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Bush Authorized Domestic Spying

Old 12-20-05, 11:21 PM
  #351  
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Gotta love Cheney
per NYTIMES article page 3:

"You know," he said, "it's not an accident that we haven't been hit in four years."

also...
"It has saved thousands of lives."

Exaggerate much? How does he know that? Sounds like they should have arrested some people if they really stopped something big like this from happening.
Since it hasnt happened, I guess you cant disprove his statment. Personally I think they have not hit us because they are not as organized as our government would lead us to believe they are.
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Old 12-20-05, 11:34 PM
  #352  
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The President announced recently that ten major terrorist attacks have been thwarted - with at least three of those in our country. Reporters dug into this claim and found out it was true.

It was not widely reported on for obvious reasons.
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Old 12-20-05, 11:39 PM
  #353  
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http://www.nytimes.com/2005/12/20/politics/20fbi.html

The link to the article I was referring to.

It just seems to me over the years the War On Terror has been reduced to a war on competing and rival political groups and parties, mixed with favoritism to corporations.

This is VERY FAR from protecting Americans.
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Old 12-20-05, 11:45 PM
  #354  
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The President announced recently that ten major terrorist attacks have been thwarted - with at least three of those in our country. Reporters dug into this claim and found out it was true.

It was not widely reported on for obvious reasons.
link? I am curious about this
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Old 12-20-05, 11:56 PM
  #355  
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Originally Posted by BKenn01
Seems easy to explain to me. He did not want to tip anyone off to the secret program. I just dont see the there there in this wanna be scandal.
You asked when he lied. I pointed out to you when he lied. What do you want from me?
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Old 12-21-05, 12:45 AM
  #356  
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http://www.fas.org/irp/offdocs/eo/eo-12949.htm

THE WHITE HOUSE

Office of the Press Secretary

________________________________________________________________________
For Immediate Release February 9, 1995


EXECUTIVE ORDER 12949

- - - - - - -
FOREIGN INTELLIGENCE PHYSICAL SEARCHES


By the authority vested in me as President by the Constitution
and the laws of the United States, including sections 302 and 303 of the
Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801,
et seq.), as amended by Public Law 103- 359, and in order to provide for
the authorization of physical searches for foreign intelligence purposes
as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the
Attorney General is authorized to approve physical searches, without a
court order, to acquire foreign intelligence information for periods of
up to one year, if the Attorney General makes the certifications
required by that section.

Sec. 2. Pursuant to section 302(b) of the Act, the Attorney
General is authorized to approve applications to the Foreign
Intelligence Surveillance Court under section 303 of the Act to obtain
orders for physical searches for the purpose of collecting foreign
intelligence information.

Sec. 3. Pursuant to section 303(a)(7) of the Act, the following
officials, each of whom is employed in the area of national security or
defense, is designated to make the certifications required by section
303(a)(7) of the Act in support of applications to conduct physical
searches:

(a) Secretary of State;

(b) Secretary of Defense;

(c) Director of Central Intelligence;

(d) Director of the Federal Bureau of
Investigation;

(e) Deputy Secretary of State;

(f) Deputy Secretary of Defense; and

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above certifications,
unless that official has been appointed by the President, by and with
the advice and consent of the Senate.


WILLIAM J. CLINTON


THE WHITE HOUSE,
February 9, 1995.
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Old 12-21-05, 01:09 AM
  #357  
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Originally Posted by natesfortune
The President announced recently that ten major terrorist attacks have been thwarted - with at least three of those in our country. Reporters dug into this claim and found out it was true.

It was not widely reported on for obvious reasons.
Define "thwarting terrorist attacks". If you can spin PETA and a Catholic group into your thwarting of terrorist attacks, I'll reward you with the Spin Of 2005 award.

