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Bush Administration Still Lying About FISA
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| Bush Administration Still Lying About FISA
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| Ass Boil |
http://www.salon.com/opinion/greenw...nges/print.html
The administration's FISA falsehoods continue unabated
The Washington Post Op-Ed by the national intelligence director rests on a patently false claim.
Glenn Greenwald
May. 21, 2007 | Mike McConnell, the Bush administration's Director of National Intelligence, has a remarkably dishonest Op-Ed in The Washington Post this morning, in which he argues for completely unspecified "updates" and "changes" to FISA in order to expand -- yet again -- the Government's powers of eavesdropping on Americans. McConnell's entire argument for expansion of surveillance powers rests on a patent falsehood.
In paragraph after paragraph, McConnell claims that FISA -- which was first enacted in 1978 but amended multiple times since then -- is an obsolete law because it was from an era where "the first cellular mobile phone system was still being tested" and "a personal computer's memory had just been expanded to 16 kilobytes." He then affirmatively (and falsely) states, several times, that FISA is unchanged since 1978 and thus does not recognize new communications technology such as e-mail and cell phones:
Technology and threats have changed, but the law remains essentially the same. If we are to improve our ability to protect the country by gathering foreign intelligence, this law must be updated to reflect changes in technology and the ways our adversaries communicate with one another. . . .
To state the facts plainly: In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries. We are in this situation because the law simply has not kept pace with technology.
The failure to update this law comes at an increasingly steep price. . . .Because the law has not been changed to reflect technological advancements, we are missing potentially valuable intelligence needed to protect America. . . .Bringing FISA into the 21st century is one such improvement that can and should be made now.
Many of these statements are highly misleading, as they strongly imply that FISA has not been amended since it was first enacted 30 years ago. But several of the statements -- such as: "the law has not been changed to reflect technological advancements" -- are just flat-out lies.
In the wake of the 9/11 attacks, the Bush administration demanded a whole slew of changes to FISA which expanded the President's eavesdropping powers and which the administration claimed were necessary in order to bring FISA into the 21st Century by allowing surveillance of modern communication methods. Congress, needless to say, complied in full, and in October of 2001 -- contrary to McConnell's misleading Op-Ed -- it enacted, and the President signed, sweeping "modernizing" changes to FISA. Compare what the President said at the signing ceremony back in October 2001 to McConnell's Op-Ed:
The changes, effective today, will help counter a threat like no other our Nation has ever faced. . . .
We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .
Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology. . .
In his radio address the following week, this is what the President said about the changes to FISA:
The bill I signed yesterday gives intelligence and law enforcement officials additional tools they need to hunt and capture and punish terrorists. Our enemies operate by highly sophisticated methods and technologies, using the latest means of communication and the new weapon of bioterrorism.
When earlier laws were written, some of these methods did not even exist. The new law recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations -- and also to detect them before they strike. . . .
Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws written in the era of rotary telephones. Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.
George Bush justified the sweeping expansion of FISA back in October of 2001 by insisting that the changes allowed full-scale surveillance of all modern means of communications -- including email and cell phones.
Yet now, his own Director of National Intelligence, when seeking still further expansions of the government's surveillance powers, goes to the Washington Post and flat-out says that FISA has not been changed since 1978 and has not been updated to reflect technological changes such as cell phones and email. And he uses almost identical language to describe the deficiencies allegedly now burdening FISA that Bush used back in 2001 to identify all the deficiencies which the FISA changes resolved.
The idea that FISA is some sort of obsolete relic from the rotary phone era that has never been updated has become pervasive even among well-informed commentators (Kevin Drum, for instance, yesterday said, incorrectly: "George Bush can recommend legislation to modify FISA anytime he wants. In the six years since 9/11 he hasn't done so . . .I'm willing to consider changes to FISA. McConnell is right that it's three decades old and could use an update to address changes in technology").
That FISA was substantially expanded in October of 2001 -- at the administration's request -- is one of the central (and often overlooked) facts illustrating how severe is the corruption and dishonesty which lies (still) at the heart of the NSA lawbreaking scandal.
The same President who demanded changes to FISA in light of the terrorist threat, who received all the changes he demanded, and who then assured the nation he had all the surveillance tools he needed under the law, then proceeded -- the very same month -- to eavesdrop on Americans in violation of that law. Then, once caught, he sought to excuse his lawbreaking by claiming that the law (which his own administration re-wrote and heralded as sufficient) was somehow inadequate.
In light of McConnell's Op-Ed today, it is also critical to recall that the administration had multiple opportunities since those post-9/11 changes to expand the scope of FISA, and it was the administration which refused those changes on the ground that they were unnecessary. In 2002, multiple Senators sought to make it easier to obtain FISA warrants, and the Bush administration opposed those changes, insisting that it already had sufficient eavesdropping powers. And all throughout last year, Senators such as Diane Feinstein and Arlen Specter proposed endless FISA amendments to expand the scope of government eavesdropping (in response to claims that FISA was too narrow), and the Bush administration was completely uninterested in all of them.
The administration is not, and never has been, interested in expanding the scope of FISA in order to enable them to obtain warrants more easily or accommodate "new technology." Their overriding goal has been, and plainly continues to be, the total elimination of meaningful oversight with regard to how the government eavesdrops on Americans. That goal of theirs was accomplished for many years by simply breaking the law which requires oversight, and now -- having been caught -- they seek to accomplish the same goal under the guise of wanting "updates" to the "rotary phone era" law.
This is why their statements are so contradictory and their actions on this issue make no sense. The allegedly obsolete nature of FISA is merely the pretext for gutting its core oversight requirements. That is what McConnell means when he says: "Technology and threats have changed, but the law remains essentially the same."
The "essence" of FISA is that we do not trust our government to eavesdrop on us without judicial oversight, due to the decades of abuse of that power by every administration which -- prior to FISA -- wielded it in secret. The only changes to FISA in which the administration has any interest are changes to the "essence" of FISA -- not changes to accommodate updated technology, but changes to eliminate any real limits on what they can do.
Alarmingly, McConnell writes: "I am encouraged that in my discussions with members of Congress, and in congressional hearings on this subject over the past year, there is recognition of the need to improve our intelligence efforts and close critical gaps created by changes in technology." And there have been rumblings that Congressional Democrats are receptive to expanding FISA to accommodate the administration.
But any such changes at this point would be unconscionable. The administration still claims that it has the right to violate FISA any time it wishes. And the scope and extent of its past (and possibly current) violations are still completely unknown.
And beyond McConnell's plainly false Op-Ed, the lies told by the Bush administration on the issue of eavesdropping have no equal. In light of the revelations from James Comey, just re-visit the statements from Alberto Gonzales in December 2005 -- five days before the New York Times revealed the warrantless eavesdropping program -- in which he assured his audience: "All wiretaps must be authorized by a federal judge." That is the same Alberto Gonzales who barged into John Ashcroft's hospital room to coerce his consent to their ongoing warrantless eavesdropping activities.
Worse, the President himself -- literally one month after the dispute with Comey and Ashcroft over warrantless eavesdropping -- one month -- ran around the country as part of his re-election campaign insisting that the only eavesdropping done by the government was one done with warrants:
Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.
