Rather than launch into another long post detailing my position on the NSA “domestic spying” scandal—a position that at this point must certainly be clear to all but the most doggedly committed contrarians (or else those who have concluded that I am unnaturally dedicated to arguing my position bad faith)—I’ve decided simply to post the bulk of the remarks made by AG Gonzales yesterday as he addressed Georgetown University’s Law Center. All emphases mine:
Just after dawn on September 11th, 2001, I flew out of Dulles Airport less than an hour before the departure from the same airport of American Airlines Flight 77, the plane that was hijacked and crashed into the Pentagon later that morning. When I arrived in Norfolk, Virginia, to give a speech, the North Tower of the World Trade Center had been hit. By the end of my remarks, both the North and South Towers stood shrouded in smoke and flames with many desperate people jumping to their deaths, some 90 stories below. I spent much of the rest of that horrible day trying to get back to Washington to assist the President in my role as White House Counsel.
Everyone has a story from that morning. Up and down the East Coast, men and women were settling into their desks, coming home from a graveyard shift, or taking their children to school. And across the rest of the country, Americans were waking up to smoldering ruins and the images of ash covered faces. We remember where we were, what we were doing … and how we felt on that terrible morning, as 3,000 innocent men, women, and children died, without warning, without being able to look into the faces of their loved ones and say goodbye . . . all killed just for being Americans.
The open wounds so many of us carry from that day are the backdrop to the current debate about the National Security Agency’s terrorist surveillance program. This program, described by the President, is focused on international communications where experienced intelligence experts have reason to believe that at least one party to the communication is a member or agent of al Qaeda or a terrorist organization affiliated with al Qaeda. This program is reviewed and reauthorized by the President approximately every 45 days. The leadership of Congress, including the leaders of the Intelligence Committees of both Houses of Congress, have been briefed about this program more than a dozen times since 2001.
A word of caution here. This remains a highly classified program. It remains an important tool in protecting America. So my remarks today speak only to those activities confirmed publicly by the President, and not to other purported activities described in press reports. These press accounts are in almost every case, in one way or another, misinformed, confusing, or wrong. And unfortunately, they have caused concern over the potential breadth of what the President has actually authorized.
It seems that everyone who has heard of the President’s actions has an opinion – as well we should regarding matters of national security, separation of powers, and civil liberties. Of course, a few critics are interested only in political gains. Other doubters hope the President will do everything he can to protect our country, but they worry about the appropriate checks upon a Commander in Chief’s ability to monitor the enemy in a time of war.
Whatever your opinion, this much is clear: No one is above the law. We are all bound by the Constitution, and no matter the pain and anger we feel from the attacks, we must all abide by the Constitution. During my confirmation hearing, I said that, quote, “we are very, very mindful of Justice O’Connor’s statement in the 2004 Hamdi decision that a state of war is not a blank check for the President of the United States with respect to the rights of American citizens. I understand that and I agree with that.†Close quote. The President takes seriously his obligations to protect the American people and to protect the Constitution, and he is committed to upholding both of those obligations.
I’ve noticed that through all of the noise on this topic, very few have asked that the terrorist surveillance program be stopped. The American people are, however, asking two important questions: Is this program necessary? And is it lawful? The answer to each is yes.
***
The question of necessity rightly falls to our nation’s military leaders. You’ve heard the President declare: We are a nation at war.
And in this war, our military employs a wide variety of tools and weapons to defeat the enemy. General Mike Hayden, Principal Deputy Director of National Intelligence and former Director of the NSA, laid out yesterday why a terrorist surveillance program that allows us to quickly collect important information about our enemy is so vital and necessary to the War on Terror.
The conflict against al Qaeda is, in fundamental respects, a war of information. We cannot build walls thick enough, fences high enough, or systems strong enough to keep our enemies out of our open and welcoming country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we must understand better who they are and what they’re doing – we have to collect more dots, if you will, before we can “connect the dots.†This program to surveil al Qaeda is a necessary weapon as we fight to detect and prevent another attack before it happens. I feel confident that is what the American people expect … and it’s what the terrorist surveillance program provides.
As General Hayden explained yesterday, many men and women who shoulder the daily burden of preventing another terrorist attack here at home are convinced of the necessity of this surveillance program.
***
Now, the legal authorities. As Attorney General, I am primarily concerned with the legal basis for these necessary military activities. I expect that as lawyers and law students, you are too.
The Attorney General of the United States is the chief legal advisor for the Executive Branch. Accordingly, from the outset, the Justice Department thoroughly examined this program against al Qaeda, and concluded that the President is acting within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSA’s Inspector General have been intimately involved in reviewing the program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the President’s constitutional authorities. No other public official – no mayor, no governor, no member of Congress—is charged by the Constitution with the primary responsibility for protecting the safety of all Americans – and the Constitution gives the President all authority necessary to fulfill this solemn duty.
It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.
If this is the case in ordinary times, it is even more so in the present circumstances of our armed conflict with al Qaeda and its allies. The terrorist surveillance program was authorized in response to the deadliest foreign attack on American soil, and it is designed solely to prevent the next attack. After all, the goal of our enemy is to blend in with our civilian population in order to plan and carry out future attacks within America. We cannot forget that the 9/11 hijackers were in our country, living in our communities.