Would anyone like to know how many terrorist attacks were thwarted BEFORE 9/11? Several. And they included Muslim groups as well. And they did not require the Patriot Act. They simply required a common sensical approach and respect to American Law.
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Old 12-21-05, 01:23 AM
  #358  
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Oh shit... Bush better pray hard now. Boxer is on the horizon to impeach him. This woman is a totally embarrassment to Californians.

http://boxer.senate.gov/news/record.cfm?id=249975

Boxer Asks Presidential Scholars About Former White House Counsel's Statement that Bush Admitted to an 'Impeachable Offense'

December 19, 2005

Washington, D.C.– U.S. Senator Barbara Boxer (D-CA) today asked four presidential scholars for their opinion on former White House Counsel John Dean’s statement that President Bush admitted to an “impeachable offense” when he said he authorized the National Security Agency to spy on Americans without getting a warrant from a judge.

Boxer said, “I take very seriously Mr. Dean’s comments, as I view him to be an expert on Presidential abuse of power. I am expecting a full airing of this matter by the Senate in the very near future.”

Boxer’s letter is as follows:

On December 16, along with the rest of America, I learned that President Bush authorized the National Security Agency to spy on Americans without getting a warrant from a judge. President Bush underscored his support for this action in his press conference today.

On Sunday, December 18, former White House Counsel John Dean and I participated in a public discussion that covered many issues, including this surveillance. Mr. Dean, who was President Nixon’s counsel at the time of Watergate, said that President Bush is “the first President to admit to an impeachable offense.” Today, Mr. Dean confirmed his statement.

This startling assertion by Mr. Dean is especially poignant because he experienced first hand the executive abuse of power and a presidential scandal arising from the surveillance of American citizens.

Given your constitutional expertise, particularly in the area of presidential impeachment, I am writing to ask for your comments and thoughts on Mr. Dean’s statement.

Unchecked surveillance of American citizens is troubling to both me and many of my constituents. I would appreciate your thoughts on this matter as soon as possible.

Sincerely,

Barbara Boxer

United States Senator


249975
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Old 12-21-05, 06:06 AM
  #359  
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Fox News:

Surveilance Court Judge Resigns

WASHINGTON — A federal judge has resigned from a special court set up to oversee government surveillance to protest President Bush's secret authorization of a domestic spying program on people with suspected terrorist ties, The Washington Post reported.

The action by U.S. District Judge James Robertson stemmed from deep concern that the surveillance program that Bush authorized was legally questionable and may have tainted the work of the court that Robertson resigned from, the newspaper said in Wednesday's editions.

The Post quoted two associates of the judge.

Robertson was one of 11 members of the secret Foreign Intelligence Surveillance Court, which oversees government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.

Quoting colleagues of Robertson, the Post said the judge had indicated he was concerned that information gained from the warrantless surveillance under Bush's program subsequently could have been used to obtain warrants under the FISA program.

The Post said Robertson, without providing an explanation, stepped down from the FISA court in a letter late Monday to Chief Justice John Roberts. He did not resign his parallel position as a federal district judge.

Supreme Court spokeswoman Kathy Arberg said early Wednesday she had no information to offer on the matter.

Robertson was appointed a federal judge by President Clinton in 1994. Chief Justice William Rehnquist later appointed Robertson to the FISA court as well.

Robertson has been critical of the Bush administration's treatment of detainees at the U.S. naval prison at Guantanamo Bay, Cuba, most memorably in a decision that sidetracked the president's system of military tribunals to put some detainees on trial.

Robertson's resignation was reported hours after Vice President Dick Cheney strongly defended the surveillance program and called for "strong and robust" presidential powers.

Cheney — a former member of congress, defense secretary and White House chief of staff under President Ford — said executive authority has been eroding since the Watergate and Vietnam eras.

"I believe in a strong, robust executive authority and I think that the world we live in demands it," Cheney said.

"I would argue that the actions that we've taken there are totally appropriate and consistent with the constitutional authority of the president. ... You know, it's not an accident that we haven't been hit in four years," the vice president said, speaking with reporters Tuesday on Air Force Two en route from Pakistan to Oman.

Republicans said Congress must investigate whether Bush was within the law to allow the super-secret National Security Agency to eavesdrop — without warrants — on international calls and e-mails of Americans and others inside the United States with suspected ties to Al Qaeda.

