The Democratic spin doctors, spurred on by their disingenuous Congressional taskmasters , are all over the tube this morning trying to gin up additional outrage over this NSA domestic “spy story”—even as the President stands firm and defends the practice. Forcefully. From his weekly radio addres (via Byron York):
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.
This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.
As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad. Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn’t know they were here, until it was too late.
The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities. The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time. And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.
The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.
The NSA’s activities under this authorization are thoroughly reviewed by the Justice Department and NSA’s top legal officials, including NSA’s general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.
This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I’m the President of the United States.
An aside here: Asked by FOXNews’ Tony Snow if he believed the release of the NYT story was “coincidental,” Democratic strategist Bob Beckel laughed and noted that of course it wasn’t. Which, in addition to being obvious to all but a few naive (or perhaps willfully blind) partisans, has the ironic secondary effect of proving a convergence between the Democratic party’s interests (well, the anti-Lieberman/Zell Miller wing, anyway; to his credit, here’s Lieberman distinguishing himself again today) and the interests of the New York Times.
Writing at the Corner, Cliff May reacts to this story much the way I have (and have many of my readers, more than a few of whom have worked in the intelligence field):
Will any MSM editorial page demand an investigation of this leak? Or is it the belief of the MSM that the truthful revelation that CIA operative Valerie Plame got her partisan retired husband assigned an African boondoggle more significant than actual breaches of national security in wartime?
I believe any pro-defense blogger should agitate for just such an investigation.
In fact, I think it high time that we push back against the implied cultural assertion that patriotism and national security are quaint throwbacks to modernism and the early days of the Cold War—and that, as a hyperpower, we can easily absorb such leaks, used as political cudgels, as the price of doing business in the partisan divide of Washington.
In the last week alone, we’ve seen a huge victory in Iraq, where close to 15 million cast ballots in favor of self-determination, cheapened by the leaking of important (and legal, we’ll certainly find) intelligence gathering operations; we’ve seen the defeat of the PATRIOT Act—the very measures that we know to have thwarted terrorist attacks, and the measures our Commander in Chief and his Justice Dept is asking for to keep us safe—thanks to a timed assault by the New York Times and congressional Democrats (reacting with practiced outrage to what we now know that in many cases they’d been briefed on); and we’ve seen proven interrogation techniques made ostensibly “illegal” by officially defining torture down, providing our enemies with yet another measure of victory.
Important to note here are two things: 1) The NYT story doesn’t suggest the administration did anything illegal; and 2) the level and tenor of the outrage from Dems strategists, spokespeople, and leaders, is a clear indication that they are protesting just a bit too much—that they are trying to shout down rebuttals by assuming the wounded patriot stance that is swiftly becoming the most overused weapon in their entire political arsenal.
If it turns out—like I believe it will (and I’ve heard now from several people familiar with intelligence)—that what the President was doing (and will continue to do) was not only legal, but from a practical standpoint, critical to monitoring domestic terror cells and stopping terrorist attacks here and abroad, I believe that any pro-defense American with the power to do so should insist that these intelligence leaks be investigated.
Because it is not quaint to reveal our secrets simply because you don’t believe that we are truly at war. And that is what is happening here—that Dems and progressives believe the ends justify the means. And until the rest of us stand up and go on the offensive—until we stop taking the kind of reactive posture that forces us to defend each and every necessary action (the precise rhetorical position anti-war progressives want us in)—we will continue to watch our safety erode, and our politicians go weak.
With that, I’ll leave you with this excellent comment from Steve in Houston, which sums up the anger many of us feel at the partisan undermining of the war effort:
I’m just bewildered by this whole thing, and the ongoing maneuvering to kneecap any of our more effective terroristic countermeasures.
We know by now that terrorist cells work much like organized crime, though in a much more shadowy setting than, say, your average don. We HAVE to be able to act on intelligence from them quickly because of the cellular nature of their operations – that requires speed, for which we have to give up something.
IT guys often say you can get it fast, or you can get it right. CEOs say do both, because they have bigger issues to deal with than project management.
No one that I know is saying that gives license for wanton snooping; speaking for myself, though, I’m willing to give up a portion of “privacy” that I didn’t realize I had in order to more effectively combat the people who have declared war on us and are trying to kill us.
Which brings me to what I think is really going on: I believe that the majority of those on the left and a good number of libertarians believe, quite simply, that we aren’t at war; or that if we are, it’s “war” instead of war, and besides, it was based on lies so it really isn’t a war. Also: Halliburton. And anyway, we started it.
With that as an assumption, they then act in ways that are utterly baffling to those of us who believe we are in a war that has many fronts, not all of which are physical.
If you begin with the assumption that, say, the New York Times thinks the war on terror and the war in Iraq are just a bunch of bullshit, then this kind of reporting makes complete and perfect sense. Same with Dean’s and Murtha’s and Pelosi’s and Kerry’s pronouncements.
It’s the kind of fundamental difference that I’m afraid can never really be bridged, much like that between pro-choicers and pro-lifers.
It’s going to take another attack for it to perhaps change, but even then, the left and many of the Dems have an out – that Bush obviously put us in greater danger. They’ve already set up the theorem, they’re just waiting for the proof. A little attack, say a mall bombing, would do just fine. If it’s in a Red State, that actually might be better. That might “wake people up” to the real danger to life on Earth.
