Did the President Break the Law?<br>Revisited
By Leon H Wolf Posted in War — Comments (218) / Email this page » / Leave a comment »
I've had a little time throughout the day to sit down with my good friend WestLaw and do some research on the issue today, and corresponded with a number of folks far more knowledgeable with this area of the law than I am, and have gotten some firmer answers to a number of questions that seem to keep cropping up in the course of this particular discussion.
More below the fold:
Question number one that I have gotten most frequently during the course of the day has been, "If the FISA authorizes this kind of activity, why isn't the President or the AG referring to the FISA in their defense?" The answer to that question is that the FISA is generally not seen as an authorizing statute, but rather as a limiting statute. In other words, prior to FISA, it was generally held (by circuit courts that had addressed the issue) that so long as a wiretap was sought for the gathering of foreign intelligence, a fourth-amendment warrant was not necessary. The President does have "inherent power" under Article II to do this sort of thing, absent a Congressional provision to the contrary.
During the Nixon era, paranoia over this issue reached a level where the people demanded that Congress do something, and thus the FISA was passed, which was intended to limit the circumstances in which the Executive branch could execute a warrantless wiretap. Thus, the key question for someone in the Justice Department would not be whether the FISA granted such a power, but rather whether FISA prohibited it. Thus, you had AGAG saying the following:
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, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.
See there? He's concerned about what FISA prohibits him from doing, not what it allows him to do. And, as you will notice in the opening remarks of 50 U.S.C. 1802, the Statute contains an "unless otherwise provided by statute" provision, which AGAG made reference to next:
Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.
Now, it is important to realize, as Carl Levin (D-MI) is apparently incapable of doing, that this was not the authorization to use force in Iraq. This was the authorization to use force to pursue Al Qaeda, passed in the wake of 9/11. That resolution of force authorized the President, in part, to:
use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.
In other words, the President was authorized to use all necessary force against Al Qaeda in the wake of 9/11, it would seem rather strange that the use of wiretaps against known Al Qaeda agents would not fall under "all necessary force." As AGAG pointed out in the presser, the SCOTUS has already construed that authorization of force very broadly, to the point that they read it to imply powers not explicitly contained in the authorization even when such a construction directly violated another Federal Statute, 18 U.S.C. 4001(a). (See Hamdi v. Rumsfeld, 542 U.S. 507). If the SCOTUS authorized the detention of a United States Citizen in direct contravention to the provisions of 18 U.S.C. 4001, they would certainly authorize the use of wiretaps in the gathering of foreign intelligence, when such authorization might questionably violate 50 U.S.C. 1802.
The court's opinion in Hamdi declared that even though the authorization of force did not explicitly authorize detention, detention was a fundamental incident of waging war. Certainly, AGAG has a colorable argument when he says that the gathering of intelligence is a fundamental incident of waging war. However, I must concede that an argument can at least be made in the other direction, which reinforces what I said in my first post on the matter - that this is a very sticky and delicate issue, and that a clear decision on point is simply not to be found. I believe that the administrations construction of the authorization to use force was at the very least justifiable and in accordance with the available precedent at the time. Not only this, but given that FISA was intended to be a Congressional check on executive power, they took the additional step of ongoing consultation with Congress over the issue. I think most courts would take the position that Congress is in the best position to interpret their own statute - that they may have been incorrect is always a possibility - that is why we have a SCOTUS to decide these sorts of things.
Several folks have also asked why the President would take such measures, when a procedure of review by a FISA judge was so easily available. The answer seems clear enough to me - if a terrorist can trigger an operation with a 30 second phone call, that will cause damage later that day, it would be ineffective policy indeed that would force the President to wait 72 hours to get a FISA judge to approve the tap - which they wouldn't be able to authorize since they'd never have the information in the first place.
A couple of other brief remarks are in order. References to the case of United States v. United States District Court for the Eastern District of Michigan are making their way around the internet. Supposedly, this case establishes that the President has the constitutional power, carte blanche to conduct warrantless searches when national security is at stake - and that therefore, since the President has such authority Constitutionally, the FISA cannot take it away from him. The only problem with this analysis is that the SCOTUS actually rejected it in the very case that Hugh Hewitt (and numerous others) have cited. I know it's boring to read the procedural posture, but here it really is a killer - the Government made the argument that the President had such power, but the District court rejected that argument, and the Circuit Court affirmed the District Court, and the SCOTUS affirmed the Circuit Court. Thus, even though the argument is contained in the opinion, it loses.
The bottom line is that, sooner or later, this practice is surely going to find its way back up to the SCOTUS. I simply can't find a way to harmonize overturning this practice as unconstitutional with the court's decision in Hamdi, or distinguish it on the facts. However, there will be two new justices on the Court by then, and I could well be wrong. Then again, so could the countless hysterics on the left, and their sycophants in the press-Democrat. There is much to be sorted out, here, and those afflicted with Bush Derangement Syndrome would do well to consider whether they really want to have this practice end.
Do they really desire to end a program which intercepts the phone calls of known Al Qaeda affiliates (not random and indiscriminate Americans), and possibly prevents terrorist attacks? Are they willing to provide notice to the terrorists of the tactics we are using to track them in a callow effort to score political points? It seems as though they are.
