Centerfield

Gads, what a moron. If you want to monitor, get a warrant. If you don't want a warrant, change the law.

Are you aware that this eavesdropping could have been done legally, by applying to the FISA court for warrants? The admin. could even have started the taps or whatever and applied retroactively, up to 72 hours later, if timing was a problem. The issue here is not the listening, but the illegality of the program set up to do it. How can you be "centrist" if you don't think the administration should be held accountable for illegal behavior?

BS, a public warrant for arrest? They didn't shop lift, they are accused of being a member of a terrorist cell that WE ARE AT WAR WITH! Seems to be that when you are spying on the enemy that you would want that to stay secret, and I am not sure that the FISA process would work. Didn't the 9/11 commission say that one problem we had was our ability to intercept communications from conversations with al-Qaida going on in our own country? Isn't FISA part of that process? Again folks, this isn't a criminal investigation, we are at war with these people... They want to hurt thousands of Americans at one time. Let's keep our eye on the ball here.

Furthermore, if what they did was illegal, and it is proven, that is one thing, but I don't see that here, nor do I see accusations that anything illegal happened accept from a few that have a political bone to pick. Again, with the facts I know, I don't have a problem.

I have to agree to some extent with Mathew. I think it is really easy to sit here and say, shame, shame, you spied. But the reality is, I'm not sure any administration--Gore or Bush, liberal or conservative-would have done much different. This is one of those situations that simply doesn't make, IMO, for simplistic, black-white answers. I admit to being horribly torn by this, because while what they did was probably illegal and certainly troubling, I can't sit here and sanctimoniously say they shouldn't have done it. If you are the POTUS (and forget that it's Bush) and 9/11 has happened and the intelligence and law enforcement officials come to you and say we need this authority to perhaps stop a terrorist attack, I think it would be very, very difficult to say no. I don't like the disregard that the Bush Administration generally has shown toward civil liberties, but, frankly, I can't get all that steamed about this. It's not like it was a general program where they were just picking on citizens at random to spy on. They were aiming it at people with ostensible connections to terrorists. True, given the track record, it's likely that a lot of these people probably weren't guilty of anything, but it's not like the administration was using this program to track or harass political opponents (as far as we know anyway).

In general, I think it's real easy for people without responsibility to second guess those with responsibility after the fact--especially when you are literally talking about life and death situations. I don't particularly trust the Bush Administration, but I seriously doubt any other administration would have done any different--and if you doubt that, I can just point you to the Japanese internment under a Democratic administration. So, while I am uneasy about this, I am not going to condemn it out of hand--although I reserve the right to change my mind as more facts come to light.

Oe thing we don't know here is if FISA was consulted appropriately. Until we hear otherwise, I'm unbothered.

Whether or not it is good policy or not, wiretapping without warrants is clearly unconstitutional. It's not even a close question. I doubt even 5% of lawyers who have taken Constitutional Law would support John Yoo's expansive views of the power of the President in the abstract outside of a partisan context.

Not to mention W.'s response to the whole situation. I agreed that he needed to develop some balls, but when it comes to monkeying around with rules that challenge the Constitution, you can't be arrogant about it.
Before I read the news today, I believed that an impeachment case would be impossible because of the legal circumstance. But his attitude alone is poison, and I won't be surprised if the Reps support some sort of major punishment to save their ship. Was Reagan this insensitive during Iran-Contra?
Even sadder is the partisan bickering that's been going on since 2001. It makes the attempts of punishment even more suspect and less a united effort to remove a presidency.

Mathew,

The problem is that it appears to be illegal. Subchapter I of Chapter 36 of Title 50 of the United States Code provides the only mechanism (to my knowledge) by which national security electronic surveillance may be lawfully conducted. 50 U.S.C. Sec. 1804 provides the mechanism by which application is made to the so-called FISA court. 50 U.S.C. Sec. 1802 provides the mechanism for electronic surveillance without application to the FISA court. In order to invoke Sec. 1802, the Attorney General must certify in writing under oath, among other things, that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party . . . ." 50 U.S.C. Sec. 1802(a)(1)(B). "'United States person' means a citizen of the United States[ and] an alien lawfully admitted for permanent residence . . . ." 50 U.S.C. 1801 (i).

Also bear in mind that all FISA proceedings may be sealed or classified under procedures agreed by the Chief Justice, Attorney General, and DCI. 50 U.S.C. Sec. 1803(c).

Moreover, the problem is constitutional. The Administration now claims that any act of Congress curtailing presidential authority in the realm of national security and "fighting terrorism" is unconstitutional. (This in spite of Justice Jackson's three classifications of executive power in Youngstown.) In short, the Administration appears to be making the argument that what it has done complies with law, and that, if it doesn't comply with law, the conflicting law is unconstitutional. That's a fairly bold argument. And against the patina of the Administration's claimed ability to designate and indefinitely detain American citizens as enemy combatants, I'd say the Administration's claimed power secretly to listen in on citizens' electronic communications is fairly alarming.

