Redstate

Similarly, without search warrants and court orders, President Bush had private residences searched and people detained claiming that there was insufficient time to get court authorizations for his actions. Democrats, under conditions similar to post 9/11 and the flooding of New Orleans will complete all required judicial proceedings before taking action in such situations.

Those silly democrats! I can't believe their getting their panties in such a twist over something as trivial as the rule of law. Obviously this nation was founded upon the President/ King being able to do what was good for the nation/ fatherland. If we are not a nation of men, what are we a nation of?

Republicans get so UPTIGHT about people just talking about beheading Americans - I mean, can't you even hold a private conversation any more? And how about just flying a plane around - no problem! And once it hits, say, the Sears Tower, we'll handle it through the court system just like we should. After the families bury the dead, they'll appreciate our concern for the rule of law. Bill Clinton sure showed us how to do it, and it only cost a few thousand lives.

I think we should give ALL our secrets away, just to make George Bush look bad. If the bad guys kill a bunch of us because we think treason is OK, then we'll form another sideshow commission to put the blame on the Republicans.

Now Valerie Plame - THAT is a scandal. There at her desk every day, protecting us, going DEEP undercover in Vanity Fair.

The Bush ADMIN did not allow the searches of the homes in N.O. that was Ray Nagan and his Police Chief.

The president has the power to conduct warantless surveillance of foreign powers conspiring to kill Americans or attack the government. This includes plots that involve U.S. citizens no statute can limit the Presidents inherent authority as given to him by the constitution. The bottom line he did not break any law and if he did that law was not legal anyway. There is no Supreme court precedent on this issue yet. I think if and when it does go to them they will rule in Bush's favor.

How you'd have a hard time saying that with a straight face.

Blam.

What do you say to someone who believes this? Anyone?

I get it now. My bad...

BEING A LITTLE DENSE TONIGHT.

And Sen. Reid was advised about it and since the program ahs been successful I suggest Reid just do what his puppet masters suggest: moveon.

I think I'm with Reid here.  Why couldn't Bush adhere to FISA ?  The law even allows him to start a wiretap immediately so long as he seeks a warrant from a secret tribunal within 72 hours.  Is that so unreasonable? Would you want future Presidents to be able to wiretap on a whim and without oversight?

I think the 4th ammendment covers warrants:

...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

a good explanation of how he did follow FISA..

link

but I'm not a Constitutional scholar. Where is this in the Constitution?

Now I'm wading through FISA and am getting very sleepy!

Captain brings up a section on minimization procedures.  He's right, the FISA court doesn't need to be notified, but only if:

there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;

But the papers say US Citizens are being monitored.  Is that really the case?  Does anyone have info either way?  

I've also heard mention that FISA doesn't apply unless BOTH parties are Americans, but I can't find anything on that and the clause above seems to be contradictory.  If anyone has a link, will they please post it?  

There is a US Supreme Court case on point. It is literally 4 square with the Administration's ordering secret survelliance of electronic communications.  1972 US vs US District Court is the short case name.

FACTS:  Nixon ordered a warrantless wiretap on individuals in the US suspected of plotting to blow up a CIA building in Michigan. Got the evidence fron the wiretap (no warrant, no court) and prosecuted. The case ended up with the DC 9.

 UNANIMOUS decision. The President dose not have an "implied" authority to order a search/wiretap/seizure, not even if it involves domestic security thus excluding the courts and judicial review and a properly issued warrant frm the matter. Held: in doing so, Nixon violated the 4th Amendment.

Here is the link to the full text of the decision in Findlaw: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&
amp;case=/us/407/297.html

Can't find any way to distinguish the 1972 case. It couldn't get much closer if one just changed names and dates.

It never pays to make weak arguments. Ignoring a case doesn't make it go away. If it is dead on point on the facts, and can't be distinguished on that basis, it takes a lot of legal gyrations to try to find away around it.

Scalia, for one, will wave that case in front of the US counsel like mad if it ever gets to the Court.

The newer cases excusing warrants in exigent circumstances - stopped car searches, etc - all focus on (1) the practicability of getting a warrant - tough for an officer on a roadside stop to do and then find the car again  (2) controlling the immediate area for officer safety and (3)imminent destruction of the evidence and non-practicability of getting a warrant and (4) [the old standby] of accidental discovery while being lawfully in an area.

Sorry aout the typos. You'll note the "retired" in the retiredjd ID. Mind says hit key, fingers say "I'll get back to you on that, ah - close enough."  Wish this thing ran spell check. (Or the print was bigger for proofreading!)

Okay, FISA is not as important as it is being presented to be. FISA was created in response to the S Ct decision mentioned above. (There is a link to the full decision.) It is VERY on point. FISA was passed to keep the NSA from spying domestically (apparently that was what Nixon had used a lot) and to set up a secret intelligence court to satisfy the S Ct as requried by that decision.

 Check out the Imyan Faris (?) case - the nitwit who was working on crashing the Brooklyn Bridge using a welding torch. That was the case specifically mentioned by an administration official as having been "made" with these warrantless surveillances of his phone and computer. Apparently that was not disclosed during plea negotiations (the evidence was really subject to suppression and would have be ruled inadmissible based on the Nixon era case.)

