Al Maviva, writing at Cold Fury, well-encapsulates the argument I made yesterday for the legality of Bush’s domestic NSA monitoring program:
[…] In brief, the warrantless monitoring exception applies to domestic agents of foreign powers that are tied to national governments, to factions of nations, or to entities openly controlled by foreign governments, per 50 USC 1801(a). The warrantless monitoring exception does not per se apply to operatives of foreign terrorist groups. But what if a terrorist operative is working for a foreign group that is either a state sponsored terrorist group, or a group with pretensions to ruling a nation, or a factional part of a nation?
This is relevant because subsections a(1-3) clearly permit warrantless monitoring of the agents of foreign powers, where those powers are foreign governments, factions of foreign nations, or claimants to foreign government power. Subsection 4, which defines terrorist operatives, is not within exceptions to the warrant requirement – except perhaps under some “exceptional exceptions†relating to emergency authorities, grave harm to persons, etc.
Glenn [Greenwald] attacks pretty strenuously using a very literal reading of the statute. His argument is that if somebody is working for a terrorist group, then they fall under subsection 4, and that’s final, they cannot be monitored without a warrant.
I disagree, and believe a pretty fair case can be made that a Hezbollah operative or AQ operative has state sponsorship ties.
Sub sec. 1801(a) defines groups subject to warrantless monitoring to include:
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
Hezbollah is, of course, openly supported by Iran and Syria. There is no question that there is a state sponsorship locus, which would bring them within 1801 subsection a(3), providing subsections 3 and 4 are not mutually exclusive. Likewise, Al Qaida has made claims to be the sovereign government of various nations or regions. They do control substantial land in various areas of Afghanistan and Pakistan, and they have certainly laid claim to places like Fallujah, where they established provisional AQ governments, for brief periods of time. One can make a decent case that AQ and AQ remnants are part of a foreign national or factional power, thus fitting within subsection a(2), one of the warrantless monitoring exceptions. It’s possible that a court has defined these terms to preclude such an interpretation but I didn’t find anything to that effect in my admittedly brief research.
Assuming it is an open question, whether or not a group, or part of a group fits into this category should basically be a question of fact. This presumption – that the exact nature of the group and operatives being monitored is relevent – is why I stated expressly in the initial post that “the warrantless monitoring authority is tied to particular circumstances. . . so it’s worth knowing more about the details if you wish to comment intelligibly on the issue.â€Â
In other words I contemplated that the facts of particular situations might move people into or out of these classifications. I didn’t get into it because I believe it’s a question of facts, and without knowing more, I don’t think it’s possible to draw a well-founded conclusion. My argument was intended instead to focus on the purely legal question, whether the Bush Administration was reasonably interpreting the law. I thought, and still do think, that if their logic parallels mine that they have decent legal foundation, though it isn’t a watertight position. It doesn’t hold any water at all, in fact, if the group is stateless and without state sponsorship and support. Thankfully for the Bush Administration, there are thousands of Saudi princes, technically part of the Saudi government, and a non-trivial number of them have strenuously and openly supported our AQ buddies. This must certainly strengthen the argument that AQ has either state support, or support of a faction of a state.
For his part, Harry Reid is making the predictable call for investigations, even while noting he’d been briefed. He also notes that the leaker(s) should be found and punished.
Interested to hear what those of you with intelligence experience think of Maviva’s argument (which, like mine, argues that the legality of monitoring in question depends upon the classification of those who were actually monitored—whether they could be said to be members of foreign states, or factions thereof, which supercedes their US person status [See also: USA v. Bin Laden]. And that a reasonable interpretation of the subsections suggests the administration has a strong legal case. Combine this with the reviews and the Congressional and FISA briefings, and I think we’re seeing yet another instance of Dems crying foul after the fact because it fits into their narrative of a corrupt administration fighting a war that really isn’t a war—which is something they like to suggest moreso than charge outright).
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For an opposing view, see Prof Bainbridge. Good back and forth in the comments.
See also, Eric Umansky , Instapundit, Captain Ed, and Dafydd Ab Hugh (h/t playah girl)
And here’s Hugh Hewitt:
Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits “unreasonable” searches and seizures has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act (an introduction from a critic of the Act is here) cannot be read as a limit on a constitutional authority even if the Act purported to do so.
“Further, the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”
That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president’s executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, and more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority. (They can influence the Supreme Court’s interpretation of the president’s authority, as discussed by Justice Jackson in his famous opinion in the Steel Seizure Cases.)
[…]
The first question is the scopre of the president’s authority to order warrantless surveillance on participants in plots involving foreign powers against the United States. The president and his legal authorities have concluded that he does have that authority, even if the plot involves some American citizens. Apparently Congressional critics of the action do not believe it. There is no definitive Supreme Court precedent on the question, and the Congress cannot define the answer even if it wished to.
If Hillary wants to run in 2008 on the pledge that she will not conduct warrantless surveillance of foreign powers plotting against the United States when those plots involve an American citizen, she has that right. If the Senate Democrats, already committed to blinding American intelligence in the GWOT by allowing the Patriot Act to lapse, want to make the issue of warrantless surveillance of foreign powers plotting against the United States when those plots involve American citizens, I think every GOP candidate ought to gladly take up that challenge.
I am reproducing Justice Jackson’s concurrence in the extended entry for the convenience of the reader, as well as the opinion from the 1972 decision. At the conclusion of that Justice Jacksson’s opinion, he wrote a summary applicable to the current assertion of presidential authority:
The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights.
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update: Found this comment under a post at QandO critical of the Bushies:
As an former JAG officer who served in a war zone (albeit many years ago), I beg to differ with you. One of JAGC’s function is to help the CO accomplish his mission within the law. That seems to be what was done here. The CIC consulted his AG and others after 9/11 to get advice on the extent of his powers under the circumstances of that critical time. They advised him, and he took that advice.
He is taking full responsibility for that, and I am pretty confident from my review of the relevant statutes that he is on sound legal ground under the circumstances with which he was faced.
I think this will prove to be a tempest in a teapot.
The leaks are another matter.
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update 2: Stop the Bleating is unhappy with some of the arguments on both sides of the political divide. For what it’s worth, I think STB’s criticism of those on the right who defend the theoretical legality of the President’s actions is off-base (under US v Bin Laden, al Qaeda are foreign actors).
See also RTO trainer here , and here. And continuing along those lines, Dorkafork here (backtracking from his original comment). Paul’s response to Dorkafork—if correct—would seem to bring us back full circle to Hewitt.
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update 2: Scott Lemieux calls me the “ultimate example” of the “bullshit-libertarian” blogosphere taking a dive for Bush—and tries to argue, in a style typical of those whose entire worldview is to assume the bad faith of others—that my argument, over the course of two posts and a number of comments, is that “the warrantless searches must not have violated the law because…Condi Rice and George Bush said so.”
Of course, that’s not my argument at all, as Lemieux well knows. In fact, I said as much here, in response to SoCalJustice, who asks:
Jeff, is your trust for the Bush administration such that you’re reasonably sure that all of the individuals subject to warrantless NSA surveillance fit into that category [as presumed foreign agents residing within the US]?
Well, my trust is that the legality of the program was considered before it was implemented; that the 45 day reviews showed oversight; that the Congressional briefings showed that the program wasn’t secret; and that the President’s reaction suggests that he feels he is on pretty firm legal ground.
Beyond that, I need more info.
Which is to say that I trust in the Bush admin’s good faith and in the process that led up to authorization of the program.
Unfortunately, I cannot trust in the good faith of those like Lemieux to accurately characterize my position.
Which would bother me more, I suppose, if anybody took him seriously.
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Here’s the 1979 Jimmy Carter Executive Order expanding on the Foreign Intelligence Surveillance Act of 1978: EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE, EO 12139, 23 May 1979
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More from Bloomberg.
Again, the President seems quite comfortable with the legality of the operation—drawing on the War Powers granted him after 911. The question of whether or not the President needed warrants to gather intel on operatives within the US (who are also US Citizens, but who may have gained citizenship under false or fraudulent pretenses)—or whether such persons are covered by the exceptions—is still unclear to me. [cf Jim Robbins in NRO]
The only question I have now (and it’s one that I raised initially) is why, given that the FISA court is so ready to grant warrants, did the President need to circumvent the court with regards to the warrant procedure?