Let's complete the syllogism: the Administration can listen to anyone whom it pleases, whether in the country or outside it, whether a citizen or not. The Administration can designate as an enemy combatant anyone whom it pleases, whether in the country or outside it, whether a citizen or not. Such a designation allows the Administration to detain the designated enemy combatant without access to counsel and without judicial review of either the designation or the detention (according the the Administration's view of its power, not necessary the post-Hamdi rule of law). I'm not putting words into the Administration's mouth here; this is merely a synopsis of their opinions on two different topics presented together in one place for clarification. What makes these positions alarming to me isn't that the Administration may listen in on citizens, or designate citizens enemy combatants and detain them, but that the Administration is not only willing to do so without judicial review, but demands that it has the ability to do so without judicial review--and, to top it off, that courts calling the Administration's view of its power into question jeopardize national security.

Marc,

Great comments.

Jaded,

You did what I was hoping would be the result of this post by providing an actual argument about why what they did was wrong. I am not a lawyer, but what you say argue seems solid to me. I hope Pat, Simon, and the other JD's chime in.

they are accused of being a member of a terrorist cell...

Maybe so. The law rquires that when anyone is accused of anything that the government get a warrant against those accused based on evidence. Sorry, dude, that's the fourth ammendment whether you or George W. Bush like it or not. It's called one of your rights as an American.

Even George W. Bush is not above the law though he seems to think he is. Our country was founded with a Constitution that contains checks and balances explicitly to prevent the executive branch from undertaking actions like this without consulting the judicial branch. This is so fundamental I can't believe there's even any debate about it.

BS, a public warrant for arrest?

No one is talking about an arrest warrant. A search warrant is what is required. There is no duty to inform those who are to be wiretapped, but there is an obligation to present evidence and acquire the search warrant from a court. There is even a special court set up for this process in national securtiy matters, the FISA Court.

Just for the record, I feel violated by these activities.
But then I quite libertarian about this kind of thing.

Pug,

No, that's not the law. I cited the law in my comment earlier. The Administration can collect evidence lawfully without any judicial review--just not of United States persons.

I use Yahoo! as my web portal, and every few minutes the news tab changes the headline for this story. Right now it says, "Bush: Intel from eavesdropping saves lives." That made me think of Jack Nicholson in A Few Good Men:

I have a greater responsibility than you could possibly fathom. You weep for Santiago, and you curse the marines. You have that luxury. You have the luxury of not knowing what I know: That Santiago's death, while tragic, probably saved lives. And that my existence, while grotesque and incomprehensible to you, saves lives. You don't want the truth because deep down in places you don't talk about at parties, you want me on that wall, you need me on that wall. . . . I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, then questions the manner in which I provide it. I would rather you just said thank you, and went on your way. Otherwise, I suggest you pick up a weapon, and stand a post. Either way, I don't give a damn what you think you are entitled to.

"'United States person' means a citizen of the United States[ and] an alien lawfully admitted for permanent residence . . . ."

Note the words "permanent residence."

JD, since we don't know that clause has been violated, we don't know that anything illegal has been done. For example, what if they've only used the order to bug communications between aliens here on student visas or limited-term work permits (who don't have permanent residence status)?

So the only excuse left by the Bush apologists is they needed to get this done in a hurry. Now John Marshall blows that out of the water.

It turns out that FISA specifically empowers the Attorney General or his designee to start wiretapping on an emergency basis even without a warrant so long as a retroactive application is made for one "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance."

So no problem, do the wire tap, then apply for a warrant. But Bush couldn’t be bothered with even that. There is only one reason I can see for this, you are wiretapping people you shouldn’t.

Stephen - I just noticed you said the same thing, much earlier. I also noticed no one responed to it.

[snark]I would sure like to see the "logic" of their rebuttal. [/snark]

Tully,

It's true that we don't know that the law has been broken. I only said it appears to be illegal, based on the vague press reports that don't do anything to classify the individuals subjected to the surveillance: the appearance is that Americans were the subjects. Of course, that's the difference between someone going to jail (or facing impeachment) or not. And that's why I think it's absolutely appropriate for Congress to investigate exactly who was subjected to the surveillance and under what authority.

Thanks. (WAY out of my field, so I have ignorance to shield me in asking stupid questions.)

So some more questions. Is a FISA warrant only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power? And what is the possible role of Executive Order 12333, part 2.3 in this?

As defensetech.org and others point out, why do stuff like this?
For that matter why fight the McCain amendment while insisting you don't torture?
It's stuff like this that make you wonder if the wilder stories coming out of the white house are true.

