Bush's "Snoopgate"

[japangreg]

*double post*

Oh, really TGLC? Did you know that the Aspens out west all turn together because their roots bind them?

Just thought you'd like to know. Come back to life.

[XU1]

Indy:
100% true on what you said in your post about freedom earlier on, only those with an infantile view of the world would would think otherwise.

Here is a brilliant explanation from none other than Clintons former Attorney general in the Chicago Tribune.

President had legal authority to OK taps

By John Schmidt
Published December 21, 2005


President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action.

But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

----------

John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States. He is now a partner in the Chicago-based law firm of Mayer, Brown, Rowe & Maw.

iTony

[japangreg]

Indy:
100% true on what you said in your post about freedom earlier on, only those with an infantile view of the world would would think otherwise.

I won't have you calling the founding fathers of my county infantile, thank you very much.

If you want to brand yourself a coward willing to live in a cage for his own safety, go ahead. I'll take my chances on the outside.

In response to that article, it isn't up to the President which laws apply to him - he cannot alter judicial procedure by executive decision. There are checks and balances, even in times of war.

What the article fails to address, and the issue for which no explanation has been given, is why Bush needed to go outside the system. It was set up to be a big push-over for the CiC wanting to keep tabs on dangerous people. There is nothing inherent in the FISA process that would have adversely effected the WOT, especially after the Patriot Act. Just saying 'well, I think it's legal' doesn't change the fact that, according to the laws on the books, it wasn't. Until they approach Congress to change the laws, they broke them.

[TallGuyLittleCar]

If you want to brand yourself a coward willing to live in a cage for his own safety, go ahead. I'll take my chances on the outside.

so then you are with me in ending all social welfare programs

What the article fails to address, and the issue for which no explanation has been given, is why Bush needed to go outside the system.

You know you aren't going to get an answer... my only guess that doesn't involve evil deeds, is to stick with procedure and the NSA.

[japangreg]

so then you are with me in ending all social welfare programs

Safety, I said, not comfort. Different things there. Even so, I don't think anyone asks welfare recipients to give up their comings and goings to an oversight committee, do they?

You know you aren't going to get an answer... my only guess that doesn't involve evil deeds, is to stick with procedure and the NSA.

I'd even settle for a rational guess at this point.

The Patriot Act gives the executive a lot of lee-way in conducting the WoT. If the admin. is just going to use the WoT as a pretext for creating whatever powers it wants, then why have the PA at all?

There's more to the story here...

[TallGuyLittleCar]

The Patriot Act gives the executive a lot of lee-way in conducting the WoT. If the admin. is just going to use the WoT as a pretext for creating whatever powers it wants, then why have the PA at all?

My rational guess is that bush wanted this investigation kept in the NSA without getting the FBI involved.

There's more to the story here...

that is what I keep saying about vince foster.

[japangreg]

What the hell, since apparently the opinion of former attorney general's is somehow relevant to this, here's the former Associate Deputy Attorney General under Reagan, in the right-wing Washington Times no less:

According to President George W. Bush, being president in wartime means never having to concede co-equal branches of government have a role when it comes to hidden encroachments on civil liberties.
Last Saturday, he thus aggressively defended the constitutionality of his secret order to the National Security Agency to eavesdrop on the international communications of Americans whom the executive branch speculates might be tied to terrorists. Authorized after the September 11, 2001 abominations, the eavesdropping clashes with the Foreign Intelligence Surveillance Act (FISA), excludes judicial or legislative oversight, and circumvented public accountability for four years until disclosed by the New York Times last Friday. Mr. Bush's defense generally echoed previous outlandish assertions that the commander in chief enjoys inherent constitutional power to ignore customary congressional, judicial or public checks on executive tyranny under the banner of defeating international terrorism, for example, defying treaty or statutory prohibitions on torture or indefinitely detaining United States citizens as illegal combatants on the president's say-so.
President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.
The war against global terrorism is serious business. The enemy has placed every American at risk, a tactic that justifies altering the customary balance between liberty and security. But like all other constitutional authorities, the war powers of the president are a matter of degree. In Youngstown Sheet & Tube v. Sawyer (1952), the U.S. Supreme Court denied President Harry Truman's claim of inherent constitutional power to seize a steel mill threatened with a strike to avert a steel shortage that might have impaired the war effort in Korea. A strike occurred, but Truman's fear proved unfounded.
Neither President Richard Nixon nor Gerald Ford was empowered to suspend Congress for failing to appropriate funds they requested to fight in Cambodia or South Vietnam. And the Supreme Court rejected Nixon's claim of inherent power to enjoin publication of the Pentagon Papers during the Vietnam War in New York Times v. United States (1971).
Mr. Bush insisted in his radio address that the NSA targets only citizens "with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist organizations."
But there are no checks on NSA errors or abuses, the hallmark of a rule of law as opposed to a rule of men. Truth and accuracy are the first casualties of war. President Bush assured the world Iraq possessed weapons of mass destruction before the 2003 invasion. He was wrong. President Franklin D. Roosevelt declared Americans of Japanese ancestry were security threats to justify interning them in concentration camps during World War II. He was wrong. President Lyndon Johnson maintained communists masterminded and funded the massive Vietnam War protests in the United States. He was wrong. To paraphrase President Ronald Reagan's remark to Soviet leader Mikhail Gorbachev, President Bush can be trusted in wartime, but only with independent verification.
The NSA eavesdropping is further troublesome because it easily evades judicial review. Targeted citizens are never informed their international communications have been intercepted. Unless a criminal prosecution is forthcoming (which seems unlikely), the citizen has no forum to test the government's claim the interceptions were triggered by known links to a terrorist organization.
Mr. Bush acclaimed the secret surveillance as "crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies." But if that were justified, why was Congress not asked for legislative authorization in light of the legal cloud created by FISA and the legislative branch's sympathies shown in the Patriot Act and joint resolution for war? FISA requires court approval for national security wiretaps, and makes it a crime for a person to intentionally engage "in electronic surveillance under color of law, except as authorized by statute."
Mr. Bush cited the disruptions of "terrorist" cells in New York, Oregon, Virginia, California, Texas and Ohio as evidence of a pronounced domestic threat that compelled unilateral and secret action. But he failed to demonstrate those cells could not have been equally penetrated with customary legislative and judicial checks on executive overreaching.
The president maintained that, "As a result [of the NSA disclosure], our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." But if secrecy were pivotal to the NSA's surveillance, why is the president continuing the eavesdropping? And why is he so carefree about risking the liberties of both the living and those yet to be born by flouting the Constitution's separation of powers and conflating constructive criticism with treason?

