Redstate

And craven sniveling poltrons of the DNC had better get some spine, becuase this si giong to bite them wear it hurts unless they change and pronto.

http://www.nationalreview.com/robbins/robbins200512190859.asp

What the NYT has done is nothing less than a deliberate attempt to help the enemy.

The link is a devestatating review of the legal status of what the President did, and a slap in the face of the DNC hacks who are pretending to be outraged by this totally legal operation.

We are in more grave dnager now than we were a week ago, and now the effin' Senate is playing games with the Patriot Act?

It is clobberin' time, patriots.

"Several folks have also asked why the President would take such measures, when a procedure of review by a FISA judge was so easily available. The answer seems clear enough to me - if a terrorist can trigger an operation with a 30 second phone call, that will cause damage later that day, it would be ineffective policy indeed that would force the President to wait 72 hours to get a FISA judge to approve the tap - which they wouldn't be able to authorize since they'd never have the information in the first place."

Here's the thing, though - the FISA contains a provision whereby, in a case of time necessity, the government can set up the surveillance without a warrant, so long as they apply for a warrant within 72 hours of establishing the tap.  This is the crux of why, in my opinion, the expediency argument doesn't hold up.

That they didn't do that. Let's not pretend that we know everything about what happened in this particular program, because we don't. It may well be that they did just such a thing - but as the President has said, they are simply not going to tip the enemy to what all of our tactics are.

My understanding is that you are wrong when you suggest that a 72 hour delay is required to recieve authorization.

See http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001805----000-
.html

It's in part f.

Warrants can be issued anytime within 72 hours, and that's perfectly within the law.

So why didn't Bush just use FISA?

That he isn't getting authorization ex ante, where appropriate? Upon what do you base that knowledge?

When the ever helpful NYT & DNC are there to tell them for us?

The only problem with this analysis is that the SCOTUS actually rejected it in the very case that Hugh Hewitt (and numerous others) have cited.

Understand that Hugh Hewitt is a law professor, and Leon is a first year law student (IIRC).  

Leon, again, excellent analysis.  As I've said before, I think this policy is bad as a matter of policy.  But the rush to condemn it as illegal (even impeachable!) is, well, a rush. And the rush to justify it at all costs is well, a rush of a different stripe.  

Understand that Hugh Hewitt is a law professor, and Leon is a first year law student (IIRC).

Here's the thing - you read the first part of the opinion, which is the government's argument, saying pretty much what Hugh says (The President is Constitutionally authorized to do this sort of thing, end game), but then you read on a little further and it says, "The District Court held that this violated the Fourth Amendment. The Circuit Court affirmed." Then you read even further down, and there at the very end, it says "Affirmed." So, apparently the SCOTUS didn't think too much of the argument.

Thanks again for the kind words, BTW.

Nobody knows but the administration.  But if ex ante authorization was requested and received, why don't AGAG or the President use that argument to defuse all this criticism?

I meant, of course, ex post.

why don't AGAG or the President use that argument to defuse all this criticism?

Some things are more important, from a damage control standpoint, than the President's standing with the press.

Understand that Hugh Hewitt is a law professor, and Leon is a first year law student (IIRC).

Hugh is also considerably less honest than Leon. I have no training or knowledge that allows me to evaluate Leon's analysis against Hugh's from a legal standpoint. I can, however, rely on who I find more credible. Hugh Hewitt has a long, consistent and dishonest record of shilling for the Bush administration to the point of sycophancy. He has been proven, by many on this site no less, to be willing to abandon what someone of his intellect and schooling should know in service of advancing a Republican agenda.

In that sense he is a very effective advocate for the GOP, and I understand why he is well-liked by some. But I do not have to find his opinions on a contentious issue credible.

According the New York Times article, http://www.nytimes.com/2005/12/16/politics/16program.html, Bush has wiretapped conversations without warrants.  The FISA court grants warrants, as I understand it, even retroactively.  So...he's not receiving the traditional authorization.  And I don't at all see why not, frankly.

Any other sort of ex ante authorization doesn't make me certain that the proper checks and balances are being observed.

And we don't know that they didn't do that.

Except that the Attorney General is going around saying that FISA doesn't get the job done.  It's reasonable to assume that they're taking measures outside of those provided by FISA, since Gonzales is saying explicitly that they're taking measures outside of those provided by FISA.

In his message of September 7, 1942, to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th, 119 President Roosevelt formulated his conception of his powers as ''Commander in Chief in wartime'' as follows:

''I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescap able responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.

''In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

''At the same time that farm prices are stabilized, wages can and will be stabilized also. This I will do.

''The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.

''I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. . . .

''The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.

''When the war is won, the powers under which I act automatically revert to the people--to whom they belong.'' 120  

It's quite possible that the technology involved here by which we are "detecting" these communications is outside the purview of the FISA altogether. It's entirely possible that the spoken contents of these telephone calls are not being discovered whatsoever. The simple point is that we don't know what all the program entails at this point.

in a way, to read a conservative laud a broad interpretation by SCOTUS in support of an argument; and in the same argument, claim that prioritizing the protection of big business over protection of individual rights is somehow a hallmark of the Democratic party.

Good article; it advances the argument in support of the administration very thoughtfully; but those 2 parts of it made me laugh.

Unless you wish to contest that Clinton used Echelon to intercept telephone communications of foreign business interests in order to gain an economic advantage on those countries?

If you do (wish to contest), just go ahead and use your "Google", there.

I agree with your question, elihuben, and have been trying to get to the bottom of this myself.

I continue to find it odd that there is no confirmed facts, that everyone can agree, regarding the "timeliness" factor of FISA.

It's my understanding that a warrant application can be applied RETROACTIVELY for up to 72 hours. That means that the President would NOT have to wait.

Now, LeonH, who's clearly looked very closely into the various aspects of FISA, seems to be saying the opposite. According to LeonH, "it would be ineffective policy indeed that would force the President to wait 72 hours to get a FISA judge to approve the tap."

So LeonH's understanding is that a warrant must WAIT up to 72 hours.

One of these claims is entirely inaccurate. I wish we as a group could confirm which one is correct and which is incorrect.

Like his standing with the people in terms of trust and respect.  At least, in my opinion; I want to trust him to not do things like illegally circumvent my liberties.

I still don't understand it.  Why not just say they did all this legally, receiving warrants legally under FISA, if they indeed did so?  If they did not, then why not, if the provision exists under FISA to surveil whoever they want to surveil and only later request and receive a warrant?  Do they think the other provisions in that part of the statute are too constraining?  If so, and they want to conform to FISA law, why not have gone to Congress by now and got it changed?

Otherwise, they do not want to conform to that law.  In which case, I'm far from convinced that their surveilance actions are legal.

I have no way of knowing whether or not he is in specific instances. I'm sure there are many cases in which the 72-hour requirement from FISA is being met, and I am equally sure that we could make a reasonable guess by researching how many such warrants were granted--certainly those are numbers which seem to be floating around a lot.

It's not the point at issue, though. The point is this: FISA allows for the real-world fact that time-sensitive investigations frequently won't allow you time to go get a warrant first. It is reasonable that our intelligence professionals should have the ability to jump on a lead in minutes or seconds, take the necessary actions, and provide justification within the law after the fact. Given that it does, whence the need for warrantless monitoring? There's no "imminent threat" argument to support them, not if you can take the actions you need now and get a warrant afterwards--and that seems to be the most common argument trotted out.

This isn't the kind of authority the president is arguing. He's arguing that he doesn't need a warrant at all.

That bothers me. And I would think it would bother others, regardless of political stripe.

Bush did not go to the FISA court is because he did not want the identity of the wiretapping subject to be on the record for some reason or another.

and the CHECK on their power is WE THE PEOPLE via reps thru impeachment or denying funds to wage war or directly by refusing to re-elect.

not courts

The only problem with this analysis is that the SCOTUS actually rejected it in the very case that Hugh Hewitt (and numerous others) have cited.

Neither Lincoln or FDR consulted with Courts while in the process of WINNING wars.

About the 72 hours - what is unclear is whether the administration is willing to comply with that, or whether the technology involved in this particular program places such interceptions and detections withint the practicable reach of the FISA.

I totally agree.

Leon H:

What about the plain text of the 4th Ammendment of the Constitution which cites "unreasonable search and seizure"?

In a time of war with our national security in the balance, is it really that unreasonable to monitor the incoming and outgoing international calls of al Quaeda terrorists for the purpose of preventing additional catasrophic attacks?

Is SCOTUS likely to rule against the President in the context of the War on Terror, citing a law (FISA) which was put into place in response to Nixon wiretapping political adversaries?

I, like Condi, am no lawyer, but it seems to me that if SCOTUS overrules on this premise, and completely invalidates the September 11th authority that Congress granted the President, then the whole matter of judicial review which gives SCOTUS final authority on Constitutional interpretation should be revisited.  For decades, the Judicial and Legislative Branches have been encroaching on the power of the Executive Branch. Maybe now is the time to have this fight.

Otherwise, if SCOTUS interprets the Constitution in a way that prevents the President from keeping his oath to uphold the Constitution, then the only other option is for the President to quote Andrew Jackson when Chief Justice John Marshall ruled against him, "Mr. Marshall has made his decision.  Now let him enforce it."

this diary, but could you please answer [these questions].  I am wondering if the resolution even applies if the phrases used as defense do not have legal standing.

In a time of war with our national security in the balance, is it really that unreasonable to monitor the incoming and outgoing international calls of al Quaeda terrorists for the purpose of preventing additional catasrophic attacks?

Is SCOTUS likely to rule against the President in the context of the War on Terror, citing a law (FISA) which was put into place in response to Nixon wiretapping political adversaries?