What is his motive? How long does it take a FISA court to issue a warrant?
AG Gonzales argues that the President has both Constitutional and statutory authority; Judge Andrew Napolitano continues to insist the President violated the law. Napolitano notes that a FISA warrant can be had over the phone and via email.¹
Which, if that’s the case, begs the question as to why the President felt the need to circumvent the process. For those ready to see bad faith, the answer is that the President believes he is above the law and “just kinda felt like it”; but for those who are willing to give him the benefit of the doubt (knowing that he briefed congess and submitted to FISA review), there is another reason, one which probably has to do with timeliness of information. Either that, or those being surveilled fell within the exceptions discussed at length here.
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Follow-up post here.
¹ This, from Byron York, suggests that Napolitano’s assessment flies in the face of both the President and the 911 Commission’s findings: “In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court  problems examined by members of the September 11 Commission  and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.
“People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. “It takes days, sometimes weeks, to get the application for FISA together,” says one source. “It’s not so much that the court doesn’t grant them quickly, it’s that it takes a long time to get to the court. Even after the Patriot Act, it’s still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check.” And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.”
Those who have nothing to hide have nothing to fear. I welcome the government to listen to my calls. All they will see is how much I support the government and how much I despise terrorists. If these “peace protesters” and the like aren’t doing anything illegal, then why do they care if their activities are monitored?
“Hezbollah is, of course, openly supported by Iran and Syria.”
Supported is different than ‘directed and controlled’ which is what the statute requires. Hezbollah is, on the other hand, a faction of the lebanese government. Hamas has some representation in the Palestinean government too. I don’t know if having a few members in parliaments or other elected officials makes one a faction under 1801(a)(2).
Jeff,
I think this new commenter Smithy is none other than serial troll DougJ from Ballon Juice.
That’s all well and good, but I think the real story is that Harry Reid is an absolute nutless coward of the worst stripe.
He’s lying about when he’s been repetitively briefed and now he’s calling for an investigation years after the fact. Where were his balls when it was first brought to his attention?
Wait – he has no balls. He is ball-less.
Don’t forget to have yourself investigated Harry, you empty-scroted dung beetle.
(does Harry Reid read this blog?)
As a former electronic warfare guy with Army Intelligence, my first reaction was “Oh, that’s a shock?”. The ban on this in the past was largely courtesy and the assumption American residentsw were ‘clean’.
Jeff, is your trust for the Bush administration such that you’re reasonably sure that all of the individuals subject to warrantless NSA surveillance fit into that category?
Even within your reading of the law, all it takes is for one individual outside that category to be monitored without a warrant for the law to have been broken.
And as for “If these “peace protesters†and the like aren’t doing anything illegal, then why do they care if their activities are monitored?”
I’m no fan of most of the organizers of the “anti-war” protesters, and sure, they can be monitored depending on the circumstance – but definitely not by the NSA, especially without a warrant.
That’s one legimitate reason why they care.
Well, my trust is that the legality of the program was considered before it was implemented; that the 45 day reviews showed oversight; that the Congressional briefings showed that the program wasn’t secret; and that the President’s reaction suggests that he feels his on pretty firm legal ground.
Beyond that, I need more info.
Which is to say that I trust in the Bush admin’s good faith and in the process that led up to authorization of the program.
Proudly spoken, no doubt. Regardless of the context, this chills me, as it should anyone.
Even with a full justification for domestic monitoring firmly and legally in place, blind patriotism like this (presumably as little more than a figuraive thumb in the left’s eye) is incredibly dangerous stuff…
tw: How the times have changed.
From Bush’s saturday radio address:
If its only in situations where individuals have “known” or “clear” links to Al Qaeda (or “these terrorist networks”), it seems like obtaining a warrant would be incredibly easy.
What’s the national security justification for not obtaining a warrant when the taret is a “known,” “clear” associate of Al-Qaeda or another terrorist group, when obtaining a warrant would be so easy?
One can only hope. As a NV prisoner, my inbox gets regularly littered with Dingy’s incoherent bullshit: Lies, lies, and more bald-faced, shameless, mewling panderings to the remnant Clinton crowd of pathological liars.
If the spew from Dingy isn’t ANWAR lies, it’s opportunistic veiled slander of BushCo, a lot of it so poorly composed you’ll swear it was penned by, well, chirping little interns. Of course, no risk there, as the man has no balls.
Let me assure you the man has even less shame than he has reason, and of that he has none.
tw: And this is the minority leader. Ask yourself how.
The obvious problem is that we have no way to determine which US Citizens were spied on by the NSA. That was the point of FISA: to provide a (minimal) check and balance to unlimited Executive power. I believe the number of FISA warrants denied in the last 25 years is between 0 and 1, and they can be legally applied for after the spying begins. All that FISA provides is a paper trail in case the rights of Americans are abused. The only reason to circumvent FISA is that the spying was indefensible.
Jeff, I thought my Conservative Friend #1 wanted to limit the intrusion of the Government in our lives, yet you seem to trust the Administration to only spy on the correct Americans? I think you would see the danger of that touching faith in any government; if not could you see it under President Hillary? Even given the happy horseshit that we are now facing a bigger danger than during the cold war, America should live up to her principles, like the Fourth Amendment.
In case you forgot: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And no, Reid’s testicles are not the real story.
Fair enough – and while I would never want the list of who’s been subject to warrantless NSA surveillance to be published, I would like a Special Prosecutor to look at the list and make sure all targets fit into the category of “no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”
Aside from the fact that the authorizing statute has some creepy implications, if it was being used for the purposes which Bush stated in his radio address, it seems completely unnecessary.
It would be necessary, however, to monitor people without known or clear links to Al Qaeda or other terrorist groups, where obtaining a warrant might be somewhat more difficult in certain instances.
Which is why this revelation is troubling to more poeple than just far-left moonbats and by the usual dem partisans seeking to make political hay out of this.
Smithy is dead wrong even if, as is apparent, he’s a lefty pretending to support the Bush Administration on this topic.
The issue here is whether for intelligence gathering purposes – not criminal ones – may the government monitor communications of foreign agents inside the US without court approval? Any evidence obtained would not be allowed in a criminal proceeding; it can only be used for intelligence purposes.
Apparently, the FISA law and court rulings (lower courts; the Supremes haven’t addressed this yet) do permit warrantless monitoring under the above conditions.
Check out US v. bin Laden (2000) where, ironically, the Clinton Administration argued before the district court of NY that the government does indeed have the ability to conduct monitoring of communications of foreign agents operating inside the US without judicial approval.
We’re not talking, pace Smithy, about monitoring anti-war protesters or dissenters. This is exclusively targeted as foreign agents and their communications abroad.
SMG
SMG
And many of us just want to be sure that that’s all the Bush administration has been doing with the FISA statute.
SteveMG, it’s probably redundant, but we ought to note that the Clinton administration argued that and prevailed.
It seems to me that one of the fundamental problems in intelligence-gathering in the age of terrorism is that the intel folks have less input into the targeting/tasking process than the lawyers do.
In my experience, the gatherers don’t care who they collect intel against – what they care about is not wasting their time on collection that cannot be used, for whatever reason. Intel collected against a target that has been determined to be illegitimate is useless.
[Now, some might say “well, if you know the person being listened to is not a legitimate target of collection, you should stop, or take your concerns up the chain of command.” Folks, that’s a mighty big “if.” Typically, the front-line intel gatherer has no idea why he’s been tasked to do the collection mission, or even who the target is… nor is it any of his concern. “Need to know” isn’t just a clever phrase made up by Tom Clancy.]
But that’s really just tangential to the main issue involved here: are the targets of the recently betrayed collection mission legitimate targets?
Well, as Al-Qaeda has declared itself to be the forefront of the yet-to-be-established Caliphate, I would say that makes any AQ member or supporter anywhere a legitimate subject of the closest scrutiny. But IANAL… and it is lawyers who, for better or worse, often have the final say in such matters.
Ross, as an ex-gatherer, I have to say that your point about “need to know” is a good one, but your notion that this stuff couldn’t be used is mistaken. What can be introduced in court is very different from what can be useful as intelligence.
