Bush tried to use the al-Hazmi case as an example of why he needed to bypass FISA. He stated that if the NSA had the authority he'd granted after 9/11... they could've stopped them. Which is true. They could've done it by bypassing the law. But the NSA could've just as easily passed on it's information to the FBI or the CIA and that, according to the Joint Inquiry report, would've had the same effect and would've been done in accordance with existing FISA law. So, bypassing FISA would've been unnecessary.

So, we're back to they need to do it because they say they need to do it.

So, rather than fix the departmental blocks that caused 9/11 we will just bypass the whole process and the Constitution because that makes it easier to get the terrorists. Of course, that also means that an abusive government can spy on whoever they want by simply saying that they're affiliated with terrorists... they don't have to ever prove that. But, hey... if it means getting the terrorists...

Oh, and you were going to list the laws that prevented the FBI and the CIA from sharing information?

A couple of things here, first I haven't seen any actual evidence that FISA is "slow" presented. I've heard it from pundits and GOP talking points that is it. Oh and we've heard our AG Gonzales whine about it a little bit but I'm not really going to shed a tear for him, he needs to hire the staff to get the job done. Since he has a legal background this shouldn't be unfamiliar territory for him.

And secondly, it is the job of Congress to handle issues like this which should give you pause. We have a GOP President and GOP control of the entire legislative branch and some good recommendations in the 9/11 commission report and yet in the years since it was delivered nothing has happened. We aren't talking about things getting tied up in committees, getting filibustered, they just flat haven't been introduced. Congress, at the President's direction has instead focused on other issues like dismantling social security, handing out tax cuts in a fiscally irresponsible manner, working to ban gay marriage, and handing out pork and favors to the industries that got them elected.

Finally, it is the responsibility of Congress to make the laws, not the President. The President must also follow and enforce our laws, not break them and go around them to suit his own purposes.

No we are back to it because it works and IMO will be judged legal just as it was legal in WWII and before.


Lets wait for a court judgement.

Because it works we should do it? I'm sure that interring Japanese Americans prevented some of them from spying for the Japanese. Should we have done that? I mean... that was considered legal by the courts.

The ends don't justify the means.



Really? Where are the decisions that support Roosevelt's surveillance? Please list them? Where are the cases that support Wilsons? List those as well. And the one's that support Lincoln's? The one's that support Washington's? Oh right, there wouldn't be any that support Washington because they didn't even have a Constitution for a Supreme Court to interpret. So, please, dazzle me with all these legal opinions.

Oh yeah, and where are these laws that Congress passed that prevented the FBI and the CIA from sharing information? You have yet to provide those. If you are going to make such statements, you really should be ready to back them up.

I mean, really. You provide this defense of the wiretapping because if it had been in place, the administration could've captured al-Hazmi and al-Mihdhar... when the administration knew about them and if they had simply communicated properly they could've captured them without having to bypass FISA. Could the NSA have gotten a FISA warrant... they didn't even try, you know... and your response is: you don't know and you don't care. Well, that's patriotism for ya. Let's give the President a power that could be easily abused simply because it is an option that works in nabbing terrorists. Why have the 4th Amendment at all, really? I mean it just gets in the way of nabbing criminals. Why not repeal it because not having to get a warrant to catch a mob boss would certainly decrease organized crime. Why have a Bill of Rights? It just protects the guilty. I mean that is what you are saying. The Espionage Act and the Sedition Act – Wilson's contribution to this issue – made the First Amendment a mere collection of nonsensical words that meant absolutely nothing and here you are saying that such action is constitutional. Is that what you're saying? We should forget about the First Amendment?

Back up your statements, Ted. Please.

You make my case. This was a practice that the Executive branch considered, in time of war, to be their prerogative and we see not one challenge to it until recently and THAT law needs to be challenged.

IMO it is ludicrous to take away powers from the executive, used successfully in times of war, and then expect the government to to never fail to “connect the dots”.

It is very obvious the terrorists use our laws against us. This practice by the government to listen in on call from overseas by suspected terrorists was IMO vital in saving American lives. What is left of it now that it has been compromised is debatable.