The same President who ordered warrantless eavesdropping -- and who almost had the entire top level of the DOJ resign as a result -- told Americans weeks later that the Government only eavesdrops with warrants. To call that "lying" is to understate the case. It really is to our great discredit that we have acquiesced to this level of presidential deceit.
McConnell's Op-Ed demonstrates that this level of deceit with regard to eavesdropping continues unabated. The notion that the administration would demand, and that Congress would entertain, further expansions of FISA under these circumstances is just staggering.
It is theoretically possible that there are modifications to the FISA warrant process that are justifiable, but the administration has left no doubt that this is not their true objective. And the very last thing that ought to be considered is vesting further eavesdropping power in an administration that still insists there are no valid limits on its eavesdropping powers, particularly until we have learned how they exercised those surveillance powers when they were used, for years, in secret and in violation of the law.
-- Glenn Greenwald |
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| otherone4life |
| guess the "liberal" Wash. Post got fooled ..forgetting the fact that Fred Hiatt (editorial page editor) has basically had his tongue up W's crack for the last 6 years .... |
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| otherone4life |
| The Proposed FISA Bill would also provide blanket immunity for any of the warrantless wiretapping shenanigans (how convenient) and also bar any private citizen lawsuits against telecom. companies for cooperating with the government .... |
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| Reverend Tyler |
| Dishonest while stripping away civil liberties? You don't say... |
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| Stonewall |
If you listen to even Democrats, FISA needs an update. Just watch any hearing on it.
The problem with linking FISA with the Terrorist Surveillance Program (TSP) is it's kind of like changing the laws governing arrest because of the Hamdi decision and the governments ability to put an American citizen in Gitmo without a trial as an enemy combatant.
The Congress has always been confused on FISA and the TSP. FISA exists and therefore nothing else can exist, apparently. The two have nothing to do with each other. You cannot prevent the NSA from intercepting enemy communications. It's not going to happen even if the enemy is in the U.S.. A judge has no power to prevent the military or the Commander in Chief, during a time of war, from intercepting enemy communications. That is a direct conflict of the separation of powers doctrine. On what basis is a Judge to rule? Is a Judge a military commander? No, he wants probable cause. He wants a legal justification. Turning down a warrant may lead to attacks within the U.S..
Congress has no power in this either. Oversight to a certain degree. A select few members. They certainly can create no law that steps upon the inherent powers of a President. If FISA is the only thing that matters, then FISA is unconstitutional and will fall.
The article is misleading. |
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| Fdubya247 |
Quote: Originally posted by Stonewall
, from intercepting enemy communications. |
"Enemy" communications.
What a good little Nazi/Confederate you are Stumpy.
* "I will decide who is a Jew (Terrorist)!" -- Hermann Goering |
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| Ass Boil |
Quote: Originally posted by Stonewall
If you listen to even Democrats, FISA needs an update. Just watch any hearing on it.
The problem with linking FISA with the Terrorist Surveillance Program (TSP) is it's kind of like changing the laws governing arrest because of the Hamdi decision and the governments ability to put an American citizen in Gitmo without a trial as an enemy combatant.
The Congress has always been confused on FISA and the TSP. FISA exists and therefore nothing else can exist, apparently. The two have nothing to do with each other. You cannot prevent the NSA from intercepting enemy communications. It's not going to happen even if the enemy is in the U.S.. A judge has no power to prevent the military or the Commander in Chief, during a time of war, from intercepting enemy communications. That is a direct conflict of the separation of powers doctrine. On what basis is a Judge to rule? Is a Judge a military commander? No, he wants probable cause. He wants a legal justification. Turning down a warrant may lead to attacks within the U.S..
Congress has no power in this either. Oversight to a certain degree. A select few members. They certainly can create no law that steps upon the inherent powers of a President. If FISA is the only thing that matters, then FISA is unconstitutional and will fall.
The article is misleading. |
Do not project your personal confusion onto everyone else. Judging by Bush's own quote on the 2001 update to FISA, he seems like it's just fine.
Maybe you need to watch more hearings?
Do they have a C-SPAN for kids channel? |
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| Stonewall |
Quote: Originally posted by Ass Boil
Do not project your personal confusion onto everyone else. Judging by Bush's own quote on the 2001 update to FISA, he seems like it's just fine.
Maybe you need to watch more hearings?
Do they have a C-SPAN for kids channel? |
There were changes in the language of FISA. But, we are still confusing FISA with the TSP. We are still believing Bush broke the law, FISA, because of the TSP. That is false because FISA has nothing to do with the TSP. It's a military program in a time of war.
Because of the Hamdi decision should we change the laws of arrest?
Bush's quote from 2001 is meaningless in a hearing in 2007. The one they just had a couple weeks ago. On C-Span. |
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| Stonewall |
C-Span....FISA Hearing.
That link is to C-Span. Go to the link and the second link..."Senate Select Intelligence Cmte. Hearing on Modernizing FISA", click on it and watch the hearing. It's two and a half hours long so I expect no one to watch it. No one to learn anything. It's so much easier to believe what we want and how we want.
Remember also....Islam is the Religion of Peace. See that's easy. |
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| dj applebag |
| stonewall, why do they need blanket immunity for the present and past wiretapping? if they have done nothing wrong why do they need immunity for all the telecoms also? is it because what they have been doing has been illigal? regardless if it is the tsp or fisa? you also say that since it is a war since i never remember declaring war, only to take military actions IF NECCESARY" !!!so your whole its war bullshit line is stupid to begin with. what war anyway? the war against the american people to invade their privacy? are you saying that every american is a terrorist and should be monitored?but of course there will be safegaurds( yeah right). funny how we should just give up all our civil liberties to prove we have nothing to hide but these same bush crime family thugs scream about privacy when trying to get even the most basic questions answered on any dealings inside the bush crime house. with hold e-mails, do not let your staff talk to congress under oath? that to me does not sound like they have nothing to hide!! but of course if a facist repub says we need it, then we must need it. repubs have never lied to us before right??!?! RIGHT!!! assholes. |
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| Stonewall |
Quote: Originally posted by dj applebag
stonewall, why do they need blanket immunity for the present and past wiretapping? if they have done nothing wrong why do they need immunity for all the telecoms also? is it because what they have been doing has been illigal? regardless if it is the tsp or fisa? you also say that since it is a war since i never remember declaring war, only to take military actions IF NECCESARY" !!!so your whole its war bullshit line is stupid to begin with. what war anyway? the war against the american people to invade their privacy? are you saying that every american is a terrorist and should be monitored?but of course there will be safegaurds( yeah right). funny how we should just give up all our civil liberties to prove we have nothing to hide but these same bush crime family thugs scream about privacy when trying to get even the most basic questions answered on any dealings inside the bush crime house. with hold e-mails, do not let your staff talk to congress under oath? that to me does not sound like they have nothing to hide!! but of course if a facist repub says we need it, then we must need it. repubs have never lied to us before right??!?! RIGHT!!! assholes. |
I'm not exactly sure of why this administration does all that it does. The immunity, perhaps it is a way to end all crying about the TSP. I do not know. I do know that a President can wiretap in a reasonable manner without a warrant. Especially during war. We are in a war. Make no mistake about that. The Supreme Court believes we are. I'm not a fan of the War Powers Act. It was vetoed and then a successful override. The Executive Branch does not really accept the War Powers Act. When Congress authorizes war I don't believe the President cares what the Congress calls it. A Declaration or AUMF or whatever. Certainly a Commander in Chief is responsible for the conduct of a war. All believe they are at war when authorized to do so. It's a word game. The Court views the war question as an interplay between the political branches. If those two entities agree to war then the court is satisfied as to it's legality. That is why they ruled the way they did in Hamdi. That is a big case and I would read the opinion to gain an understanding of how the Court views this war on terror. |
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| Ass Boil |
Quote: Originally posted by Stonewall
There were changes in the language of FISA. But, we are still confusing FISA with the TSP. We are still believing Bush broke the law, FISA, because of the TSP. That is false because FISA has nothing to do with the TSP. It's a military program in a time of war.