By the way, the “USA v bin Laden” decision appears to hold al Qaeda is a “foreign power” under §1801(a)-(b) as Malviva says, and contrary to what Greenwald says.
Perhaps other intel folks will come at this issue from a different angle.
As a former intel collector, I had the appropriate section of USSID 18 read to me every morning, reminding me who I couldn’t collect on.
To me this is a matter of spirit of the law versus letter of the law. The spirit of the law here is just lip service: in a pinch it never could stand up against the reality of dealing with people whose desire is to kill you. But letter of the law; that’s a different matter, and it’s what you work with. You can collect while also dotting those i’s and crossing those t’s. If someone gave things a little nudge, then they shouldn’t have. Those emergency days right after 9-11 are long since gone. If there’s a long-term problem, it’s needs a long-term solution.
The violation of the spirit of the law is what’s making the screaming headlines. The only consolation I can give to those who thought life was cotton candy and pony rides is a lesson from the Stasi. The Stasi religiously collected on the citizens of East Germany, and when the Wall fell, there were found warehouses full of unlistened-to tape. Because, really, no government has the time or personnel to listen to people’s drivel.
More DougJ
http://www.freerepublic.com/focus/user-posts?id=231723
the professional loser, I mean spoofer.
SoCalJustice:
And many of us just want to be sure that that’s all the Bush administration has been doing with the FISA statute.
Agreed. Ye olde checks and ye olde balances. Oldies but goodies.
Apparently (which is a nice way of me saying “I think”) the Administration (Bush and AG) had to provide written authorization detailing for a FISA judge what the monitoring entailed. Additionally, members of Congress were reportedly informed.
So, Bush/Clinton cannot just order the NSA to monitor communications of folks. Some oversight is entailed.
But the problem, as I think we both see it, is what actions can be taken by these guardians to prevent presidential abuse? Can a FISA judge squash the monitoring? Should a member of Congress insert legislation cutting off the funding?
Or just dial Bill Keller’s home phone number?
SMG
Maviva’s post is patent bullshit. He has completely failed to show where the statute states that a no warrants are ever needed for “foreign agents”.
Sub sec. 1801(a) does no such thing. Read it here. The only thing 1801 is define the terms used in the statutes, it says nothing about whether warrants are needed for certain classifications of targets, that’s the point of the further statutes.
I have failed to see anything in the statutes to suggest that the warrants are unnecessary in any case involving “foreign agents”. Again, the relevant statute is 1802:
Now I am not a lawyer, and I’m pretty sure this is going to be a more complex issue, but as far as 1801 and 1802 go, they are pretty. And they simply do not say what Maviva says they do.
But don’t many of you have suspicions about who Bush is listening to, regardless of what information has come out or will come out about this program?
Aren’t there a fair number of people that have been assuming all along that Bush is reading people’s emails and monitoring all of Bob the weekend protest warrior’s phone calls to his girlfriend in Nigeria?
When one assumes there have been nefarious Bush spying activities all along, there is no amount of information about this particular NSA program that will ease your minds. Because there’s always something else he could have been doing that is more illegal than what has surfaced.
Dorkafork:
Please check out the federal court ruling in USA v. bin Laden. Specifically:
Section II. An Exception to the Warrant Requirement for Foreign Intelligence Searches
In part, it reads:
“Circuit courts applying Keith [that’s the FISA law] to the foreign intelligence context have confirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents.”
Apparently, if the searches are for foreign intelligence purposes ONLY and the monitoring is of foreign agents, there is an exception to judicial approval.
Granted, it’s just one case and one small section but it’s something to consider.
That’ll be $750. Next?
SMG
“as far as 1801 and 1802 go, they are pretty clear” I meant to say. Though they may be pretty.
SteveMG, good point. The NSA eavesdropping may be constitutional and legal, I’d just say 1801 et al. are piss poor justifications.
Charlie,
Good point. I was, however, speaking only to the “legitimate target” aspect.
If the subject of the collection effort is not a legitimate target for warrantless eavesdropping, e.g., is not someone meeting the criteria of the law as noted above, then the collector’s effort has been wasted, as the product of their effort cannot be used in a courtroom, and—since we’re talking in theory about someone who doesn’t fit Sub sec. 1801(a)(2) or (3)—there’s not likely to be a national security reason to pursue them, either.
Bzzzt! Keith is a Supreme Court decision that predates FISA by 6 years. It may have something to tell us about the constitutionality of warrantless surveillance for foreign intelligence purposes, but nothing about their legality under FISA.
Didn’t someone, somewhere write “The Constitution is not a suicide pact.”?
Honest to pete – those concerns I have about the US screwing around using warrantless searches on homegrown activists (union organizers, anti-war protestors, people who don’t genuflect before the Chimperor) rather than using those searches as tools to prevent terrorist attacks using the good ol’ fashioned definition of ‘terrorist attack are minimal.
Paul:
Keith is a Supreme Court decision that predates FISA by 6 years.
Correct, my error.
There goes my future law career (and boy are my parents glad).
IIRC, FISA emerged from the Keith decision. In his opinion in Keith, Justice Powell essentially asked for FISA to be created.
Too lazy to google.
SMG
SMG- I want my $750 back.
Dorkafork,
You are not including the definition of “electronic surveillance” under 1801(f) in your analysis.
No. Once the certification is made by the Attorney General the authority is created for the 1 year of surveillance. If he signed it without good faith initially, there could be a perjury case.
But nowehere does the statutue say that additional unanticipated subjects like US citizens, calling up or being called by the proper monitored parties, interrupts the surveillance authority. Once it is certified by the AG it is good for a year.
Except when ALL the parties monitored turn out to be US persons. Then, under § 1806(i) the contents must be destroyed.
Unless the AG determines the contents pose a threat of death or serious injury to someone.
So even then, when nobody BUT US persons are inadevrtantly monitored, it may be continued under a threat determination.
And if less than that are US persons, it may continue without such a determination.
Because it’s an action persuant to Title 50 US Code (National Security) and not Title 18 USC (Criminal Statutes). Title 18 actions require warrants. Title 50 action require warrants where the law in question requires them and not where they don’t.
Why is my National Gurd unit not subject to Posse Commitatus now, but will be once called to federal duty? Same answer–different titles Title 32 vs. Title 10. Much in federal law works this way.
SMG- I want my $750 back.
Okay, just give me your bank account information and I’ll have if transferred.
J.D., LL.B, Abuja Law School, 1990.
SMG
Uh Jim,
No one said that Harry Reid’s testicles were the story.
I did say, however, that the absence of anything that resembles good old American stones on Harry’s person was the story. Defend him if you must. Tell me he does have balls if you need to. But I won’t believe it until he swings them over the rail on C-Span.
Is he calling for an investigation of himself? Or was he not listening during the briefings so therefore he was not part of the process?
I say habeas ballus.
(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that …
The bolded part above is what you are looking for. The phrase does not use the word “warrant” but it is what is meant.
Mahdi,
That’s not a justification. The target of the warrantless search need not have “known” or “clear” ties to Al Qaeda at all to be valid subject for non-judicially approved monitoring.
They target just needs to be a foreign power/foreign agent and the communication needs to be between that foreign power/foreign agent and an overseas/international party.
The question is whether the targets of the warrantless surveillance met the requirements of the statute or not. Those are pretty strenuous hoops to jump through, which can be totally avoided, especially when there are “known” and “clear” ties to Al Qaeda, because obtaining a warrant would be nothing more than a “rubber stamp” process.
The original NY Times story could be wrong, but it said that warrantless surveillance was being used against “<b>Americans<b> and other inside the United States,” which makes it seem a distinct possibility that 1802(a)(1)(B) was violated.
There’s no need (and hence, no justification) to come close to violating 1802(a)(1)(B) – again, if the NY Times story is true – for individuals with known or clear ties to Al Qaeda and other terrorist groups.
MayBee, you write:
I don’t. If the Bush adminisration isn’t monitoring the overseas communications of every employee of the Saudi, Syrian, Egyptian, Kuwaiti, Iranian, Libyan, etc… diplomatic corps, then he’s being derelict in his duty.