The President’s authority to take military actionâ€â€including the use of communications intelligence targeted at the enemyâ€â€does not come merely from his inherent constitutional powers. It comes directly from Congress as well.
Just a few days after the events of September 11th, Congress enacted a joint resolution to support and authorize a military response to the attacks on American soil. In this resolution, the Authorization for Use of Military Force, Congress did two important things. First, it expressly recognized the President’s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.†Second, it supplemented that authority by authorizing the President to, quote, “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks†in order to prevent further attacks on the United States.
The Resolution means that the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, were we to employ the three-part framework of Justice Jackson’s concurring opinion in the Youngstown Steel Seizure case, the President’s authority falls within Category One, and is at its highest. He is acting “pursuant to an express or implied authorization of Congress,†and the President’s authority “includes all that he possesses in his own right [under the Constitution] plus all that Congress can†confer on him.
In 2004, the Supreme Court considered the scope of the Force Resolution in the Hamdi case. There, the question was whether the President had the authority to detain an American citizen as an enemy combatant for the duration of the hostilities.
In that [Hamdi] case, the Supreme Court confirmed that the expansive language of the Resolution â€â€Ã¢â‚¬Å“all necessary and appropriate forceâ€Ââ€â€ensures that the congressional authorization extends to traditional incidents of waging war. And, just like the detention of enemy combatants approved in Hamdi, the use of communications intelligence to prevent enemy attacks is a fundamental and well-accepted incident of military force.
This fact is borne out by history. This Nation has a long tradition of wartime enemy surveillanceâ€â€a tradition that can be traced to George Washington, who made frequent and effective use of secret intelligence, including the interception of mail between the British and Americans.
And for as long as electronic communications have existed, the United States has conducted surveillance of those communications during wartimeâ€â€all without judicial warrant. In the Civil War, for example, telegraph wiretapping was common, and provided important intelligence for both sides. In World War I, President Wilson ordered the interception of all cable communications between the United States and Europe; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves only the interception of international communications that are linked to al Qaeda or its allies.
Some have suggested that the Force Resolution did not authorize intelligence collection inside the United States. That contention cannot be squared with the reality of the 9/11 attacks, which gave rise to the Resolution, and with the language of the authorization itself, which calls on the President to protect Americans both “at home and abroad†and to take action to prevent further terrorist attacks “against the United States.†It’s also contrary to the history of wartime surveillance, which has often involved the interception of enemy communications into and out of the United States.
Against this backdrop, the NSA’s focused terrorist surveillance program falls squarely within the broad authorization of the Resolution even though, as some have argued, the Resolution does not expressly mention surveillance. The Resolution also doesn’t mention detention of enemy combatants. But we know from the Supreme Court’s decision in Hamdi that such detention is authorized. Justice O’Connor reasoned: “Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war…Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.â€Â
As Justice O’Connor recognized, it does not matter that the Force Resolution nowhere specifically refers to the detention of U.S. citizens as enemy combatants. Nor does it matter that individual Members of Congress may not have specifically intended to authorize such detention. The same is true of electronic surveillance. It is a traditional incident of war and, thus, as Justice O’Connor said, it is “of no moment†that the Resolution does not explicitly mention this activity.
These omissions are not at all surprising. In enacting the Force Resolution, Congress made no attempt to catalog every aspect of the use of force it was authorizing.
Instead, following the model of past military force authorizations, Congressâ€â€in general, but broad, termsâ€â€confirmed the President’s authority to use all traditional and legitimate incidents of military force to identify and defeat the enemy. In doing so, Congress must be understood to have intended that the use of electronic surveillance against the enemy is a fundamental component of military operations.
***
Some contend that even if the President has constitutional authority to engage in the surveillance of our enemy in a time of war, that authority has been constrained by Congress with the passage in 1978 of the Foreign Intelligence Surveillance Act. Generally, FISA requires the government to obtain an order from a special FISA court before conducting electronic surveillance. It is clear from the legislative history of FISA that there were concerns among Members of Congress about the constitutionality of FISA itself.
For purposes of this discussion, because I cannot discuss operational details, I’m going to assume here that intercepts of al Qaeda communications under the terrorist surveillance program fall within the definition of “electronic surveillance†in FISA.
The FISA Court of Review, the special court of appeals charged with hearing appeals of decisions by the FISA court, stated in 2002 that, quote, “[w]e take for granted that the President does have that [inherent] authority†and, “assuming that is so, FISA could not encroach on the President’s constitutional power.†We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President’s Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President’s constitutional authority today. [This avoidance of the “tough question,” as I’ve been suggesting for some time now, is the closest thing I can offer as proof that the “legal” battle being fought here has more to do with pressuring separation of powers questions than it does with the violation of any civil rights (which is why it is, in my estimation, such a political loser for Dems); indeed, just today Congress admitted as much when it suggested it would have approved the program, had only the President appeared before them on bended knee and asked permission; had he been carrying with him a bit of pork, that likely wouldn’t have hurt his chances of gaining congression “permission” either – ed]
Let me explain by focusing on certain aspects of FISA that have attracted a lot of attention and generated a lot of confusion in the last few weeks.
