Asymmetrical Information

I think it's that they want to jump on captured cell phones or laptops immediately, without having to work up a FISA request. It's just a matter of the time involved.

The bad news about this revelation of our terrorists monitoring is now that the terrorists know about it they will escape our detection.

The good news is that when the terrorist bombs go off in New York City, there is a good chance the New York Times executives will be killed.

Jake-

Aside from your remark being crass and uncouth, Ann Coulter made a similar one. So not only was it stupid, it was reused. Congrats.

When you cross the border into a foreign country, is it unreasonable to be searched? Because you can be.

When you send a package across the border into a foreign country, or across the border from a foreign country into the U.S, is it unreasonable for your packages to be searched? Because they can be.

So why should it be unreasonable for your communications across international borders�via cellphone, satellite phone, landline phone, etc.�to be "searched" (listened to) once it has crossed the border?

Not really taking a side, but just wondering.

Yeah you are right there Jake, without illegal wiretaps man every law enforcement agency, our entire intelligence community and our military are rendered incompetent.

What can they do, illegal wiretaps are their only tool now that 9/11 has changed everything.

It is a shame really. We won't be able to catch the bad guys anymore.

I suggest that you allow the government to tap all your phone lines and install a camera in every room in your home - direct feed to the local precinct house.

Now, now I know you are not a terrorist there dude, but it is ALWAYS possible that you can turn traitor to the party and start entertaining (gasp) dare I say it, anti-war sentiments.

Besides, at least you will feel safe knowing that at any given time the cops or the feds could be listening to you or watching you read the paper on the pot.

Finally, it will show that you are a good patriot, and hey who knows it might catch on in this country. You would be a hero to the party dude, start a ground swell of freedom through surveillance.

Damn I better go take some techincal classes in surveillance installation there could be upcoming boom in security companies.

OH OH I almost forgot. Back in the day, WWI to be exact, they had these Red, White and Blue cards. Very neat I tell ya.

Well, this is how they work. You carry a pack of this with ya like business cards and when you hear a comment that smears our Dear Leader, the party or is anti-war you give them one of the white cards.

This will put this commie, islamofacist scumbag on notice that someone is listening and watching his butt. If you catch them doing it again well you give them the blue card. Strike two Baby! If you catch them yet again, well then you give them the red card and report them to the Secret Service.

If you need anymore ideas I got tons of them.

Wow I could be consultant, screw the surveillance installer job, this is where the big money is....

Since I don't even play a lawyer on t.v., this is pure, end of the bar, yammering, but it seems to me that if the Commander in Chief in a time of war suspected that a homing beacon placed by the enemy was in one of the condos at the Watergate, designed to facilitate an unmanned drone attack on the District of Columbia, he may have the legal power to search the all of the condos without obtaining a warrant. I don't think Lincoln would have needed a warrant to enter a private citizen's home to find Confederate spies.

This is a complicated issue, which, of course, means that it will distorted beyond all recognition in the blogosphere.

So why should it be unreasonable for your communications across international borders?via cellphone, satellite phone, landline phone, etc.?to be "searched" (listened to) once it has crossed the border?

Because the 'border search' doctrine -- that physical objects entering the US can be searched without a warrant has existed since, and mutatis mutandis long before, the founding of the country. Its purpose is to prevent smuggling and the importation of contraband generally, not to provide a means of investigating crimes or gathering intelligence. If you want to say that communications that may relate to an intelligence or criminal investigation are analogous to smuggled contraband, you can, but I don't think it's a strong analogy or one with much basis of precedent behind it.

Someday a democrat will be elect president...maybe ...and then they can spy on all the domestic rightwing religious groups that oppose them. A nice inverse to spying on pacifist quakers. Regardless of party, unwarrented domestic spying is a bad idea because human nature being what it is ..IT WILL BE ABUSED

Noam Chomsy elected president...he spies on jake..deports him to gitmo w/o a trial where he forced to comfess "under mild duress"!

The big issue with the NSA scandal seems to be not that they spied on people located in the US, but that they didn't get a warrant to do so.

No, the big issue is that the President issued an executive order that allows the NSA to ignore well-established law. In effect, by issuing the executive order, President Bush directed the NSA to disregard the provisions of FISA. Each instance of spying without judicial approval is a problem (and a big problem for those of us who value our civil liberties), but the truly big problem is the actions of the President to direct people to act in contravention to law, in opposition to his vow to uphold the laws of the U.S.

I cannot state emphatically enough that when the U.S.'s highest ranking official fails in his duty to uphold our laws, this is a failure of the greatest magnitude. His credibility as a leader of the free world is destroyed.

What other laws has he issued secret executive orders to circumvent? Where else might we encounter instances that our civil liberties have been jeopardized or sacrificed? What other actions has he taken that he has not disclosed?

There is an implicit trust, facilitated by sworn duty, between the U.S. president and his constituents. How far can that trust be abused before it is irreparably broken?

While the Democrats are playing gotcha with Bush by misinterpreting our laws, terrorists will be playing gotcha with Democrats.

One terrorist getting through with a nuclear bomb will kill a million Democrats in NYC.

One terrorist getting through and poisoning the water supply will kill 200,000 Democrats in Chicago.

One terrorist getting through with a dirty bomb will kill 100,000 Democrats in Washington DC.

The buzz on the internet is about the Democrats self-destructing with the voters by continually taking pro-terrorist stances, but this is going too far.

fkaJames, this wasn't an argument about whether Bush should or should not be impeached; the thing that Bush seems to have allowed, that violates FSA, is warrantless searches. The rest is just rhetoric.

Jake,

Good job buddy! Stay on point! Be relentless!

Say it with me:

Freedom through Surveillance
Freedom through Surveillance
Freedom through Surveillance
Freedom through Surveillance
Freedom through Surveillance
Freedom through Surveillance

Such a talent, you should really organize your block and hold weekly party meetings.

I can tell you have charisma Jake.

Anyone here have a contact so Jake can get on the high school assembly circuit?

Anyone?

The bad news about this revelation of our terrorists monitoring is now that the terrorists know about it they will escape our detection.

The revelation is that our government doesn't follow the law. They can tap and listen in and they can get retroactive warrants from the FISA courts.

How many people who are denouncing George Bush today, for these acts, also think that FDR was among our greatest Presidents? Now, the people who also denounce FDR as a brigand at least have the courage of their convictions, but that isn't to say I agree with them either.