Let's have them make that case to the American people for what it is, then. And let's also have them explain how it is that they were apparently fine with Clinton using Echelon to eavesdrop on Americans, and on foreign companies for economic benefit, so that we can see once and for all what is more important to them - the protection of "big business," or the protection of the citizens of this country from terrorist attacks? The American people deserve to know.
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Did the President Break the Law?<br>Revisited 218 Comments (0 topical, 218 editorial, 0 hidden) Post a comment »
"Several folks have also asked why the President would take such measures, when a procedure of review by a FISA judge was so easily available. The answer seems clear enough to me - if a terrorist can trigger an operation with a 30 second phone call, that will cause damage later that day, it would be ineffective policy indeed that would force the President to wait 72 hours to get a FISA judge to approve the tap - which they wouldn't be able to authorize since they'd never have the information in the first place."
Here's the thing, though - the FISA contains a provision whereby, in a case of time necessity, the government can set up the surveillance without a warrant, so long as they apply for a warrant within 72 hours of establishing the tap. This is the crux of why, in my opinion, the expediency argument doesn't hold up.
That they didn't do that. Let's not pretend that we know everything about what happened in this particular program, because we don't. It may well be that they did just such a thing - but as the President has said, they are simply not going to tip the enemy to what all of our tactics are.
My understanding is that you are wrong when you suggest that a 72 hour delay is required to recieve authorization.
See http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001805----000-
.html
It's in part f.
Warrants can be issued anytime within 72 hours, and that's perfectly within the law.
So why didn't Bush just use FISA?
That he isn't getting authorization ex ante, where appropriate? Upon what do you base that knowledge?
When the ever helpful NYT & DNC are there to tell them for us?
The only problem with this analysis is that the SCOTUS actually rejected it in the very case that Hugh Hewitt (and numerous others) have cited.
Understand that Hugh Hewitt is a law professor, and Leon is a first year law student (IIRC).
Leon, again, excellent analysis. As I've said before, I think this policy is bad as a matter of policy. But the rush to condemn it as illegal (even impeachable!) is, well, a rush. And the rush to justify it at all costs is well, a rush of a different stripe.
Understand that Hugh Hewitt is a law professor, and Leon is a first year law student (IIRC).
Here's the thing - you read the first part of the opinion, which is the government's argument, saying pretty much what Hugh says (The President is Constitutionally authorized to do this sort of thing, end game), but then you read on a little further and it says, "The District Court held that this violated the Fourth Amendment. The Circuit Court affirmed." Then you read even further down, and there at the very end, it says "Affirmed." So, apparently the SCOTUS didn't think too much of the argument.
Thanks again for the kind words, BTW.
Nobody knows but the administration. But if ex ante authorization was requested and received, why don't AGAG or the President use that argument to defuse all this criticism?
I meant, of course, ex post.
why don't AGAG or the President use that argument to defuse all this criticism?
Some things are more important, from a damage control standpoint, than the President's standing with the press.
Understand that Hugh Hewitt is a law professor, and Leon is a first year law student (IIRC).
Hugh is also considerably less honest than Leon. I have no training or knowledge that allows me to evaluate Leon's analysis against Hugh's from a legal standpoint. I can, however, rely on who I find more credible. Hugh Hewitt has a long, consistent and dishonest record of shilling for the Bush administration to the point of sycophancy. He has been proven, by many on this site no less, to be willing to abandon what someone of his intellect and schooling should know in service of advancing a Republican agenda.
In that sense he is a very effective advocate for the GOP, and I understand why he is well-liked by some. But I do not have to find his opinions on a contentious issue credible.
According the New York Times article, http://www.nytimes.com/2005/12/16/politics/16program.html, Bush has wiretapped conversations without warrants. The FISA court grants warrants, as I understand it, even retroactively. So...he's not receiving the traditional authorization. And I don't at all see why not, frankly.
Any other sort of ex ante authorization doesn't make me certain that the proper checks and balances are being observed.
And we don't know that they didn't do that.
Except that the Attorney General is going around saying that FISA doesn't get the job done. It's reasonable to assume that they're taking measures outside of those provided by FISA, since Gonzales is saying explicitly that they're taking measures outside of those provided by FISA.
In his message of September 7, 1942, to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th, 119 President Roosevelt formulated his conception of his powers as ''Commander in Chief in wartime'' as follows:
''I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescap able responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.
''In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.
''At the same time that farm prices are stabilized, wages can and will be stabilized also. This I will do.
''The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.
''I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. . . .
''The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.
''When the war is won, the powers under which I act automatically revert to the people--to whom they belong.'' 120
It's quite possible that the technology involved here by which we are "detecting" these communications is outside the purview of the FISA altogether. It's entirely possible that the spoken contents of these telephone calls are not being discovered whatsoever. The simple point is that we don't know what all the program entails at this point.
in a way, to read a conservative laud a broad interpretation by SCOTUS in support of an argument; and in the same argument, claim that prioritizing the protection of big business over protection of individual rights is somehow a hallmark of the Democratic party.
Good article; it advances the argument in support of the administration very thoughtfully; but those 2 parts of it made me laugh.
Unless you wish to contest that Clinton used Echelon to intercept telephone communications of foreign business interests in order to gain an economic advantage on those countries?
If you do (wish to contest), just go ahead and use your "Google", there.
I agree with your question, elihuben, and have been trying to get to the bottom of this myself.
