Tuesday, December 20, 2005
The Unpalatable Truth
Previously, the Agency had shown itself to be scrupulous about avoiding this sort of activity. But according to numerous un-named sources, the retarded monkey boy signed a secret order authorising him to intercept phone calls and e-mails from US persons in communication with persons outside the US, and all without the slightest bit of judicial oversight.
Ah yes... there was no eavesdropping prior to 9/11. From a 60 Minutes documentary about Clinton-era use of the NSA's Echelon program:
KROFT: (Voiceover) Mike Frost spent 20 years as a spy for the CSE, the Canadian equivalent of the National Security Agency, and he is the only high-ranking former intelligence agent to speak publicly about the Echelon program. Frost even showed us one of the installations where he says operators can listen in to just about anything.
Mr. FROST: Everything from--from data transfers to cell phones to portable phones to baby monitors to ATMs...
KROFT: Baby monitors?
Mr. FROST: Oh, yeah. Baby monitors give you a lot of intelligence.
House.Gov 8/16/99 "…U.S. Representative Bob Barr (GA-7) announced today Dan Burton (R-IN) has agreed to hold hearings this fall on government surveillance programs, such as the National Security Agency's reported "Project Echelon." On several occasions, Barr has expressed concerns that both foreign and domestic surveillance operations may be violating the privacy rights of American citizens. Earlier this year, Barr successfully amended the FY 2000 Foreign Intelligence Authorization Act to require the Department of Justice, the National Security Agency, and the Central Intelligence Agency to submit to Congress a report detailing the legal standards the agencies use when they eavesdrop on American citizens. A similar amendment has also been passed by the United States Senate. Barr's concerns were prompted by news reports indicating a system known as Project Echelon is conducting massive interception of the private phone calls, e-mails, faxes and data transmissions of American citizens.
I vividly remember the courage of the NY Times reporter who broke this story. And wasn't it just too inspiring the way both sides of Congress put aside their differences and rose in righteous outrage to demand the impeachment of Bill Clinton for violating our civil rights? It was so comforting to know that even in wartime, some things were still sacred...
Oh wait. We weren't at war. And that didn't happen, did it?
Which rather puts today's manufactured outrage into perspective. By all means, question away. But do so honestly, sans hyperbole. And try tossing a few facts in there for good measure: it keeps the conversation from drifting into the realm of the absurd. Let's not pretend George W. Bush has brought our national age of innocence to a tragic and premature end. My 'favorite' conservative pundit, King George, is in rare form today. When in doubt, quote the Founding Fathers:
Because of what Alexander Hamilton praised as ``energy in the executive,'' which often drives the growth of government, for years many conservatives were advocates of congressional supremacy. There were, they said, reasons why the Founders, having waged a revolutionary war against overbearing executive power, gave the legislative branch pride of place in Article I of the Constitution.
One reason was that Congress' cumbersomeness, which is a function of its fractiousness, is a virtue because it makes the government slow and difficult to move. But conservatives' wholesome wariness of presidential power has been a casualty of conservative presidents winning seven of the last 10 elections.
On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.
"Without conferring any benefit on the nation's enemies...". Who, in their right mind, would apply that phrase to the words or actions of Congress over the past three years? This is that same Congress which voted overwhelmingly for the Patriot Act and the very next day began vilifying the law they had created.
This is that same Congress which, back in 1998, passed the Iraq Liberation Act (nota bene, not the WMD Act) urgently calling for the overthrow of Saddam Hussein because he represented a danger to the world community. That same Congress which voted to authorize the use of force after 9/11, meticulously citing Saddam's 12-year history of violating UN resolutions and using WMDs... then immediately began to weep, wail, and gnash their teeth about how they had been misled into war solely on the basis of WMDs (which, if one bothers to read their rather ironically-named "resolution", is clearly untrue.) Question for the ages: isn't "Congressional resolution" an oxymoron?
Overbearing is right. Herr Will, eloquent though he may be, gets carried away by his own rhetoric. Mr. Will wonders "Why didn't Bush go to Congress?"
"It's been briefed to the Congress over a dozen times, and, in fact, it is a program that is, by every effort we've been able to make, consistent with the statutes and with the law," Vice President Cheney said yesterday in an interview with ABC News "Nightline" to be broadcast tonight. "It's the kind of capability if we'd had before 9/11 might have led us to be able to prevent 9/11."