How the Commander in Chief legitimately combats an enemy which Congress has authorized war against (which leads into the topic of why, unfortunately in my view, Congress now passes authorizations instead of Declarations of War) is a complex topic. FISA is not a Constitutional Amendment, that is, it cannot legitimately strip a President of his Constitutionally authorized powers as Commander in Chief to prosecute war against the enemy.

Now, if the data gained in these unwarranted wiretaps were to be used to prosecute a U.S. citizen, as an exercise of the President's power as chief law enforcement officer, it seems to me that such action may be another matter altogether. Not that such considerations impeded FDR from executing U.S. citizens who only were brought before military tribunals, and had their appeals to the Supreme Court covertly sabotaged, when FDR quietly informed the Court that it best consider it's future legitimacy when ruling on the appeal, since he was going to execute the convicted no matter how the Court ruled.

Not that such nuances will mean much in the shouting festival which is sure to ensue.

Illegal? How? Carter, Reagan and Clinton all asserted the authority to wiretap without a warrant in international security cases. Jamie Gorelick defended Clinton's right to do this in 1994. This is a non-story. Which is why it's found in the NY Times.
see: National Review

The thing that Bush seems to have allowed, that violates FSA, is warrantless searches.

You should realize first of all that, if you consider interception (tapping) of communications as a search, that the NSA has done warrantless searches of US citizens for quite some time, at least of purely international communications.

The NSA is forbidden from spying on US persons (a larger category than citizens) without a warrant, including internationally. However, there are many circumstances and cases where a signal contains many different communications and conversations on it. It is extremely difficult to impossible in many cases for the NSA to intercept foreign signals while being able to guarantee that none of the conversations or communications in those signals will be made by US persons, abroad or no. Therefore, for a long time the NSA has intercepted foreign signals broadly, and then required that signals be decoded and any communication by a US person (assuming no warrant) be discarded within 72 hours of collection with no permanent record made of the communications.

However, nothing in the NSA's interpretation of the statutes requires discarding the parts of conversations performed by non-US persons. So I hope you can see the obvious similarity to the current situation. For purely domestic communications, since all parties are guaranteed to be US persons (the category includes all those on US territory, citizens or not), the NSA requires warrants before tapping information. Previously, domestic to international communications were treated the same way, since one way was guaranteed to be a US person. However, the most likely interpretation of these news reports is that the NSA is now treating communications between domestic and foreign locations like foreign communications-- intercepting them, decoding them, and then discarding any information on US persons (for which they have no warrant) but preserving the other half of the conversation if with a non-US person of interest.

This would follow existing interpretations of FISA and the Agency's mission, which already allows warrantless interception of foreign signals containing communications by US persons so long as the US person communications are discarded within 72 hours. Now, there are certainly possible civil liberties complaints-- for example, the Agency could use the other person's half of the conversation in order to justify a warrant against the US person on the other side, and with these signals, unlike purely foreign signals, there is a guarantee that at least half the parties will be US persons. (So too, can you see reasons for keeping details secret.)

All the news stories have focused on the interception of signals between foreign and domestic, and have not dealt with analysis and storage. Therefore, I feel that my interpretation is closest to accurate, since it is a natural extension of the Agency's prior actions and would be legal under existing interpretations which allow purely foreign signals to be intercepted in general and then the communications made by US persons to be discarded within 72 hours.

The post you quote is, in other words, not terribly far off the truth. Plenty of signals do not identify the sender, for obvious privacy reasons. However, that makes it nearly impossible for the Agency is intercept foreign signals while being able to guarantee that the signals contain no communication by US persons. Thus, long ago (dating at least to Reagan), the NSA decided that it could intercept foreign signals in general, so long as the signals were analyzed and all communication by US persons were discarded within 72 hours. Once making that leap, it is indeed a short slope down to what it seems like the news reports are describing.

The buzz on the internet is about the Democrats self-destructing with the voters by continually taking pro-terrorist stances, but this is going too far

No, what is going to far is your hate speech.

J Swift and rick:

Terrorists strike in large urban areas. Almost all residents of large urban areas are Democrats. Democrats are the ones who are at risk in letting terrorists having free reign within the US.

Will Democrat politicians be willing to pick up body parts of their voters when the terrorists they encouraged strike our cities? I doubt it. You guys are on your own when thousands of arms, legs and heads of Democrats go flying through the air.

Another reasonable interpretation, and an answer to "why didn't they get a warrant?"

Perhaps they are merely tapping the signals containing communications between known international terrorists and anyone, even previously unknown and domestically located. They don't have warrants on these new people who are talking to known terrorists, because these people on the other end are unknown. Under the previous interpretation, they couldn't tap those communications at all without a warrant for the person whose identity was unknown, since that person was inside the US. Under the new interpretation, they could tap that communications to at least see the foreign half of the conversation, even if they couldn't save the US half without a warrant.

That also sounds consistent with news reports.

I think that the "hate speech" aimed at Democrats is certainly over the line, though at the same time I feel that people have been over the line (about this very issue) in their own "hate speech" aimed at the President and the NSA. Considering the number of lawyers and other counsel who vetted this, and the Agency's history, I believe that my interpretation is likely accurate, since it is an interpretation that follows the Agency's own history and previous views on FISA; i.e., that some intercepts are allowed if the US person portion of conversations are discarded.

Almost all residents of large urban areas are Democrats
Well just factually not true.

the terrorists they [democrats] encouraged strike our cities

How exactly are terrorists being "encouraged" by this uproar about the NSA? Could you explain that?

Under the previous interpretation, they couldn't tap those communications at all without a warrant for the person whose identity was unknown, since that person was inside the US.

However, FISA allows the warrant to be secured retroactively, so this shouldn't really be an issue.

People didn't fear terrorists in the Soviet Union or crime fro that matter, they feared the KGB.

...so, what is the purpose of the 4th Amendment ?

Why is it in the Constitution at all ?

What were those American colonials so afraid of ?

"How exactly are terrorists being "encouraged" by this uproar about the NSA? Could you explain that?"

Careful Rick, you are questioning something that I am afraid is self-evident (I mean Jake and his fellow travellers believe it, what else do you need to know?) and you are just itching for a white card buddy.

Perhaps they are merely tapping the signals containing communications between known international terrorists and anyone, even previously unknown and domestically located.

Right, because the NSA would never abuse its power or anything. Nope, never.

Remember kids, we have always been at war with Eurasia.

Why didn't they get a warrant? Because they didn't think they needed one and because they thought obtaining a warrant was detrimental to national security.