 That will undoubtedly be back in the courts on a motion to vacate because the gov't did the warrantless search. Odds on, he will get kicked lose because the gov'ts evidence was illegally obtained.

 Bad guy or whatever, he was a US citizen or permanent resident.

  The Constitution says that the 4th Amendment applies to "persons", it does not say "citizens."

 FISA is a red herring. The real issue is that Supreme Court case. Neither the President nor the Congress can just "delete" the Fourth Amendment. It takes a Constitutional amendment.

  Violations of the 4th Amendment by government officials are prosecuted under US Code Title 42, Secs. 1983, 1984 and 1985  inter alia. Think Rodney Jenkins - police go to jail after being convicted in Federal Court for violating his 4th amendment rights.

 Those statutes have been around for over 125 years. I worked on my first 1983 case 30 years ago.

I forgot to add that monitoring foreign nations embassies and locations is NOT considered spying on "persons" in the United States. Okay, I know that sounds nuts if their consulate is in NY  or LA  or where ever but it is true. A nation's embassy or their offices or whatever they have are considered the sovereign territory of that nation. Even if the XYZ country's office is on Wacker Drive in Chicago, that office is, for legal purposes, treated as if it were located in XYZ's home lands.

The case is 'on point' only if the facts are as alleged in the media. I have my doubts about that. If you compare the news stories with what people who actually know anything say, you'll notice quite a bit of "stretching," "explaining," and "analysis" in the news stories that are not present in the statements by officials.

For example, one description we are being given by the media is of the President authorizing "wiretaps." This conjures up pictures of spooky guys with headphones going out to somebody's house and clipping onto the phone line to listen in. That in turn implies that they know who and where the guy is before they start, and that of course leads to questions like, "why not get a warrant?"

You'll read headlines like "Bush admits" that he authorized "spying on Americans" or stories that refer to "secret spying in the United States."

Let me suggest that these are assumptions, not facts. Media people are not known for their sophistication regarding technological wizardry, nor are they particularly accurate even when a particular reporter is held out as a subject matter expert.

As for "admitting" anything, what Bush actually said was that he had authorized the NSA "to intercept the international communications of people with known links to al Qaeda and related terrorist organizations."

Nancy Pelosi has said, "I was advised of President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities shortly after he made it and have been provided with updates on several occasions."

Do you see anything in there about wiretaps? Is there anything to indicate that when Bush authorized an interception, he knew in advance who the two parties were going to be that were intercepted? He knew one end of the conversation: "people with known links to al Qaeda and related terrorist organizations." Was the other party also known, or is that what we were trying to find out? Is there any indication that any of these interceptions took place in the United States?

Is it necessary to obtain a warrant to intercept communications on a terrorist's cell phone in Afghanistan? What would a judge say if you asked for one?

Do you need a warrant to collect the telephone number of an unknown person in an unknown location who calls the cell phone in Afghanistan? Who is it you're trying to catch doing this? You don't know. Well, where are they? You don't know. Are they U.S. citizens? You don't know. Are they even calling from inside the U.S.? They might, but you don't know. When will they call? You don't know. You don't even know if anyone ever will call.

The NSA is a little slicker than the 1940's wiretap. That's why Pelosi refers to "unspecified activities." The fact that we can even do some of this stuff is double-secret secret. Or at least it was, until last Friday when the New York Times plastered it all over the front page.

Do not be too quick to assume that you know what went on here. Some of the stuff the NSA does is magic. No one twenty years ago, when the FISA was written, could have imagined it. There weren't even concepts for it. The last thing we need is some kind of "public investigation" of what happened. Enough of our state secrets have been spilled in the name of sinking Bush already. We don't need to spill our SIGINT magic just to play "gotcha."

I don't read anything about intercepting communications in the 4th Amendment.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Constitutionally speaking I see no protection for phone calls or e-mails - for obvious reasons. I'm sure that the US code has been written to assume these things are covered by the same warrant requirement, but I think that is the wrong track. If Americans want Constitutional protection from having communications monitored - the Constitution must be amended.

I do not believe in inferring the Constitution - in this case, assuming that being "secure" in your person and papers also means being secure in your phone calls.

Put another way: if your "papers" contain an Al Qaeda plot and are within your house - a warrant will be required to search and seize. If you throw those same papers in the trash - fair game once they hit the street, correct? Well, your conversation leaves your house via electrons in the air or in a phone cord. Those signals can be intercepted, but they are not your property or effects. If two people have a conversation about terrorism in a public place and an employee of the NSA overhears and records it - wouldn't that be admissible?

The Constitution simply does not cover these issues - they did not exist when it was written. Maybe the Constitution should cover electronic signals, and maybe not. However, to assert that it does now is being dishonest in my opinion. Personally, I think that the matter is open for debate. Phone conversations present some tricky problems. For instance - lets say someone is talking about terrorism on a cell-phone in a public place and I overhear the conversation while drinking my coffee; at the same time the NSA intercepts this phone call and hears the exact same thing as I heard. Why would my testimony be admissible, but the NSA's evidence be inadmissible? The person using the cell phone should have known that a) people around me will hear this and b) anyone with the right technology can hear my conversation as well.

I'm not familiar with the entirety of the US code on this matter, but that is a different issue than the Constitution. Rather than trying to read the Constitution until it says what you want - Americans should get their representatives to Amend the Constitution until it says exactly what they want.