Bush and other administration officials have said congressional leaders have been briefed regularly on the program. Sen. John McCain (R-Ariz.) said there were no objections raised by lawmakers told about it.
Indeed. According to the NY Times, the program has already had some chilling side effects:
Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.
Shocking, really. Hardly seems worth the trouble to listen in on people who consort with terrorists if all we're going to do is prevent a few terrorist attacks, does it? I thought the point was to round up scores of innocent Americans and ship them off to Gitmo so we could flush their Korans down the toilet? At any rate, lest we miss the key point here, the Times is quick to point out that anyone who complained about the President's little eavesdropping programs was quickly fed into the administration's ever-ready plastic shredders:
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.
For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.
A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.
One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment.
Undoubtedly we shall find that poor woman in one of those mass graves beneath the Rose Garden when Al Gore's dreams come true and we finally see regime change in Washington.
All snarkasm aside, as TigerHawk observed, a lot of people are asking why the President did not go, hat in hand, to Congress in search of legal clarification. It's a good question. In answer, I take you on a stroll through history:
In 1997, Albert Gore had an idea. He wanted to increase security measures at airports by using profiling data. We were not at war then. The ACLU was up in arms:
"The government has no business forcing airlines to track a passenger's travel and other personal information to fit someone's notion of what a terrorist looks like," Nojeim said, "let alone asking them to incorporate incomplete and often inaccurate criminal data supplied by law enforcement agencies."
In February of 1997, the White House Commission on Aviation Safety and Security (otherwise known as the Gore Commission) released its report. The commission had been asked to study airport security after the crash of TWA Flight 800. Gore wanted computerized passenger profiling that would flag passengers buying one-way tickets with cash. Before the final report could even be released, the ACLU and Muslim activists were up in arms, accusing the Gore Commission of violating the civil liberties of Arab-Americans. The administration dropped the commission's recommendations.
After September 11, it was discovered that several of the terrorists had bought one-way tickets with cash. But out of a desire not to "profile" anyone, no personal searches or questioning were performed.
Almost three thousand people died as a result of that decision.
Yes, our civil rights are important. Extremely important. But we live in a world of competing rights, like the right to be alive, and the right to be secure in our homes, our offices, and on our city streets. I strongly suspect the theoretical right to conduct a telephone conversation in privacy would mean little to most Americans if, at the same moment across town, one's entire family were being blown to bits in a terrorist attack. It is easy to call this is a ridiculous exaggeration, but it does not seem so to me.
My husband was inside the Pentagon on 9/11, very near the point where that plane impacted. I spoke with him just moments before it happened, and then watched from the 9th floor window of my office building as the smoke slowly rose into the air, miles away. Today, it seems unbelievable. Insubstantial and impermanent as a column of smoke rising into the air, and as ephemeral, apparently, as our collective memories of that awful day. Perhaps I only dreamed it. But in my basement there is a picture of the Pentagon with a big gaping hole and a flag that reminds me, every now and then, of how very lucky I am to still have the man I have loved for over a quarter of a century beside me. I need to find that picture and hang it up, because the unpalatable truth is that our freedom, like our security, is all too fragile.
And it isn't free. We've seen how quickly national security measures become politicized in Congress. How quickly the truth is overwritten by the politics of convenience. How soon we forget our dead.
We've seen that political leaders on both sides of the aisle are not above hijacking this nation's best interests for partisan political advantage.
We've seen that the ACLU is all too quick to throw the race card when law enforcement tries to use the same provisions we've used against organized crime for years against terrorists.
I submit that there is an unpalatable truth here that Cardinalpark touched on earlier, and that is that we don't really want to countenance the measures that would truly keep us safe. Personally I'm all right with that. I can live with uncertainty, if the people who shriek "who's to blame?" and "why didn't you keep me safe?" every time there's an attack would just shut the hell up. But they never do, do they? They want to have it both ways.
And that's what really bothers me, because I'm married to a career Marine and my son is a police officer in Arlington, VA, and those are the kind of people who are on the front lines: who are trying to keep us safe. America wants security, but we don't want our guardians to actually kill anyone or chase car thieves (but they want their cars back within 24 hours) or listen in on any phone calls (but they don't want to be attacked) or to inconvenience us at airports because it's all just far too icky to contemplate.
And oh, by the way, keep those Silver Star awards off my front page. Because we all know that's just government propaganda.