They’ve seen that their constituents can absorb a 9/11-style attack, and they’ve seen that the victims of such attacks become even more resolute in their hatred of George Bush and Republicans.
If I’m a terrorist, feeling all bummed by my comrades getting greased along the Euphrates, I’m really trying to find a silver lining. Fortunately, the infidels are cooperating:
— I now no longer need fear any kind of physical coercion; the Dems have basically put me in the same position as Nigel Tufnel’s guitar: It’s never been played. Don’t touch it. Don’t even point. Don’t even look at it.
— As a potential martyr, I know I won’t need to comply with a treaty I never signed; I won’t be incarcerated for much more than a fortnight; I won’t be returned to my country of origin; and I won’t be placed in some allahforsaken Caribbean gulag where they pee within 20 feet of my
plastic-encased Koran.— I also know that if the kufr find my Blackberry, they can’t really do much about checking on my contacts at Harvard and Georgetown. I’ll lose my speed dial to Ahmenedijad (sp?) and Dana Milbank’s (or is it Dana Priest’s?) e-mail address, but I can always rebuild my contacts list.
It’s great. I get all the benefits of being an American citizen and still get to plot its violent demise.
****
(h/t Mark in Mexico, LGF); see also, Charles Martin, who writes:
It would appear that the Times is admitting that they released this information, knowing it would damage national security.
18 USC 793 […]:
(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.That’s the Espionage Act. Ten years. Expect a criminal investigation, and it’s not going to require a referral from NSA  although I understand NSA has already made one.
[all emphases in the original]
Read the rest.
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update: Silent Running points to Executive Order12333, signed by Ronald Reagan, from which Bush is likely asserting his executive powers.
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Once the fog lifts, I should hope the Dems who were so quick to call for hearings and investigations on the President’s use of authority will be just as willing to call for hearings into the leakers of a highly classified program, the disclosure of which could jeopardize national security.
****
update 2: Lauren is outraged — and points to several other sites expressing OUTRAGE over Chimpy McHitlerburton’s latest attempt to shred the Constitution and turn the US in a totalitarian theocracy.
Question: Will these same outraged “civil libertarians” save some of that outrage for the leakers should it turn out that what was leaked was Constitutionally permissable and legal—and that the leak itself is the real crime here, one that damaged our national security?
And more importantly, will Republicans like Arlen Specter—who were so quick to get out in front of the outrage parade their own selves?
A reminder: 50 USC 1802:
(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[…]¹
Periodic review, we’re told, happened every 45 days.
The rapidity and forcefulness of the President’s response should frighten those who raced to find fault here. But then, when there are no consequences for making accusations, why not just go ahead and see what sticks, right?
****
update 3: From Mark Levin:
I notice the Los Angeles Times and other newspapers are using carefully cherry-picked “experts” from the ranks of the ACLU and the former Clinton administration to provide comment on the president authorizing the NSA to do what the NSA does, i.e., spy, among other things. Many of these “experts”—joined by a few uninformed, media-obsessed politicians like Arlen Specter and Russ Feingold—have claimed shock at the eavesdropping and have either suggested or pronounced the president’s acts illegal or even unconstitutional.
Now, what exactly do we know from these hysterical reports? Not very much. As I wrote yesterday, the FISA permits the government to monitor foreign communications, even if they are with U.S. citizens. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power. Today’s Los Angeles Times writes that the program “was designed to enable the NSA to monitor communications between Americans in the U.S. and people overseas suspected of having ties to terrorist networks.” Fine. That’s not illegal or even unusual. And these “experts” know it. But the truth is that we have no idea of the contents of the president’s executive order and, therefore, we have no idea what conduct we’re supposed to be offended about. Perhaps the executive order expanded the authority of the NSA or expedited the processing of wiretaps. We just don’t know. Unfortunately, the administration’s hands are tied for while revealing the executive order’s contents to the public might well demonstrate the appropriateness and legality of its conduct, thereby deflating the effort to create a scandal, it may well be too damaging to ongoing operations.
But clearly many members of Congress who have not spoken on the record do know about the program. As the president said today, Congress has been consulted, and often. It’s remarkable that the New York Times, Los Angeles Times, and the Associated Press failed to uncover this fact. Indeed, they did the opposite. In addition to cherry-picking experts from the ACLU and the Clinton administration, the media are cherry-picking from their favorite politicians to give the opposite impression, i.e., that Congress was in the dark. And who better to react hysterically to hysterical reporting than Arlen Specter. The fact that Specter may not have been consulted, as he doesn’t serve on the Senate Intelligence Committee, is of no consequence, except to Specter. He might want to ask his colleagues on the Senate Intelligence Committee what they know before stomping all over their congressional-oversight turf. But for a brief mention of Jay Rockefeller’s knowledge of the program in yesterday’s New York Times, we’ve hear nothing about of from the relevant committee members. Indeed, their silence, if anything, suggests to me their likely awareness of the program, consistent with the president’s statement that Congress was aware.
What is clear is that this is not some Watergate-type rogue operation, as seemingly hoped by some. In addition to repeated congressional notification, the program has been heavily lawyered by multiple agencies, including the Department of Justice and NSA and White House, and is regularly reviewed. Attorney General Alberto Gonzales and Secretary of State Condi Rice have both insisted that program is legal. The fact that some might disagree with whatever legal advice and conclusions the president has received does not make them right or the program illegal. But at this point, we, the public, don’t really know what these news stories are really about, do we?