Listen, we understand that you are a retired whatever, but you need to go back to daily kos where all the America haters and Bush haters live. Because you sound just like them. The simple truth is this, Everyone that needed to know about this "MONITORING" knew about it. All the defeaticrats and the FISA knew it and had nothing to say about it because it is legal. They are only making a fuss about it now because they think (wrongly) that they can get political points out of it like Bush lied failed to do. You sound like all the other snivveling little America-haters and Euro-Trash out there. Another fact is, that if he had done nothing and we had gotten hit again you would have said he did not do enough and he was asleep at the wheel or in "a bubble". There is nothing this Honest and Good man could have done to please you. The fact that they stopped some "Islamofacists" from attacking means it worked and we should all thank GOD he did it. Like I said, if he hadn't you all would have screamed he did nothing. I think you all need to go back and start shouting in congress " Reid and Pelosi knew, They knew and did nothing" or the ever popular "When did Reid and Pelosi know and what did they know?". That would be par for the course of you America haters. Of course I won't hold my breath.

to take the protestaions of illegal wiretapping when they are not joined with protestations of illegaly giving classified information to your favorite newspaper, not just this case but others.  Bush has been operating under what is essentialy a declaration of war, with Senate awareness, and with the knowledge of the same FISA court that's supposed to strike this down.  It seems he has adequate coverage on this.  Less so the people who have a hot line to the media.  Bring on Fitzgerald and give him a real case.

a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information--

***

(3) concerning the communication intelligence activities of the United States or any foreign government...

***

Shall be fined under this title or imprisoned not more than ten years, or both.

"so's your old lady" moment but where were all these stalwart civil libertarians when Bill Clinton had a messenger sevice going between the White House and the IRS?  No war, no 9/11, just a guy out for revenge.  There sems to be a button somewhere in their anatomy marked Ethics,on/off, which they hit at will.

...jurisprudence (from the 1930s if I recall correctly) that establishes the applicability of the 4th Amendment guarantees to electronic communications. Any of our resident Constitutional scholars care to agree or disagree?

I think we are walking on a knife-edge, and we have been here before. I read in Marty Sherwin's recent Oppenheimer book that the FBI were constantly conducting illegal surveillance during and after the Manhattan Project, knowing full well that any evidence they turned up could never be admitted in court. But the surveillance was secretly authorized because the national security implications were so grave. And remember the Alger Hiss trial. The government had to pursue the oblique perjury allegations although they had direct evidence of Hiss' criminality. But they dared not reveal their evidence because to do so would have tipped off the Soviets that we had been decrypting their secrets.

As I asked in a prior post, why are the NSA's potential civil-liberties violations a concern? At a moment of great national danger from known terrorist threats, we should probably be willing to trade away a bit of privacy to protect many lives. But to be brutally candid, I would never have trusted the Clinton Administration to do the same things Bush is doing, because those people had a known propensity to use the weapons of the government against their political enemies. I don't have that fear with the Bush people.

One of the points that's been made is that leaking this information is illegal. If Reid had leaked it previously, wouldn't that have been illegal?

That's a different beast than acting on it once it's in the public sphere.

Democrats' concern that "chatter" might include irrelevant information will first acquire court orders exonerating them before using it to prevent attacks.

...that Sen Reid's concerns about this situation appear to be primarily - if not solely - motivated by the fact that the NYT ran a story on the subject.  Like Tom Maguire re Rep. Pelosi, I look forward to seeing whatever documentary evidence to the contrary Senator Reid can provide...

Moe

that you're referring to Katz v. United States, a 1960s decision overruling Olmstead (a 1920s case which had found that the Fourth Amendment only applied to tangible evidence).

My Republican roommate and I both have serious issue with what is going on.  I am shocked at what the Republican party is doing to justify the presidents actions.  How hard is it to just have a closed door session of the Senate to vote or even discuss it with the [I]ENTIRE[/I] body.  I feel that my Republican friends have lost many of the libertarian values just to not voice disapproval.  

The question is what is more important to us.  Our lives or our freedom.  If we protect the U.S. citizens lives but in turn destroy the freedoms that make our country truely great we would of lost the war.

of the legal authority that the president's directive was based on in today's American Spectator online.

FISA requires that intelligence gathering regarding conversations to which "U.S. persons" are a party can only be done pursuant to a search warrant issued (usually in secret) by the special FISA court, made up of sitting U.S. district court judges and located in the Department of Justice building in Washington.

Second, the FISA court issues warrants based on findings of probable cause, like other U.S. courts issuing criminal search warrants. There are too many situations -- like the one we were in before 9-11 -- in which too many possible terrorists are talking to each other and their helpers to sort them out one by one and get individual warrants. Which is why the law, and the regulations that implement it, allow the Attorney General to bypass the FISA court.

The regulations implementing FISA clarify the law's exceptions to the requirements for a FISA court warrant. U.S. Signals Intelligence Directive, dated July 27, 1993, is the primary regulation governing NSA's operations. It is a secret document.[snip]

Under Section 4 of USSID 18, communications which are known to be to or from U.S. Persons can't be intentionally intercepted without: (a) the approval of the FISA court is obtained; OR (b) the approval of the Attorney General of the United States with respect to "communications to or from US Persons outside the United States...international communications" and other categories of communications including for the purpose of collecting "significant foreign intelligence information."

