Glenn Greenwald, in full crow, writes of the re-connection of the President and FISA over the (remarkably) controversial NSA surveillance program:
For those people (as opposed to the Bush followers who support anything the administration does no matter what and cheer on any expansion of power), this is going to be a hard pill to swallow and then digest. There is simply no way to reconcile (at least honorably) the adminsitration’s prior insistence that our security depended upon eavesdroppping outside of FISA with their sudden willingness to comply with it (now that […] the Democrats control Congress).
And indeed, if the initial reactions of stalwart administration supporters like Captain Ed and Mark Levin are any indication, one would almost certainly have to agree with him.
Writes Captain Ed:
[…] my point can be found in the letter [AG] Gonzales sent to the committee:
In the spring of 2005—well before the first press account disclosing the existence of the Terrorist Surveillance Program—the Administration began exploring options for seeking FISA Court approval.
This is my point, here. It’s not that the program has ended; it obviously will continue. My anger is over the fact that the Bush administration insisted on two points: one, that the FISA court would not cooperate on streamlining the process for warrants on these intercepts, and the second that the Bush administration had the authority to proceed without it. They took everyone along for a big ride, making all sorts of legal arguments about the AUMF and Article II—and now Gonzales has revealed that even they didn’t really believe it.
If they were negotiating with FISA to place the program under their jurisdiction, then they must have agreed with their critics that insisted FISA was a covering authority for such action. And if they’ve spent the better part of two years reaching an accommodation with FISA, why not just tell people what they were doing when the program got exposed?
Similarly, here’s Mark Levin:
For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president’s Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House’s credibility. How can it cast away such a fundamental position of principle and law like this?
Both of these reactions claim that the Bush administration never really believed its initial legal arguments over the President’s authority—a claim that I see no evidence for. In fact, administration officials are explicitly saying otherwise, an assertion made directly in the Justice Department background briefing explaining (to the degree they can publicly), the administration’s new approach—apposite excerpts of which I’ll pull from the Q&A and post, along with some commentary, below the fold:
QUESTION: […] we already know that the FISA court issues warrants in all kinds of other cases that are individualized. How is it a classified—how is it a big secret as to whether these orders that you’re talking about are individualized or broader than that?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Let’s just say I’m not in a position now to talk about the specifics of how things will happen under particular orders, because that really talks—that really provides a lot of information about (audio gap) of what we’re doing, the capabilities we have under the FISA statute.
I will say that these are complex orders, that the approach taken in the orders is innovative, as indicated in the Attorney General’s letter. And I think beyond that, I’m not going to get into specifics.
[…]
QUESTION: What has changed here? What has changed that allows you now allows the FISA court to approve this on whatever basis?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I don’t know that anything has changed. First of all, let me say that we continue to believe as we’ve always said and as we’ve explained at length that the President has the authority to authorize the terrorist surveillance program, that he has that authority under the authorization for the use of military force and under Article II of the Constitution. That’s not changing.
These orders, however, are orders that have taken a long time to put together, to work on. They’re orders that take advantage of use of the use of the FISA statute and developments in the law. I can’t really get into developments in the law before the FISA court. But it’s a process that began nearly two years ago, and it’s just now that the court has approved these orders.
QUESTION: This is Peter Tomlin. How is this different than going to the court for the warrants before 9/11, which you had the authority to do? I mean, what is different than just the regular statute?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, again, I’m not, I’m really not going to talk about the particulars of how these orders may differ from prior orders.
I will emphasize that the FISA court, the judge of the FISA court who approved these orders, specifically found that they meet all the requirements of the FISA statute.QUESTION: If it was necessary to go outside the FISA court for national security when the terrorist surveillance program began, why is no longer necessary?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as I think the President has made clear all along, the question is always how can you obtain the speed and agility that intelligence officers needed to detect without delay these critical communications coming in and out of the United States and to conduct the surveillance that was needed to protect the country. That was always the issue.
It’s not a simple question of fitting that within the FISA statute. And this is a project, again, that we’ve been working on for some time.
[…]
QUESTION: You seem to in the letter to the Intelligence committees, you seem to suggest that the speed with which they are able to approve warrants is a factor in what you have—what you’re announcing here today.
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, it certainly was a critical and necessary in determining whether this was an alternative that was available that continued to protect national security and achieve the objectives that we’re achieving.
So, regardless of what happened, that was a critical requirement, and the President and the DNI needed to be satisfied that there wouldn’t be any significant operational impact, continue to do everything we needed to do.
[…]
QUESTION: Well, let me ask it this way. What are the substantial advantages referred to in the third paragraph of the letter?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, there are some advantages that I can’t get into because they have to do with the order itself and operations under the order. But apart from that, I think they’re just generally speaking clear advantages with—provided it’s consistent with the requirements of national security and the operational needs of the program—to have a judge review and approve surveillance under the program.
There’s obviously an advantage in having all three branches involved. As we’ve said all along, if it could be done (audio gap). Obviously this issue of the terrorist surveillance program is one that has been under intense public debate and scrutiny on the Hill. And just in all—considering all these circumstances, the President determined that this was the appropriate course.
