Beginning with a quote plucked from an Al-Ansar chatroom counseling jihadists to use our legal and cultural systems against us—not only to sow division and weaken our defenses, but to affect real and practical tactical defeats—the Counterterrorism Blog’s Dr Walid Phares, senior fellow with the Foundation for the Defense of Democracies, goes on to discuss the domestic spying “scandal” that continues to lead every news cycle (and which Barbara Boxer referred to today as “an impeachable offense”—a clear indication where certain Dems are likely to try to steer this). Writes Phares:
[…] America’s political debate is happening on a different planet: it’s about L.A. Law, finding scandals, and who can get a story out; regardless of reflecting on what we’ll need to do to win the War on Terror. The new “story” was given a title before it is investigated: it is spying on Americans rather than being about gathering information on terrorists. So if the terrorists happen to be U.S. citizens (a citizenship Jihadists can obtain swiftly) their status of terrorist is overridden by their legal status. But the critics stated that it is not about the War on Terror, but about civil liberties. A president must use the FISA Act’s process: ask a special court for authorization to wiretap a suspected terrorist.
Well, let’s examine the legal aspect before we look at the damage being made to Homeland Security and all American liberties by the promoters of this story.
The legal debate
The administration says the “program is reviewed every 45 days, using fresh threat assessments, legal reviews by the Justice Department, White House counsel and others, and information from previous activities under the program.” The president added that “it is designed in part to fix problems raised by the Sept. 11 commission, which found that two of the suicide hijackers were communicating from San Diego with al-Qaeda operatives overseas.” But Senator and likely 2008 presidential candidate Russ Feingold, D-WI, saw it otherwise: “This is not the system of government we have and that we fought for,” he told the Associated Press in a telephone interview.” Yes, our system of government asks the chief executive to go through a court before gathering information on U.S. citizens suspected of illegal activities or crimes. But the issue isn’t about crimes or illegalities. And the issue isn’t about Americans who may have a connection with violent activities.
Indeed, testifying to the House Select Committee on Intelligence on October 30, 2003 on “Collecting Intelligence under the law,” former DOJ attorney John Yoo wrote:
During wartime, the military engages in searches and surveillance without a warrant. We do not, for example, require the armed forces to seek a warrant when it conducts visual or electronic surveillance of enemy forces or of a battlefield, or when it searches buildings, houses, and vehicles for the enemy. Nor must military operations within the United States operate under a different rule.
The question is clear: Are we or are we not at war with the terrorists? Osama bin Laden declared that war in 1998. The bipartisan 9/11 Commission wondered why the previous administration refused to do so and the incumbent held off until October 2001. The jihadists are present within the U.S., including those who carry U.S. passports. So are other terror jihadists in Spain, Britain, Holland, or France. By pure rationale, the U.S. government has the duty to use all means (approved by war conventions) to resist the penetration and infiltration of the United States. Doing otherwise is unlawful, unconstitutional, and more importantly to the detriment of the security, and therefore the liberty of the American people. But regardless of any general legal argument, attorney John Yoo provides us with a technical legal provision. He writes:
Therefore, if al-Qaeda forces organize and carry out missions to attack civilian or military targets within the United States, government surveillance of terrorists would not be law enforcement so much as military operations. In such circumstances, when the government is not pursuing an ordinary criminal law enforcement objective, the Fourth Amendment requires no search warrant.
[…]
While jihadist cells are constantly spying to find chinks in America’s infrastructure, President Bush’s critics are concerned about how America is watching the terrorists. So far, I haven’t heard a critic asking who are we watching? Or anyone requesting an update as to how many terrorists are within the U.S. So, in sum, they want the government to “catch” the terrorists but not to “watch” them. I must admit that if the 9/11 Commission was right on target regarding some fellow Americans; it is about “lack of imagination.” For till further notice, I am not able to figure out how the U.S. can catch the jihadist terrorists if it doesn’t monitor them. And how can the defense and security institutions monitor an enemy in a state of war, if it provides them with the knowledge and the technology it is using.
The liberties of Americans are too cherished to be infringed. It is the terrorists’ freedom that needs to be shrunk. We need to match our laws with the nature of the conflict, not allow the terrorists to use them against us. Laws are made to protect the people, not to be used against them by the enemy.
[My emphases; h/t Ray Smith]
And here’s Emily Francona, a retired U.S. Air Force intelligence officer who served throughout the U.S. intelligence community, including tours with the Central Intelligence Agency, the Defense Intelligence Agency and various U.S. Air Force units, sounding a similar note from her “Intelligence Perspectives” website:
While there are still details of this development we don’t know yet and probably won’t know because of the classified nature of the activity, here are some initial observations:
Whether the President acted under proper executive authority will undoubtedly be determined during hearings of the Senate Judiciary Committee. But he did follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General.
He also followed congressional oversight requirements by notifying the appropriate congressional committees in a timely manner. And it is customary for more sensitive activities to be briefed only to a limited number of senior oversight committee members to avoid leaks of classified national security information. Our current system of checks & balances does not require congressional oversight committees to approve intelligence activities in advance, only that they be notified of significant activities in a timely manner.
Perhaps the most improtant aspect of this debate is whether we, the people, are comfortable with executive powers being invoked in certain circumstances to protect the nation: I would argue that under certain national security related circumstances it is necessary to trust the President of the U.S. to do the right thing—we elected him to conduct the people’s business to the best of his ability. While healthy dialog on issues is desirably and an unalienable right of every American citizen, continually hounding the president just because he is disliked personally by some detracts from the business at hand—it is not in the people’s best interests and wastes precious resources better applied elsewhere. We often forget the real meaning of representative government: electing the best representatives we can and then letting them do their job without constant second-guessing.