USSID 18 goes on to allow NSA to gather intelligence about a U.S. person outside the United States even without Attorney General sanction in emergencies "when securing the approval of the Attorney General is not practical because...the time required to obtain such approval would result in the loss of significant foreign intelligence and would cause substantial harm to national security." (emphasis mine)

But to be brutally candid, I would never have trusted the Clinton Administration to do the same things Bush is doing, because those people had a known propensity to use the weapons of the government against their political enemies. I don't have that fear with the Bush people.

Needless to say, I'm having a difficult time squaring this statement with the findings of the Valerie Plame case.

...returns it's findings. Then you can compare them with the "findings" of the MSM commentators.

a good explanation of how he did follow FISA..

I'm not an expert on FISA, but the section Captain Ed quotes has to do with communications exclusively between foreign powers.  It has nothing to do what happened here, which concerns communications that involve at least one U.S. citizen.

The MSM convicted him long ago of crimes he hasn't even been indicted for! You mean there's yet another legal authority??

Who knew?

It's unlikely the trial will even start before Libby finishes taking sworn depositions from all the reporters who might reasonably have information that could aid his defense. There are probably quite a few reporters in that category. I'm sure their depositions will yield "findings" we do not now have.

Let's leave Libby aside for the moment.  Has anyone disputed Rove's announcement that "Wilson's wife was fair game?"

Ditto.

It all may turn out to be legal and to be perfectly fine.

However, I am bothered by the fact that a number of so-called conservatives seem to have no problems whatsoever with this.  

1. The FISA Court approved virtually every wiretap request - and it is set up to do so retroactively, so why go outside of it.  
   
2.  An expansion of governmental powers doesn't end when the other party takes control.  Meaning, would you really want a Hilary Clinton (as a red flag example) administration to likewise have no restrictions on their ability to wage war, both internationally and domestically.  
   
3. Again, wiretapping saves US lives, but the administration already has the abillity to do this.  I just don't get it.

"Government is best that governs least" is not just a slogan.

The only thing found so far in the Plame case is that Fitzgerald can't find his butt with both hands.

The FISA Court approved virtually every wiretap request - and it is set up to do so retroactively, so why go outside of it.

The assumption that the program being discussed involved "wiretaps" is the media's... and yours. Read FISA very carefully, esp. 50 USC 1802 A(ii). Are you listening to the President's press conference, on now? Without going into details as to precisely what the NSA has been doing, he is telling the reporters to understand that there is difference between "detection" and "monitoring."

no restrictions on their ability to wage war

Red herring. No one is suggesting such a thing, except you, Democrats, and the New York Times... to the extent that there are distinctions.

wiretapping saves US lives

"Wiretapping" again. Nancy Pelosi calls it "unspecified activities." What unspecified activities? If we told you, we'd have to kill you. What we do know is that there is a distinction between detection and monitoring. It is explicitly referred to in 50 USC 1802.

Has anyone disputed that Valerie Plame participated with her husband in a Democratic Party strategy session prior to Wilson's "coming out party?" It's the event at which they met Nicholas Kristoff, who then wrote the first article about Wilson's trip.

What you questioned was the idea that Bush's people can be better trusted than Clinton's not to use government power to harass political opponents. I don't really care what Karl Rove says. Specific law-breaking against Scooter has been alleged by Fitzgerald. Let's see where it all falls out. I predict at that point that reasonable people will agree there wasn't much there.

There are far more allegations of malfeasance by Clinton people, over a much longer period of time, and they make the Plame allegations look like a Sunday picnic. Clinton is no longer President, but his wife may soon be. At that point the people who are howling about the NSA violating the Constitution may have much, much more to be exercised about than they do now.

Please list the Clinton Administration retaliation strikes against political enemies.  Just so we know we're not comparing apples to oranges.

Last I heard, he could have easily taken it up within the committee which he's on that got him access to the info in the first place.

The old word was "wiretaps".  The general phrase is "search and seizure."  If you use some high tech electronic device to pick up a phone signal and listen in - that is a search.  If you use a high tech device to pick up a computer signal, (love the wireless laptop), it is a search. That is the magic criteria - SEARCH. It doesn't have to be the identical means of search to make a case on point - it has to be that it is a "search."  Arguing that a high tech surveillance method is not the same method as the method of searching described in the S Ct case so the case does not apply is a red herring issue - and you would be very, very lucky to not have a judge blow up, rip you to shreds, be told to drop it, move on as to other reasons that you claim your client could do what they did and if you pressed the point to be told "one more word and you are in contempt, I said "move on.". (Yes, it is really like that - maybe not quite that dramatic, but close. I knew one Federal Judge who if subjected to such a ludicrious argument who would have then informed counsel that they should re-think their career plans and that perhaps being a plumber would be a better job choice.) That argument is a complete non-starter.

 You are assuming that everything is being done on signals that are orginiating OUTSIDE the US. It was a small story late on Friday - AP had it and then it was buried in the rush of the other news - that an "adminisratation official" said that the things being tracked are (1) calls/transmission orginating outside the US and being terminated inside the US and (2) calls/transmissions originating inside the US and being terminated outside the US. (By the way, this was an "administration official" who was defending the surveillance program.