As has been pointed out elsewhere, the Bush Administration believes it has the constitutional authority to eavesdrop on international communications without a warrant and that Congress cannot remove from the Administration that authority. The Administration may be wrong. (The Supreme Court has not ruled on the question.) But, if Bush is wrong, so, too, were all prior administrations since Carter (at least). It's also obvious that, if Bush is wrong, it is an honest, good faith, error. He would not have been notifying Congress and reviewing the program every 45 days if he thought he had anything to hide.

They thought obtaining a warrant was detrimental to national security because time is of the essence in these types of wiretaps. (How can it be a "wiretap" if no wires are involved?) From the moment we get a terrorist's cell phone or computer into our hands, it may be only a few hours until the terrorist's compatriots learn of that fact. From the time they learn a particular phone number is known to us, they will quit using that phone number (and we can no longer gain any useful information from a wiretap). Yes, the court can retroactively approve a warrant for a wiretap -- but that has to be done within 72 hours. Given the volume of wiretaps, there just isn't the ability to get that many warrants through the courts. (Or, the courts could just become a rubber stamp. If the court doesn't have time to review the application and determine if a warrant is, uh, warranted, how is anyone protected by the courts' review?) Besides, telling a few hundred court employees about the program (by applying for the warrants on a recurring basis) would have greatly increased the likelihood the program would become public knowledge.

However, FISA allows the warrant to be secured retroactively, so this shouldn't really be an issue.

It does, subject to some certain restrictions. However, even so, the routine capture of signals that had endpoints both domestic and foreign was definitely rare pre 9/11, though purely foreign signals were captured and then discarded within 72 hours. So it's possible that, as you say, FISA allows this with retroactive warrants, but the policy was simply not done prior to 9/11. (That would be an argument for the legality of the policy.) The news reports we've heard could even be consistent with a policy of doing this, and then obtaining retroactive warrants. You could easily still describe that as "spying without a warrant," since it would be at first, and in many people's opinion. We really need to see details in order to make a judgment. I really suspect that it's one of two things:
1) Authorizing emergency wiretaps for any communication that crosses national borders between a known foreign terrorist and a US person, with the possibility of retroactive warrants for the US person, or throwing away his half of the conversation;
2) Treating signals that crossed US borders the same as purely international signals; i.e., capturing the signals and then discarding comments by US persons, but preserving the other half of the conversation (made by non US persons) when it was of interest.

Note that either of these things could definitely be described as "spying on US persons without a warrant," just as the current procedure of intercepting (and then discarding without a warrant) of foreign communications could be-- and definitely was, when the news of Echelon came out.

Quite revealing commentary here.

The President already enjoyed full authority to wiretap away under FISA--even to seek a retroactive warrant if it were a matter of urgency. The FISA court granted nearly every request which was placed before it by 4 prior administrations.

Why did this President feel it necessary to violate the law?

Still no answer....waiting.

It seems they would WANT to get a retroactive warrant just to avoid controversy.

fkaJames, this wasn't an argument about whether Bush should or should not be impeached; the thing that Bush seems to have allowed, that violates FSA, is warrantless searches. The rest is just rhetoric.

Let me put this in a way that might be easier for you to understand, and I'll try to avoid rhetoric. Each instance of what you refer to as "warrantless searches" is what I will call a "bad thing." However, the truly "BAD THING" is the action that the President took in writing the executive order.

Perhaps an analogy will help? Suppose that the U.S. president wrote a secret executive order saying that imprisoning unarmed civilians by military personnel without charge was allowed, despite the fact that the written laws expressly forbade it. Then, yes, each instance of unlawful imprisonment would be a "bad thing." The "BAD THING" (all caps) of this situation would be the executive order which "allowed" it.

I'll leave the rhetoric to you.

Has anyone applied the razor? A simple explanation of the administration's action (one that does not require underhanded plots, the expectation of evil intent, or distain for the Bill of Rights)would be that they either know or strongly suspect that the FISA Court does/would leak like a sieve. If the court doesn't know the specs on each and every proposed wiretap, it can't blab them. QED

fkaJames, I understand that you think this is a bad thing. But I don't care whether the bad thing was the search, or authorising the search. The purpose of the post is to ask the question "why did he do it?" not to rant about how much you hate George Bush. There are whole blogs devoted to teh subject of how much their authors hate politicians of various stripes; this is not one of those blogs.

Because he could....he can do what ever he wants...who in the name of Jane Galt would stop him. He controls his party and his party control all the branches of government. Sure his party was at one time against nation building,for balanced budgets and full of libertarians. But now Republican is as George Bush does. He is not accountable for mistakes either in ideology or execution.

"Jane," you begin your post with the statement that "[t]he big issue with the NSA scandal seems to be not that they spied on people located in the US, but that they didn't get a warrant to do so." My point, again, is that the "big issue" is absolutely NOT that.

What is alarming is that you "don't care whether the bad thing was the search, or authorising (sic) the search." Whistling in the dark is your prerogative, but some of your commenters (myself included) prefer to try to distinguish the lurking dangers.

He has marketed himself to the great mass of church going, nonpassport holding red state americans as "THE HEROIC WARTIME PRESIDENT". Of course he will step on a few civil liberties "to make us safe". He is just daring the democrats to "line up with the terrorists". Brilliant polictal theater...especially when it soaks up headlines that would be filled withe the mullahs that are winning the wonderful election in Iraq.

One plausible, simple explanation is that it would have been perfectly feasible for them to get warrants but they chose not to do so simply because they don't believe in asking permission for anything and do believe in aggressively applying an expansive view of Presidential power at every opportunity. That explanation is consistent with a lot of other Administration behavior.

"Lizardbreath" said: "If you want to say that communications that may relate to an intelligence or criminal investigation are analogous to smuggled contraband, you can, but I don't think it's a strong analogy or one with much basis of precedent behind it."

Huh? If it's not a strong analogy, that's only because monitoring communications relating to terrorism is a hell of a lot more important than seeing whether Grandma Jessie is bringing contraband petunias back from Britain.

This thread is bordering on trollish, but I'll give my two cents anyway:

While I'm not totally sure how the numbers add up with the Poor Man's wiretap scheme, it does illustrate how the interplay of law and technology can make a seemingly reasonable oversight extremely onerous in practice.