Power is very intoxicating, mix it with fear of a hidden enemy and a big old helping of hubris and we have a recipe for very bad behavior.

Just look toward Clinton and Nixon, they shot themselves in the foot for no good reason.

And the truth comes out:

So no problem, do the wire tap, then apply for a warrant. But Bush couldn’t be bothered with even that. There is only one reason I can see for this, you are wiretapping people you shouldn’t.

It couldn't be that he was actually worrying about saving lives... It is that he is corrupt, evil, satan's spawn, and really wire tapping innocent every day Americans. Man, I am going to stop all cell phone use out of fear that W is listening on a third line.

If Jaded is right, and this is illegal, than that is one thing, but I really wish liberals would make as good an argument as he did, rather than the typical Bush bashing crap. We get it already, you don't like him.

Mathew, my problem is that many are saying it's illegal, but I can see quite a few ways in which it could be entirely legal. Naturally, most of those screaming "Illegal!" can't read a statute. Which is why I'm interested in the opinions of those who can, and not interested at all in the opinions of pontificating partisans.

Hey!
At 40 % approval rating it ain't just we pontificating partisans anymore.
Besides, pontificating is what this website is for. Considering most of our status in the food chain what else are we supposed to do?

Unless your advocating wiretapping the president to find out what he's up to?
And as we all know, that would be wrong, poetic, but still wrong.

Thank you, Bob, that was a lovely example of pointless rant. "Kill the witch!" Kinda funny, but not helpful. I'm looking for relevant useful info and opinion that actually addresses the legal aspects. Have you any? No?

I've been reading the statute, and it appears to me that the definitions portion of FISA (sec. 1801) defines an agent of a foreign power to include people believed to be involved in terrorist operations, regardless of U.S. person status. And that this in turn leads to a completely legal warrantless wiretap procedure authorized in statute by Congress that sounds an awful lot like what is supposed to have been actually going on. The only way to get more scrupulously legal than following the exact letter of the statute is for the statute to have already undergone and survived judicial review by the Supremes.

So if it was entirely legal, and someone in the government leaked it to the press, whose ass is in the wringer for leaking crucial national security information?

I've taken a look at the statutes too, and while I agree that the definition of an agent of a foreign power could include U.S. citizens, the relevant sections of the FISA that refer to warrantless surveillance (sec. 1802(a)(1)) don't refer to an agent of a foreign power, only to foreign powers. Here's the text:

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

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

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

I'm no legal expert, so it's entirely possible I missed something.

I've taken a look at the statutes too, and while I agree that the definition of an agent of a foreign power could include U.S. citizens, the relevant sections of the FISA that refer to warrantless surveillance (sec. 1802(a)(1)) don't refer to an agent of a foreign power, only to foreign powers. Here's the text:

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

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

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

I'm no legal expert, so it's entirely possible I missed something.

I've taken a look at the statutes too, and while I agree that the definition of an agent of a foreign power could include U.S. citizens, the relevant sections of the FISA that refer to warrantless surveillance (sec. 1802(a)(1)) don't refer to an agent of a foreign power, only to foreign powers. Here's the text:

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

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

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

I'm no legal expert, so it's entirely possible I missed something.

(SORRY for the multiple posts, my computer is acting up and i hit the mouse button in frustration)

Okay. let's talk illegal. What is illegal?
Killing millions of americans such as YOUR FAMILY vs wiretapping the enemy responsible for killings of american people.

Gee let me think.....If you value your family's life as you value running a red light, well than I can see your point of shame shame I know your name, your doing something illegal. But on the other hand the law as it seems contridicts itself. We want to investigate terrorists, secretly. I don't think walking in with a monogrammed t-shirt of "terrorist investigator" would hold over very well. Discretion is needed. Hey hackers don't ask for permission.

What's next is onstar going to be on trial because they violated a thief's rights and tapped into his location without his consent. I know I am reaching but to prove a point.

Tully,

Mitch has it almost 100% correct. 50 U.S.C. Sec. 1802(a)(1) doesn't mention agents of foreign powers, which could include United States persons involved in international terrorism or sabotage under 50 U.S.C. Sec. 1801(b)(2)(C). (International terrorism, moreover, has to occur wholly outside the U.S., or transcend national boundaries, under Sec. 1801(c)(3). Sabotage excludes all civilian targets under 18 U.S.C. Secs. 2151-2156.)

The only thing I'd add to Mitch's analysis is that not only does Sec. 1802(a) not mention agents of foreign powers, it only applies to foreign powers defined in Sec. 1801(a)(1), (2), and (3)--groups engaged in international terrorism are defined as foreign powers by Sec. 1801(a)(4).

Simply put, Sec. 1802 doesn't apply to terrorism, unless it has a state sponsor that can qualify as a foreign power under Sec. 1801(a)(1), (2), or (3).