  (I don't know what the TV talking heads are saying - useless babble. The only important things are what different people with knowledge are quoted as saying. Skip the endless media speculation.)

Anyway, back to the analysis. Whether a warrant would be required depends on the facts. (Yeah, lawyers truly can NEVER give a simple answer to a question and hate to assume anything is the facts.):

 (1) Transmission from outside the US is picked up, intercepted and the recipient of the transmission is in the US. Clean search. The FISA authorizes surveilling targets outside the US. The fact that the recipient of the call was in the US is one of those exigent circumstances where the officer was lawfully in a place and saw or heard something unlawful. NSA is lawfully out there in the atmosphere covering all the world but us and listening. Picks up signal in foreign country, listens and hears what is said. Recipient of signal is in US. Oh well, for the recipient. NSA was lawfully listening to a foreign signal and the recipient happened to be here. As to the recipient - exigent circumstances apply and no warrant is required for that call, good search for that transmission or call, evidence admissible. (Now want to lock onto that US resident and see who he calls or transmits to after that, that takes a warrant because he is in the US.)

(2) NSA is surveilling transmissions coming and going in a foreign country. (That is the being in a lawful position.) A signal is picked up going to a recipient in that foreign country, and they listen in as the person in the foreign country answers. The sender turns out to be in the US. SEE ANSWER ABOVE IN 2.

(3) Having heard a US resident either receiving from or transmitting to a subject in another country who is lawfully being surveilled, now the officer wants to see whom else the US resident is communicating with, they turn the listening beam on the US resident's cell phone or whatever here in the US. THAT REQUIRES A WARRANT. No ifs, ands or buts about it. (I'll skip the agency jurisdiction part - let's stay on the warrant/no warrant issue.) SEE CITED CASE ABOVE

(4) They find a cell phone in the hills of Afghanistan or some place outside the US. Check the numbers etc. There is a US phone number in the cell phone directory or where ever numbers go to hide in those things. Ah hah - let's see what the owner of that US phone is up to and who he is talking to. Want to listen to that phone number in the US?, THAT REQUIRES A WARRANT. SEE CITED CASE ABOVE.

(5) They get a name from someone (say they are here or in Tahiti doesn't matter) who claims that this person A is in the US and up to no good and will be calling person B in Paris. The officer focuses this high tech equipment into position over the US to listen for that outgoing call (ie: listening over the US, not over Paris and not aimed at a recipient outside of the US like above). THAT REQUIRES A WARRANT. SEE CITED CASE ABOVE.

 Sorry about not explaining this better before with the case citation. Old habits of skipping the parts of different realms of activities that are clearly legal and going directly to the questionable and possible illegal scenarios as the crux of issue. One gets used to mentally running through the quick "if this, then this, but if that, then XYZ would be an issue." The parts that are 'no brainers', you just skip past and focus on the conduct that can create the legal issue. Or doing it in reverse, such as "what could the NSA be doing that would violate its charter and the 4th Amendment? ... okay, here are the scenarios and just moving on from there to the analysis.

  Looking at what has been said and taking it in the best light for the administration, I'm uneasy because:

  (1) There would have been no story if something hadn't sounded questionable

  (2) The above described "administration offical" made that statement about "originating in the US and terminating in a foreign country", that raises the question of HOW the US orginating transmission is getting picked up.

  (3) It is not so much the allegations as the responses from the administration that are not ringing true. The initial gamut of responses went (a) what we are doing is legal (b)the President has the authority to order warrantless searches and (c) it is too much trouble and takes too much time to get a warrant.

 Now I spent nearly 30 years sorting out whether a witness was lying to me. (And represented law enforcement.)  If the NSA was doing nothing more than what was authorized, why not just say - oh, that Times report is garbage. The NSA ONLY is acting within the FISA and does not break the rules.  The "well, what we have been doing is legal"  was the response. The claim that the NSA has been acting outside its jurisdiction and doing so without warrants HAS NOT been denied. A "not true" is more precise than the "well, whatever we are doing is legal." Pretty simple to say "We have not been doing surveillance in the US through the NSA!"

  Then the hole gets dug deeper by the administration claiming that the President has the implied authority as CIC  to order warrantless searches (that is what surveillance is.)  That immediately triggers the questions of 'What warrantless searches? If the NSA is staying within FISA and doing its listening over seas, warrants aren't even an issue. Why are you trying to justify "warrantless searches"? Warrants are required for searches in the US. If you are worried about warrants versus warantless, which is only a search-seizure issue within the US,  so that you are trying to justify something you are doing that involves warrants, that means you are doing something within the US that would normally require a warrant.

  As to the defense that Congress implicity "authorized" warrantless searches by the Afganhistan resolution about using force, see above as to why even bother trying to justify whether a search involves the whole issue of warrants. (Oh, that is a turkey of an argument too in the courts. S. Ct. shoots down "implied authorizations" that are not within the clear meaning of the words of a statue or its legislative history faster than a plane can fly.  In addition, if a search would require a warrant under the 4th Amendment, no one, not Congress, not the President, not anyone, can eliminate a warrant requirement for that search short of a Constitutional Amendment, and forgot about "implicity" allowing the elimination of a warrant. One can not change the Constitution by Congressional action that is explicit, and 'implicit' isn't even a remote possiblity - think when pigs will fly.)