If you're deciding whether to use a new source of information, the obvious question is: how much information do I extract for a given amount of effort on my part? Without technology, considerations of budget, manpower, available time, etc, will put restrictions on the amount of information you can collect, and a lower limit on the quality of information which it is economical to collect and analyze. Technology can greatly increase the total information it's possible to retrieve by making it possible to sieve through vast amounts of junk data -- but only if the legal regime allows you to *collect* those vast amounts of data. In this case, that might include large numbers of wiretaps which will be discarded after algorithmic examination. In the TIA case, that consisted of commercial databases full almost entirely of information that held no relevance to criminal investigations. But in many ways, our current privacy law requires so much legal effort to install a wiretap that *each individual wiretap* must be a high-value source of information in order to justify its existence, and the possibly much greater amount of information existing in reams of low-value data must go uncollected.

So how do you square the circle? Perhaps you can issue a general warrant for the large-scale collection and algorithmic examination of data, and a specific warrant for followup investigations by actual humans. Maybe you require a warrant for the data to be retained.

The FISA court granted nearly every request which was placed before it by 4 prior administrations.

Actually, it wasn't "nearly" every request, it literally was every request. Data kept by the Electronic Privacy Information Center show that from when the FISA court set up shop in 1979 through 2000, they reviewed about 13,000 warrant requests, and did not deny a single one.

Here's a link to the numbers:

http://www.epic.org/privacy/wiretap/stats/fisa_stats.html

During President Bush's first term, they denied warrant requests for the first time ever--a total of 4 denials out of over 5600 warrants requested from 2001-2004. That's an approval rate of "only" 99.93%, as opposed to their previous 100% approval rate.

Incidentally, I'm very impressed with the Poor Man's thinking on the issue, even if it turns out to be wrong. His scenario is plausible enough that, provided the order of magnitude estimates for the work involved are correct, I'd be a little disappointed if the Administration hadn't at least considered something of the sort. There's surely enough middle ground between Orwellian monitoring schemes and Clinton-era passivity for such an approach to be very useful in finding terrorist cells.

13,000 warrant requests in 20 years is about 1 3/4 per day. Even if the court were a rubber stamp, I could see that being a problem for some new system which required several hundred sources to be briefly monitored and discarded in a short span of time.

Jake,

I think what you fail to understand is that one of the fundamental truths of our great nation is that we do not trust kings. Period. Envision the following scenario--Bob Smith is an american graduate student in Nepalese studies. He visits Nepal and reenters the company. He buys a copy of Mao's book and makes some calls back to Nepal. Somehow, this raises flags which make him seem like a possible Maoist. (It turns out he is just trying to interview some of the locals for a chapter in his this thesis). His phone is tapped (without warrant, but under the presidential authority) and on the chance that he is a possible maoist terrorist in the making, he is brought in and held indefinetely, without trial. He just vanishes. The problem that some of us have is that this scenario should not be possible within the US. And you might argue that these powers will not be abused. But FISA was specifically written to constrain abuses related to domestic spying which have occured in this country. Everything in the early history points towards a distrust of central authority and a strong defence of personal liberties (no unreasonable searches and seizures, right to a fair and speedy trial, etc.). If we allow ourselves to go down this path, we lose a part of who we are as Americans and the terrorists win, without another bomb.

So, to sum up:

(1): We don't know the specifics of what Bush did
(2): But by GOD we're POSITIVE it was illegal!

There's been little sense in this thread so far, and almost all of it has been John Thacker's. The legalities involved in the intercepting of communications are by no means cut and dried, and the courts have a history of allowing very broad wiretapping powers where national security is concerned.

Pause for a minute and consider that none of the Democrats who knew about this program said or did anything about it during the closely-run 2004 election. Believing that this program is clearly illegal requires believing that top Democrats helped Bush pull a cover-up of a scandal that would have cost him the election. How likely does that sound? The more likely explanation is that the program wasn't clearly illegal.

Another thought -- most digital telephone systems are able to clearly distinguish two two parties to the call. If John's right, and it is accepted practice to allow wiretaps of foreigners without warrants, then it should hypothetically be possible to record the foreign-originating half of every international call to or from the United States without ever needing to record or listen to the US-originating half. Would that still count as a "wiretap" on a US citizen? Interesting question.

resigned - I don't disagree with your concerns, but it seems your disagreement is with the Constitution, not the current President. If, as the courts have consistently ruled, the President has constitutionally granted authority to conduct wiretaps -- without interference from the courts or Congress -- than it's not fair to suggest Bush has done something criminal by doing what the Constitution allows him to do. It may be bad policy, but it's not criminal.

Nor, do I think, in this case, your concerns -- as a practical rather than a theoretical matter -- are warranted. Yes, in theory, this power could be abused. On the record, however, it appears Bush has done a lot to prevent such abuses. That, after all, is the reason the program is reviewed every 45 days.

Restated David Walser:

The emergency powers of the Constitution, given to a single, fallible elected official with arguably the most power in the world trumps the freedoms and civil rights of 295+ million Americans.

These same freedoms and rights this elected official has taken an oath to defend, can be dismissed and violated at his discretion.... and, and he does not have to suffer the checks and balances of the other branches of the government while he does so.

This is poor policy.

I keep re-reading your comment David, just a second....

oh ooooohh and lets not forget that the fallible man with the most power in the world could IN THEORY ABUSE IT?

AND AND, SWEET JESUS, I LOVE THIS...IT IS OKAY BECUASE THE BUSH ADMINISTRATION ARE MONITORING THEMSELVES AND MAYBE THE VP IS KEEPING THE REPUBLICAN LEADERSHIP IN CONGRESS, MOST OF WHICH ARE CURRENTLY UNDER CRIMINAL INVESTIGATION OR CRIMINAL INDICTMENT, IN THE LOOP.

Wellllll I feel so much safer now that you have explained it to me David.

It amazes me how breathtakingly ignorant and gullible people can be.

I think we will call this the "Temporary Totalitarian President Theory of Government" or "The Benevolent Dictator, He does exist. Honest, You just have to give him a chance."

j swift - If you are going to distort my remarks in order to satirize them, you ought to distort them in someway that is consistent with my point. My point was that the Constitution grants the President, any President, this power. If you don't like that, your argument is with the Constitution, not the President. I don't recall all this concern when Clinton's Justice Department was claiming the President had the Constitutional authority -- unaccountable to Congress or the Courts -- to search a U.S. resident's home without a warrant. I'm NOT saying the President SHOULD have this authority. I'm saying all the Presidents since Carter have claimed this authority and the courts have agreed with them.