"I believe the Congress — as a coequal branch of government — must immediately and expeditiously review the use of this practice," said Sen. Olympia Snowe, R-Maine.

Snowe joined three other members of the Senate Intelligence Committee, including Nebraska Republican Chuck Hagel, in calling for a joint inquiry by the Senate judiciary and intelligence committees.

Bush and his top advisers have suggested senior congressional leaders vetted the program in more than a dozen highly classified briefings. Several Democrats agreed said they were told of the program, but did not know the full details and had concerns.

West Virginia Sen. Jay Rockefeller, the Senate Intelligence Committee's top Democrat, on Monday released a letter he wrote to Cheney in July 2003 that, given the program's secrecy, he was "unable to fully evaluate, much less endorse these activities."

Senate Intelligence Committee Chairman Pat Roberts, R-Kan., pushed back Tuesday, saying that if Rockefeller had concerns about the program, he could have used the tools he has to wield influence, such as requesting committee or legislative action. "Feigning helplessness is not one of those tools," Roberts said.
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Old 12-21-05, 07:17 AM
  #360  
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Did you even read the order by Clinton? He using the authority as expressed in FISA. The Attorney General has the ability to approve warrantless searches provided he swears under oath that, among other things, the surveillance does not include the substantial likelihood of involving a United States person. It was also released publically, so everyone who cared to know could find out. Bush secretly authorized wiretapping in direct contradiction to FISA and on United States persons. How is that even the least bit relevant?

Even if he did do the same thing Bush did, what bearing does that have on whether or not it's breaking the law? I don't care if it was George Washington himself rising from the grave to do it - the way Bush went about it is wrong.
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Old 12-21-05, 07:28 AM
  #361  
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http://thinkprogress.org/2005/12/20/drudge-fact-check/

Fact Check: Clinton/Carter Executive Orders Did Not Authorize Warrantless Searches of Americans
The top of the Drudge Report claims “CLINTON EXECUTIVE ORDER: SECRET SEARCH ON AMERICANS WITHOUT COURT ORDER…” It’s not true. Here’s the breakdown –

What Drudge says:

Clinton, February 9, 1995: “The Attorney General is authorized to approve physical searches, without a court order”

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve “the premises, information, material, or property of a United States person.” That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush’s program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton’s 1995 executive order did not authorize that.

Drudge pulls the same trick with Carter.

What Drudge says:

Jimmy Carter Signed Executive Order on May 23, 1979: “Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”

What Carter’s executive order actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

What the Attorney General has to certify under that section is that the surveillance will not contain “the contents of any communication to which a United States person is a party.” So again, no U.S. persons are involved.
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Old 12-21-05, 08:27 AM
  #362  
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Forgive me for asking the obvious, but wasn't Atta and the other 15 INSIDE the US before 9/11???

So you're telling me that it's more important to protect these jerks and more like them, than American citizens??

I agree with BKenn1, this is a LOSING political position for the Dems. Dumb strategically. Even if they somehow succeed in getting the President impeached, which is doubtful, it will not gain them national security points.
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Old 12-21-05, 08:31 AM
  #363  
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Originally Posted by BKenn01
Since it hasnt happened, I guess you cant disprove his statment. Personally I think they have not hit us because they are not as organized as our government would lead us to believe they are.
Good point. I also believe, in addition to the lack of organization, that terrorist groups don't want to launch an attack on the US that is perceived as smaller than 9-11.

It also makes me sick to see Cheney, or anyone else, say that we haven't had an attack since 9-11 because of their tactics. Will they take the blame if/when an attack occurs?

Last edited by Mrs.Nesbit; 12-21-05 at 08:37 AM.
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Old 12-21-05, 08:36 AM
  #364  
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Originally Posted by mosquitobite
Forgive me for asking the obvious, but wasn't Atta and the other 15 INSIDE the US before 9/11???

So you're telling me that it's more important to protect these jerks and more like them, than American citizens??

I agree with BKenn1, this is a LOSING political position for the Dems. Dumb strategically. Even if they somehow succeed in getting the President impeached, which is doubtful, it will not gain them national security points.
Sorry to double post but this was just posted and I felt a need to respond. This may be a losing political position for Dems and dumb strategically but this needs to be investigated. My hope would be that people from both sides look into it.