Citation:
For heroic achievement in connection with combat operations against the enemy as Commanding Officer, Golf Company, 2d Battalion, 4th Marines, 1st Marine Division, I Marine Expeditionary Force, U.S. Marine Corps Forces, Central from 6 to 7 April 2004 in support of OPERATION IRAQI FREEDOM II. During heavy fighting in southern Ar Ramadi, Iraq, Captain Bronzi repeatedly exposed himself to intense small arms and rocket-propelled grenade fire while personally destroying several enemy fighting positions. His heroic actions led to the elimination of 250 insurgents during the two-day period. His selflessness and bravery inspired his Marines to engage and destroy an enemy focused on the destruction of coalition forces in the capital city of the Al Anbar province. During a period of extremely heavy fighting on 6 April, Captain Bronzi led a fire team of Marines into the middle of a fire swept street in order to recover the body of a fallen comrade. On 7 April, Captain Bronzi and 3d squad, 4th platoon were surrounded and forced to take cover in a nearby building. Isolated and outnumbered, Captain Bronzi moved to the roof in order to best position himself to command and control the Marines of Golf Company, and while under heavy enemy fire coordinated a link-up of his 2d and 4th Platoons. He then led the embattled squad to the designated rendezvous point and eventually to the safety of the company fire base, eradicating the enemy in the process. By his zealous initiative, courageous actions, and exceptional dedication to duty, Captain Bronzi reflected great credit upon himself and upheld the highest traditions of the Marine Corps and the United States Naval Service.
The Combat Distinguishing Device is authorized.
Citation:
For conspicuous gallantry and intrepidity in action against the enemy while serving as Commanding Officer, Weapons Company, 2d Battalion, 4th Marines, 5th Marine Regiment, 1st Marine Division, I Marine Expeditionary Force, U.S. Marine Corps Forces, Central Command from 6 to 10 April 2004 in support of Operation IRAQI FREEDOM II. On 6 April, Captain Weiler led elements of Weapons Company against an enemy force that was attempting to isolate and destroy a squad-sized element of Echo Company. As the column moved east along Route Nova, they were ambushed by enemy forces. Despite the barrage of intense enemy fire, Captain Weiler calmly directed the tactical employment of the unit, leading to relief of the embattled squad and the destruction of the besieging enemy. On 7 April, he led the company on a mission to reinforce a unit in contact. As they moved northeast along Route Apple, the column encountered heavy rocket-propelled grenade and automatic weapons fire. During the ensuing three-hour firefight, he repeatedly exposed himself to enemy fire to direct the unit's counterattack, personally leading squads as they assaulted enemy firing positions. His courage and leadership were further displayed during Operation BUG HUNT. Heavily engaged by enemy forces over a four-hour period, Captain Weiler was wounded by enemy fire. Despite his injuries, Captain Weiler continued to fearlessly lead Marines as they destroyed a tenacious enemy. By his bold leadership, wise judgment, and complete dedication to duty, Captain Weiler reflected great credit upon himself and upheld the highest traditions of the Marine Corps and the United States Naval Service.
Well, the truth is that you can have safety or you can have freedom but you cannot have both at the same time.
And you can have knowledge or you can have innocence, but you cannot have both at the same time.
The trouble with Americans is that they want it all. We are a Hollywood culture and somehow we think the bill will never come due. William Kristol, with whom I do not always agree, articulates this quite well:
Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.
This is presumably one reason why President Bush decided that national security required that he not simply follow the strictures of the 1978 foreign intelligence act, and, indeed, it reveals why the issue of executive power and the law in our constitutional order is more complicated than the current debate would suggest. It is not easy to answer the question whether the president, acting in this gray area, is "breaking the law." It is not easy because the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.
Following that logic, the Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence -- here and abroad -- as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave. A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution -- our Constitution -- created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens.
Americans have historically been wary of the prospect of a King-elect, and rightly so. That is why we have a two-term limit, articles of impeachment, and a system of checks and balances so that we can, if needed, remove an errant Executive from power if he becomes too powerful. And indeed, time alone remedies this problem if we fail to act. That is the beauty of our system of government.