Because of the Hamdi decision should we change the laws of arrest?
Bush's quote from 2001 is meaningless in a hearing in 2007. The one they just had a couple weeks ago. On C-Span. |
Problem: The TSP (funniest name ever) spied on millions of AMERICAN CITIZENS without warrants.
Problem: Bush asked for, and was DENIED war powers within the US before the Iraq war.
Quote:
Daschle: Congress Denied Bush War Powers in U.S.
By Barton Gellman
Washington Post Staff Writer
Friday, December 23, 2005; A04
The Bush administration requested, and Congress rejected, war-making authority "in the United States" in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today's Washington Post.
Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.
The Justice Department acknowledged yesterday, in a letter to Congress, that the president's October 2001 eavesdropping order did not comply with "the 'procedures' of" the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, "except as authorized by statute."
There is one other statutory authority for wiretapping, which covers conventional criminal cases. That law describes itself, along with FISA, as "the exclusive means by which electronic surveillance . . . may be conducted."
Yesterday's letter, signed by Assistant Attorney General William Moschella, asserted that Congress implicitly created an exception to FISA's warrant requirement by authorizing President Bush to use military force in response to the destruction of the World Trade Center and a wing of the Pentagon. The congressional resolution of Sept. 18, 2001, formally titled "Authorization for the Use of Military Force," made no reference to surveillance or to the president's intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation.
But Moschella argued yesterday that espionage is "a fundamental incident to the use of military force" and that its absence from the resolution "cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy." Such eavesdropping, he wrote, necessarily included conversations in which one party is in the United States.
Daschle's article reveals an important new episode in the resolution's legislative history.
As drafted, and as finally passed, the resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons" who "planned, authorized, committed or aided" the Sept. 11 attacks.
"Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."
Daschle wrote that Congress also rejected draft language from the White House that would have authorized the use of force to "deter and pre-empt any future acts of terrorism or aggression against the United States," not only against those responsible for the Sept. 11 attacks.
Republican legislators involved in the negotiations could not be reached for comment last night.
http://www.washingtonpost.com/wp-dy...2202119_pf.html |
Try again, Stoney...... |
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| otherone4life |
| who needs pesky little obstacles like the law, the constitution, judicial review etc when Chimpy says he needs to do what he needs to do. |
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| Stonewall |
Quote: Originally posted by Ass Boil
Problem: The TSP (funniest name ever) spied on millions of AMERICAN CITIZENS without warrants.
Problem: Bush asked for, and was DENIED war powers within the US before the Iraq war.
Try again, Stoney...... |
You have no proof that the TSP spied on millions of Americans. Everytime the NSA did this a record was made, and the decision made by a career NSA Agent. That is how it was described. That is how members of Congress describe it. In hearings you would think Sen. Feinstein would have brought this up, she did go to the NSA and view the instances where this program was used.
Daschle should run to the Supreme Court with his objections. They seem to have a different view of the powers of this President during this war. I'll repeat again, read the Hamdi decision. The Court describes how they view this AUMF created right after 9/11. That reality is what we have to deal with. Not Daschle's. |
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| dj applebag |
| the aumf was for saddam hussiens removal and overthrowing the government if he did not comply with the inspectors. that didn't stop chimpy anyway and started bombing, while the inspectors were doing their job. now that his removal is complete and elections were held in iraq, why does he need his supposed war powers? to spy on americans? again you say the always truthful government never spied on americans yet the bush administration does not want congressional oversight on the matter, stonewalled and when they finally allowed people to see, they didn't even want the whole intelligance committee to see it!!! only a couple of people!!! i say again, if they have nothing to hide and everything is fine, why do they try so hard at stonewalling, covering up and denying rightfull access to relevant members of congress? they were not even informed of what was going on until press reports came out and they have to answer questions about it!!!! the reason they don't say anything about the program is because the program itself is highly classified and they can't even discuss what they say!!! no repubs will circumvent the law for their own personal benefit!!! these people are not repubs and they are giving repubs a very bad name!! how are thet actions of this repubs congress and administration republican like? balloning federal deficit, runaway spending, extreme government waste, increasing federal beuracracy and total defiance of the law?? are these repub values?? you might want to rethink your alligance to these facists before the repub way of thinking is totally whored away for money, power and greed, which are the values of this administration. |
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| Stonewall |
Quote: Originally posted by dj applebag
the aumf was for saddam hussiens removal and overthrowing the government if he did not comply with the inspectors. that didn't stop chimpy anyway and started bombing, while the inspectors were doing their job. now that his removal is complete and elections were held in iraq, why does he need his supposed war powers? to spy on americans? again you say the always truthful government never spied on americans yet the bush administration does not want congressional oversight on the matter, stonewalled and when they finally allowed people to see, they didn't even want the whole intelligance committee to see it!!! only a couple of people!!! i say again, if they have nothing to hide and everything is fine, why do they try so hard at stonewalling, covering up and denying rightfull access to relevant members of congress? they were not even informed of what was going on until press reports came out and they have to answer questions about it!!!! the reason they don't say anything about the program is because the program itself is highly classified and they can't even discuss what they say!!! no repubs will circumvent the law for their own personal benefit!!! these people are not repubs and they are giving repubs a very bad name!! how are thet actions of this repubs congress and administration republican like? balloning federal deficit, runaway spending, extreme government waste, increasing federal beuracracy and total defiance of the law?? are these repub values?? you might want to rethink your alligance to these facists before the repub way of thinking is totally whored away for money, power and greed, which are the values of this administration. |
The program in question does not concern the Iraq AUMF, but the 9/11 AUMF.
You are mixing politics with war. It's hard to get the proper perspective when doing that. The War Powers would be only for those wars where we like the President and trust him. That is not how the system works and when determining these things we must look at history and prior precedent. We also must look at the Supreme Court and how they perceive this war.
All the complaints you have, have nothing to do with the very narrow topic being discussed. Of course when you bring in all these other complaints it seems to make your point of view valid. It is not valid. Let us stick within the topic because only then can we determine reality. |
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| Ass Boil |
Quote: Originally posted by Stonewall
You have no proof that the TSP spied on millions of Americans. Everytime the NSA did this a record was made, and the decision made by a career NSA Agent. That is how it was described. That is how members of Congress describe it. In hearings you would think Sen. Feinstein would have brought this up, she did go to the NSA and view the instances where this program was used.