As far as the question you asked about protecting the 9/11 hijackers that would be unfortunate but how many laws are you willing to have the president break in the name of the "War on terror"?
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Old 12-21-05, 08:38 AM
  #365  
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Originally Posted by mosquitobite
Forgive me for asking the obvious, but wasn't Atta and the other 15 INSIDE the US before 9/11???
"Untied States person" does not refer only to someone in the United States. It refers to citizens and permanent residents.

So you're telling me that it's more important to protect these jerks and more like them, than American citizens??
No. We're telling you that it's important to protect American citizens, and sometimes that allows the bad guys to have some protections as well. That's one of the costs of freedom. Regardless, FISA provides a way to do emergency surveillance without a warrant as long as one is applied for or if the Attorney General swears under oath that it doesn't involve a United States person. Nothing in FISA would have prevented the government from listening in on Atta. What prevented the government from listening in on Atta was our own incompetancies with regards to inter-agency communication, not that FISA was too restrictive.

I agree with BKenn1, this is a LOSING political position for the Dems. Dumb strategically. Even if they somehow succeed in getting the President impeached, which is doubtful, it will not gain them national security points.
I don't give a rat's ass whether it's good or bad for the Democrats. Some things are more important than what either party stands to gain or lose. Like the executive deciding in secret he has broad, unchecked powers.
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Old 12-21-05, 08:40 AM
  #366  
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After reading fifteen pages of heated debate, what people forget is that both the Carter and Clinton Administrations actually ran such wiretaps for a long, long time. Also, I believe much of the technology for the Echelon system was installed during the Clinton Adminstration from around 1993 to 1998.

Last edited by RayChuang; 12-21-05 at 08:40 AM. Reason: correct wording
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Old 12-21-05, 08:47 AM
  #367  
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Originally Posted by RayChuang
After reading fifteen pages of heated debate, what people forget is that both the Carter and Clinton Administrations actually ran such wiretaps for a long, long time. Also, I believe much of the technology for the Echelon system was installed during the Clinton Adminstration from around 1993 to 1998.
I'd go back and re-read the last few pages then...this has been brought up. I think the general consensus is that the, "But he did it too" defense doesn't hold much water with grown adults.
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Old 12-21-05, 08:47 AM
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Originally Posted by RayChuang
After reading fifteen pages of heated debate, what people forget is that both the Carter and Clinton Administrations actually ran such wiretaps for a long, long time. Also, I believe much of the technology for the Echelon system was installed during the Clinton Adminstration from around 1993 to 1998.
Reread posts 372 and 373. What Bush is doing is different from what Clinton and Carter did.

We can argue about whether that difference is a material difference (I believe it is), but to pretend there's no difference is simply insulting.
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Old 12-21-05, 08:51 AM
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Maybe we can get that added as a sticky.

Well, this is by far the most successful thread I've ever started!
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Old 12-21-05, 08:52 AM
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Congratulaltions!
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Old 12-21-05, 08:53 AM
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As usual CSM comes up w/ a pretty balanced article presenting the various sides in the debate. Given the ease w/ which to do things in the FISA court if they did in fact act outside (as the highlighted portion suggests) I think they are in a lot of trouble/going to have a difficult time justifying their actions.

http://www.csmonitor.com/2005/1221/p...spo.html?s=hns

Can the government spy on citizens without a warrant?
At issue: Whether presidential power trumps a 1978 law requiring court oversight of domestic espionage.
By Warren Richey | Staff writer of The Christian Science Monitor

President Bush's decision to allow the super-secret National Security Agency to spy on Americans without court warrants has touched off stormy debate about his aggressive approach to the war on terror.

This clash - between civil libertarians and the administration's expansive view of presidential power - is a recurring theme in the Bush White House. It lies at the center of ongoing debates over the government's use of coercive interrogation techniques and the open-ended detention of alleged enemy combatants at Guantánamo Bay, Cuba, and in military prisons in the United States.