See also: Baldilocks., Captain’s Quarters, and Outside the Beltway (here and here)
*******
¹Two takes on this worth considering: from Kevin Murphy and Charlie. Glenn Greenwald has more here. Reliapundit addresses Greenwald’s arguments in the comments, as does Joe at Cold Fury. For what it’s worth, Greenwald, et al, sem to be making a distinction between terrorists (as foreign powers) and member of foreign governments, whom they say the statute covers. I find this distinctions at best an open question, though I suspect there is every reason to believe the terrorists operating under the aegis of the al Qaeda organization fit the legal standard. Al Maviva answers Greenwald’s critique here.
****
See follow-up posts here and here—which looks in more detail at the legal and constitutional questions raised here.
****
My subsequent posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.
I’d rather they released this story once they heard it, rather than waiting for a year.
I’ll agree with you actus, if only cuz we’d be at the trial stage of the leakers right now.
“I’ll agree with you actus, if only cuz we’d be at the trial stage of the leakers right now.”
I hope everyone that broke the law here goes to trial.
Since they admit they knew it would damage the national security, I’d rather they hadn’t released it at all.
And I might add, those that leaked the info regarding the “foreign detention centers”. Time to make it “hurt” if you’re going to piss on the war effort.
Especially since it’s pretty clear Bush didn’t.
The left just does not believe this is a real war. They think of it in the same sense as the ‘War on Drugs’ or the ‘War on Poverty’.
In a ‘real’ war, the president as CIC has enormous powers and is given much flexibility wielding those powers.
A powerfull description of the administrations view on this I found via Instapundit.
Reading the pdf transcript of the Brookings Institute debate on torture found here
Pages 15 through 21 deal with the presidents 8 core principles on the WOT, from someone who was in the administration immediately post 9-11. Much to big to put in a post, but very important view.
Very powerfull MOJO…
TW: history….no shit
“And I might add, those that leaked the info regarding the “foreign detention centersâ€Â. Time to make it “hurt†if you’re going to piss on the war effort.”
Anyone who doesn’t follow the pollster written ‘national strategy for victory in iraq’ is pissing on the war effort!
The theme song for Dems, Leftists and their whores in the NYTimes and Wapo
We’re going to party like it’s 9/10/01
No wish for punishment, actus? A fat lot of good a trial is going to do.
Wait, how about not doing it in the first place? Y’know, helping to preserve national security? Or is that something that you would rather gloss over?
Wait, that’s not gloss? Are those crocodile tears?
Casting now open for a new Oliver Stone movie about the leadup to WWII
I think Actus is campaigning to be cast as Charles Lindbergh
Gee, didn’t know I said that. Oh, wait, I didn’t. I guess leaking classified information regarding detention of detainees during a war would be “pissing on the war effor”. Something called a “violation of the law” as noted above.
If you don’t like the ‘national strategy for victory in Iraq’ or do not agree with it, fine. Protest, write letters, post on blogs….whatever. But when you are dealing with classified material and leak to “voice your dissatisfaction”, then, yeah, you should be prosecuted and it should “hurt”.
BTW actus, I did notice that you changed the subject. Just didn’t want you to think that I missed it. acthole
BTW: anyone else notice that the Left now sneers at a first class scholar, a tenured professor at the top of his profession, at one of the best universities, who’s now a part of the nsc, as a “pollster”.
Here’s a clue:
Dick Morris is pollster.
Feaver’s got a little more going for him.
(Trying to discover the genesis of this smear I did a little googling. Seems all roads on this lead back to the DailyBallSack. Surprise surprise.)
“No wish for punishment, actus? A fat lot of good a trial is going to do. “
Isn’t that implicit in a wish for a trial?
while we’re at it lets nail Ellsberg to the cross too.
The speech the President gave was pretty clear,
“ This is what I did “
“ This is why I did it “
“ This is how I did it “
“ This Is why I will continue to do it “
No bullshit about “No controlling legal authority”
The local ABC News Radio reports about the President “ Admitting to eavesdropping on American citizens, and that Senate Democrats are calling for hearings”
Not to investigate how the NYT learned of a highly classified program.
I guess they need to get to the bottom of this and find out….
What the President did,
Why he did it,
How did he do it ?
Maybe we could have these speeches “ Weasel captioned for the Clue impaired “ for our friends in the media and the democrat party.
Yes, Very concerned with abuses of executive power they are…..
http://www.townhall.com/opinion/columns/tonysnow/2005/12/09/178552.html
“BTW actus, I did notice that you changed the subject. Just didn’t want you to think that I missed it. acthole”
What I don’t get is why its so bad for the war effort for us to let it slip that the types of searches we could do under FISA are being done without FISA. ie, nothing new is being searched, just we aren’t doing it according to the law.
– The “war” thats going on in Washington is centered in the Dembulb party “policy” of:
A) Restablish political control indirectly by:
1) Weekly exposure of any administration “acts”, legal or Illegal to keep the President and his advisors back on their heels and in defense mode. This, in general, stymies normal day to day governmental operations, and tends to make the administration look harried and out of touch, aside from lowering operational effectiveness.
2) Spin all such “reports” and expose’s through the MSM Liberal friendly media/TV/Radio in such a way as to emphasize potential dangers to the constitution and civil liberties or any other negative conitation that can be imparted by headlines and content.