[…]
QUESTION: Can I ask, is one of the factors that is an advantage to going through the process of getting a FISA warrant the use of that information as a predicate or as evidence in a future criminal prosecution?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, I will say that there is well established authorities and patterns for the use of information obtained through FISA surveillance, and that is something that was designed to be part of the system and part of the statute. And so those authorities are there.
[…]
QUESTION: Let me just ask whether or not the orders are retroactive. I’m trying to figure out if they deal at all with prior activities that you’ve conducted under the TSP, and also, I mean, do you believe that these orders insulate you from all legal attack? I mean, do you expect that the case, the NSA case before the 6th Circuit is now moot, or what?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: You just asked a lot of questions. I mean, FISA orders are prospective in the sense that you’re seeking authority under a FISA court approval to do X, Y or Z. So we’re talking about a—it’s not unusual in that sense. This is an order to approve surveillance for this 90-day period covered by the order.
Now in terms of the litigation, some of the litigation—and I’m not going to comment on the ongoing litigation, but as you know, some of it is retrospective in seeking damages, including against private parties. Some of it is forward-looking in terms of litigation seeking injunctive relief to try to stop something from happening, including challenging the terrorist surveillance program and the President’s authority as we described it to take that.
So, an order like this will likely have a significant impact one way or the other. Obviously, it’s up to the courts in those cases to decide what the significance of the order is. And they’ll have an opportunity to do that.
QUESTION: Let me just go first. You’re saying that this program now fully complies in every aspect with FISA and is no longer in any respect warrantless, is that correct?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Just as the AG’s letter said, any surveillance, any electronic surveillance as defined in FISA that may have been occurring under the terrorist surveillance program will now, going forward, be subject to the approval of the FISA court and will comply in all respects with the requirements of the FISA statute.
And the President has determined that we have achieved a way of doing that that is consistent with the intelligence needs, and that will protect the country as he promised to do, and that in light of these circumstances, he’s made the determination that he will not be reauthorizing the Terrorist Surveillance Program when the current authorization expires.
QUESTION: Which is when? When does that expire?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as the President has said, each authorization is good for approximately only 45 days, and we’re in the middle of one now. So I’m not going to tell you the date, but it’s pretty soon.
[…]
QUESTION: Is it your view that this will now make it unnecessary for Congress to completely basically undermine any effort by Congress to impose further statutory limitations on this program or make such legislation unnecessary?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, certainly I don’t believe, as we’ve always said, that there’s any need for statutory limitations on the Terrorist Surveillance Program or the President’s conduct of the program, and certainly this should remove or take away the heat for such a debate or the need for such a debate.
But let me say very quickly that we in the administration continue to believe that Congress should enact FISA reform legislation to modernize FISA statute to reestablish what we think is the proper, original focus of FISA on the domestic communications of U.S. persons. We believe that debate should continue to happen, that Congress should consider modernizing FISA very quickly in the new Congress. And frankly, I think that this development should make that debate because it should take some of the political heat off the debate and allow members of Congress and the President to focus on things that are needed.
QUESTION: Okay. Just one clarification here. Are you doing anything different than you were doing before or did you just work out a way for the FISA court to be involved at every stage and in every case?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I’m not going to discuss precise modifications. Obviously the details of the program were never publicly discussed. The general contours of the program were, and as the letter from the Attorney General explains, the general contours under these orders allow us to do the same thing and to target the same types of communications. And critically the determination was made that operating under the orders that we’ve obtained here provides the speed and agility necessary to effectively conduct that surveillance in a way that will protect—there’s no compromise in national security.
I think the President would not have allowed this to go forward if it were determined that it would compromise national security.
QUESTION: So you’re saying you’re not doing anything different, all you’re doing is working out a way for this to be handled in a bureaucratic fashion that does not in any way impinge on what you thought needed to be done?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Let me just say it this way, the objectives of the program haven’t changed and the capabilities of the intelligence agencies to operate such a program have not changed as a result of these orders.
[…]
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Keep in mind, if I could jump in for a second, one thing that has changed—and this goes back to speed and agility issues, not only did we need to make sure that the legal approach we’re using provided the necessary speed and agility, we need to make sure that we over here at the Department of Justice have the infrastructure we need in place—process. And one thing that did change was—authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will—be coordinating with the FISA Court on all kinds of matters including this one. So we’re now equipped in a way we weren’t before to handle this work.
[all emphases mine; h/t to SCOTUSblog]
So. Is there really, as the unholy alliance of Captain Ed, Mark Levin, and Glenn Greenwald(s) would have it, no way to reconcile this return to FISA jurisdiction with the administration’s prior arguments that the President was well within his legal authority to authorize the program under both AUMF and Article II? I don’t think that’s the case at all—as the adminstration official was careful to point out, the Justice Department stands by its earlier legal judgments—and putting the program under the auspices of the FISA Court doesn’t change that one bit.