I tried to make it very clear that I thought that the SCOTUS would likely NOT rule against the President. Sorry if that was foggy.

http://www.aijac.org.au/resources/aijac-media/tl_wfr_120305.htm

can be found here.

And maybe it can't be explained in a way that would not reveal more classified activity than has already been revealed ... but LtGen Hayden did say this at today's press briefing:

Q General Hayden, I know you're not going to talk about specifics about that, and you say it's been successful. But would it have been as successful -- can you unequivocally say that something has been stopped or there was an imminent attack or you got information through this that you could not have gotten through going to the court?

GENERAL HAYDEN: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.

Q Through the court? Because of the speed that you got it?

GENERAL HAYDEN: Yes, because of the speed, because of the procedures, because of the processes and requirements set up in the FISA process, I can say unequivocally that we have used this program in lieu of that and this program has been successful.

Now, admittedly, that doesn't tell us much, but it does tell us that the NSA regards the freedom to eschew FISA warrants as essential. All those who are asking, "Why is this necessary?" can and should continue to ask, but the question, "Was it necessary?" has been answered.

I am a long-time reader (of Dailykos and Redstate) and appreciate your work in your posts Leon H.  I very rarely post - most of the time I just read and think about the more thoughtful posts (passing by the crazies on both sides).  

It seems to me that you are agreeing that this area is legally dicey and will eventually end up in the SCOTUS.  I agree with that.

But your defense seems tepid at best and seems based on the assumption that this was  a limited, tightly directed operation and that it was not a random fishing expedition, which is something that has been asserted but cannot be proven one way or another at this time.

So my question is how you would come down if (and if this is considered a threadjack please feel free to ignore it) it were determined that Echelon were being used as a tool to analyze ALL (or some large random sample of) international calls originating in the United States in an attempt to pick up actionable intelligence.  I don't know if the government currently has that capability or not, but with the ever-increasing computer power available, it is not out of the question at some point in the future.

Again, feel free to ignore this post, but compliments on the analysis, especially the updated one.

Let's clarify - Echelon was the program Clinton DID use to spy on some folks who were decidedly NOT national security threats. This NSA program is something different (we don't know exactly what, yet).

Second, insofar as a program operates like Echelon, monitoring international calls for certain "hot" words - I'm pretty much fine with that.

But it doesn't match LtGen Hayden's assertion that concerns about speed, not any recordkeeping concern, was the discriminating element in deciding whether or not to pursue a warrant.

"Let's have them make that case to the American people for what it is, then. And let's also have them explain how it is that they were apparently fine with Clinton using Echelon to eavesdrop on Americans, and on foreign companies for economic benefit, so that we can see once and for all what is more important to them - the protection of "big business," or the protection of the citizens of this country from terrorist attacks? The American people deserve to know."

Echelon and Clinton aside, I read something here about pitting conservatives' record on individual rights versus corporate rights against liberals' record on that count.  But now I think that was a misread.  You're saying that Democrats, by wanting to protect the civil liberties of every American citizen, also want to leave them vulnerable to a terrorist attack; and that concurrently, Democrats are the party of big business.  

Neither assertion rings true to me.  The right is the side of protection of business at the cost of the individual.  And protection of our civil liberties is not mutually exclusive of the public safety.

Sorry Leon.  I misunderstood.  Your argument seemed to pivot the other way when you mentioned U.S. vs U.S. District Court for the District of Michigan.  I guess Kelo, and other recent SCOTUS decisions have got me a little jumpy.

Hugh is being intellectually dishonest to suggest otherwise.  I have read the exact cases that Leon is making reference to, and his analysis of the holdings is all pretty much on the money.  I of course disagree with the majority in Hamdi (and prefer Scalia's bright-line approach in requiring Congress to suspend liberties such as habeas corpus in the open as required by the Constitution), and I also may disagree with some of his implications and conclusions, but he gets there in a cogent and well-thought out manner.  Good analysis from a fellow law student.

But it looks like even Attorney General Gonzales knew they were doing something that might come off looking a little 'shady'.

When asked this morning why they didn't just ask Congress for this specific authority, he replied that Congress never would have allowed it.

our greatest presidents? Could the winning of wars vital to the establishment, continuity and survival of the nation have anything to do with it? Did courts have any luck in sabotaging the above?

War is a presidential kind of thing, and

you, the voter, not courts, are the check, as this is one area where the president's oath PRECLUDES him from allowing an abortion umpire to protect the enemy from the rightious might of the US in its own defense.

So you guys that are more "disturbed" about the power of the American president than you are with al qaida's cell phone calls a few hours before 911 or with security leaks made more likely when abortipon umpires and naive law clerks who want the NYT to publicize their next wreck case

lobby the dems in congress to try and impeach Bush.

Go ahead and think McClellen and McGovern.

Maybe under the 'get a warrant up to 72 hours later' law, they can get the intelligence from listening to the phone call, but they can't act on that intelligence until they get the warrant?

Just a hypothesis on my part, but it would explain the 'can't wait on the warrant' reasoning we've been hearing.

and I am a damn good lawyer, ho hum

http://www.redstate.org/comments/2005/12/19/171428/14/22#22

http://www.redstate.org/comments/2005/12/19/171428/14/14#14

http://www.aijac.org.au/resources/aijac-media/tl_wfr_120305.htm

http://www.redstate.org/comments/2005/12/19/171428/14/38#38

Seriously, if they had gotten the warrents through the FISA court (which even the 'enemy' could have reasonably expected be done, knowledge of that gives them no advantage) 72 hours after the fact this would be a non-starter.  

Bush would have come out Saturday and said, "yes, we did those wiretaps, but we obtained proper warrents through the court process established under FISA."

Case closed, issue over.  But, that's not what happened, instead we're playing legalize games because this may or may not be legal.  And the real kicker is Gonzalas today stating they didn't ask Congress for permission because they thought it might be denied.  

So instead since they thought they had a legal thread they could pull to justify it they shouldn't ask for it ... because Congress would think they shouldn't have that power.  Gonzolas today:

"That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program."

Now, this may get me tarred and branded as a lefty or whatever here, but my feeling is this.  If it's questionable that it's legal and if you have that power or not and if the answer to the question puts you in violation of the consitution, then you should steer clear or seek proper authorization.  As President your #1 priority is to uphold the constitution, not play games to see how much you can slip past in the middle of the night.

I really am having a hard time honestly right now understanding what FISA doesn't allow that they needed to do that would be so hard to get Congress to approve.  

Rice has stated it was because they're not agents of a foriegn power 'exactly' they're "stateless" enemies.  But, if that was the issue and FISA needed to be extended to include "stateless" enemies like Al Quada I can't see how in a GOP controlled congress it would have been that hard to get an amendment to FISA done.

that the only action that a warrant would have any bearing on would be whether or not the information acquired could be used in court.

...did Lincoln have the ACLU and 60 years of radical left leaning decisions hanging over their heads like the Sword of Damacles?

I pray that you're right, 'Cock. I'm just a humble golf pro with rudimentary knowledge of the Constitution.

I apologize if this has been dealt with, but billing for a living makes it hard to follow 100+ comment threads closely.

Orin Kerr has an excellent post where he concludes that the wiretaps weren't unconsitutional under the "border exception" (probably correct), but that they were illegal under FISA:

http://www.volokh.com/posts/1135029722.shtml

In this, he points to a different problem than has been discussed here.  

FISA prohibits "electronic surveillance" except as allowed by federal law.  Electronic surveillance is defined as:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . ." (emphasis supplied)

(1) doesn't work, because I think there isn't a Fourth Amendment violation.

 Orin ultimately concludes that FISA applies under 2.  I think this might be incorrect.  As one commenter on that thread noted:

Pres. Bush at press conference today:

"So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa."

If this is true, then the actions of the Administration probably don't fall under section (2) either.  That's a big if, as the President isn't known for his, um, precise speaking.

So the Administration's best argument actually might be that it didn't conduct "electronic surveillance" under the meaning of the statute. Like I said, I haven't followed this all that terribly closely, so if this has already been debunked, I apologize.

At any rate, I'm counting down the moments until the Administration breaks out the "no controlling legal authority" defense, which actually appears to be the case here.

I didn't hear him say that so unequivocally as you imply, but haven't seen a transcript.

There is one claim being made that all of the subjects of the wiretaps have connections to Al Qaida.  If that is the case, then the president is justified.  But if that was the case, why were certain names rotated off of the list and were the suspitions 100% accurate?  All we know is that the list is currently about 300 individules, but has had over 1000 overe the past few years.

The more I think about this, the more appropriate I find the FISA safeguards.

http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html

Q If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

here.

...the politics in the last month will portend for the GOP and the President in '06? Seems the President first had a small crack when the Dems overreached on hyping intel, then Murtha's cut and run episode, followed by Kerry and Dean's idiocies, then the successful vote in Iraq, then the Dem's filibuster of the Patriot Act, and now their crying foul over surviellance of terrorists and violation of FISA?

Liberal blunder after liberal blunder and

now its a gaping hole the President can drive a truck through to the '06 election.

 

in today's transcript of the press briefing Gonzales says this:

"Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

So, if I get his drift - he's claiming that the presidential authority comes not from an established constitutional basis as Bush has stated, but as an extension of the permission from Congress to 'use force'. An interesting interpretation of 'force'.

This seems like a thin justification at best, and at worst the kind of stretching of meaning that many object to on the part of the judiciary.

Bush was wire-tapping his political enemies--not "terrorists".

For all you guys complains about the MSM, this is but another story of Bush "doing something bad" that the NYTimes sat on for OVER A YEAR.