First, FISA, of course, allows Congress to respond to new threats through separate legislation. FISA bars persons from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute.†For the reasons I have already discussed, the Force Resolution provides the relevant statutory authorization for the terrorist surveillance program. Hamdi makes it clear that the broad language in the Resolution can satisfy a requirement for specific statutory authorization set forth in another law.
Hamdi involved a statutory prohibition on all detention of U.S. citizens except as authorized “pursuant to an Act of Congress.†Even though the detention of a U.S. citizen involves a deprivation of liberty, and even though the Force Resolution says nothing on its face about detention of U.S. citizens, a majority of the members of the Court nevertheless concluded that the Resolution satisfied the statutory requirement. The same is true, I submit, for the prohibition on warrantless electronic surveillance in FISA.
You may have heard about the provision of FISA that allows the President to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime. But no one could reasonably suggest that all such critical military surveillance in a time of war would end after only 15 days.
Instead, the legislative history of this provision makes it clear that Congress elected NOT TO DECIDE how surveillance might need to be conducted in the event of a particular armed conflict. Congress expected that it would revisit the issue in light of events and likely would enact a special authorization during that 15-day period. That is exactly what happened three days after the attacks of 9/11, when Congress passed the Force Resolution, permitting the President to exercise “all necessary and appropriate†incidents of military force.
Thus, it is simply not the case that Congress in 1978 anticipated all the ways that the President might need to act in times of armed conflict to protect the United States. FISA, by its own terms, was not intended to be the last word on these critical issues.
Second, some people have argued that, by their terms, Title III and FISA are the “exclusive means” for conducting electronic surveillance. It is true that the law says that Title III and FISA are “the exclusive means by which electronic surveillance . . . may be conducted.” But, as I have said before, FISA itself says elsewhere that the government cannot engage in electronic surveillance “except as authorized by statute.” It is noteworthy that, FISA did not say “the government cannot engage in electronic surveillance ‘except as authorized by FISA and Title III.’” No, it said, except as authorized by statute—any statute. And, in this case, that other statute is the Force Resolution.
Even if some might think that’s not the only way to read the statute, in accordance with long recognized canons of construction, FISA must be interpreted in harmony with the Force Resolution to allow the President, as Commander in Chief during time of armed conflict, to take the actions necessary to protect the country from another catastrophic attack. So long as such an interpretation is “fairly possible,†the Supreme Court has made clear that it must be adopted, in order to avoid the serious constitutional issues that would otherwise be raised.
Third, I keep hearing, “Why not FISA?†“Why didn’t the President get orders from the FISA court approving these NSA intercepts of al Qaeda communications?â€Â
We have to remember that we’re talking about a wartime foreign intelligence program. It is an “early warning system†with only one purpose: To detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is imperative for national security that we can detect RELIABLY, IMMEDIATELY, and WITHOUT DELAY whenever communications associated with al Qaeda enter or leave the United States. That may be the only way to alert us to the presence of an al Qaeda agent in our country and to the existence of an unfolding plot.
Consistent with the wartime intelligence nature of this program, the optimal way to achieve the necessary speed and agility is to leave the decisions about particular intercepts to the judgment of professional intelligence officers, based on the best available intelligence information. They can make that call quickly. If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of DELAY, and there would be critical holes in our early warning system.
Some have pointed to the provision in FISA that allows for so-called “emergency authorizations†of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.
Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.[To interrupt once more, this speaks to the problem of probably cause, where probable cause can only be determined by first acquiring the surveillance intelligence; additional, because we don’t know much about the nature of the program, we can assume, even for the sake of argument, that other problems having to do with sheer volume make the legal framework under which the emergency provision operates probitive and unmanagable -ed]
A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.
We all agree that there should be appropriate checks and balances on our branches of government. The FISA process makes perfect sense in almost all cases of foreign intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the War on Terror, and one that we are using to its fullest and will continue to use against al Qaeda and other foreign threats. But as the President has explained, the terrorist surveillance program operated by the NSA requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack. And we cannot afford to fail.
***
Finally, let me explain why the NSA’s terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures.
The Fourth Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant. There are also searches at the border or when you’ve been pulled over at a checkpoint designed to identify folks driving while under the influence. Those searches do not violate the Fourth Amendment because they involve “special needs†beyond routine law enforcement. The Supreme Court has repeatedly held that these circumstances make such a search reasonable even without a warrant.
The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this “special needs†category. This is by no means a novel conclusion. The Justice Department during the Clinton Administration testified in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment.
The key question, then, under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. This requires balancing privacy with the government’s interests – and ensuring that we maintain appropriate safeguards. We’ve done that here.
No one takes lightly the concerns that have been raised about the interception of communications inside the United States. But this terrorist surveillance program involves intercepting the international communications of persons reasonably believed to be members or agents of al Qaeda or affiliated terrorist organizations. This surveillance is narrowly focused and fully consistent with the traditional forms of enemy surveillance found to be necessary in all previous armed conflicts. The authorities are reviewed approximately every 45 days to ensure that the al Qaeda threat to the national security of this nation continues to exist. Moreover, the standard applied − “reasonable basis to believe†− is essentially the same as the traditional Fourth Amendment probable cause standard. As the Supreme Court has stated, “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.â€Â
If we conduct this reasonable surveillance – while taking special care to preserve civil liberties as we have – we can all continue to enjoy our rights and freedoms for generations to come.