Secondly, I pointed out that the current Administration has put into place lots of procedures to prevent abuse of this wiretapping authority. Thus, I argued, the problems with the policy are more theoretical than practical. You distort this position into one where I'm apparently okay with the President becoming a dictator -- all because, in theory, the President could abuse this power. That makes dictatorship possible, how, exactly?

More to the point, asking a court for a warrant is the remedy to all these potential ills? In an effort to demonstrate that the Administration need not have gone around the courts, several have noted that the courts have granted virtually all warrants for wiretaps requested. If this is true (and would remain true had the Administration asked for warrants in these disputed cases), then the process of going to the courts for a warrant offers NO protection from abuse. All it does is take up time without changing the end result. On the other hand, if the courts would NOT be a rubber stamp and would consider each warrant on it's merits, then the argument that the President NEEDED to circumvent the warrant process for time constraint reasons is justified.

One last thing, just because there is potential for abuse does not mean power should not be granted to public servants. Take the case of a local cop. Tick one off at a traffic stop and the cop could shoot you dead. The cop's "brothers in blue" might support his version of events such that your killer, far from going to jail, is given a medal for his heroism in shooting you. All of this could and has happened to others in the past. Yet, we still need cops and we still need to give them power.

The bad news about this revelation of our terrorists monitoring is now that the terrorists know about it they will escape our detection.

That's right, before the NYT report, terrorists had no idea we we were trying to intercept their communications. Now that they know, they will make sure we intercept none of them.

The only thing more dangerous to us than terrorists is idiotic citizens stupid enough to believe this.

...my razor cuts a different direction: Perhaps no warrants were sought because they feared the requests would be denied. Just who was being surveiled, and why?

Or perhaps it was just arrogance.

Good discussion.

cheers,

DD

It's amusing watching the MSM drool about this: "Wiretapping? WIRETAPPING?! Isn't that what NIXON did?! NIXONNIXONNIXON...!!!!" (loud panting noises)

Of course, most reporters today don't even remember Nixon. They just hate Republicans because their poli-sci professor did...

Sometimes I forget this is a libertarian blog...

Commenters elsewhere (notably Belmont Club, at fallbackbelmont.blogspot.com) not only clarify the issue of how long that "three-days-after" warrant can actually take to receive, but also how routine unwarranted and never-warranted searches actually are in law enforcement. But both here and elsewhere, I see not one person pointing out that whatever we know about FISA warrants under other presidents, we know a damnsight less about what they may have "gotten away with." That the NYT caught a leak about unwarranted "wire"taps under Bush does not imply that every other administration has foregone the temptation to conduct them.

ISTM that since Bush obviously had no reason to conduct these "wire"taps besides national security (go on, figure out another one - one that doesn't start with "Because he's power-mad and it was an abridgement of Our Civil Liberties with... no apparent utility besides a national security interest..." That's just embarrassing to listen to), even as a practical matter there's nothing to fear from this "precedent," unless you're an actual enemy of the US.

That terrorists knew they might be under surveillance is patent. That they knew exactly what US capabilities or US surveillance priorities or the shape of the US decision tree were, is less so. Some of these things are now public knowledge. Likewise, that every terrorist functionary always abided by organizational safeguards like "I told you never to call me at this number!" seems vanishingly unlikely to me - these aren't supermen, just mad (in both senses) people, who can make mistakes that we can capitalize on if we have the tools. But does anyone doubt that in the wake of the NYT story, cell leaders started sending urgent messages (maybe by human mule, at this point) about enforcing signal discipline? I know I would. Or tightening up cell structure? I suggest The Moon Is A Harsh Mistress for a terrific discussion of how to keep inevitable betrayals to a minimum.

To address the question on legality on this issue, there is Plenty of precedence to support wire-tepping domestic based phone calls for foreign intel purposes (Carter and Clinton both issued almost identical Executive Orders, even without the benefit of being on a war footing). As onerous as it may seem to many people, its a fact. The question is, is it neccesary? Yes, unfortunatly it is. This isn't the 20th century when we knew who are enemies were, what uniforms they wore, and epected to meet them on the battlefield with tanks, machine guns and large formations. This conflict we are in is far more deadly than anything we have seen except for the Cold War, because it is very difficult to find these bastards and they meen to not jst defeat us but destroy us.

I don't blame the President for not being forthcoming with Congress on this issue. It is an incredibly sensitive intelligence matter with far reaching, very real consequences for our actions against terrorist cells, and Congress quite frankly can't keep it's collective mouth shut. When it comes to intelligence of this sort, you have to err on the side of secrecy as long as neccesary. Even if it came about that court orders are neccesary, I would not trust that system to preserve the proper operational security to effectively carry out these intelligence procedures.

This may come as an unsettling shock to some folks, but every aspect of war and the preservation of Natioanl Security has ugly sides to it. Sometimes intelligence requirements neccesitate doing ugly things that push the boundaries of our collective American values and traditions. This is so, because in order to defeat those who would do us harm you have to be willing to beat them on their level. Like I said, unsetling to many, but our freedoms were not won by asking the bad guy to be nice over a cup of tea.

Monitoring phone numbers lifted from Al Quaeda cell phones and computers probably is not the end of freedom as we know it in America. The Bush-bashers raise the specter of widespread domestic surveillance. There is no evidence of this, yet these people expect to be taken seriously when they equate focusing on known terrorists and their associates as one step removed from tapping your phone or mine. It is no wonder the Left can't win an election. Jake is over the top saying Democrats 'encourage' terrorists. It is not wrong, however, to say that Democrats, far more than Republicans, favor policies that make fighting the war on terror more difficult which would then make the terrorist's work that much easier.

Not a single complainer argues why it is a bad thing that an Al Quaeda-related phone call is monitored. I envision the next Democrtatic presidential candidate arguing in a televised debate against what the NSA is doing and see a 3 to 5 point permanent bump in the polls for the Republican candidate.

David writes:

“My point was that the Constitution grants the President, any President, this power. If you don't like that, your argument is with the Constitution, not the President.”

First, President takes an oath to defend and support the Constitution of the United States. The idea being that we are nation of laws not men and that even the most powerful elected official in the world follows that law and his interests, the interests of his administration and party are subservient to the Constitution, the civil rights of the citizens, and the United States Code.

Second the 4th Amendment to the Constitution provides that there will be no unreasonable searches or seizures. This means, as a general rule, without probable cause and a warrant, or an exception provided by statute or case law searches are unreasonable, unconstitutional and a violation of victim freedoms and civil rights.