But the reason we have an Executive branch terminating in a single, all-powerful head is so that he may also, if needed, short-circuit the oft-slow process of government and act swiftly, decisively, and even (and this is important to realize, if unpalatable) sometimes without our knowledge in times when, in his judgment, the need is great. This is why we elect him and why we trust him to lead us. It is not an irrevocable trust, but it is a necessary one and the Founders were wise to grant it. History shows that the exercise of presidential prerogative waxes in times of war and wanes in peacetime.
I have often been struck by time-lapse photographs of Presidents' faces over their terms of office. It saddens me to see the cares of office reflected in their faces: how they become lined, grey, worn down. It is more than mere age I see - it is the knowledge that with them rests sole authority for keeping this nation safe. As Truman famously remarked, that is a buck which cannot be passed. It is a burden we saw settle onto George Bush's shoulders as he stood atop a pile of rubble with a megaphone in his hand and swear he would do whatever it took to make sure this nation was not attacked again.
I doubt any of us can really understand how he felt on that day, because the ultimate authority for keeping this nation safe does not rest with us. This does not mean we need hand the President a blank check. Nor need we avert our eyes from whatever he does. But during the Clinton administration we were not at war, or more accurately it may be that his administration refused to recognize that war had been declared on us. And yet his administration both proposed and carried out many of the exact same provisions we are talking about today without demur from many of the same people who are currently calling for George Bush to be impeached.
"I think there is a disconnect between the depth of the threat that Saddam Hussein presents to the world and what we are at the moment talking about doing. If indeed he is as significant a threat, as you heard him characterized by the president (Clinton), the secretary of state, the secretary of defense-can threaten London, threaten the peace of the Middle East, that he is really a war criminal who is already at war with the civilized world-then we have to be prepared to go the full distance, which is to do everything possible to disrupt his regime and to encourage the forces of democracy." Kerry also voices his support for sending ground troops to Iraq because a mere bombing attack would not end the threat. "I am way ahead of the commander in chief, and I'm probably way ahead of my colleagues and certainly of much of the country," Kerry declares. "But I believe this." Further, "If we don't face this today, we will face it at some point down the road."
Well, there are a lot of unpalatable things we did not face during the Clinton administration. Hindsight is an unprofitable business, but history has a way of coming back and biting people who ignore it.
I suggest that much of the collective outrage over this NSA affair flies in the face of history and is, moreover, not as clear-cut as people like to make it. As Orin Kerr seems to have pointed out, though the 4th Amendment may not have been violated, the FISA requirements for electronic searches may have been. But wait: what about that pesky section 1802?
But the legality of the acts can be demonstrated with a look through the Foreign Intelligence Surveillance Act (FISA). For example, check out section 1802, "Electronic Surveillance Authorization Without Court Order." It is most instructive. There you will learn that "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" (emphasis mine).
I leave the gory details for your reading and viewing pleasure - they hinge on tortured definitions of what a terrorist is, vice a foreign power and the:
"...substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?" Doesn't that necessarily cut out any and all communication that is domestic in origin or destination? Well, not quite. Return to section 1801, subsection (i): "United States person," which includes citizens, legal aliens, and businesses, explicitly "does not include a corporation or an association which is a foreign power."
Well sure, but does that mean that even if you are a citizen you cash in your abovementioned rights by collaborating with terrorists? Yes you do. You have then become an "Agent of a foreign power" as defined under subsection (b)(2)(C). Such agents include anyone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," and even includes those who aid and abet or knowingly conspire with those engaged in such behavior.
Wait, that includes anyone, even citizens? Yes — subsection (b)(1) is the part that applies to foreigners; (b)(2) covers everybody. And the whole point of the act is to collect "foreign intelligence information," which is defined under section 1801 subsection (e)(1)(B) as "information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against sabotage or international terrorism by a foreign power or an agent of a foreign power."
Wunderbar. And while you were arguing that fine legal point, my family just got blown up because, while we are allowed under color of law to monitor Osama bin Laden's phone calls, we have to stop for every fricking phone call that might, just possibly, be to an American citizen.
Welcome ladies and gentlemen. You have just entered the Twilight Zone.
27 Comments:
By 
digiphile, at
Tue Dec 20, 12:05:00 PM:
Great post.
The only wrong note to my ear:
"The truth is that you can have safety or you can have freedom but you cannot have both at the same time"
False dichotomous choice? Do you live in NH, the home of the "Live Free or Die" license plate? There must be shades of grey here, as in life in general.
By Cassandra, at
Tue Dec 20, 12:10:00 PM:
I truly believe in the case of terrorism that this is the truth.