I continue to find it odd that there is no confirmed facts, that everyone can agree, regarding the "timeliness" factor of FISA.
It's my understanding that a warrant application can be applied RETROACTIVELY for up to 72 hours. That means that the President would NOT have to wait.
Now, LeonH, who's clearly looked very closely into the various aspects of FISA, seems to be saying the opposite. According to LeonH, "it would be ineffective policy indeed that would force the President to wait 72 hours to get a FISA judge to approve the tap."
So LeonH's understanding is that a warrant must WAIT up to 72 hours.
One of these claims is entirely inaccurate. I wish we as a group could confirm which one is correct and which is incorrect.
Like his standing with the people in terms of trust and respect. At least, in my opinion; I want to trust him to not do things like illegally circumvent my liberties.
I still don't understand it. Why not just say they did all this legally, receiving warrants legally under FISA, if they indeed did so? If they did not, then why not, if the provision exists under FISA to surveil whoever they want to surveil and only later request and receive a warrant? Do they think the other provisions in that part of the statute are too constraining? If so, and they want to conform to FISA law, why not have gone to Congress by now and got it changed?
Otherwise, they do not want to conform to that law. In which case, I'm far from convinced that their surveilance actions are legal.
I have no way of knowing whether or not he is in specific instances. I'm sure there are many cases in which the 72-hour requirement from FISA is being met, and I am equally sure that we could make a reasonable guess by researching how many such warrants were granted--certainly those are numbers which seem to be floating around a lot.
It's not the point at issue, though. The point is this: FISA allows for the real-world fact that time-sensitive investigations frequently won't allow you time to go get a warrant first. It is reasonable that our intelligence professionals should have the ability to jump on a lead in minutes or seconds, take the necessary actions, and provide justification within the law after the fact. Given that it does, whence the need for warrantless monitoring? There's no "imminent threat" argument to support them, not if you can take the actions you need now and get a warrant afterwards--and that seems to be the most common argument trotted out.
This isn't the kind of authority the president is arguing. He's arguing that he doesn't need a warrant at all.
That bothers me. And I would think it would bother others, regardless of political stripe.
Bush did not go to the FISA court is because he did not want the identity of the wiretapping subject to be on the record for some reason or another.
and the CHECK on their power is WE THE PEOPLE via reps thru impeachment or denying funds to wage war or directly by refusing to re-elect.
not courts
The only problem with this analysis is that the SCOTUS actually rejected it in the very case that Hugh Hewitt (and numerous others) have cited.
Neither Lincoln or FDR consulted with Courts while in the process of WINNING wars.
About the 72 hours - what is unclear is whether the administration is willing to comply with that, or whether the technology involved in this particular program places such interceptions and detections withint the practicable reach of the FISA.
Leon H:
What about the plain text of the 4th Ammendment of the Constitution which cites "unreasonable search and seizure"?
In a time of war with our national security in the balance, is it really that unreasonable to monitor the incoming and outgoing international calls of al Quaeda terrorists for the purpose of preventing additional catasrophic attacks?
Is SCOTUS likely to rule against the President in the context of the War on Terror, citing a law (FISA) which was put into place in response to Nixon wiretapping political adversaries?
I, like Condi, am no lawyer, but it seems to me that if SCOTUS overrules on this premise, and completely invalidates the September 11th authority that Congress granted the President, then the whole matter of judicial review which gives SCOTUS final authority on Constitutional interpretation should be revisited. For decades, the Judicial and Legislative Branches have been encroaching on the power of the Executive Branch. Maybe now is the time to have this fight.
Otherwise, if SCOTUS interprets the Constitution in a way that prevents the President from keeping his oath to uphold the Constitution, then the only other option is for the President to quote Andrew Jackson when Chief Justice John Marshall ruled against him, "Mr. Marshall has made his decision. Now let him enforce it."
this diary, but could you please answer [these questions]. I am wondering if the resolution even applies if the phrases used as defense do not have legal standing.
In a time of war with our national security in the balance, is it really that unreasonable to monitor the incoming and outgoing international calls of al Quaeda terrorists for the purpose of preventing additional catasrophic attacks?
Is SCOTUS likely to rule against the President in the context of the War on Terror, citing a law (FISA) which was put into place in response to Nixon wiretapping political adversaries?
I tried to make it very clear that I thought that the SCOTUS would likely NOT rule against the President. Sorry if that was foggy.
And maybe it can't be explained in a way that would not reveal more classified activity than has already been revealed ... but LtGen Hayden did say this at today's press briefing:
Q General Hayden, I know you're not going to talk about specifics about that, and you say it's been successful. But would it have been as successful -- can you unequivocally say that something has been stopped or there was an imminent attack or you got information through this that you could not have gotten through going to the court?
GENERAL HAYDEN: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.
Q Through the court? Because of the speed that you got it?
GENERAL HAYDEN: Yes, because of the speed, because of the procedures, because of the processes and requirements set up in the FISA process, I can say unequivocally that we have used this program in lieu of that and this program has been successful.
Now, admittedly, that doesn't tell us much, but it does tell us that the NSA regards the freedom to eschew FISA warrants as essential. All those who are asking, "Why is this necessary?" can and should continue to ask, but the question, "Was it necessary?" has been answered.