3) Evidence highly agitated outrage via the use of the most imflamatory language possible. Accusations with indirect inuendo’s are very useful for this purpose. Use of carefully crafted polls and anti-administration sources is also a viable approach.
4) The voting public can be counted on not too truly understand the nature of these attacks and expose’s, so almost anything goes.
– With these processe’s, the Democratic party can regain effective political power by weaking the President and his administration, and setting the stage for a massive comeback starting in 2006. This is neccessary and justified since a successful resolution in Iraq and further weakening of the Jihad worldwide will probably result in further impotence and loss of office for our beloved comrades on the left.
What I don’t get is why its so bad for the war effort for us to let it slip that the types of searches we could do under FISA are being done without FISA. ie, nothing new is being searched, just we aren’t doing it according to the law.
We didn’t let it slip, it was deliberatly leaked by someone tasked with maintaining secrecy. How do you know it isn’t hurting the war effort? This procedure caught the guy who was casing the bridges in NY. Here let me draw you a picture. We capture some Al-Habi dude in some ‘stan and glean his cell phone, computer and blackberry. We got maybe 2-4 hours before the word is out that Al-Habi is incommunicado and all you brothers ditch any phones or email addresses that you used to communicate with him. Let’s take two to six days to get a warrant!
Whereas if we act on the time sensitive information that we have, we can find out who Al-Habi has been corresponding with and who he has been talking with. We can then expand those contacts exponentially by targeting those that Al-Habi’s contacts correspond with and etc, etc, etc.
Oh, and how do you figure that we aren’t doing it according to the law. The President said that this program is operated fully under the law, it has been reviewed and renewed every 45 days and that Congressional leaders on both sides have been briefed over a dozen times. He also explicitly stated that the program would continue.
Unless you want to stack your legal expertise up against that of the WH, the NSA, the DOJ and what other alphabets are involved, I suggest you walk back the illegal part.
I hope we wake up tomorrow and all of the CIA is found at the bottom of a large well. This is not leaking; this is a flood.
Precisely, Big Bang Hunter.
This story is a quintessential proof of the saying that a lie can be half way around the world before the truth even gets its shoes on.
They will continue to throw up the chaff, muddy the waters, whatever…forcing Bush’s Administration to answer their bullshit charges.
What’s truly despicable is that this has the net effect of hindering the war effort (note well leftards, the lack of scare quotes around the word WAR).
The Left is beneath contempt. Honestly, I don’t know how Bush and his team keep themselves from bursting into flames or physical violence against Leftist leadership and their stool pigeon running dog lackies in the press. This shit is so fucking obvious, yet so difficult to combat. Got to be frustrating.
Hmmm.
Not to jump on the bandwagon here but I’ve got to agree that the leakers, and the staff of the NYT, needs to face indictment, trial, conviction and imprisonment.
And we MUST demolish the CIA.
Frankly I’d bet that this leak came out of the CIA as it’s been very clear the CIA has been working very hard against this administration and indirectly against America. Those that didn’t commit a direct crime should either be forcibly retired or cashiered. Those that did should be tried and imprisoned.
In any case any and all current, and former, employees of the CIA should have their clearances permanently revoked with, perhaps, reinstatement after a complete review.
Unlike those in the CIA or Congress. If the shit hits the fan we won’t have a support staff waiting around to rescue our individual asses. If terrorists are able to use a WMD close to our respective homes, then we’re the ones that are going to pay the price for this.
In a way I fault Bush because he hasn’t driven home that this is indeed a war. Instead he’s tried to make it a low-level conflict so it won’t impact the economy. But it’s time the standards of wartime are applied.
And if that hurts journalists? Cry me a river.
— I now no longer need fear any kind of physical coercion; the Dems have basically put me in the same position as Nigel Tufnel’s guitar: It’s never been played. Don’t touch it. Don’t even point. Don’t even look at it.
==This is also good if you happen to be innocent
— As a potential martyr, I know I won’t need to comply with a treaty I never signed; I won’t be incarcerated for much more than a fortnight; I won’t be returned to my country of origin; and I won’t be placed in some allahforsaken Caribbean gulag where they pee within 20 feet of my
plastic-encased Koran.
==This is also good if you happen to be innocent
— I also know that if the kufr find my Blackberry, they can’t really do much about checking on my contacts at Harvard and Georgetown. I’ll lose my speed dial to Ahmenedijad (sp?) and Dana Milbank’s (or is it Dana Priest’s?) e-mail address, but I can always rebuild my contacts list.
==huh?never mind
It’s great. I get all the benefits of being an American citizen and still get to plot its violent demise.
==This is also good if you happen to be innocent of plotting anyones demise
“And we MUST demolish the CIA.”
Amazing stuff what a bit of partisanship will do to people. Kooky.
Outraged? Feh.
What I don’t get is why its so bad for the war effort for us to let it slip that the types of searches we could do under FISA are being done without FISA. ie, nothing new is being searched, just we aren’t doing it according to the law.
Two problems, ficus, er, actus: (1) saying we’re legally allowed to intercept undercertain conditions is part of the law; saying was are intercepting something specific reveals sources and methods and can get people killed; and, (2) it’s actually completely legal, see 50 USC 1801 et seq.
update update update: commentor SeanH put up 12333 in your comments on an earlier post.
and you mis-spelled “address”
Without expressing judgment one way or the other on the larger issue, I’d note that the key factor as to whether the section of 50 USC 1802 you cited would apply seems to be the following limitation:
The attendant definitions are here. “Foreign power” includes “a group engaged in international terrorism or activities in preparation therefor” but “agents of a foreign power” specifically excludes “United States persons.”