Third, the Constitution arguably provides implied emergency powers that Presidents have exercised in numerous situations in our history. However these implied powers, due to the very fact that there are implied and not explicit are amorphous. To my mind they are therefore dangerous and susceptible to abuse, abuse to the point of fascist or totalitarian proportions. Since all men are fallible and corruptible, no politician no matter his party or popularity gets a free pass to do whatever he wants by waving an emergency powers flag.

Fourth, the FISA and E.O. 12333 has governed foreign intelligence gathering through electronic surveillance since what 1978? FISA was purposely structured to allow intelligence gathering and yet to protect Americans’ civil rights. As much as I know of FISA at this point is:

(A) The Act provides for a secure court, with 11 judges, and a procedure to process and approve taps with warrants. The act prescribes the standards for probable cause, and a warrant as required by the Constitution and an appeal process for those warrants disallowed.

The numbers being bandied about the blogoshere are around 15,000 tap requests with less than 10 being denied since what 2000?

(B) An emergency process where the President or the AG can start taps and get retroactive approval. Near as I can tell should the emergency tap be disallowed the information would be inadmissible in court, but the reason for the tap does not need to be related to a criminal investigation in the first place.

(C) Minimization procedures that are required of the AG as follows:

(h) “Minimization procedures”, with respect to electronic surveillance, means–

(1) specific procedures, which shall be adopted by the Attorney General,
that are reasonably designed in light of the purpose and technique of the
particular surveillance, to minimize the acquisition and retention, and
prohibit the dissemination, of nonpublicly available information concerning
unconsenting United States persons consistent with the need of the United
States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which
is not foreign intelligence information, as defined in subsection (e)(1) of
this section, shall not be disseminated in a manner that identifies any
United States person, without such person’s consent, unless such person’s
identity is necessary to understand foreign intelligence information or
assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the
retention and dissemination of information that is evidence of a crime
which has been, is being, or is about to be committed and that is to be
retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any
electronic surveillance approved pursuant to section (1802(a) of this title,
procedures that require that no contents of any communication to which a
United States person is a party shall be disclosed, disseminated, or used for
any purpose or retained for longer than 72 hours unless a court order under
section 1805 of this title is obtained or unless the Attorney General
determines that the information indicates a threat of death or serious bodily
harm to any person.

So the beef is not with the Constitution, the Constitution, the current case law and the current statutes are what they are. The beef is with the President, his appointed AG cronies and whether their actions have violated the Constitution, or the applicable statutes.

The best the President can do is argue that he has done what he has done under some implied emergency power. However I see nothing that justifies the use of the implied emergency powers for warrant less taps other than an handy excuse after our President’s actions have been exposed.

I've read a number of analysis' by people who are experts on the subject, aka lawyers. It seems the mild consensus is that this did not violate the 4th amendement, due to the national security and border clauses. But that it was probably illegal according to the FISA. The question remains: why didn't they get a warrant?

It is beginning to look like the taps were not taps on any person or building in particular but mass or net taps. So the President and his merry band of incompetents could not provide the required specifc information for probable cause and warrants.

What immediately usable intelligence value (intelligence it would seem that would be necessary to avert violence) this has I do not know. If you hear something suspicious and can not connect it with a person or place what good is it?

Sure I suppose you can point to it as a some vague and undefined threat and raise the...what is that there security level thingie that has not been used since the election again?

It might give you a lead that you can further investigate to determine whether it has any validity at all, but in the mean time you have already violated US citizens' constitutional rights. Unless you buy the argument that unidentified citizens can not have their civil rights violated which I do not. It is the act of the government that is the violation not the results of the act.

I still vote for arrogance and incompetence myself.

Why did this President feel it necessary to violate the law?

Still no answer....waiting.

And you'll keep waiting until you learn how to ask questions that are not of the "Why did you stop beating your wife?" variety.

Tom-

That is a mischaracterization of the question being asked. It looks like the President did violate the law, at least thats how the lawyers I have read interpreted it. So I guess if we rephrase the question to be, "Why did the president violate the law?", we aren't presupposing that the President violated the law, like we would presupposed that husband beat his wife.

We still don't have an answer to why the president violated the law.

J Swift - You argue that FISA prohibits the actions taken by this (and all prior) administration(s). I argue, the Constitution grants the President the authority to do what he has done and that Congress CANNOT, by passing a law like FISA, prohibit the President from exercising his Constitutional prerogatives. That is, to the extent FISA conflicts with the Constitution, FISA is a dead letter. Did the President violate the provisions of FISA? Arguably, yes. He did (as did every President since Carter). Did he violate the law? Not if the President is not bound by FISA. It just so happens FISA Court of Review, in Sealed Case No. 02-001, looked at this question:

"The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

So, since the courts have ruled Presidents have the requisite Constitutional authority, FISA CANNOT prohibit a President from conducting warrantless searches to obtain foreign intelligence information. Again, if you don't think the President, any President, should not have this power, your recourse is amending the Constitution.

"We still don't have an answer to why the president violated the law." - rick mcalexander

Well, Rick, how about "We don't have an answer to why the President violated the law because the President did not violate the law." Yes, he may have done things prohibited by FISA, but, as the courts have ruled, the President is NOT bound by FISA's prohibitions. Since his is not bound by FISA's prohibitions, violating them is NOT breaking the law.

So, perhaps your question is better put: "Why didn't the President follow the non-binding guidelines Congress set out in FISA?" That doesn't have quite the punch of your version, but it's more accurate. It is also a question that has been answered, several times, supra. In sum, the President thought this approach better met our national security needs than the approach suggested by Congress.

Why are people apparently accepting on faith that the only people being surveiled were communicating with Al Qaeda? I mean hey, we know the power of surveilance technology. If you have the power to intercept any phone conversation, or read any email in the United States, and you're a Politician...

Umm, I can think of many non-terrorists related uses for this ability that wouldn't get past the FISA Court examination.

Omniscient telecommunication power is easily corruptable.

--Cobra

Wow. Somehow managed to make it thru the whole thread. No wonder liberals keep losing elections. This thread would be a whole lot more worthwhile, if the folks on the left could keep up in the facts and logic department. C'mon, the future of our democracy requires two sides offering intelligent alternatives. The weak stuff you are throwing up here (unfortunately similar to the kind of stuff we get week after week from Howie Dean and the Times) won't cut it.

Libs, get off your butts and start working. The country deserves better than this weak drivel. Put your brains in gear. Quit flapping your jaws. Start using facts, rational argumentation and logic. Your nation needs you. Come back through the looking glass. Start living in the real world again. Join the rest of us.