The most serious legal problems are posed by those who leaked this highly classified national security information to the media, an unauthorized recipient of any classified information. Any NSA or intelligence community official concerned over an intelligence activity has an internal oversight system available to address these concerns in a legal and classified environment: NSA’s internal Inspector General and/or the Intelligence Community’s Inspector General. If the internal oversight process proved insufficient, legislative oversight would have been the next logical place for these officials to take their concerns: congressional oversight committees routinely investigate just those types of concerns in a legal setting designed to preserve classified national security information. Should following this well-established process still not satisfy their concerns, the honorably course of action for any true intelligence professional is to resign from such an untenable position – WITHOUT revealing classified information and potentially damaging national security.
These “concerned” officials have acted extremely unprofessionally: they clearly violated their secrecy oath and the provisions of the 1980 Classified Information Procedures Act by providing classified information to the media. While it may come as a shock to some, the media is NOT entitled to classified information under any circumstances.
[my emphases; h/t Matt Peek]
As I’ve maintained all along, the President went through legal channels and was counseled as to the legality of his authorization of the NSA domestic surveillance, which means his good faith shouldn’t be questioned. And so at best, one can argue that the legality of the program is in dispute—but that the President was forthcoming about it and that he followed the proper procedures for legal review. How that is an “impeachable offense,” as Barbar Boxer and John Dean maintain, is a question best left to the progressive Democrats to explain.
But what interests me most is Phares argument (via Yoo, et al) that the authority is dependent upon whether or not we believe the President to be acting under war time conditions. Clearly, Usama bin Laden and al Qaeda declared war on the US. And so the question then becomes, are we actively at war?
As I noted previously, that the Dems don’t feel like we’re actually at war doesn’t mean we aren’t. And because we are—and because we are actively guarding against strikes within are homeland from cells hidden in our midst—the case can certainly be made that military rules apply.
Of course, I’m no lawyer, so I’m interested again to hear your thoughts.
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update: Additional analysis from Byron York and Jim Robbins (h/t Ray)
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update 2: Well, sure. But—well, sure. But…but—well, sure. But. But. But. Well…. sure. BUT!
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update 3: Leon H at RedState has an informative post putting AG Gonzales’s remarks this morning into their proper legal context
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update 4: On O’Reilly right now, Law prof Jonathan Turley believes Bush violated federal law and committed a federal crime—an impeachable offense; prof Paul Rothstein disagrees, noting that FISA can’t take away the Presidential mandate to defend the country, a mandate granted him by Congress after 911.
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update 5: More from my pal Matt Heidt.
TITLE 50; CHAPTER 36; SUBCHAPTER 1 @ 1811
AUTHORIZATION DURING TIME OF WAR
“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 a period not to exceed fifteen calendar days following a
declaration of war by the Congress.”
The only question is, do the Dims think we are at war.
Quick point that only makes Dr. Pares’s piece more important: A resident alien has the exact same protections on this dort of thing as a citizen. Terrorists only have to be a green card holder or a visa holder that passes the very easy to meet presence test.
Title 50;Chapter36;Subchapter 1 @ 1811
Authorization during time of war
“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 a period not to exceed fifteen calendar days following a declaration of war by the Congress.”
The only question is, do the Dims think we are at war.
Jeff,
Byron York and Jim Robbins have excellent analyses of the NSA actions.
Also, I think one of the most important statements of the Counterterrorism post was the fact that AQ now will realize that we are not monitoring domestic communications. There are undobtedly many sleeper cells within the US.
Mike —
Doesn’t that exemption expire on day 16 after the declaration of war?
That’s why I didn’t use section 1811 in my post on that law.
The White House tagline of “War on Terrorism†has been used indiscriminately since 9/11. The only snag is did we ever declare a war on terrorism to the point where the War Powers Act was widely know to be used? Sure we went to war in Afghanistan and Iraq. Of course there were Al Queda fighters in both locations. I think that between the spans of the two separate conflicts that there was not a gray period.
The Dems are going to attack the validity of the time period when it was used. Damn the positive effects that the measures had.
Impeachable offense, my ass.
Since various members of congress were briefed about this program on multiple occasions, just what are we discussing here?
Simple: Manufactured outrage to drown out good news for and from Iraq (or the economy, which seems to be plodding along at 4% growth and 5% umemployment).
Sorry folks, I’ll defer to the NSA to pick who they eavesdrop on per the President’s order. I’ll give odds in the millions to one that not one of pink-faced loons hypocritically exploiting what I have previously referred to as a tempest in a shitpot is on that list.
But, I’ll also give odds in the millions to one that some of the bad guys are.
I’m getting to the age where grinding one’s teeth is not a good thing.
Pardon, but i do not believe the leakers were NSA.
1. NSA don’t tell people who they work for.
2. NSA would have known if that was lawful collection.
3. If they had questions about the legality, there are internal protocols to address that, as mentioned above.
Make the NYT give up their sources. Find out who actually holds the billets of the “nearly a dozen current and former officials”. I suspect CIA or Congress.
</blockquote>Catch them, but do not watch them!..<blockquote>I like Dr. Phares, but the title of his post is a straw man.
The choice is not between “watching them” or ”not watching them.”
The choice is between getting a fairly easily obtainable warrant from a special court to monitor the activities of American citizens before you monitor them, or not getting a fairly easily obtainable warrant from a special court to monitor the activities of American citizens before you monitor them.
And wanting the goverment to get a fairly easily obtainable warrant from a special court to monitor the activities of American citizens before they monitor them hardly equals “the constitution is a suicide pact.”
Police get warrants all the time. Really, every day, they do. I’ve seen it happen. I swear. Does that mean they “don’t catch” criminals?
Wishbone what I expect to see is convenient memories. The Democrats will likely go to the well and draw water on the “We were told that it was legal. We have reassessed and now believe that the Attorney General DECIEVED us!”
Even if they thought that it was illegal at the time, they safely placed it in their pocket for a rainy day.
BUSH LIED; PEOPLE WERE WATCHED!
Before Afghanistan, didn’t Congress pass a declaration of war—not under that title, of course—against al’Qaeda and the states harboring it?
HAPPY FITZMAS!!! It was going to happen eventually…
SoCalJustice argues that the FISA warrants are easily obtainable; other writers, including FBI agents testifying under oath to the 9/11 Comission, argue that the FISA warrants were delayed by higher level FBI reviews and inherently unworkable. So if the warrants were unworkable, and the method Bush employed is legal, what is the problem here?