There was a time when Conservatives gave a damn about the constitution, civil liberities, and put those things above their party.  Goldwater is spinnin' in his grave.

Shame on Bush.

For those who ask why not go through FISA, esp. the provision that allows someone to act and then request an authorization within 72 hours, consider this in Byron York's National Review article:

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

Click here to read the whole thing

Bottom line: does anyone really think that any federal bureaucratic machinery is going to allow for fast enough action against terrorists?  If you do, I have a bridge or two to sell you.

and execute leaking FISA judge law clerks for treason.

Art II executive/commander in cheif power doesnt require the president to get a judge's permission or 72 hour ratification for actions to defend the US.

Presidents ask congress for the $$ to wage war and to agree to the waging of war but not for permission as to the specifics of same.

HE is responsible to WE THE PEOPLE. Thru our reps in congress. The Consitution is not a suicide pact and we could have an impeachment vote between those that understand this and those that dont.

Between those that would allow judges to refuse to issue war wire taps or ratify same or those that would not.

He seems to be saying "Congress has authorized us to do this" but then 5 minutes later says they never would have approved this had the administration asked.

Am I mis-reading something?

Thanks for making your trolling so obvious.

Blam.

It should be getting to a point where we should all be outraged at the Democrats/Liberals/mainstream media.

They attempt to nitpick this war on terror and the Pres to death, trying to score political points at the expense of national security.  Imagine if FDR had had to deal with this kind of opposition...we'd all be speaking German right now, giving our allegiance to the Feuhrer.

I for one am sick and tired of a media and a major political party more concerned with the civil rights of terrorists than the lives of Americans.  If there is another attack on our soil, thank the liberals for that.  The liberals want to revert back to a pre-9-11 mindset, and we all saw where that got us.

This incident is one more proof that the Democratic party literally cannot be trusted with national security.

Let's face it...9-11 only happened because we had Bill Clinton asleep at the wheel of national security for 8 years.

We're literally at the point where our very lives depend on keeping the Democratic party from reaching any form of significant power.

Let's also realize that the media is not on our side in this war...they are the biggest enabler of the terrorists.  With a responsible media, something like we had during WWII, the terrorists wouldn't stand a chance, and they would know that.

He seemed to go to great lengths to say that the act of Congress provides the authority for their actions - then qualifies it with variations of 'but our position is that the authority stems from the constitution anyway'.

If there is specific law, chapter and verse that covers this - why not just say so. The obvious implication is just what you say - they're riding a thin line here.

To my mind it is not a good precedent to set.

No, Lincoln just had half the nation wanting to kill him!

Tiger story below, but first, a good companion quote for your Patton one is

"One man with courage makes a majority." - Andrew Jackson

Reassuring numbers re POTUS ability to wage THIS (and incredibly, this war that the dems now want to not fight is against al qaida who I think was involved in 911)war:  house and senate GOP majorities to remove from office post impeachment.

Care to spend some time with golf? I do -- this is an amazing story. Tiger Woods was talking about last summer's British Open, which he won. Before the final round, he was warming up on the range, and ... Well, I'll let Tiger tell it. I'll quote an article from the AP:

"I hit the 100-yard sign four straight times," Woods said in an interview last week. "That was the start of my warmup. I hit a couple of little wedges to loosen up, then hit to the sign. Peppered it four straight times in the air, on the right zero -- not the middle zero, the right zero."

His swing coach, Hank Haney, was standing behind him, and remarked to Woods's caddie, "The first time he gets inside 100 yards, you might want to tell him to aim away from the flag." That is, Woods would not want to hit the pin, deflecting his shot and giving him an unreasonably long putt (or even a chip).

Ha, ha, right?

Well, "first time I'm inside 100 yards is on No. 6" -- that's Tiger. "I had 98 yards to the hole. What happens? I one-hop it off the [pin] and it spins off the shelf." His caddie then told him what Haney had said, on the practice range.

Absolutely dizzying, Tiger Woods -- an endless source of amazement.

I can't figure out if this is a troll or not.  So I'll bite.

FISA was just fine for dealing with the threats of the Cold War and the KGB but suddenly it's not secure enough for a operation like Al Quada?  

Give the Soviets/KGB some credit here, their intelligence network is far better then anything the fundamentalist muslim extremists are running.  And if the court was secure enough for them, it's secure enough for this.

As far as let the enemy know our plans ... WOOAH, you mean like they might thing we're trying to spy on them and intercept their communications.  I bet they never even thought of us doing that!  

As far as FISA blocking requests, they've blocked very very few over the years according to what information is availible.  FISA simply puts a judical check on executive power, such checks form the basis of our entire system.

FISA was put in place specifically for this very issue - Executive authorized wiretapping and esponage.  This is a power of the executive that has been restricted by this act and that the administration seems to be splitting hairs about if it applies are not.

Article II doesn't say he needs permission, but it also doesn't say he has the power to do it without permission.  FISA can be interpreted as saying he does not have such permission.

You can IMMEDIATELY wiretap without a search warrant.  THEREAFTER, you have 72 hours to present a warrant to the FISA court for approval.

For fear of being branded a left winger, I make the following observation.  No one -- not a single Republican -- in the legislative branch has offered a defense of the President.  Many have sharply criticized him.  

The President's rationale -- speed -- makes no sense.  It is evident that he is now desperately trying to create a post hoc rationale.  

And you said it far better then I seem to have been able to earlier. :)

the media was being censored in a very heavy handed way during WWII.  He would have thrown all these journalists in jail, and shut down their publications.  The fact that he was a Democrat does not dawn on these people, because they honestly think that Democrats fight for the people, and Republicans just want to institute some type of oligarchy.  That is why they are incoherent on defense and intelligence.  Some idiot actually went on NPR today and brought up the Church commission as if it was some great thing.  Actually all it did was blind our intelligence service.  So, if you are going to point at Clinton, you have to also consider the ramifications of Church.  

Is it just me, or do these people seem like they want us to loose?  Do you think they even understand what loosing means?

I reject the event/non-consequential between election poll driven msm narrative.

The reason we have won the last 3 real polls called elections is because of the reection of liberalism and especially that aspect of same that is unwilling to defend the nation against all enemies foreign and domestic.

Conservatism wins every time its tried beginning esp in 1980, but also going back to 1968 and 1972 interrupted only by a watergate inspired fake conservative in carter and a cold war over inspired fake conservative in clinton.

The msm cannot admit that their side loses due to what they stand for, ie liberalism, so they have to construct a narrative with between election polls and post debate polls, etc to avoid reality.

And even under clinton, the dems lost the house in 1994.

Now, post triangulation, the dems are in the mcgovern mode that lost in a landslide during an unpopular war in vietnam.

I think that the dems are headed for political extinction.

What happens is that BETWEEN elections Bush and the GOP get compared to an imaginary perfection that doesnt exist.

But during election campaigns we get compared to a liberal. Thats why we win those polls.

1. gamecock is not a troll.
   
2. you are contending our relations with the USSR were ever at the level ours with al Qaeda. Since 9-14 we have really been in a state of war against al Qaeda: authorization by Congress to use force, Afghanistan, Iraq, etc. This situation is markedly different from the Spy vs. Spy game we played with Soviets and still play with other powers.
   
3. are you seriously making the argument that Congress can statutorily limit the enumerated Article II role of the president. That is ridiculous on its face.

bushlied a year before the 2004 election.

 Imagine if FDR had had to deal with this kind of opposition...we'd all be speaking German right now, giving our allegiance to the Feuhrer.

I for one am sick and tired of a media and a major political party more concerned with the civil rights of terrorists than the lives of Americans.  If there is another attack on our soil, thank the liberals for that.  The liberals want to revert back to a pre-9-11 mindset, and we all saw where that got us.

Go make yourself a drink and calm down, we're not all going to die if someone questions how we're waging the war on terror.

I think the media, liberals AND conservatives who are concerned about the civil rights issues surrounding this should be thanked.  Without people like them to hold people's feet to the fire and make sure our rights aren't being eroded all the security in the world isn't worth the price.

To argue that the actions of the executive to protect us should not be questioned, no matter how high the price on our Civil Rights is allowing the terrorists to win w/o having to fire another shot.  Because if it's let go far enough, then this country as it is will cease to exist.  I'm not going to jump out in front of this train and claim that Bush is wrong.  He may be in the right, but there is no reason for these questions to not be asked.  These questions in fact must be asked.

"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin

If this isn't far enough to at least start to question what is going on, how far is too far?  And if we don't question now when should we?

I think some people like you may be so worried about the terrorist boogieman they'd sell everyone else's civil rights down the river as long as they didn't think it was causing them harm.

"First they came for the Jews

and I did not speak out

because I was not a Jew.

Then they came for the Communists

and I did not speak out

because I was not a Communist.

Then they came for the trade unionists

and I did not speak out

because I was not a trade unionist.

Then they came for me

and there was no one left

to speak out for me."

- Pastor Martin Niemöller

This isnt a liberal issue....

Daschle, Barr and Graham have come out publicly questioning the administrations policy.

If you are angry at the NYT for coming out with the story now...so be it. But they could have come out with it a year ago, and you would have been just as angry.

The question still remains, why did the administration need to circumvent the FISA in these cases.

To explain he meant that we don't intercept calls from Dallas to New York under this program.

But we would be intercepting calls from Dallas to Syria.

That's what he claified "within the country" to mean.

was never president... or much else that gives his statement credence. Though I am amazed that Essential Libery encompasses al Qaeda agents talking on the phone.

No one's civil rights are being sold down the river, except those of us who would rather not live in a world dominated by islamic extremists.

Or did they drop the word "appropriate" from the article you quoted?