I am a long-time reader (of Dailykos and Redstate) and appreciate your work in your posts Leon H. I very rarely post - most of the time I just read and think about the more thoughtful posts (passing by the crazies on both sides).
It seems to me that you are agreeing that this area is legally dicey and will eventually end up in the SCOTUS. I agree with that.
But your defense seems tepid at best and seems based on the assumption that this was a limited, tightly directed operation and that it was not a random fishing expedition, which is something that has been asserted but cannot be proven one way or another at this time.
So my question is how you would come down if (and if this is considered a threadjack please feel free to ignore it) it were determined that Echelon were being used as a tool to analyze ALL (or some large random sample of) international calls originating in the United States in an attempt to pick up actionable intelligence. I don't know if the government currently has that capability or not, but with the ever-increasing computer power available, it is not out of the question at some point in the future.
Again, feel free to ignore this post, but compliments on the analysis, especially the updated one.
Let's clarify - Echelon was the program Clinton DID use to spy on some folks who were decidedly NOT national security threats. This NSA program is something different (we don't know exactly what, yet).
Second, insofar as a program operates like Echelon, monitoring international calls for certain "hot" words - I'm pretty much fine with that.
But it doesn't match LtGen Hayden's assertion that concerns about speed, not any recordkeeping concern, was the discriminating element in deciding whether or not to pursue a warrant.
"Let's have them make that case to the American people for what it is, then. And let's also have them explain how it is that they were apparently fine with Clinton using Echelon to eavesdrop on Americans, and on foreign companies for economic benefit, so that we can see once and for all what is more important to them - the protection of "big business," or the protection of the citizens of this country from terrorist attacks? The American people deserve to know."
Echelon and Clinton aside, I read something here about pitting conservatives' record on individual rights versus corporate rights against liberals' record on that count. But now I think that was a misread. You're saying that Democrats, by wanting to protect the civil liberties of every American citizen, also want to leave them vulnerable to a terrorist attack; and that concurrently, Democrats are the party of big business.
Neither assertion rings true to me. The right is the side of protection of business at the cost of the individual. And protection of our civil liberties is not mutually exclusive of the public safety.
Sorry Leon. I misunderstood. Your argument seemed to pivot the other way when you mentioned U.S. vs U.S. District Court for the District of Michigan. I guess Kelo, and other recent SCOTUS decisions have got me a little jumpy.
Hugh is being intellectually dishonest to suggest otherwise. I have read the exact cases that Leon is making reference to, and his analysis of the holdings is all pretty much on the money. I of course disagree with the majority in Hamdi (and prefer Scalia's bright-line approach in requiring Congress to suspend liberties such as habeas corpus in the open as required by the Constitution), and I also may disagree with some of his implications and conclusions, but he gets there in a cogent and well-thought out manner. Good analysis from a fellow law student.
But it looks like even Attorney General Gonzales knew they were doing something that might come off looking a little 'shady'.
When asked this morning why they didn't just ask Congress for this specific authority, he replied that Congress never would have allowed it.
our greatest presidents? Could the winning of wars vital to the establishment, continuity and survival of the nation have anything to do with it? Did courts have any luck in sabotaging the above?
War is a presidential kind of thing, and
you, the voter, not courts, are the check, as this is one area where the president's oath PRECLUDES him from allowing an abortion umpire to protect the enemy from the rightious might of the US in its own defense.
So you guys that are more "disturbed" about the power of the American president than you are with al qaida's cell phone calls a few hours before 911 or with security leaks made more likely when abortipon umpires and naive law clerks who want the NYT to publicize their next wreck case
lobby the dems in congress to try and impeach Bush.
Go ahead and think McClellen and McGovern.
Maybe under the 'get a warrant up to 72 hours later' law, they can get the intelligence from listening to the phone call, but they can't act on that intelligence until they get the warrant?
Just a hypothesis on my part, but it would explain the 'can't wait on the warrant' reasoning we've been hearing.
Seriously, if they had gotten the warrents through the FISA court (which even the 'enemy' could have reasonably expected be done, knowledge of that gives them no advantage) 72 hours after the fact this would be a non-starter.
Bush would have come out Saturday and said, "yes, we did those wiretaps, but we obtained proper warrents through the court process established under FISA."
Case closed, issue over. But, that's not what happened, instead we're playing legalize games because this may or may not be legal. And the real kicker is Gonzalas today stating they didn't ask Congress for permission because they thought it might be denied.
So instead since they thought they had a legal thread they could pull to justify it they shouldn't ask for it ... because Congress would think they shouldn't have that power. Gonzolas today:
"That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program."
Now, this may get me tarred and branded as a lefty or whatever here, but my feeling is this. If it's questionable that it's legal and if you have that power or not and if the answer to the question puts you in violation of the consitution, then you should steer clear or seek proper authorization. As President your #1 priority is to uphold the constitution, not play games to see how much you can slip past in the middle of the night.
I really am having a hard time honestly right now understanding what FISA doesn't allow that they needed to do that would be so hard to get Congress to approve.
Rice has stated it was because they're not agents of a foriegn power 'exactly' they're "stateless" enemies. But, if that was the issue and FISA needed to be extended to include "stateless" enemies like Al Quada I can't see how in a GOP controlled congress it would have been that hard to get an amendment to FISA done.
that the only action that a warrant would have any bearing on would be whether or not the information acquired could be used in court.