Instead, what appears to be happening here is that the President and the Justice Department crafted an arrangement with the FISA court making it unnecessary for the President to rely solely on that legal authority—the change being that FISA appears to have been modified in some way to allow the program to continue as it had, only now with the imprimatur of the FISA court, perhaps by allowing pre-emptive warranting—forcing civil libertarians who have come out against the program on the grounds that the President was overstepping his authority to now change their tack should they wish to continue denouncing the program.
Or put more directly, those who disagree with the program on principle will now have to argue as much, as they are no longer able to sublimate their objections into debates over the legal niceties of Article II powers and the President’s powers under AUMF. In short, the program is now indisputably legal.
Will civil libertarians and Democrats who have previously objected to the program now stand behind it? Or will they continue to hold that “spying” on American citizens is beyond the pale—only this time, without the cover of a rogue cowboy to scapegoat for “shredding the Constitution” on his way to fulfilling his role as Commander in Chief.
Of course, Greenwald will likely lump me in with those administration supporters who will cheer on any move by the administration (and in the process bracket out my strong opposition to the Miers nomination, the Schiavo legislation, and myriad other specific instances of disagreement), so take all this with a grain of salt.
And for the record, I would’ve liked to see the President and the Justice Department press the issue of Separation of Powers authority, but then, I’m not in charge of protecting the US. And there’s always the chance that, regardless of how the Administration interpreted their own powers under the law, the Supreme Court might have seen it differently. And Bush is simply not the President to deny the Court’s authority is such a scenario.
Which means that rather than risk the program being scuttled, the Justice Department and the FISA Court have found a compromise that the administration notes doesn’t alter the program or its effectiveness. Whether or not it was the President who “climbed down” on the issue or not is, ultimately, something we can determine at this point—though for what it’s worth, the program will now become permanent (President Obama won’t have the ability to scuttle it by not renewing it every 45 days, for instance) without being substantively altered.
Writes Lyle Denniston of SCOTUSblog:
For years, the Administration had been carrying on its Terrorist Surveillance Program without any prior court approval. The program is said to target telephone calls, e-mails and other electronic traffic of U.S. citizens only when the communications are international and involve at least one person or group that is a member of Al Qaeda or another terrorist organization. After news media disclosed the existence of the warrantless program, the Administration defended its legality, arguing that the President had constitutional authority on his own to authorize the surveillance, but that backup authority had come from Congress in the post-9/11 resolution authorizing a response to the terrorist attacks. Moreover, government officials argued that they could not follow the procedures already set up for intelligence-gathering with the FISA Court’s approval, because that process was too slow and too limited to get at the wide sweep of monitoring the government felt a need to do.
Last year, the Administration, together with some Republican leaders in Congress, worked out a legislative proposal that would give the FISA Court the authority to review the surveillance, and to authorize it—not on an individualized basis, as FISA surveillance orders had always done, but on a program-wide basis. That measure, however, was not passed, and is now considered unlikely to pass in the new Democratic-controlled Congress.
On Wednesday, the Justice Department revealed that it had been working with the FISA Court on a plan that would draw in that Court, under existing law, to approve the same kind of surveillance that was proceeding under the President’s earlier order. As a result, the Surveillance Program will no longer operate under presidential authority when the current White House order expires soon; it has been renewed every 45 days.
[…]
The orders, according to the letter to the leaders of the Senate Judiciary Committee, were approved by the FISA judge on Jan. 10. Department officials said that, in addition to the letter to the Judiciary Committee leaders, congressional intellignece committee members had been briefed.
You can decide for yourselves who is the “victor” here, but from where I’m sitting, it looks like a victory for our National Security apparatus. And of course, every American.
****
See also, Daffyd, STACLU, AJ Strata, Flopping Aces, Sister Toldjah, The Heretik, Powerline, Hot Air, Patterico, Macsmind, The American Mind, and Tom Maguire,
****
update: Orin Kerr is thinking along the same lines:
What’s going on? As with everything about this program, we can’t be sure; we don’t know the facts, so we’re stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process  and both sides were in a mood to be “innovative”  one fairly straightfoward alternative would be to use anticipatory warrants.
An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn’t enough time to get a warrant right at that second, so the warrant can be “pre-approved” by the Judge and used by the government when the triggering event happens.
I don’t know if this theory is right, of course. But it seems to be consistent with the clues in the DOJ briefing. Why are these orders taking a lot of time to obtain? If my theory is right, it’s because the triggering facts that amount to probable cause in a terrorism investigation presumably are complicated. There are cookie-cutter drug cases, but I gather there aren’t any cookie-cutter terrorism cases. It probably takes a lot of negotiation with the FISA court judges to figure out what different sets of facts they’ll accept as triggering events that satisfy probable cause. Plus, the Court might have required review every 90 days instead of the one-year max allowed under FISA because the FISA court judges would want to know if their trigger is working out in its application.
What’s the mystery legal development that helped make this possible? If my guesses are on the right track, it’s probably the Supreme Court’s decision in United States v. Grubbs, which was handed down on March 21, 2006. The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.
