[Gee-Man]

Originally Posted by SimeyTheLimey

No, that is factually incorrect. The calls and e-mails apparently originate outside the US. Some of them may be routed through the US or end at US destinations, but but they are not domestic. By definition, they are international.

The question is whether the NSA is still legitimate if the call originates from the same al-Queda operative in Pakistan to his agents inside the US. There are two views on this. One seems to say that al-Queda agents in the US get more protection, because there is a chance that the person being listened to might not be an al-Queda terrorist. The other view is that it makes no sense to make it harder to intercept a message to the very agent best positioned to kill Americans.

First, you are factually incorrect. There are/were cases of spying on domestic phone calls and emails:

Spying Program Snared U.S. Calls

National security and telecommunications experts said that even if the N.S.A. seeks to adhere closely to the rules that Mr. Bush has set, the logistics of the program may make it difficult to ensure that the rules are being followed.
With roaming cellphones, internationally routed e-mail, and voice-over Internet technology, "it's often tough to find out where a call started and ended," said Robert Morris, a former senior scientist at the N.S.A. who is retired. "The N.S.A. is good at it, but it's difficult even for them. Where a call actually came from is often a mystery."

It's estimated that thousands of people have already been monitored, and apparently quite a few of them entirely within the United States. Whether it's "accidental" or not, the program apparently isn't able to completely isolate calls or emails originating overseas.

Secondly, even if you were correct, your justification is weak and actually is an argument FOR going through FISA. If the NSA had a known al-Queda operative in their sights, and they wanted to spy on any phone calls or emails that terrorist makes to persons inside the US, this is the exact circumstance that the FISA court is meant to handle and easily meets the looser "probable cause" criteria they use. If you think a FISA judge is going to turn down a request to wiretap a known terrorist, you're insane.

Don't believe me? Here's a handy chart. Turns out that out of thousands of requests, FISA didn't reject a single one of them from the program's inception in 1979 to 2002. Not one. In fact, the entire time FISA has been in effect, they've only rejected 4 requests, all of them in 2003. Or in more stark terms:


And, according to the same officials who spoke to the NYTimes, requests can be approved within hours.

Oh, but wait - it's inconvenient to use actual facts about this. It's so much easier to justify this illegal behavior if you invent your own tall tales about excruciatingly long delays and obstructionist FISA judges keeping us from gettin' the bad guys.

Think of it by analogy. It's like Pearl Harbor. You have orders to shoot down Japanese fighters inbound. But the moment those planes cross into American airspace, someone from the ACLU calls to say "no, you can't shoot them down now, they might be innocent." Does that really make sense?

This is a flawed analogy. Given the details that have emerged about this program, a more appropriate analogy would be if you have orders to shoot down all passenger planes leaving from or arriving in the US because you think they *might* be headed for or coming from Japan, or *could* have Japanese spies on it, but you really don't know for sure where they're going or who's on them. Then, if a downed plane turns out to be filled with tourists and went nowhere near Japan, you lie and justify it by claiming you had to shoot down the plane for "national security reasons".

But in any case, let's get back to my original point, which is about the purpose of the lie Bush told. Let's assume that everything you guys say is true, facts be damned, and that we absolutely, positively, MUST have this super-secret NSA domestic spying program in order to protect Americans from the dangers of terrorism.

If that is the case, why not simply have FISA changed? In 2002, Bush had a Republican congress, stratospheric approval ratings, and a totally pliant electorate screaming for him to "do something" in the months after 9/11 when this program started - if this program was so essential to national security, it should have a no-brainer for congress to amend or possibly even repeal FISA to accomodate his supposedly "reasonable" needs, correct?

And in fact, FISA was amended with the passage of the Patriot Act. But when the Bush Administration was given the opportunity to support further amending FISA in June of 2002, under a bill proposed by Republican Sen. Michael DeWine of Ohio, he declined to do so - and as justification, he cited the existing FISA court as being good enough to handle our needs in fighting terrorists. Here's an exact quote from the Bush Administration:

The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.

Wow, interesting. So much for all the whining about "procedural hurdles" and how supposedly hard it is to get FISA to respond - in 2002, the Bush administration itself praised FISA as able to act swiftly to respond to terrorist threats.

So, the question remains - why did Bush simply break the law and lie about it, when he had the means and the power to change FISA to suit his purposes and do things legally?

The answer is staring you in the face if you're willing to look - Bush didn't make any effort to change the law because he knew what he was doing wouldn't pass constitutional muster. If he had revealed the scope of this program, even normally supportive Republicans would have balked at such a blatant power grab by the executive branch. The president does NOT have the right to do anything he wants just because we are at war, and Bush knows this. This is why he lied, and this is why he ignored the law. Not because it was "reasonable and necessary" as his many apologists are trying to portray, but because his actions were UN-reasonable and UN-necessary, and he knew he'd be busted if people found out about it.

Isn't that the reason for most lies? Rarely are lies told to protect someone else, most of the time a lie is told to protect the person telling the lie. CYA, as they say. Bush had every opportunity to do this the right way, and instead, he chose to do it the wrong way and put both American lives AND our civil liberties at risk. I'm not ok with that, and I'll bet most Americans aren't, either.

[aberdeenwriter]

No more than 100 taps were in existence at any one time.

If you are talking to al Qaeda, George wants to know what you are saying.

What part of that troubles you?

The need to have secrecy (in going around FISA) in making these taps is underscored by the lack of secrecy demonstrated by the leak of such taps.

In this case, instead of the secret info being communicated to the terrorists it was sent to the NYT.

What more proof do you need that the secrecy is/was needed?

[Gee-Man]

Originally Posted by aberdeenwriter

No more than 100 taps were in existence at any one time.

Huh? Where'd you get this one from? Link?

If you are talking to al Qaeda, George wants to know what you are saying.

What part of that troubles you?

Nothing. What troubles me is I don't want George listening in since I'm not talking to Al-Queda. "George" has no business listening in to my phone calls or emails without a warrant and probable cause. That's why I'm proud to live here, and not in some piss-ant dictatorship where the government is free to intrude on my rights as they please even though I've done nothing wrong.

You keep trying to change the subject to make this about terrorists' rights - it's about OUR rights. I don't give a rat's ass about terrorists' rights.

Oh, and I'd be interested in seeing a graph of the number of phone numbers issued or phones sold or actual phone calls made during that same time span.

What does that have to do with anything? The assertion was made that FISA would potentially turn down many requests for wiretaps. The graph clearly shows that to be false based on their history.

The need to have secrecy (in going around FISA) in making these taps is underscored by the lack of secrecy demonstrated by the leak of such taps.

In this case, instead of the secret info being communicated to the terrorists it was sent to the NYT.

What more proof do you need that the secrecy is/was needed?

Good god man, you cannot possibly be this dense. You clearly have intelligence, so maybe you are just filtering out information you don't wanna hear. Regardless, for the last time:

FISA is a mostly secret court. It authorizes secret warrants for national security reasons. Terrorists wouldn't know about the warrants, or whether they were being wiretapped. Secrecy was preserved no matter what the NYT said. This isn't a debate about keeping secrets vs. not keeping secrets.

[aberdeenwriter]

I ran across this and thought it was pretty interesting. So, I decided I'd toss it in the thread for consideration and discussion. Can't vouch for it's accuracy, though.

Was Lincoln a great president?

What I want to understand is, how can the people I see routinely bashing Bush on here for lying, violating the constitution, fighting an illegal war, corruption, cronyism, etc. possibly think Lincoln was a "good" president? And don't misunderstand, I think Bush, like all politicians, is a *********. But honestly, compared to Abraham Elizabeth Lincoln? Bush is practically Thomas Jefferson.

Just as a little reminder:

- Abraham Lincoln violated the Constitution in practically every particular

- He invaded a sovereign constitutional democracy, with the full knowledge that all States reserved the right to secession

- He waged total war on civilians, killing approximately 50,000 of them. This wasn't a push button war; when civilians were killed they got killed up close and personal

- His unconstitutional and illegal war killed between 600,000 and 700,000 soldiers; as a fraction of the population that would be over 5,000,000 dead today

- He suspended the writ of habeus corpus, something only the Congress can do, and interned between 10,000 to 15,000 northern civilians in military prisons without charges or trials

- He shut down hundreds of northern newspapers by military force for criticizing his administration, including imprisoning publishers and editors in military prisons

- His administration had pastors and preachers imprisoned for failing to include a prayer for the president in their sermons, as had been decreed by the White House

- He arrested and imprisoned the entire Maryland legislature so they couldn't convene to discuss secession

- He created an entire State out of whole cloth so that he could install a puppet government to tighten the Republican hold on Congress (West Virginia)

- His administration engineered election fraud on a massive scale to secure his reelection, including turning Democrats away from the polls with bayonets and issuing different colored ballots for the two parties, so that voters with the wrong color ballot could be arrested

- He created an income tax in direct violation of the Constitution (recall that the Constitution had to be ammended in 1913 to allow the income tax, but it didn't stop Lincoln)

- He imprisoned and exiled a sitting member of Congress for criticising his administration (Vallandigham)

- He discovered dictatorial "war powers" not enumerated in the Constitution to justify all of this

- He repudiated every clause of the Declaration of Independence (which was, after all, a declaration of secession), and either he or his party after his assassination reproduced each and every charge in the Train of Abuses leveled at the despotic King George

- All of this was undertaken for the express purpose of removing the Constitutional barriers to the so-called "American System" of corporate welfare, high tariffs, and centralized banking (with an inflationary fiat currency, his "greenbacks," to pay for it all) for the benefit of Republican party political cronies

This is just a tiny fraction of his crimes. Had the South won the war, Lincoln and his entire cabinet would almost certainly have been hung for war crimes.

So, is it just poor education that causes people to worhsip this evil [censored] and his Zeus-like marble statue?

[BRussell]

Nice posts Gee-man.

[aberdeenwriter]

Originally Posted by Gee-Man

Huh? Where'd you get this one from? Link?


You keep trying to change the subject to make this about terrorists' rights - it's about OUR rights. I don't give a rat's ass about terrorists' rights.

I can't give you a link. You'll hear the same figure from verifiable sources in due time.

If. We. Are. Dead. We. Won't. Need. Rights.

[dcmacdaddy]

Originally Posted by aberdeenwriter

I can't give you a link. You'll hear the same figure from verifiable sources in due time.

If. We. Are. Dead. We. Won't. Need. Rights.

Do you REALLY think we are that seriously threatened by the possibility of more terrorist attacks in this country that a large segment of the population needs to be fearful for their lives? From this line of reasoning you are taking it would seem you think every citizen ought to be afraid of dying in another terrorist attack, is that an accurate assessment? Do you think the majority of Americans that support these wire-taps do so out of fear of death-by-terrorist?

[Spliffdaddy]

I think that the people who fear that they're being spied on - probably should be spied on.

What the hell are you doing that has you so damned concerned that somebody might find out?

Got a meth lab in your garage?

Frankly, I don't give a rat's ass who listens to my conversations.

[medicineman]

Originally Posted by mr. natural

Once again, the extent and ways which some folk defend this illegal action is amazing.