“(1) saying we’re legally allowed to intercept undercertain conditions is part of the law; saying was are intercepting something specific reveals sources and methods and can get people killed;”
What specific thing has been revealed?
“it’s actually completely legal, see 50 USC 1801 et seq.”
Whats that show me? FISA?
Actus,
You are amusingly ignorant – which is not surprising – what is surprising is how boldly you proclaim it.
It is not illegal for the NSA to intercept communications of foreigners, even if those communications are to American citizens or residents. There are specific circumstances when a FISA warrant is required and until you educate yourself about when those circumstances arise, your comments will continue to be as useful as mouse shit.
“It is not illegal for the NSA to intercept communications of foreigners, even if those communications are to American citizens or residents.”
Can they intercept the communications of citizens to foreigners?
Could someone–and I mean this sincerely–point me to the part of the law that authorizes this? 50 USC 1802 says (with my emphasis):
(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 thatâ€â€
[. . .]
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;
My understanding of this is that this does not permit the NSA to intercept communications from a foreigner to a US citizen, and vice versa. Which statute does permit this?
Look, extreme rendition is an important part of our anti-terror policy. And there’s no way we can be sure who to apply rendition to if we can’t listen to what they’re saying. Would you rather that we grab innocent people and fly them off to Egypt to be questioned?
My question too, Mark. The news reports I’ve read suggest that teh Administration is not relying on any particular law, but on the same preposterous idea offered in the so-called “torture memos”: that since the President is Commander-in-Chief, he can’t possibly be answerable to anyone for how he carries out that job. But you know what news reports are like. I’m going to wait for better information, but if it turns out that that’s the thinking at work, those responsible need to be sat on, hard.
Mark, check §1801. People engaged in international terrorism are defined as “agents of a foreign power” and forfeit the surveillance protection.
People engaged in international terrorism are defined as “agents of a foreign power†and forfeit the surveillance protection.
That’s the thing the liberals don’t want to admit: this is being used to spy on terrorists not regular citizens. There’s a world of difference there.
Hubris is right about 1802 1)a), there’s also 1802 1)b):
This would pretty clearly cover situations where a “US person” is on either or both sides of the line. (2 American citizens talking over the phone in France, for example.)
I don’t think it means that monitoring those calls are illegal per se, from what I’ve read it means that a FISA court order is necessary in those cases, and apparently there’s a 72 hour window to get that court order in emergency situations.
apparently there’s a 72 hour window to get that court order in emergency situations.
72 hours? That’s an eternity. Terrorists could build a biological device and set if off in Times Square in half that time.
Hubris, I think you’re misreading the statute: §1801(1) defines “any person other than a US person”, but §1802;(2) defines “any person” without the restriction, who is engaged in intelligence collection(A), espionage(B), international terrorism, or the support of international terrorism(C), as “agents of a foreign power”.
In other words, you don’t have to get a regular court order to listen in on Aldrich Ames (spit) even though he’s a “US person” because as an agent of a foreign power he forfeits that protection.
Smithy, you’re right: that’s why there’s a mechanism to listen first and tell the court later.
smithy: The 72 hour window means they can monitor the communications for 72 hours without a warrant.
Gotcha. Thanks for the clarification, Charlie.
Can’t get your trackbacks to work today. I linked from [url=”http://smalltownveteran.typepad.com/posts/2005/12/we_eavesdropped_1.html”]
We eavesdropped on the bad guys! Oh, my!—Part 2[/url]. Is it time for the NSA to start monitoring communications between CIA and NYT employees?
I don’t think it’s correct to say that being a “foreign agent” trumps “US person”. From the definitions in 1801:
In other words, any person who is not a United States person and meets the requirements listed.
Can’t get your trackbacks to work today. I linked from We eavesdropped on the bad guys! Oh, my!â€â€Part 2 Is it time for the NSA to start monitoring communications between CIA and NYT employees?
Basically, the statute seems to give precedence to citizens/legal aliens.
Mark, Paul Z—An interesting case pointed to by Orin Kerr at Volokh is that of USA v. USAMA BIN LADEN (December 19, 2000) opinion by Justice Sand, which may be pertinent to Mark’s original question. This is a murky area of the Law as Orin puts it, so every relevant Court decision advances clarity, hopefully.
Dorkafork: 1801(b)(2) includes some addition definitions which seem to allow for the possibility of a United States person also counting as an agent of a foreign power. But I agree that “US person” trumps “foreign agent”: the 1802(a)(1)(b) exception says it applies to US persons, period.
Dorkafork, you’re losing the paragraphing (easy enough to do). The definition is like this:
§1801:
(a) “foreign power means”
(b) “agent of a foreign power means”
(b)(1) “Any person other than a US person”
(b)(2) “Any person” [no restrictions]
In other words, if you meet the wording of either §1801(b)(1) or §1801(b)(2) then you’re an agent of a foreign power under §1801(b).
Paul, I don’t think that’s right: a list is a disjunction. if §1801(b)(2) is met, then §1801(b) is met.
Ok. i retract.
Lauren can’t learn to dance.
Listenup, i’ll make this simple.
We need to have covert operations. We have to have them. What the president did followed procedure. We can monitor anyone in the interests of national security, tools. It gets classified.