From this link:

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

                    (a) IN GENERAL.--That the President is authorized to use all

                necessary and appropriate force against those nations, organiza-

                tions, or persons he determines planned, authorized, committed,

                or aided the terrorist attacks that occurred on September 11, 2001,

                or harbored such organizations or persons, in order to prevent

                any future acts of international terrorism against the United States

                by such nations, organizations or persons.

Not your fault, but it seems pretty lame to drop that very limiting and very legal word. It would seem that "...necessary and appropriate..." would be one way to to limit the President to other laws, such as FEMA.

how is "appropriate" limiting in any meaningful way? How would it limit the requirement to use "necessary" means?

First I am no Clinton apologist, he did miss some oppurtunities against Al-Qaeda, but why is it Bush gets a free pass on 9/11. He had a clear warning, the Aug 6 PDB titled Bin Laden Determined to Strike US. Secondly, can someone please explain to me how the NYT story comprimised National Security. The terrorists knew that the Government would try to monitor all of their phone calls. How would knowing that they didn't have warrants change their behavior?

"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin

I emphasize ESSENTIAL liberty.

How is talking on the phone and making sure it is a secure conversation essential? Not to mention the only people being monitored here are the international communications. I don't think a conversation between grandma Ethyl and her grandchild who is an exchange student in england is of much concern to Bush or the NSA. The only people who need to be worried here are the ones that actually have a need to be worried.

And to touch on your statement that there are concerned conservatives here is a joke. I only see pretend concern in front of a camera to make it look like there was no input from these senators (such as harry reid). And i don't count someone like mccain a conservative. He's a liberal (very liberal) Republican.

too late.

Your Talking-Point-O-Matic™ is stuck in the "automatic" position.

You managed to squeeze KnownFacts™ in there, too. A virtuoso performance for a first and last post.

Ha...ha...you list Daschle, Barr, and (Bob) Graham, as examples of non-liberals questioning administration policy.

Well, Daschle and Bob Graham are indeed liberals.  As for Barr, he is the exception to the rule, and hasn't questioned this particular policy.

The bottom line is that it is the political left that is leading this criticism against a very legtimate program to protect us in time of war.  Without the political left and their allies in the media, this is not even an issue.  Someone like Bob Barr couldn't go anywhere with this issue.

I am amazed that Siberian relies on cheap platitudes as some sort of argument.  They mean nothing.

The bottom line is this: we are in a time of war with a very serious and deadly enemy.  Go back and find a recording of the 9-11 broadcasts if you need to be reminded.

And yes, liberals and their allies in the media constantly carping at the President like mosquitoes and cockroaches do indeed potentially hurt our effort in the war on terror.

If these false controversies that the media trumps up make it more difficult to track the terrorists, that could indeed cost lives.  It's not an exaggeration.

There comes a time when a country needs to unify behind its leadership to fight a war.  We did this during FDR and WWII, even though we know that FDR made huge mistakes.  

Doesn't the Fourth Amendment modify Article II, though?

Go on admit it. You don't really give a twit about civil liberties. This is just another opportunity to bash Bush using the lame excuse du jour.

he is a conservative.

force and we all know the definition of that.

come now

First of all, the Cold War began in 1945. FISA was passed in 1978.

Ok, get up off the floor

2. Presidents are authorized to kill any perspon HE DETERMINES is an enemy, in order to defend the country without first getting a judge's permission. Doesnt that imply that he can do less than kill in  order to determine who to kill. Most of the machinations we go thru with FISA and Patriot acts are for political reasons, not const authority. Which is my point. Courts will not decide this. Politics will. Unless we charge UBL with a crime based on a FISA warrant-less search.
   
3. UBL was using a particular communications device in 1999 until the NYT ran a story telling him we knew.
   
4. The USSR activities in the US were not an imminent threat to kill like UBL.
   
5. Im sure we could find many instances post 1978 where carter and or reagan did take actions similar to bush where they did not go thru FISA.

6.

http://www.redstate.org/comments/2005/12/19/171428/14/14#14

could get Biden and Kennedy to talk them to death.

They were doing exactly what the needed to do to combat Al Qaeda. Al Qaeda believed and judged they were playing by FISA rule and their spies were set around FISA infrastructure. (if people don't think these bastards have spies in the system they're cracked)

Al Qaeda believes their useful fools in the press and the senate have the President painted into a corner legally so President and advisors find a loophole to carry out what Al Qaeda doesn't think they can do legally and... whammo! Arrests all over the world.

Now it's gone. AL Qaeda will change tactics. We are more at risk.

It's the press that conducts domestic spying and is the largest spy network in the world.

All legal and above board you know.

Except for this case. The case that's going to be broken off in their collective backsides.

The Bill of Rights do not apply to enemies waging war against the US. The Constitution is a pact for WE THE PEOPLE in our domestic affairs where we are willing that innocent go free. War is when ANOTHER PEOPLE,  wage war against WTP.

The waging of war is the exclusive province of the commander in cheif in which he can kill any person he determines is the enemy. Without first asking a judge for permission or reporting to a judge 72 hours later.

But, even if the 4th amendment did apply, what is reasonable in a pot case and what is reasonable in a dirty bomb war case where a leak from a law clerk could jeopopardize thousands of lives kind of answers the question by asking it doesnt it?

This is war. And that citizens within the US ally with a foreign enemy to destroy us does not diminish the presidents power to wage war.

http://www.aijac.org.au/resources/aijac-media/tl_wfr_120305.htm

...you must not know just how the NSA works.

72 hours wouldn't do it.

Technology has changed so much since the FISA law was written, that it needs a re-look, given the advent of wireless and satellite technology.  Wireless puts all kinds of electronic signals out into the atmosphere.

NSA has a very extensive signal gathering apparatus all over the world.  It picks up all manner of signals.  Wiretapping a specific phone line is so passe.  Even your wireless phone in your house sends out a signal everytime you use it, available for capture, even by another wireless phone.

To hold Bush to landline technology is ridiculous.  If some netherworld wireless information floats into his listening mechanism, and it is a threat, I would expect him to act on it to protect me.  This whole Nirvana in the NYT is ridiculopus.  Steve Croft at CBS did a piece on it CBS FOUR YEARS AGO!

this talk of illegal and legal is much ado about nothing.

The President and his staff made a decision to perform illegal seemingly wiretaps.  Ok.  What does that mean?  To me it means that the wiretaps are inadmissable in any sort of legal action.  

I have a hard time buying into this being a real violation of our civil rights.  The government could monitor our conversations whenever it wants to. Does mean they could do anything with it.  Matter of fact illegal wiretaps generally lead to tainting other evidence.  

Now we can question the motives and soundness of this policy.  IMO, I think this policy closes off a significant mechanism for dealing with terrorists, namely our legal system.

Here's the problem as I see it.  What if the next Mohammed Atta is on our shores at this very minute.  And he makes a call to Osama Bin Laden detailing his intention to destroy the White House.  Because the wiretap is illegal we can't LEGALLY do anything to prevent this from happening(note: I realize that we would stop it but this is an illustrative example).   So we put ourselves in a situation where we KNOW that someone is planning to do bad things but we can't legally do anything to stop the guy from doing it.

I think that this controversy is focusing on the wrong issue.  

FTR, I would like to point out that the infamous Jamie Gorelick memo dealt with this EXACT issue.  

Far from asking whether Pres Bush broke the law, we should all be proud of our President for actually having the guts to protect us from the terrorists.

That sure beats what we had in Bill Clinton, where he was so afraid of offending anyone, and so determined to be politically correct, that he made things very easy for the terrorists.  And to think that Clinton, with the media on his side, could have actually gotten away with anything he wanted to.

This President has courage and conviction, with a deep zeal to protect us...that's rare and that's special.  We need to have a public relations offensive, not just to defend Pres Bush, but to say how proud we are of him.  This man is a hero for taking all the crap he has to protect us.

Sorry, I should have been more specific.

And Daschle is a lefty, true....but he is more moderate than left.

I am sorry,  I do believe that it is an issue, whether you are right or left, or who is in the white house.

Call me naive.

Look, I do not believe that the president broke any laws, but I question the need to circumvent the FISA.

I have a hard time buying into this being a real violation of our civil rights.

Do you have a very high opinion of your civil rights?

But I also have a very realistic view of technology.

I don't have a huge problem with the government monitoring communications provided that all domestic   intelligence is discarded.  

There is a clear and present danger to our nation.  I think that we can sacriice a potential loss of privacy to deal with that danger.

Regardless I think you miss the gist of my post.  I compare this to a cop who ignores the law to catch the bad guy.  Well it may work out ok as long as he shoots the bad guy but if he doesn't the only thing he is doing is giving the bad guy a get out of jail free card.

insist on putting people like Pelosi, Reid, Dean, Sheehan. etc up as their poster boys.

I tell you now, if the Dems had people like Ed Koch, Richard Daley, Ed Rendell, etc, liberals with SANITY, we might be in for a world of hurt.

Ed Koch's famous line as NYC mayor:  The radicals hate me, but that's OK, because I DESPISE them.  He was such an effective and well respected mayor that in his second run for NYC mayor the Repub's cross-endorsed him, not because no one wanted the job but because he did such a good job!

I am proud to say I voted for him 7 times in my life and would vote for him over just about any Republican (except the Bush's).

You're naive.  'Nuff said

ride on a short bridge. Evidently, that's legal in MA.

well spoken!

giving the bad guy a get out of jail free card.

Nope. Planning act of war = enemy combatant = instant Gitmo

The Executive branch was handed a loophole by our Senate when they passed the authority to combat Al Qaeda. Al Qaeda, thinking they were still playing by FISA rule, judged their exposure by that measure. The Executive surprised them with some maverick action. Action that empowered them to fulfill their ultimate duty and was ultimately legal. Al Qaeda mis-underestimated Our President and it has resulted in arrests of some of the very nastiest folk.