The President is not above the law, no matter what the circumstances, even in war time. That past Presidents have done the same does not make it right then or now. (I suppose moral relativity isn't the sole province of liberals after all.)

The President swore an oath to uphold the Constitution, and faithfully execute the laws of this land - which are written and passed by Congress - not willfully disregard them because he finds them inconvenient.

FISA is the "exclusive" law of the land when it comes to wiretapping for intelligence purposes, and has been amended five times since 9/11 in order to address intelligence gathering concerns that the WoT presents. If the President felt that this wasn't enough, the correct course of action would be to press for amending it until it does. He didn't, instead he authorized breaking the law.


There are many sad ironies in all the ways that some folk are willing to continually excuse this illegality.

We are often reminded, mostly by those who support anything and everything this administration has done in execution of this WoT effort, that the terrorists hate our freedoms; but then these same folk are just as quick to defend this President when it comes to his right to lie about abusing our freedoms and lawful rights too.

Likewise, some like to tout how the terrorists can't abide by the rule of law, and yet here we have an array of twisted excuses as to why the rule of law doesn't apply to this president - as if he hadn't already provided ample examples, and his sycophants excuse after excuse - and particularly under this circumstance.

The authorization for the Use of Military Force after 9/11 is the prime example. This is a gross misinterpretation of the resolution. Nothing in this resolution authorizing the Use of Military Force "against those responsible for the recent attacks against the United States" otherwise authorizes domestic surveillance of US citizens without a warrant from a judge.

It is also worth mentioning that had this administration actually spent the time and military resources available to them over the past five years fighting Al Qaeda instead of Saddam, we might actually have had pictures of Osama's head on a pike to gloat over instead of the the pictures from Abu Gharib to feel ashamed by.

Many of these same people also readily express a disdain for big bad Government and its intrusion into our lives in some publicly declared form or another, and yet express little to no misgivings of the secrecy and extension of power to one person and all that he commands as the head executive of our government.

It's as if this tyranny is fine because he's my kind of tyrant. The Sunnis were no different under Saddam.

And this brings me to my final point. To the extent that we forsake our liberties and grant excuses to our leadership to play fast and loose with our system of laws, and checks and balances, we are no better than the terrorists we claim have no legitimacy; in truth, we become just like them for acting just as they would - without regard for rule of the law, and with power sucked up to one grand authority.

Thankfully, that's not how it works here. But you all look mighty foolish trying to suggest that it should.

And Y3a's concern that the "leakers" of this information should be the ones prosecuted is lol absurd. As if Al Qaeda wouldn't know that we might be snooping on them - in secret!

I have news for you, Y3a, your government could be spying on you too! Hush hush, don't tell anyone, ok, it's a National Security secret.



Keep on croaking, puppet.

Perhaps you should read the joint resolutions. http://hnn.us/articles/1282.html To wit: SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

[SimeyTheLimey]

Gee-Man: First of all, your leaks don't qualify as "facts" in my book. They are assertions by people with axes to grind and who are breaking the law by even speaking. Assuming that they know anything about the details of this program, of course, which is unlikely given that information like this is compartmentalized. When you work for an agenct like NSA, you aren't given access to everything. It is controlled on a need to know basis. Having a clearance isn't enough. The AG and the President both say the program intercepts calls from people believed to be al-Queda outside the US calling numbers that are inside the US. Additionally, from your NY Times article:

Gen. Michael V. Hayden, the former N.S.A. director who is now the second-ranking intelligence official in the country, was asked at a White House briefing this week whether there had been any "purely domestic" intercepts under the program.

"The authorization given to N.S.A. by the president requires that one end of these communications has to be outside the United States," General Hayden answered. "I can assure you, by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States."

That is the situation as best as is publicly described. The rest is so much speculation.

Originally Posted by Gee Man

If that is the case, why not simply have FISA changed? In 2002, Bush had a Republican congress, stratospheric approval ratings, and a totally pliant electorate screaming for him to "do something" in the months after 9/11 when this program started - if this program was so essential to national security, it should have a no-brainer for congress to amend or possibly even repeal FISA to accomodate his supposedly "reasonable" needs, correct?

I agree with this, but probably not for the reason you think. They should have simply repealed FISA. The statute was always a mistake from its inception (and for the record, I thought that when I first did research touching on it back in 2000). They also should have declared war using the Barbary Pirates example as a model. I honestly don't think that any of us realized back in 2001 the extent to which liberals would try to whittle down support for national defense. It seemed at the time like it was all beyond politics. In hindsight, these things should have been done before the resolve of the country was distracted by business as usual.

Oh, and one other point:

Originally Posted by Gee-Man

Secondly, even if you were correct, your justification is weak and actually is an argument FOR going through FISA. If the NSA had a known al-Queda operative in their sights, and they wanted to spy on any phone calls or emails that terrorist makes to persons inside the US, this is the exact circumstance that the FISA court is meant to handle and easily meets the looser "probable cause" criteria they use. If you think a FISA judge is going to turn down a request to wiretap a known terrorist, you're insane.

This is simply incorrect. If NSA knows the originator (outside the US) is a terrorist, all well and good. No warrant is needed to listen to the outside-the-us terrorist if he calls another outside-the-US number. And I agree, if they have probable cause to tap the phone of someone inside the US who is known to be a terrorist. The problem would come if a known terrorist outside the US calls a person inside the US (or who might be a "US person" under the statute who isn't known to be a terrorist. There, the government wouldn't have probable cause that the person inside the US is a terrorist, until they listen to the call and find out that he is. But by then, it is too late, because whatever they learn in the call itself is not usable for a probable cause finding. Under FISA it would have to be destroyed, even if the intercepted call consists of "plant the Anthrax at 16th and Pennsylvania Avenue at Noon tomorrow." See my post above about why bootstrapping doesn't work for warrants.

[SimeyTheLimey]

Originally Posted by dcmacdaddy

Do you REALLY think we are that seriously threatened by the possibility of more terrorist attacks in this country that a large segment of the population needs to be fearful for their lives? From this line of reasoning you are taking it would seem you think every citizen ought to be afraid of dying in another terrorist attack, is that an accurate assessment? Do you think the majority of Americans that support these wire-taps do so out of fear of death-by-terrorist?

It's more real than the fear of a police state being put about here. 3000 people did die in 2001. Weren't 180 or so killed just down the street from where you work? It's not made up, and it is not theoretical. It really happened, and there are people who want it to happen again - bigger, if they can.

In return, how real is the opposite nightmare? A return to the fascist dictatorship that was pre-1978 America? Absurd!

[dcmacdaddy]

Originally Posted by SimeyTheLimey

It's more real than the fear of a police state being put about here. 3000 people did die in 2001. Weren't 180 or so killed just down the street from where you work? It's not made up, and it is not theoretical. It really happened, and there are people who want it to happen again - bigger, if they can.

In return, how real is the opposite nightmare? A return to the fascist dictatorship that was pre-1978 America? Absurd!

Yeah, it was about 180 across the river from me who died. I remember going out on to the Mall to see the smoke rising from the Pentagon. And I remember seeing the first couple waves of fighter jets come screaming up the Potomac and take up formation over the city--The sonic booms were deafening. So what? Is that memory somehow supposed to make me willing to see the 4th Amendment compromised to prevent such an occurrence from happening again? I hope that's not what you are trying to argue. I would be MORE than willing to accept another attack on our nation's capital if it means not allowing our national intelligence agencies to conduct un-regulated domestic spying.

But anyway, your arguments ring hollow. I have not been arguing about a police state. I am arguing about a principle that says fundamental respect for the Constitutional right to privacy is more important than the possibility of catching some terrorists through un-regulated domestic spying. (It's not like we are going to catch all terrorists through un-regulated domestic spying or even catch any; un-regulated domestic spying just increases our chances of catching some.)

Oh, and who here is arguing that pre-1978 America is some kind of fascist dictatorship? Am I? Did I say any such thing or intimate that was my concern? NO! (Give Zimphy back his projector, he probably needs it back for use in another thread.) I have said it before and I will say it again: I am willng to accept an increased risk in the likelihood of a terrorist attack due to not allowing un-regulated domestic spying.

I have said also that I am more than willing to modiy or repeal FISA to make it easier for our national intelligence service to conduct domestic surveillance AS LONG AS they have a specific target in mind. Do whatever takes to make it easier for the CIA and/or NSA to spy on people in the US, citizens or otherwise, but make sure there are procedures in place such that they CANNOT spy indiscriminately, so that they have specific individuals in mind when they conduct a domestic surveillance operation. All I want is specific legal requirements such that our national intelligence agencies cannot conduct un-regulated domestic spying operations.

Why is that such a big deal? Does anyone here want the national intelligence agencies to be able to conduct domestic spying without any strictures on their actions?

[mr. natural]

Originally Posted by medicineman

Perhaps you should read the joint resolutions. http://hnn.us/articles/1282.html To wit: SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

I know there are a lot of people who still think Iraq had something to do with 9/11, but you've referenced the wrong Authorization for Use of Military Force resolution when it comes to fighting Al Qaeda.

The correct AUMF is this one.

But I still don't see in any of this where the President is granted permission to break the FISA law and lie about it.

As to Simey buying the "assurance" of Gen. Hayden, I'd say his axe is as tainted as any other, especially while speaking from the White House.

[cpt kangarooski]

dcmacdaddy--

I would be MORE than willing to accept another attack on our nation's capital if it means not allowing our national intelligence agencies to conduct un-regulated domestic spying.

Ultimately, I'd have to agree.

Governments that flaunt the law are invariably rife with corruption, unwilling to apply the law justly, and ineffective at upholding the law on the rare occassion that they actually do the right thing. These are governments that have to be brought back into line, or replaced.

Having a government that works for its people, rather than treating them as the enemy, does bring with it risks. But these risks are quite small in comparison to the risks posed by the government. The government of criminal thugs that some posters are in favor of is a much greater, and much more certain danger to us all. We've seen our own government manufacture attacks against itself to justify wars. We've seen it engage in violent attacks on political opponents, blackmail on political opponents, spying on political opponents. The government has sold weapons to our own enemies -- at the time they were our enemies. It's created and financed terrorists. It's been full of any number of people who think that because they are charged with upholding the law, that they are above the law and can ignore their duties and abuse their power.

We've been at the precipice before, and now we're there again. Again, we must reaffirm that we will uphold the rule of law against our enemies, even when those enemies occupy high offices within our own government. We know that there are risks that come with having checks on power. But our history, from the very beginning, has illustrated again and again that when we do not check our power, that's when we're in the worst danger. That's when the risks from the outside become minor by comparison.

We haven't had an internal dictatorship, but we've come dangerously close in the past, and that cannot be denied. That we've managed to avoid that fate -- corruption from within, like the Romans of old -- has never been thanks to those with power.

Simey--

It's more real than the fear of a police state being put about here. 3000 people did die in 2001. Weren't 180 or so killed just down the street from where you work? It's not made up, and it is not theoretical. It really happened, and there are people who want it to happen again - bigger, if they can.

In return, how real is the opposite nightmare? A return to the fascist dictatorship that was pre-1978 America? Absurd!