***
I close with a reminder that just last week, al Jazeera aired an audio tape in which Osama bin Laden promised a new round of attacks on the United States. Bin Laden said the proof of his promise is, and I quote, “the explosions you have seen in the capitals of European nations.†He continued, quote, “The delay in similar operations happening in America has not been because of failure to break through your security measures. The operations are under preparation and you will see them in your homes the minute they are through with preparations.†Close quote.
We’ve seen and heard these types of warnings before. And we’ve seen what the result of those preparations can be – thousands of our fellow citizens who perished in the attacks of 9/11.
This Administration has chosen to act now to prevent the next attack, rather than wait until it is too late. This Administration has chosen to utilize every necessary and lawful tool at its disposal. It is hard to imagine a President who wouldn’t elect to use these tools in defense of the American people – in fact, I think it would be irresponsible to do otherwise.
The terrorist surveillance program is both necessary and lawful. Accordingly, the President has done with this lawful authority the only responsible thing: use it. He has exercised, and will continue to exercise, his authority to protect Americans and the cherished freedoms of the American people.
And—the histrionics of civil liberties absolutists and aggressively contrarian (or doggedly academic) constitutional scholars aside—we are all of us safer for it, not because we are looking for a “daddy figure” to protect us (as the Kos Klan has now decided to push as its newer chickenhawk meme), but rather because this is precisely what the President is supposed to be doing. It is his job. And just as I expect Congress to piss away money and debate endlessly on issues that are often of no import, I expect the executive branch to protect our nation and its sovereignty.
They are doing just that. If Congress—particular the liberal Democrat wing who is pretending to play the part of loyal opposition—wants a special ribbon showing that they, too, helped they might try speaking up on behalf of the cause of fighting terror than consistently trying to fight the President for credit they haven’t earned, while spending the majority of their energies being contrarian for the sake of (poorly thought out) polical expediency.
(h/t Jim in Chicago)
We can’t hearrrrrr you.
YOU SHALL NEVER INTERCEPT OUR THOUGHT RAYS, UNCLE TOMAS! OUR SHIELD OF IDEALISM TRUMPS YOUR EVIL BUSHIE MAGIC!
Somebody is paying attention. Now tell the rove-tron.
I *heart* that quote from Ben Franklin, “Those that would sacrifice Liberty for Security deserve Neither.”
Who wants to bet that no one in that audience can name a single piece of literature that Franklin ever penned, much less the specific text of that quote in proper context?
Because, sigh of all sighs, Ben Franklin probably never said it at all. But the truth never actually stopped the left, did it ever?
Thank God for the supergeniuses of Georgetown on a fine hatrick of intellectual rigor all around.
Somebody is paying attention. Now tell the rove-tron.
Tell Rove what, Actus? That the critics arn’t demanding the program be shut down? Since he brought it up, I think he’s probably already figured it out.
What are you talking about?
And, following up on Vercingetorix’s point, the full text of the quote, regardless of who said it (because we might conclude that even if our beloved Elder Statesman wasn’t its author, somebody had a good thought there), is:
“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” [emphasis mine]
…which, I might add, Wiki still tries to attribute to Franklin on the basis of his supposedly similar and definitively-sourced phrase: “Sell not virtue to purchase wealth, nor Liberty to purchase power.” Which, I further add, isn’t very similar at all, is it, except in that it contains the words “Liberty” and “purchase.”
Ironically, it’s the very first quotation that comes up on the cute Quotable Franklin webpage at http://www.ushistory.org/franklin/quotable/... and it’s misquoted.
Honestly, I don’t think actus can answer that one.
“Those that would sacrifice attention for the Rove-tron deserve Neither.”
This is why I just can’t get very worked up about this program. Hell, I’m a former Libertarian, I have some of those “civil libertarian absolutist” instincts, but the fact is this program was executed in the best faith imaginable by the Bush administration. Reviewed by God knows how many high-caliber attorneys for legality at both the NSA and DOJ, expiring every forty days and thus requiring frequent reauthorization by the President, engaging top-level congressional oversight… At one point over the course of the program there was a legal question arose and the program was promptly shut down. Once the legal issue was resolved, it was restarted.
This program is and was being run so conservatively and so responsibly that regardless of the ultimate legal outcome, to even suggest some kind of malevolence on the part of the administration or the NSA is an act of bad faith in and of itself.
yours/
peter.
I, for one, welcome our new Rovian Overlords.
You know, Karl Rove looks a little like Benjamin Franklin.
Peter Jackson, I agree. Much of it does boil down to a good faith/bad faith argument.
Seven years of college, down the drain.
Jeff, I apologize if you’ve already addressed this, but I’m curious what you (and your commenters) make of Glenn Greenwald’s scoop from yesterday regarding the 2002 DeWine amendment. Doesn’t that amendment and the DOJ documents that were generated in response to it pretty convincingly put the lie to the Gonzales/Hayden legal defense?
Gonzales brought that up. Has everyone else figured it out?
Obviously not. Gonzales *never* talks to anyone else in the administration.
AL,
What total crap. Greenwald’s “scoop” is just fine if you want open congressional testimony and justifications FOR A CLASSIFIED PROGRAM that was already briefed to the congress.