And I generally would have no problem with warrantless surveillance of people with known al Qaeda ties. But unless we’re talking about a ticking time bomb scenario, I would rather have the gov’t obtain a warrant to ensure powers aren’t being abused.
It’s not like if the gov’t needs to obtain warrants to monitor the overseas communications of Americans/U.S. persons (again, that’s the key – we’re not talking about foreign nationals) with “known” or “clear” ties to Al Qaeda, then the terrorists will have won. It’s a rubber stamp.
You don’t get warrants to conduct a war.
We are not doing this collection to take these people to court.
Warrants are for criminal proceedings. This is not that.
RufusLeeKing
Can you envision a scenario involving the surveillance of an American citizen in which “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”?
Again, presupposing the NY Times was correct – a big “if” these days.
And the AG’s “perjury” is a violation of FISA here. If the President orders, and the AG authorizes, the warrantless surveillance of an American citizen, there is a good chance (or, in other words, there is a substantial likelihood) that the surveillance will acquire the contents of any communication to which a United States person is a party.
“Warrants are for criminal proceedings”
Not FISA warrants. No.
(From Section 1801) Note that subsection (2) applies regardless of status as US Person.
(b) “Agent of a foreign power†meansâ€â€
(1) any person other than a United States person, whoâ€â€
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(2) any person whoâ€â€
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
So no. Not such a rare or distant possibility.
SoCalJustice:
Yes. At the start of surveillance the only party tapped is the foreign power.
The AG has no substantially certain knowledge of who will call or be called by that power being tapped. So he truthfully signs the certification.
10 minutes later, or any time into the 1 year permitted monitoring, a US citizen comes online. There is nothing in the Act which requires the 1 year authorized surveillance to be stopped.
Unless it turns out that ALL the parties being surveilled are US persons. In which case § 1806(i) requires a destruction of the contents (tape) but not of the tap. And even that destruction of a tape of ONLY U.S. persons being tapped can be sidestepped if there is an AG determination the contents pose a threat of death or serious bodily harm to someone.
Surely § 1806(i) clearly shows Congressional intent was to allow these surveillances when one or more of the parties turned out to be a U.S. person. Just as long as it was not the intent originally to target them by this streamlined warrantless process.
As to the NYT and MSM characterizations of Bush ordering Americans be tapped, as if they were the original tap targets, I attribute that to the reporting bias we see in every version of this story on the MSM.
I assume when Bush “acknowledged Saturday that since October 2001 he has authorized the National Security Agency to eavesdrop on international phone calls and e-mails of people within the United States without seeking warrants from courts” that his meaning was that he authorized the overseas conversations, starting with the foreign target, to continue to monitor when the US persons came into the conversations.
If not, he was badly counselled.
So subsection 1 doesn’t apply to American citizens.
And I hope all Americans who were targetted for warrantless surveillance fit inside subsection 2.
It seems to me that if anyone – American citizen or otherwise – falls within the categories described in subsection 2, they should probably be arrested, charged and tried, because each of those elements are crimes in and of themselves.
I lost you.
Subsection 1 and 2 of what? § 1801?
Sorr.
Of 1801(b)
I was responding to RTO Trainer’s post.
But in response to your last post, at least for me, the issue is whether American citizens are the targets of warrantless FISA searches, not if American citizens happen to communicate with foreign agents who are legitimately the targets of a warrantless search.
Damn, I can’t type tonight.
I meant, Sorry. Too many other typos to correct.
If I understand some of the arguments correctly, then perhaps the U.S. Constituion is a suicide pact after all.
Turing word: must, as when Blackadder said, “But needs must when the devil vomits in your kettle.”
SoCalJustice:
But the warrantless provision of § 1802 only applies to § 1801(a) 1, 2 & 3 targets.
Not to § 1801(b)2 targets I think you are referring to.
So the initial target has to be a state government, faction or controllee.
Then anyone else who comes online to speak with them is OK to surveil under the original target’s certification.
Al Qaeda was deemed to be an § 1801(a)3 state controllee, I am told, in Bin Laden v. U.S..
Correction: U.S. v Bin Laden.
I somehow doubt OBL has made any appearances stateside to prosecute any cases against the U.S.
RufusLeeKing
And the question is, did the Bush Administration fold any American citizens into that definition by branding them agents of foreign powers, and if so, were they correct to do so in each instance.
I mean, at least I think that’s the question.
We might be talking past eachother.
If no American citizens were the “targets” of warrantless searches, I likely don’t have a problem with what was done. If American citizens were the targets of warrantless surveillance, but they legitimately could be shown to be foreign agents (including of al Qaeda or related terrorist groups), then I likely wouldn’t have a problem either. But again, those individuals should probably be arrested, charged and tried for their crimes.
— Watching the press conference now.
Before 9/11/2001 we were really, really, really sensitive about the rights of individuals associated with terrorist organizations. So a few of them slipped through the cracks and the World Trade Center and Pentagon took a hit. Then we got less sensitive about the rights of people associated with terrorist organizations and things in the U.S. really got boring. So now we’ve decided to renew or sensitivity. So maybe things can liven up again and we’ll have some really exciting nightly news. We can’t count on killer hurricanes every year. We need terrorist attacks to get those news report ratings back up!
Robin Roberts pointed out earlier that my analysis left out the definition of “electronic surveillance” as defined by 1801 f). Looking through the definition used by the statutes, it is hard to find an instance where “electronic surveillance” (as defined by the statute) would not acquire the contents of a communication where a US person is a party. Which is weird because it would seem to make 1802 a)1)B) kind of pointless.
And it looks like I was wrong on the “foreign agent” exception. It looks like courts have held that there is such an exception. Particularly the Sand decision in US vs. Bin Laden (2000)
and later:
So they would only need probable cause that he was a foreign agent for the exception to take effect.
That said, I think I’m going to refrain from further comment and just wait for analysis by real lawyers.
Here’s a cross-posting on the civil liberties issues from TPMcafe.
The notion that these powers will not be misused and have not been misused is ridiculous.
There is no reason to imagine that ANY of these incursions into civil liberties will protect us one bit in practice. All these hypotheticals about ‘Osama’s address book’ are diversionary. The government has all the powers to surveil that they need, and NEVER should be in the position of either handling persons/suspects outside US juridiction—eg handing Al Qaeda operatives over to Egypt for (with a wink and a nod, yes) torture, not to get accurate INFORMATION but to get useful spin material to use in going to war.
[long cut-and-paste removed -ed; if you wish to link to the original, that would work fine]
First, cloudy, learn to link and learn what copyright law is.
Secondly, I call bullshit on the UMass Dartmouth story, there is no such thing as “Homeland Security agents”. There are a couple of law enforcement agencies that report to the Dept of Homeland Security but none that call themselves agents of Homeland Security. I think that it is completely made up.
Third, nonetheless being questioned by LEO is not a “civil liberty violation” nor is it repression. If you want repression, you have to go back to the Wilson and FDR administrations.
One more point
It was stated above that the Democrats are devoted to letting the Patriot Act lapse. It is not surprising that, with all the detailed documentation at this site, its RW bias seems to trump examination of the facts.
In fact, the Bush Administration and his allies in Congress insist on NOT approving a 90 day extension in order to further debate the issue. It is the DEMOCRATIC opponents, and their handful of allies from the Repuglican (I call them that as long as they systematically refer to the “Democrat†Party) of the current version of the Patriot Act extension out of Conference Committee, who have been more inclined to SUPPORT the extension. The point is that, for all the whining from Gonzales and others, the REPUGLICANS are the ones playing chicken here, figuring that a lapse of the Patriot Act could be blamed on Democrats to their political benefit, which is clearly a higher priority TO THE REPUGLICANS than any actual harm to national security from having the Patriot Act lapse.
What the opponents of the Conference version are seeking is a bill that is closer to the version that the Senate passed. Remember that the sponsors of SAFE watered down many of their desired restrictions CONSIDERABLY in order to get a UNANIMOUS vote of support for their bill through the Senate. Now think about thatâ€â€what it takes to get UNANIMOUS Senate support on an issue like this.