This week, the spotlight is on a recently disclosed classified operation that permits the NSA to monitor communications between suspected Al Qaeda members overseas and American citizens in the US. It is being done without first obtaining a warrant from a special intelligence court set up to police such sensitive intercepts.

Instead of following the safeguards established by Congress under the 1978 Foreign Intelligence Surveillance Act (FISA), Bush administration lawyers concluded that the White House could sidestep the warrant requirements while conducting the espionage operation.

Critics say the secret spying is illegal and an abuse of the president's constitutional authority. Supporters say Bush is well within his power to protect the nation from terrorists.

Disclosure of the NSA operation by the New York Times last Friday surprised many members of Congress and is said to have complicated efforts to reauthorize the Patriot Act. Republican Sen. Arlen Specter, chairman of the Judiciary Committee, has called for hearings to look into the NSA operation. Supreme Court nominee Samuel Alito has been warned to prepare for close questioning on the matter in his upcoming confirmation hearing. And there is talk of the possible appointment of two special counsels, one to look into the legality of the NSA operation, the other to investigate the disclosure of the classified project to the Times.

In addition, Sen. Barbara Boxer (D) of California has asked legal scholars to research whether Bush's authorization of secret spying is an impeachable offense.

President Bush and other administration officials have sought to blunt the barrage of criticism by emphasizing the exigencies of protecting the nation from terrorists. They stress that despite the highly classified nature of the operation, the White House briefed key members of Congress about the ongoing covert effort.

But some members of Congress say they were given few details and were unable to effectively exercise oversight responsibilities after being sworn to secrecy.

Administration officials also notified the chief judge of the Foreign Intelligence Surveillance Court, which is empowered to authorize warrants for such spying.
<b>
One section of the foreign intelligence law, FISA, authorizes warrantless surveillance under limited circumstances - but it does not appear to apply to the NSA operation as described by administration officials. Neither President Bush nor Attorney General Alberto Gonzales is claiming the secret operation was conducted in compliance with FISA.
</b>
Instead, they say the operation was carried out under President Bush's constitutional power as commander in chief, and under Congress's Joint Authorization for Use of Military Force, which was passed more than four years ago, shortly after the 9/11 attacks.

The administration made the same argument before the US Supreme Court in the case of alleged enemy combatant Yaser Hamdi. The court declined to address the president's power as commander in chief. Instead, it based its June 2004 decision upholding Mr. Hamdi's military detention solely on the congressional authorization argument. But given the splintered posture of the high court in that case and the possible arrival of a second new justice, the potential outcome in any future case is less than clear.

"It is a murky area," says Ruth Wedgwood, an international law professor at Johns Hopkins University.

"It is an area in which Congress has legislated but, to be sure, they didn't anticipate Al Qaeda in 1978," she says. "It is also an area where obviously Americans have high expectations about their privacy."

FISA was enacted to prevent domestic surveillance abuses that occurred during earlier administrations, including the Nixon White House.

Should the debate make it into a courtroom, at issue will be whether FISA preempts the president from taking actions as commander in chief in the war on terror that ignore or violate the surveillance statute.

"The president is simply off the rails," says Marc Rotenberg, executive director of the Electronic Privacy Information Center, which closely monitors surveillance issues. Mr. Rotenberg says Bush's reliance on the commander-in-chief powers "is probably overly broad and will be rejected."

David Rivkin, a Washington lawyer and former Reagan and Bush I administration official, has a different perspective. "FISA was designed to deal with essentially peacetime counterintelligence and counterterrorism operations," he says. "We are now at war."