No matter how you slice, dice, and make mounds of cole slaw–your “gotcha” moments always are at odds with a parade of facts: Article II is pretty expansive about Executive power in times of war; classified programs are classified, and; technology has outstripped FISA requirements REGARDLESS of whether FISA is constitutional in relation to the NSA program.
And before you trumpet “Why hasn’t Bush sought authorization for an expansion of FISA in light of new technology?” Well, we’re back to the beginning: He doesn’t need congressional approval for the exercise of Article II powers.
One more thing: If one more ignorant boob calls this “domestic spying” or “wiretapping” my head is goign to make a nice Leroy Nieman print of a drunken Bode Miller downhill on the wall(s).
May I recommend this?
http://www.realclearpolitics.com/Commentary/com-1_24_06_Hayden_pf.html
Unfortunately, the failed DeWine Amendment refutes the million of words that Jeff has devoted to proving the legality of the domestic spying program.
I see that the Liberal/Libertarian Contrarians at Insight say that the White House is preparing for Impeachment. The White House blames the “hypocritical Congress”. The list of Liberal/Libertarian Contrarians just keeps growing.
If Congress does not adopt a bill, it has no meaning whatsoever. Congressional inaction is neither law, nor an absence of law.
Hmmm.
1. Misquote Ben Franklin
2. ???
3. Profit!
Works for me. Frankly anybody who bases national security policy on a proverb is an utter ass.
Rather than launch into another long post detailing my position on the NSA “domestic spying†scandalâ€â€a position that at this point must certainly be clear to all but the most doggedly committed contrarians (or else those who have concluded that I am unnaturally dedicated to arguing my position bad faith)â€ 
Makes sense. Why waste time and energy helping the terminally unserious dig their own political grave when they are capable of—and quite enthused about, to boot—finishing the task without your help?
Riiight.
Next up, how snorting cheese may be the answer to high gas prices.
And later, Elvis, JFK, and Gene Simmons of KISS discuss post-modern architecture.
Jim, see my post above about gotcha moments. Not that you will get it.
Speaking of ignorant boobs. The reason this is being called “domestic spying” is because one of the parties involved is a U.S. citizen living within the U.S. That’s the whole crux of the controversy. If this were a purely foreign operation, no one would care; there would be no controversy. And the reason people are talking about wiretapping is, shockingly enough, because the administration has admitted that the program involves the interception of telephone calls.
Did your head explode?
What did the media call it when Clinton Did It, Too (patent pending)? Not “domestic spying….” What was it? Something like “Clinton’s doublegood terrorist-catching happiness safety program.”
The WH has let it be known that they’re preparing for impeachment hearings b/c they hope that the Dems will be stupid enough to try it.
The Dems have walked into a haymaker of Rovian proportions. Unless some responsible referee on their side declares a tko and they vacate the ring, we might be looking at a Duk Koo Kim situation.
What did the media call it when Clinton Did It, Too (patent pending)?
The same thing they called it when Roosevelt did it. Or when Carter did it. And the same thing they currently call it when those tidy, officious customs agents paw through your soft-sided Samsonite on your return trip from Kazookistan. What do all these chief executives and officials have in common? Hint: they’re not named “George W. Bush – Chimperor-in-Chief”.
ALiberal, the whole crux of the controversy is that we understand we are at war against a ruthless enemy determined to kill us, who are ignoring all rules of engagement while using our own civil liberties, our technology, and our useful idiot media and entertainment industry as a weapon against us whereas, you don’t.
Hands Of Stone
Uh, no, just because one of the phone numbers is within the US doesn’t mean it’s not a non-US citizen like Mohammed Atta on the line.
:peter
AL,
I’m not sure what Glenn thinks he’s proving.
He emphasized comments by the administration that say:
1)The Patriot act made things easier for the administration.
Duh. But “easier” does not equal “no problems”
2)The Patriot act allows “full and effective use” of FISA.
Doesn’t mean there aren’t problems which can’t be solved while operating within FISA.
3) Administration won’t support amendment because of “legal and practical issues”.
I have no idea what this is supposed to prove. Pretty ambiguous language.
4)It “may not be the case” that probable cause is a problem.
Hmm, “may not”, eh? Couldn’t find a better quote?
5) It could mess up prosecutions and investigations.
Might be relevant if evidence from this NSA program pops up in court, but I wouldn’t hold my breath.
So, lawyer implies he doesn’t know whether there are problems with FISA, and says they aren’t interested in checking. This is proof that no problems exist. Uh, huh.
The reason this is being called “domestic spying†is because one of the parties involved is a U.S. citizen living within the U.S.
Really? I wonder what Google has to say?
Echelon domestic spying – 72 hits
Clinton domestic spying – 975 hits
Bush domestic spying – “about†9,500 hits (Google’s terminology)
NSA domestic spying – “about†5,440 hits (Google’s terminology)
So if W. is on the phone in the Oval Office talking to Tony Blair about the Middle East, that’s a domestic policy discussion, right?
This is such a bogus claim. The Clinton administration conducted warrantless physical searches, not electronic surveillance. And yes it was domestic. But for those of you who still don’t get this, at the time these searches were conducted, FISA did not cover physical searches! It was subsequently amended to cover physical searches in addition to electronic surveillance. So the Clinton administration never violated FISA or even claimed they could. Hence, there was no domestic spying controversy. Are you guys allergic to facts?