In fact, the Repuglicans, in my view, were merely posturing, seeking to be able to say to their concerned constituents back home that they voted to excise whatever Patriot Act provisions were controversial, while in fact what will almost certainly get enacted, in my prediction, is the Conference version that sacrificed almost every difference that the Senate bill (the one with more civil liberties protections) had with the House to a final version that is almost exactly what the Houseâ€â€not even by two-thirds majority let alone by consensusâ€â€passed.ÂÂ
This way, the Repuglicans can have their cake and eat it too, throwing dust up in the air by citing their support for the Senate version, while in fact giving the White House virtually everything it wants.
The notion of the Democrats seeking to “blind†the government by letting the Patriot Act lapse, then, is simply a dishonest repetition of a Repuglican talking point.ÂÂ
Given the very high level of erudition demonstrated at this site, including in the same posting, it reminds me (as a socialist activist) of the various sectarian Marxists, or ostensible Marxists who are really copperheads, who fill their arguments with excruciatingly detailed and irrelevant but dazzling historical detail, and then use it in an overall presentation filled
with all kinds of gross historical distortions and half-truths. The method is exactly the same, only the ideological line of march is different.
The devotion to plain truth should never be allowed to fall behind the attention to academic detail. Having spent 15 years of my life (and two degrees) in and around Harvard and Berkeley, I am all-too-aware of academic spin doctory and misplaced nitpicking at the highest levels of sophistication. It is just as full of it as Dick Morris, only with more technicalities.
Cloudy – how was that not spam?
Seems to me that if the problem is one of time-sensitivity (ie KSM’s little black book, etc) then the Executive should be able to tap the numbers found therein immediately while at the same time applying for a FSA warrant. I understand that issuing the warrant may take some time, and we don’t want the window to close on us. Nevertheless, applying for the warrant shows good faith. If the warrant is granted, then everything continues. If the warrant is denied, then the monitoring stops, and the Executive has to show that it should be allowed to keep the product already collected – to show this, they would have to show good faith in starting the original tap, that the application for the warrant was made as soon as practicable, and that the information gathered has some probative value – if the admin was allowed to keep such info, it would still not be admissable in court, but could be used for intelligence purposes.
Robin Roberts—Of course there are Homeland Security agents! We see them onna teevee alla time! Sure, Dick Wolf may be lying about them on all the Law and Order shows, and Jerry Bruckheimer on CSI:Miami, but those nice ladies on Charmed wouldn’t make stuff up, would they?
Cloudy,
So to summarize:
Rethuglican, repuglican, blah blah blah.
Type repuglicans again, in all caps. It makes me giggle.
Richard, far be it from me to contradict Paige.
I can see that this site, for all its use of information, is clearly populated by folk uninterested in substantive debate. The information is only to hone down Repuglican (not all caps) talking points rather than as part of a genuine pursuit of a refined understanding of the issues.
Now, I am not sure which of the two posts was referred to as spam, but the second, described as “Repuglican rethuglican”, the point was made that it was they and not the Democrats who were unwilling to extend the Patriot Act for 90 days to allow for debate. No one refuted that point or came up with a counterargument. Nope, again, all that is needed is razzing. The issues are really only raised to hone those talking points.
But the fact remains that ‘blah blah blah’ notwithstanding, there has been no answer to the plain truth that it is the Bush Administration that is perfectly content to see the Patriot Act lapse, and then blame it on the Democrats.
Apparently the misstatement of fact that I found expressed the true spirit that pervades the site, especially the thread.
I had typed up the response to Robin Roberts’ initial response before I saw his and others’ subsequent comments. These betray that the weaknesses in his comment, which I was addressing patiently, reflect a problem so deep that there really is no serious interest in debating the substance of the issues at all. I suppose that in the future I shouldn’t waste my time so much with what the posters have to say, as indeed, in the final analysis, THEIR arguments are in fact what Roberts accused my substantive (if harshly put) one of being—namely pure nyah nyah nyah nose-thumbing lacking substance.
Anyway, here was the beginning of those comments, which I had taken the time to compose, in response to Roberts
First, on copyright law, I don’t think Truthout and certainly not my friend Matt Rothschild mind my reprinting their pieces. If there is any problem, I can take full responsibility. (As it happens, although I am not an expert in this highly technical area, my dad was one of the leading people litigating in this area before his death, as in Wall St. Transcript v. Wainwright</i> (sp?) <i>which, <i>along with some other black-letter cases, he litigated himself.
Although I know that websites are often careful to limit their reprinting to four or five paragraphs as a matter of covering butt, the truth of the matter is that this kind of non-commercial usage is virtually never subject, even in much more egregious situations than a mere article, itself web-published and distributed for free for god sakes (I am a free subscriber to TruthOut), of any kind of actual litigation. If you know of any case like what I just did, where someone was actually sued successfully for posting an article on the web, please let me know.Second, as for the UMASS Dartmouth story (which I also DID link), you say it is BS because there is no such thing as “Homeland Security” agents. Now the question is, what actually transpired in the conversation—if one actually took place—between the agents and whoever they met at this student’s home? They might have identified themselves, and then been asked, what is that? They might have identified themselves as being with the Department of Homeland Security even though that may not be protocol.
One of the problems with the mind set of those who like to defend the Bush policies (like torture based on a hypothetical of an atom bomb about to go off in Manhattan, something completely unlike any actual case that has been cited, while all the many invocations of that kind of imagery by the Bush Administration for its various policies have ALL turned out to be BS)
is that they confuse what makes sense in the abstract or on paper (to them) with what actually happens in experience where the rubber hits the road.
I can’t vouch for the accuracy of the article, of course, any more than anyone else can prove it false. If you think it IS false, then report your concerns to </i>TruthOut and to the Standard Times. It always helps to check out your suspicions (or certainties) BY GOING TO THE ORIGINAL EVIDENCE. On the other hand, in a sympathetic crowd inclined to disbelieve reports of civil liberties violations, who needs proof? If something sounds good, those inclined to believe it will assume that it is right. The point is that this report is sourced, cites a specific professor (remember that the information is not first-hand) and if inaccurate can certainly be examined.
Incidentally, as a leftist activist, and an observer of the left political scene for over a quarter of a century, I know quite a bit about the nature and methods of repression in general as they occur in this country. If a thread comes around where that is relevant, rather than discussion of the Patriot Act and the kinds of formalities discussed in those articles, I would have plenty to say about those issues, dealing with them from the standpoint, again, of ‘where the rubber hits the road’ rather than what goes on in SHOWCASE (serve-curse/show-cause) jurisprudence. I personally strongly prefer to go to the raw information rather than deal with the predigested bits as they appear in legal documents etc. (although I dealt with plenty of the latter in law school).
As for the issue of the ‘raw information’ about repression, I can certainly reject out of hand, and not by the kind of mere presumption Robin Roberts uses in place of argument, the claim that you would have to go back to the days of FDR and Wilson (both of the “Democrat” Party, eh?) to find repression. There was plenty of it not only during the Vietnam War, but going on in various forms right up to this very moment, both aboveground and underground. If you want me to wax on at great length about repression in contemporary America, I am only too happy to do so.
Here’s a link for starters:
The URL for the comment is: http://Huffington Post
It is entitled: THE TRUE NATURE OF REPRESSION IN THE US
Obviously, as for the appalling ignorance of denying the existence of political repression in the last 50 years, swaddled in the pseudo-erudition reflected in the copywright point (as I mentioned above, I’ve seen plenty of it in the 15 years I spent at and around Harvard and Berkeley)—I know that it is impervious to contrary information. Buckley is bad enough—let alone all the WF Buckley wannabes.
Now, the point was not, in the student paper article I assume you refer to (it’s kind of obscure just what the referent is, which I suppose serves to make it sound more knowing)
that being questioned was ITSELF a violation of civil liberties. The point is that he was apparently subject to investigation which formed the BASIS of the questioning, an investigation whose full parameters are unknown, but which at the very least raises some major concerns about violations of his right of privacy.
Of course, at the end of the day, the ‘right of privacy’ is only what the federal courts (with the “Democrat” nominees by Clinton being systematically stalled in the Senate from confirmation, while those of Bush have sailed through, yielding an even more Repuglican leaning judiciary than would otherwise be the case) say it is. Some provisions of the Patriot Act itself have been curtailed by even the rightwing judiciary that we have. But we must never be in such thrall to the election stealing and media lockdown status quo as to take their standards (or at least only when it is suitable for RW purposes) as received wisdom. Even so, there is plenty of room to doubt just what privacy rights of that student were violated IN THE PROCESS of which the most visible part was being questioned.