BUSH SPIED, TERRORISTS DIED.
Unfortunately, the sort of person who believes “when one person’s rights are violated then everyone’s rights are violated” to justify turning loose a clearly guilty criminal (who will promptly go back to committing more crimes) would probably also apply this to terrorism. You can almost imagine the MSM reporting: “A bomb believed to have been planted by Al Qaida operatives went off in downtown Manhattan, killing hundreds, injuring thousands and wrecking the city’s economy for many month to come. Fortunately, no one’s right to privacy was violated beforehand.” This will be followed by blame being assigned to the president (if a Repub) or the previous president (if prev is Repub and present Pres is Dem.)
But exactly what part of the Constitution is being violated? The same people who think the 1st Amendment can be ignored in order to keep “Big Money” out of politics and think the 2nd Amendment can be ignored because (as Star Jones once said) ‘when the 2nd amendment was written people didn’t have uzis, baby’ are suddenly concerned about international electronic communications? (Probably also all the while thinking the UN should take control of the internet…)
Hmmm.
So are the Democrats considering an effort at impeaching a sitting wartime President for defending the country too much?
Yes, I do.
Here’s an article bashing FISA warrants (and the Patriot Act):
On the FISA court: “It rejected only five of the 14,000 warrant applications it received before 2001.”
That’s an extremely high percentage of warrants granted.
Kids, today’s word is VOLUME. We are talking about thousands, hundreds of thousands, and possibly millions.
Sure it’s no problem to present a single case for a wire tap down at the district courthouse. Time was of the essense, so Bush used the powers available to him.
I’m glad he did it then, and still does it now.
SoCal: Warrants are for those times when you already have enough evidence to convince a judge that more investigation is necessary. What we’re really talking about is identifying dangerous individuals in the first place. You don’t know who needs in-depth surveillance unless you identify them as having done or said something that requires a closer look. So doing (or not doing) the general intelligence gathering (SigInt, etc.) necessary to reveal threats is exactly the dichotomy you blithely discarded. It’s all about “watching them” or “not watching them”, since we have no idea who “them” are.
I’m not sure how the details work in all this but maybe someone can address this particular example:
If we intercept a known terrorist, say in Afganistan and he has a list of phone numbers on him, say International phone numbers to make the distinction clear. Could the NSA or other intelligence agencies not put a watch on outgoing calls from the US to these numbers and immediately monitor them? Or, under the currently climate of Democrat outrage would intelligence agencies need to first wait for the outgoing call, identify the caller, then get a court order before they could monitor that call once they knew the idenity of said caller?
SoCalJustice – I think the question dealt more with the speed to which they are approved.
At least that’s how I read ‘me’s statement.
How pleasing it is to me to see the forces of chaos and evil truly in the ascendency. It is endlessly entertaining to watch armchair pundits and lawyers- manques without clearances argue the legality of classified intel collection.
BLT on CO
The President has now said multiple times that the only U.S. persons under warrantless surveillance were people with “known” and “clear” links to Al Qaeda and other terrorist groups – meaning it sounds like there should be enough evidence to convince a judge that more investigation is necessary.
But the standard for FISA warrants is even less than that anyway – just a reasonable suspicion that the target is a foreign agent.
SoCal,
Check out the links upthread to York and Robbins. Read what they have to say about the onerous procedures necessary to obtain these warrants. Read what Robbins says about the legality of NSA program and the subsequent affadavits sent under seal to the FISA courts.
I can’t see anything illegal about the NSA program.
SoCal —
I added this to a previous post in a footnote, because I believe it answers the question that’s been nagging me: why, if the FISA court gives out warrants so readily, the need to circumvent them in individual instances (and rely on oversight after the fact)? From Byron York:
Dario, you must request the privilege of a viewing in front of the Oracles Pelosi, Kerry, Dean, Reid, and Kennedy. If you present the Oracles with a nice shrubbery (not too big or expensive) and do so wearing a frocked collar shirt with tassels, they will hear your case. If appeased by the shrubbery and frocked shirt, the wiretaps will be granted.
“I suspect CIA or Congress”
If and when the Dems that are calling foul, are shot down in their attempt to once again demonize the adiministration for plainly trying to protect Americans on our own soil, the American public I think will just about have had enough. Honestly, how long can the MSM run with this meme? And when will the real issue of who provided the leaks containing sensitive info be brought to light?
Well, had Bush merely collected the FBI files of his political opponents, ordered politically-motivated IRS audits, and released the private records of critics, there would be no problem.
But he listened to the phone calls of people whose numbers were found in al’Qaeda cell phones. That’s inexcusable.
.
And he did it quickly…no hesitation…aggressively…thwarting several potential attacks.
He should be impeached immediately.
Seems to me there are three questions at issue here:
1. Are we at war with terrorists, or do we treat them as criminals? Kerry seems to have favored the “treat them as criminals†option, insofar as I or anyone else could figure out what the hell he was saying. Bush has explicitly followed the first option, and he has the resolutions from Congress and the UN to prove it.
2. Under the rules of warfare, was Bush’s action constitutional? That might be arguable, but the fact that Reid and others in Congress have known about it for some time suggests that he knows there isn’t much of a case there. If he could have hung Bush with this, he would. As it is, he and his cohorts are just using this to weaken Bush for short-term, partisan advantage.
3. Are we at war or not? If we are, then this latest “disclosure†(i.e., leak) has compromised the safety of our troops, people here at home, and passed vital information to the enemy. Why, it’s almost as serious as Plamegate! The source of this leak needs to be identified and prosecuted to the full extent of the law. Obviously, this isn’t the first case that would have merited that treatment, but Bush’s recent change in attitude makes me faintly optimistic that he might do the right thing.