I am sure we could define the scope of this effort so that it would not seriously erode our first amendment rights. Congressional oversight should also be added. Given some safeguards I feel it is worthwhile.

Congressional oversight would give it some needed legitimacy. I am glad to see that you have budged somewhat from your original position.

It is good that this discussion has moved on from the charge that terrorists would somehow stop using telephones and computers because of the publicity connected to the domestic surveillance that has come to light--that was a specious argument.

I find some real irony in the fact that the Dubai company managing six American seaports was not a security concern for the Bush administration, even though, according to CNN, the Coast Guard had raised some serious concerns about this, and then not (guess the Commander-in-Chief ordered them not to have "serious concerns"). So I guess if some terrorists were inadvertently given access to U.S. ports, their telephone conversations would give them away, right?

Somehow, Americans are not supposed to be concerned about being wiretapped by the government, and we are not supposed to be concerned about the porous southern border which is experiencing incursions from Mexican military and non-Mexican interlopers, nor are we supposed to be concerned about the U.A.E. company (state-owned) managing six seaports, even though the governors of all the states involved but one (Florida Governor Jeb Bush) have expressed the same concern about breaching our security. But we're just supposed to trust our great war president (as Stephen Colbert says, "Daddy's gonna tell you all you need to know" ) and not take an active part in making damn certain that all these extra measures that the Prez takes don't just erode our Constitutional freedoms further.

Again, I would assert that it's a whole lot easier to "sacrifice" these freedoms in wartime than it is to get them back. And just how long is this GWOT supposed to last? Generations?

Should the NSA program be expanded to include purely domestic communications without judicial or congressional oversight?

No. I don't deny that wiretaps are important, but I see no reason why they can't be overseen by a court. It can't hurt, and it can ensure that abuse doesn't occur. Without any checks, the president could easily wire tap people who have nothing to do with terrorism whatsoever. I am not accusing Bush in particular, but i'm just saying it isn't prudent to give him that kind of power.

Should the NSA program be expanded to include purely domestic communications without judicial or congressional oversight?

No. I have no problem with the program being expanded to fit the changing needs of our intelligence gathering. However, we need to think seriously on the scope of powers given to any one person--we have so many checks and balances put into place so that one person, or ideology, does not take over to the ruin of everyone. The FISA oversight seems perfectly legitimate and flexible enough for this type of thing. if the President wanted a longer time period to obtain his backdated search warrant, I would consider that. But to have no oversight at all? Seems foolish to me.

The other thing to consider is that while certain sacrifices are needed, and certain laws amended or suspended, in a time of war, this is no war (if you even think we are at war) like we've fought before. I, for one, would be very careful in broadening the scope of the President's war powers given that this thing may last for decades.

I do not. First: There was a challenge to it – the manner in which Lincoln declared martial law was challenged and found to be unconstitutional. So you can't say, "not one challenge to it until recently" – that just isn't true. Second: I believe we were in "a time of war" when FISA was passed... and it was passed because of executive abuse. (I am assuming you mean FISA when you say, "THAT".) Third: Just because it has never been challenged before does not mean that it is constitutional. Look through the history of the Supreme Court and you will find many cases that deal with this very concept.



"connect the dots." Hmmm... an interesting bit of nonsense when used as a justification for this program, really. It seems to me that this program just gives them more dots to connect. They had enough dots to connect al-Hazmi and al-Mihdh to terrorism and locate them in San Diego. The intelligence was there. What they failed to do was connect the dots – meaning, that they didn't make the most of that intelligence... inter-agency communication.

The government was accused of failing to connect the dots – not because they didn't have the intelligence... they did have the intelligence... but rather – because various agencies within the government had the intelligence and failed to communicate with one another and make the connections. That failure is not a justification for warrantless surveillance within the United States without congressional or judicial oversight and in violation of Federal Law.



Wow... Well... perhaps you should consider that this is a fourth amendment issue and not a first amendment issue... man, that just doesn't give me much confidence in your argument if you don't even know what the issue is and you haven't read up on the history.