Whilst as a libertarian I'd like them to join 'us', I am not always sure if that is the 'us' that lived in the real world :)

David you have yet to cite for me one bit of Constitutional language where the President has explicit authority to violate the requirements of FISA and the 4th Amendment on which FISA is based.

Which by the way is constitutional. If the President's authority has been unconstitutionally restricted by FISA why haven't all these Presidents up to and include Dubya challenged it in courts?

Why because you can not cite anywhere in the Constitution language that gives the President the authority to violate the 4th amendment. The only place it exists is in your mind. You can not cite case law that states that FISA unconstitutionally restricts any power of the President.

Here is Article 2 of the Constitution find it for me

Article II. - The Executive Branch Note
Section 1 - The President Note1 Note2
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
(The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.) (This clause in parentheses was superseded by Amendment XII.)
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
(In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.) (This clause in parentheses has been modified by Amendments XX and XXV.)
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3 - State of the Union, Convening Congress
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section 4 - Disqualification
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

You are either a buffoon or a liar.

j swift - I'm neither a buffoon nor a liar, nor do I play one on TV. Nor, as you pointed out, have I cited any language in the Constitution that specifically grants the President authority to wiretap for purposes of national security. Nor have you cited any language in the Constitution that prohibits the President from wiretapping. This may be because neither of us can point to any specific language on the topic for the simple reason that, when the Constitution was drafted, the concept of wiretapping didn't even exist.

This lack of specific language might pose a bit of a problem. For you, it is self-evident that a warrantless wiretap is a violation of the 4th amendment. I don't agree. I think the "search" (if indeed a wiretap of the kind we are discussing should be considered a search for purposes of the 4th amendment, a point I do not concede) has to be "unreasonable" to violate the amendment. Many types of searches are considered reasonable even though there is no warrant nor any judicial review before the search. Ever returned to our country from abroad? Then you know that even a US citizens' person and belongings are subject to search -- without a warrant. Why? Because such searches, at the boarder, are considered reasonable (and are, therefore, not a violation of the 4th amendment). I believe it is reasonable to "search" international phone and data communication for clues about the intents of our enemies. Therefore, I see no violation of the 4th amendment. You disagree.

We would have to leave it there, in a state of disagreement, were it not for a group of folks who wear robes whose job it is to resolve such disagreements. We call them judges. I've already quoted to you language from one decision handed down by three of these judges serving on the FISA Court of Review. These three judges, who, when they are not serving on the FISA Court of Review, serve on our nation's appellate courts, found that "all the other courts ... have ... held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." That's "all" as in EVERY SINGLE ONE OF THE COURTS that has addressed this issue has held that the President has the Constitutional authority to conduct warrantless searches. And, you know what? The 4th amendment has been around for a pretty long time. I bet that each and every one of these courts were aware of the 4th amendment and, wonder of wonders, they STILL found that the President could conduct warrantless searches! Oh, and, the court I cited also found that the FISA CANNOT restrict the ability of the President to conduct these searches.

Let us review: You've quoted the entirety of Article II of the Constitution. I've haven't quoted a single word from the Constitution, with the exception of the word "unreasonable". I have, however pointed you to a court of competent authority that has considered the question and has held for my side of the question. Now, unless you are going to suggest I should defer to your superior interpretation of the Constitution and agree with you that the courts just got it wrong, I'm going to suggest this should end the debate.

For those of you scoring this at home, please note the lack of name calling in this post. However, the post is, in places, a tad snarky. Allocate demerits as you deem appropriate.

To me, it seems futile that what we are debating here is whether the president broke the law. Maybe some of you are, but I am not a lawyer, so the legal, normative opinions of lawyers are the one's I am trusting. And from what I've read, the President probably did not violate the 4th amendment, but probably did violate the FISA.

Orin Kerr's analysis is here:
http://volokh.com/posts/1135029722.shtml

He is a lawyer, and probably knows more about the subject at hand than anyone else in these comments.

The question remains (well the question remains to non-partisan thinking people, unlike stan), why did the president commit an act that probably violated FISA? If it turns out it was to aid in the pursuit of terrorists, then thats all well and good. But what if, if not?

Rick - In case you, or anyone else is still reading this, there are at least three reasons why the administration may have chosen to ignore some of the strictures of FISA:

First, they honestly did not believe that FISA applied in this context.

Second, FISA requires "probable cause" in order to grant a warrant. It's been speculated that what the NSA has been doing relies on new technology. Technology that, instead of targeting a person, targets a phrase or some other type of data. How do you get a warrant if you cannot specify the person that is the target of the search? To the extent the new technology made the provisions are obsolete, the administration would have had to get Congress to update the law -- which would have required time the administration may not have wanted to spend. Worse, and more likely, it would have required revealing the technical details of how the new technology worked.

Third, the NSA has reportedly been conducting thousands of "taps". Whether this "thousands" is measured by the hour, day, or week, it is a quantum leap in the volume of activity. It is doubtful that the FISA court had anything near the capacity needed to handle this volume. Reportedly, the NSA is having the shift supervisor approve each tap. This implies that, in addition to volume concerns, there is a concern about timeliness. They can't wait for the court.

The decision to follow up on a certain lead is evidently being made on a real time basis: "We have a phone conversation between to unknown individuals, speaking Arabic, one seems to be in Pakistan and the other in the Western US. They used the following words: ..." Based on the limited information, they don't have enough for a warrant request, nor do they have any time. Someone has to make the decision then and there to listen in or to use their limited resources to listen in to another, more promising, call. Since they don't have the information needed to apply for a warrant, they can't apply. Since there would need to be thousands of applications if they did have the information, the court could not respond in a timely fashion (prospectively or retroactively) if the applications were filed. Lastly, the administration does not believe it is bound by FISA in this context and would rather use its resources in a manner it thinks is more productive.

David-

I agree with you completely. We can't omit the possibility that the administration didn't ask for a warrant because it was performing particularly nefarious and illegal activities. So I guess we just sit back and wait until all the information surfaces.

Rick - No, we can't omit the possibility that the administration didn't ask for a warrant because it was performing particularly nefarious and illegal activities. Just as we can't rule out that the Clintons killed Vince Foster and made it look like suicide. Sure, there's no evidence that the Clintons did any such thing and its wrong to suggest out loud that they did something so horrible without some rational basis for the accusation, but we can't rule it out.