Well, the government pretty much made up the Gulf of Tonkin Incident. Even if it did so accidently at first, they knew early on that nothing had happened. And as a direct result of government officials lying and concealing information from decisionmakers and the public, tens of thousands of Americans died, many of whom were drafted into being there, along with well over a million Vietnamese.

And you call it absurd? You have a lot of nerve.

Like I said, when the government becomes a terrorist, becomes a criminal, it can hurt a lot more people than some pissant with a box cutter ever could.

You want to fight people that want to attack us? Fine. But that doesn't excuse illegalities. We're capable of defending ourselves and our way of life without wrecking it in the process. The fact that you don't believe in our strength as a country, and our ability to win and uphold the law doesn't change anything.

[aberdeenwriter]

Originally Posted by mr. natural

I know there are a lot of people who still think Iraq had something to do with 9/11, but you've referenced the wrong Authorization for Use of Military Force resolution when it comes to fighting Al Qaeda.

The correct AUMF is this one.

But I still don't see in any of this where the President is granted permission to break the FISA law and lie about it.

As to Simey buying the "assurance" of Gen. Hayden, I'd say his axe is as tainted as any other, especially while speaking from the White House.

http://www.pbs.org/newshour/bb/white...ney_02-07.html

JIM LEHRER: Mr. Vice President, welcome.

VICE PRESIDENT DICK CHENEY: It's good to be on the show, Jim.

JIM LEHRER: Is the president willing to work with Congress to settle some of the legal disputes about the NSA surveillance program?

VICE PRESIDENT DICK CHENEY: We believe, Jim, that we have all the legal authority we need. He indicated the other day he's willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest. We'd have to make a decision as an administration whether or not we think it would help and would enhance our capabilities. But as I say, we believe firmly that based on the Constitution, based on the authorization for the use of force Congress passed in the immediate aftermath of 9/11, that we have all the legal authority we need with respect to the NSA program.

JIM LEHRER: There were two Republican senators at the Senate Judiciary Committee hearing yesterday who made the strong point, Senator DeWine of Ohio, and Senator Lindsey Graham of South Carolina, said it would be in the interests of the country, interests of the president and interests of everybody involved for Congress and the president to sort this out and get it behind it, get it off the table. You don't agree with that?

VICE PRESIDENT DICK CHENEY: Well, I don't think it would necessarily be in the interests of the country especially if we get into a situation where the legislative process leads to the disclosure of sensitive operational matters with respect to this program. If we end up destroying the effectiveness of the program by broadcasting far and wide operational details that would allow our enemies to in effect negate it or neutralize its effectiveness, that's not in anybody's interests. That clearly is not in the national interest, and the concern in the past when we had had discussions with those members of Congress that had been briefed into the program about the possible amendment, if you will, or additional legislation on this issue, there was a consensus that in fact proceeding to do that would disclose the program in ways that would potentially be damaging to it.

So there was a consensus between those of us in the administration who were involved as well as the leaders on Capitol Hill that were briefed on the program that legislation would not be helpful.

JIM LEHRER: But there has not been any new conversations about that with Congress just in the last two or three days since this thing has really mushroomed into a controversy?

VICE PRESIDENT DICK CHENEY: Not that I've been -- not that I've been involved in. But some of the controversy, Jim again let me emphasize here, when we briefed the chairman and ranking members of the committee on this program which we've done at least a dozen times, I presided over most of those briefings, there was no great concern expressed that somehow we needed to come get additional legislative authority. In fact, the program has operated for four years, Congress has been informed, a few members of Congress, informed throughout that period of time, and everything was fine until there was publicity in The New York Times. Somebody leaked the program to The New York Times, then there was public disclosure of it, and at that point now we've had some members head for the hill, so to speak, and forget perhaps that they were in the briefings and fully informed of the program.

But in terms of the legal authority, there is a very solid analysis that includes the Office of Legal Counsel in the Justice Department, the counsel in the White House, the attorney general of the United States, and this has been reviewed 30 times now, more than 30 times, because it's had to be renewed every 45 days since we started the program. So the legal issues have been thoroughly exhausted. There may be some disagreements, but, again, I think it's important for us if we're going to proceed legislatively to keep in mind that there's a price to be paid for that and it might well in fact do irreparable damage to our capacity to collect this information.

JIM LEHRER: You don't think it could be done without damaging--

VICE PRESIDENT DICK CHENEY: I can't say that. We've suggested, we said, look, if you've got suggestions, we're happy to listen to them, but that is a major concern.

JIM LEHRER: Sure. What do you make of Senator Graham's argument that he made yesterday in public to the attorney general which is using the force resolution which is one of the legal justifications, you decided and it has been decided by the administration, said if you go down that road, the future when the next president or this president or the next president comes and asks for a force resolution from Congress, there could be all kinds of exceptions, you can do this, this and this, but you can't wiretap, you can't do this, you can't do that, and he said if we don't settle this issue now, you will open up a difficult situation for the future. You don't agree with that?

VICE PRESIDENT DICK CHENEY: I think people are straining here to try to find an issue to some extent. Remember what's happened since the authorization of the use of force was approved in the aftermath of 9/11, and we've used it extensively in Afghanistan and so forth. We also had a Supreme Court decision in the Hamdi case where the court in effect found that there was implicit in the authorization of the use of force, the authorization for the president to hold an American citizen, and clearly that's more intrusive, if you will, the use of power and authority than surveillance of the enemy.

Incident to the authorization of the use of force, military force, clearly I would expect would be a decision that that implies as well the ability to intercept the communications of the enemy. That's an inherent part of warfare. There's ample precedent we believe on the books based on the Supreme Court decision, based on the statute, based on the president's constitutional authorities, for us to do exactly what we're doing.

Now, there may be suggestions from some that we need to have some additional authorization passed and we don't believe it's required, but as the president said the other day, we're perfectly willing to listen to suggestions from the Congress.

JIM LEHRER: You don't think the public disclosure of this and the controversy that has risen as a result of it requires that kind of second look at this issue?

VICE PRESIDENT DICK CHENEY: It's been looked at thoroughly within the administration and with those members of Congress that have been briefed into the program. This is not something that's been kept out of the normal governmental processes. When you have the inspector general of the National Security Agency who is responsible for ensuring compliance at NSA with the statutes and laws of the land intimately involved in this program from the very beginning; when you had the top elected leadership of the Congress of both parties, the chairman and ranking member of the Intelligence Committees of both Houses briefed into this program since the very beginning; when you've got the attorney general of the United States and the Office of Legal Counsel, there's a lot of work that's gone into this.

Now there are a number of members of Congress who didn't know about the program until it was leaked. That was intentional in the sense that we were trying to restrict as much as possible so that the program would retain its effectiveness. The biggest problem we've got right now, frankly, I think is all the public discussion about it. I think we have in fact probably done serious damage to our long-term capabilities in this are because it was printed first in The New York Times and subsequently because there have been succeeding stories about it.

JIM LEHRER: So you never intended this to ever get out?

VICE PRESIDENT DICK CHENEY: Correct.

JIM LEHRER: This would remain a secret forever? That was the intention of the administration?

VICE PRESIDENT DICK CHENEY: Well, certainly as long as there was a war on.

JIM LEHRER: What about the points that were made yesterday that all the things you just outlined are all within the executive branch with the exception of the members of Congress, these eight members, four Democrats, four Republicans, one of whom wrote you a letter afterward raising concerns about, Senator Rockefeller.

VICE PRESIDENT DICK CHENEY: Wrote a letter three years ago and never raised any concerns after that, sat through numerous briefings, never had any questions that weren't answered.

JIM LEHRER: And none of those other eight did either?

VICE PRESIDENT DICK CHENEY: Correct.

JIM LEHRER: So what's going on here do you think?

VICE PRESIDENT DICK CHENEY: Well, I think a lot of people decided after it became public that they wanted to take a different position than they had in private. This process of briefing just a few members of Congress is well established, Jim. I've been involved one way or another in the intelligence operations of our government going back 30 years to the Ford administration, or when I was on the Intelligence Committee myself in the 1980s, or when I was secretary of defense in the early 1990s. The practice of the president deciding to brief only a few members of Congress on really sensitive programs is well established. We've operated that way now for a very long time, and this program was treated in that fashion. It's important we preserve that capability.

If we had briefed all of the members of the Intelligence Committee, both Houses as some have suggested, we would have had to brief 70 members of Congress into this program because that's how many people have served on those two committees over the intervening four years.

JIM LEHRER: That would have been wrong?

VICE PRESIDENT DICK CHENEY: That's not a good way to keep a secret, to brief 70 members of Congress when the practice is well established and has been used in the past to brief just eight, just the speaker, the majority leader, the minority leaders of both Houses, as well as the chairmen and ranking members of the committees.

Secrecy versus accountability

JIM LEHRER: Is there a conflict of priorities here, Mr. Vice President? You say keep things secret. That's one priority. There's another priority, of course, in our government which is congressional oversight and checks and balances within the system. You would go that secrecy is more important than the checks and balances?

VICE PRESIDENT DICK CHENEY: I think you can do both. That's why you brief the Congress in the first place, so that know what's going on, so that there isn't anything that they're not aware of, but you can't take 535 members of Congress and tell them everything and protect the nation's secrets. And when people take on the responsibility to serve as a chairman or a ranking member of the Intelligence Committee, they accept that extra burden, that they are going to know things nobody else knows and they're going to have to stand up when some issue like this does come up as Pat Roberts has and Peter Hoekstra, the chairmen of the respective committees in the House and Senate, and said, right, we were briefed into the program, it's a good program, it's an important program and we need to continue it.

JIM LEHRER: Senator Rockefeller said at a hearing last week that you should assume that the leak on this came from the executive branch. Is he right?

VICE PRESIDENT DICK CHENEY: We don't know. There's an investigation underway to find out.

JIM LEHRER: Do you have a hunch that it would probably in the executive branch?

VICE PRESIDENT DICK CHENEY: It would be inappropriate for me to comment. We just don't know.

JIM LEHRER: You told CNN last week that thousands of lives have been saved by this NSA surveillance program. Are we talking about American lives have been saved?

VICE PRESIDENT DICK CHENEY: I can't go beyond that. I do believe that a great many lives have been saved because of what we've been able to do with this program.

JIM LEHRER: According to what the president has said, this only involves conversations between people who are believed to have al-Qaida contacts, international calls. You're saying that those calls by themselves have saved lives, thousands of lives?

VICE PRESIDENT DICK CHENEY: I'm saying this program has produced intelligence for us that has been very valuable in the global war on terror both in terms of saving lives and breaking up plots directed at the United States. It has been a very useful source of intelligence for us and we need to continue the program.

JIM LEHRER: I just want to make sure I understand what you're saying. If we had not had this program, Americans would have been killed in terrorist attacks by al-Qaida or related organizations?

VICE PRESIDENT DICK CHENEY: That's my belief.