****
update 2: Powerline:
Here is a possible scenario to explain this new order from the FISC. Previously a lot of collection of wireless communications was undoubtedly done by targeting persons outside the US, and for that no FISC order is needed: such an order is only needed for radio communications sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person. Other collection outside the US undoubtedly just scooped up whatever was available and was then analyzed using sophisticated software to produce leads. But the Gonzales letter refers to “targeting for collection.” Obviously, if person #1 in, say, Waziristan is in regular communication with person #2 in Manhattan it would be possible to target person #1 in Waziristan for collection, and end up collecting person #2 in Manhattan, without getting an order. If in the course of that collection it becomes apparent that person #2 in Manhattan is also talking to person #3 in, say, Baluchistan, person #3 could also be targeted, resulting in person #2’s communications being collected in that instance as well. All without an order from the FISC, since technically the persons targeted were outside the US.
From published accounts, it appears that the FISC balked at accepting information that was collected in this manner for probable cause purposes when it was submitted by the FBI in FISA applications targeting US persons. It may be that the FISC considered that this type of operation was an end run around them. The deal might then be something like this: the FISC is informed of probable cause against the non-US persons, if those persons are being targeted for collection when they communicate with persons inside the US. That keeps the FISC in the loop and they get to say they’re monitoring intel operations for possible abuse: they can say that whatever submissions they receive must be sworn to, and so that means there is accountability. But the order that the FISC has now issued may mean that they will drop objections to accepting NSA information for purposes of probable cause in FISA applications that target US persons, now that a chain of accountability has been established that covers all the information that is submitted to the FISC.
This is speculation, but I think there has to be something in this for both the Government and the FISC. I think the Government would win on any challenge to the existing FISA law, and no one really has the stomach to amend FISA. On the other hand, the Government is tired of being beaten up with baseless accusations of lawlessness. This way they accomodate feelings on the FISC, but don’t yield on principle.
****
previous.
Powerline also has a good piece on this up from an emailer.
The beauty of it is the Greenwaldians don’t even understand what has happened.
And this is the case with so much of what Bush has accomplished—much of which “conservatives” also, in their efforts to characterize him as a big-spending so-and-so, have missed.
Thus he snookered the Dems in re education reform at the very start of his first term, iirc getting a mechanism for school choice into it, and getting high standards introduced, both of which may in the end effectively break the power of the teachers union.
Ditto the market mechanisms of the hsa’s and even Lowry at NR has just admitted that the prescription drug thingie has turned out better than anyone (ie conservative critics of W such as himself) anticipated.
This seems right. The FISA Court and the Justice Dept cut a deal. The fight against terror is allowed to continue. GG and company may crow for a day, but in a month all this will be forgotten by the public, and life will go on.
And the activist judge that shut it down with a horrendously conceived opinion can now fold that up until it’s nice and pointy and then cram it where the sun doesn’t shine.
That works for me. Now, when do we start prosecuting the leakers?
Of all the pieces on this topic that Jeff and others have done, the one that hit home for me was the cited interview with John Yoo, the former deputy assistant attorney general for GW https://www.proteinwisdom.com/index.php?/weblog/entry/who_are_yoo_who_who_who_who/
This should make so much sense to even the most laymen of computer users. Email, chat rooms and instant messaging has changed the meaning of “wire taps”. It’s no longer about listening to an analog phone conversation. It’s about tapping in to bits and bytes and how they are used to communicate. To extrapulate on Yoo’s example what if a top Al Qaeda official changed his email every five minutes and cc’d thousands of random US citizens (ie Spam). What if that same email was sent a dozen times with only one real message. Should then the intelligence agencies obtain several thousand warrants? Even if they use the exception of getting the warrants post-occurance is it expected that the courts will be able to filter through this truck load of technical information to then give the warrants? Perhaps in the end that’s what the Bush administration is doing. They want to review every instance and give warrants on every action? Fine, here’s your 100 Terabytes of data that we tracked to “tap” this email and instant message correspondence, get back to us with those warrants after you wade through it. I can’t even begin to imagine a judge shifting through IP tracing and who knows what other kinds of complications to be able to make a decision on these kinds of things.
For the likes of Greenwald, it is all about the personality, never about the policy. It isn’t whether the program was prima faciae legal, or whether this was a supportable interpretation of the law, it was all about who was requesting or authorizing the program. If it was Chimpy it was automatically illegal no argument for it was sustainable.
I wonder who will become there new boogey-man in 2009?
I had argued defending the NSA program over at Greenwaldo’s & must admit I am in a way disappointed that this will never reach a court & have the issue firmly Constitutionally defined. But then again, given the advent of such decisions as Kelo it may be the best approach available. It seems to me that this was merely a means to remove an increased potential political bog & further remove yet another Democratic, purely political, talking point to use to argue in favor of impeachment proceedings. While I think it is important argument or debate to have, I think it is even more important that Executive’s focus remain on winning the War in Iraq.
Well here in Austin, the current boogey-man is Ted Nugent, who had the effrontery to behave like he always has and always will, at the governor’s inaugural ball, where the Motor City Madman wore a t-shirt with a Confederate flag on it, and said some things about illegal immigration that were apparently so horrid that they cannot be repeated on radio. Go, Ted, go!