Daschle should run to the Supreme Court with his objections. They seem to have a different view of the powers of this President during this war. I'll repeat again, read the Hamdi decision. The Court describes how they view this AUMF created right after 9/11. That reality is what we have to deal with. Not Daschle's. |
Haha!
If Bush thought he had the authority to wiretap americans without warrants, WHY would he run to Congress at the last second and ask for the words "in the United States" to be added to the AUMF? And when Congress denied him that change, what do you think was the meaning of that refusal?
The non-partisan Congressional Research Service does not share your opinion on the legality of Bush's illegal spying:
Quote:
Report Rebuts Bush on Spying
Domestic Action's Legality Challenged
By Carol D. Leonnig
Washington Post Staff Writer
Saturday, January 7, 2006; A01
A report by Congress's research arm concluded yesterday that the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments.
The Congressional Research Service's report rebuts the central assertions made recently by Bush and Attorney General Alberto R. Gonzales about the president's authority to order secret intercepts of telephone and e-mail exchanges between people inside the United States and their contacts abroad.
The findings, the first nonpartisan assessment of the program's legality to date, prompted Democratic lawmakers and civil liberties advocates to repeat calls yesterday for Congress to conduct hearings on the monitoring program and attempt to halt it.
The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.
The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.
"It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here," the authors of the CRS report wrote. The administration's legal justification "does not seem to be . . . well-grounded," they said.
Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, has pledged to hold hearings on the program, which was first revealed in news accounts last month, and the judges of the FISA court have demanded a classified briefing about the program, which is scheduled for Monday.
"This report contradicts the president's claim that his spying on Americans was legal," said Sen. Frank Lautenberg (D-N.J.), one of the lawmakers who asked the CRS to research the issue. "It looks like the president's wiretapping was not only illegal, but also ensnared innocent Americans who did nothing more than place a phone call."
Justice Department spokesman Brian Roehrkasse said the president and the administration believe the program is on firm legal footing. "The national security activities described by the president were conducted in accord with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," he said. A spokesman for the National Security Agency was not available for a comment yesterday.
Other administration officials, who spoke on the condition of anonymity, said the CRS reached some erroneous legal conclusions, erring on the side of a narrow interpretation of what constitutes military force and when the president can exercise his war powers.
Bush has said that he has broad powers in times of war and must exercise them to target not only "enemies across the world" but also "terrorists here at home." The administration has argued, starting in 2002 briefs to the FISA court, that the "war on terror" is global and indefinite, effectively removing the limits of wartime authority -- traditionally the times and places of imminent or actual battle.
Some law professors have been skeptical of the president's assertions, and several said yesterday that the report's conclusions were expected. "Ultimately, the administration's position is not persuasive," said Carl W. Tobias, a University of Richmond law professor and an expert on constitutional law. "Congress has made it pretty clear it has legislated pretty comprehensively on this issue with FISA," he said, referring to the Foreign Intelligence Surveillance Act. "And there begins to be a pattern of unilateral executive decision making. Time and again, there's the executive acting alone without consulting the courts or Congress."
Marc Rotenberg, executive director of the Electronic Privacy Information Center, said the report makes it clear that Congress has exerted power over domestic surveillance. He urged Congress to address what he called the president's abuse of citizens' privacy rights and the larger issue of presidential power.
"These are absolutely central questions in American government: What exactly are the authorities vested in the president, and is he complying with the law?" Rotenberg said.
The report includes 1970s-era quotations from congressional committees that were then uncovering years of domestic spying abuses by J. Edgar Hoover's FBI against those suspected of communist sympathies, American Indians, Black Panthers and other activists. Lawmakers were very disturbed at how routinely FBI agents had listened in on U.S. citizens' phone calls without following any formal procedures. As they drafted FISA and created its court, the lawmakers warned then that only strong legislation, debated in public, could stop future administrations from eavesdropping.
"This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties," they wrote. The lawmakers noted that Congress's intelligence committees could provide some checks and balances to protect privacy rights but that their power was limited in the face of an administration arguing that intelligence decisions must remain top secret.
http://www.washingtonpost.com/wp-dy...0601772_pf.html |
And here is a letter to congress written by several Constitutional scholars with their opinions on Bush's illegal spying:
Quote:
Dear Members of Congress:
We are scholars of constitutional law and former government officials. We write in our
individual capacities as citizens concerned by the Bush Administration’s National Security
Agency domestic spying program, as reported in the New York Times, and in particular to
respond to the Justice Department’s December 22, 2005 letter to the majority and minority
leaders of the House and Senate Intelligence Committees setting forth the administration’s
defense of the program.
1 Although the program’s secrecy prevents us from being privy to all of
its details, the Justice Department’s defense of what it concedes was secret and warrantless
electronic surveillance of persons within the United States fails to identify any plausible legal
authority for such surveillance. Accordingly the program appears on its face to violate existing
law.
The basic legal question here is not new. In 1978, after an extensive investigation of the
privacy violations associated with foreign intelligence surveillance programs, Congress and the
President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat.
1783. FISA comprehensively regulates electronic surveillance within the United States, striking
a careful balance between protecting civil liberties and preserving the “vitally important
government purpose” of obtaining valuable intelligence in order to safeguard national security.
S. Rep. No. 95-604, pt. 1, at 9 (1977).
With minor exceptions, FISA authorizes electronic surveillance only upon certain
specified showings, and only if approved by a court. The statute specifically allows for
warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war.
50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. §
1809; and it expressly establishes FISA and specified provisions of the federal criminal code
(which govern wiretaps for criminal investigation) as the “exclusive means by which electronic
surveillance ... may be conducted,” 18 U.S.C. § 2511(2)(f) (emphasis added)
.2 The Department of Justice concedes that the NSA program was not authorized by any of
the above provisions. It maintains, however, that the program did not violate existing law
because Congress implicitly authorized the NSA program when it enacted the Authorization for
Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But
the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic
surveillance in the United States during wartime, where Congress has expressly and specifically
addressed that precise question in FISA and limited any such warrantless surveillance to the first
fifteen days of war.
The DOJ also invokes the President’s inherent constitutional authority as Commander in
Chief to collect “signals intelligence” targeted at the enemy, and maintains that construing FISA
to prohibit the President’s actions would raise constitutional questions. But even conceding that
the President in his role as Commander in Chief may generally collect signals intelligence on the
enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the
United States, as it has done in FISA. Where Congress has so regulated, the President can act in
contravention of statute only if his authority is exclusive, and not subject to the check of statutory
regulation. The DOJ letter pointedly does not make that extraordinary claim.
1
The Justice Department letter can be found at
www.nationalreview.com/pdf/12%2022%...A%20letter.pdf.
2
More detail about the operation of FISA can be found in Congressional Research Service, “Presidential Authority
to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information” (Jan. 5, 2006). This
letter was drafted prior to release of the CRS Report, which corroborates the conclusions drawn here.
3
Moreover, to construe the AUMF as the DOJ suggests would itself raise serious
constitutional questions under the Fourth Amendment. The Supreme Court has never upheld
warrantless wiretapping within the United States. Accordingly, the principle that statutes should
be construed to avoid serious constitutional questions provides an additional reason for
concluding that the AUMF does not authorize the President’s actions here.