  NOTE: the claimed authority to conduct warrantless searches as arising from the postion as CIC was shot down by the Court in the case listed above in this thread. Nixon tried that argument and lost - big time. Telling the S Ct that the Consitution "implicity" authorizes the President to ignore the explicit 4th Amendment when he claims to be acting as Commander In Chief is a quick lesson in "how to lose a case within 10 seconds."  Tony Scalia would literally crucify them over that argument if the matter ever got to the Court.

 Finally, the lamest reason of all that is proffered is "we don't have enough time to get a warrant."  I have heard that one more times than I care to count from my own officers when I would explode and say "Why didn't you get the --- ---- warrant? How could you be so stupid???" (That is the polite version of the conversation.)  Except for a few very, very limited circumstances (cars that drive off etc), that one is right up there with "the dog ate my homework." To make a warrant request, one loads the computer, types the 'fill in the blanks' on the form and hits print. Now trot over to the Judge and get it signed. If one can rattle up a judge in a rural community within 20 minutes to appear and present the warrant request, they can find the pet judge on the secret intelligence court a whole lot easier and faster.  

  As with anything, when truly lame excuses start being given to justify an action, the witness's credibility is somewhere in the very negative end of the scale. Resorting to "the dog ate my homework" verison of why warrants aren't being obtained combined with the (i) attempts to justify what they have been up to by claiming an authority that the US S. CT has already shot down and (2) giving unprecedented, bizzare readings of a Congressional resolution so as to claim that it impliedly AMENDED the Constitution about warrants by impliedly giving the authority to the President to ignore the 4th Amendment (and anything else he wants to do) is such stunning mishmash of ridiculous defenses. Without a flat denial and by making weak and discredited arguments (S Ct - no implied authority as CIC to order warrentless searches) it actually gives credence to that allegations that US residents and persons within the US are being subjected to warrantless searches that the S Ct has said require a warrant or the 4th Amendment is violated.

http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html

At least that is how I read:

The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States

The AG is saying that Congress approved a use of force, and wiretapping a person in the US, even a citizen, falls under that approval.

In addition, instead of using FISA, an NSA shift supervisor decides who can be wiretapped.

Although I can see this may be faster than using FISA, I'm not comfortable with the use of force as an excuse to by pass FISA. Especially since there seems to be no checks and balances with this new procedure.

I DON'T HATE BUSH! (We are both Winthrops and WASPS generally stick together.) I WILL ALSO NOT IGNORE THE LAW JUST TO SATISFY PARTISAN POLITICAL ACTIVITY.

NO ONE IS ABOVE THE LAW

IF YOU WANT TO JUSTIFY AN ACTION SOLELY BECAUSE YOU LIKE SOME POLITICAN REGARDLESS OF WHAT THE LAW SAYS, THAT IS SO PATHETIC. YOU MUST LOVE THE PARTISAN POLITICAL GAMES MORE THAN YOU DO THE CONCEPTS EMBODIED IN THE  CONSTITUTION AND OUR HISTORY.

GOT NEWS - ANY COMPETENT LAWYER WILL FLAT OUT TELL THEIR CLIENT THAT THEY ARE IN A LOSING POSITION. PPRETENDING TO THEM THAT THEY ARE IN A STRONG LEGAL POSITION WHEN IN FACT THEY ARE SKATING ON THIN ICE IS IRRESPONSIBLE.

IF YOU DON"T LIKE THE REALITY OF THE CASE LAW OUT THERE, THAT DOESN'T CHANGE THAT IT EXISTS.

pretty obvious is that your preference tends toward hoping that a lot of Americans get killed, or if not hoping then being incredibly cavalier about our lives, so then you can complain that the "dots" weren't connected.

Got news. This was reviewed by DoJ. They are at least as competent as you.

As to the reality of the case law. It's apparent you don't know it or you wouldn't be making some of these woodenheaded statements.

And bucko, the next missive in all caps is your last. Clear?

 Go read the Us S Ct decisions. THE 4TH AMENDMENT search and seizure requirements apply to eavesdropping electronically.

Sheesh people. It is NOT OPEN FOR DEBATE!  The Court already dealt with this DECADES AGO!

An example is US vs United States District Court  407 US 297 (1972).  Try "wiretap" means an electronic surveillance method that is placed on phones, sometimes manually, sometimes with microphones or or similar equipment. Try US did it without a warrant. The Court said it violated the 4th Amendment.

There are several thousands of rulings from courts at all levels (state and federal)that save surveillance of phones, computers etc are searches within the 4th Amendment.

Again, here is the line to the US S CT decision mentioned above. That cite is handy. (Want more cases, I'll charge you only 1/2 rates for legal research.) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&
amp;case=/us/407/297.html

It is well settled law that electronic surveillance is a SEARCH.  We are not breaking new ground here folks. Everyone has known that was the law who dealt in searches. and seizures - down to your local police department and county prosecutor.

Just because a lay person doesn't know the law because they haven't read the US S. Ct decisions does not mean that it is not the law.  That is what the Court's job has been for over 215 years. It figures out how to apply the words of the Constitution to different situations relying upon the Constitution's words, the Continental Congress minutes, prior S Ct decisions, the words in a statute, the legislative history of a statute (EX: committee hearings, floor debate, changes added and dropped before finally pasted) and similar materials like considering if the high tech surveillance device is doing the same thing that the old-tap on the phoneline did which was the same job as the bug on the phone in the house which was the same idea as breaking into the house, hiding in a room and listening to what you couldn't hear if you where outside.