...did Lincoln have the ACLU and 60 years of radical left leaning decisions hanging over their heads like the Sword of Damacles?
I pray that you're right, 'Cock. I'm just a humble golf pro with rudimentary knowledge of the Constitution.
I apologize if this has been dealt with, but billing for a living makes it hard to follow 100+ comment threads closely.
Orin Kerr has an excellent post where he concludes that the wiretaps weren't unconsitutional under the "border exception" (probably correct), but that they were illegal under FISA:
http://www.volokh.com/posts/1135029722.shtml
In this, he points to a different problem than has been discussed here.
FISA prohibits "electronic surveillance" except as allowed by federal law. Electronic surveillance is defined as:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication 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, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . ." (emphasis supplied)
(1) doesn't work, because I think there isn't a Fourth Amendment violation.
Orin ultimately concludes that FISA applies under 2. I think this might be incorrect. As one commenter on that thread noted:
Pres. Bush at press conference today:
"So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa."
If this is true, then the actions of the Administration probably don't fall under section (2) either. That's a big if, as the President isn't known for his, um, precise speaking.
So the Administration's best argument actually might be that it didn't conduct "electronic surveillance" under the meaning of the statute. Like I said, I haven't followed this all that terribly closely, so if this has already been debunked, I apologize.
At any rate, I'm counting down the moments until the Administration breaks out the "no controlling legal authority" defense, which actually appears to be the case here.
I didn't hear him say that so unequivocally as you imply, but haven't seen a transcript.
There is one claim being made that all of the subjects of the wiretaps have connections to Al Qaida. If that is the case, then the president is justified. But if that was the case, why were certain names rotated off of the list and were the suspitions 100% accurate? All we know is that the list is currently about 300 individules, but has had over 1000 overe the past few years.
The more I think about this, the more appropriate I find the FISA safeguards.
http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html
Q If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?
ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.
...the politics in the last month will portend for the GOP and the President in '06? Seems the President first had a small crack when the Dems overreached on hyping intel, then Murtha's cut and run episode, followed by Kerry and Dean's idiocies, then the successful vote in Iraq, then the Dem's filibuster of the Patriot Act, and now their crying foul over surviellance of terrorists and violation of FISA?
Liberal blunder after liberal blunder and
now its a gaping hole the President can drive a truck through to the '06 election.
in today's transcript of the press briefing Gonzales says this:
"Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."
So, if I get his drift - he's claiming that the presidential authority comes not from an established constitutional basis as Bush has stated, but as an extension of the permission from Congress to 'use force'. An interesting interpretation of 'force'.
This seems like a thin justification at best, and at worst the kind of stretching of meaning that many object to on the part of the judiciary.
Bush was wire-tapping his political enemies--not "terrorists".
For all you guys complains about the MSM, this is but another story of Bush "doing something bad" that the NYTimes sat on for OVER A YEAR.
There was a time when Conservatives gave a damn about the constitution, civil liberities, and put those things above their party. Goldwater is spinnin' in his grave.
Shame on Bush.
For those who ask why not go through FISA, esp. the provision that allows someone to act and then request an authorization within 72 hours, consider this in Byron York's National Review article:
People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.
Click here to read the whole thing
Bottom line: does anyone really think that any federal bureaucratic machinery is going to allow for fast enough action against terrorists? If you do, I have a bridge or two to sell you.
and execute leaking FISA judge law clerks for treason.
Art II executive/commander in cheif power doesnt require the president to get a judge's permission or 72 hour ratification for actions to defend the US.
Presidents ask congress for the $$ to wage war and to agree to the waging of war but not for permission as to the specifics of same.
HE is responsible to WE THE PEOPLE. Thru our reps in congress. The Consitution is not a suicide pact and we could have an impeachment vote between those that understand this and those that dont.
Between those that would allow judges to refuse to issue war wire taps or ratify same or those that would not.
He seems to be saying "Congress has authorized us to do this" but then 5 minutes later says they never would have approved this had the administration asked.
Am I mis-reading something?
Thanks for making your trolling so obvious.
Blam.
It should be getting to a point where we should all be outraged at the Democrats/Liberals/mainstream media.
They attempt to nitpick this war on terror and the Pres to death, trying to score political points at the expense of national security. Imagine if FDR had had to deal with this kind of opposition...we'd all be speaking German right now, giving our allegiance to the Feuhrer.
I for one am sick and tired of a media and a major political party more concerned with the civil rights of terrorists than the lives of Americans. If there is another attack on our soil, thank the liberals for that. The liberals want to revert back to a pre-9-11 mindset, and we all saw where that got us.
This incident is one more proof that the Democratic party literally cannot be trusted with national security.
Let's face it...9-11 only happened because we had Bill Clinton asleep at the wheel of national security for 8 years.
We're literally at the point where our very lives depend on keeping the Democratic party from reaching any form of significant power.
Let's also realize that the media is not on our side in this war...they are the biggest enabler of the terrorists. With a responsible media, something like we had during WWII, the terrorists wouldn't stand a chance, and they would know that.
He seemed to go to great lengths to say that the act of Congress provides the authority for their actions - then qualifies it with variations of 'but our position is that the authority stems from the constitution anyway'.
If there is specific law, chapter and verse that covers this - why not just say so. The obvious implication is just what you say - they're riding a thin line here.