I’m so sick of leftist bellyaching about the motherfucking NSA. If the left really gave two shits about privacy, they’d oppose the numerous other government agencies as well. Let’s compare:
The NSA–
Monitors conversations between al Qaeda and their contacts that take place between the US and foreign lands.
The IRS–
Monitors every single americans employment, salary, expenditures, business, and even charities and churches
The FEC–
Monitors every single american’s donations to political organizations. Monitors any expressed political statement whose cost of delivery exceeds $250. Will soon monitor all politically oriented blogs for “in kind contributions”, also known as opinions.
The SSA–
From life to birth, also monitors the income of every American, and also tags every American with an ID number that can be used both by private and public agencies to acess data on almost every aspect of an individual’s life.
Now, one of these agencies is not like the others. Can you guess which one? That’s right, the NSA doesn’t monitor every american, and it’s monitoring is strictly limited in comparison with these other agencies. Also, liberals are quite happy with the far more invasive agencies, because you know, they make sure the eeevil rich pay their fair share.
Liberals, like I said couldn’t care less about liberty. What their complaints about the NSA, and their lack of complaints about the IRS et al, really show is that they don’t see al Qaeda as a threat, they see us conservatives as a threat. And why would it be any other way? Who most opposes their agenda? We do. And who sympathizes with their apathy towards wealthy WASPs, western cultural traditions, and America’s founding ideals? You know as well as I do the answer to that question.
Please, folks, for the love of God….
KEEP ABORTION LEGAL FOR DEMOCRATS!
When a member of a known terrorist organization is calling you up or sending you e-mails, aren’t you at that point a de facto American at best? Whether you agree or not, one of those being observed in any of these communications is an enemy of our nation initiating communication from outside the country, and to require that both parties be foreign individuals and non-citizens and/or proven enemies, you are placing an unreasonable burden on our ability to observe our enemy and protect our nation, and for the sake of what? The fear of the possibility that an innocuous conversation will be accidentally surveilled and recorded and subsequently destroyed? Oh, the travesty! Seriously, some people in this country need to stop buying their perspective from foreign manufacturers like China.
For those of you, like Maor, who are having trouble comprehending the significane of Greenwald’s post, let me explain.
General Hayden explained the other day that the reason the warrrantless program was necessary is because FISA was too burdensome and complicated and that they needed a “softer” trigger (reasonable suspicion as opposed to probable cause).
In mid 2002–after the program had already begun– Mike DeWine (R. OH) introduced a bill that would have amended FISA to allow searches under a reasonable suspicion standard instead of a probable cause standard. The administration opposed it. The DoJ official who wrote the official statement is the very guy who is in charge of securing FISA warrants. He said in his statement that, to his knowledge, the administration was not having any trouble securing FISA warrants, so the amendment was unncessary. He also noted that changing the standard to reasonable suspicion might violate the constitution. This document essentially blows general Hayden’s entire speech out of the water. It also puts the lie to the argument that the AUMF authorized the president’s actions. Congress defeated the DeWine amdendment (at the DoJ’s urging), which is a clear indication that they did not intend to alter FISA.
AL,
Here is the deal–you prefer “domestic spying” because you have absolutely convinced yourself that your great legal mind has seized upon the definitive “proof” that the President has violated the law. The President and his lawyers say otherwise. I’d call it draw, except he’s the COMMANDER-IN-CHIEF.
In any event, the targets of this program are not American citizens–but the COMMUNICATIONS OF TERRORISTS. If you cannot make that distinction in that brilliant legal mind, then the essence of this “problem” as a separtion of powers issue intersecting with wartime intelligence oprations will escape you. Wrong tense–has escaped you.
The administration opposed it.
Unncessary is not the same as opposition.
The DeWine thingy looks broader than the actual problem. Currently with a legal wiretap on the local crime boss the FBI can monitor a call to the out of state hitman, alias Lefty Icepick, without also having a warrant on Lefty. Also the monitored content can then be used to obtain a warrant on Lefty to monitor further communications with yet others.
That first call is the problem with FISA. Surveillance of overseas terror suspects IS ALREADY LEGAL. When they contact US parties the content of that communication is necessary information for obtaining FISA warrants and protecting the country.
It really is so very simple. If you receive a phone call from your friendly AQ operative….HANG UP!!!!And, then call one of the Chimperor’s designated legal agents and report said call. Unless, you were expecting the call……then you have a problem.
AL,
For you, who are having trouble understanding the insignifigance of Greenwald’s crap–some guy I know wrote this earlier today:
Fun “fact” of the day:
“Domestic spying” wasn’t Jim Rockford’s gig. Maybe Joe Mannix or Thomas Sullivan Magnum. But not Jim.
AL,
It’s not that we don’t understand, it’s that we don’t care. Leftist bellyaching about liberty and privacy is hypocritical and opportunistic. As I’ve brilliantly pointed out, you leftists actually hate freedom almost as much as you hate George Bush, and for many the same reason. Please excuse us if we don’t take you seriously when you talk about liberty and privacy unless sex is involved, which is the only context in which you’ll consistently defend it(thanks for that at least). And I frankly don’t care what Greenwald and any of our 535 elected Congressdolts have to say about it either. The Constitution very clearly gives the president the power to do what he’s doing (yet, oddly, doesn’t even mention FISA–what fascists!), and that’s all that matters.