It’s lazy, throw-away shit like this that drive me want to howl at the freaking moon. Can someone–anyone–produce one of these “followers” for me?
It certainly is hard to dispute this sort of stuff:
Because we don’t know what the developments are.
The chief contention for those who spoke of the program’s illegality was that it did an end run around the FISA Court.
Now it does not.
Just because things are classified doesn’t mean they are nefarious. Unless, of course, you have a certain mindset, and a lawnful of black helicoptors that no one but you can see because they are “particularly stealthy”.
Well, that and it violated the ol’ Constitution…
Pity the Republicans didn’t do this last year…they might still be in power.
Well, that, and you’re positing assertions as facts. What’s it all about?
You are very very boring, alphie. I’m going to have to actively recruit some better trolls, I guess.
Sorry,
I guess I’ll never understand why the Republicans didn’t just hire some extra staff to process the extra FISA warrants and keep the wiretaps perfectly legal.
It’s not like they didnt have the money to do so.
Because they asserted that they were legal to begin with, maybe?
alpee has as much knowledge of legal processes as he does of everything else.
I know the position the Bush administration took in this matter cost them support for the war and their candidates last November.
Was it worth it?
Dario, except of course, as usual Mr. Yoo tells about half the story. The Patriot Act expressly granted the power to wiretap or intercept communications from a person (rather than a number or email address), thus enlarging the ability of the NSA to listen to any American (as long as there was a warrant) and invalidating his argument and the good Professor knows that. Has anyone hear read his book. I have to pick that up at the library. It’s got to be a comedy gold mine.
To Jeff’s larger point, many of the most recent legal battles regarding the administration and its power demonstrate that they don’t believe their own justifications: whether it’s transferring Jose Padilla to a criminal court to avoid a Supreme Court showdown to the FISA thing here to supposedly setting up military tribunals for Guantanamo dudes while releasing over half of them, the Administration believes fervently in its inherent executive power and will attempt to exercise that power in the absence of a Court ruling to the opposite. They don’t have to believe it, because they do what they say they can (see Andrew Jackson).
You can agree with their goals and still realize that they cannot risk losing a court decision on these issues (especially without a Republican majority to shepherd through a bill like last year’s MCA). In the absence of a contrary decision, they can execute their policies as they see fit.
Strangely, and I know most of you will disagree, but I don’t think this is a partisan issue. There is supposed to be tension between the branches of our government so liberty can be preserved. Whereas, I think the administration’s policies are wrong-headed, they are doing what Presidential administrations do, i.e. asserting power.
By avoiding the Court here the “Were those wiretaps illegal?†question will never have to be answered, since no one will have standing and you can still assert the power to do so if you have the desire.
By transferring Padilla to the criminal justice system, you avoid the “Can the President detain American citizens without counsel and disallow a writ of habeas corpus?†question until someone does it again. That person will have to wait three plus years for a Supreme Court ruling, freeing the President or the next one to do what he wants.
This decision/tactic preserves their flexibility.
PS Please parse away.
There was a contention that these should be done under FISA. And contention that they couldn’t. But now, trust us, they can be done under FISA. I agree. There is no way to dispute this.
1. The legal problem with the wiretap program had to do with FISA, not the Constitution. There is a separation of powers question, but the FISA appeals court suggested that the POTUS had the authority. So we can add law to the ever-growing list of subjects alphie knows little about, and cares less on the way to talking point central.
2. The Clinton administration similarly agreed to have matters decided by the FISA court, while not retreating from the position that the POTUS holds inherent authority in those cases. So the folks freaking out on the right are overreacting.
Can FISA itself be challenged?
Strictly speaking, not true. I do, however, believe that Bush, right or wrong (IMO), always does what he thinks is best for the country. Thats why I can disagree with some of what he does (bitterly sometimes, like when he called the border guys vigilantes), and still support him, believing he is a great man.
Listen, either changes have been made to FISA to allow this to happen, or they haven’t, and the administration is trying to save face.
I believe the former. Likely you believe the latter.
This is rather cynical, but I suppose it is also possible.
But with respect to the NSA program, which is all I’m talking about here, I believe that the administration was on firm legal ground. That we’ll now never have to hear the Supreme Court’s verdict on the matter does not disprove the validity of the assertions. It simply takes the game out of the hands of the referees (who, let’s face it, have blown quite a few calls recently).
Oops, pre-ejaculation. The curser was in the wrong place at the wrong time.
To finish:
What I can’t fanthom, is how can anyone vote for Democrats, when they no longer even pretend that whats best for the country is on their list of priorities.
Thank God we have the New York Times to sort all that out on the front page for us. I’d be mortified to know that al-Qaeda folks might not have the benefit of every letter of every law protecting their right to plot our demise in private.
I’m sure alphie has a link from an unbiased source to support that.
Okay, I lied.
Wait, you think FISA has changed? What legislation was passed doing that? I think whats going on here is some interpretations, perhaps those of the FISA court, perhaps those of the vetters within the executive branch, have changed. Or the critics were correct from the beggining, and this could be done under FISA.