RE: The comment above that " Rather than trying to read the Constitution until it says what you want - Americans should get their representatives to Amend the Constitution until it says exactly what they want."

Now there is an impossible task. Trying to spell out every possible situation for every possible problem and listing the rule would create a document that would fill a football field (well, actually maybe 2 or 3 football fields.)  The Constitution is a framework, not a daily instruction manual for anything that someone might dream up. Statutes and rules and regs fill in the gap. So long as those statutes and rules and regs stay within the framework of the ideas ezpresed in the Constitution, they are perfectly fine. If they stray outside that framework, they are unconstitutional. Say a state passes a law that you can't start a new business in internet technology in that state unless you have 5 years operating expenses and living expenses in the bank and have lived in that state for 10 years, that would most likely violate the Constitutional language and intent. How? Because such a law would interfer with commerce among the states (your business would be doing business more than just locally) and would interfer with the fundamental ability of someone to choose where they want to live and work without the state placing an undue burden on that ability for no rational reason other than they want to or they want only their long term residents to go into that business and keep everyone else out of their state. (Okay, I picked an easy example but that made it simpler to explain how the reasoning works.) Now if the state wants you to designate an agent within the state to act for your business - receive mailings about license updates etc - but you live in another state and that is only a branch, that is reasonable under the commerce clause because it lets the state have someone to contact within its borders and is not unduly burdensome on your right to engage in commerce among any and all the states.

RE: Got news. This was reviewed by DoJ. They are at least as competent as you.

As to the reality of the case law. It's apparent you don't know it or you wouldn't be. It's apparent you don't know it or you wouldn't be making some of these woodenheaded statements.

HOw weird - reading the case law and reporting what it says is "woodenheaded."   The beter definition is that "woodenheaded" is a wifull refusal to face the act that the Court has rules on the claimed "implied authority as CIC to order warrantless searches" an rejected it. Cae has never beem modified in its holdings nor overruled. That makes it the law.

If you don't like the bad news, don't blame the messenger!  

Pretty funny considering that John Yoo to be infallible as he is not in good odor on his memos since the Administration disavowed his torture theories.

Also DOJ made the pitch for Nixon and lost.

Tony Scalia's old stomping grounds as a faculty member (Univ of Chic) has had their top constitutional law scholar/dean of law school/university president come out and say it is illegal.  (The DOJ doesn't PAY enough to hire the top Univ of Chic people.)

Are the DOJ people at least as competent as me?? Hmm maybe one or 2 held their own when I was doing litigation. The rest, oh well, it was a career start for them.  They never did win going up against me - maybe they were all really god but were just arguing real bad cases, eh?

Oh do please stop being so scared to death of "terrorists" coming for you. It is embarassing to see the citizens of this country cringing in panic. The Brits didn't fall apart last summer when the tube was bombed and they certainly didn't run and hid and say "keep me save" during the Battle of Britain!

and are causing less of a mess but obviously DOJ didn't pay enough to hire you so they wouldn't get a whippin all the time. However, given your syntax, grammar, logic and spelling my guess is that you must have had a great paralegal. Consequently, I doubt any one here will take your rantings with much credibility.

Are the DOJ people at least as competent as me?? Hmm maybe one or 2 held their own when I was doing litigation. The rest, oh well, it was a career start for them.  They never did win going up against me - maybe they were all really god but were just arguing real bad cases, eh?

Do want your clown hat now?

Oh yeah, you were a world class litigator and kicked the USG's butt. Right. That statement alone is enough to mark you as a poseur.

You are bloviating. Your scenarios 1-5 do not exhaust the possibilities. Read 1802 A(ii) again in light of whatever you know about the NSA.

You are also apparently unaware of how cheap and easy to acquire cell phones are. A guy who plans to blow himself up in two weeks will sign all the 2-year contracts you put in front of him. In a half-hour in a mall, he can acquire three cell phones and not have even spent any money.

When he uses one to call his 'control' in Whereverland, whom you are targeting because you know he's one of them, you'd better latch on to the guy in the U.S. quickly, because that phone is going into the trash as soon as the call is over.

All these laws were written twenty years ago for a world that no longer exists.

People who push this in the hopes of nailing Bush are driving themselves right into a ditch. He is doing exactly what the public expects him to do to try to keep people from blowing things up. If some fool wants to stand up there and say we need to protect the Fourth Amendment rights of terrorists, let them try it and see where it gets them.

You say that the cases are identical?  And in your second post you even admit to the fact that in MI it was strictly domestic search and surveillance but the Admin is claiming it was at least one part out of country in this instance.

You cavalierly dismiss this as well, we all know BushLied so we can't believe that.

You threw up a lot of smoke but in this case absolutely no fire.  Why bother with the facts when you can just throw up a BushLied and keep on rolling?

As to your being uneasy because "there would be no story" if anything wasn't going on, TANG my friend.