We classify collection operations to protect them from compromise. Once someone knows what we are doing they can protect against it.
The leakers compromised a lawful source of intel collection. They compromised our national security. They broke their oath.
They should be punished to the full extent of the law.
Hubris, Lauren, et al–should we not have covert operations?
I should probably preface all of my comments with the caveat “of course, I’m no attorney.” Now I’m too drunk to figure anything out.
…[w]ut I’m not too drunk to figure out that playah grrl is still a moron. Sigh.
playah grrl, what part of “Without expressing judgment one way or the other on the larger issue” do you not understand? Pretty much the whole thing, I guess.
Okay, I just scanned that “USA v UBL” thing and it sure appears to me to support my argument about §1801. I’ve got to run out to a Christmas party, but I’ll do a little more arguing of this later.
(PS. This opinion is upholding a similar collection of intelligence authorized by Janet Reno under Clinton, just by the way.)
The more general part is 50 USC 1801(f) which defines “electronic surveillance” such that intercepting communications between foreigners and US persons is not illegal so long as the US person is not specifically targeted.
So long as you are targeting the foreigner, that a call to a US person is intercepted is not illegal.
Which would of course be logical to anyone but actus.
Lol, the joke’s on you– i’m drunk too!
50 USC 1802…hmmm.
it seems sort of silly to me for armchair pundits to be analysing the collection of classified data. perhaps even moronic.
Charlie(Colorado): I think you’re right. But I still don’t think that a US person loses protection under the statute when they’re classified as a “foreign agent”. That seems like a loophole you could drive a truck through. I think the relevant part of the statute is 1802 a)1)B). When a US person is a party to the communication, a warrant is needed.
“What the president did followed procedure.” Well, I think it’s debatable that he did. Proper procedure seems to be getting a warrant, and I’d rather the government did that. I don’t think it’s a big deal that they didn’t follow procedure in light of the fact that it dealt with numbers found on al Qaeda computers, only monitored international communications of those people, was reviewed repeatedly by senior officials and was known to members of Congress.
The slandering of the NSA bothers me greatly.
It’s odd when I read that the NYT is able to look at intelligence and decide what is and what is not of national security.
In my job I had to report everything because I couldn’t possibly know what all was or was not valuable. And then I had to shut up about everything because I couldn’t know what items in my speech would or would not be valuable to the other side.
And in the end newspaper reporters are the arbiters of it all. My life has to depend on their discretion.
This is just sad.
For the leakage, look to the CIA. They’ve never been able to play well with the other children.
You cite 1802 USC 501
Unfortunately, it isn’t until you get to
that non-state activities are mentioned. Since 1801(a)(4) is not referenced in 1802 it is quite unclear that 50 USC 1802 applies in the al-Qaeda case. It should but it doesn’t. I’d trade that for many other parts of the Patriot Act….
Trackback
TW: doubt; There is no doubt as to whose side many members of the Congress and the Big Media are on.
Interesting case, Rizalist, though tough to interpret here since it mainly wrestles with the fact that the surveillance at issue there, though of a US citizen, took place overseas. Sand’s general description of the foreign surveillance exception certainly sounds favorable for Bush, but seems to be based almost entirely on pre-FISA precedent. Perhaps what the Administration’s been doing is constitutionally OK but statutorily illegal?
Not sure I understand Robin Roberts’ point. 1801(f), like everything else in its section, is only a definition; by itself, it neither legalizes nor illegalizes anything. Is Robin maintaining that the actions we’ve been talking about are not “electronic surveillance” at all for purposes of the Act? I’m afraid I don’t see it.
Count me as someone that is always amazed at people who blithely wander into the supermarket, buy that bonus pack of 1 1/2” cut Porterhouse steaks and then are shocked, shocked I tell you to find out how the steaks got there. As if they magically appear, cut and wrapped, in the meat case.
Fucking grow up, people. Do want the job done or do you want your neighbors dead because you want the niceties observed and pinkies extended on the teacups?
Is Robin maintaining that the actions we’ve been talking about are not “electronic surveillance†at all for purposes of the Act?
That’s what it says. “Electronic surveillance†is much more narrowly defined in this law than it would be for common usage. References to the term “electronic surveillance†in 1802, etc. are limited to that definition.
I figured as much, David, but I still don’t see it. If the NSA intercepts the phone calls I get from my al-Qaeda masters, how is that not “electronic surveillance” under 1801(f)(2)?
The MoveOnBots were in an uproar about this at their Friday protest. Just the Dems playing for quarters again…
Paul,
It is “if such acquisition occurs in the United States”. If acquired via NSA capabilites outside the US, then that would not apply.
50 USC 1802…hmmm.
it seems sort of silly to me for armchair pundits to be analysing the collection of classified data.
HVCCO—Handle Via Comment Channels Only.
Hmmm.
It has nothing to do with partisanship. It has everything to do with complete incompetence and utter ineffectiveness.
The CIA has been wrong about nearly everything in the past twenty years and I’m not in the mood to forgive them yet again.
I thought the monitoring in question did take place in the US; it also sounded, from the news reports I read, like they were deliberately targeting US citizens, which would also qualify under 1801(f)(1). Same caveat as before: can only trust news reports so far.
GODDAMN!!!!!
I’m about ready to throw my computer screen throught the fucking wall!