But, please, don’t let me dissuade you from making the argument and encouraging other leftist drivellers to follow suit.
The presense of a warrant is not what I was discussing—I was just commenting on what the media will call “domestic spying” and what they will call “anti-terrorism measures.” Obviously, the case can be made that it all depends on what political party is doing the monitoring.
Jeff: Like your work around Hurricane Katrina, your NSA stuff has been really thougthful and packed with facts (legal facts and regular facts). Thanks for your efforts.
I read Greenwald’s argument, that’s all it is, an argument. I wonder if everytime Glenn loses a case that proves that he was unethical in advocating for the losing side…
What the hell did the Executive use before FISA when investigating enemy agents?
Did history suddenly spring into being in the 70’s?
So the Legislature defeats a bill that would A)update FISA so that it would apply in more situations and B) that would similiarly restrict Presidential powers. Somehow through a patented, 25-step ISO9000 tinfoil hat process, this is a slam dunk that FISA A) applies right now and that B) the administration is running rampant by dissenting from bills that could restrict its 200+ year vested authority to treat enemy agents abroad and sabatouers at home.
I’m fucking sold. Down with the Rethuglicans!!!
Hey tongueboy, “domestic spying” was the sine qua non of Hawaii Five-O’s mas macho jefe, Jack Lord, who played himself under the stage name Steve McGarrett! And who can forget the nefarious Chinese spymaster Wo Fat, played by the masterful brainwasher of the Manchurian Candidate, Khigh Dhiegh! Rockford files move over, I’ve had a flashback from my youth! Da-da-da-da-DAH-da, da-da-da-da-DAH!
I believe Ilya Kuriaken from The Man from U.N.C.L.E. also engaged in domestic surveilance.
Steve McGarrett–Super Cop.
His greatest line was not aimed at Wo Fat (who in the series last episode is last seen removing a file while in the hoosegow, looking at the camera and smiling). No, McGarrett’s best was here after shooting Chris Vashon, scion of Honore Vashon of the famed Hawaii crime family:
“No Vashon, I shot him–you killed him.”
This is idiotic. You’re saying you’re upset that the media didn’t describe legal domestic surveillance as “domestic spying”? FISA provides a legal framework for conducting domestic spying. Every president since 1978 has used that framework to conduct legal domestic spying. Bush’s program is newsworthy because of it’s questionable legality. There’s no media bias in reporting that fact. The media would be asleep at the wheel if it treated Bush’s program as being just like that done by previous presidents, because it’s not. No one else ever went outside of FISA. That’s newsworthy.
You could also check the congressional record to see if any of the majority parties investigated Echelon.
No one else had AQ killers slam airliners into buildings either. I would say that other Presidents did not have AQ conduct actions while said terrorist organziation was living under the protection of a rogue state, but that would only illustrate that Bush is different because he DID something as opposed to perfectly legal courses of actions like ignoring Bin Laden and hoping he goes away after blowing up embassies and such.
But then that would upset AL’s static view of the world and the events therein.
By the by, tongueboy, no need to post your Google search results. Cheney would have told us sooner or later anyway.
TW: Some of the tripe posted in the comments section isn’t worth the paper it’s written on.
Whackdaddy,
You assign a national security import to my Google searches that I would never have considered. I don’t know whether to feel complimented or to ask how you acquired such an intimate knowledge of Cheney’s tastes in Googlesearch monitoring.
Mike,
Heh. Jack Lord was certainly the master of the acting genre known as “playing yourself”. Robert DeNiro, that dude in Dances with Wolves whose names escapes me, Brad Pitt and Ben Affleck are most worthy successors to that fine acting tradition.
The secret word is — Echelon
You’re saying you’re upset that the media didn’t describe legal domestic surveillance as “domestic spying�
I’m upset that the media is currently describing a signals intelligence program targeting Al Qaeda communications behind friendly lines as “domestic spying”. But then I get upset with a lot of things when I’m off my Ritalin. So pay me no mind.
“Frankly anybody who bases national security policy on a proverb is an utter ass. ”
Agreed!!
“…In the words of the prophet Isaiah: “To the captives, ‘Come out!’ and to those in darkness, ‘Be free!”’
-May 1, 2003.
…What an ass…
DDT,
A. I’m giving odds that’s the moment the President would most like to have back.
B. If we really followed your post to its logical conclusion then we’d have murtha’ed out a loooong time ago.
No, DDT, because the emanating penumbra of Art. II gives the President the power to do as he pleases.
Them trolls done be tearing up the yard, Mr. Goldstein.
ALib,
>
The media would be asleep at the wheel if it treated Bush’s program as being just like that done by previous presidents, because it’s not. No one else ever went outside of FISA. That’s newsworthy.