I. CONGRESS DID NOT IMPLICITLY AUTHORIZE THE NSA DOMESTIC SPYING
PROGRAM IN THE AUMF, AND IN FACT EXPRESSLY PROHIBITED IT IN FISA
The DOJ concedes (Letter at 4) that the NSA program involves “electronic surveillance,”
which is defined in FISA to mean the interception of the contents of telephone, wire, or email
communications that occur, at least in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2),
1801(n). NSA engages in such surveillance without judicial approval, and apparently without
the substantive showings that FISA requires—e.g., that the subject is an “agent of a foreign
power.” Id. § 1805(a). The DOJ does not argue that FISA itself authorizes such electronic
surveillance; and, as the DOJ letter acknowledges, 18 U.S.C. § 1809 makes criminal any
electronic surveillance not authorized by statute.
The DOJ nevertheless contends that the surveillance is authorized by the AUMF, signed
on September 18, 2001, which empowers the President to use “all necessary and appropriate
force against” al Qaeda. According to the DOJ, collecting “signals intelligence” on the enemy,
even if it involves tapping U.S. phones without court approval or probable cause, is a
“fundamental incident of war” authorized by the AUMF. This argument fails for four reasons.
First, and most importantly, the DOJ’s argument rests on an unstated general
“implication” from the AUMF that directly contradicts express and specific language in FISA.
Specific and “carefully drawn” statutes prevail over general statutes where there is a conflict.
Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette,
479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the
question of domestic warrantless wiretapping, including during wartime, and it could not have
spoken more clearly.
As noted above, Congress has comprehensively regulated all electronic surveillance in
the United States, and authorizes such surveillance only pursuant to specific statutes designated
as the “exclusive means by which electronic surveillance . . . and the interception of domestic
wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis
added). Moreover, FISA specifically addresses the question of domestic wiretapping during
wartime. In a provision entitled “Authorization during time of war,” FISA dictates that
“[n]otwithstanding 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 a period not to exceed fifteen calendar days following a declaration of war by
the Congress.” 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared
war—a more formal step than an authorization such as the AUMF—the law limits warrantless
wiretapping to the first fifteen days of the conflict. Congress explained that if the President
needed further warrantless surveillance during wartime, the fifteen days would be sufficient for
Congress to consider and enact further authorization.3 Rather than follow this course, the
President acted unilaterally and secretly in contravention of FISA’s terms. The DOJ letter
remarkably does not even mention FISA’s fifteen-day war provision, which directly refutes the
President’s asserted “implied” authority.
In light of the specific and comprehensive regulation of FISA, especially the fifteen-day
war provision, there is no basis for finding in the AUMF’s general language implicit authority
for unchecked warrantless domestic wiretapping. As Justice Frankfurter stated in rejecting a
similar argument by President Truman when he sought to defend the seizure of the steel mills
during the Korean War on the basis of implied congressional authorization:
It is one thing to draw an intention of Congress from general language and to say
that Congress would have explicitly written what is inferred, where Congress has
not addressed itself to a specific situation. It is quite impossible, however, when
Congress did specifically address itself to a problem, as Congress did to that of
seizure, to find secreted in the interstices of legislation the very grant of power
which Congress consciously withheld. To find authority so explicitly withheld is
... to disrespect the whole legislative process and the constitutional division of
authority between President and Congress.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
Second, the DOJ’s argument would require the conclusion that Congress implicitly and
sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific
criminal code provisions as “the exclusive means by which electronic surveillance . . . may be
conducted.” Repeals by implication are strongly disfavored; they can be established only by
“overwhelming evidence,” J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124,
137 (2001), and “‘the only permissible justification for a repeal by implication is when the earlier
and later statutes are irreconcilable,’” id. at 141-142 (quoting Morton v. Mancari, 417 U.S. 535,
550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let
alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).
Third, Attorney General Alberto Gonzales has admitted that the administration did not
seek to amend FISA to authorize the NSA spying program because it was advised that Congress
would reject such an amendment.4 The administration cannot argue on the one hand that
“The Conferees intend that this [15-day] period will allow time for consideration of any amendment to this act that
may be appropriate during a wartime emergency. . . . The conferees expect that such amendment would be reported
with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.”
H.R. Conf. Rep. No. 95-1720, at 34 (1978).
Attorney General Gonzales stated, “We have had discussions with Congress in the past—certain members of
Congress—as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and
we were advised that that would be difficult, if not impossible.” Press Briefing by Attorney General Alberto
Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005),
available at http://www.whitehouse.gov/news/rele...0051219-1.html.
Congress authorized the NSA program in the AUMF, and at the same time that it did not ask
Congress for such authorization because it feared Congress would say no.5
Finally, the DOJ’s reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its
reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held
that the AUMF authorized military detention of enemy combatants captured on the battlefield
abroad as a “fundamental incident of waging war.” Id. at 519. The plurality expressly limited
this holding to individuals who were “part of or supporting forces hostile to the United States or
coalition partners in Afghanistan and who engaged in an armed conflict against the United States
there.” Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield
capture of enemy combatants is an incident of waging war that Congress intended to authorize.
It is another matter entirely to treat unchecked warrantless domestic spying as included in that
authorization, especially where an existing statute specifies that other laws are the “exclusive
means” by which electronic surveillance may be conducted and provides that even a declaration
of war authorizes such spying only for a fifteen-day emergency period.6
II. CONSTRUING FISA TO PROHIBIT WARRANTLESS DOMESTIC WIRETAPPING
DOES NOT RAISE ANY SERIOUS CONSTITUTIONAL QUESTION, WHEREAS
CONSTRUING THE AUMF TO AUTHORIZE SUCH WIRETAPPING WOULD RAISE
SERIOUS QUESTIONS UNDER THE FOURTH AMENDMENT
The DOJ argues that FISA and the AUMF should be construed to permit the NSA
program’s domestic surveillance because otherwise there might be a “conflict between FISA and
the President’s Article II authority as Commander-in-Chief.” DOJ Letter at 4. The statutory
scheme described above is not ambiguous, and therefore the constitutional avoidance doctrine is
not even implicated. See United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494
(2001) (the “canon of constitutional avoidance has no application in the absence of statutory
ambiguity”). But were it implicated, it would work against the President, not in his favor.
The administration had a convenient vehicle for seeking any such amendment in the USA PATRIOT Act of 2001,
Pub. L. No. 107-56, 115 Stat. 272, enacted in October 2001. The Patriot Act amended FISA in several respects,
including in sections 218 (allowing FISA wiretaps in criminal investigations) and 215 (popularly known as the
“libraries provision”). Yet the administration did not ask Congress to amend FISA to authorize the warrantless
electronic surveillance at issue here.