Erika,

We don't know that the persons under surveillance are the enemy; we only know that the Administration says they are. That's pretty much the problem. There are mechanisms in place for the Administration to suspect someone of being the enemy and get an objective second opinion from the judicial branch--which is how it's supposed to work.

Maybe 1984 isn't a part of the standard English curriculum anymore. I would think that the executive having unchecked power to secretly investigate citizens (without seeking, let alone receiving, judicial acquiescence), and then designate citizens enemy combatants (without disclosing the reasons for that designation to anyone, even the designee or a court), and then detain those citizens indefinitely while depriving them access to counsel or opportunity to challenge their designation or detention--and then to oppose a statutory ban on the use of torture, cruel, inhumane, or degrading treatment of detainees--would be somewhat disconcerting to most people, whether they know about Room 101 or not.

I don't feel I'm exaggerating the potential outcome of the Administration's policies, as they themselves view executive power; the Administration doesn't ever close the circle as I have done, when they talk about (a) enemy combatant designations, (b) interrogation techniques, and (c) domestic intelligence collection. The Administration only discusses those topics separately (if at all).

I quoted A Few Good Men in an earlier post. To rebut your claim that we should allow illegal wiretaps because we want to fight terrorists, I'll quote from A Man for All Seasons:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

JD: That's one of my favorite quote/concepts. Although it does seem to be invisible to many people.

For those of us who don't speak statute. Does this all boil down to a warrant is needed to tap al-Qaeda but no warrant if a foreign power is involved?

Tully: I thing the proper quote is “Burn the witch!”

The president and executive branch ALREADY have the power to conduct roving wiretaps, sneak n peek warrants, and classified surveillance....under PATRIOT via FISA. That's all in addition to the powers under FISA...

The hubub here is that, above and beyond PATRIOT and FISA, the president signed an executive order that authorized NSA to gather information on (persons?/citizens?) within the US.

The question is...WAS this a legit FISA order...or was this something else? I think it IS legitimate for one of the congress intelligence committees to demand at least a closed-door hearing to hear the particulars of these executive orders.

They have a vested interest, as one of the checks and balances on the executive, to know whether or not the scope of these executive orders exceeded the mandate of FISA and/or PATRIOT.

I think a lot of the candor hinges around the following:

1) People (I'm one of them) think GWB is one of the most untrustworthy, deceitful, disgraceful presidents this country has seen - in other words, anything he does is IMMEDIATELY suspicious to me.
2) WHAT EXACTLY "was done" by GWB? Was the order to collect information on CITIZENS? or PERSONS? IF it's just PERSONS who are within the US, how did they verify they're not citizens? Did they already use their granted PATRIOT and FISA authority to collect additional information?
3) What prevents them from collecting information about anyone they so choose? THey might decide...HEY, that Patrick guy is a troublemaker...and then collect all my history (falling horrendously ill due to massive boredom) and hold that information in a gov't file against my name/SSN.

I digress...and I reveal just how lame I am, as a rabble-rouser! :-P

Despite the fact that I loathe GWB, I've not been frothing at the mouth over this the last couple of days...I"ve been hanging back, wanting a few more details about just WHO is targeted by this. All I'd like to see is just that Congress take an interest...grill administration members in closed session...and have something to say about whether or not the orders given conformed to the laws in the legal code of the US.

If it was all legit and aboveboard (ewww *shudder*)..then that puts us back to right where we were.

I agree. If you don't have anything to hide, why would you worry about being eavesdropped?

I think many on the left put their ideology above the reality of the possibility they may see a nuclear blast with their own eyes some day due to these religious zealot terrorists that plague our planet.

JimG: I think you need to read JD's quote from A Man for All Seasons a couple more times. It holds a really important concept.

Then you might want to do some research on the causes of the war of 1812 and the reasons for why the Cold War never went hot. Life tends to very complicated and often requires complicated solutions.

Mathew,

Three things. First off, you're right when you point out that there's a lot of phony outrage about this, and certain people are simply reaching for something. The thing is, though, there's something to reach for. This looks to have been done illegally, and contrary to the rules. Thirdly, it's an issue of trust. Many, especially on the Left, have no faith in Bush's ability to respect civil liberties, with good reason.

Mathew,
My point was; he could do exactly what he did, as long as he applied for a warrent afterwards. Whats the problem? How does your "trying to save lives" statement work here?

We get it already, you'll do anything daddy says.

Erika,
You seem to be saying it is OK because otherwise the terrorists will know we are wire tapping them.

That would mean you believe that getting a warrent means telling the terrorists. Which I think you know is false. So what is your real point.

Condi Rice is on Meet the Press trying to defend this.

Russert is asking her to cite the law that gives the POTUS the ability to do the warrantless searches the NSA is using.