JIM LEHRER: It's just a belief or is it--

VICE PRESIDENT DICK CHENEY: No, and I think it's based on the facts, Jim, but I cannot talk about operational details. You're going to ask those questions, but we're not going to get into them. This has been one of the most important sources of intelligence we've had during the global war on terror. It's not an accident that we haven't been struck in the last four years. Some people think well it's just dumb luck. No, it's not. It's because the president has made some very good decisions, because we've had first-rate military and intelligence capabilities working on this problem, it's because we've aggressively gone after the terrorists wherever we could find them, and it's because we've had very good intelligence.

This program has been an important part of that intelligence capability. And as I said, the tragedy is, now that it has become the subject of so much discussion in the press and in the public arena that there is a real danger here that we will lose our capabilities in this area and will not have the kind of intelligence going forward that we've had in the past that has made it possible for us to successfully defend the nation against terrorist attacks. It doesn't mean there won't be future attacks. There may well be. We're working on it every day. But the fact is we have not been struck in over four years and that's because of a lot of good work by very able and capable people.

JIM LEHRER: And this NSA surveillance program?

VICE PRESIDENT DICK CHENEY: And this is part of it.

JIM LEHRER: Conflicting priorities question again. As vice president of the United States, can you assure any American who's out there, any innocent American who has no connections to al-Qaida, absolutely none, that his and her rights are not being violated by this NSA surveillance program?

VICE PRESIDENT DICK CHENEY: I can.

JIM LEHRER: In any whatsoever?

VICE PRESIDENT DICK CHENEY: Let me emphasize again, people call it domestic surveillance. No, it's not domestic surveillance. The requirements for this authorization to be utilized are that one end of the communication has to be outside the United States, and one end of the communication has to involve reason to believe that it's al-Qaida related or affiliated or part of the al-Qaida network. Now those are two very important and very clear-cut criteria, and for this presidential authorization to be used in this way, those two conditions have to be met.

JIM LEHRER: Do you understand why some average Americans might say, wait a minute, whose definition is it of an al-Qaida possibility or whatever, that they would ask serious questions and want accountability?

VICE PRESIDENT DICK CHENEY: Well, I can assure them that the program is operating in a very cautious and prudent manner. As I said, I've been involved off and on for more than 30 years in various aspects of the government's intelligence business as a consumer, as somebody who was responsible for part of the community at one time. I've never seen as much care and caution exercised as there is in this program. It has been done with immaculate concern to guarantee that we protect the civil liberties of the American people, but at the same time that we're able to collect intelligence that will allow us to defend the country against further terrorist attacks.

I think, Jim, that I'd make a couple of more points. I think the vast majority of the American people support this program, and I also think when ultimately the history is written about this period, the relevant reaction of the Congress will be the reaction of the leadership when we briefed them into the program in years past and they signed up to it and they agreed that it was an extraordinarily important program and they urged us to continue. And that's an independent, outside separate group, bipartisan, it did not involve just a selected group of Republicans, and that that's the reaction that's important, not the one that comes after it becomes a political issue and people are trying to score political points.

JIM LEHRER: It's Senator DeWine, Senator Graham, Senator Specter and Senator Brownback who have raised questions about this and they're Republicans. They're not attempting to score political points are they?

VICE PRESIDENT DICK CHENEY: None of them have been briefed into the program.

JIM LEHRER: You think if they were briefed they wouldn't be saying what they're saying?

VICE PRESIDENT DICK CHENEY: Yes, I think they'd be satisfied that in fact it's being done in a totally appropriate fashion.

JIM LEHRER: What about Senator Specter's suggestion yesterday that, and then we'll move on to something else here, a special federal court be constituted to review the legal disputes?

VICE PRESIDENT DICK CHENEY: I don't want to get into the business of passing judgment or giving an administration position in the various ideas that have been suggested. The president said we welcome whatever suggestions they've got, and Senator Specter is a respected member and chairman of the Judiciary Committee, he's a good friend and ally, and the other members, Mike DeWine I've known for 30 years, served with him in the House, Lindsey Graham, these are competent, capable, reputable people, and there are folks like that on the Democratic side, too. They may have ideas that we ought to listen to, and we're happy to entertain those ideas.

[Arty50]

Originally Posted by aberdeenwriter

You ARE an American, right?

Or, better asked, you do LIVE in America, right?

Yes, I was born and live in a country which was formed on a basic set of principles, one of which has been violated in this instance.

So it is I that asks you, "You ARE an American, right?"

If you don't subscribe to the basic principles laid out in the Constitution, then I don't see how you qualify.

[aberdeenwriter]

Originally Posted by Arty50

Yes, I was born and live in a country which was formed on a basic set of principles, one of which has been violated in this instance.

So it is I that asks you, "You ARE an American, right?"

If you don't subscribe to the basic principles laid out in the Constitution, then I don't see how you qualify.

ATTENTION TO ALL YOU EARTHLY AMERICANS. I HAVE TAKEN OVER THE ONE KNOWN AS ABERDEENWRITER. HE IS AMERICAN BUT I AM NOT. I HAVE NOT BEEN ABLE TO TAKE HIM OVER BEFORE NOW BECAUSE THE WIRETAPS FOILED MY PLANS. BUT AFTER I WAS MADE AWARE OF THEIR EXISTENCE I MADE OTHER COMMUNICATION ARRANGEMENTS AND HAVE ACHIEVED SUCCESS.

I THANK YOU ALL FOR YOUR INFLEXIBLE SUPPORT FOR YOUR QUAINT LITTLE CONSTITUTION. ONCE MY COMRADES AND I COMPLETE OUR MISSION YOUR CONSTITUTION WILL BE USED AS FRGNQ PAPER TO WIPE OUR WEESTOZ.

NOW THAT I HAVE GAINED ENTRY YOU WILL SEE NOR HEAR FROM ME AGAIN UNTIL THE TIME OF OUR CHOOSING. THE ATTACK WILL BE DECISIVE. YOU WILL BE CONQUERED.

I TURN THIS DEVICE BACK TO THE ONE CALLED ABERDEENWRITER.

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA HAHAHAHAHAHAHA!!!

[mr. natural]

Originally posted by SimeyTheLimey:
This is simply incorrect. If NSA knows the originator (outside the US) is a terrorist, all well and good. No warrant is needed to listen to the outside-the-us terrorist if he calls another outside-the-US number. And I agree, if they have probable cause to tap the phone of someone inside the US who is known to be a terrorist. The problem would come if a known terrorist outside the US calls a person inside the US (or who might be a "US person" under the statute who isn't known to be a terrorist. There, the government wouldn't have probable cause that the person inside the US is a terrorist, until they listen to the call and find out that he is. But by then, it is too late, because whatever they learn in the call itself is not usable for a probable cause finding. Under FISA it would have to be destroyed, even if the intercepted call consists of "plant the Anthrax at 16th and Pennsylvania Avenue at Noon tomorrow."

And this is just pure poppycock. If the NSA happens to field a call originating outside the US to someone in the US without a warrant, and they hear such a scenario as you propose, FISA allows for up to 72 hours in which to grant a retroactive warrant covering such a message intercept.

The only reason that I can think you are suggesting that this isn't sufficient is that you believe our intelligence and law enforcement agencies are still so inept about communicating with one another to deal with such a clear cut threat.

Given the ineptitude with which this adminstration has prosecuted the WoT that wouldn't surprise me.

But as to your legal fiction writing this isn't even B grade material.

[smacintush]

Originally Posted by mr. natural

FISA allows for up to 72 hours in which to grant a retroactive warrant covering such a message intercept.

It was my understanding that the 72 hour window is to allow speed in get the tap in place rather than waiting for a warrant to clear when it's too late. Which would mean that the probable cause necessary would have to exist before the tap takes place.

Simey described it exactly as I understand it.

[mr. natural]

Originally Posted by smacintush

It was my understanding that the 72 hour window is to allow speed in get the tap in place rather than waiting for a warrant to clear when it's too late. Which would mean that the probable cause necessary would have to exist before the tap takes place.

Simey described it exactly as I understand it.

Well, accepting Simey's description is wrong. But then again, arguing with lawyers about the law is like wrestling with snakes.

[smacintush]

Originally Posted by mr. natural

But then again, arguing with lawyers about the law is like wrestling with snakes.

[goMac]

Originally Posted by aberdeenwriter

The wire-tap leak was an example of aiding and abetting the enemy during times of war. It should be investigated and prosecuted as such.

Unless people in the Bush administration leak names of spies. That's perfectly acceptable.

[mr. natural]

Originally Posted by arbedeenwriter

The wire-tap leak was an example of aiding and abetting the enemy during times of war. It should be investigated and prosecuted as such.

I missed that one.

Here's a worthy reply:

The President and his toadies are now apparently interested in identifying and criminally prosecuting the person who "leaked" his illegal and unconstitutional wiretap order to the public. If protecting the Constitution is now a federal crime, Mr. President, let me declare to you that you can consider me to be that person and I will gladly face your charges in a court of law. I'm sure it will take you no time to unmask my anonymous identity with your new-found powers of warrantless searches so I expect to hear from your agents soon.

[aberdeenwriter]

Originally Posted by mr. natural

I missed that one.

Here's a worthy reply:

The President and his toadies are now apparently interested in identifying and criminally prosecuting the person who "leaked" his illegal and unconstitutional wiretap order to the public. If protecting the Constitution is now a federal crime, Mr. President, let me declare to you that you can consider me to be that person and I will gladly face your charges in a court of law. I'm sure it will take you no time to unmask my anonymous identity with your new-found powers of warrantless searches so I expect to hear from your agents soon.

Tease!

[aberdeenwriter]

Originally Posted by goMac

Unless people in the Bush administration leak names of spies. That's perfectly acceptable.

It's being investigated.

[SimeyTheLimey]

Originally Posted by dcmacdaddy

Yeah, it was about 180 across the river from me who died. I remember going out on to the Mall to see the smoke rising from the Pentagon. And I remember seeing the first couple waves of fighter jets come screaming up the Potomac and take up formation over the city--The sonic booms were deafening. So what? Is that memory somehow supposed to make me willing to see the 4th Amendment compromised to prevent such an occurrence from happening again? I hope that's not what you are trying to argue. I would be MORE than willing to accept another attack on our nation's capital if it means not allowing our national intelligence agencies to conduct un-regulated domestic spying.

But anyway, your arguments ring hollow. I have not been arguing about a police state. I am arguing about a principle that says fundamental respect for the Constitutional right to privacy is more important than the possibility of catching some terrorists through un-regulated domestic spying. (It's not like we are going to catch all terrorists through un-regulated domestic spying or even catch any; un-regulated domestic spying just increases our chances of catching some.)

Oh, and who here is arguing that pre-1978 America is some kind of fascist dictatorship? Am I? Did I say any such thing or intimate that was my concern? NO! (Give Zimphy back his projector, he probably needs it back for use in another thread.) I have said it before and I will say it again: I am willng to accept an increased risk in the likelihood of a terrorist attack due to not allowing un-regulated domestic spying.

I have said also that I am more than willing to modiy or repeal FISA to make it easier for our national intelligence service to conduct domestic surveillance AS LONG AS they have a specific target in mind. Do whatever takes to make it easier for the CIA and/or NSA to spy on people in the US, citizens or otherwise, but make sure there are procedures in place such that they CANNOT spy indiscriminately, so that they have specific individuals in mind when they conduct a domestic surveillance operation. All I want is specific legal requirements such that our national intelligence agencies cannot conduct un-regulated domestic spying operations.