I don’t knnow which one to believe, because what is going on is actually obscured. Which is why I agree its hard to dispute.
Well, Karl,
The people who are willing to give the government unchecked power in the hopes it makes them a bit safer would seem to be in the minority based on the last election.
You don’t think support for the war and the Republicans would have been a few points higher if the administration had taken the rather easy path of keeping this program completely legal last year?
What people are those, alphie? You got some demographics for that, maybe?
The Administration began working on this agreement even before the NYTimes blew the terrorist surveillance program in early 2005. It was only last Thursday that FISA completed its part of the process.
This explains a lot when you think about it.
Well which is it, Al-pie? Was it the FISA issue that cost the Republicans the election? Or was it the Iraq war? Or the scandal infested congress? I have seen you and your ilk use them ALL to try to gin up a mandate for everything you lefties have spinning in those empty cranial cavities.
Make up your @#$!damn minds, already.
Why is it so hard to imagine that people were upset at GOP fuck ups across the board?
According to exit polls (http://www.cnn.com/2006/POLITICS/11/08/election.why/index.html)
voters were almost equally upset by Bush and Iraq.
I imagine the Bush administration’s stance toward the unitary executive effected very few voters.
Then quit trying to make every little pet issue (real and/or imagined) some sort of “mandate” from the recent election. You lefties can’t have it both ways (no matter how much you want to).
I find it real hard to believe that any voter was sitting in the voting booth going:
Get a grip, Prox.
Excuse me if I put absolutely zero faith in any poll… ESPECIALLY one from CNN.
Next.
Because that wouldn’t inspire them to vote for people who a) voted to support such “GOP Fuck ups” and b) have absolutely no plan of their own.
prox—
I think the FISA Court has made adjustment to streamline the process, including, if one is to speculate here, anticipatory warrants. Evidently it took a lot of wrangling, but now it appears to be done.
If you get a chance, read through the entire Q&A. You have to read between the lines—and as with the first round of debates over this topic, everything is necessarily speculative, given what we know (and, more importantly, don’t know about the program—but if you are reasonably good at cutting through the obfuscation, you’ll see that a few things are clearly asserted:
1) The Administration still believes it has the legal standing to authorize the program based on both Article II and AUMF. It wishes, too, to see the FISA statute amended.
2) The President signed off on the changes only after he was convinced the program would proceed unmolested (and was able to work as it had before, with the speed the national security apparatus found necessary for the program to work).
3) Handing jurisdiction to the FISA Court means that only the government can appeal to the secret court. Nobody being surveilled has any standing.
From the SCOTUSblog post I excerpted above:
Thats what it appears a lot of the knowledgeable people are guessing. But since we dont know what their reasoning is, or what is going on, we can’t really dispute this. I wonder if the terrorists win if we find out.
One more reason it is beyond dispute!
It could be because this Court’s swing votes are unaware or just ignorant regarding the history of
military tribunals from Merryman to Eisentrager (Hamdi and Hamdan)eminent domain (Kelo) first Amendment (McCain/Feingold et al). This is why
one has had to make such gestures regarding Padilla, Hamdi, NSA, finanncial network surveilance;and every passive,& active terrorism
countermeasure they can think of. Instead we institute the stupidest counterproductive passenger screening system, imaginable. Companies
who do try to discriminate among passenger (ie;
choose the ones less likely to go jihadi on us
get sued, interrogations are rendered useless,
stupid ‘symbolic’ resolutions are proposed by ex-
plagarizing Senators, undermining our troops. making it all the more likely that the next time, terrorists will try again and succeed;That an assistant atty general, of the Stimson line, suggests that unlawful combatant pro bono work
doesn’t reflect well on a law firm’s reputation
and be dismissed and probably reprimanded, is another sign of the times.
Unfortunately; more drastic measures along the lines involving the Korematsu case (Tom Lennix’s
detention camps in the new season of 24)
Hey visiting Leftards, want to cause your internet connection to freeze like an Instalanche? Do a google on “Bush” and “Dictator” and then try to do a “find” and “delete”.
You guys wouldn’t know a dictator if you tried one and hanged him. Just ask Charlie Rangel.
Probably. If enough information about it is released and enables the terrorists to figure out how to circumnavigate the program, then an IED goes off in Manhatten.
You want to know that bad?
Knowing the legal reasoning behind the new its-ok-to-use-the-FISA-court-scheme leads to IEDs in manhattan? Ok. What current explosions could we prevent by closing our eyes to things that are now public?
And are you sure they’d hit manhattan? why not a walmart in a red state?
One other point.
Two years and one day, almost to the hour, from the time I post this, a big green helicopter will land on an open space outside a ranch house in central Texas. George W. Bush and Laura will get out, thank the Marine crews graciously, and walk to the house. A few moments later the house’s door will close, and the helicopter’s motors will spin up and it will take off, its anticollision lights flashing against the Texas stars. The roar and wupwupwup will diminish, then fade out entirely, leaving the wind in the mesquites for background noise, and one of the ranch hands will turn out the lights on the landing pad.