She is citing FISA..sort of. But FISA requires a 72 hr notification...which Russert is noting they didn't do. She's also trying to cite certain "Constitutional" authority which is vague.

And then she's rattling off a laundry list of things we should be scared of regarding terrorism and how they have to "protect the country".

If these guys had legitimate legal authority to do this..why can't their spokesperson at least give us the exact legal citations that give them that authority?

Thanks again, JD. I'm trying to figure out two or three things, given the (very) sketchy set of representations we have. The surveillance appears to have been performed under 1802, complete to the required Congressional briefings and such, so I'm working on that assumption because it appears to be a 90%+ probability. The administration asserts full legal compliance with the letter of the law, so I'm working from that angle to define the "usual suspects" available under the assumption that they can at least make a good showing of compliance. The assumption being that if they're not in full compliance they can at least put up a real good argument that they are in "good faith" compliance.

My sticking point in 1801(a-b) is that in one section it defines "agent of a foreign power" one way, exempting US persons, then goes right on with another definition that says "any person," implying that US persons can also fall under the non-exempt under some conditions. (I also note the "out" clause in 1801(b)2(E), which is that "[any person who] knowingly aids or abets any person..." is also an "agent.")

As far as "simple" terrorism goes, this in turn dovetails back into 1801(a)4 and 1801(a)5 which define terrorist groups as "foreign powers" whether or not they have any known state sponsorship. But those are the "foreign powers" sections ommitted in 1802, so if the primary assumptions are correct that's not exactly what we're talking about.

Primary conclusion: We either don't appear to be talking about "US persons" as the subjects, or if we are, they are US persons falling under one of the exemptions involving foreign powers as listed in 1801(a)1-3. Since 1802 is the operational area, we're not talking about "stateless" terrorist groups. Which leads me to 1801(a)2 as the likely area--"a faction of a foreign nation or nations"--but I don't know enough to assign any probabilities.

Iraqi insurgents and AQ can be legally represented as 1801(a)2 subsets, IMHO. Non-US persons operating in the US and communicating with such groups can easily fall under 1802. Especially when we're talking about international communications. US persons are much more problematical, but could likely be wiggled in.

And I'm still unclear as to how we seperate "foreign powers" from "agents of foreign powers." Any physical action is perforce performed by a discrete individual or individuals, and not some amorphous "state." Are we talking about the difference between the actions of official bureaucrats, and spies or saboteurs?

But we don't have enough information, and we're not likely to get enough anytime soon. In the meantime the politicians will continue to pontificate about "legality." All this without delving into a couple of Executive Orders from the the late '70s and early '80s that appear to leave some extra wiggle room in the FISA 1802 applications under certain conditions.

(Carla--possibly because the answer would destroy the continued usefullness of the surveillance, even if it's entirely legal.)

(Carla--possibly because the answer would destroy the continued usefullness of the surveillance, even if it's entirely legal.)

Tully:

That is entirely lame. Rice can't tell us what law gives them authority to do domestic spying because of national security reasons? LOL

This is citation of law..not telling us how and by what means they're conducting the spying.

Carla, if one question answers the other, it's not lame at all. Naturally, since you would prefer to hang first and sort out later, this fails to impress you. We needn't wait for the facts after all, just get the rope knotted for noosework...have you stockpiled torches for the rest of the villagers yet?

I note that the proper Congressional authorities, including the minority leaders on both House and Senate intel committees, were notified of this process on a regular basis, multiple occasions over the course of a few years. The appropriate members of both parties in Congress HAVE been on board with this.

I also note that regardless of the legality, the forms appear to have been folloowed, and the leaking is a prima facie case of violating the National Security Act on the part of someone--for purely political purposes. Does that bother you at all?

Additionally, referring back to the original NYT article (and making the big damn assumption that it's accurate), warrantless monitoring was restricted to international communications only, the FISC court was properly notified, and the program was modifed to address specific and detailed concerns of the court. All completely domestic monitoring was done under court warrant from the FISC.

NSA can monitor communications originating overseas anyway. Completely domestic monitoring was done under warrant. That appears to leave the specific point of "warrantless" contention as international communications originating in the U.S. to persons overseas.

But under 1805 they must retroactively file for a warrent.

They must also detroy the information if it is determined they are not involved in terrorism. They still have the paper work on the scary Quaker peace group.

I went back and listened a couple of times to the Presidents Friday interview with Jim Lehrer.
Here is the link.

He did keep saying that the program operated “within the law', but then Clinton kept saying things about “that women” and Regan kept saying “no arms for hostages”. Besides it's the administrations interpretation of the law that keeps getting them into trouble.

The thing I found most interesting is where Lehrer kept tossing him big old softballs. All he had to do was take out a pin and pop this sucker before it got really ugly.