I know you're not familiar with my writing, but I've been arguing for two years now (and my husband was in anti-terrorism when the Pentagon was attacked - he had been traveling all over the world doing threat assessment) that we are not willing to do the things needed to keep up truly safe.
And I believe that is not entirely a bad thing. That is why I support the WOT. I once used a goalie analogy, which infuriated my liberal cousin on my blog. Sometimes the best way to block the offense is to come out of the goal and charge the offense because you can't cover the whole goal, so you narrow the angle of attack by going after the guy with the ball.
I was accused of gross oversimplification and fined several beers for unauthorized use of a sports analogy by a female.
But it was worth it... heh.
By Cassandra, at
Tue Dec 20, 12:12:00 PM:
...but I'll accept the criticism :)
I share one flaw with George Will (you have no idea how much it hurts me to say this - the man infuriates me). We both get on the metaphorical high horse sometimes and it rides off with us.
By Gordon Smith, at
Tue Dec 20, 12:57:00 PM:
I can't decide from this post whether you advocate breaking, skirting, or reinterpreting the law at the whim of the executive.
The question of why Bush didn't just use FISA to do the same sorts of wiretapping remains unanswered. The legal points are being spun so hard that it's hard to tease the legal from the opinion, though a post at the Volokh Conspiracy tried real hard. But for the President to argue that he can break the law in order to preserve a society based on the Rule of law is absurd.
Freedom isn't safe. It's a risk. Safety isn't a virtue, it's a preferred state in which freedom may or may not flourish. When the leader of the free world stands before the press and advocates lawbreaking in the preservation of safety, I wonder how the world is supposed to interpret it.
Go ahead with the misdirection about Gore and Clinton. Talk away about how those who ask for Congressional oversight of the executive branch are just begging for a terrorist to kill another 3,000 people. But let's not pretend that it isn't an erosion of the rights of the individual and that the terrorists haven't created an enormous change in American governance.
Bush told us to go shopping or else the terrorists will have won. I say that if we accept the end of the Rule of Law, the erosion of civil liberties, and the elevation of Commander-in-Chief to autonomous boy-king, then the terrorists have acheived a small part of their larger goal, to raise fear of death above love of freedom.
By Cardinalpark, at
Tue Dec 20, 12:59:00 PM:
A fantastic post; and one which fits well with some of the tradeoffs we alluded to yesterday, including Col. Jessup's rant.
It's all about tradeoffs. Minor transgressions viz. civil liberties will ultimately forestall greater, less discriminating choices later if we fight this war well. Internment is a blunt force instrument which hurts many innocents. Eavesdropping on incoming communications from suspect locations is a highly refined capability - and not an unreasonable search, in my estimation. People can have a reasonable disagreement on this question, but most of it will turn on one's view of the seriousness of the war. Since I take it very seriously, i am fine with it.
This issue is now raised, I suspect, as a counterpoint to what is emerging as a clearly successful endeavor in Iraq. It is also dovetails politically with obstruction on the Patriot Act.
In my view, this will redound to the Republicans political benefit in November 2006 and, in alikelihood, 2008. The Democratic Party is once again leaning toward its Dean wing -- a political loser in this country if there ever was one.
So, while frustrating, I suspect it will lead nowhere - the same as Mary Mapes and Dan Rather, Eason Jordan and Joesph Wilson - and countless other frustrated political hacks, wannabes and shams.
Great post...
By Cassandra, at
Tue Dec 20, 01:14:00 PM:
Screwy, how exactly is it "misdirection" to point out that Echelon is an ongoing program?
Hmmm?
And how, pray tell, is it "misdirection" to point out that the politicization of security measures suggested by Al Gore during the Clinton administration prevented the implementation of security measures that very likely have prevented 9/11?
Just because you find a fact "inconvenient" does not make it misdirection. The fact is that even today, many of the recommendations of the 9/11 commission are being derailed by people who say they are an infringement of our civil rights. So why did we even go there?
Before we even had the 9/11 Commission, I said it was a waste of time because we lacked the political will to impose the measures needed. It was the truth.
It was just a finger-pointing exercise in which not even the right fingers were pointed.
You didn't read my post Screwy. You always skip the inconvenient parts:
Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.
James Woolsey, former head of the CIA under Clinton has said that the problem with applying a law enforcement standard of proof to intelligence is that it is never that certain and you can almost never satisfy it.