Now that element of surprise is gone. An element Al Qaeda may have suspected but is now confirmed.

Al Qaeda will change tactics and we will be at square one in many areas.

And we will chase yet another phantom down the rabbit hole of politics.

And wound ourselves and our progeny in the bargain.

Some people were suspected, their int'l calls monitored and thus it was determined that they weren't a threat, so they're not on the list any more.  Or, it was determined that they were so small a threat as to not be bothered with.

Where's the harm in that?

Here's some useless advice from a relative novice (six years out of law school):  don't take your advocacy cues from some of the more prominent names of the blogosphere.  Hewitt and the Powerline guys* are popular bloggers, but their style of argument is to steamroll.  Trouble is, a steamroll only works when your opponent lies down in the middle of the road.  Most of your opponents will have a car.  

Keep doing what you're doing, expect to make mistakes (lots of them), never cite-check your own briefs (trust me on this**), and always be the last set of eyes on any brief you file.  It's your ass, after all.  And you'll get a reputation sooner than you think.

*From my experiences with other Faegre lawyers, I figure that a lot of the Powerline shtick is a dumb-downed version of what they do in real life.

**Twice I've averted mistakes by having someone else really study and test the authority I cite in my briefs.  In each case, my argument was sound.  But somewhere between my rewrite number 20 and incorporating a last-minute client comment, I ended up misciting a case.  One miscited case can be enough to cost you all the credibility you have -- I've seen it happen (to other lawyers on the other side, thankfully).

Perhaps you are forgetting the story Mssr. Padilla.  

If you illegally obtain the information you can't really treat him as an enemy combatant.  Sooner or later you have to let him free and every time you do this sort of thing the easier it will be for the next guy to walk.

Senate Intelligence Chairman Pat Roberts, R-Kan., has been regularly briefed and believes the program is consistent with U.S. laws and the Constitution, his office said.

You mean besides this one? I just had to look at a single AP story to find that.

The justification makes perfect sense. You know, it still takes resources to go through the FISA process. Just because you can do it after the fact doesn't mean you still aren't taking people away from jobs they should be doing to focus on red tape. The FISA process is very cumbersome and involves a whole lot of people before it even gets to the court.

You have finite resources... do you want to spend them on red tape to protect Zarkawi and his pals' privacy, or on preventing terrorist attacks? I know my answer.

but is ANY part of your comment based on fact and not speculation of the most grandiose variety?

I don't have a huge problem with the government monitoring communications

See, I have a _huge_ problem with the government "monitoring" my phone calls, email, and other personal conversations, because I believe they have no right, legal or otherwise, to do so.  I believe they have a legal obligation to not do so.

On a far more basic level than even the Constitution, I consider this part of the liberty to which I have an unalienable right, not to be taken away by George Bush or anybody else.

So by essential liberty did Benjamin Franklin mean the right to hang out with enemies of the state without being surveiled?

As for the second, are we sending people to concentration camps? The last I checked we were doing nothing of the sort.

This 72 hour deal is not all it is reported to be.

72 hours is not a reasonable amount of time to build a case to present to FISA when you have just learned of the target of your surveillance an hour ago.  

It is quite possible you do not even know the name of the subject you are tracking, or for that matter even have access to that information.

There is so much gray area here that we don't know.

Also, as has been said and freely admitted by Pelosi and others they were informed, and continued to be informed on these operations.  The Presidential order to justify these operations had to be renewed every 45 days, so it has been said.

The least that could be said was that if in fact President Bush was acting illegally he went through great pains to make sure the senate and the congress knew he was doing it.  And if he was acting illegally, why did they not stop it at its inception?  Are they capable of doing their jobs?

Lets face it.  The average citizen does not reach the criteria that it has been reported was used to become a target of this surveillance.

As was said above, A 30 second phone call from a cell phone could be all the information we get that may tip us off to the next 9/11. Every second may count. That one phone call could sprout into an entire web of people and phones.

Just how do you get a warrant from FISA when the subject of the surveillance has grown three generations and what 72 hours ago was only 1-2 people has expanded to 30?

By that time, the initial warrant you were seeking would be void before it was even presented to FISA.

The President is given these powers for this reason.  To fill in the gaps that may be uncovered by current law.  Thats why we elect them.

However we are talking about international communications here.  Pretty choppy waters.

Echelon has been monitoring our communications for years in this regard.  Same is true of all sorts of other eavesdropping systems.  

That there is a sizable group of conservatives with the take-to-the-mountains tinfoil-hat black-helicopter view of the world. These are the same guys who are outraged at the Patriot Act and get incensed at any mention of a national ID card. I would say they are not in the majority, though.

During the Nixon era, paranoia over this issue reached a level where the people demanded that Congress do something, and thus the FISA was passed, which was intended to limit the circumstances in which the Executive branch could execute a warrantless wiretap.

This is wrong on two counts. It wasn't "paranoia" over the issue. In the 1950s, 60s and 70s, the government (under both GOP and Dem presidents) made lists of people who were deemed national security threats, and spied on them. You know, national security threats like Dr. King and John Lennon. It was called COINTELPRO, and in addition to spying on Americans, it disrupted organizations, harrassed individuals, and generally interfered with freedom in many ways.

Furthermore part of FISA is the creation of the Foreign Inteligence Survalence Courts, who are in fact supposed to issue warrants for this sort of thing. They do it quite a lot, and they even issue the warrants retroactively. That's right, agents can legally get clearance up to 72 hours after making a previously unwarranted search or seizure.

The point is, there's no area of law about "warrantless searches." Warrantless searches represent illegal unchecked power. Commentators in a hurry to back up President Bush should ask themselves how they'll feel if this law stands and someone like Hillary Clinton is elected. It could happen.

Frankly, I'm uncumfortable with this use of State power in either case.

I think Hugh is plenty sound. He did go way too far into the spider hole with Miers, but there are many examples where he disagrees with the administration as well.

Even if they secretly monitored all communications everywhere just for giggles, how exactly are you harmed? That is where this argument falls apart.

This information is not being used against you in a court of law... it would be thrown out if that was attempted.

I just hope he stays angry. He is much more effective when he has some anger. You could see it in his press conference.

Bill Clinton wasn't afraid of offending anyone.  Bill Clinton was afraid of DEFENDING anyone...but himself.

Semper Fi

They had no business releasing this information.  They held it for a YEAR.  If this is SUCH a big deal, why did the editors sit on it for a year?  It didn't have anything to with either the Patriot Act renewal or maybe a certain book being published, did it?

I agree with Michael Ledeen's friend who said Justice should convene a Grand Jury, subpoena all the actors - reporters, editors, Congressmen & Senators and their staffs, NSA and CIA operatives who knew of the program, etc.  Give them immunity.  Ask them who leaked.  In the case of the reporters and maybe the editors, if they don't give up their sources toss 'em in jail.  And keep 'em there until they give up the people who leaked classified information.

that as no one is stopping you from carrying out those communications your "rights" and "liberty" are not infringed.

If you are saying you have a "right" to do that anonymously, I think you are mistaken. Obviously the government agrees with my position. Who agrees with yours?

international communications by and with known AQ operatives.  Not gramma calling her family in Italy.

Who agrees with yours?

Surely you jest.

Give 'em an inch, as somebody once said.

Since I'm not on the phone to terrorists too often. And I would gladly give them an inch if that means I won't be blown up at the mall or while waiting in line at the post office.

You are so right...Clinton didn't want to defend this country...he dodged the issue just like he had dodged the draft years earlier.

And he was only afraid of offending people like the terrorist Yassir Arafat.  Has there ever been a president more clueless on national security than Bill Clinton?  I can only think of one...Jimmy Carter.

that our government doesn't start killing people on American soil without trial.  That would be bad.

Perhaps you are making up a story about Mr. Padilla. The Supreme Court never ruled on Mr. Padilla's appeal. The Appeals Court which last reviewed the case agreed that he could be held as an enemy combatant.

In the meantime DOJ figured they had enough evidence to convict him anyway in a civil court, so they've gone that route. So Padilla has been moved to a federal prison in the U.S. But no court ordered them to do that, and certainly no court ordered him "set free."

That already happens all the time. Try pointing a gun at a cop or some bystander's head and see what happens. I don't agree that it is bad in that case.

that you would respond that way but I think you understood my point.

And what are they charging Padilla on?  An extremely tenuous charge of, IIRC, aiding and abetting a crime that never occurred.  

They brought the charges on Padilla because they didn't want the SCOTUS getting involved and it was obvious that they were about to get involved.

Honestly I think the Padilla case is one of the worst cases in our history. Padilla is an natural American citizen.  They completely stripped him of his rights for several years.  Not only that but they then refuse to even bring forth the evidence against him because it is inadmissable and they claim would damage national security.  

IMO, this case is VASTLY worse than the NSA tapping our phones.  And honestly I don't know how it doesn't bother every American.

Bush chose to charge Padilla rather than risk an adverse ruling but I think their fears were probably unfounded even before Roberts and Allito.

I've written over 30 columns on the enemy combatent subject and was the first columnist in the country after 911 to use the term in print and suggest their differing status from pows. Allow a little gamecock pride!