The DOJ attempts to draw an analogy between FISA and 18 U.S.C. § 4001(a), which provides that the United
States may not detain a U.S. citizen “except pursuant to an act of Congress.” The DOJ argues that just as the AUMF
was deemed to authorize the detention of Hamdi, 542 U.S. at 519, so the AUMF satisfies FISA’s requirement that
electronic surveillance be “authorized by statute.” DOJ Letter at 3-4. The analogy is inapt. As noted above, FISA
specifically limits warrantless domestic wartime surveillance to the first fifteen days of the conflict, and 18 U.S.C. §
2511(2)(f) specifies that existing law is the “exclusive means” for domestic wiretapping. Section 4001(a), by
contrast, neither expressly addresses detention of the enemy during wartime nor attempts to create an exclusive
mechanism for detention. Moreover, the analogy overlooks the carefully limited holding and rationale of the Hamdi
plurality, which found the AUMF to be an "explicit congressional authorization for the detention of individuals in
the narrow category we describe . . . . who fought against the United States in Afghanistan as part of the Taliban, an
organization known to have supported the al Qaeda terrorist network," and whom "Congress sought to target in
passing the AUMF” 542 U.S. at 518. By the government’s own admission, the NSA program is by no means so
limited. See Gonzales/Hayden Press Briefing, supra note 4.
Construing FISA and the AUMF according to their plain meanings raises no serious
constitutional questions regarding the President’s duties under Article II. Construing the AUMF
to permit unchecked warrantless wiretapping without probable cause, however, would raise
serious questions under the Fourth Amendment.
A. FISA’s Limitations Are Consistent with the President’s Article II Role
We do not dispute that, absent congressional action, the President might have inherent
constitutional authority to collect “signals intelligence” about the enemy abroad. Nor do we
dispute that, had Congress taken no action in this area, the President might well be
constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined
to that goal—subject, of course, to Fourth Amendment limits. Indeed, in the years before FISA
was enacted, the federal law involving wiretapping specifically provided that “[n]othing
contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the
constitutional power of the President . . . to obtain foreign intelligence information deemed
essential to the security of the United States.” 18 U.S.C. § 2511(3) (1976).
But FISA specifically repealed that provision. FISA § 201(c), 92 Stat. 1797, and
replaced it with language dictating that FISA and the criminal code are the “exclusive means” of
conducting electronic surveillance. In doing so, Congress did not deny that the President has
constitutional power to conduct electronic surveillance for national security purposes; rather,
Congress properly concluded that “even if the President has the inherent authority in the absence
of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes,
Congress has the power to regulate the conduct of such surveillance by legislating a reasonable
procedure, which then becomes the exclusive means by which such surveillance may be
conducted.” H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis,
Congress noted, was “supported by two successive Attorneys General.” Id.
To say that the President has inherent authority does not mean that his authority is
exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was)
pursuant to Congress’s Article I powers. As Justice Jackson famously explained in his
influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J.,
concurring), the Constitution “enjoins upon its branches separateness but interdependence,
autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their
disjunction or conjunction with those of Congress.” For example, the President in his role as
Commander in Chief directs military operations. But the Framers gave Congress the power to
prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly
enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading
treatment, the President must follow that dictate. As Justice Jackson wrote, when the President
acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb."
343 U.S. at 637. In this setting, Jackson wrote, “Presidential power [is] most vulnerable to attack
and in the least favorable of possible constitutional postures.” Id. at 640.
Congress plainly has authority to regulate domestic wiretapping by federal agencies
under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was
enacted, the Justice Department agreed that Congress had power to regulate such conduct, and
could require judicial approval of foreign intelligence surveillance.7 FISA does not prohibit
foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate
privacy rights. (For example, although FISA generally requires judicial approval for electronic
surveillance of persons within the United States, it permits the executive branch to install a
wiretap immediately so long as it obtains judicial approval within 72 hours. 50 U.S.C. §
1805(f).)
Just as the President is bound by the statutory prohibition on torture, he is bound by the
statutory dictates of FISA.8 The DOJ once infamously argued that the President as Commander
in Chief could ignore even the criminal prohibition on torture,9 and, more broadly still, that
statutes may not “place any limits on the President's determinations as to any terrorist threat, the
amount of military force to be used in response, or the method, timing, and nature of the
response.”10 But the administration withdrew the August 2002 torture memo after it was
disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent
a serious question about FISA’s constitutionality, there is no reason even to consider construing
the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA
establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance
canon applicable only if the constitutional question to be avoided is a serious one, “not to
eliminate all possible contentions that the statute might be unconstitutional”) (emphasis in
original; citation omitted).11
7
See, e.g., S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress’s assertion of power to regulate the President’s
authorization of electronic surveillance for foreign intelligence purposes was “concurred in by the Attorney
General”); Foreign Intelligence Electronic Surveillance: Hearings Before the Subcomm. on Legislation of the
House Permanent Select Comm. on Intelligence, 95th Cong., 2d Sess., at 31 (1978) (Letter from John M. Harmon,
Assistant Attorney General, Office of Legal Counsel, to Edward P. Boland, Chairman, House Permanent Select
Comm. on Intelligence (Apr. 18, 1978)) (“it seems unreasonable to conclude that Congress, in the exercise of its
powers in this area, may not vest in the courts the authority to approve intelligence surveillance”).
8
Indeed, Article II imposes on the President the general obligation to enforce laws that Congress has validly
enacted, including FISA: “he shall take Care that the Laws be faithfully executed.” (emphasis added). The use of
the mandatory “shall” indicates that under our system of separated powers, he is duty-bound to execute the
provisions of FISA, not defy them.
9
See Memorandum from Jay S. Bybee, Assistant Attorney General, Department of Justice Office of Legal
Counsel, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18
U.S.C. §§ 2340-2340A (Aug. 1, 2002), at 31.
10
Memorandum from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, to the Deputy
Counsel to the President, Re: The President’s Constitutional Authority To Conduct Military Operations Against
Terrorists And Nations Supporting Them (Sept. 25, 2001), available at www.usdoj.gov/olc/warpowers925.htm
(emphasis added).
11
Three years ago, the FISA Court of Review suggested in dictum that Congress cannot “encroach on the
President’s constitutional power” to conduct foreign intelligence surveillance. In re Sealed Case No. 02-001, 310
F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review, however, did not hold that FISA was
unconstitutional, nor has any other court suggested that FISA’s modest regulations constitute an impermissible
encroachment on presidential authority. The FISA Court of Review relied upon United States v. Truong Dihn Hung,
629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the President’s powers were beyond congressional
control. To the contrary, the Truong court indicated that FISA’s restrictions were constitutional. See 629 F.2d at
915 n.4 (noting that “the imposition of a warrant requirement, beyond the constitutional minimum described in this
8
B. Construing the AUMF to Authorize Warrantless Domestic Wiretapping Would Raise
Serious Constitutional Questions
The principle that ambiguous statutes should be construed to avoid serious constitutional
questions works against the administration, not in its favor. Interpreting the AUMF and FISA to
permit unchecked domestic wiretapping for the duration of the conflict with al Qaeda would
certainly raise serious constitutional questions. The Supreme Court has never upheld such a
sweeping power to invade the privacy of Americans at home without individualized suspicion or
judicial oversight.