Shields and Brooks view on his answers are also interesting.
Brooks: “And the president's reaction is not going to fly. If you are not getting warrants, the burden of proof is on you to say why.”

Clinton's blow jobs weren't under the oversight of bi-partisan Congressional committee reps and the FISC, Bob. If the NYT is accurate (as I said, always a big if) then the FIS court was monitoring the program. Rockefeller was certainly "in the loop," as were the rest of the top Democrats is the House and Senate Intel Oversight committees.

Political exploitation of wrongdoing does not make the wrongdoing okay, assuming there was wrongdoing. Just a minor point. Lindsey Graham had some good things to say on Face the Nation about this subject this morning. The complicity of a few congressman does not make wrongdoing okay either, assuming there was wrongdoing.

That "assumption of wrongdoing" is the big part, WHQ. I see a whole lotta assumin' goin' on by those with political agendas. But I haven't seen any allegations of illegality from those actually "in the loop" and privy to the telling details--which includes the Democrats on the House and Senate Intel Committees who were being briefed all along as required under FISA. Or from the FIS Court. I have seen no facts offered that are clear contextual evidence of illegality under any aspect of the FISA subchapter. (Which is why I keep asking legal questions.)

Bob, that "burden of proof" is indeed on the administration (specifically on the Attorney General, I believe) but it's owed to the FIS Court, not to the public and the media. That court is apparently on board and monitoring the program. Or did you want to claim that actions falling under national security secrecy provisions must be open to the public and media for political review? Seems a little counter-productive, no?

Tully,

You're making pretzels with this one. I know how much you want to get to Sec. 1802, but you can't. First, for all your fretting about 1801(b), you never get to 1801(b) under 1802: 1802 is limited to 1801(a)(1), (2), and (3). The difference between 1801(a) and 1801(b) is that there are individuals who constitute the government of the foreign power, and there are those who only act as its agents. (A corporation is not a natural person, but we know that the directors of a corporation are its managers; the officers and employees (unless directors as well) are only agents. So it is with foreign powers. I am not the U.S. Government, but I may be its agent--unlike George W. Bush, his cabinet, and members of Congress, for example.)

I disagree very strongly with your contention that Iraqi insurgents and al-Qaeda fall into 1802(a)(2). Saying that insurgents are a faction of the foreign power is akin to saying Confederate forces were a faction of the United States Army in 1864, or that the Contras were a faction of the Sandinstan government of Nicaragua, or that the Northern Alliance was a faction of the Taliban government of Afghanistan. Al-Qaeda may have been a faction of the Taliban government of Afghanistan, but it's not a faction of any government now. At any rate, every court asked to differentiate between the foreign power and the agent of a foreign power has declined to do so--because each of the cases dealt with 1804(a)(4), which fails to distinguish between the two. United States v. Nicholson, 955 F. Supp. 588 (E.D. Va. 1997); United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). But the Administration doesn't get that benefit here, because they acted under 1802 (without warrants), not 1804 (with FISA warrants).

Second, maybe my prosecutorial bent has colored my vision, but I don't look at a set of allegations and--as you appeared to do in your 12:31 comment--figure out how the allegations might all be true and the activity still be legal; rather, I look at the elements of the offense and determine whether and how the allegations would result in criminal conduct if true. From my perspective, all I'd need to have in the bag is (1) the surveillance was not directed solely at 1801(a)(1), (2), or (3) entities; or (2) even if the surveillance was directed solely at 1801(a)(1), (2), and (3) entities, there was a substantial likelihood that the surveillance would acquire the contents of communications to which a United States person was a party. If either of those statements is true, 1802 is shot to hell and someone is in trouble--as long as 1802 was the section applied, as opposed to 1804. And the fact that the Administration won't say it was operating under 1804, and that it didn't need to comply with 1802 or 1804 to do what it did, seems to suggest that they didn't comply with either 1802 or 1804--and that they know that they didn't.

Third, while there have been a number of executive orders, including 12333 and 12949, remember that an EO can only extend the intelligence agencies' authority within the statute, not eliminate the restrictions imposed by the statute.

Fourth, the statute only requires notification to the Congressional Gang of Nine, not authorization from the Congressional Gang of Nine, so to say the Democratic members have been "on board" is a gross mischaracterization. That's not "oversight"; that's awareness. They knew, yes; that doesn't mean they approved. Silence is not acquiescence, especially when we're talking about classified material, as we are here. What's the counterargument? That if they opposed the surveillance, they should have leaked the program earlier?

Finally, the "burden of proof" on the Administration, as you concede in your 4:30 comment, was owed to the FISA court, had the Administration taken its case there to begin with. Once it decided not to, if indeed it did make such a decision, that burden of proof shifted--it's not longer owed to the FISA court, it's owed to the American people--because the Administration would then have resorted to extra-legal, if not illegal, methods.