One of the left’s tactical problems is their level of hysteria. They were calling Bush a proto-fascist while he ignored previous cases like this and let Congress treat him like their personal chew toy. If he starts enforcing the law and exercising his constitutional powersâ€â€like the vetoâ€â€how can they turn the amp past 11?
SoCal: Point taken. But to Jeff’s addendum just above, if a known terrorist – who’s being watched under the appropriate FISA rules – makes a call to a neighbor, then I’d like that neighbor under survellance within minutes and not the days or weeks that the FISA approval process seems to take.
Any quick-response information gathering like that should probably be followed up with a FISA request, but as we’ve learned in Iraq (and long before that) certain information has a very limited shelf life and sometimes ANY delay means a loss of innocent life. Bush seems to be saying we should err on the side of caution and allow intelligence gathering as the intelligence community requires. Sounds about right, given that we’re fighting a war.
That’s one way to look at it. Another would be that, among those commenting here, are sprinkled lawyers, military lawyers, and former intel people, and that what you are witnessing are Americans trying to understand the ins and outs of its government’s means of protecting us—rather than simply allowing our betters “summarize it” for us.
Of course, you’re welcome to luxuriate in your bemusement, but some of us find such affected ironic detachment more of a defense mechanism than a sign of intelligence.
Ok, I read what York and Robbins have to say about the relative speediness of the FISA warrant procedure, and my mind is open to the necessity that sometimes there may be reasons that that the system for warrants may need to be bypassed.
It seems there’s a bit of a discrepancy – some people, and some anonymous sources, have said it is burdensome to get FISA warrants – but at the same time – a large number of them have been granted, and at more than a 99.99% clip of warrants requested.
And those are not necessarily mutually exclusive conditions. But I’m open to reading anything out there on the FISA warrant procedures.
First of all, at the risk of repeating what may have been said in other threads, I know Jeff has raised the issue as too whether AQ agents can be deemed not “US persons” under FISA. It might be more useful to ask where in the NYT story it says that US persons were involved. The answer, iirc, is “nowhere.”
Second, and more important (as I’ve noted over at Greenwald’s), according to the U.S. Foreign Intelligence Surveillance Court of Review, all courts that have decided the issue have held that the President has the inherent authority to conduct warrantless searches to obtain foreign intelligence information. The court then suggests that FISA could not encroach on the President’s constitutional power.
The need to proceed under FISA increases as info is sought to be used in a criminal prosecution. Which of course is an underlying theme in the war on terror—some people are interested in gathering intell and waging war to foil terror plots, whereas others still have the pre-9/11 mindset of treating terrorism primarily as a law enforcement issue.
I consider this as one of the important points in Robbins piece:
[Emphasis mine]
So, it would appear that for each action taken, there is, under seal, an authorization that can be opened under certain cirmcumstances. Hmmm.
DOJ’s FISA Annual Report from last year says that none of the FISA warrant applications submitted last year were denied.
1758 were submitted, 3 were withdrawn and 1 was resubmitted later. 1754 granted.
It does not address the timeliness issue, unfortunately.
Just because the program itself may have been proceeding for three years doesn’t mean that the same individuals have been intercepted for three years without warrants. There’s probably more than one terrorist in the world, after all.
How do we know, without the release of more classified information (which, by the way, I am most definitely not advocating) that warrants have not been procured along the way for some individuals initially subject to warrantless intercepts? And that the operation continues in order to catch in a timely way those with whom they speak?
I guess I’m just arguing against unwarranted assumptions.
It is debatable if i am intelligent, in any sense of the word you would understand. Evil I am, to be sure.
My point is, the forces of evil are exhulting in the positive results of their strategies. Debate roils on the ‘net, and in the media. A distraction from real progress in Iraq, opportunity for the left to throw chaff and insert more urban legends into our cultural consciousness.
True strategists would discredit the original story line, the original memetic virus.
As a memetic engineer myself, i would reccommend counter-outrage, rather than mannered and boring discussions of FISA. Put some sensationalism behind it–WHERE IS THE OUTRAGE?
Well….that didn’t take long. From York at the Corner:
DNC just called the President a liar. I am shocked! I guess they are calling Rockefeller, Daschle, Pelosi and Reid liars too. Unity is alive and well in the Democrat Party.
In the immortal words of Jerry Seinfeld:
“That’s a pretty big matzoh ball hanging out there, Dr. Dean.”
That’s a hell of a tactic: We’ll just lie and say he’s lying.
“At long last, sir, have you no shame?” Guess not.
SoCal —
It seems (and I’m basing this on what I hear from those with intel gathering experience) that timeliness is everything when it comes to this type of intel—that the window for viable information is 2 hours in a lot of cases.
Interesting point.
Is interpretation of law the sole prerogative of lawyers?
Kennedy:
“Wire taps? Is that what you said? Hell, I was nuts deep up in that intern’s guts when you told me about that. I thought you said BEEF FLAPS…. Well, for damage control, just tell the press that they never told us about it.â€Â
SoCal
(I’m skipping a few comments so any one that has pointed this out already, I apologize)
Ahem. A patrol car gets a call of an armed robbery with a description of a suspect…and suddenly spots someone fitting that description running down the street. They pursue him and see him duck into a house (not breaking down door)
Do they need to stop and secure a search warrant BEFORE they gain entry into that house?
Nope, nada, not on your life.
Cops respond to a call from citizen A that they hear fighting going on in married persons B apartment. All quiet when cops arrive, hubby B answers door and “hey, officers I have no idea what you’re talking about?” When cops ask to speak to wifey B and hubby demures “hey, she’s asleep” or “hey, she’s not here.”
Do they need to stop and secure a search warrant BEFORE they gain entry into that apartment?
Nope, nada, not on your life.
Cops conduct “warrantless” searches every-friggin-day. And if the search takes place under reasonable circumstances and “probable” cause, your defense attorney is going to urge you to accept a plea bargain.
If the NSA gets hold of a batch of several hundred cell phone numbers from a suspected terrorist computer…the loss of which when discovered within hours will mean the numbers are useless… SHOULD THEY HAVE TO GET A SEARCH WARRANT before they start monitoring and tracking these numbers?