The NSA surveillance program permits wiretapping within the United States without
either of the safeguards presumptively required by the Fourth Amendment for electronic
surveillance—individualized probable cause and a warrant or other order issued by a judge or
magistrate. The Court has long held that wiretaps generally require a warrant and probable
cause. Katz v. United States, 389 U.S. 347 (1967). And the only time the Court considered the
question of national security wiretaps, it held that the Fourth Amendment prohibits domestic
security wiretaps without those safeguards. United States v. United States Dist. Court, 407 U.S.
297 (1972). Although the Court in that case left open the question of the Fourth Amendment
validity of warrantless wiretaps for foreign intelligence purposes, its precedents raise serious
constitutional questions about the kind of open-ended authority the President has asserted with
respect to the NSA program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth
Amendment freedoms if domestic surveillance can be conducted solely in the discretion of the
executive branch).
Indeed, serious Fourth Amendment questions about the validity of warrantless
wiretapping led Congress to enact FISA, in order to “provide the secure framework by which the
executive branch may conduct legitimate electronic surveillance for foreign intelligence purposes
within the context of this nation’s commitment to privacy and individual rights.” S. Rep. No. 95-
604, pt. 1, at 15 (1977) (citing, inter alia, Zweibon v, Mitchell, 516 F.2d 594 (D.C. Cir. 1975), in
which “the court of appeals held that a warrant must be obtained before a wiretap is installed on
a domestic organization that is neither the agent of, nor acting in collaboration with, a foreign
power”).
Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program falls
within an exception to the warrant and probable cause requirement for reasonable searches that
serve “special needs” above and beyond ordinary law enforcement. But the existence of “special
needs” has never been found to permit warrantless wiretapping. “Special needs” generally
excuse the warrant and individualized suspicion requirements only where those requirements are
impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin, 483 U.S.
868, 873 (1987). Wiretapping is not a minimal intrusion on privacy, and the experience of FISA
shows that foreign intelligence surveillance can be carried out through warrants based on
individualized suspicion..
opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and
the President”) (emphasis added).
9
The court in Sealed Case upheld FISA itself, which requires warrants issued by Article
III federal judges upon an individualized showing of probable cause that the subject is an “agent
of a foreign power.” The NSA domestic spying program, by contrast, includes none of these
safeguards. It does not require individualized judicial approval, and it does not require a
showing that the target is an “agent of a foreign power.” According to Attorney General
Gonzales, the NSA may wiretap any person in the United States who so much as receives a
communication from anyone abroad, if the administration deems either of the parties to be
affiliated with al Qaeda, a member of an organization affiliated with al Qaeda, “working in
support of al Qaeda,” or “part of” an organization or group “that is supportive of al Qaeda.”12
Under this reasoning, a U.S. citizen living here who received a phone call from another U.S.
citizen who attends a mosque that the administration believes is “supportive” of al Qaeda could
be wiretapped without a warrant. The absence of meaningful safeguards on the NSA program at
a minimum raises serious questions about the validity of the program under the Fourth
Amendment, and therefore supports an interpretation of the AUMF that does not undercut
FISA’s regulation of such conduct.
* * *
In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic
spying program. If the Administration felt that FISA was insufficient, the proper course was to
seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as
Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One
of the crucial features of a constitutional democracy is that it is always open to the President—or
anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy,
the President cannot simply violate criminal laws behind closed doors because he deems them
obsolete or impracticable.13
We hope you find these views helpful to your consideration of the legality of the NSA
domestic spying program.
12
See Gonzales/Hayden Press Briefing, supra note 4.
13
During consideration of FISA, the House of Representatives noted that “the decision as to the standards
governing when and how foreign intelligence electronic surveillance should be conducted is and should be a
political decision, in the best sense of the term, because it involves the weighing of important public policy
concerns–civil liberties and national security. Such a political decision is one properly made by the political
branches of Government together, not adopted by one branch on its own and with no regard for the other. Under our
Constitution legislation is the embodiment of just such political decisions.” H. Rep. 95-1283, pt. I, at 21-22.
Attorney General Griffin Bell supported FISA in part because “no matter how well intentioned or ingenious the
persons in the Executive branch who formulate these measures, the crucible of the legislative process will ensure
that the procedures will be affirmed by that branch of government which is more directly responsible to the
electorate.” Foreign Intelligence Surveillance Act of 1978: Hearings Before the Subcomm. on Intelligence and the
Rights of Americans of the Senate Select Comm. On Intelligence, 95th Cong., 2d Sess. 12 (1977).
10
Sincerely,
Curtis A. Bradley
Richard and Marcy Horvitz Professor of Law, Duke University*
Former Counselor on International Law in the State Department Legal Adviser's Office, 2004
David Cole
Professor of Law, Georgetown University Law Center
Walter Dellinger
Douglas Blount Maggs Professor of Law, Duke University
Former Assistant Attorney General, Office of Legal Counsel,1993-1996
Former Acting Solicitor General of the United States, 1996-97
Ronald Dworkin
Frank Henry Sommer Professor, New York University Law School
Richard Epstein
James Parker Hall Distinguished Service Professor, University of Chicago Law School
Peter and Kirsten Bedford Senior Fellow, Hoover Institution
Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School
Former Assistant Secretary of State for Democracy, Human Rights and Labor 1998-2001
Former Attorney-Adviser, Office of Legal Counsel, DOJ, 1983-85
Philip B. Heymann
James Barr Ames Professor, Harvard Law School
Former Deputy Attorney General, 1993-94
Martin S. Lederman
Visiting Professor, Georgetown University Law Center
Former Attorney Advisor, Department of Justice Office of Legal Counsel, 1994-2002
Beth Nolan
Former Counsel to the President, 1999-2001; Deputy Assistant Attorney General, Office of
Legal Counsel, 1996-1999; Associate Counsel to the President, 1993-1995; Attorney Advisor,
Office of Legal Counsel, 1981-1985
William S. Sessions
Former Director, FBI
Former Chief United States District Judge, Western District of Texas
Geoffrey R. Stone
Harry Kalven, Jr. Distinguished Service Professor of Law, University of Chicago
Former Dean of the University of Chicago Law School and Provost of the University of Chicago
Kathleen M. Sullivan
Stanley Morrison Professor, Stanford Law School
Former Dean, Stanford Law School
Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law
Harvard Law School
William W. Van Alstyne
Lee Professor, William and Mary Law School
Former Attorney, Department of Justice, 1958
* Affiliations are noted for identification purposes only.
Cc: Judge Colleen Kollar-Kotelly
Chief Judge, Foreign Intelligence Surveillance Court
U.S. Courthouse
333 Constitution Ave., NW
Washington, DC 20001
http://www.eff.org/Privacy/Surveill...of_response.pdf |
And YES, the wiretapping monitored hundreds of millions of Americans calls without warrants. But since this information was not provided to you in the format of a "hearing", I'm sure it will not be accepted by you....
Quote:
Government Monitoring About 200 Million Americans' Calls
USA Today Reports That NSA Wiretapping Is More Far-Reaching Than Thought
May 11, 2006 —
As controversy continues to swirl around the National Security Agency program that taps the phones of suspected terrorists within the United States, a USA Today story reveals another piece of the president's NSA spying program.
Addressing the issue this afternoon, President Bush did not confirm or deny the report and said the intelligence operations he's authorized are "lawful" and "appropriate."
The newspaper says that the spy agency has been collecting information on every phone call made in this country.