I'll do Tony one better and actually link to the source: source

BTW, Tony, he wasn't the attorney general for Clinton... read your own article.

[japangreg]

My rational guess is that bush wanted this investigation kept in the NSA without getting the FBI involved.

Which is exactly the type of intelligence turf war that allowed 9/11.

[TallGuyLittleCar]

Which is exactly the type of intelligence turf war that allowed 9/11.

Not really, it was failures within the FBI, among other things(well just plane alot of people not doing their jobs). I think the opinion is that the FBI has/had gone to crap.

[japangreg]

Not really, it was failures within the FBI, among other things(well just plane alot of people not doing their jobs). I think the opinion is that the FBI has/had gone to crap.

Officials Fault Case Bush Cited

...Indeed, a 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns — not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines...

...Authorities also had traced the phone number at the safe house to Almihdhar's father-in-law, and believed then that two of his other sons-in-law already had killed themselves in suicide terrorist attacks. Such information, the officials said, should have set off alarm bells at the highest levels of the U.S. government.

Under authority granted in federal law, the NSA already was listening in on that number in Yemen and could have tracked calls made into the U.S. by getting a warrant under the Foreign Intelligence Surveillance Act.

Then the NSA could have — and should have — alerted the FBI, which then could have used the information to locate the future hijackers in San Diego and monitored their phone calls, e-mail and other activities, the current and former officials said.

Instead, the NSA didn't disclose the existence of the calls until after Sept. 11, according to these officials and U.S. documents produced in two independent inquiries...

..."However, NSA and the FBI did not fully coordinate their efforts, and, as a result, the opportunity to determine Almihdhar's presence in the United States was lost," the 2002 report said.

Not saying there weren't internal failures at each and every level, but inter-agency communication was one of the biggest problems. Why re-create it?

[TallGuyLittleCar]

Officials Fault Case Bush CitedNot saying there weren't internal failures at each and every level, but inter-agency communication was one of the biggest problems. Why re-create it?

I dissagree with the findings, the ball was dropped numerous times, even without inter-agency communication it could have been prevented.

//edit information gained from the intitial wiretaps was used to get warrents for fbi wiretaps.

[japangreg]

I dissagree with the findings, the ball was dropped numerous times, even without inter-agency communication it could have been prevented.

Possibly - but this is another example of a lost opportunity, and (if I'm remembering correctly) the justification for the intelligence tzar position being created. Why would you purposefully cut people out of the loop after seeing this?

[XU1]

I won't have you calling the founding fathers of my county infantile, thank you very much.

I was referring to his definition of freedom ( absolute versus relative) not referring to the body of his post about the founding fathers.

If you want to brand yourself a coward willing to live in a cage for his own safety, go ahead. I'll take my chances on the outside.

Of course not....but I'm not going to deny that we are living in difficult and different times.

In response to that article, it isn't up to the President which laws apply to him - he cannot alter judicial procedure by executive decision. There are checks and balances, even in times of war.

Yes, but they are arguing that he didn't alter judicial procedure.