To my mind it is not a good precedent to set.
No, Lincoln just had half the nation wanting to kill him!
Tiger story below, but first, a good companion quote for your Patton one is
"One man with courage makes a majority." - Andrew Jackson
Reassuring numbers re POTUS ability to wage THIS (and incredibly, this war that the dems now want to not fight is against al qaida who I think was involved in 911)war: house and senate GOP majorities to remove from office post impeachment.
Care to spend some time with golf? I do -- this is an amazing story. Tiger Woods was talking about last summer's British Open, which he won. Before the final round, he was warming up on the range, and ... Well, I'll let Tiger tell it. I'll quote an article from the AP:
"I hit the 100-yard sign four straight times," Woods said in an interview last week. "That was the start of my warmup. I hit a couple of little wedges to loosen up, then hit to the sign. Peppered it four straight times in the air, on the right zero -- not the middle zero, the right zero."
His swing coach, Hank Haney, was standing behind him, and remarked to Woods's caddie, "The first time he gets inside 100 yards, you might want to tell him to aim away from the flag." That is, Woods would not want to hit the pin, deflecting his shot and giving him an unreasonably long putt (or even a chip).
Ha, ha, right?
Well, "first time I'm inside 100 yards is on No. 6" -- that's Tiger. "I had 98 yards to the hole. What happens? I one-hop it off the [pin] and it spins off the shelf." His caddie then told him what Haney had said, on the practice range.
Absolutely dizzying, Tiger Woods -- an endless source of amazement.
I can't figure out if this is a troll or not. So I'll bite.
FISA was just fine for dealing with the threats of the Cold War and the KGB but suddenly it's not secure enough for a operation like Al Quada?
Give the Soviets/KGB some credit here, their intelligence network is far better then anything the fundamentalist muslim extremists are running. And if the court was secure enough for them, it's secure enough for this.
As far as let the enemy know our plans ... WOOAH, you mean like they might thing we're trying to spy on them and intercept their communications. I bet they never even thought of us doing that!
As far as FISA blocking requests, they've blocked very very few over the years according to what information is availible. FISA simply puts a judical check on executive power, such checks form the basis of our entire system.
FISA was put in place specifically for this very issue - Executive authorized wiretapping and esponage. This is a power of the executive that has been restricted by this act and that the administration seems to be splitting hairs about if it applies are not.
Article II doesn't say he needs permission, but it also doesn't say he has the power to do it without permission. FISA can be interpreted as saying he does not have such permission.
You can IMMEDIATELY wiretap without a search warrant. THEREAFTER, you have 72 hours to present a warrant to the FISA court for approval.
For fear of being branded a left winger, I make the following observation. No one -- not a single Republican -- in the legislative branch has offered a defense of the President. Many have sharply criticized him.
The President's rationale -- speed -- makes no sense. It is evident that he is now desperately trying to create a post hoc rationale.
And you said it far better then I seem to have been able to earlier. :)
the media was being censored in a very heavy handed way during WWII. He would have thrown all these journalists in jail, and shut down their publications. The fact that he was a Democrat does not dawn on these people, because they honestly think that Democrats fight for the people, and Republicans just want to institute some type of oligarchy. That is why they are incoherent on defense and intelligence. Some idiot actually went on NPR today and brought up the Church commission as if it was some great thing. Actually all it did was blind our intelligence service. So, if you are going to point at Clinton, you have to also consider the ramifications of Church.
Is it just me, or do these people seem like they want us to loose? Do you think they even understand what loosing means?
I reject the event/non-consequential between election poll driven msm narrative.
The reason we have won the last 3 real polls called elections is because of the reection of liberalism and especially that aspect of same that is unwilling to defend the nation against all enemies foreign and domestic.
Conservatism wins every time its tried beginning esp in 1980, but also going back to 1968 and 1972 interrupted only by a watergate inspired fake conservative in carter and a cold war over inspired fake conservative in clinton.
The msm cannot admit that their side loses due to what they stand for, ie liberalism, so they have to construct a narrative with between election polls and post debate polls, etc to avoid reality.
And even under clinton, the dems lost the house in 1994.
Now, post triangulation, the dems are in the mcgovern mode that lost in a landslide during an unpopular war in vietnam.
I think that the dems are headed for political extinction.
What happens is that BETWEEN elections Bush and the GOP get compared to an imaginary perfection that doesnt exist.
But during election campaigns we get compared to a liberal. Thats why we win those polls.
- gamecock is not a troll.
- you are contending our relations with the USSR were ever at the level ours with al Qaeda. Since 9-14 we have really been in a state of war against al Qaeda: authorization by Congress to use force, Afghanistan, Iraq, etc. This situation is markedly different from the Spy vs. Spy game we played with Soviets and still play with other powers.
- are you seriously making the argument that Congress can statutorily limit the enumerated Article II role of the president. That is ridiculous on its face.
bushlied a year before the 2004 election.
Imagine if FDR had had to deal with this kind of opposition...we'd all be speaking German right now, giving our allegiance to the Feuhrer.I for one am sick and tired of a media and a major political party more concerned with the civil rights of terrorists than the lives of Americans. If there is another attack on our soil, thank the liberals for that. The liberals want to revert back to a pre-9-11 mindset, and we all saw where that got us.
Go make yourself a drink and calm down, we're not all going to die if someone questions how we're waging the war on terror.