Why is that such a big deal? Does anyone here want the national intelligence agencies to be able to conduct domestic spying without any strictures on their actions?

Ah, so close.

Basically, we agree on the parameters of the debate. FISA was never necessary and is nothing more than a balm that makes you sleep better at night. FISA cannot reduce the chances of an intelligence agency listening to the wrong conversation to zero. Like ordinary warrants, it uses a probable cause standard. Probable cause is not certainty. So no matter how you structure it, some non-terrorist calls will be intercepted. The same would be the case if you required each and every wiretap to be approved by the full supreme court.

On the other hand, you recognize that every level of additional procedures will cause intelligence to be lost. And in an age of terrorism, that means people could die. I'm glad you are honest enough to say that you want procedures that could protect terrorists, because you are more worried about your own government accidentally listening. However, I think most Americans would disagree with you, and ultimately, that will decide the issue.

All procedural issues like this are a trade-off. Ordinary criminal warrants are a trade off. They let the guilty go free. But in most criminal matter, the lives of thousands are not at stake from a single error. In national defense, they are. It changes the balance.

I'm curious, though, how come this one exception to a warrant requirement keeps you up at night? There are a dozen or more judicially-created exceptions to the Fourth Amendment, and they result in literally tens of thousands of warrantless searches every year. Most searches are in fact carried out without a warrant. So you have vastly more chance of the government conducting a warrantless search in that context, but you don't seem to care. I can't help thinking this is what concerns you because this is the Bush Administration doing something that the New York Times disapproves of, and wrote about. They don't write about the cop down the street searching a car without a warrant or doing a Terry stop, or looking through a window, etc. But all of those are warrantless searches and people go to jail all the time based on the results of those searches.

[dcmacdaddy]

Originally Posted by SimeyTheLimey

On the other hand, you recognize that every level of additional procedures will cause intelligence to be lost. And in an age of terrorism, that means people could die. I'm glad you are honest enough to say that you want procedures that could protect terrorists, because you are more worried about your own government accidentally listening. However, I think most Americans would disagree with you, and ultimately, that will decide the issue.

Yes, I want procedures that "could protect terrorists" but WILL protect citizens from un-regulated domestic spying. My concern is not for the terrorists--thanks for trying to imply it is--but for US citizens being spied upon without justification from the government doing the spying.

Originally Posted by SimeyTheLimey

All procedural issues like this are a trade-off. Ordinary criminal warrants are a trade off. They let the guilty go free. But in most criminal matter, the lives of thousands are not at stake from a single error. In national defense, they are. It changes the balance.

There is no guarantee a single missed call will result in the death of thousands of people or even an individual person. Is it a possibility? Yes. Is it a given? No.

Originally Posted by SimeyTheLimey

I'm curious, though, how come this one exception to a warrant requirement keeps you up at night? There are a dozen or more judicially-created exceptions to the Fourth Amendment, and they result in literally tens of thousands of warrantless searches every year. Most searches are in fact carried out without a warrant. So you have vastly more chance of the government conducting a warrantless search in that context, but you don't seem to care. I can't help thinking this is what concerns you because this is the Bush Administration doing something that the New York Times disapproves of, and wrote about. They don't write about the cop down the street searching a car without a warrant or doing a Terry stop, or looking through a window, etc. But all of those are warrantless searches and people go to jail all the time based on the results of those searches.

I'm curious myself, now. How come you are framing your supporting arguments for justifying un-regulated domestic spying in terms of domestic criminal privacy laws when all along you have been telling Gee-Man and captain kangarooski that this is not a domestic criminal matter but a national defense matter. So, why are you now using those same justifications to bolster your argument when you told others they were in-appropriate as justifications? If you want to convince me of your arguments regarding the justification for un-regulated domestic spying why don't you do so in terms of military defense procedures? I'm, not saying you will convince me, but at least you would be logically consistent in your responses to me and Gee-man and captain kangarooski; And it is that consistency which would give your logical arguments more merit worthy of consideration.

Oh, if the New York Times had revealed the Gore Administration was doing these activities I would still be making these same complaints. Who is the President is not important to me. What is the President doing IS important to me. And I don't like a President who thinks he does not have to follow the Constitution he is sworn to uphold.

[SimeyTheLimey]

Originally Posted by dcmacdaddy

Yes, I want procedures that "could protect terrorists" but WILL protect citizens from un-regulated domestic spying.

That's not humanly possible, unless what you mean is simply shut the NSA down entirely. It's all a question of trade offs. You can increase the hurdles needed to authorize wiretapping, and if you do that, you will decease the liklihood of listening to the wrong call, but never to zero. A probable cause standard is never that certain. In all warrants, there are warrents issued where the probable cause turns out to be mistaken. The same goes for any standard you care to create. You can never make an application process completely foolproof.

On the other hand, if you increase the hurdles, you necessarily will increase the likelihood of missing a vital call that you should be tapping. This brings us to the next issue:

There is no guarantee a single missed call will result in the death of thousands of people or even an individual person. Is it a possibility? Yes. Is it a given? No.

This is exactly correct. But the question is whether it is a risk worth taking. I'd say no. Not when the only cost is minimal. The cost here is that innocent people will have their telephones tapped. Being innocent, the cost to them will be precisely zero. However, the cost of that missed call could be thousands of lives. It's a pretty simple calculation, and quite different from the calculation used in a criminal context where the average criminal, individually, isn't capable of that much mayhem.

I'm curious myself, now. How come you are framing your supporting arguments for justifying un-regulated domestic spying in terms of domestic criminal privacy laws when all along you have been telling Gee-Man and captain kangarooski that this is not a domestic criminal matter but a national defense matter.

It ought to be a national defense matter, and not a criminal law matter. However, the origins of the Fourth Amendment, most of the case law, and the analogous procedures are all criminal law issues. So long as there are procedures grounded in criminal law, those are the analogies we have to deal with. Also, in every case where warrantless searches and the Fourth Amendment are discussed, you get a discussion of exactly the same kind of trade-off issue I am raising. So it is relevant background, and maybe you should take a look at it.

It is, however, different in its application. The difference between searches in the criminal context and in a national defense context is the difference between a small number of people capable and willing to kill thousands, versus a large number of people individually capable of and willing to create relatively small amounts of damage. Your average criminal might smoke a joint, or rob someone, or even murder a person. They generally don't aspire to slaughter by the thousands. Terrorists do and it changes the risk/benefit calculations for the cost of an erroneous wiretap, versus the cost of a missed proper wiretap.

This is why the criminal yardstick is almost exactly the opposite one from the one that we should be using. Analogizing is fine. But mindlessly applying the same standards in completely different contexts is stupid, imho.

Since you are asking me questions, can I ask you one? It's a political question. I want to know where the concern is coming from since it seems to be disconnected from reality. What about all those tens of thousands of other warrantless searches I pointed out? Why aren't they of concern to you? If your concern is procedural, why is it when a wiretap requires individual approval of the upper levels of the Department of Justice and notification to the House and Senate Intelligence Committees, as well as the leaderships of both parties in both houses, that is a concern enough to cause howls of outrage. But when tens of thousands of police officers are given practical carte blanche to search without a warrant and they actually use that authority day-in-and-day-out in every jurisdiction of this country all the time, then nobody notices? It's been going on for decades continuously, and it far, far, dwarfs the handful of searches carried out under the NSA program. Don't you think that is kind of odd? Doesn't it make you wonder why the sudden concern with warrants?

And please, don't tell me this is off-topic. We are talking about warrantless searches by the government. If you try to duck this question again, I'm going to suspect that you don't really care about warrantless searches by the government. Rather, what you really care about is warrantless searches by this particular Administration.

[dcmacdaddy]

Originally Posted by SimeyTheLimey

It ought to be a national defense matter, and not a criminal law matter. However, the origins of the Fourth Amendment, most of the case law, and the analogous procedures are all criminal law issues. So long as there are procedures grounded in criminal law, those are the analogies we have to deal with. Also, in every case where warrantless searches and the Fourth Amendment are discussed, you get a discussion of exactly the same kind of trade-off issue I am raising. So it is relevant background, and maybe you should take a look at it.

It is, however, different in its application. The difference between searches in the criminal context and in a national defense context is the difference between a small number of people capable and willing to kill thousands, versus a large number of people individually capable of and willing to create relatively small amounts of damage. Your average criminal might smoke a joint, or rob someone, or even murder a person. They generally don't aspire to slaughter by the thousands. Terrorists do and it changes the risk/benefit calculations for the cost of an erroneous wiretap, versus the cost of a missed proper wiretap.

This is why the criminal yardstick is almost exactly the opposite one from the one that we should be using. Analogizing is fine. But mindlessly applying the same standards in completely different contexts is stupid, imho.

Since you are asking me questions, can I ask you one? It's a political question. I want to know where the concern is coming from since it seems to be disconnected from reality. What about all those tens of thousands of other warrantless searches I pointed out? Why aren't they of concern to you? If your concern is procedural, why is it when a wiretap requires individual approval of the upper levels of the Department of Justice and notification to the House and Senate Intelligence Committees, as well as the leaderships of both parties in both houses, that is a concern enough to cause howls of outrage. But when tens of thousands of police officers are given practical carte blanche to search without a warrant and they actually use that authority day-in-and-day-out in every jurisdiction of this country all the time, then nobody notices? It's been going on for decades continuously, and it far, far, dwarfs the handful of searches carried out under the NSA program. Don't you think that is kind of odd? Doesn't it make you wonder why the sudden concern with warrants?

And please, don't tell me this is off-topic. We are talking about warrantless searches by the government. If you try to duck this question again, I'm going to suspect that you don't really care about warrantless searches by the government. Rather, what you really care about is warrantless searches by this particular Administration.

WW?!?! You'eve edited this post at least twice since I read it last night. Good job!


So, you're still stuck on domestic legal comparisons even though you castigated Gee-Man and captain kangarooski for using similar arguments. Okay? I'll play. What is the difference between a police officer conducting a warrantless search of a person's car during a traffic stop and the NSA conducting un-regulated domestic spying? For starters, the person having their car searched during a traffic stop knows it is being searched. So, the trade-off between privacy rights and law enforcement in this scenario is that the police can conduct a warrantless search of a person's vehicle but the person knows the vehicle is being searched: The police get the right to do their job and the citizen has an expectation that they will know when their property is being searched. It's not like the police can go search an un-occupied parked car--and I mean physically searching the insides of the vehicle, not the glancing in the window searching the Supreme Court said was acceptable--without obtaining a warrant.

However, with the un-regulated domestic spying scenario the subject of the warrantless search can't know they are being surveilled, obviously. So, the trade-off between privacy rights and law enforcement is rendered moot. There are no trade offs as privacy rights have been rendered invalid. It becomes a scenario with a complete absence of privacy rights on the part of the person being "searched". And that is a trade-off that is not acceptable to me as a citizen. I am more than comfortable with the government being given the power to conduct warrantless searches when the subject of those searches knows about it when the search is being conducted. But since this approach is not possible with covert surveillance I want there to be an extra procedure in place so that someone in the government is questioning, on my behalf as a citizen, the necessity of conducting searches whereby the subject does not know about the search.