Several other intelligence experts concur with that opinion - you cannot arbitrarily apply standards of proof that are meant to protect defendants in the criminal justice system to a situation that is meant to prevent attacks - the standard should be far looser. But judges are not trained in intelligence and don't know that.
By 
, at
Tue Dec 20, 02:02:00 PM:
I read that the Justice department is the real bottleneck for FISA warrants. The level of paperwork is huge and it takes a long time to convince the experts in Justice (Not the FCISA Court) that a warrant is required.
Presumably, there has already been a level of supervision given before the requests reach Justice. Why then the considerable delay when a request reaches Justice.
It is for the judges to decide what is applicable not hacks in Justice.
I would suggest that the problem lies with those entrenched in the FISA area of Justice.
It is time to move everyone including supervisors out. Move non-lawyers in after some elementary training in what the law says.
Make the judges earn their pay but get the requests from out quickly.
By Gordon Smith, at
Tue Dec 20, 02:10:00 PM:
Cassandra,
Check this refutation of your Echelon argument:
Think Progress
excerpt:
"That’s flatly false. The Clinton administration program, code-named Echelon, complied with FISA. Before any conversations of U.S. persons were targeted, a FISA warrant was obtained. CIA director George Tenet testified to this before Congress on 4/12/00:
"I’m here today to discuss specific issues about and allegations regarding Signals Intelligence activities and the so-called Echelon Program of the National Security Agency…
There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.
Meanwhile, the position of the Bush administration is that they can bypass the FISA court and every other court, even when they are monitoring the communications of U.S. persons. It is the difference between following the law and breaking it."
By Gordon Smith, at
Tue Dec 20, 02:12:00 PM:
And FISA has turned down only around a half dozen out of 15,000 requests...
You're arguing that if we only had more civil liberties violations then we could be safer. From what? Totalitarianism? Hardly.
By Cassandra, at
Tue Dec 20, 02:33:00 PM:
But one of them was Moussaoui. Bad choice.
Heh :)
Do you have any idea how much I hate Think Progressyve, Screwy? They pretty much lost any credibility they might have had with me during the Roberts hearings - I was torpedoing them right and left. They were completely unreasonable. They were just plain mean to my big gay judge and I'll never forgive them :D
I'll have to read it later - I have a thrilling shopping cart to construct and right now the excitement just threatens to underwhelm me.
By Cassandra, at
Tue Dec 20, 02:36:00 PM:
And by the way, I don't believe that. Echelon was conducting random screenings so there's no way they could have done that.
Don't ask me how I know that. I don't want to have to kill you.
Double heh.
By Gordon Smith, at
Tue Dec 20, 02:56:00 PM:
Then "Slam Dunk" Tenet was lying...
By Cassandra, at
Tue Dec 20, 03:04:00 PM:
Dude...
I'm laughing too hard. And I know too much. Now I have to kill myself.
Aiiieeee!!!!!!
By Cassandra, at
Tue Dec 20, 03:54:00 PM:
Screwy, after work, maybe after I have a few drinks, I will give you a serious answer.
I need to think (and work) some more.
By Gordon Smith, at
Tue Dec 20, 04:03:00 PM:
Sorry to link to Think Progress again. I know you've got strong feelings about them. But they are really delivering some prime research:
LINK "In the National Review, Byron York has an article called “Clinton Claimed Authority to Order No-Warrant Searches.” In it, he cites then-Deputy Attorney General Jamie Gorelick’s July 14, 1994 testimony where she argues “the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.” (This afternoon, Sen. John Cornyn (R-TX) quoted her testimony on the Senate floor.)
Here is what York obscures: at the time of Gorelick’s testimony, physical searches weren’t covered under the Foreign Intelligence Surveillance Act (FISA). It’s not surprising that, in 1994, Gorelick argued that physical searches weren’t covered by FISA. They weren’t. With Clinton’s backing, the law was amended in 1995 to include physical searches.
York claims that, after the law was amended, “the Clinton administration did not back down from its contention that the president had the authority to act when necessary.” That’s false. Neither Gorelick or the Clinton administration ever argued that president’s inherent “authority” allowed him to ignore FISA. (We’ve posted the full text of Gorelick’s testimony here)."
By Cassandra, at
Tue Dec 20, 04:46:00 PM:
I've always hated vegans.
Why can't they go back to Vegania where they belong?