I’d say “No”.
One point that is being missed here is, given the wide range of powers, expanded since 9/11, even under the most civil-liberties protective proposals of the Senate and the Court rulings, is the idea that such expansions of federal snooping powers, already quite massive, are not enough.
Point 1: It is repeatedly assumed that somehow the federal investigative powers were helpless before 9/11 and that this “blinding” of the US is or was decisive in the situation then. In fact, as soon as the planes crashed into the towers, one high level official is said to have remarked that he wondered if it had to do with those kids at flight school down in Fla. Other leads that the FBI did have were not followed up on—for reasons having NOTHING to do with the narrowing of civil liberties protections. And the Aug memo to Bush about ‘Bin Laden determined to attack within US’ was ignored.
SINCE 9/11, as Democrats have repeatedly noted, measures to secure chemical plants, to have systematic examination of all shipping containers entering US ports, to secure nuclear materials in the former Soviet Union etc. again, none involving any threat to civil liberties and none controversial measures with the public have not been pursued.
On the other hand, we have reports of Pentagon spying on peace groups like Raging Grannies and others who have nothing to do with terrorism. NEVER on this site, in the discussions of the issues of broadened powers of investigation and surveillance, have these issues been raised:
bogus protestations about alleged ‘backfiring’ even after Edwards notwithstanding.
(a) if terrorism is such a transcendent threat, why are these measures, and adequate funding for likely terror targets (NYC not Wyoming) not forthcoming, (b) if there are violations of civil liberties of people who are NOT terrorists, does this matter? (one poster remarked that anyone who has done nothing wrong has nothing to fear, as if the use of information-gathering devices (eg credential-venue taps OOPS! shouting, as opposed to the triviality of the civil liberties issues involved) aren’t routinely used for other purposes like political manipulation and digging up dirt on people (re: ‘alive with pleasure’
But I digress to concrete actual case(s) and particulars, and “shouting” too.
The notion that there is any kind of conflict, that the Democrats’ concerns relate to something in reality, even when articles are linked to and (for the purposes of making reading them more likely, but they were excised) reprinted, those concerns are completely ignored. The concern is for excess verbiage, syntax, noting the systematic ‘deployment’ of the epithet “Democrat” party and using Repuglican as a response, BUT NEVER ON THE ACTUAL CIVIL LIBERTIES ISSUES OF NON-TERRORISTS, some documentation of which has been provided. My conclusion is not that the emergency of terrorism is at issue, but rather the trivialization of civil liberties.
There are repeated examples of cell numbers of known terrorists, and, by Carol Liebau at another site, ‘Osama’s black book of addresses’. Like the torture of someone who knows where the ticking nuclear bomb is in NYC, these are not realistic examples of where a warrant or other rapid LEGAL response would be hindered. No matter how much federal powers of investigation are expanded, the return is always to what I would call these “core” examples, whereas snooping without oversight is precisely what is at the margins of acceptability, or something the public (with all those “Democrat” nattering nabobs of negativism misleading them) would NEVER accept, is the kind of additional surveillance fostered by lack of oversight and promoted by end runs around process.
The notion of there being ‘higher level’ delays or problems getting a warrant for cell phone calls to known Al Qaeda operatives precisely distorts the real issue. Those “delays” or “obstructions”, where they occur BASED ON THE
KINDS OF MINIMAL PROTECTIONS PUT FORWARD BY DEMOCRATS AND A FEW CIVIL LIBERTARIANS ON THE OTHER SIDE OF THE AISLE are have NEVER been shown to have impeded any actual investigation of a “core” terrorist concern. It is all taken on faith since such cases are kept hidden, with only an unruly and nosy press ferreting out examples of unsavory (for those who believe in Constitutional governance) surveillance.
The bottom line is that some people, whatever claims they might make to the contrary, just don’t believe in civil liberties protections, especially for those NONterrorists whose rights are most likely to be violated under these practices of investigation without accountability and NONexecutive oversight.
Oh…and BTW anyone?
I can’t find the exact Boxer quote. What <i>did<i> the harridan say?
And here’s the passage from the 9/11 commission staff statement (Reforming Law Enforcement) on the lack of timeliness of the FISA courts:
OK, I’m more than convinced that there’s a problem with the timeliness of the FISA court.
I wouldn’t mind seeing hard numbers about average time between application and approval, though.
Bob Graham said he understood this to be a new technology, not a new policy.
CNN had a report on a former NSA guy that described how the program ‘might have worked’.
A telephone or a computer of a known terrorist is used, and the numbers it calls and the numbers those numbers call are immediately tracked electronically. No human intervention required.
Could this explain why no warrants are sought? It happens immediately, there is no time lapse at all. No time at all to get a warrant.
Did anybody else hear this description? Does it make a difference?
Darleen,
I never said cops didn’t conduct warrantless searches. I was knocking down Dr. Phares’ strawman that the process of obtaining a warrnat equates with the assumption that authorities don’t “watch” or “catch” criminals/terrorists (because of a warrant requirement).
Read the title of the post.
Cheers.
I’d also like to point out that about three quarters of the 9/11 hijackers were here on legal visas and so would have been considered US persons. It’s very likely many of the people that the NSA is investigating under this have the same immigration status. I just thought it might provide some perspective to keep in mind that “US person” is a broad enough term that it means visa holders and most of the 9/11 hijackers as well as you and I.
Dario, they cannot collect a call on any US person for any reason without getting either a warrant or the type of war-time exception that they say they got in this case.
“Are you lookin’ at me? ARE YOU LOOKIN’ AT ME?!”
— Blue Velvet
Cloudy, I see you’ve ignored the findings of the 9/11 Commission. Congrats, wilful blindness is an important skill for the Left.
SoCal
If cops had to obtain a search warrant in the situations I just described, they wouldn’t catch the perp.
I see you as obfuscating rather than de-strawing.
Cloudy reminds me of Tony Foresta on Bill Quick’s blog, just without the caps.