Now that we have discussed this in terms of domestic criminal law can we get back to discussing this in terms of national military defense. What are the national military defense justifications for allowing the NSA to conduct un-regulated domestic spying? Is the desire to prevent a possible future attack enough of a "national defense" justification to allow un-regulated domestic spying? Is the desire to prevent a possible future attack enough of a justification for the loss of a person's complete right to privacy? I have already said numerous times that I think the possibility of preventing a future terrorist atack is not worth the trade-off that comes from allowing un-regulated domestic spying. And you have said you think it is an acceptable trade-off. So, unless you've got a new angle to your argument I think we are going to wind up just going in circles. I am comfortable in my conscience knowing that my oppostion to un-regulated domestic spying could result in the possibility of another successful terrorist attack on American soil (an attack that might possibly take my life considering where I work and live).

[Gee-Man]

SimeyTheLimey--

While your posts are always interesting to read, they're kind of like a hit-and-run accident - you're not sure whether to go after the driver speeding away, or stop and rescue all the wounded facts left bleeding in the street. I'll suppose I'll have to start with the latter.

Originally Posted by SimeyTheLimey

Gee-Man: First of all, your leaks don't qualify as "facts" in my book. They are assertions by people with axes to grind and who are breaking the law by even speaking. Assuming that they know anything about the details of this program, of course, which is unlikely given that information like this is compartmentalized. When you work for an agenct like NSA, you aren't given access to everything. It is controlled on a need to know basis. Having a clearance isn't enough. The AG and the President both say the program intercepts calls from people believed to be al-Queda outside the US calling numbers that are inside the US.

I see how this works. If you don't like the facts, simply dismiss them and invent your own assumptions. Most of this is pure wishful thinking on your part.

Despite the fact that you have no idea who the people are who have revealed this information, or their security clearances, let alone their motivations, you have decided to insert your own speculation as "truth". So far, absolutely zero evidence has surfaced that indicates that anybody revealing this information has an axe to grind. Your imaginings about who they are and why they might be doing this isn't an acceptable substitute.

On the other hand, we do know for a fact that the people you seem to unquestionably trust to tell the truth about this program have both already lied about it. President Bush lied when he claimed he was getting warrants before doing wiretaps, and Attorney General Gonzales lied when was asked about this very subject under oath and claimed that it was a "hypothetical question" even thought he knew it was happening at that moment. And, they continue to lie about it to this day when they claim the president has the inherent legal authority to conduct warrantless wiretaps.

So I'll take my sources over yours, thanks. Even if your wishful thinking becomes true, people with Axes To Grind™ are far more credible in my book than people with Asses To Cover™.

Originally Posted by SimeyTheLimey

I agree with this, but probably not for the reason you think. They should have simply repealed FISA. The statute was always a mistake from its inception (and for the record, I thought that when I first did research touching on it back in 2000). They also should have declared war using the Barbary Pirates example as a model. I honestly don't think that any of us realized back in 2001 the extent to which liberals would try to whittle down support for national defense. It seemed at the time like it was all beyond politics. In hindsight, these things should have been done before the resolve of the country was distracted by business as usual.

Just when you start making a halfway decent point, you go ahead and ruin it by inserting this melodramatic nonsense about the supposed evils the liberals are up to. "Try to whittle down support for national defense"? Please, spare us. This program doesn't help national defense at all. It's only the people who keep presenting false choices between protecting our rights and protecting our safety who whittle down support for national defense.

You can believe FISA is unnecessary all you want, that's your opinion. I just don't need to hear that your opinion is sacrosanct while our opinion is merely politics. You've done enough fact-twisting and general avoidance of uncomfortable truths in this thread to prove otherwise.

Originally Posted by SimeyTheLimey

This is simply incorrect. If NSA knows the originator (outside the US) is a terrorist, all well and good. No warrant is needed to listen to the outside-the-us terrorist if he calls another outside-the-US number. And I agree, if they have probable cause to tap the phone of someone inside the US who is known to be a terrorist. The problem would come if a known terrorist outside the US calls a person inside the US (or who might be a "US person" under the statute who isn't known to be a terrorist. There, the government wouldn't have probable cause that the person inside the US is a terrorist, until they listen to the call and find out that he is. But by then, it is too late, because whatever they learn in the call itself is not usable for a probable cause finding. Under FISA it would have to be destroyed, even if the intercepted call consists of "plant the Anthrax at 16th and Pennsylvania Avenue at Noon tomorrow." See my post above about why bootstrapping doesn't work for warrants.

This doesn't sound right at all. Bootstrapping doesn't apply here because the basis of the warrant doesn't need to be the contents of the conversation itself. It's already been established that the FISA court has a much looser standard for probable cause than a regular criminal court, all that is needed is to argue that someone might be "an agent of a foreign power". If a known Al-Queda operative is calling someone in the United States, there's your standard of proof for a warrant right there, before the conversation even begins. You can listen in on the call and get the FISA warrant retroactively based solely on the existence of the call. And based on FISA's history, it's extremely likely (as in a 99.98% chance) that it will be granted.

You're also again avoiding the main question, which is why go around FISA in the first place when it either a) clearly applied, or b) could have been changed when it didn't. We've already established that Bush declined to do so when he had the chance. You can't blame this one on the eeeeevil liberals.

Like Nixon, Bush seems to think that whatever he does as president can't be illegal. I wish I knew where that sense of entitlement and arrogance came from. Oh, wait:



Some people never change.

[Spliffdaddy]

"Like Nixon, Bush seems to think that whatever he does as president can't be illegal. I wish I knew where that sense of entitlement and arrogance came from. Oh, wait:"

Bill Clinton?

[mr. natural]

dcmacdaddy:

Your points are quite valid as far as they go in trying to answer Simey's question. But such an answer doesn't go far enough to get at the heart of why we end up going in circles with him. For what it's worth, here's my take.

I do not like the many ways in which our government has the means and wherewithal to *spy* on me without a warrant. I've had helicopters swoop over my homestead looking for pot plants and I don't like it; not because I'm growing pot, which I'm not, but because I find it intrusive and excessive. It also is a vivid reminder of the brute power a police state could muster against any individual.

My allegiance is not to the state but to us as individuals with sovereign inalienable rights. This is not to say that I'm not grateful to live in such a country as ours, but that I believe it is by the strength of our individual character and responsible use and defense of our rights that this is a good country, and not by the trappings of state strength, be it military/industrial/GNP/executive power, etc., are we a good or worthy people.

So, to the extent that a government and it's agencies of law enforcement have power to wield over me, I am made uncomfortable and I generally don't like it. However, I am a law abiding citizen and I make do with the notion that I have little to worry about when it comes to the particular sort of warrant less spying that has become a more common and everyday feature of our lives. Thinking of all the video surveillance cameras in operation today, I don't like it, but what's one to do?

As to the "exceptions" to the 4th Amendment's Probable Cause and Warrant clause, I accept that these are generally well considered ones, for having been run thru the various levels and rigors of our open and transparent legal system. I may not always agree with them, but I'll abide them as a citizen who values such rules of law. (Yet, I would rather say these "exceptions" are judicially-crafted, rather than "judicially-created," as if out of thin air, which hints at *bad* judicial activism.) More often than not these "exceptions" have grown out a collective array of long legal battles.

Yet, what Bush has done with this *rule of law* is to claim an authority about such matters that I don't agree with in the least. He is not above the law, and it is not within his power to make it so, but his team knows he can probably get away with it here, and so he does it anyway. (His interest in seeking to resolve any of this thru the courts is nil.) That he also uses the necessity of intelligence gathering secrecy to pull this ploy on our rights, because of a National Security threat, does not makes it right either.

Whereas Simey sees this issue thru the lens of a terrorism threat which seeks to dominate and diminish us, and takes Bush's actions as protecting us from harm as a whole, I see it thru the lens of an unshakable wariness about government power which does dominate us and does seek to diminish my sovereignty as a natural person with inalienable rights. For me, this is just another reminder of the brute strength the state can and does wield against any of us.

Admittedly I have not liked Bush from the get go, yet he could of done much to win me over, but he's continually squandered any good will I had to give. After all the ways this administration has hoarded executive power and privilege, and misled us on so many scores, why should I trust him now?

I have seen absolutely no reason to believe that the FISA requirements are so cumbersome and ill-suited to the task of protecting both our rights and from a terrorist attack. It may not be perfect, but it is balanced, and we haven't been attacked again (not yet at least). Still, Bush's unilateral action with regard to FISA undermines all this in a way I believe is totally unnecessary and illegal.

As has been pointed out, they publicly proclaimed satisfaction with the legal tools at hand, while skirting them behind our back. (It's all such a hush-hush national security secret. )

The expressions of outrage over this power hack is continually turned inside out on us with the complaint that such a concern undermines our National Security - when there is no proof of this at all - and/or that we care more for terrorist's rights - when again there is no proof of this at all.

Simey calculates that the damage done to our liberties is minor compared to the damage of a future terrorist attack. This is all well and good, but it completely obfuscates and ignores the fact that there are a vast number of folk who still believe that our individual rights are a national security treasure equal too (if not more precious) than any presidential claim to protect the national security of state by illicit subterfuge which secretly infringes upon our rights.

Obviously this is a serious question of Constitutional balance that we are not going to resolve, nor will we resolve our differences of opinion about any of this from the angles which we assume are the correct ones to hold dear.

Suffice it to say that Simey weighs in on the side of the state (especially executive power privilege, even if it is illicit, while countenancing bold-faced lies and misleading deceptions - not to the terrorists, but to us as a whole) as sovereign, whereas I (along with others) weigh in on the side of our individual rights (while calling to task such governmental malfeasance) as sovereign in this clash of national security responsibility.

And so it goes, round and round...


Until it comes to actually protecting us in a national security emergency, when I'll be sure to count on this guy for help.



Is that "Let them eat cake" he's singing.

[aberdeenwriter]

Mr Natural, Gee-Man and dcmacdaddy, you can sit down and find another tree to bark up.

Here's a partial transcription from last night's Charlie Rose Show with guest, Attorney General Alberto Gonzales.

Game. Set. Match.

Attorney General Alberto Gonzales: FISA doesn't cover ALL electronic surveillance...must ask yourself several questions:

Who is the target? (Is the target an American citizen?)
Where is the target? (Is the target in the United States?)
Where is the acquisition occurring?
What are you trying to acquire? (Is it radio communication or is it wire communication?)

FISA lays out a framework to obtain electronic surveillance. To do that the AG must submit an application to a special court, the FISA court, and the application must include a wide variety of things.

After 9/11 the POTUS challenged everyone in the administration to think about ways we could better protect American citizens from a similar kind of attack. And we quickly realized we had holes in our surveillance because of the procedures in FISA.

If we had information about a particular person that we believe was communicating with (al qaeda) we were not able to initiate surveillance as quickly as we thought would be necessary in order to get valuable information.