By Cassandra, at
Tue Dec 20, 04:53:00 PM:
I have a feeling I'm going to have just as little difficulty refuting ThinkProgress as I did during the Roberts hearings. Just (because I'm not a lawyer and most of them are) it will require a little spadework on my part.
It's sad when it's that easy, though. It will have to wait until I'm off work. They really need to work on the quality of their comments.
By Gordon Smith, at
Tue Dec 20, 05:06:00 PM:
Cassandra,
Don't worry yourself over it.
When are you going to come visit me at ScruHoo?
By Cassandra, at
Tue Dec 20, 05:48:00 PM:
I tell you what - I'll add you to my morning rounds but it may take me a few days.
The Christmas rush is kicking my adorable little middle-aged butt. I get up at 4 am and even that isn't early enough lately. I need to clone myself - I'm seeing double: literally. That's why I keep having so many typos. Too much editing at work :) I am interested in this: I'm really worried about the prospect of it ballooning into impeachment hearings, though I'll be honest. I don't think that is at all warranted.
And I think it would be devastating for the nation. That's why I want to be well-informed. But I'm so gosh-darned busy right now. Anyway, back to work.
By , at
Tue Dec 20, 08:40:00 PM:
I don't think there will be impeachment hearings. To tell you the truth, the legal justification that that the Administration gives for the domestic monitoring bothers me more than the monitoring itself. It could be used to justify almost anything. How would you feel if a left wing government was making similar claims of executive power?
- Levi
By TigerHawk, at
Tue Dec 20, 09:33:00 PM:
Hmmm. Cassandra lurking over at the Scrutiny Hooligans. When she's exhausted. We could make a lot of money selling tickets to that...
By Cassandra, at
Tue Dec 20, 10:11:00 PM:
Levi, we live in such a PC world right now.
I don't worry about that so much. Someone is always getting their Hanes UltraSheers in a knot over something, and 9 times out of 10 it's something really dumb.
It's the big things that we don't get excited about that distress me.
By Cassandra, at
Tue Dec 20, 10:15:00 PM:
Think about it for a moment. We have morons suing to get the crosses taken out of Las Cruces and freaking because baby Jesus is looking askance at them from a pile of freaking straw and it is harshing their mellow.
I'm waiting for the vampires to sue to have the garlic taken out of my salsa. Van Helsing used garlic in conjuction with crucifixes that makes it some sort of Establishment Clause violation, and besides everyone knows Mexicans are all Papists.
By , at
Wed Dec 21, 07:52:00 PM:
Did you all see that the no 3 executive in Clinton's justice department wrote in an op-ed that.....
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.
We have to be grateful that our nation has had men of both political parties that are willing to discuss the law and the defense of our nation.
http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed
By , at
Wed Dec 21, 07:56:00 PM:
Greetings Infidels!
I am planning a trip to corrupt, hateful America. I am planning to bring my Pakistani cell phone so I can communicate with my brothers about a special event. I beg a question because I see that you support my mission. If I bring my Pakistani cell phone is it true that I will be able to arrange the bomb..I mean a birthday party without the bloodthirsty Bush hearing my call to my brothers? Or would it be better to purchase a phone upon my arrival? Will I need to show proof of my country to the zionist cell phone seller? Would one of you understanding infidels be willing to loan me your phone for a few days while I arrange this special event? I would be so grateful for your assistance I would provide you some valuable travel tips.
You kind guidance is appreciated but please convert to Islam, so I don't have to kill, I mean so that peace will come to our world.
By Cassandra, at
Thu Dec 22, 10:35:00 AM:
Yes - thanks! I have a post in the works citing that but I always love to get tips because my surfing time is so limited and I often miss things.
Thank you so much for posting that - I really appreciate it!
By , at
Fri Jan 27, 12:12:00 AM:
By supporting the GOP and Bush in such a shallow and careless manner, you're doing a fine job of diminishing the rule of law (think NSA warrantless wiretapping - a 'clear-cut' violation of law), accountability of politicians (think Katrina, border security, etc., etc.), the importance of a balanced budget, the necessity of sensible foreign policy, the goal of avoiding nepotism and cronyism in government hiring and appointments, and our very American system of governmental checks and balances. You're also cheering the a real and sustained assault on the American middle class, and sinking the prospects, hopes and aspirations of all of our children and grandchildren. Keep up the great work!