Carla, if one question answers the other, it's not lame at all. Naturally, since you would prefer to hang first and sort out later, this fails to impress you. We needn't wait for the facts after all, just get the rope knotted for noosework...have you stockpiled torches for the rest of the villagers yet?

I'd just like the President to follow the law. If they're doing so..they ought to be able to cite the law that gives them the authority do what they're doing, when asked.

You twisting around about how maybe Condi couldn't reveal the law, based on national security, is stupid and senseless. We don't have a set of super secret laws that can't be revealed to the citizenry. If the President has the authority to do this eavesdropping, they ought to be able to show us where that authority comes from. Its as simple as that.

Bull, Carla. The laws are right there, go upstream to check 'em out via the links. The admin says they followed the law. Do you have any substantive evidence they did not? Do you have any evidence at all that the law was violated? Would you care to tell us which law was violated? Please provide statute number from US code, and cite relevant evidence. Your "feelings" are NOT relevant evidence.

You're demanding the admin provide a negative proof--proof that they haven't violated the relevant codes. A negative proof is a logical fallacy.

We've had this debate before. If you believe the law was violated, provide citations for the relevant law, and the evidence that it was violated.

PS--you have not as of this date provided any evidence or assurance that you have settled either of our outstanding wagers, both of which you lost. Let me remind you. Wager #1 was that the original Fitzgerald grand jury would return NO indictments under IIPA in the Plame case. That grand jury has disbanded, and returned no such indictments. That's ten whole American dollars (and some proof or assurance of payment of same) that you owe to a registered non-partisan non-political charity. Wager #2 was that the initial Earle grand jury indictment of DeLay would not result in a sustainable conviction. That indictment was thrown out by a judge last month, and is no longer prosecutable, much less convictable. That's another ten whole American dollars (and some proof or assurance of payment of same) that you owe to a registered non-partisan non-political charity. As stated previously, I will consider unpaid blood donations as settling all outstanding sums. Please to settle your wagers, and provide a minimum of your solemn word that have done so. (We may disagree vehemently at times, but your sincerity and honesty I do not doubt.)

I'd just like the President to follow the law. If they're doing so..they ought to be able to cite the law that gives them the authority do what they're doing, when asked.

That would only happen in a dream world. There are actions taken by leaders daily where citing a specific law is difficult, at all levels of government, Republican or Democrat. I get what you are getting at, but Condi did cite the Constitution as well as the FISA law this morning. I have a feeling we will get more information from the Justice Department as time goes on, but again how to interpret the law isn't as black and white as we would sometimes hope, as liberals continuously point out. It is funny how you all become strict constructionists when it is this administration's activities that are in question.

I think McCain hit the nail on the head, the real question here is why they didn't go to the FISA court, and we should wait until they provide an answer before passing judgement, in my book. It isn't debateable whether or not POTUS has the power to do what the NSA did, as far as I can tell, but whether or not they did it in the right manner.

My question is this... If Nancy Pelosi knew this was illegal, as she is claiming now, why are we just learning about it? The buck stops with the President on this one, if the law is broken than he is to blame; however, if he did go to Congressional leaders, which nobody denies, what roll do they play in this? If a crime was committed, did they assist in it by knowing there were problems then, if Pelosi is telling the truth, and then letting the program continue?

Jaded and Tully,

Good stuff, but I would still like to see what their lawyers are going to argue on this one, for the sake of comparison alone.

JD, I can't match your knowledge, it's outside my field--which is why I keep asking for more info and clarifications. If we're arguing about the law, I can't argue with you at all. Your opinion is de facto more informed than my own. Which is why I keep hoping to get more illumination into the gray areas of my own knowledge. The facts, OTOH, seem to be in shadow.

I can see areas that may indeed be dispositive. And I can see a real lack of evidence as relates to commission. And I can see a true morass of conflicting and "gray area" statutes and executive orders, dependent on many different things--but I'm not an attorney, much less a prosecuting attorney. From what is available, it seems that the FISC (and Senator Rockefeller) has had informed oversight in this particular regard, made some some objections resulting in some modifications, and quit objecting. I can't go by what is "suggested" by the slim evidence available, I have to work from the base of confirmed facts, of which there are few.

What I do keep coming back to by preliminary analysis is that the communications in question subjected to "warrantless" surveillance were from persons in the US to overseas. I don't know other than through unconfirmed and unsourced media allegations that they involved "US persons." (Meaning I don't "know" it at all.)

Now as nearly as I can tell, a FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power. That area appears to have been covered. Those surveillances seem to have been done under FISA warrant. At this point, we have no idea of the contents of the president's executive order and, therefore, we have no idea what conduct we're supposed to be offended about. The program appears to have involved multiple Congressional notifications, informed review by the FISC, and the legal approval of multiple agencies including the NSA, DoJ, and White House legal staff, all of whom insist it was legal. So what am I missing here?