I spotted his most recent probably off-topic rambling and skipped right over it, much as DP readers did with the Foresta bot.
Note: I did say “probably off-topic” because as I mentioned, I did not bother to read it.
TW – “york”. Jeff, this thing is getting spooky.
Darleen,
The situations you described are not necessarily analogous to what is at hand, and have been tested through the courts.
I see you re-strawing.
Again, Bush said the targets of the warrantless searches all have “known” and “clear” links to Al Qaeda. It’s not random people that fit description A and were in area B or were pulled over by cop C – at least according to him it’s not.
748 words of nonsense. Yeah, I copied and pasted into Word to find out.
Cloudy, post a link to an actual story about someone whose civil rights have been violated by this as you suggest. Tried, convicted, and imprisoned. Otherwise, you’re just indulging in useless mental masturbation at this point.
Lucy:
Pictures?
Kim du Toit:
certainly not. you are free to argue.
i merely point out, as an adept in evil, that this is the timewasting discussion your adversaries hope for.
It is a truism that evil always counts on the basic nobility of good, belivieving that good will never sink to its level. Thus you, “the good”, give credibilty to the contrived story of the left.
Charlie, I am not what you think.
But we could exchange barcodes.
Congress hasn’t declared war dude.
Congress hasn’t declared war dude.
Still didn’t answer the question…dude.
Do you, as a Democrat think we are at war?
Yeah, not in what, 60 years?
They’re just pussies nowadays, that’s all. Been to DC lately? Instead of cowering behind barricades, they should all get strapped and man up a little bit. But that’s just me…
Also, regarding a declaration of war, bin Laden did declare war on us. Several times.
Long before Bush got into office.
Folks, I actually used to do intelligence, and more recently I did unclassified work for the Navy on how to prevent collection of this kind of intercept data. The point about the collection of numbers associated with captured numbers that’s mentioned above is not a bad one, but even without that zoomie technology, it still makes perfect sense: we catch someone, call them “Alice”. Or better yet, call them “Khalid sheikh Mohammed”, a more obviously made up name. While deciding whether to slap his pasty ass in Gitmo, give him to the Jorbdanians for “processing”, or shoot him resisting arrest, we look at his laptop and find a bunch of phone numbers. We then pass those numbers down for tapping or whatever.
The usefulness of those numbers is going to decay real quick. Maybe a couple days if you’re lucky and some damn fool Pakistani doesn’t leak to CNN; more likely hours, as some ISI pig calls his buddies in al Qaeda and tells them. The interval between finding the numbers, and the black hats finding out you captured the laptop, is your only collection interval.
You just don’t want to spend time getting a FISA warrant. Technology doesn’t matter, this would be the same thing if we were using lady carrier pigeons to catch the swarthy Arab carrier pigeons.
Again, I notice the lack of addressing the substance of my post. If you didn’t read a post, why comment on it? There’s an interesting one.
Of course, there’s always cheerleading in place of polemic.
SPQR says I ignore the findings of the 9/11 Commission. This is a classic form of the presumptive argument. Which findings (maybe even a quote!) and how did those findings contradict my statement.
And by the way, I don’t treat the 9/11 Commission, after seeing some of their hearings, as anything approaching received wisdom. But if they made an argument, and it opposes my position, then let’s hear the argument and how the positions differ and what the merits are.
But that would be substantive polemic rather than just touching base with a credential, whose application isn’t even specified.
Note that the main focus of the Commission on impediments to fighting terror were on STRUCTURAL blocks, like the FBI/CIA problems, rather than restrictions on the ability to investigate.
I would also invite you to look at Dick Clarke’s Against All Enemies (and remember, Clarke is a RWer) as well as his 9/11 Commission testimony, where he notes that the Clinton Administration, when faced with a potential threat, met every day, “beating the bushes” for information, and this could very well have been decisive in stopping 9/11 as it was with the LA plot.
Then there is the one who counted “748 words”. So what? What difference does it make if it is 748 or 547 words? You haven’t addressed the issues, only issued a pronunciamento. And incidentally, you can violate a person’s rights quite grievously without trying and convicting them. Fred Hampton was never tried or convicted.
If you are not happy with the level of discussion here, I’d prefer you go elsewhere rather than repeating the same complaints about our failings to address you in “substantive debate” over and over and over again.
Thanks.
I would also invite you to look at Dick Clarke’s Against All Enemies (and remember, Clarke is a RWer)
Clarke is a…RWer?!? (Forgive me if I’m not familiar with this particular short-hand, but I’m assuming it’s short for rightwinger.)
Sorry, cloudman. Pretty hard to take you seriously after you crap someting like this out.
Another false claim on your part, actus. Congress did declare war shortly after 9/11.
Cloudy, I don’t think I’ve seen a lower signal to noise ratio than your posts since I was processing SETI data.
You made the claim that the idea that Federal investigative powers were not up to preventing 9/11 was a myth. You provided zero substance to back up that astonishing silly claim. The 9/11 Commission report spent hundreds of pages debunking that claim on your part. Now you decide that the burden is on everyone but you with regard to your own claim.
Are you sure you understand this “argument” thing? ‘Cause there isn’t much evidence in your postings that you do.
That’s precisely the point. 748 words, no substance. Whose civil rights are you saying have been violated, and how?
I’m not seeing how the NSA killed Fred Hampton, sorry. Probably a failure of imagination on my part.
Jeff,
You’re right about day 16. But as those who have done their research have stated, the Congress and the Patriot Act gave the President a great amount of authority to pursue these taskers without going the route of the FISA court. The process is laborous to say the least and there are a great many items that need to be met prior to the court hearing, let alone granting the authority to MONITOR someone. The whole 72 hour grace period is nice, but when dealing with this type of enemy, by the time 72 hours has come, numbers have changed as well as e-mails.
The President is spot on as far as how quickly he needs to act in regards to identifying the calls/e-mails coming into or going out of the US. His story about UBL is also correct. As soon as the story broke, things changed and not for the good.
TW: Work, as in this is type of work I do on a daily basis.