Essentially, the Supreme Court ducked its opportunity to decide whether Padilla's detention is permissible. Chief Justice Rehnquist, joined by his four conservative allies, held that the head of the military brig in South Carolina, Commander Marr, not Defense Secretary Donald Rumsfeld, was the person whom Padilla should have sued. Marr was Padilla's immediate custodian, and she was not within the jurisdiction of the New York federal courts, where Padilla filed his case. That rule, said Rehnquist, is to prevent "forum shopping" by detainees seeking release under the habeas corpus statute. The result: Padilla had to start over;

http://www.nytimes.com/2005/12/18/national/nationalspecial3/18padilla.html

No president would release UBL types on the order of the supreme court anyway un;less they have them killed 4 steps from the prison entrance anyway. This is war. Courts know this and that probably explains why courts rarely challenge the CinC in such circumstances. If a president did release UBL pursuant to a court order due to a warrant problem they should be impeached.

Presidents, not courts have the final say in war.

eg

http://www.aijac.org.au/resources/aijac-media/tl_wfr_120305.htm

are you seriously making the argument that Congress can statutorily limit the enumerated Article II role of the president. That is ridiculous on its face.

No, I'm making the arguement they can limit any power not layed out in Article II.

Please show me the part of Article II that lays this out.

And then explain why FISA wasn't unconstitutional.

And I am contending that from the creation of FISA until the end of the Cold War that when it came to trying to uncover agents the KGB was easily as protective of them as Al Qaeda is of a sleeper cell in the United States.  So if they couldn't figure out what FISA's court was doing, I don't see how you tihnk Al Qaeda has the sophistication to do so.

that were shot on sight.

and end? When you are born? When you turn 18 or 21? When you start conspiring to commit criminal acts? When you start communicating with terrorists? When you blow up a bus load of people? Or when you decide that the President you hate may have done another good thing you don't like and you need something to whine about?

"aiding and abetting a crime that never occurred."  

1.  But from 1978->End of the Cold War it was in place and worked fine.
   
2.  I'm pretty sure he can't just point at you and say 'enemy' and have you killed.   Most of the machinations we go through with FISA and Patriot Acts are about protection of Civil Rights - which is a political issue, but they're not done just for 'politics'.
   
3.  And .... ?  I fail to see how this is a defense of Bush's actions.  I know he brought it up several times this morning but I'm just not seeing it.  Is the arguement that you can't trust the judges and staff on the secret FISA court?  If that's the case get new judges/staff.  If not, stop infering that they would somehow have leaked the information.
   
4.  True.  But, I suspect at several points during the Cold War there were people in our government taking foriegn agents very seriously.
   
5.  Great! Find one.  Then let me know.
   
6.  Bush didn't ask Congress, FDR did.  

That we surveiled Americans during the cold war (post 78). If we were spying on the the Soviet embassy and a citizen contacted them, did we cover our ears?

Do you seriously take your rights and liberties for granted to such an egregious extent that you give them such small importance?

I'm getting fed up with people who think that civil liberties and freedoms are mutually exclusive with the public safety.

then there are listening posts outside the USA (Canada, England, Australia, NZ, others?  I would hope Israel!) that do not have the "limitation" of a US base listening to USA persons (that may be a stretch, eh?).  The CBS program describes these bases and their function.

To me, it seems that the signals intercepted by this Echelon-type program are also used as "finding aids" - they identify potential people inside the USA to investigate further.

If I had been President/AG/etc. I would have followed leads identified by the intercepts to ensure they were not immediate threats.  If they were immediate threats, action would be taken.  If they were not immediate threats, but were subjects of interest, I would have gotten a FISA warrant to investigate the people on the USA side further.  We don't know that that hasn't happened - the speculation all seems to be that for some reason we didn't go the FISA route when we had pointers to USA people.

You still haven't explained how you have lost any freedom. I have yet to see anyone give an example of how they have been harmed.

You have zero rights, other than to life, that have not been earned for you by some one else. If you were serious about protecting your rights you would be fighting the Kowards of the White Flag Party who would sell all your rights for a few votes.

I am working hard to follow all the legal debate, but even for the brightest legal mind, doesn't it ultimately come to this.

Gen. Hayden: Mr. President, we've got intel. that requires us to monitor non-domestic communications to sites inside the US. It may help us prevent another attack. If we have to obtain warrants thgough FISA we might miss some really critical information, uhh, you know, that might help us save lives, like 9/11.

Pres. Bush: Do I have legal authority to order you to do this without a warrant then?

AG and NSA lawyers: Yes, in our opinion, we find some constitutional and statutorial grounds for doing so.

President Bush: I took an oath to defend Americans. Set up a program with safegaurds, regular reviews and inform leaders in Congress.

Now lets play. Your President would say....Lets try

President Fiengold with VP Levin: Well guys, I just don't think we can do that. FISA doesn't specifically allow it and so I'd be breaking the law and violating civil liberties. Make sure you get a FISA warrant for everything. If that comprimises your ability to save us from an attack... what can I say. Its the price we pay for the freedoms we hold so dear.

1. You argue FISA is a limiting statute. How can Congress limit the authority granted to the President by the Constitution?
   
2. If we're talking about eavesdropping on American citizens, how can either Congress or the President abrogate their 4th Amendment rights?

Interesting debate.  Reading through the comments, it seems like a number of points recurring.  In the hopes of stirring the pot and adding my two cents...

Did the president have authority?  Was it illegal?

Some interesting legal analysis so far, but I haven't really seen anyone mention the 4th amendment.  It's been awhile since I took Criminal Procedure, but I'm quite certain a warrantless search by the executive branch is a violation.  Particularly since FIFSA does not provide for these searches (although even if it did, this wouldn't trump the fourth amendment).

But doesn't the president have broad powers to fight al queda?

The president has broad political power, but his legal power is unchanged.  As the president has correctly noted, this isn't a war in the conventional sense.  I don't think any true conservative would want the President to have perpetual wartime powers.  If you disagree, consider that we may some day have a democratic president.  Would anyone have wanted Bill Clinton to have extra-legal authority?

Why should we care if this is legal or not, as long as the President is protecting the country?

As thinking conservatives, we should all have an interest in the rule of law and the text of the constitution.  While I applaud the President's intentions, I'm reluctant to give him carte blanche above and beyond his constitutional powers.  If this is truly the course we want, why not pursue a constitutional amendment?  Furthermore, if we agree the President is not bound by the laws or constitution, aren't most of our arguments moot?  Why should we care if the Patriot Act is passed, if the President can conduct any search he pleases regardless?  The reason we push so hard for the Patriot Act is because we care about the rule of law.  Justice Scalia would tear these searches apart...that should really give us all pause (just think about his position on the 6th Amendment - right to confront ones accuser)

Even if it were legal, should we seek this sort of authority?

In my view, this is where the issue gets tricky.  Right now, I'm stuck at maybe.  While I certainly want anyone w/ suspected ties to al queda searched  to the fullest extent possible, it's not clear to me what we gain by acting outside of FIFA.  Given that you can get a warrant AFTER a search (and it's incredibly easy to get a warrant), I'm not sure why this is necessary.  I guess I would prefer that the President channel his political capital on the War in Iraq and passage of the Patriot Act.

Anyway, obviously I care very deeply about this issue.  Curious to hear all of your thoughts...

against unreasonable searches and seizures

Fits within my definition of reasonable.

Given the gravity of the situation, I'd be disappointed if the President were not doing this spying.  I am glad we have a Prez with the guts to move quickly to prevent another terrorist disaster.

This story is actually a tribute to President Bush and nothing negative.

Amazing talent, isn't he?

Better yet...I was talking to Canadian Mo Norman about 15 years ago, the savant genius best ball striker Tiger, Trevino, Azinger, Faldo (many more)have ever seen.  He says to me in his sing-song voice, "I keep having the same nightmare, the same nightmares." He always repeated himself. "Flagsticks, its always flagsticks."  I said, "Why flagsticks, Mo?" He said, "When the ball hits the flagstick, I have no idea where its going to go, no idea where its going to go."

I could tell you many more.

Google him for some of the most incredible stories you've ever read.

So the government can surveil anybody they want at any time, let's assume for a moment illegally, but if it isn't happening to me personally I shouldn't care?

Next you'll tell me that ethnic profiling to jail Arab-looking 20-something men, although unconstitutional, I should be OK with it since I'm not the one in jail.  I didn't lose my freedom, so I wasn't harmed?

and simple.

2. Even if pursuant to a congressional act approving that war be waged against a particular nation or entity, neither congressmen nor judges identify the particular persons to be killed. That duty is the presidents alone and those killed are not afforded civil rights if mistakenly identified as the enemy not in uniform. Its war you see.

Spies, sabotours and other out of uniform illegal enemy combatents may be shot on sight under the law of war in order to deter mixing of combatents with the civilian population.

This happened in the US in WWII in a case involving 7 german saboteurs and one american collaborator. see In re Quirin

In the Civil War it happened every day. Lincoln won that war.

The constitution is not a suicide pact.

http://www.aijac.org.au/resources/aijac-media/tl_wfr_120305.htm

6. FDR said 'In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

Congress merely agrees, not authorizes!!!

BTW, he also slightly troubled the civil rights of over 100,000 japanese american citizens. And was not impeached. We won that war.

Yes, Bush did tell the congress and obviously they did not see the need to pass a law, did they now.

Maybe its too cold in siberia to grasp what war is or maybe its our collective ignorance 60 years after a real hot war for survival.

War is being waged against us and when we elect a president this very circumstance is the main reason for which we elect one.

So if you want to make sure UBL can talk to Mohammed on cingular elect feingold.

But if you want privacy violated for economic or revenge motives but not dare harming a janitor at a UBL camp, elect a clinton.

But the complete speculation of "where a leak from a law clerk could jeopopardize thousands of lives" doesn't really authorize the President to override the constitutional rights of every citizen does, it?