I think the media, liberals AND conservatives who are concerned about the civil rights issues surrounding this should be thanked. Without people like them to hold people's feet to the fire and make sure our rights aren't being eroded all the security in the world isn't worth the price.
To argue that the actions of the executive to protect us should not be questioned, no matter how high the price on our Civil Rights is allowing the terrorists to win w/o having to fire another shot. Because if it's let go far enough, then this country as it is will cease to exist. I'm not going to jump out in front of this train and claim that Bush is wrong. He may be in the right, but there is no reason for these questions to not be asked. These questions in fact must be asked.
"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin
If this isn't far enough to at least start to question what is going on, how far is too far? And if we don't question now when should we?
I think some people like you may be so worried about the terrorist boogieman they'd sell everyone else's civil rights down the river as long as they didn't think it was causing them harm.
"First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me."
- Pastor Martin Niemöller
This isnt a liberal issue....
Daschle, Barr and Graham have come out publicly questioning the administrations policy.
If you are angry at the NYT for coming out with the story now...so be it. But they could have come out with it a year ago, and you would have been just as angry.
The question still remains, why did the administration need to circumvent the FISA in these cases.
To explain he meant that we don't intercept calls from Dallas to New York under this program.
But we would be intercepting calls from Dallas to Syria.
That's what he claified "within the country" to mean.
was never president... or much else that gives his statement credence. Though I am amazed that Essential Libery encompasses al Qaeda agents talking on the phone.
No one's civil rights are being sold down the river, except those of us who would rather not live in a world dominated by islamic extremists.
Or did they drop the word "appropriate" from the article you quoted?
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.--That the President is authorized to use all
necessary and appropriate force against those nations, organiza-
tions, or persons he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001,
or harbored such organizations or persons, in order to prevent
any future acts of international terrorism against the United States
by such nations, organizations or persons.
Not your fault, but it seems pretty lame to drop that very limiting and very legal word. It would seem that "...necessary and appropriate..." would be one way to to limit the President to other laws, such as FEMA.
how is "appropriate" limiting in any meaningful way? How would it limit the requirement to use "necessary" means?
First I am no Clinton apologist, he did miss some oppurtunities against Al-Qaeda, but why is it Bush gets a free pass on 9/11. He had a clear warning, the Aug 6 PDB titled Bin Laden Determined to Strike US. Secondly, can someone please explain to me how the NYT story comprimised National Security. The terrorists knew that the Government would try to monitor all of their phone calls. How would knowing that they didn't have warrants change their behavior?
"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin
I emphasize ESSENTIAL liberty.
How is talking on the phone and making sure it is a secure conversation essential? Not to mention the only people being monitored here are the international communications. I don't think a conversation between grandma Ethyl and her grandchild who is an exchange student in england is of much concern to Bush or the NSA. The only people who need to be worried here are the ones that actually have a need to be worried.
And to touch on your statement that there are concerned conservatives here is a joke. I only see pretend concern in front of a camera to make it look like there was no input from these senators (such as harry reid). And i don't count someone like mccain a conservative. He's a liberal (very liberal) Republican.
too late.
Your Talking-Point-O-Matic™ is stuck in the "automatic" position.
You managed to squeeze KnownFacts™ in there, too. A virtuoso performance for a first and last post.
Ha...ha...you list Daschle, Barr, and (Bob) Graham, as examples of non-liberals questioning administration policy.
Well, Daschle and Bob Graham are indeed liberals. As for Barr, he is the exception to the rule, and hasn't questioned this particular policy.
The bottom line is that it is the political left that is leading this criticism against a very legtimate program to protect us in time of war. Without the political left and their allies in the media, this is not even an issue. Someone like Bob Barr couldn't go anywhere with this issue.
I am amazed that Siberian relies on cheap platitudes as some sort of argument. They mean nothing.
The bottom line is this: we are in a time of war with a very serious and deadly enemy. Go back and find a recording of the 9-11 broadcasts if you need to be reminded.
And yes, liberals and their allies in the media constantly carping at the President like mosquitoes and cockroaches do indeed potentially hurt our effort in the war on terror.
If these false controversies that the media trumps up make it more difficult to track the terrorists, that could indeed cost lives. It's not an exaggeration.
There comes a time when a country needs to unify behind its leadership to fight a war. We did this during FDR and WWII, even though we know that FDR made huge mistakes.
Doesn't the Fourth Amendment modify Article II, though?
Go on admit it. You don't really give a twit about civil liberties. This is just another opportunity to bash Bush using the lame excuse du jour.
force and we all know the definition of that.
come now
First of all, the Cold War began in 1945. FISA was passed in 1978.
Ok, get up off the floor
- Presidents are authorized to kill any perspon HE DETERMINES is an enemy, in order to defend the country without first getting a judge's permission. Doesnt that imply that he can do less than kill in order to determine who to kill. Most of the machinations we go thru with FISA and Patriot acts are for political reasons, not const authority. Which is my point. Courts will not decide this. Politics will. Unless we charge UBL with a crime based on a FISA warrant-less search.
- UBL was using a particular communications device in 1999 until the NYT ran a story telling him we knew.
- The USSR activities in the US were not an imminent threat to kill like UBL.
- Im sure we could find many instances post 1978 where carter and or reagan did take actions similar to bush where they did not go thru FISA.