And so the President asked, 'do we have the capability and do we have the need to get this information?' Yes, we do have the capability, we do have the need in certain cases to get this information more quickly.

And the question the POTUS must ask is, 'do I have the legal authority to authorize this kind of activity?'

And we believe the President does have the legal authority...

Charlie Rose: VP Cheney said two criteria needed to be met, it had to be al qaeda related and it had to be a call to or from outside of the United States.

AGAG: One end of the communication had to be outside the US and where we have reasonable grounds to believe that one party to that communication is a member or agent of al Qaeda or an affiliated terrorist group.

Now, that determination is not made by some political hack somewhere. This is made by an intelligence professional out at NSA.

These are people who know about it, who know al Qaeda tactics, al Qaeda communications, al Qaeda aims, as Gen. Hayden has said, the Deputy Director of national intelligence for this country, these people are the best at what they do, they are very good at this. They know about al Qaeda and they would be in the best position to make an evaluation as to whether or not someone isn't in some way a member or affiliated with al Qaeda.

The POTUS drew the line that this secret surveillance program would not be used to listen to two parties (two al Qaeda members communicating with each other) within the US. Other tools, however would be used and that includes the provisions of FISA.

There is an emergency authorization provision within FISA which allows the AG to give his verbal authorization for surveillance to be initiated immediately and the court order is issued after the fact (within 72 hours) but before AG Gonzales gives that ok he must know that ALL the FISA requirements are met.

This isn't like a 72 hour "Hall Pass" to engage in "free electronic surveillance."

When he gives the authorization he's required by law to make sure all the FISA requirements are met. Then with 72 hours they must submit "a very thick application a formal legal brief, almost," to the FISA court, for their consideration and hopefully, their approval.

Article 2 of the Constitution and the Forces Resolution are not the only possible mechanisms which may authorize legal search.

All searches DO NOT require a warrant.

There is within the Supreme Court's jurisprudence a special needs exception to the normal warrant requirement recognized for many many years by the Supreme Court.

If you're talking about activities outside of normal law enforcement, in the national security area, where speed and agility is critically important, that special needs do provide an exception for the normal warrant requirements. So they believe the activities directed by the POTUS is fully consistent with long standing presidential practice and fully consistent with the special needs jurisprudence of the Supreme Court.

And because it is limited in terms of authorization in time, every 45 days it is renewed, it is based on the continuing threat posed by al qaeda, it is reviewed periodically by the NSA Inspector General, there is oversight by the General Counsel's office, because we have provided periodic briefings to leaders in Congress, we believe the combination of all those factors make these searches reasonable under the Supreme Court jurisprudence...

http://video.google.com/videoplay?do...3ACharlie_Rose

[cpt kangarooski]

aberdeenwriter--

Mr Natural, Gee-Man and dcmacdaddy, you can sit down and find another tree to bark up.

Here's a partial transcription from last night's Charlie Rose Show with guest, Attorney General Alberto Gonzales.

Game. Set. Match.

You mean good old AG 'Torture Memo' Gonzales? I don't think he's a very good source for you here. We already know how little he believes in the rule of law.

[aberdeenwriter]

Originally Posted by cpt kangarooski

aberdeenwriter--


You mean good old AG 'Torture Memo' Gonzales? I don't think he's a very good source for you here. We already know how little he believes in the rule of law.

Are you saying you didn't read ANY of the Vice President's interview I posted and only part of the AG's interview?

If so, you missed the parts which mentioned the layers and layers of impartial, unbiased and bipartisan oversight and approvals, safeguards, checks and balances surrounding this program and it's implementation which go beyond whatever you might think of the AG, VP or POTUS.

After all the work that's been done by the administration to make this program work to save your (and my) bacon, all the work they did to find a way to do it within the law, all the work they did to TRY to keep it secret, all the work they did to reluctantly give you the details about it, all the work that PBS and two of it's shows did to bring you the information and all the work I did to get it to these pages...(PHEW!)

All that work just so you could do a little name calling and character impugning?

Gee, it hardly seems worth all the trouble.

Little wonder they keep things from us.

[cpt kangarooski]

I read what you posted, but given Gonzales' record, I have no confidence in him. Likewise, given the record of the entire administration, I have no confidence in it. So when he discussed details of implementation, I don't believe that they are really being followed, and I still do not think that it is constitutional. (And remember, I'm not defending FISA)

After all the work that's been done by the administration to make this program work to save your (and my) bacon, all the work they did to find a way to do it within the law, all the work they did to TRY to keep it secret

Of course, if you believed, as I do, that the program does not help secure our safety, that it is grossly illegal and endangers our country and our government, and that they tried to conceal their illegal and unjustifiably dangerous activities, you probably wouldn't be upset that it was difficult for them. It should be more difficult, and it shouldn't've been done at all.

All that work just so you could do a little name calling and character impugning? ... Little wonder they keep things from us.

So you think that the government should be able to conceal illegal activities just to keep anyone from saying nasty things about the culprits? Are they so thin-skinned? Should it really be a matter of national security when an American says that they don't like Bush? Is this anything other than a significant step on the road of fascism?

Impugning the character of government officials is an American tradition.

[aberdeenwriter]

Originally Posted by cpt kangarooski

I read what you posted, but given Gonzales' record, I have no confidence in him. Likewise, given the record of the entire administration, I have no confidence in it. So when he discussed details of implementation, I don't believe that they are really being followed, and I still do not think that it is constitutional. (And remember, I'm not defending FISA)



Of course, if you believed, as I do, that the program does not help secure our safety, that it is grossly illegal and endangers our country and our government, and that they tried to conceal their illegal and unjustifiably dangerous activities, you probably wouldn't be upset that it was difficult for them. It should be more difficult, and it shouldn't've been done at all.



So you think that the government should be able to conceal illegal activities just to keep anyone from saying nasty things about the culprits? Are they so thin-skinned? Should it really be a matter of national security when an American says that they don't like Bush? Is this anything other than a significant step on the road of fascism?

Impugning the character of government officials is an American tradition.

Check the facts of the matter. Ask yourself who are the individuals on the Senate Intelligence Committee who had full knowledge of the program. Who is the NSA IG? Who is the General Council? Are they fools? Are they sycophants? Are they Republicans? Are they Conservatives? ALL OF THEM? Does there exist, within Supreme Court jurisprudence, a special needs exception? What does it mean? When is it allowed? For how long? What other conditions are there for it's use? What else should we know than the information we have already in this thread?

All searches DO NOT require a warrant.

There is within the Supreme Court's jurisprudence a special needs exception to the normal warrant requirement recognized for many many years by the Supreme Court.

If you're talking about activities outside of normal law enforcement, in the national security area, where speed and agility is critically important, that special needs do provide an exception for the normal warrant requirements. So they believe the activities directed by the POTUS is fully consistent with long standing presidential practice and fully consistent with the special needs jurisprudence of the Supreme Court.

And because it is limited in terms of authorization in time, every 45 days it is renewed, it is based on the continuing threat posed by al qaeda, it is reviewed periodically by the NSA Inspector General, there is oversight by the General Counsel's office, because we have provided periodic briefings to leaders in Congress, we believe the combination of all those factors make these searches reasonable under the Supreme Court jurisprudence...

[SimeyTheLimey]

Originally Posted by dcmacdaddy

What is the difference between a police officer conducting a warrantless search of a person's car during a traffic stop and the NSA conducting un-regulated domestic spying? For starters, the person having their car searched during a traffic stop knows it is being searched. So, the trade-off between privacy rights and law enforcement in this scenario is that the police can conduct a warrantless search of a person's vehicle but the person knows the vehicle is being searched: The police get the right to do their job and the citizen has an expectation that they will know when their property is being searched.

Sorry, that doesn't work as a distinction. There are many species of warrantless searches. Cars aren't the only one. In many of those warrantless searches, the person whose property is searched isn't necessarily present during the search and need not know that it happened. So your distinction is meritless. I'll give a few examples, but I am not going to run down all the possibilities because it would be a long list indeed. Here are just some off the top of my head:

First, you cite plain view, showing that you do understand that a person isn't always present when a warrentless search is conducted. Plain view can apply anywhere, including a person's home. It is not limited to cars.

Another example is consent searches, including the consent of third persons. If you have a roommate, or share your home, that person can let the police conduct a warrantless search of much of your home. Any place where they have access, they can let the police search. That can include your property.

Another example is the various kinds of exigent circumstances that can justify a warrantless search. Many scenarios exist where there is an exigency, and you may not be there.

Your garbage and anything else you discard can be searched without a warrant. You would be amazed what people can learn about you from your garbage. Mail, bills, credit card receipts, old computers and their hard drives . . .

Your bank records can be obtained without a warrant. The bank will usually demand a subpoena, but that is not a warrant an is easy to get. You will not know it is happening.

Your mail can be checked without a warrant and the return addresses noted.

Your telephone call logs (i.e. the numbers, it is called a pen registry) can be tracked without a warrant.

One of the biggest examples is private searches. It is quite common for people to be caught in internet crimes because they take their computers to be repaired and the repairer finds illegal content. They can pass the computer on to the cops and there is no 4th Amendment issue. You will not be present during the "search."

Another private search that results in a lot of arrests is when landlords enter apartments for maintenance and find drug paraphenalia, etc. They call the cops, and the cops arrest. It is not a 4th Amendment search.

The police can take paint samples from your parked car without you being there. No warrant is needed.

I could go on, but you get the point. There are many, many, exceptions to the warrant requirement in ordinary law enforcement that you neither seem aware of, or seem to care about. This is dispite the fact that they result in many more arrests than any intelligence gathering operation is ever likely to (assuming that arrests are likely at all in intelligence gathering, which I doubt). You are worried about a handful of carefully-screened, highly supervised searches so sensitive that the Attorney General himself had to authorize them and brief ranking senators of both parties. Meanwhile, cops all around you are searching people without warrants and with practically no supervision, and you don't even know and don't seem to care. From this, I am afraid I conclude that most of the anguish is political and partisan in nature.

[Kevin]

The terrorist threat is fake! But them wiretaps, WATCH OUT MAN!

I swear sometimes I think I live in Bizarro world.

[aberdeenwriter]

Originally Posted by Kevin

The terrorist threat is fake! But them wiretaps, WATCH OUT MAN!

I swear sometimes I think I live in Bizarro world.

Sometimes I believe I unintentionally 'push' posters into defending ridiculous positions. Then, when they have no other escape they just become ridiculouser and ridiculouser.

But some folks are just plain bizarro or as I used to say, FUZZY BRAINED!

[dcmacdaddy]

Originally Posted by SimeyTheLimey

You are worried about a handful of carefully-screened, highly supervised searches so sensitive that the Attorney General himself had to authorize them and brief ranking senators of both parties. Meanwhile, cops all around you are searching people without warrants and with practically no supervision, and you don't even know and don't seem to care. From this, I am afraid I conclude that most of the anguish is political and partisan in nature.