He says Bush's secret NSA operation is "tantamount to trying to break Japanese military codes or intercept German communications during World War II." The FISA requirement of judicial oversight of secret intelligence operations would mandate a war-fighting role for judges that the Constitution does not authorize, Mr. Rivkin says. "Where is it written in the Constitution that the president is supposed to exercise his commander-in-chief power based upon what a judge says or doesn't say?"
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Old 12-21-05, 09:36 AM
  #372  
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Judge Robertson should be respected for his decision, which appears to have been an act of conscience. However, as the Post acknowledges near the end of its story, Robertson is a liberal judge (very liberal, if my my experience is any indication) who "who has often ruled against the Bush administration's assertions of broad powers in the terrorism fight, most notably in Hamdan v. Rumsfeld." His decision in the Hamdan case was reversed by the unanimous vote of a panel of the D.C. Circuit which included (now) Chief Justice Roberts. The Supreme Court will review that case. The D.C. Circuit ripped Robertson's opinion and, in my view, justifiably so.
http://www.powerlineblog.com/
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Old 12-21-05, 09:41 AM
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Honestly, I don't know what to think about all of this yet. I have been extremely busy the past few days, and have not had time to look extensively into such a complicated matter.

However, it does seem like this is not nearly as cut and dried as many are making it out to be in this forum - there is a whole lot of "other side" out there that is not getting much fair play here.

I'm sure we'll get to the bottom of it all soon enough, but I'd suspect anybody at this point who was "sure" either way on the legality of this issue - it's simply very complex and vague at this point.

December 20, 2005, 5:35 p.m.
Warrantless Searches of Americans? That’s Shocking!
Except when it happens every day.


When not cavalierly talking "impeachment," here's the Left's talking point of the day:

What makes this president think he can invade the privacy of Americans without a warrant?

I don't know. Could it be the powers, long recognized by federal law, to:

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

These could conceivably be some of the things that the president is thinking about, though certainly not all. I neglected, after all, to mention the long-established "inherent authority" of the president to "conduct warrantless searches to obtain foreign intelligence information," recognized by federal appeals courts and assumed by the Foreign Intelligence Surveillance Court of Review in 2002.

Where does this president get such crazy ideas? Obviously, he should be impeached.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.
http://www.nationalreview.com/script...0512201735.asp
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Old 12-21-05, 09:44 AM
  #374  
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The Legality of the NSA's Intercept Program

I've been working on and off on the legal issues surrounding the NSA's interception of communications directed to al Qaeda members overseas, some of which originated in the United States. I haven't had time yet to write up a full analysis of the case law. For now, let me just say that the question does not appear to be close. Under all existing authorities, the NSA program, as we understand the facts, was legal.

For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.
And those are cases that deal with electronic intercepts inside the United States. A fortiori, intercepts outside the United States that coincidentally sweep in messages sent from America would seem to be obviously within the President's inherent Article II powers. So far, I have found no authority to the contrary.

Thanks to reader Andrew Strnad.
http://powerlineblog.com/archives/012612.php

A word from Bill Otis

Yesterday John wrote about the legality of the NSA eavesdropping program in here. The case quoted by John discussed the 1980 Truong case. Former federal prosecutor Bill Otis (and friend of Paul Mirengoff) worked on the Truong case and writes:

As you may have seen if you read the list of counsel in the Truong case, I was one of the government's lawyers. Although our months-long warrantless wiretap was conducted before FISA was passed, the case was decided afterwards. In a footnote, the Court, through Winter, J. (a liberal Democrat) plainly implies that the wiretap, which it unanimously held passed muster under Fourth Amendment standards, would do so as well under FISA's.

In my view, this conclusion is correct. FISA cannot sensibly be read to disable the President from acting to protect the country from what might be imminent threat in time of what any sensate person must regard as war. Indeed, the argument for the President's power in the present circumstances is considerably stronger than it was when my colleagues and I wrote the Truong brief. As in Truong, there had been no declaration of war per se, and, even more important, such war as there was had basically ended. (The whole deal with Truong, if I remember correctly, was that he was the conduit for a State Department traitor named Humphrey, who was sending to the North Vietnamese documents disclosing our government's "bottom line" position for pulling out).

There has been no per se declaration of war against al Qaeda either, but there is at least as much of a war going on now as there was in the late 1970's in Vietnam. And the present war is far more dangerous: our cities are the battlefields; the weapons probably available to the enemy are far more gruesome; their delivery is far easier to bring about and conceal; and the speed with which the enemy can contact its cohorts in this country and act on its plans is far greater now than it was then. Moreover, the war against terror is scarcely winding down -- it is, to the contrary, becoming more far-flung and more dangerous.