Orin Kerr:
The most nauseating part of this whole topic is the mental image of my witch senator screeching “what did he know and when did he know it”, say when the Empire State Building falls… Or maybe “how could Bush have let this happen?”
Feingold doesn’t care. Nobody is going to bomb Milwaukee. The man has ambition – too bad there is not a modicum of sense accompanying it.
And now we have this champion asshat from Newsweek
http://www.msnbc.msn.com/id/10536559/site/newsweek/
Jonathan (heh) Alter.
“This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reasonâ€â€and less out of genuine concern about national securityâ€â€that George W. Bush tried so hard to kill the New York Times story.”
What a dumb cunt.
Addendum of fury: Hey stupid, the Times agreed to sit on this for a year. What changed? Did they think it was more legal a year ago. Isn’t it depraved indifference on their part to have COVERED UP THIS CRIME for so long, especially given their exalted mediagodhood? Unindicted coconspirators indeed.
Wow these asshats are really trying to run with this impeachment thing huh. And a year out from any election that would even give them a chance of doing so.
How stupid are these people? It’s just mind-boggling. If they keep this up we’ll be looking a landslide next November.
Bush is in trouble with conservatives over spending, Miers, etc., and these half-wits come up with a plan to rally ‘em back to W.
Is Bob Shrum still in charge or what?
They authorized military force. But there was no declaration of war. There hasn’t been one for a long time.
Actus: your point is moot.
If this whole thing comes down to the question of, “it depends on what your definition of ‘war’ is,” then I swear I’m gonna start kicking puppies. PUPPIES, DAMNIT.
Actus, you are simply and utterly wrong. Congress’ resolution following the 9/11 attacks was for all legal purposes a declaration of war.
Your blindness notwithstanding.
I must disagree with one argument. If there are several responses to my posting that fail to address the substance of what is said, then pointing out that failure when it happens seems quite reasonable.
I noticed that there must be at least four or five nics, ‘pomeranian in a time of earthlings’, grecian formula in a time of implants, ‘pain in the ass in a time of realists’ and at least one or two others that I can’t remember, specifically targeted at the one other regular left-of-conservative voice (“Phoenician in a Time of Romans”) that I have seen.
That doesn’t seem to be bothersome but my point about addressing the substance of a comment rather than, say, charactering it as 748 words of nonsense or commenting on a post which one insists that they didn’t read is a problem.
I can’t help getting a sense that there’s a real desire to have progressives at this site, if their noxious presence is to be tolerated at all, who are like the Democratic Party, that remained silent for 5 months about the flimsiness of the flipflop spin (one that Jonathan Chait, in the cover story of the Oct 18 New Republic finally and belatedly devastated).
At any rate, I do recognize that substantive engagement of rightwing and leftwing issues is problematic, but I think it is worth pursuing, although I spend most of my time posting at sites where people are at least leaning towards the Democrats. In those venues, they are often quite well-received. I know—‘then go back to those sites’. But unwelcome as opposing views may be, I think it is healthy, and when bashing substitutes for argument, I think it should be pointed out.
Occasionally, a substantive point or request for clarification does arise, and maybe people will feel encouraged to engage the substance of arguments if attention is drawn to the issue.
I don’t consider that in the least bit unreasonable.
Odd. No one else seems to have a problem with it.
If it disturbs you so much, either:
o Don’t write 748 words of nonsense.
o Go somewhere else where Russian novels are expected in posts.
Cloudy: trolling trolls is acceptable on most sites, just like monitoring terrorists’ contacts is acceptable in mosts’ minds.
Actus, I seem to recall a Senator—a Democrat, in fact—stating that in his opinion the authorization to use force amounts to a declaration of war.
Something about how the words “I declare war” have no particular magic.
Sure, I’ll take a throw at this.
Actually, there’s a real desire, assuming you can read and write the language, something that I really can’t determine from your posts, and I hope it improves, unless you want to go on being considered a fool, by the RW.
Do I have the gist ot it?
tw: Fighting fire with fire.
Ms. Lucy –
Well, truth be told, we managed to help choose a president two years back and just haven’t been able to help ourselves since. Now we all get to discussin’ things, freely, like politics, legal issues, the war… without even checking for credentials at the door!
I understand it’s not done this way across much of the world. Can’t understand why now, though. It works for me.
TW = various. “There are various opinions on motives behind the current positions of the Democrat party, but universal agreement that a head that far up the ass has to hurt.”
Don’t listen to them, cloudy! They’re sapping your will! I note that you only posted the word REPUGLICAN once and you FAILED TO CAPITALIZE IT AGAIN. I know I was harsh on you before but I need you to fight, man! Don’t you realize that if you don’t keep calling them REPUGLICANS, along with an annotated explanation of why you call them REPUGLICANS, they might, you know, imply the distinction of substative dihydromonoxide falafel?
Oh, hell. I think I pulled something.
Actus, Joe Biden disagres with you:
Heh. I had the Biden quote all ready for tomorrow’s post.
Posted it in context here.
The statute said ‘declaration of war by Congress.’ We haven’t had one of those.
The constitution gives congress the power to declare war. That has some meaning right?
You are predictably predictable, actus.
Re: declaration of war – from a related subject
Re: Cloudy
I keep hearing this baloney from the left.
Just how many people that are not connected to terrorists have been hassled? I know of NO ONE who has been hassled without some justification. Why don’t you put your money where your mouth is and post the names of the innocent people who have had their “civil liberties” violated? What? You don’t know any?
Why don’t you post the names of the innocent Americans who’s names and phone #s have been found on captured Al Queda leaders computers? It is absolute bullshit that “we” Americans are in danger of a fascists coup – unless you want to consider the Dem’s truly fascist distortion of the truth and bald faced lies. Harry Reid, John Kerry, Babs Boxer, Ted Kennedy, Jay Rockefeller – these people are actually large pieces of feces that have taken human form, and who revere their own stench more than the country they supposedly “represent”.