Note also the (who really cares, anyway) chilling effect on the professor’s willingness to teach a course about the extremely topical issue of terrorism that results from all these keeping-us-safe-from-democracy policies. If we are truly going to try to fight a successful war against terrorism, education about the subject, and promotion of deeper discussion of the issue rather than ads with wolves, is a part of the solution.
Well, at least from a wimpy Constitutionalist standpoint
From RedState:
Also, I’m going to shorten your comments and fix all your links. Please try to format correctly.
Who ordered the keyboard diarrheic?
Cloudy,
Frankly, your fatuous opinion on copyright law is quite ignorant and the rest of your posting goes downhill from there.
You throw around “right of privacy” which only shows that you are interested in hotair rhetoric and nothing else. The story is obviously bogus but nowhere do you relate any part of it to any real civil liberty.
The rest of your posting deals in myths, slanders and outright falsehoods.
Uh, okay. Then stop wasting your time.
Me, I’m not even reading your comments anyway, to be honest.
OK, if cloudy thinks an official asking someone questions is “repression”, what did he think of the Clinton’s using the IRS to harass their critics? Or their getting hold of FBI background checks of their political opponents?
Wow, Clinton’s nominees are being stalled. I thought he wasn’t President anymore. I guess I’ll bow to Cloudy’s wimpy Constitutionalist standpoint expertise.
Perhaps Cloudy can provide the names of these stalled nominees.
Stick to your guns, Dorkafork; the key words in your quote are prior to FISA. The reason Judge Sand was relying on those old precedents in a 2000 case was that the particular situation before him– surveillance of a US person in a foreign country— is not addressed by FISA. He therefore reasonably concluded that the old foreign-agent exception still applied in that particular case. But his decision is not on point for the situations we’re talking about now, to which (as far as I know) FISA does apply. On the other hand, if Sand is right about pre-FISA law, it does lay to rest the allegation that warrantless surveillance of US citizens acting as foreign agents is unconstitutional. But it staill appears to be a violation of FISA based on the plain text of that law.
Robert,
Cloudy doesn’t even realize that Woodrow Wilson had thousands imprisoned for political speech, or that FDR had US citizens executed on the basis of military commissions.
And yet, here we get his bullshit panting over an obviously fake news report.
Well, if Reid said that, he was wrong on several counts. First, there is no doubt that, in some form, even the lapsing portions of the Patriot Act would be revived even if the filibuster were to last until they did lapse. I think that the statement as quoted, other than as a figure of speech, is also false. The Patriot Act, as I predicted before, is almost certainly GOING to be renewed either exactly as the Conference returned it to the Senate or with only token concessions.
Actually, Reid seems to be getting with a program, which I have noted in the context of the Democrats’ failure to support a winning candidate on Long Island who could gain a seat for the Democratic Party, of the Democrats’ “blowing it”, to ‘get with the program’, something I see as quite common in American politics.
(You might get the mistaken impression from above posts that I am strongly pro-Democrat, when in fact I am against the Repuglicans and in particular the failure of anyone, including the Democratic Party, to call them on their leadership’s systematic employment of the epithet “Democrat” Party over a period of several decades.)
Reid well knows that the cloture vote can be taken again and again, and that there is every reason to believe that the number of supporters of the filibuster, as is usual in filibusters, is likely to dwindle somewhat. The only question is how much? So, from my standpoint, the public is being led into a false sense of ‘security’ on this issue, even in terms of what Reid might have reasonably meant by the statement, namely that the current noxious version of the Patriot Act is dead, and that the version accepted by the unanimous Senate or something close to it will prevail.
Question, asked in good faith, of Jeff Goldstein:
how long is a good recommended maximum length for comments (eg # of words).
The only impression I get, Cloudy, is that you don’t have any clue what you are talking about.
If the Senate majority leader himself contradicts your thesis, then there is only one answer right Cloudy? Reid is wrong!
Yet another denizen of the reality-deficient community. Hilarious.
Always a pleasure to meet someone who’s got his priorities in order.
Ah, Paul, that one was too subtle for cloudy to pick up on.
Entirely too subtle.
LOOK GODDAMMIT I DON’T THINK YOU ARE TAKING THIS SERIOUSLY ENOUGH.
You might get the impression that not I’m pro-Democrat or something, but the fact of the matter is that I just really, really, really, really hate REPUGLICANS and I have VERY LITTLE time or patience for people, including Democrats, who don’t FIGHT THEM at EVERY STEP.
The fact that you can’t be bothered to capitalize REPUGLICANS every time you type it betrays a lack of intellectual commitment to a genuine pursuit of a refined understanding of the intellectual commitment it takes to have a refined understanding of the issues we face today!
I can see you have no interest in substantive debate!
First of all, Roberts
(a) I have not argued copywright law at all, only asked you for a CONCRETE example of someone who was sued successfully for doing what I did. You merely dismissed my point as fatuous, but didn’t cite any examples. What I spoke of was the practice based on copywright law, at some websites of recommending that only four or five paragraphs be quoted.
(b)I am well aware of the Palmer raids, and of other issues during the Wilson and FDR Administrations, including those in the Korematsu case, which I studied in law school. Nowhere did I even remotely suggest that there was never any repression under FDR and Wilson. You have specifically avoided the point I DID make, which was that there has been LOTS of repression SINCE Wilson and FDR. That was the point that you made which was ridiculous, and which you made no effort to defend.
For the record, my reference to the 60s made it clear that Democratic governments had in recent years done so as well.
(c)YOU (Robin) claim that the story is “obviously fake”. I considered your claim and you didn’t respond to any of of the issues I raised with regard to your conclusion. I did suggest that, if you are going to insist that a sourced news story, originating from the newspaper cited above, the burden of proof is on you that it is fake, to trace down the story to its sources as best possible, and get the information. As I said, you rely on presumption.
(d) someone else makes the silly point that Clinton is not president any more so his nominees are not (in the present) being stalled. Obviously, if you read my point, I was referring to those nominees he made to the federal bench during his eight-year presidency. The Senate stalled on approving them, leaving a backlog of scores (I believe the figure was well over 100) nominees for open seats that hadn’t been acted upon when Clinton left office. These unfilled seats were then filled with Bush appointees.
I don’t know why I should do YOUR legwork for you and provide you with the names of the nominees still in the roster as of Jan 2001. You go look them up.
(e) The ‘what about Clinton’ line. I do not categorically defend Clinton. Political repression, particularly of the left, which DOES exist on a massive scale in this society, goes on under both Democrats and Repuglicans. The left in this country suffers repression under both major parties.
(f) Again, the issue is not merely that someone’s rights were violated by being questioned. The questioning itself was based on investigation into someone who should not have been subject to investigation in the first place. That process of investigation raises privacy issues.
Though some people may scoff at someone ‘throwing around’ the right of privacy, as mere “hotair rhetoric” (which I suppose assumes the Borkian point of view, which to be persnickety has not (yet) been adopted in the law), as opposed to some “real right”, it is a ‘real’ right, just one that RWers don’t think ought to exist. It is recognized in Supreme Court jurisprudence that is still good law, but of course with enough Diebold machines, not for long.
Here is the link to the portion above that was ‘cut and pasted’, which I was invited to post by the eds. (They have also made their hostility to the substance of my posts quite clear.)
http://www.tpmcafe.com/story/2005/12/18/192757/65
I once again reiterate my point that debate in good faith implies
* not distorting someone’s points (eg recognizing the difference between denying that there was any repression under Wilson and FDR and insisting that there HAS been repression since then)
*At least engaging substantive argument (as Goldstein at least did in the blockquote from Reid, although, even there, in its context, it seems clear that he was referring to killing the version of the Patriot Act up for a vote—although his language if accurately quoted was sloppy). Simply taking the same passage and jeering at it as ‘blah blah blah’ is not argument
*Not substituting presumption and characterization (myth, slander, etc) without concrete example or argument, for real argument from evidence. Virtually everything Robin says is conclusory, and on inspection, a distortion.