In the case of the current administration, we can say that having the Justice Department review the program every 45 days makes it extremely unlikely that anything nefarious was going on. That's hardly the best way of keeping your crimes against humanity hid. Besides, maybe it's just a failure of imagination on my part, but what kind of horrible things, exactly, could Bush have been up to? No one's suggesting that he's been listening in on the cell phone conversations between Democrat leaders in Congress, are they? Maybe, he's been using the NSA to electronically review the FBI files of Democrats. I know, maybe you think he's been using the NSA to somehow snoop on the credit reports of possible Democrat candidates for Senate. Whatever evil you imagine, we cannot rule it out. And, since he's basically an evil man, it's fair to assume the worst in his case because we all know Republicans would do these kind of things if they thought they could get away with them. Democrats on the other hand never would do anything wrong -- at least not intentionally. Certainly, none of the them would EVER do the kinds of things suggested above.

David-

It was wholly unnessecary for you to end this in a fit of sardonic attacks.

Oh, and, the court I cited also found that the FISA CANNOT restrict the ability of the President to conduct these searches.

Wow, this would seem to imply that Congress themselves cannot restrict the powers of the President. I'm not an expert on the case law, but is this a reasonable interpretation of what you said? Or is it simply that FISA doesn't apply to the President? It's an important distinction, because if anything Congress does can be ignored by the President, and Congress is the only body that can make real law, it follows that the President is above the law, by way of the Constitution. And that seems somewhat perverse to me. I don't agree with Article II being interpreted broadly, and I thought conservatives were strict constructionists, generally speaking.

I don't think the debate is being pursued fairly, anyway. What bothers me aren't the Admin defenders who argue in defense of the Admin's actions - I expected that. What bothers me are the ones who act surprised that anybody would react negatively to this news. Legal or not, these guilty-until-proven-innocent traps are not in the best tradition of conservative ideals. Even if they believe this is the right thing to do, conservatives should at least understand where the opposition is coming from, instead of feigning incredulity.

Rick - You, of course, are right. I should not have succumbed to the temptation to be snarky in my reply. However, it bothers me when the President's critics seem to require proof of innocence. And, yes, it bothers me whether we are speaking about critics of Bush or Clinton.

Which brings me to Jeremy: "Legal or not, these guilty-until-proven-innocent traps are not in the best tradition of conservative ideals." You did mean "taps", not "traps", didn't you? If so, you are wrong. I don't believe conservatives (or liberals) have ever required warrants to spy on our enemies. And, I think that's where all the misunderstanding is generated. For many of Bush's critics, terrorism is a law enforcement question and should be dealt with as such. In a law enforcement context, we don't use the power of government until we have pretty good evidence someone is involved is something nefarious. We'd rather allow someone to break the law (and try to punish them afterwards) than take action that might interfere with an innocent person's lawful actions or privacy. Sure, the guy might be plotting to rob a bank, but it's rare that we would do anything until he puts that intent into motion.

In a national security context, however, we take a much different approach. We actively try to prevent terrorists from acting on their desires. If we knew where OBL was right now, we would not bother serving him with a warrant before rushing into his cave. Nor should we have any concerns about the ethics of listening in on our enemies' conversations. No, we don't always know which conversations are those of our enemies and those of completely innocent people. But, in the context, we have always given more weight to protecting our national security interests than on avoiding listening in on a private conversation among innocent parties.

As for your wonderment that the President might have some power the Congress cannot encroach on, I agree. It does seem strange. However, suppose Congress passed a law (over the President's veto) forbidding the President from holding press conferences. Suppose also that the courts had found that the President had an inherent right to speak with the press. Would the President be breaking the law to hold a press conference? Surely, the President would be violating the law enacted by Congress, but is the law binding on the President? No, because Congress cannot restrict the President's ability to speak with the press.

In this case, the courts have ruled that the President has the inherent authority to conduct warrantless searches -- both inside and outside the US -- as long as those searches are being conducted to gather information for national security (not domestic law enforcement) reasons. The FISA Court of Review also found that Congress cannot restrict the President's right to conduct such searches. Strange? Yes, but only because there are very few areas where Congress and the President do not share responsibility. This is one of those areas.

In a national security context, however, we take a much different approach.

Exactly, I understand the difference - which is why the NSA has always been tasked with spying on non-Americans. It's exactly why this case is so troubling - the War on Terrorism ends up defining national security as much, much broader than anything we've seen yet.

It would be interesting to know what other things the President feels he has "inherent authority" to do.

Surely, the President would be violating the law enacted by Congress, but is the law binding on the President?

It may not be, but I seriously doubt that it would have anything to do with his "inherent authority".

In this case, the courts have ruled that the President has the inherent authority to conduct warrantless searches -- both inside and outside the US -- as long as those searches are being conducted to gather information for national security (not domestic law enforcement) reasons.

But it seems like there's no check on the President's power to conduct these particular types of searches. Is that your argument - that in the case of National Security, the President is sovereign (by way of the FISA court's decision)?

Yes, Jeremy, that is what I am saying. I am NOT saying that is as it should be, but that does seem to be the clear implication of the court's language: "FISA could not encroach on the President's constitutional power."

That does not mean there are no limitations on the President's ability to conduct such searches. Such searches must be "reasonable" (if conducted in the US or against a known US person inside or outside the US) or they will violate the 4th amendment. The Supreme Court has held that warrantless searches are reasonable if they are done primarily to gather foreign intelligence. If someone could demonstrate that the President was snooping on US persons for some other reason (such as to spy on his political opposition), the snooping would be illegal.

David writes:

>>>"The Supreme Court has held that warrantless searches are reasonable if they are done primarily to gather foreign intelligence. If someone could demonstrate that the President was snooping on US persons for some other reason (such as to spy on his political opposition), the snooping would be illegal."

There's the rub. If there are no warrants or official requests for the questionable snooping, how could somebody demonstrate its illegality? Where's the paper trail?
Either the Administration would have to admit to wrongdoing, or one of the NSA surveilers would have to turn state witness against the Administration.
Or there's the third option where an independent investigation takes place examining the data retrieved from the volume of searches.

The third option seems the most likely of the three.

--Cobra

Those of you in this thread arguing that "the left" has no ability to think clearly or "keep up in the facts and logic department" should know that I'm a big fat flaming fucking pinko liberal commie type, yet I wrote the analysis quoted. Also, I hate illegal wiretaps and our cackling jackass of a President, and strongly favor impeachment.

To the "libertarians" here, c'mon, guys, show and prove. If that word means anything it means opposing people who do things like this.

Happy Holidays!

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