You can fool the idiots who use Time, Newsweek, the New York Times to form their opinions, but you can’t fool the people who come here, because WE DO OUR HOMEWORK. Anyone with a clue knows that the NYT belongs in the same category as The Weekly World News. I suspect that even YOU know this, but to admit it would make it too easy to actually see something that exists beyond the end of your nose. “Reality may never intrude” – the mantra of the left.
If you have to lie to make your case, you have no case to make. Yes, we are being lied to, but it isn’t by the Bush administration. Without large cities full of illiterate morons and illegal aliens looking for a free ride, Harry, Babs, etc, would NEVER be elected leaders of the Congress.
It’s not funny anymore. Barbara Striesand is NOT my idea of visionary, and neither are any of the Democrat Party leaders (there’s not a big difference here, is there? WE must use a clothes line, but these important people HAVE TO use a clothes dryer. Or we could substitute windmills for clothes dryers. Sounds fair to me).
Pray tell, what kind of person will tell any lie to get their hands on your wallet and put their “empathy” over your freedom? Wake up. You’ve slept long enough.
No doubt. I think vietnam was a war, so is Iraq and so was the gulf war. But we’re talking about a statute cited above that talked about a ‘declaration of war.’ That doesn’t require a state of war. That requires a formal declaration.
I think this is partly why we don’t have formal declarations of war anymore: because all sorts of formalities kick in then.
I’m curious… FISA clearly states that only agents of foreign powers can be spied on in S1802. Condie said in a press conference the other day that terrorists were “stateless networks of people,” so they aren’t foreign powers. But she also said the searches weren’t justified under FISA to begin with, but that Bush has “drawn on additional authorities that he has under the Constitution and under other statutes.” Ok, so they weren’t justified under FISA by the administration’s admission.
However, it seems like the justification (at least on this blog) has moved over to something resulting from the fact that we’re at war. Alright. Now, take a look at the decision for United States v. United States District Court for the Eastern District of Michigan. Wherein, you find a group charged “with conspiring to destroy, and one of them with destroying, Government property,” and where the government argued that the searches, “though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security.”
The court decided that the searches were unconstitutional as 4th amendment freedoms can’t be guaranteed when “domestic security surveillances may be conducted solely within the discretion of the Executive Branch,” as the Executive “should not be the sole [judge] of when to utilize constitutionally sensitive means in pursuing their tasks.” Further: “The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.”
The court notes that it expresses no opinion about the “activities of foreign powers or their agents.”
Ok, so where’s the disanalogy between what Bush did and what Nixon did? Both cases occurred during wartime, both involved a supposed threat to “domestic security,” in the former case to overthrow the government. In the 1972 case, the court even acknowledged that the search may have been warranted had it been taken before a judge. Yet, the government’s reasoning was still rejected because of the threat to the speech and constitutionally protected dissent of regular citizens.
So what’s the difference? You can’t say that agents within the US were “agents of foreign powers” – Rice already said they weren’t. There was no congressional review, just congressional notification (though, it should be noted, that doesn’t matter since the 4th amendment requires judicial approval). Bush said the people he approved surveilance of were American citizens… so how is what he did any different from what the government did in ‘72? What statute made it legal?
I’d say follow the links and read all the related material and then let me know if you still have the question.
OK, I don’t think NSA leaked this. But to immediately come out and say CIA did it is just as bad IMO. The CIA tries to to not tell people who they work for either. Honestly, if you’re saying that it might as well be the State Department. There are more than one intelligence agencies capable of leaking. And who said that CIA had access to the info anyway?
It’s the Times we should be pointing the fingers at, not our own intelligence agencies until we have the leaker proved.
Thanks for the flippant response, but I’ve been reading the material from both sides all day. The reason I posted the question was because I found the above linked explanations unsatisfactory. But I guess I’ll address it point by point.
In the original post, you say that because Bush acted “in good faith” by checking with the NSA and AG first, we should give him the benefit of the doubt. The SC explicitly rejects that sort of reasoning in the case above, because they recognize that in pursuing the execution of the laws, the president may be lead to “overlook potential invasions of privacy and protected speech.” They recognized that the president’s job often is in conflict with protecting civil liberties, and hence needs to consult with the judiciary first (to receive a warrant, not to find out whether it’s ok to circumvent the process). The fact that the president was acting in a time of war was not addressed in the decision, presumably because it’s immaterial – the court’s decision is framed around the fact that American citizens have a right to privacy, and allowing the president to abridge that right at will without judicial oversight is dangerous. Even if national security is at stake, the court notes: “If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken.” In other words, the court believes that national security is better served by strong fourth amendment protections then the erosion of those protections to prosecute what the government argued were, in effect, domestic terrorists.
So where’s the disanalogy?
Addressing your updates: In the first, two editorials complaining about FISA, and trying to justify Bush’s acts through FISA. Being that Bush isn’t trying to justify his actions through FISA, I’ll ignore them.
Update 2: Echelon is worse, and ought to be stopped. Clinton was an asshole. Next?
3: AGAG supports Bush’s actions by saying Congress told him to pursue Al Quaeda, and AQ was in the States, so he spied on citizens. How is this any different from Nixon spying on those he believed would damage domestic security in ‘72? Also, I’m pretty sure Redstate misreads the Hamdi v. Rumsfeld decision. I’ll elaborate if necessary, but this is getting lengthy.
4: Condi admitted they ignored FISA, seems like a tacit admission they broke that particular law. I guess Turley wins that one.
5: Addressed elsewhere.
Convinced I’ve done my homework yet? Can I get a substantive response now?
I appologize if I’m a bit testy. Sometimes commenting at 4 am isn’t the best idea. Excuse any typos, I’ll address them (and responses, I hope) in the morning.
So Biden’s a lying neo-con traitor?
I don’t know if this whole thing is legal, but I think most of us can agree that:
*Spying on terrorist contacts is a good thing
*We ought to have a way of preventing spying on people with no terrorist contacts.
So we shouldn’t care if FISA or Bush is to blame. We should just find an acceptable solution ASAP.
And Cloudy, shorten your posts if you want people to read them.