6.
could get Biden and Kennedy to talk them to death.
They were doing exactly what the needed to do to combat Al Qaeda. Al Qaeda believed and judged they were playing by FISA rule and their spies were set around FISA infrastructure. (if people don't think these bastards have spies in the system they're cracked)
Al Qaeda believes their useful fools in the press and the senate have the President painted into a corner legally so President and advisors find a loophole to carry out what Al Qaeda doesn't think they can do legally and... whammo! Arrests all over the world.
Now it's gone. AL Qaeda will change tactics. We are more at risk.
It's the press that conducts domestic spying and is the largest spy network in the world.
All legal and above board you know.
Except for this case. The case that's going to be broken off in their collective backsides.
The Bill of Rights do not apply to enemies waging war against the US. The Constitution is a pact for WE THE PEOPLE in our domestic affairs where we are willing that innocent go free. War is when ANOTHER PEOPLE, wage war against WTP.
The waging of war is the exclusive province of the commander in cheif in which he can kill any person he determines is the enemy. Without first asking a judge for permission or reporting to a judge 72 hours later.
But, even if the 4th amendment did apply, what is reasonable in a pot case and what is reasonable in a dirty bomb war case where a leak from a law clerk could jeopopardize thousands of lives kind of answers the question by asking it doesnt it?
This is war. And that citizens within the US ally with a foreign enemy to destroy us does not diminish the presidents power to wage war.
http://www.aijac.org.au/resources/aijac-media/tl_wfr_120305.htm
...you must not know just how the NSA works.
72 hours wouldn't do it.
Technology has changed so much since the FISA law was written, that it needs a re-look, given the advent of wireless and satellite technology. Wireless puts all kinds of electronic signals out into the atmosphere.
NSA has a very extensive signal gathering apparatus all over the world. It picks up all manner of signals. Wiretapping a specific phone line is so passe. Even your wireless phone in your house sends out a signal everytime you use it, available for capture, even by another wireless phone.
To hold Bush to landline technology is ridiculous. If some netherworld wireless information floats into his listening mechanism, and it is a threat, I would expect him to act on it to protect me. This whole Nirvana in the NYT is ridiculopus. Steve Croft at CBS did a piece on it CBS FOUR YEARS AGO!
this talk of illegal and legal is much ado about nothing.
The President and his staff made a decision to perform illegal seemingly wiretaps. Ok. What does that mean? To me it means that the wiretaps are inadmissable in any sort of legal action.
I have a hard time buying into this being a real violation of our civil rights. The government could monitor our conversations whenever it wants to. Does mean they could do anything with it. Matter of fact illegal wiretaps generally lead to tainting other evidence.
Now we can question the motives and soundness of this policy. IMO, I think this policy closes off a significant mechanism for dealing with terrorists, namely our legal system.
Here's the problem as I see it. What if the next Mohammed Atta is on our shores at this very minute. And he makes a call to Osama Bin Laden detailing his intention to destroy the White House. Because the wiretap is illegal we can't LEGALLY do anything to prevent this from happening(note: I realize that we would stop it but this is an illustrative example). So we put ourselves in a situation where we KNOW that someone is planning to do bad things but we can't legally do anything to stop the guy from doing it.
I think that this controversy is focusing on the wrong issue.
FTR, I would like to point out that the infamous Jamie Gorelick memo dealt with this EXACT issue.
Far from asking whether Pres Bush broke the law, we should all be proud of our President for actually having the guts to protect us from the terrorists.
That sure beats what we had in Bill Clinton, where he was so afraid of offending anyone, and so determined to be politically correct, that he made things very easy for the terrorists. And to think that Clinton, with the media on his side, could have actually gotten away with anything he wanted to.
This President has courage and conviction, with a deep zeal to protect us...that's rare and that's special. We need to have a public relations offensive, not just to defend Pres Bush, but to say how proud we are of him. This man is a hero for taking all the crap he has to protect us.
Sorry, I should have been more specific.
And Daschle is a lefty, true....but he is more moderate than left.
I am sorry, I do believe that it is an issue, whether you are right or left, or who is in the white house.
Call me naive.
Look, I do not believe that the president broke any laws, but I question the need to circumvent the FISA.
I have a hard time buying into this being a real violation of our civil rights.
Do you have a very high opinion of your civil rights?
But I also have a very realistic view of technology.
I don't have a huge problem with the government monitoring communications provided that all domestic intelligence is discarded.
There is a clear and present danger to our nation. I think that we can sacriice a potential loss of privacy to deal with that danger.
Regardless I think you miss the gist of my post. I compare this to a cop who ignores the law to catch the bad guy. Well it may work out ok as long as he shoots the bad guy but if he doesn't the only thing he is doing is giving the bad guy a get out of jail free card.
And craven sniveling poltrons of the DNC had better get some spine, becuase this si giong to bite them wear it hurts unless they change and pronto.
http://www.nationalreview.com/robbins/robbins200512190859.asp
What the NYT has done is nothing less than a deliberate attempt to help the enemy.
The link is a devestatating review of the legal status of what the President did, and a slap in the face of the DNC hacks who are pretending to be outraged by this totally legal operation.
We are in more grave dnager now than we were a week ago, and now the effin' Senate is playing games with the Patriot Act?
It is clobberin' time, patriots.