And I’ll bet George won’t even look out the window.
Somebody else will be standing at the pinnacle of Western civilization, where the heat-seeking missiles can get a good lock. In the meantime—we’ve already seen that the f*ing Press will actually report much of what’s going on, given that their unshakeable basic demand (Democrats in power) is met, and (surprise surprise) not everything is entirely bleak any more. Even Reuters is acting a bit chastened. Next, the AP…
I predict you’re going to see a lot of this in the next two years: Bush and Co. yielding in appearance to all sorts of leftoid yelps, while behind the scenes the substance remains the same or becomes even more forceful. And given that Pinch now has his pound of flesh, there will be enough easing of the barrage that things will get done, and (again, surprise surprise) some things might actually work out. It will be a good time to separate the actual Bush-is-God partisans from those of us who simply considered that he was doing things mostly right, with some blunders—the former will be the ones, like Captain Ed, bloviating on how embarrassing it is to give the appearance of losing.
Reagan’s Rule: “There’s no limit to what you can accomplish if you don’t insist on getting the credit for it.” There will be a lot of credit deposited upon people who don’t deserve it in the next biennium. Grin and bear it, people. You have to decide: which would you rather have—the jihadists win, or the Democrats be seen to? The way the situation is now, them’s yer choices, bub.
Regards,
Ric
Possibly, if giving the explaination reveals enough of the workings that it becomes possible to figure out how to advoid being listened to. (here I steal the example of spamming random Americans while sending terrorist instructions to defeat the NAS limits)
I just used Manhatten as an example.
Are Walmarts in red states acceptable terrorist targets for you?
Jeff,
It’s great to have you back again, but this post is way too long for any musician. My attention span is about half of the length of this post.
If I wasn’t out of Adderol , I would probably be able to focus better than this. I might even grasp your point.
I will be back next week in a “focused” mood. The trouble with the Christmas holidays (am I allowed to say that?) is that I gave all my meds away (Merry Christmas, Boss!).
For a little while, there, I felt just like Jesus.
Now, I just feel like shit.
Oh well. Don’t count me out yet, because I could be pulling your leg (or maybe not).
And one other thing.
Denver is not far from Boulder, where you are not allowed to live unless you wear a thousand dollar Spandex suit, and own a top of the line two wheeler.
1967 was when Boulder was a cool place.
\ Am I dating myself? I think so…
Copper Rock is even dying a slow death now. Bummer…
Anyway, thank you Jeff for the best “blog”(?) on the ‘Net. No one can touch you, and we are all glad to have you back.
Thanks.
Hell, even talking about listening to them might remind somoene that forgot that we can and DO listen. Maybe we should black out FISA from the US code?
I’d say if you wanted to cause fear, that would be a good one.
I hate to say it, Ric, but at this point I pick the first option. Much of the problems we are seeing is because people still don’t understand we are at war with the jihadis. As long as that is the case then stupid choices will still be the order of the day and the vacation from history will still be going on. Maybe a big stinking explosion in downtown Manhattan will make the point again. I’ll deeply mourn the victim’s and still understand that, if an attack happens in most major metropolitan areas, that the majority of the people killed will be people that either ignored what has been going on or acttively opposed the president in his efforts to keep them safe.
Whats the fascination with manhattan? Why not st. louis?
Well, since all of the attacks thus far have targeted Manhattan, is seems that the jihadis really like banging on it. Makes sense that they’d hit it again.
Osama is secretly a HUGE fan of Chuck Berry.
Jeff wrote:
I think you’ve got it wrong here. The courts will continue to rule on this, and you may yet get a SCOTUS decision, because:
1) The Oregon case is for, in part, money damages based on past surveillance. Thus, the administration’s mootness arguments wouldn’t apply to those cases.
2) As you note, the Administration still stands by its AUMF and Article II theories. Given that, there’s nothing preventing them from scrapping the new arrangement and going back to the old TSP without court involvement. That, in turn, means that the issue is not moot, since mootness doctrine applies only when it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” (See this NYTimes article.)
The quote from SCOTUSblog suggesting declining prospects for Supreme Court review is true as far as it goes—i.e., it deals only with orders of the FISC. But it doesn’t seem to deal with those cases already pending based on allegations of extra-legal eavesdropping.
Yeah, and I’d feel better if the assholes that first decided to splash the program accross the front page of their newspaper went to jail for about 10 years.
At first blush, you may think bombing a Walmart in a red state would be , well, terrifing. But, look at it from the terrorists POV. Bomb a red state, and the locals get out their guns and go rag head hunting. Bomb Manhatten, and the locals bend over and beg for a chance to give you anything you want.
Oh, and in case you missed it, there’s a lesson for you there.
Did you just say “rag head hunting”? I mean, wow, lee, that is just awesome. Any other disgusting slurs you want to share. Maybe you can go to a construction site and take shots at minority workers there. Or, you could call Jeff names for his religion.
Or, does your bigotry only apply to certain groups?
Timmy, your right of course. One must be sensitive when sluring mass murderers.