What the article fails to address, and the issue for which no explanation has been given, is why Bush needed to go outside the system. It was set up to be a big push-over for the CiC wanting to keep tabs on dangerous people. There is nothing inherent in the FISA process that would have adversely effected the WOT, especially after the Patriot Act. Just saying 'well, I think it's legal' doesn't change the fact that, according to the laws on the books, it wasn't. Until they approach Congress to change the laws, they broke them.

Of course that is now in the interpretation....did he actualy go outside the system?... The story is slowly appearing and so far most legal heads don't seem to have a problem with what he did....let's see what transpires in the next few days.

iTony

[TallGuyLittleCar]

Possibly - but this is another example of a lost opportunity, and (if I'm remembering correctly) the justification for the intelligence tzar position being created. Why would you purposefully cut people out of the loop after seeing this?

i made an edit, har har.


information gained from the intitial wiretaps was used to get warrents for fbi wiretaps, i think. It isn't that the fbi was cut out of the loop, it was perhaps this was to important to allow the fbi to execute, information could then have been shared with the fbi.

That is just my guess and why I would have done it... who knows why bush did it.

[XU1]

The NSA eavesdropping is further troublesome because it easily evades judicial review. Targeted citizens are never informed their international communications have been intercepted. Unless a criminal prosecution is forthcoming (which seems unlikely), the citizen has no forum to test the government's claim the interceptions were triggered by known links to a terrorist organization.

Proposed pre recorded message warning of potential wire tap.

"For national security reasons this phone call may be recorded...anything you say may be used in a court of law...yada yada yada....."

Why not? it seems like the next logical step.

iTony

[XU1]

What the hell, since apparently the opinion of former attorney general's is somehow relevant to this, here's the former Associate Deputy Attorney General under Reagan, in the right-wing Washington Times no less:I'll do Tony one better and actually link to the source: source

BTW, Tony, he wasn't the attorney general for Clinton... read your own article.

Sorry here is the link to the my Source

Early in the morning here....I thought I wrote assistant or associate...I just looked and you are right.

iTony

[XU1]

OK...so this really comes down to "concerns" and "doubts"

There has yet to be a clear legal argument or position that Bush acted outside of his powers.

In fact Bushs position has all the foreclosed precedents....I haven't heard any against...just "concerns" and "doubts".

iTony

[indivision]

That is pure spin and extremely deceitful.
By his own admission, the only ones who Bush consulted before making this decision were his lawyers and Gonzales.

Source

The Whitehouse did inform a few members of the House and Senate intelligence committees of the presidential directive but did not ask them for approval or advice and also prohibited them from discussing the matter with anyone including their own staff, other members of congress or even the other Intelligence Committee members who were informed.

Are you calling THAT over-sight?

No. I'm calling that either misinformed or ironically deceitful.

McCain, who I gather is fairly privy to this information stated contrary: http://www.freerepublic.com/focus/f-news/1542919/posts

congressional leaders - including top Democrats - were consulted on the NSA authorization

...

"I'd like to hear from the leaders of Congress, both Republican and Democrat, who, according to reports, we're briefed on this and agreed to it," he told "This Week." "They didn't raise any objection, apparently, to [whether] there was a, quote, violation of law."

I suppose his quotes must be inaccurate though since the source is considered conservative.

[indivision]

My god. Just, really... my god. What the hell? Deflect, deny, and when that doesn't work, shoot the messenger. How many times do we have to see this until it gets old?

Deflect: Clinton did it.
Deny: It wasn't really illegal.
Kill: What motive does the NY Times have to slander the Pres?

It really makes me sick - and Indi, why the hell did you whip out Conyer's talking point? As Frets points out, no idea could be further from where our country was born. How in the hell can you say that with a straight face?

Slow down there, hot-rod.

I have no idea who Conyer is. And I can't believe that I'm actually having to go this far into explaining this simple point... again.

That freedom is worth dying for IS NOT IN ANY WAY EQUIVALENT to the idea that dead people cant enjoy being free.

Murder is illegal. We are not free to murder. Is that un-american?
It is illegal to bring hand-guns onto airplanes. Is that un-american?

The simple point I was making was that we can afford to have increased security measures and be as free in as much sense and probably still more so than we have been in the past. If you're so attached to the juiciness of the idea that I said something unamerican, I cant help you. this is not your indivisiongate any more than this nsa muck is a real snoopgate.

And please. Don't confuse a deflection with a correction. The Times article is clearly inaccurate to say the action was unprecedented. Particularly, but not exclusively when they cite a conveniently unnamed former security official:

"This is really a sea change. It's almost a mainstay of this country that the NSA only does foreign searches."

This is categorically false. Contrary to what Haikumania suggested earlier, Clinton DID order surveilance on US calls, not just foreign. Look it up (and start with the Echelon program).

[TheOriginalFlashDavo]

This guy?

Yeah, the guy waiting for justice to be served.

Bad example to be holding up as anything legitimate mate, someone locked up for 4 years without a trial???