So as long as someone can come up with a "but we all could die!" the President can do whatever he wants? Is that all it takes--a good scary sentence?  Isn't that why we have courts--to see if the suspicion is reasonable?  Not to mention that we are talking about a court which approved 99.99997 percent of the requests it gets.

that every wiretap was for "Zarkawi and his pals'"?  You know this for a fact? None of them were ever "we think this guy might be connected"? None of them were "what about the guy they met last week"?  The thing that most of you seem to be missing is that you assume that everyone the government looks at is automatically one of the bad guys.  We don't know that; that's what investigations are for, and that's what courts are for. Government agents are not infallible, and there should be some burden of proof before they start spying on people!

by some Clinton speak.  Re-read his answer:

we have got information through this program that would not otherwise have been available

He didn't say they got anything useful. He didn't say they got anything actionable. All he said was "we got more not asking for permision than we would have with."

Well, no sh**.  If I seek a warrant on a mob boss restaurant and listen to him talk to his lieutenant, I will get information ABC. If I without a warrant listen to every phone call made by anyone who knows the mob boss, I will get information ABCDEFGH... Why? Cause I will hear all about his valet's sex life, and his customer's kid's history test and his wife's hair appointment, etc.  Listening in to more lines means more information. Duh. It doesn't mean it was helpful.

the 0.00003 that they reject. What nonsense. Get approval after the fact from a Court that approves 99.99997%.

You are begging to be picked apart.

Echelon and Clinton aside (that's called moving the goalposts OR ignoring the 500lb gorilla in the room... I'll let you choose which one you prefer)

, I read something here about pitting conservatives' record on individual rights versus corporate rights against liberals' record on that count. But now I think that was a misread. (It would help if you sourced what you have read or misread so we could determine your reading comprehension. If you havent noticed by now, waffling isn't a winning strategy here at Redstate (see Kerry 04' campaign))

You're saying that Democrats, by wanting to protect the civil liberties of every American citizen, (Democrats (Liberals) only want to protect the civil liberties of non-American citizens by giving them in-state tuition, welfare, education, medical treatment, housing, drivers licenses, voting privledges, legal representation (the list goes on). Democrats want to create civil liberties for certain groups which dont exist for others. As of late, American citizens have lost a portion of their free speech rights, property rights, gun rights, right to life and probably a few more i'm not versed in. While they are not completely to blame, they certainly aren't doing a bang-up job of protecting all civil liberties, while harping about others which are in no danger at all.)

also want to leave them vulnerable to a terrorist attack; (I personally think the opposite of defending this country equates to that)

and that concurrently, Democrats are the party of big business. (I would venture that you are the first person to actually say that. Leon put quotes on his "big business" and thus as this relates to Clinton probably means 'funny business' or 'government business for sale to the highest bidder please deposit money into my campaign account or my presidential library fund')

Neither assertion rings true to me.  The right is the side of protection of business at the cost of the individual. This position is usually an assertion taken by someone who believes that corporations are intrinsically evil! DemocraticUnderground.com is calling. This also means that further explaination is a big waste of time.

And protection of our civil liberties is not mutually exclusive of the public safety. I'll congratulate you on creating a warm and fuzzy statement which floats amid the flotsom and jetsom of intellectual superiority. While it's visually interesting, most of us are interested to know where the sharks are swimming.

Didn't understand that post. Are you saying that they shouldn't have to get approval from a court?

Kerry did call those 'various European leaders' who told him they wanted him to win the Presidency. International calls to Chirac and Schroeder! Maybe even to the Pope to ask forgiveness!

There are laws regarding wiretapping - there is no Constitutional prohibition on the matter. Here is the text of the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I am certain that wiretaps are not covered here as there were no phones when this was written.

There are laws regarding wiretaps. There are Supreme Court interpretations of the Constitution that recognize a right to privacy - but you certainly will not find that the Constitution prohibits wiretapping. If you want it to say that - get it amended. In fact, I would argue that the Constitution wasn't meant to be "interpreted" - it was meant to say exactly what it says. The Constitution may be amended to change with changing times - to say exactly something else. A document that means something different 100 years from now than it means today or 100 years ago does nothing to protect my rights.

The phone line that leaves your house - or the radio waves that carry your cellular signal are not your property, nor your effects. They can be intercepted as easily as your voice can.

Here's my example. A (stupid) terroist has a conversation about terrorism on a cell phone in a public place. A NSA employee overhears this conversation and reports it; at the same time, the NSA overhears this conversation electronically by intercepting the signal. Am I to understand that the sound waves are fair game, but the radio waves are not?

This is a thorny issue - not covered by the Constitution. Would the founders have included wiretapping if the Constitution had been written today? I don't know - nobody knows. This is why inferring things from the Constitution is a bad idea.

No one inferred that women had the right to vote - the Constitution was changed to say that explicitly in the 19th Amendment. If you want a Constitutional right to privacy - then please work to amend the Constitution to say what you want it to say. Please do not keep reading the document until it means what you want it to mean.

"The constitution is not a death contract" (or some semplance of the above)

I too am supportive of the goal but concerned about the practice.  

In light of the patriot act stall in Congress, I'm not sure how easy it'd be to get FISA changes passed.  Was it ever suggested?

why bother to ask? However, if they ask for a warrant to tap you, you better hope it's in the 0.00003 that get rejected. Not much chance there, huh?

What you have here is in effect is a free pot shot.

Any investigation into this matter will be kept secret unless there are elements that are bad for the Bush Adm in which it will be leaked (of course!).

told us that their problem with the Iraq War was that Iraq had no tie to 911 when actually the left's problem was that

an abortion umpire, ie judge must specifically approve each killing, capture or wire tap beforehand or within 72 hours afterward

or

that a USA that elected and re-elected Bush is not worth defending in any event and so the constitution is a suicide pact if a judge cant make all decisions.

Its amazing how they are now continuing to kill themselves even as against al qaida!! Who I think was involved in 911. Or is this the next bushlied. Was it actually Pinochet and the Shah!!!

nice posts today, as usual un-troll-like Troll (NMN) (NLN)

It doesnt. And in fact, the justice dept can initiate a wire tap, etc and not get fisa approval  for up to 72 hours.

The Fisa court basically red stamps virtually every request that comes to it.

If the president can show that he had to circumvent fisa as a result of national security, more power to him.

I just cant see the need to circumvent a rather easy process.

I dont believe there should be public hearings, as they may endanger national security. But private hearings should be held.

 

During the Cold War the Soviets were not held at bay from attacking us by intelligence and military operations and/or arrests. But by half a million  men in Europe armed to the teeth and strategic nuclear weapons on ballistic missile submarines, missile silos, and Strategic Bomber Command.

Certain levels of spying were likely tolerated actively on the theory that it gave the Soviets confidence that they "knew" we were not going to launch a suprise attack and therefore it was in their interest to beat us to the punch.

The risk for Soviet penetration of our secrets was therefore low; technology and methods of operations would be compromised but the people the Soviets had were pretty well known and limited.

The risk for Al Qaeda is quite high and the people that they have are NOT well known and very numerous. Unless you want the USA to be Muslim free and start massive detention/deportation pogroms ONLY through selective wiretapping will we discover dangerous plots.

NY Post reported yesterday that the Feds and NYC locals held planning exercises for what to do if Al Qaeda set off a nuke the size of Hiroshima. 1.6 million dead was the projected toll.

If Bush is wrong, a few people who have no connection to terrorism will have private conversations listened to by Government agents. If you are wrong there's 1.6 million NY's dead.

Gee I know where MY risk profile is.

You might want to rethink your post. Back in 1995-96 it was the Democrats trying to get the Comprehensive Anti-Terrorism Act through Congress and it was the Republicans watering it down.

But don't take my word for it...look it up.

You're right on the mark, Josh. Back when Clinton was president the GOP struck down increased wiretap privileges for the very same reasons the Democrats are crying foul today. Police states are good only until the bad guys get control. Let's face it, the liberals will be back in charge one day.

Byron York at NRO has a detailed description of the process required to get before a FISA judge. While the process of approval is speedy, BY FISA STATUTE the process to get before the judge is NOT.

Among the showstoppers (about 2 weeks is the fastest turn-around time based on true heroic 20 hour days):

1. Detailed and certified, heavily lawyered statements by the National Security Advisor that the intelligence sought is foreign intelligence, can be gotten no other way through normal investigative techniques, and is required by foreign intelligence needs.
   
2. Same as above, only this time detailed statements limiting only certain people, places and facilities i.e. phones, computers etc to be surveilled. People, places, and means/facilities not explicity listed will require a separate application. So if Joe Jihadi walks into an internet cafe and IM's bin Laden, you can wiretap. But you have to prepare extensive documentation as outlined in the FISA requirements within 72 hours.
   
3. Extensive "minimization" plans for each person, place, and facility listed, including destruction of data and so forth after investigations are complete.

Without true 20 hour, spend weeks living in the office heroics you're talking about 2 months or so just for that part. Not counting the AG's requirement to also certify and thus heavily staff-lawyer the thing up the wazoo.

Bottlenecks are the National Security Advisor and AG. Their staffs are limited, and you can't just call up a law firm and have them send lawyers over. The spots are for a very narrow expertise with national security clearances at the highest level. There's probably only 20-40 lawyers in the US capable of doing the job.

Multiply this process by say, a hundred phone numbers in Khalid Sheik Mohammed's cell phone, or various other top Al Qaeda guys caught with lots of interesting phone numbers. You have no way of knowing who's a cousin with ties to maybe logistics for a nuclear bomb attack on LA; and who's a cousin who's just a cousin.

What you are saying is that a process designed to limit government wiretaps by drowning the warrant application in paperwork, which does it's job very well, is more important that stopping the next 9/11.

OK. Try that one with the American people. Tell them you're OK with another skyscraper filled with people falling down because you want a process enshrined as more important than lives.