If I allegedly misstate copywright law, you just state ‘here is what was said and here is what the law really is’. But I actually never discussed the state of the law in the abstract on the subject, as distinct from what happens in practice.
Response to some of the latest items:
*As for the “subtle” (how clever the RW think they are—if someone puts themselves that way in a progressive venue, they are thought arrogant) point about priorities, remember that for decades, leading Repuglicans have made it a priority to use the epithet “Democrat” party quite systematically. They have done so on media that cost literally thousands of dollars a second, but if I merely mention the issue on a thread, as one point among many in a posting, then MY priorities are wrong.
It’s one of those ‘any old slop will do’ phenomena.
*Yes, I am well aware that Reid is the majority leader. The article cited suggests a “paradox” based on what it quotes—that Reid has been calling for an extension even as he talked about “killing” the Patriot Act. Well, that paradox could be resolved if we read his (sloppy) statement, as I mentioned above, as killing THIS VERSION of the Patriot Act, a prediction which I believe to be false, incidentally
Look, Cloudy, you post things like this and then go on wild screeds about what? COPYRIGHT LAW? I don’t understand! I’m starting to think that you’re some sort of … agent … sent to provoke! …! PROVOKER AGENT! Why can’t you get to the point and argue a case without pasting entire articles into comments without, you know, ARGUING for something? Are you not being straight with us, Cloudy? Cloudy??? Why all the excrutiatingly irrelevant details?
Between this and your refusal to continue typing REPUGLICAN in all caps I’m really starting to think that you’re some sort of REPUGLICAN abusing a systematic deployment of the word “Democrat” to suit your own needs! I’m really shaken by this Cloudy! How do I know you’re not a… a… REPUGLICAN in sheep’s clothing yourself?
I am all-too-aware of academic spin doctory and misplaced nitpicking at the highest levels of sophistication. It is just as full of it as Dick Morris, only with more technicalities.
Stop it, Mac Buckets. You have no talent for this.
In light of the kowtowing to state power seen here, it’s interesting to note this news report.
Note that the FBI is monitoring library interloan without notification and apparently without warrants. Note that this is related to background information held on Americans.
Note that this “anti-terrorist” power is now being used to monitor, among other things, possible pro-Communist tendancies.
But, of course, I’m sure the legal powers you’re mentioning in this story will never ever be misused, and the government is and always will remain completely benevolent…
Keep dreaming, serfs.
FYI
Copywright law as an issue was brought up by someone else. All my comments on the subject (“wild screeds” or not) were merely responding to that point, and its follow-up from the same author.
abusing a systematic deployment of the word “Democrat†to suit your own needs!
wow—that’s really a nice one. Talk about the best defense being a good offense. The question is, do we believe in CIVILITY or SERVILITY? Civility is an egalitarian doctrine, and would lead those of the right to criticize their leadership for the ‘systematic deployment’ of the epithet “Democrat” Party. But no, when I point it out, I am “abusing” the systatic deployment of the word to “suit my own needs”. My own what?
I simply use the term Repuglican to refer to a party whose leadership systematically deploys without serious criticism either from their own ranks or from the leadership of the all-too-craven pseudo-opposition Democratic Party either.
Now you could take this silence from the Democrats (but not all—for example Ben Wattenberg for one, has objected, and suggested the term “Publican” in response, but by and large the Repuglicans have never been called on it).
And why should I put the term Repuglican in all caps or do anything else just because YOU or anyone else prefers that?
I did stop posting entire articles after the first posting, as requested by the editor. The point of those articles is that they illustrated abusive applications of the very powers that were being debated on this thread. If you consider that irrelevant, I suppose that’s because all the silly concern about ‘rights’ and ‘privacy’ (described by one poster as not a real right) is irrelevant. Of course, once you concede the point that you don’t really believe in the well-established “right of privacy” in the first place, then all the finely tuned discussion of particular cases dissolves into mere extreme partisan honing.
Again, when you peel away the invective, there has been little argument. An interesting citation from Reid was the only substantive argument I’ve seen in response to my postings. The statement about “killing” the Patriot Act, as distinct from, say, if he said we killed “it”, referring to that version of the Patriot Act, is a truly strange comment if he did indeed make it, since it would at least leave open the kind of interpretation given it here: namely, that he opposes ANY form of the Patriot Act, contrary to his and other Democrats’ statements. But this quote, while genuine evidence in the debate (a rare exception in the RW style of argumentation) is not simply a matter of ‘case closed’, but, especially with the “paradox” mentioned in the blurb cited, invites further inquiry as to what he meant and why he would make such a statement.
In short, the details I cite are to answer or to clarify points that are relevant, either to my original point or to some response that was made. If they are excruciating, then smoke a joint and relax.
I’m curious… how many investigations have the Democrats called for now that mysteriously went away when it turned out they would wind up investigating Democrats…?
Here’s the relevant law, guys:
Title 18, Pt. 1, Ch. 37, #793:
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officerâ€â€
Shall be fined under this title or imprisoned not more than ten years, or both.
Hello, Pinch.
I’m sorry, Cloudy, but this just makes it fundamentally clear to me that you lack the intellectual seriousness, the commitment and the passion needed to say what needs to be said!
It simply comes to this: It’s obvious that since you lack the drive to properly emphasize the term REPUGLICAN, you’re simply not properly referring to a party whose leadership has systematically deployed!
Without serious criticism!
And here’s an examination of how the “wartime” powers have been used in practise…
I would just like to know why we need an extension of debate? What points do we need to resolve? What makes you think another 90 days would help come up with a resolution of these issues when apparently we haven’t arrived at one after three years of public posturing about it?
I would just like to know why we need an extension of debate? What points do we need to resolve? What makes you think another 90 days would help come up with a resolution of these issues when apparently we haven’t arrived at one after three years of public posturing about it?
Wouldn’t it be easier and more indicative of your limitations just to do a Monty Python Gumby imitation, B Moe?
If the subject of the collection effort is not a legitimate target for warrantless eavesdropping, e.g., is not someone meeting the criteria of the law as noted above, then the collector’s effort has been wasted, as the product of their effort cannot be used in a courtroom, andâ€â€since we’re talking in theory about someone who doesn’t fit Sub sec. 1801(a)(2) or (3)â€â€there’s not likely to be a national security reason to pursue them, either.
Russ, that’s just not so. Look at (a)(4), the section that says “a group engaged in international terrorism or activities in preparation therefor;”. let’s say that we have intelligence collected completely external to the US, say an intercept of UBL’s sat phone calls, and in that intercept we get a Florida phone number. We then watch for calls from UBL to that Florida phone number and hear UBL talking to Mohammed Atta, who is saying “We’re all set, yeah, Flight XXX. I’ll save you a virgin.” As I recall, Atta was in country legally and (I think) probably would have qualified as a “US person.”
Could we have arrested him? No.
On the other hand, we could certainly have arranged for him not to get on the plane.
And that’s really the underlying point. We’re dealing with an enemy who is communicating across our borders to people who meet most of the conditions to be a US person. §1801(a)(4) and (b)(2)(C) define these people not to be “US persons” once they are engaging in acts of terrorism, supporting terrorism, or preparing for terrorism. Underneath it all, with all the talk about what §1802 says, that’s the major reason I think this is a justification: because it doesn’t make sense for 1801 to define a category of people acting against the US and say “nyah nyah, can’t look at these people because they’re not acting for a foreign government.”
Would a defense lawyer try to claim otherwise? Sure; that’s what happened in “USA v UBL”. And the court found that they couldn’t admit the evidence BUT that the collection of intelligence was legit.
And now, let’s go back to what Bush says happened:
<ol>
<li>They collected information from outside the US that indicated there was communication going on across the borders. (Can you say “Sheikh Mohammed’s laptop”?)<li>
<li>Knowing they had to act quickly and secretly, Bush and the AG authorized collection, knowing that Reno and Clinton had done the same thing, with a reading of 1801 and the “USA v UBL” decision to back them up;</li>
<li>They made the necessary sworn representations and notifications as described in the statute</li>
<li>… and have continued to do so;</li>
<li>at least until the NYT blew the operation.</li>
</ol>
The notion that any crime was committed — especially with the USA v UBL decision — is just ludicrous.