When you find a case that is more in line with the facts presented, i.e.- surveillance of entitities outside the U.S., please present that for our consideration.  Much like the soldier from the past few days telling us he's a soldier and therefore he is right in all things military, it doesnt cut it over here.

go luck what Kerry and Levin and Dorgan are attempting to bottle up concerning the use of the IRS.  The one with the independent counsel and the cutting off of funding.  I am sure you have heard all about it but think we haven't.

MY friend, people are paying attention, the days of just a one piece MSM chorus are over!!!

How do you obtain a warrant for someone you do not even know exists?

Suppose NSA has a listenting station Bahrain. They are keeping tabs on Abu al-Mohammad, because he gets monthly checks from a cave in Pakistan. His phone rings. What ho, it's "The Scimitar", who mentions that he is near Detroit and on his way to Tampa to "get some sunshine."

This is the first you've heard of this guy. You still don't know his name. But now you have his phone number. Too bad, it's a cell phone sold yesterday and billed to a vacant lot in Chicago. If he's like most of them, he'll never use that cell phone again.

So what particular person, place, and thing are you covering your butt for when you go to get your after-the-fact warrant? "Your honor, we listened for ten minutes to some guy whose name we don't know, whose address we do not know, whose current location is unknown, and whose phone number was 555-1212 for ten minutes when he made the call... but that phone has probably been trashed by now."

This is what the QA guys call "non-value-added work."

you could tell the terrorists what "tube" you will be on when they strike?  It would bother me to see my loved ones killed but you have such a c'est la vie attitude towards it, why not?  

Your maiming or death would unite all Americans again like 911 (u still remember that little inconvenience?) did.  

Sir, my blood is bluer than yours is and probably more generations here in America (that seems to matter to you) and your interpretation of the law is faulty and your case chosen is cheery-picked.  Allow mw a little while to have one of my employees (yes, employees, I pay their salary, guess who makes more?  That seems to matter to you also) look through more current case laws and correct your errors.

when your body is at room temperature, my friend.

and your Republican room mate. A closed door Senate session? Please. The NY Slime would have it before the door was opened. You should have serious issues with the traitors in the White Flag Party who would sell your and your room mates butts down the Tippecanoe River to get a few more voters.

How is your example like wiretapping someone then getting the warrant, after the fact, to do it?

I'm assuming the wiretaps we are discussing are placed on the known person in the US who are communicating outside of the US with al Qaeda. Am I wrong? Are the wiretaps in question placed outside of the US with incoming phone calls from the US?

I'd have to research that, but at first blush I'd say getting a warrant to keep such data would be one way to keep oversight on such a thing.

These QA guys seem to have forgotten that we place a high value on our rights.

You seem to forget that people who are here to fly airplanes into buildings are not criminal defendants. They are enemy soldiers. They have invaded the country. They are here to perform acts of war.

I'm assuming the wiretaps we are discussing

Wiretaps? Who was discussing wiretaps? It wasn't the President. It wasn't even Nancy Pelosi. You read that term in a news story. Are you sure that's an accurate characterization of the activity? The activity is classified. The President is extremely upset that this is even being discussed in public. Do you think that our government's ability to "wiretap" telephones in the United States is a state secret? What activity do you suppose he is trying to keep secret?

I'd have to research that

Don't you get it? You can't research it. Whatever it is, it is something it takes the NSA to do, and it is highly classified. Any two-bit P.I. can tap a phone in the U.S. This is something else.

Is that really necessary?  I enjoyed reading RetiredJD's analysis and hope he continues with more.  

I'm no lawyer, but I'll tell you, I'm having trouble with this situation.  Executive power without oversight or review really chaffs my Libertarian side and I'm not finding anything in the Constitution or the Fedralist Papers to support it.  I bet there are other good Redstater-Americans who are troubled too.  

Whether or not Bush is out to do the right thing is way-way-beside the point.  I don't want a precedent like this hanging out there for abuse by future Presidents.  

My 2 cents is that the Constitution IS America.  If we start chipping away at it, the terrorists really do win.

or you wouldn't be giving us your opinion for 2 cents. Fairly priced, though. Not everything a President has to become a precedent. I doubt GWB is boffing the interns.

Your Scimitar Gets Sunshine example states phones. I'm assuming you use some sort of wiretap to make your recording. So, I thought we were discussing wiretaps. If you meant radio, email, snail-mail, semaphore or some other way of communication you should have mentioned it.

Also, I was using the less antiquated definition of wiretapping, which the average citizen doesn't have access to. In the digital age you can start a tap on a switch, either telephone or computer network (then called a sniffer). This causes a copy of the digital output to go to another line or device so it can be recorded.

The reason I think it is wiretaps is because in his recent statement the AG said:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday...

What types of surveillance does FISA cover? Radio and wire surveillance, hence my use of the word wiretap. "Wiretap" doesn't just cover land line phones anymore, it covers cell phones and computer communications.

Also the AG answered a few questions that included the word wiretap, and he did not correct anyone.

But all this is not that worth arguing about. I'd say the questions on everybody's mind should be:

Do I want one branch of the government doing surveillance on the US people without any oversight? Do I want this heavy responsibility to rest in one person's hands? Do I want that one person to be a shift supervisor at the NSA or should it be FISA?

might make it a much more popular practice.

As the powers that be have stated before "Slam Dunk"

This makes this case irrelevent to the issue.

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322]    as to, the issues which may be involved with respect to activities of foreign powers or their agents.