Arguing the the letter of the law down to the last puctuation when you’re talking about known terrorist activities. If you’re a US citizen and your communicating with terrorists and the fucking terrorists are answering the phone, somebody better fucking be listening.
I’m going to mail some baby powder to some of my closest friends and none of you civil rights knobs better tell anyone if you see strange white stuff coming off the envelope. It may cause my letter to be delayed while the Feds examine it for anthrax. And if my letter gets opened just cause a little powder is puffing out of it, I’ll have the ACLU all over those guys so fast it’ll make their heads spin. I gots rights you know and I like to mail baby powder to my friends – it makes the letters smell nice.
“The CIA has been wrong about nearly everything in the past twenty years and I’m not in the mood to forgive them yet again.”
Like the WMD’s. Dam them for giving our president bad intel!
David.net – that’s funny. for lots of reasons! I’m certainly NOFORNer to that kind of talk.
here’s a good read for ya’ll:
http://www.francona.com/blog/2005/12/nsa-spying-on-americans.html
David[.net]:
That would be: Handle via COMINT channels only.
COMINT=Communications Intelligence
Uh, it was a pun Juliette. (And if punning isn’t a bad enough crime, it’s an SI pun I could have gone to jail for 20 years ago.)
There should be some way to send a message to the President and the MSM that we are more concerned about our safety than keeping the ACLU happy.
I’d love to have a cell phone or at least a picture of one with Steve from Houston’s words:
“Speaking for myself, I’m willing to give up a portion of “privacy†in order to more effectively combat the people who have declared war on us and are trying to kill us.”
I have hated this obsession with ‘privacy’ and the ‘right to be anonymous’ since 9/11. Are they crazy? Why not just wear bullseyes on our backs?
I don’t enjoy so many people knowing all about me, but I’d rather produce an ID so that the people at the airport will know that I’m me and I’m no threat so they can get on to the people they’re after. If the NSA wants to monitor my phone calls or computer use, feel free. Those idiots who have appointed themselves to protect us from the government we elected and empowered to watch out for us can go to hell.
You should go to jail for bad punning.
I have hated this obsession with ‘privacy’ and the ‘right to be anonymous’ since 9/11. Are they crazy? Why not just wear bullseyes on our backs?
Well said. No one ever talked much about “privacy rights” before 911. Maybe that’s because the Constitution doesn’t really guarantee any kind of so-called “privacy rights”. To a certain extent, the whole debate was instigated by the left after 911 to try to thwart president Bush’s anti-terror policies.
Kevin, I think you’re getting lost in the outline too. As I read it, the definitions appear to be
§1801:
(a) “foreign power” means …
(a)(1) a foreign government
(a)(2) a faction of a foreiogn government
(a)(3) an entity openly acknowledged to be controlled by a foreign government
(a)(4) a group engaged in international terrorism or preparation therefore
(a)(5) a foreign-based political organization not substantially composed of US persons
or (a)(6) an entity directed or controlled by a foreign government.
This kind of list has to be read as a disjunction, since it has that “or” there. That means the condition is true if any of the terms are true. Since (a)(4) is true, it follows that international terrorists or their support are “foreign powers” under the terms of the act.
Similarly, as I showed above, since §1801(b)(2) holds, it follows that these people aer agents of a foreign power, that foreign power being international terrorists under §1801(a). And “USA v UBL” agrees with that reasoning.
Paul, I think there are two pieces here: first, under §1801(b), since they’re engaged in international terrorism, the “US persons” constraint doesn’t apply; second, under 1801 and 1809, since one of the endpoints is outside a US sovereignity, it’s an international communication and in the NSA’s domain. “vnjagvet” (an attorney) says that this means if they collect it, and they’re mistaken about the issue of §1801(b), then the evidence coundn’t be used in court, but as long as they’ve followed the process defined, they’ve got a “good faith” defense.
“No one ever talked much about “privacy rights†before 911.”
Warren and Brandeis published “The Right to Privacy” in the Harvard Law Review, in 1890.
’ If you’re a US citizen and you’re communicating with terrorists and the fucking terrorists are answering the phone, somebody better fucking be listening.’
Absolutely correct.
Hypothetically, if we are forced to stop listening in on terrorist communications and we suffer a terror attack that could have been detected by these NSA intercepts, would it be proper to execute those who stopped the program or leaked it’s existence? I am not advocating, I’m just asking hypothetically.
Charlie – that’s excellent analysis except the “US person” label is not negated by any mitigating factors.
There should be some way to send a message to the President and the MSM that we are more concerned about our safety than keeping the ACLU happy.
You know, maybe it’s a blessing in disguise that the New York Times revealed this eavesdropping program. If you’ll recall, back when the attacks happened, Pres. Bush told Americans that the terrorists were motivated by hatred for our freedoms. They attacked us because they were attacking our freedom; they can’t stand the fact that we have so much freedom here.
So what I’m getting at is that, by authorizing the NSA to do secret, warrantless spying on U.S. citizens, we may be able to convince foreign terrorists that we’re not as free as they think we are. If Bush is right about their motivations, that could make them less motivated to want to attack and kill us.
What do you guys think?
warrantless spying on U.S. citizens U.S. citizens
You do see the difference between run of the mill American citizens and people involved in terrorist activities, don’t you?
“You do see the difference between run of the mill American citizens and people involved in terrorist activities, don’t you?”
They commit different crimes. Otherwise what else?