"Chances are that your cell phone calls, as well as your home phone calls, have been tracked," said Leslie Cauley, the reporter who broke the story. She said there was a "high likelihood" that this information was being passed on to the FBI and CIA.
Bush said any intelligence activities specifically target terrorists. "Our intelligence activities strictly target al Qaeda and their known affiliates," Bush said. "We are not mining or trolling through the personal lives of innocent Americans."
The paper reports that three of the nation's largest phone companies -- AT&T, Verizon and BellSouth -- have been turning over detailed call histories of all their customers since Sept. 11, 2001, to help the NSA compile what it hopes will be "the largest database ever assembled in the world."
About 200 million people have had their call records monitored, Cauley said. This means the NSA keeps track of the outgoing and incoming calls, but not the callers' Social Security numbers or addresses.
"This is referred to as data mining. They slice and dice these numbers a thousand different ways," Cauley said. "They analyze patterns. If you're NSA, you look for suspicious patterns."
In all their comments about the eavesdropping program, U.S. officials never revealed that they were involved in this massive collection of telephone data. Instead the president has described the NSA surveillance program this way: "The program applies only to international communications. In other words, one end of the communication must be outside the United States."
The NSA responded to the report with a statement.
"Given the nature of the work we do, it would be irresponsible to comment. Therefore, we have no information to provide," the statement read. "However, it is important to note that the NSA takes its legal responsibility seriously and operates within the law."
Gen. Michael Hayden, the president's pick for the next CIA director, has defended the eavesdropping program, saying it goes after al Qaeda operatives.
"This is targeted and focused," Hayden said. "This is not about intercepting conversations between people in the United States."
Hayden is likely to be grilled on the NSA surveillance programs during his confirmation hearings next week.
According to USA Today, this massive NSA data collection program is used to analyze calling patterns that may be helpful in tracking down terrorists. This part of the spy program does not include listening to or recording Americans' conversations. The data NSA gathers are so private that phone companies would normally face steep fines for divulging the information.
According to USA Today, one phone company, Qwest, has refused to turn over its records, citing legal concerns. So far, the White House has not responded to this report.
In the past, it has told ABC News that the NSA's terrorist surveillance program is within the law, and is essential to keeping Americans safe.
"Qwest had concerns about the legality about handing over customer information without having court warrants," Cauley said. "It wasn't that they wanted to participate."
This story was originally reported by ABC News' Jessica Yellin
http://www.abcnews.go.com/GMA/print?id=1948927
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| dj applebag |
so what stonewall is basically saying is that when a repub runs a war with war powers he should be able to run a war without any oversight and no congressional input, the same way repubs allowed clinton to run the bosnia war, oh wait, these same repubs were screaming about oversight and timetables and ensuring no fraud was going on!! i know for a fact that if clinton started spying in americans without warrents the repubs would be all for it since they voted to give him authorization for taking militay action in bosnia!!! repubs wouldn't supeona everything but the white house mailing list for socks the cat to get answers right? no, these repubs would allow the pres to run the war how he saw fit and would chastise people who dared try to hold him accountable. there are also reports out that say that bush was wiretapping prior to 9-11, prior than than the aumf for AFGAHNISTAN!!!!! what will it take for you to see that these repubs are trying to install a dictatorship in this country? maybe this would help
from firedoglake
Many of these statements are highly misleading, as they strongly imply that FISA has not been amended since it was first enacted 30 years ago. But several of the statements — such as: "the law has not been changed to reflect technological advancements" — are just flat-out lies.
In the wake of the 9/11 attacks, the Bush administration demanded a whole slew of changes to FISA which expanded the President's eavesdropping powers and which the administration claimed were necessary in order to bring FISA into the 21st Century by allowing surveillance of modern communication methods. Congress, needless to say, complied in full, and in October of 2001 — contrary to McConnell's misleading Op-Ed — it enacted, and the President signed, sweeping "modernizing" changes to FISA….
That FISA was substantially expanded in October of 2001 — at the administration's request — is one of the central (and often overlooked) facts illustrating how severe is the corruption and dishonesty which lies (still) at the heart of the NSA lawbreaking scandal.
The same President who demanded changes to FISA in light of the terrorist threat, who received all the changes he demanded, and who then assured the nation he had all the surveillance tools he needed under the law, then proceeded — the very same month — to eavesdrop on Americans in violation of that law. Then, once caught, he sought to excuse his lawbreaking by claiming that the law (which his own administration re-wrote and heralded as sufficient) was somehow inadequate.
In light of McConnell's Op-Ed today, it is also critical to recall that the administration had multiple opportunities since those post-9/11 changes to expand the scope of FISA, and it was the administration which refused those changes on the ground that they were unnecessary. In 2002, multiple Senators sought to make it easier to obtain FISA warrants, and the Bush administration opposed those changes, insisting that it already had sufficient eavesdropping powers. And all throughout last year, Senators such as Diane Feinstein and Arlen Specter proposed endless FISA amendments to expand the scope of government eavesdropping (in response to claims that FISA was too narrow), and the Bush administration was completely uninterested in all of them.
The administration is not, and never has been, interested in expanding the scope of FISA in order to enable them to obtain warrants more easily or accommodate "new technology." Their overriding goal has been, and plainly continues to be, the total elimination of meaningful oversight with regard to how the government eavesdrops on Americans. That goal of theirs was accomplished for many years by simply breaking the law which requires oversight, and now — having been caught — they seek to accomplish the same goal under the guise of wanting "updates" to the "rotary phone era" law. |
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| otherone4life |
| R's have twisted themselves into pretzels to justify clearly illegal activity, but then again, the admin. was borne out of 5 right wing jurists twisting the 14th amendment to justify selecting W so I guess we get what we deserve ... |
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| Ass Boil |
Quote: Originally posted by otherone4life
R's have twisted themselves into pretzels to justify clearly illegal activity, but then again, the admin. was borne out of 5 right wing jurists twisting the 14th amendment to justify selecting W so I guess we get what we deserve ... |
Good point. Dumbya would not be our leader without the activist judges the R's claim to hate so much. |
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| Stonewall |
Ass Boil,
The CRS Report that your Washington Post Article describes does not come down on either side of the issue. Regardless of what your article tries to say.
Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information
The NSA TSP does not monitor every call as your USA Today article tries to have us believe. I'm not saying that is not happening but it is not the TSP. Democrats have gone to the NSA and viewed this program and have no issues with it's description. I don't know what to tell you.
These are very specific calls for very specific reasons.
That's not to say another program does not exist doing all that listening. |
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| Stonewall |
Quote: Originally posted by dj applebag
so what stonewall is basically saying is that when a repub runs a war with war powers he should be able to run a war without any oversight and no congressional input, the same way repubs allowed clinton to run the bosnia war, oh wait, these same repubs were screaming about oversight and timetables and ensuring no fraud was going on!! |
That is wonderful. Take what I actually say and then post that I said the opposite.
Under your new posting mentality I guess I should now Thank You for agreeing with everything I said and I just wish you weren't such a Bush Lover and Republican. Oh well, good luck with that.
Is that about right? Have I posted correctly the opposite of what you said and meant?
:) |
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