I haven't seen anything indicating that the surveillance was being conducted under the FISA court's review. If it was, and the operation was conducted under 50 U.S.C. Sec. 1804, then the hoopla is a bunch of nonsense. We can hope that's the case. But we don't know it is, and I'd like Congress to ascertain what the facts are so that we have a clearer picture of, if nothing else, (a) the immigration status of the subjects and (b) the involvement of the FISA court. Those two topics, in those general terms, should be suitable for public disclosure.

Well I don't buy into the "give the devil the benefit of the law" analogy because, in the case let's say you have someone who jokingly comments over the telephone to a friend "i'm going to kill the President." The NSA computer picks it up and forwards the sound byte to some intelligence analyst. This guy is still protected by the law, because he can state that he was saying it jokingly. So while some might think he was violated in the first place, he is still protected by the law, because he has nothing to hide - he isn't really contemplating assasinating the President.

Although the folks on this conversation who believe the law should be changed so that it is legal for the govmt' to eavesdrop, i'd agree with.

Patriot Act just expired I think. I'm not an expert on it but i believe it is the same argument just about, and as far as I'm concerned i still stick to my opinion regarding, if you don't have anything to hide, who cares about big brother listening. I would be glad if big brother was listening so that terrorists will be stamped out before they kill more people.

Defensetech has another post on this subject. They make some investing points about how this may involve new technology or possible a scope so broad that even FISA would balk at approving a warrant.

Oh Yes, I wholeheartedly agree with Jim!!! Further, I'm sure that once we sacrifice all of our privacy and every single one of our civil liberties, we'll be 100% protected from terrorists.

And after all, how could any other aspect of American life conceivably have any value whatsoever when compared to the need for us to be safe from terrorists?

Liberty, schmibberty! as long as we are good, and vigilant to act only in accordance with all known laws that may be construed to apply to us or any one of our actions, we have absolutely nothing to worry about!

JD, I suspect we'll find out (though not soon) that we are NOT talking about 1802 here at all, or even necessarily about FISA, except as it bumps tangentially into executive constitutional authorities. We're talking about multiple authorities and differing discrete cases. The number of warrants reported by the FISA court has exploded since 9-11, so it's clearly being utilized by the administration for domestic cases. The surveillance program is reported as having been modified in particulars in response to concerns from both Senator Rockefeller and the FISA court, so they have clearly been "in the loop" and privy to details to at least some degree. (If you believe the NYT, which I always find chancy, but we don't have a lot else to go on right now.)

The objectionable area appears to be entirely regarding communications either originating from or bound to foreign soil involving US persons at our end of the line (non-US persons don't count). Which would take us back to the definitions in 1801. If the intentional target of the surveillance is not a US person and the actual acquisition does not occur in the US, it's not "electronic surveillance" under FISA. [1801(f)1-2)] If a US person communicates with a legitimate overseas target that is under surveillance and gets overheard, that's not an abuse.

In simpler terms, under FISA, if the gov't is tapping Osama's Afghan cell phone from Turkey or his email from a satellite positioned over Iraq, and Joe Citizen calls or emails Osama, no warrant at all is needed to listen in. But if the gov't targets and taps Joe Citizen in America to watch his outbound calls and emails, they'd better have a really damn good explanation--and a warrant or court order, except in VERY extraordinary circumstances requiring ASAP retroactive review by the FISA court. That's where the whole "foreign intelligence" and "war powers" thing can get tangled up with Constitutional authorities and staute, I believe. Where the conflicting claims of executive authority and domestic law do indeed get a bit murky.

Joe Student Visa and Jane Non-Resident Work Permit and Fred Illegal-Border-Jumper do NOT enjoy those same protections under FISA. We're concerned with "US persons."

Would that be an accurate take? I'm not even going to get into "Constitutional authority" and executive orders that conflict with statute, or war powers exceptions. Those dogfights have been going on since before the ink dried in 1789, and I'm not jumping between those jaws.

UPDATE: Bush's speech today (and Gonzales' comments) make it clear that some of the surveillance is being justified under war powers. Which is a completely different discussion than FISA surveilllance.

Bush is on such flimsy ground here, it is not even funny. I am a Republican and I voted for Bush twice, however, I think this could be an impeachable offense. To use a war as an excuse to violate constitutional protections has almost always been shown to be a bad idea. This one is almost as bad as the Japanese internment camps. The difference is that at least those were out in the open. Secret government has not and will never work in an open society. This is wqual to the days of Hoover.

To sit and give up our Constitutional liberties is a complete victory for the terrorist. An open society can never be completly secure. We should not trade our Liberty for security. The moment we do that, liberty dies.