You do see the difference between run of the mill American citizens and people involved in terrorist activities, don’t you?
Of course I do. But if Bush knew who was involved in terrorist activities, he wouldn’t have needed to authorize warrantless searches on run of the mill American citizens, right?
The NSA has to be able to be free to do surveillance on all of us to find the terrorists. And without a court order. Because if the NSA guys had to get a court order before they could do their work, number one, it would take up precious time. Every minute counts when you’re looking for terrorists. And number two, going for a court order means opening yourself to the possibility that the judge will say no.
Could you people at least read the laws under which this matter falls (especially EO 12333)?
::::”warrentless”; sheesh!::::
TW: From Juliette, who has actually had to apply these laws sometime in her life, rather than merely read them selectively.
I cannot believe this bullhockey!
People like actus are saying it is illegal to intercept communications from a US citizen to one of Al Qaeda’s top leaders.
Let’s just assume you could read the law this way.
Wouldn’t you still want to have some patriot BREAK the friggin rule to check to see who is calling this guy? I doubt it’s all telemarketers and greenpeace activists calling them.
People like actus are saying it is illegal to intercept communications from a US citizen to one of Al Qaeda’s top leaders.
I can’t speak for actus, but just playing devil’s advocate here, I think what some people are saying is that it’s illegal to eavesdrop on the communications of potentially any American citizen who communicates with someone outside of the U.S., just on the possibility that they might catch a terrorist connection.
In other words, is it illegal, or should it be, to intercept communications from a US citizen to someone who is not a top Al Qaeda leader and has no obvious or apparent connection to a top Al Qaeda leader?
Utility Patent Application for an unbreakable code system to defeat any attempt at signal interception by United States government agencies:
A terrorist cell consisting of two or more foreign agents is susceptible to communication interception by United States government agencies.
By the addition of one US person (citizen, green card holder, or company) to the cell to act as a communications transfer point, all said signals become immediately impenetrable by United States government agencies and brings additional moral support from a large spectrum of left-leaning American citizens and also legal support of said cell by various civil liberties organizations.
Even withstanding the use of a warrant to nullify the improved terrorist cell communicaton network, our invention will still provide valuable additional time for said cell to undertake defensive actions after being compromised by staff sergeant capturing said cell’s sat phone in an Afghanistan cave complex at Washington 3:00 a.m. Saturday time as civil servant in charge of getting warrants ready is sleeping off mass intoxication after Christmas Party.
Kathy,
That’s why the goverment uses the terrorist’s phone numbers to backtrack to the US citizen or green card holder or US company.
They do not simply monitor every citizens calls.
There is a big difference there.
All of those leaking SOBs ought to be taken out and shot. Effin’ traitors.
Yes, but I think the question is, is it legal? And if it’s not, then it certainly should be, IMO. From everything that I’ve read so far, I think Kevin’s right in that 50 1802 (a) does not cover being involved in terrorist activities as a condition under which warrantless surveilance is legal.
“People like actus are saying it is illegal to intercept communications from a US citizen to one of Al Qaeda’s top leaders.”
People like actus also happen to be exactly correct. Intelligence collectors cannot collect intelligence of any kind on any US person for any reason without getting specific authorization. Nothing overrules their protection as a US person and part of that protection is that the government must go through the approval process before collecting intelligence on them.
If I get caught calling Abu Musab al-Zarqawi they can note who I am and get permission to collect on me in the future. They cannot record that call or any other call I am party to in the future until their authorization to do so clears. They also cannot produce any intelligence at all from any part of my conversations that they overheard prior to getting authorization.
Whether or not collecting is allowed is a non-issue on this story. Collecting is allowed, but there are very strict (and very complicated) rules governing when it’s OK and how it gets approved. The only question in this story is whether or not the war-time approval process the President used is kosher.
In my opinion it’s probably fine and the story most likely has damaged our national security for no good freaking reason. Congress is the authority on intelligence oversight issues and they were briefed repeatedly on this so I have a very hard time believing that there was a problem with approval.
I also agree completely with Russ. If a working stiff intel collector ever leaked something 1/10th as sensitive as this they’d be rattling a tin cup in the clink. I don’t see any reason the law shouldn’t apply equally to Washington careerists.
Kathy sez:
Names, please. What “run of the mill” American citizens has the Bush Administration authorized warrantless searches of?
tw: problems, with the logic
Let’s flip that question on its head: Is it sensible to assume that any and all international electronic communications are private and will remain so?
Running along side this topic –
Kathy, when you click on “HUGE SWEATY COCKS!” your travel is being monitored. Actus, when you click on “HUGE SWEATY COCKS!”, your actions are being monitored as well. You may have installed some software to prevent some of the spying of your navigation, but where is your outrage? Why are you not asking for the impeachment of the president of Yahoo for keeping tabs on your various detours through the web?
Why are you not asking that mortgage companies be raided and lending officers led out in cuffs because they know many details about your debt?
Where is your white-hot hate for Al Gore, the inventor of this Uber Info Gathering mechanism?
The president of Yahoo, mortgage companies, and Al Gore don’t have the power to put her in prison if they find something they don’t like.
But that power is just a phone call away, isn’t it?
Neither does the government. One would have to wade well past “stuff they don’t like” and into criminality (or at the very least, collaborating with known terrorists) to find themselves in prison. Oh, and if the interception of the communication is illegal, then it’s inadmissable as evidence.