TW: note. As in “note that Jeff’s blog software doesn’t let a numbered list through. Gretch.”
This gas bag has spent about half this thread whining about an extension, I just want to know why we need it? It seems a simple enough question for one as erudite as cloudy. Where are all your new and improved progressive ideas? Inquiring minds want to know.
Well maybe I will stick to my guns. Or backtrack on my backtracking. I still think it violated federal statutes, I’m just having trouble proving it. It takes a little background to explain (if you’ll bear with me.)
The whole reason the FISA court came into existence was due to the Church Committee hearings held in the ‘70s. The Church Committee investigated a wide variety of issues, like CIA assassinations, and spying on US citizens (e.g. COINTELPRO). The NSA was also investigated, particularly its Operation Shamrock. Operation Shamrock was considered one of the most secret programs of the NSA, but it was rather simple. A courier would go up to New York to the major telegraph companies every day and returned with copies of every single telegram that had been sent to or from the United States. These were electronically processed for keywords and also by name against a watchlist that inclueded the names of several hundred American citizens.* It probably involved a very primitive process at first, since it started under Truman and lasted until the Church Committee. The Church Committee set up FISA to help protect US citizens’ 4th amendment rights. (The issue of domestic spying has always been a touchy one. Even foreign spying wasn’t really done in a particularly organized manner. The CIA wasn’t established until 1947, and it was specifically denied any sort of law enforcement power, and charged only with doing their collection work solely overseas.) Watergate lasted from ‘72 to ‘74, and Seymour Hersh in the NYT published an article about the CIA’s “family jewels” (assassinations, coups, etc.) in ‘74. And the Church Committee did it’s work in ‘75 and ‘76. This was the kind of atmosphere they were working in.
I think given the background it’s clear what the intent of the statutes is. I think the incongruity between the definitions in 1801 f) and 1802 a)1)B) is an inadvertent loophole. I think the Bush adminstration is violating the letter of the law with this program, but not the spirit. I think it’s quite clear that Bush administration officials have been acting in good faith with this program. It wasn’t started as an attempt at some sort political advantage, like FDR’s attempt to pack the Supreme Court, or something like breaking into the DNC’s headquarters. Nor was it an attempt at covering his own ass, like perjuring yourself in a sexual harrassment case (and no I didn’t support impeachment.) This was an attempt to deal with large amounts of contacts discovered on the computers of al Qaeda members. And there was oversight of the program, just not the oversight defined by federal statute. Wrong to “legislate from the Oval Office”, if you will, Congress should have done it, but I can’t say I’m terribly outraged.
Actually, out of my overall posts, which are themselves less than 10% of the comment space at this point, the issue of an extension was mentioned a couple of times. I mentioned it in response to a claim made on the thread about the Democrats leaving the country “blind” by letting the Patriot Act lapse, when in fact it is the Democrats who seek and extension to further negotiate the issue, and the BUSH Administration that has said they are willing to let the law lapse in order to get the version that they want.
OK, so why do we need an extension?
Again, your notion of numbers and proportions are simply bogus. The Senate passed unanimously a version of the Patriot Act renewal that was acceptable to Feingold and the other Democrats as well as their allies on this issue on the other side of the aisle.
The issue in particular is not “The Patriot Act” as some sort of abstraction, but the difference between the version passed by the Senate and the version that came out of the House/Senate Conference. This issue, the specific issue at hand, has not had three years to be debated, or even three months, or even one month. It is figures like Gonzales, as well as on this thread, who want the Conference bill (largely similar to the House version on the disputed issues) passed rather than the version more protective of civil liberties passed by the Senate who are warning that key portions of the Act might lapse at the end of this month. It is these issues that need to be thrashed out further.
I gather that on these threads it is totally OK to trash those to the left, but those ON the left must be extremely circumspect.
My sense from this gratuitous remark is that the issue itself, that of why an extension of 90 days would make any difference, one that I have patiently and in good faith answered, is really of little or no interest at all to B Moe, so my explanation will mean little, for that reason, though with other pretexts. The question ‘where are all your new and improved progressive ideas’ seems to reflect the true sentiment involved, independent of the specific issues, namely that if the world is going to hell in a handbasket (at the hands of the W Bush elite), who needs all this do goodygood thinking about the world anyway? Isn’t the real point just to get on the gravy train and get whatever you can before those who rule reduce the world to (ecological) ruins so that they can preside over the ruins?
If the ruling elite are going to wreck the world anyway and still have their way, why resist them instead of bullying whoever they say is appropriate to? To that, the real question, I have only the answer that I have a different world view from that.
But, “gas-bag” or not, I have answered the specific question at hand
Echelon!
That’s what I was thinking of before- the email survellience/mining program.
Carry on.
I’ve done my best at keeping up with all of the details of the legal arguments presented in this thread and elsewhere, but there seems to be a rather important (or it seems important to me) detail that I can’t seem to get a definitive answer on. Are we talking about U.S. citizens or foreign nationals who are in the U.S.? And does it matter?
Phoenician – the link to the WaPo you provide is interesting, to say the least. But the other link you offered up thread – the story on the UMass Dartmouth student – is a bit puzzling, given the conclusions you draw from it.
Where in the story did you find any indication that the Federal Bureau of Investigation was involved in this, let alone that they were engaged in warrantless monitoring of library interloan transactions in relation to background information held on Americans?
And I still think Charles Austin deserves major props for judicious invocation of Edmund Blackadder. Ben Elton rocks!
re: the UMASS library story
In the interests of accuracy of information,
based on doubts expressed in this thread by Robin Roberts, and by someone else more credible to me about other aspects of the story on another website, I sent a message to the managing editor of Truthout suggesting that the authenticity of the story be checked out further.
In the meantime, especially in the midst of a huge range of valid revelations that have also taken place lately (including the numerous ones noted in the more reliable Progressive, someone I happen to know personally) I would suggest to Phoenician and other civil libertarians to be cautious with regard to that particular item.
In any event, the overall arguments I was making did not hinge on that example, and still stand.
You keep saying this, Charlie, and you keep not explaining why. The definition of a “US person” is contained in 1801(i), not 1801(a) or (b), and it says nothing about any such exception.
Paul,
I probably need to read the FISA statute more closely, but I wonder if this construction problem is what was referred to above.
Does an individual who qualifies as a “US person” lose the protections of FISA prohibiting warrantless searches of a US person under 1802(a)(1)(B) once facts have been established that this US person would qualify as a “foreign agent” under 1801(b)(2), because FISA seems to permit warrantless searches of conversations between the agent and the foreign power? Const. Article II seems to impact on the warrant requirement in this instance.
This analysis necessitates taking account of the dicta in the Keith case (cited by Hewitt) which states that the President doesn’t need a warrant for a domestic search of a US person in connection with national security (rather than a criminal prosecution) efforts (this case involving a predecessor surveillance statute to FISA). The Bin Laden case, authorizing warrantless searches of US citizens overseas, also supports in dicta this notion of a permissable warrantless search for national security purposes (but not criminal prosecutions).
The issue would be whether the FISA warrrant requirement (with respect to the situation where a US person acts as a foreign agent) improperly impinges on the executive’s authority under Const. Article II. The administration would also point to the Congressional Resolution on the use of force, the contemporaneous consultations with congress regarding the implementation of the NSA snoop policy and the temporary suspension of the policy to address FISA court concerns to buttress its argument that it was carefully crafting the policy to avoid implicating non-nat sec concerns and acting in good faith.
But the other link you offered up thread – the story on the UMass Dartmouth student
What I found troubling in that article is that professors are having their students read books by Mao and other communists. We now know that Mao and Marx and the rest were all wrong. That kind of thing should have no place in the modern American classroom. I hope that professor is fired, or at least reprimanded.
Cloudy, you claim to have attended law school. This is a claim I find as unlikely as Roberts finds the UMass story. The clue? That you can’t keep straight the Fourth Amendment protections against unreasonable search and seizure and the “right of privacy”.
Those who have studied constitutional law understand that those are two very different things. That you don’t gives us another strong clue.
Interesting note: The Attorney General (Gonzales) came out today and said Congress authorized the surveillance…