And there is this as well (which the Truong decision does not note): Even in ordinary criminal cases, where the Supreme Court has held that a warrant is presumptively required by the Fourth Amendment, it has also long recognized an exception for what are known as "exigent circumstances." In other words, when the government is facing what it reasonably views as a now-or-never chance to catch the bad guys, it is not required to obtain a warrant.

This being the case for your run-of-the-mill drug deal, it must surely be the case where the cost of failure is so much higher -- indeed higher than any crime the country has ever seen. To view it differently is to prefer brain-dead legalism to survival.

FISA was passed in the aftermath of some rancid Nixonian abuses of the intelligence gathering capacities of the United States. The present surveillance has been and (presumably) is being conducted in what is truly a different universe. As usual, the liberals are stuck in 1969, fighting yesterday's battles with yesterday's ideas. Sometimes this is merely quaint. If they get away with it this time, it stands a greater chance of being fatal.

Bill Otis
(former Assistant US Attorney for the Eastern District of Virginia)
http://www.powerlineblog.com/
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Old 12-21-05, 09:49 AM
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If this pans out it could move the debate foward, I'd think...

The Times Continues Its Attack...

...on the Bush administration over the NSA intercept program, in two articles in today's paper. The first, which I linked to last night, is "Cheney Defends Eavesdropping Without Warrants". The second is evidently an effort to shore up the Times' claim that the NSA program is illegal; the paper's reporters went back to its anonymous leakers and asked them about President Bush's explanation that the program involves only international communications. The result is the unintentionally humorous "Spying Program Snared U.S. Calls". This is the best the Times can come up with:

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

The officials say the National Security Agency's interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact "international."

[I]n at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country.
Wow, is this a scandal, or what? On rare occasions, the NSA has inadvertently recovered a conversation involving an al Qaeda operative who is normally stationed overseas and uses an international cell phone number, but who has in fact entered the United States. Even the Times should recognize that this circumstance makes it more urgent, not less so, for the al Qaeda operative's communications to be tracked. The idea that this kind of inadvertent intercept renders the program unlawful is risible on its face.

I have scoured the Times' reporting for any argument as to why the NSA program would be illegal, and so far haven't found one, beyond the false insinuation that warrantless searches must be illegal. What the Times has mostly done is quote anonymous sources who express "doubts" and "concerns" about the legality of the program. But doubts and concerns may or may not be well-founded, and a doubt is not an argument. Today's reporting continues to be argument-free. The article on Cheney's defense of the NSA program includes this quote from a liberal law professor who has written a book on threats to the First Amendment:

Geoffrey R. Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency. "Some legal questions are hard," Professor Stone said. "This one is not. The president's authorizing of N.S.A. to spy on Americans is blatantly unlawful."
I assume that there are articulable reasons why Professor Stone holds this view, but the Times doesn't tell us what they are. So last night I sent the following email to Professor Stone:

Professor Stone, you were quoted in the New York Times today to the effect that the administration's NSA international intercept program is plainly illegal. This puzzled me, as I have been researching the issue and have not found any support for that proposition. It appears to be universally recognized by the federal courts that warrantless surveillance for national security purposes is within the President's Article II power. See, for example, the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

"The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

The Supreme Court precedents are consistent with that view.

I am writing on this topic, and want to make sure that I am not overlooking an argument for the illegality of the intercepts. As happens so often in newspaper articles, the Times reporter quoted your conclusion without conveying any hint of the grounds for it. I would appreciate it very much if you would take the trouble to refer me to the authorities that you believe support the opinion that you gave to the Times.

Thank you very much.

John Hinderaker
While I have seen nothing so far that would suggest that the NSA program was illegal, I want to make sure that we are addressing the strongest arguments that can be made to that effect, and Professor Stone appears to be a respected authority on the subject. So I will post any response I receive from him, and will respond to whatever arguments and authorities he brings forward.
http://powerlineblog.com/archives/012619.php
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