FISA is congressional oversight. What needs to be done is a streamlining of the emergency warrant process within the Justice Department.

Passed as a reaction to Nixon abuse and not related to a “war” power.



I agree but maintain it will never happen to the degree necessary to insure our safety. You can be sure that after the next attack kills Americans we will be discussing why and how the FISA procedure prevented us from getting the quick intel needed to stop the attack.

What will happen is that the “streamlined” procedure will only take 2 weeks to a month as opposed to what is happening now. Just the fact that we are having this debate and that the program has been outed will no doubt change the behavior of the terrorists working in this country. When it is clear that we are no longer able to instantly listen to terrorists speaking to their bosses in other parts of the world they will limit communications to those that fall into that delay window. Lost American lives will be the result.

Yet again, I have to ask you to do your homework.

Nixon wiretapped five members of his national security staff without a warrant. They were targeted for surveillance because someone was leaking Nixon's plans for dealing with Vietnam to the New York Times. But some of the surveillance was questionable in terms of its use – it turned out that it was being used – not for national security purposes, as was being claimed by the Executive Branch – it was being used for political purposes.

So, it was, indeed, an abuse related to a "war" power.

Isn't the argument that in a "time of war" the President should have these sweeping powers to surveil on Americans without judicial or congressional oversight? The point is this... what prevents a President from abusing this "inherent authority" and doing just as Nixon did? If the Executive Branch can just bypass FISA and engage in warrantless surveillance without judicial or congressional oversight, what prevents it from engaging in the same type of abuse?



Fear mongering pure and simple. Freedom is risky. You can be "sure" of nothing. There is no such thing as a completely safe and free society. It doesn't exist.

I tend to agree with you that there needs to be oversight. I don’t think “fear mongering” is happening though. We NEED to fear these people who would gladly kill all of us and who feel “safe” because that are “stateless”.

IMO the AG is right about FISA. Nice law but too slow for the current situation. If we don’t come up with something better and soon we will be more likely to lose lots of American lives. I cannot believe it has to be black and white, Bush method or FISA but I see no effort by the idiots in Congress to deal with the problem. Do you?

This is fantastic. Okay, so now we've backpedalled completely. And just what should Congress do to speed up the Justice Department? Again, I didn't hear AG explain that FISA was to slow, but that the Justice Department process for obtaining Emergency Warrants was too slow. Repeat... there is nothing in the FISA statute that mandates the Justice Department taking so long to prepare for an Emergency Warrant. It is pure Justice Department procedure that needs to be revised. And when, exactly, did the Executive Branch approach Congress asking for help in speeding up this Justice Department slow down? They appear to have approached a few members invoking national security to keep those members from talking to anyone else in Congress or even know about or talk to other members that had been approached. So, how exactly were these idiots in Congress supposed to deal with the problem without disclosing it to other members of Congress or to each other, for that matter?

This seems like the fundamental difference between the two perspectives. The people that are against encroaching upon our rights in the name of fighting terrorism are concerned about it and want to fight the problem but they are unwilling to sacrifice our hard earned rights to do it. The other side is driven by fear and is willing to do absolutely anything to make us all "safe".

Summed up a little more eloquently Patrick Henry once said "Give me liberty or give me death" what people seem to be saying now is "take my liberty and spare me death." I think the latter is pretty pathetic and if that view is held by a majority then the terrorists have scored a far bigger victory than they imagined.

I don't think the two perspectives are irreconcilable though, CJ. As long as due process is followed (even if its after the fact, as FISA allows), I really don't have an issue with the surveillance. The issue lies with a singular authority being able to decide who to watch without feeling the need to clear it with the appropriate court, even if after the fact.

One would hope that to be the case, but when "absolutely anything" involves by definition bypassing due process, it becomes apparent that the two are irreconcilable – particularly when "absolutely anything" involves misleading the very people the President is supposed to be protecting just so he can build up Presidential power. That is when the concepts become irreconcilable.