When your neighbourhood Walmart blows up, make sure everyone refers to the attackers as “insurgents”, would you?
Raghead is a religious term?
If you don’t think raghead is a slur toward people of Middle Eatern descent, then you are a) playing dumb, trying to hide your bigotry or 2) a bigot.
You choose.
Let me explain it this way Timmy,
If some KKK types were lynching blacks, and the Black sheriff said “we’re going to get those crackers”, I would say “Fuck Yeah!, string’um up!”
You see, I would understand the sheriffs state of mind, that he was overcome with the fact that a particular group was using terror in the attempt to control the group that the sheriff identifies with, and thought of the terror group in a stereotypical harsh way, and labeled them with an unflattering term.
Your Messiah complex is leading you to judge me as a lowlife for judging islamic terrorists as lowlifes.
Why are you so intolerant as to condemn my intolerance, timmy? Why?
By the way Timmy, I wasn’t sayiny I was going to indiscriminatly kill muslims if a Wal-mart was attacked. I was illustrating the different mindsets of red states vs. blue. Bush, elected by red states, is in the middle east, hunting terrorists. The blue staters are agonizing over what we did to upset the mass murderers.
Sorry if your delicate sensibilities were wounded.
M.F. —
We might, we might not. I admit to not using “moot” in the strictest legal sense, but the point is—as with last time we discussed this—all is dependent upon what’s going on in the marrow, which we can’t see for the bone.
Jeff:
I think the point is, in the next two years we’re going to get to the marrow. If that means through pending legislation and appeals or through congressional subpoenas, the legal theories, and secret resolutions of difficult questions, will come out on paper. And whey do, they’ll be subject to withering scrutiny. The Adminstration is far better off if that scrutiny is on the blogs and in the press. If it’s in the courts, that would be very problematic for them in many, many ways.
I know most readers are loathe to think that such information should or will be made public. But I think the American people have a right to know the rules by which their government will spy on them. Anyway, you’re right, we’ll see.
Have you spent much time in Harlem?
erica,
No, why do you ask?
Just curious about what sort of blue state mindset you’re talking about.
To me, ‘raghead hunting’ sounds like some sort of panic. All that ‘if we don’t fight them over there, we’ll fight them over here.’ We are talking about the heartland no?
Amazing. To me, “panic” means running around scared out of one’s mind and unable to face the cause of the problem.
Kind of like referring to acts like 9/11 as a “nuisance” to be endured rather than it being, you know, mass murder and stuff.
That’s what hunting the ‘ragheads’ that live in our red state would be.
I doubt it. The Congress, and only the Congress, has the authority to determine the warrant procedure. If the Bush administration and the FISA court have decided to alter the warrant procedures, then that deviation would still be illegal, regardless of whether the FISA court is involved.
You haven’t read my posts with any comprehension.
Still not sure what Harlem has to do with anything, but the blue state mindset I was talking about(blue state being a general political designation for those who vote for Democrats) is a perspective that America is resposible for all the worlds problems, and 9/11 was a natural reaction of the poor downtrodden to the evil policys of the US. The solution is to get together with France to see how we can change ourselves and reach out to the religion of peace so they will quit trying to murder our citizens.
The perspective of the red staters (agian, generalizing a political designation) is that America is great, and they could give a flying fuck what the reasons are that 3000 men women and children were incinerated. We want to kill the miserable bastards (no offence to anyone that may have been born out of wedlock) that are responsible for it. There was no backlash against innocent muslims in this country after 9/11, but millions wanted to go hunt down those “ragheads” that were responsible.
Kinda like those that wanted to go kill those fucking “Japs” after Pearl Harbour.
It just sounds like you’re ignoring some rather blue parts of the country, and picking and choosing some stereotypes over others. Ever go to an Eagles home game wearing the visiting team’s colors?
No doubt some Eagles fans thought so as well. But you said the locals would get their guns and go ‘rag head hunting’ in response to a local attack. Which, you know, means locals getting their guns locally.
And if it is kind of like going after the ‘japs,’ well, its kind of like putting them in camps. Panic. Which is kind of the point.
Also, they won the war.
I’m glad they had the attitude they did.
Yeah, from a National Gaurd armoury. And go to the rag heads home court and kick their asses.
Or what do you say Erica, when the islamic terrorists blow up our kids, we should bend over and beg them to rape us too?
This ain’t no game sweetheart.
And that doesn’t happen when they hit NYC? What kind of a moron are you? You’re a waste of time.
Yes, it did happen when NYC got hit. By a president that was elected by red staters!
What don’t you get here?
Under a blue state president (Clinton), when the world trade center was hit, it didn’t happen. Nothing happened.
Of course that was only a couple of hundred men, women and children, so I guess it wasn’t as important.
And the story keeps changing…
The problem is you only see what you want to see.
Maybe it was the right kind of people to die. Lets ask Dinesh D’souza? Maybe he won’t be mistaken for one during the raghead huntin parties.
In the first world trade center attack?
Wait…is your name mohamoud?
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I disagree
Can you give more info?