>
Since when is a President exercising constitutional authority in a time of war to gather signal intel (the actual methods of which are unknown, whose sheer bulk from today’s rapid communication methods makes it logistically unfeasible to adhere to 1978 standards, while the update of a 1978 Act is unnecessary when the very Act’s own reviews court in 2002 declared that the President is neither legally nor constitutionally bound to the Act) on a foreign enemy communicating with citizens (foreign agents?), “newsworthy”? Unless it’s a typical hit job from the New York Times as yet another successful attempt to set the left’s agenda, the left having no concrete agenda of their own. Why no uproar in 2002 (“personal notes” written by half-witted congressional members be damned)? Easy…too close to 9/11 and would have been political suicide. Now with 9/11 fading, fading, fading, it’s political expediency with National Security time again, along with the usual foot-stomping that this President dare to act without full disclosure and advice of the legislative branch regarding military operations, or anything at all.
No one else ever went outside of FISA
Likely false. A specific NSA program that disregards a single FISA restriction regarding international monitoring might be new. One thing we know for sure is that all administrations have claimed the authority to do so.
Josh.
Heh.
Probably not.
While the details are lacking, it doesn’t sound like a large data-mining operation. It appears the reason for disregarding FISA was not due to the bulk of the information, but may have been so as to ensure that the person making the decision to monitor would be an NSA shift supervisor rather than a FISA judge.
The legality of the program is not clear either way, on the facts that have been disclosed. But the administration appears to have itself rejected the argument that the volume of information was simply too large to make compliance with FISA practicable.
One of my questions from the start was what qualified a judge to make the determination of what was reasonable as far as national security goes, why wouldn’t a head spook be making that decision?
One of my questions from the start was what qualified a judge to make the determination of what was reasonable as far as national security goes, why wouldn’t a head spook be making that decision?
I’m sure AL will be glad to give you an answer. Or Professor Greenwald.
I take Hayden’s words to heart, and juxtapose them wiht AG Gonzales’, because I think they combine to keep the methodology sufficiently difficult to determine (and so advance the suggestion that they are playing cat and mouse with critics’ hypotheticals) Here, again, is Gonzales on the 72 hour emergency exemption:
Clearly, one need not be engaged in data mining to make such bureaucratic work within the legal time frame prohibitive; but the process itself appears slow enough that even in a very narrowly targeted envirnoment, Gonzales seems to be saying, the requirements of that particular exemption are onerous given the current methods of gathering, collating, reviewing, etc.—not to mention, questions that arise under the 4th amendment that would not while the info is simply NSA summary given to law enforcement, which requires no warrant, and then allows law enforcement to take its time putting together not only useful intelligence, but also, should the need arise, a domestic criminal case.
So, if I understand the distinction you’re offering here, it’s “surveillance” if it’s legal, and “spying” if it’s illegal. Have I got that?
So—how are the media qualified to judge the legality of this program and therefore decide that it’s “spying” rather than “surveillance?”
Where’s their proof beyond a reasonable doubt? If we’re defining words based on legality alone, should the legal standard therefore apply?
Combining Jeff’s initial point on this issue (“Are we at war or aren’t we?”) with wishbone’s comments above is more than an answer to GG’s alleged “scoop.” The program at issue was among the most classified in the USG. Neither Sen. DeWine nor the DoJ people responding to it had any knowledge of its existence, let alone sufficient knowledge to be relevant to its legality.
Moreover, keeping secrets is generally an essential part of warfare. The Left’s general assumption that what the Admin. says about the program—or what the press has reported about it—is the entire story is suspect (to say the least). Had FDR been asked whether the US is building some sort of super-bomb that could level an entire city, there is little doubt in my mind that he would have denied it. And those not committed to the Left recognize these realities of war. Which is why the Left, in the medium-term, continues to dig itself further into a hole.
Josh is misrepresenting Hayden’s comments. His comment was in response to people implying that the NSA was collecting calls and emails of millions of people and sifting through it with some kind of keyword searches.
His answer did not mean that they were not processing a lot of data – just that they were not collecting everything and sifting through that with content searches.
AL,
You only repeated your original post, which I already read. That isn’t a very good explanation.
I’ll try to explain myself. When somebody says he doesn’t know the answer, it is very problematic in my opinion to deduce the answer from that. Either he really doesn’t know, in which case it tells you little, or he knows but refuses to talk about what he knows, in which case you learn little. And you don’t know which of the 2 possibilities is the case, so you know virtually nothing. This is even more of a problem when the person is
1)a lawyer
2)talking about a sort of secret topic
3)discussing a complex topic in simple, unspecific, general terms
It also seems that there is are unwarranted assumptions by you that the problems Hayden referred to are identical to the problems the amendment would have solved, and that the legal problems that the amendment was alleged to create are identical to the problems you are alleging with the NSA program.
Glenn seems to think it’s easier to deduce stuff from what people don’t say, like a Sherlock Holmes story. That’s his right, but don’t expect me to be impressed.
Okay, here’s the thing: my friend “Akmoud” from Afghanistan who calls me every Sunday at precisely 7 pm CT with
coded instructionsthe line on next week’s Kabul soccer youth league games keeps having his calls billed as “international”. Can someone—perhaps AL has connections—help us educate this fascist international carrier that these are purely “domestic” calls?Robin Roberts’ comment is not helpful because it attempts to draw a meaningless distinction between “everything” and “a lot” and ignores Hayden’s assertion that the eavesdropping was “targeted” and “focused.”
tongueboy, tee hee