Good to know about the searches part. But what you said above is incorrect. The whole point of my complaint is that the government is not using the procedures it already has to conduct "carefully-screened, highly supervised searches". The government HAS procedures to conduct this type of spying and DID NOT use them. Heck, on 12 September 2001 the presiding judge of the FISA court granted the Bush Administration its request to greatly reduce the paperwork requirements to conduct domestic surveillance--the paperwork requirements for any targets known to have an Al Queda connection were waived altogether--and this Administration STILL chose to circumvent the law and conduct un-regulated domestic surveillance operations. That is my complaint: This Administration is willfully circumventing procedures put in place to conduct this type of spying.

And you can blather and froth at the mouth all you want that my complaint is political but you can be damned sure I'll still be here making these complaints long after the Bush Administration has left office. I will be making these complaints as long as there are presidential administrations who choose to circumvent the powers THEY ALREADY HAVE to conduct un-regulated domestic spying. You should bookmark this post. If the incoming administration on 20 January 2009 does not renounce the practice of un-regulated domestic spying I'll be right back here leveling at them the same charges of Presidential abuse-of-power I have leveled at our current administration.

[SimeyTheLimey]

Originally Posted by dcmacdaddy

I will be making these complaints as long as there are presidential administrations who choose to circumvent the powers THEY ALREADY HAVE to conduct un-regulated domestic spying.

Actually, I think the president is using the powers he already has under Article II. Congress doesn't create those powers.

Oh, and by the way, by definition, a call from outside the US to someone inside the US is an international call. Calling it "domestic spying" is nice rhetoric, but not accurate.

[aberdeenwriter]

Originally Posted by dcmacdaddy

I will be making these complaints as long as there are presidential administrations who choose to circumvent the powers THEY ALREADY HAVE to conduct un-regulated domestic spying.

Hate to dispel such a fine notion, but alas, it won't stand in the face of facts.

There is within the Supreme Court's jurisprudence a special needs exception to the normal warrant requirement recognized for many many years by the Supreme Court.

If you're talking about activities outside of normal law enforcement, in the national security area, where speed and agility is critically important, that special needs do provide an exception for the normal warrant requirements. So they believe the activities directed by the POTUS is fully consistent with long standing presidential practice and fully consistent with the special needs jurisprudence of the Supreme Court.

And because it is limited in terms of authorization in time,

every 45 days it is renewed,

it is based on the continuing threat posed by al qaeda,

it is reviewed periodically by the NSA Inspector General,

there is oversight by the General Counsel's office,

because we have provided periodic briefings to leaders in Congress,

we believe the combination of all those factors make these searches reasonable under the Supreme Court jurisprudence...

The POTUS drew the line that this secret surveillance program would not be used to listen to two parties (two al Qaeda members communicating with each other) within the US. Other tools, however would be used and that includes the provisions of FISA.

[dcmacdaddy]

Originally Posted by SimeyTheLimey

Actually, I think the president is using the powers he already has under Article II. Congress doesn't create those powers.

Oh, and by the way, by definition, a call from outside the US to someone inside the US is an international call. Calling it "domestic spying" is nice rhetoric, but not accurate.

Well, I just checked FindLaw and nowhere in Article II does it state that the President can violate other parts of the Constitution in his role as Commander-in-Chief. In fact, after a cursory search of all of FindLaw, I could find NO mention in the Constitution authorizing the President to circumvent other parts of the Constitution.

Section 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Originally Posted by SimeyTheLimey

Oh, and by the way, by definition, a call from outside the US to someone inside the US is an international call. Calling it "domestic spying" is nice rhetoric, but not accurate.

Yes, it IS an international call, but the spying is being done on a "domestic" recipient of the call. If you want to argue the semantics of the term domestic vis-a-vis its connotations regarding telecommunications, so be it. That is your nit to pick.


Like I said, I'll still be here making these complaints on 20 January 2009. And all your arguments won't convince me that one part of the Constitution authorizes the President to selectively invalidate other parts of the Constitution at his discretion.

[mr. natural]

Simey needs to bone up on the Constitution.

"Article I, Section 8:

The Congress shall have the power...

To make rules for the government and regulation of the land and naval forces."

[dcmacdaddy]

Originally Posted by mr. natural

Simey needs to bone up on the Constitution.

"Article I, Section 8:

The Congress shall have the power...

To make rules for the government and regulation of the land and naval forces."

I'm guessing he is reviewing case law as we speak.

We should expect a full legal dissertation tomorrow on "Presidential Powers in War-Time" with references and footnotes and everything.

[mr. natural]

But he won't be testifying under oath.

[aberdeenwriter]

There is within the Supreme Court's jurisprudence a special needs exception to the normal warrant requirement recognized for many many years by the Supreme Court.

AG Gonzales

[SimeyTheLimey]

Originally Posted by dcmacdaddy

Well, I just checked FindLaw and nowhere in Article II does it state that the President can violate other parts of the Constitution in his role as Commander-in-Chief. In fact, after a cursory search of all of FindLaw, I could find NO mention in the Constitution authorizing the President to circumvent other parts of the Constitution.

Search for "separation of powers." But you would do better to go to a treatise than to jump to the case law. Especially if all you have to work with is findlaw. Findlaw is OK for finding a federal case if you already know what the name of the case is. But it is pretty much useless for legal research. Cases you might want to look at would unclude Goldwater v. Carter (president has implied power to recind a treaty, notwithstanding the advice and consent clause), Humprey's executor (delineates which federal officers can be fired by the president, and in which cases, Congress can limit the powers of the president to fire officers), INS v. Chadha (Congress cannot legislatively veto, executive powers belong to the president), and so on. There are others, I just can't think of them off the top of my head. It has been a few years since I took con law I, which is where these issues were covered.

One though is relevant. Hamdi v. Rumsfeld would be a recent case relevant to the scope of the president's war powers under the authorization by Congress after 9/11. However, it suffers from a common problem. While there are a lot of cases where the president's war powers have been challenged (it happened a lot in the Vietnam era, and a couple of cases made it through distict court in 1990), the courts rarely reach the constitutional merits. Either the courts find a narrower justification (as happened in Hamdi), or the courts prudentially duck the issue. There are a number of ways the federal courts can avoid getting involved in an inter-branch dispute between Congress and the President. One of the main ones here relevant is that the dispute is labeled a "political question" that the branches should figure out politically (which is what is happening now).

In fact, "political question doctrine" would be a good search term for you to use. But google it, then see what google finds for you on findlaw. Findlaw has a terrible search engine. It is not westlaw. The problem is, while the political question doctrine will show you cases where the issues are raised, they won't tell you the answer. That is why most people end up going back to first principles of constitutional law. And one of those principles is that there are inherent powers that the other branches cannot take away. The president's commander in chief power is one of them.

If that seems strange to you, think of this analogy. Imagine Congress tried to pass a law saying the president couldn't veto a certain type of bill, or couldn't pardon a certain type of criminal (other than where that power is already limited in the constitution). I take it that you can see why that act of congress would be unconstitutional, even if it became law over a presidential veto (2/3 of congress can override a veto). The president's veto and pardon powers are constitutionally the president's alone. Congress cannot invade them, even if it thinks it can and legislates accordingly.

[mr. natural]

Originally posted by SimeyTheLimey
Hamdi v. Rumsfeld would be a recent case relevant to the scope of the president's war powers under the authorization by Congress after 9/11.

I'm impressed Simey thought to finally mention this.

In HAMDI et al. v. RUMSFELD, Secretary of Defense, et al., Justice O'Conner, writing for the majority says:

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) ("The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action"); see also United States v. Robel, 389 U. S. 258, 264 (1967) ("It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile").
...
We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was "the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty")

Note the final bold emphasis of mine: The Preservation of Liberty. Not the preservation of State, but the people's sovereign, inherent and inalienable right to Liberty that government is instituted to defend, preserve and protect.

Let me quote again from above: "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile."



But let's move onto another relevant SC decision, one that Hamdi references, as it offers in more detail some of thinking that Hamdi is based on.

In the SC decision about Truman's attempt to takeover Youngstown Steel, Justice Jackson wrote:

"...the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country..."

and added

"That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history."

Justice Black wrote:

"In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute."

Justice Douglas wrote:

"If we sanctioned the present exercise of power by the President, we would be expanding Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency... But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs."

"...as MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER point out, the power to execute the laws starts and ends with the laws Congress has enacted."

Yet, as Simey has otherwise suggested, within this decision there is some mention of the fact that the SC prefers not to get involved in deciding these cases on the basis of the Constitutional intra-branch power struggles they bring to light. This case was no exception as they found merit upon other grounds to decide it.

However, the statements above leave little doubt as to how they might have ruled had it come to deciding such a Constitutional end-run here.

(How the present SC would rule now on the question before us is an open question. One supposes they would find a way to do so on some other technical point of merit, while leaving no doubt that Bush's inherent CiC claims do not otherwise amount to usurping the bed-rock "first principles" as spelled out in the Constitution. This would be my hope, yet with newly enshrined Chief Justice Roberts and now Alito on board, they could well decide to upset this apple cart of checked Presidential power.)

To wit, Justice Douglas wrote:

"Stalemates may occur when emergencies mount and the Nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill. That is a risk inherent in our system of separation of powers. The tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority. The Framers with memories of the tyrannies produced by a blending of executive and legislative power rejected that political arrangement. Some future generation may, however, deem it so urgent that the President have legislative authority that the Constitution will be amended. We could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws but to make some. Such a step would most assuredly alter the pattern of the Constitution."

On another score, especially as it relates to the claims that AG Gonzales and others make today, Justice Jackson wrote:

The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.

Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. "Inherent" powers, "implied" powers, "incidental" powers, "plenary" powers, "war" powers and "emergency" powers are used, often interchangeably and without fixed or ascertainable meanings.

The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself.

There is much else in Justice Jackson's (as well as Douglas's) concurring decision worth reading, about "emergency powers," the advance of Presidential Power, the political parties he heads since our inception, and Congress' part to play in all this. About which he concludes with the following:

"With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up."

I'd only add that it is the duty of us citizens not to do so either.

Originally posted by SimeyTheLimey
That is why most people end up going back to first principles of constitutional law. And one of those principles is that there are inherent powers that the other branches cannot take away. The president's commander in chief power is one of them.

This is farcial. Only you are suggesting that anyone is *taking away* the president's CiC power.

As to "first principles," the framers intent couldn't be more clear. (Do you really want me to start quoting from Madison, Jefferson and Hamilton? ) Congress legislates, especially the domestic conduct during war, and the Presidents executes the laws PERIOD.

Granted, there are moments of emergency when the President does think to act as he deems necessary, which sometimes involves doing things he's not been invested the legal power to do, but more often than not he soon thereafter seeks full Congressional approval it and it is agreed as necessary.

Bush isn't doing the latter, and didn't bother to do so when he easily could of, and this is a very grave problem.

Quoting Justice Jackson again, and it certainly seems apt here even under this crisis:

"In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction."

Hear, hear!

If Georgie Boy wants to continue this practice he needs the approval of the full Congress and the properly enacted legislative code of conduct to do so. For anyone to seriously suggest that this end-run on the Constitution is legal, well, as Arlen Spector says, "he's smoking Duthch Cleanser."

That figures.