That even the New York Times admits that the people under surveilance all happen to have been found on the contacts list of Al Qaeda assets, i.e. KSM's laptop, palm pilot, etc.

It's about 2 months work for anything less than a massive mobilization of staff.

See Byron York's NRO article detailing the effort needed to apply for a warrant; or my comments above.

Basically, you're not getting the stuff you need to get the warrant approved BY FISA LAW ITSELF (if you read the requirements section for a warrant) unless you have a 2 inch thick binder filled with paperwork.

Do you want process or intel that saves lives?

Decide.

And I think it is actually far more Clintonian for you to stretch it to the extent that his non-use of the words "useful" or "actionable" or any other words to that effect means that they did get nothing useful.

we can argue this all day but the supreme court is really the only one who can answer this question.i personally think he may have, but with good intentions.i think this needs to fast track to the supreme court to get a definitive answer.

we have used this program in lieu of that and this program has been successful.

This clearly indicates that the additional information was useful -- access to useless data doesn't qualify as "success".

at all.

Just pointing out the obvious.

1. No rights have been infringed.
   
2. The office of the Attorney General and the White House Counsel and the General Counsel of the NSA agree with me. Which agencies agree with you?

taking this seriously.

If we are at war or at least so close to war as to be indistinguishable from war, and the President is required by Congress to take all necessary actions to prosecute that war, as commander-in-chief, a clear Article II function, the president would in my judgment - and need I say his - have the authority to use a defense asset to intercept communications.

The extent to which FISA impinges on that it is unconstitutional.

To my knowledge no one has ever challenged FISA as unconstitutional from the standpoint that it erodes inherent executive authority. I'd like to see it because from what we know right now it seems like it does.

How do you know the KGB couldn't figure out what FISA was doing? I suspect you don't know that.

And the point isn't how sophisticated al Qaeda is. The point is that warrants aren't required in this case ergo there are no need for warrants. If congress disagrees they can pass a law or start impeachment procedures. Personally, I'd like to see the latter and watch the Democrats try to explain it.

You ask "Is it really that unreasonable to monitor the incoming and outgoing international calls of al Quaeda terrorists for the purpose of preventing additional catasrophic attacks?"

Of course not.  The problem is it seems to me that is not the question.  The question is whether the government has to show any kind of probable cause (or anything at all to anybody) before it labels an American citizen an "al Quaeda terrorist"  or any kind of proof that the its purpose for the monitoring is "preventing additional catastrophic attacks"?  

If there is no kind of check on the government's claim that the Americans it is monitoring are truly terrorists what is to stop the government from monitoring anyone it chooses for any reason it chooses?

I am not so afraid of dying that I am willing to support unchecked government power.  

Leon,

I am probably guilty of misreading your post. That said, it seems to me that you are arguing that FISA requires a 72-hour wait before authorization.

That is simply false. FISA explicitly ALLOWS immediate authorization. You have to then retroactively go and get approval after the fact within 72 hours.

In the history of FISA, something like only four or five cases have ever been rejected, ie 99.9% of the time.

I think you need to edit your post to reflect this.

in your reaction to this:

http://hughhewitt.com/archives/2005/12/18-week/index.php#a000820

I appreciate that, but I'm not personally making any claims here about FISA. I am simply condensing General Hayden's remarks from the 12/19 gaggle.

Others here and abroad have argued that the JD redtape makes the FISA 72 hours not-so-easy. I claims ignornance on that, so I'll I have stand on the side lines as u argue that point with them.

More to the point for you in this context.

Gen. Hayden: Mr. President, we've got intel. that requires us to monitor non-domestic communications to sites inside the US. It may help us prevent another attack. If we have to obtain warrants thgough FISA we might miss some really critical information, uhh, you know, that might help us save lives, like 9/11.

President X: No General, I want you to go through FISA because it is easy and there is no way it is going to cause you to miss anything that could lead to uhh... that.

The remedy for a 4th Amendment violation is what? The exclusion of the evidence from a criminal trial or administrative proceeding.

The violation of the provisions of FISA does carry with it a criminal provision but, in order to establish a criminal violation, you must establish criminal intent. If the President sought the advice of the Attorney General, and then briefed Congress, it would be all but impossible to establish criminal intent.

The only way this could fly off the rails, is if political enemies, like Michael Moore have been the subjects of the interceptions. If that has happened, he is SOL. If the President is being truthful, however, there has been no actionable violation of the law.

... that the people under surveillance are those people whose contact information was found on captured Al Qaeda members and other such folks? i.e. a US number on Khalid Sheikh Mohammed's laptop address book.

Any other people those people call also get to have their international calls monitored until it can be established that the person poses a threat or is harmless.

Second, I find it interesting that nobody has actually made note of the fact that the New York Times report on this issue states that not only were the Congressional leaders and Intelligence Committee leaders notified, so was the Chief Judge of the FISA courts. They were given reports on the program's findings at least a dozen times.

Is that not oversight?

" Secondly, there are such things as roving wiretaps. 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. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

But a roving wiretap means -- it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he'd do? He'd get him another phone, particularly with the advent of the cell phones. And so he'd start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on -- roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see? And that didn't make any sense in the post-9/11 era. If we couldn't use a tool that we're using against mobsters on terrorists, something needed to happen.

The Patriot Act changed that. So with court order, law enforcement officials can now use what's called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies."

- Whitehouse.gov press release

So we have Bush in 2004 saying that any time the government surveils an American, they have to get a court order.  We have AGAG and Bush saying in 2005 that they need no such court order, and in fact are authorized to surveil Americans without a court order, and admit to having done so since before 2004.

doesn't have much to do with the conversation.

Show some evidence that drug lords are covered by FISA. Fast.

part has nothing to do with the conversation other than Bush uses it as some sort of background to the methods they're using (roving wiretaps) to combat terrorism.  Forget the drug lords.  I regret not having selectively edited that part out of my chosen quote.

Read the whole last third of the initial speech, beginning with his first reference to the Patriot Act.  The most relevant sentence might be this one:

"...[Any] time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order."

The administration's recent statements flatly contradict this assertion.  It doesn't require a court order, apparently, because they don't believe they are required to get one.

We're not forgetting it.

You quoted it, you better defend it.

You selective editing would have gotten you dropkicked without further comment as it would have changed the entire context of the quote. Your failure to demonstrate drug lords are covered by FISA is probably going to have the same effect.

You want me to explain why Bush used this particular analogy in explaining the relationship between the Patriot Act, wiretaps, and the requirement for court-issued warrants?  It's used in the quote merely to explain what a roving wiretap is.

His statement doesn't reference FISA at all.  Neither did my post, or my last response; FISA is not the only piece of the puzzle when we talk about the government spying on our citizenry.  

I don't think this relates to FISA except in the intrinsic relationship that exists on account of FISA allows for warrants for the sort of roving wiretaps that Bush, in the 2004 statement, was assuring us require court issued warrants.

You post a large section of text.

The text has nothing at all to do with the subject because we're not talking about either roving wiretaps, or the Patriot Act, or drug lords.

Now you admit all the above.

But you still say it shows some kind of duplicity because Bush said that on subject A, but one subject B, which is completely different, he didn't provide the same answer as on subject A.

And to show what kind of swell guy you are you even offered to edit the president's statement to delete the references to what he was talking about.

Now I ask, is there any reason why this isn't just trolling? And I answer: No. There isn't because it is. You have your first, last, and only warning because this level of casual dishonesty is disturbing.

that's it for me, I'll have to say:

So long and thanks for all the fish.

What would the defenders of Bush's wiretapping methods say if the same methods had been instituted and used by Bill Clinton or Lyndon Johnson?  Would these defenders suspect that Clinton or Johnson might use these powers for purposes others than those stated on record?  (Perhaps to monitor political enemies or such?)  This is not a hypothetical question.  All powers conceded to Bush will be available to the next Democratic president of the U.S., and there will be one.  

You got fish?

I still honestly do not see how, as you say, I went so far off-topic.  I understand this thread to be about the law as related to electronic surveilance, and wiretaps are a method of electronic surveilance.  

The statement from 2004 is about the methods and laws in effect post-9/11, and how they still provide the protection of court-issued warrants when it comes to the government doing electronic surveilance.

The press release I quoted gets play on the internet because of the recent debate over domestic surveilance.  I read it, and it seems to me to be relevant.  I post here to see if people agree that it contradicts the administration's recent statements; or if they think it's consistent.  Or, if it's off topic, please don't just angrily tell me that it is; why is it unrelated?

fish because they don't need them where we send them.

further up the thread, unless someone is monitoring Michael Moore's communications, there is no actionable violation of either statutory or Constitutional law. The best analysis I have seen on this issue so far is posted here:

http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722

I got there via www.Realclearpolitics.com

A very useful resource.  

if I had simply quoted this part:

"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."

That's the part that gets me, and which I believe is directly relevant to the discussion about electronic surveilance going on today.  But I wanted to get to that part where he says "[so] with court order, law enforcement officials can now use..." and so quoted much more of the statement.

Would you have reacted differently?

If you like, I can suggest where to send that sort of thing:

http://www.google.com/search?hl=en&q=food+donation&btnG=Google+Sear
ch

if I have to point out to you the difference between wiretapping drug lords -- a criminal investigation -- and intercepting the communications of al Qaeda members during time of war you really don't need to be posting here. Really. Truly.

As a further example of its inappropriateness, all of the surveillance under discussion are only international, not domestic:

"The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the - one party to the communication is outside the United States.  And this is a very important point - people are running around saying that the United States is somehow spying on American citizens calling their neighbors.  Very, very important to understand that one party to the communication has to be outside the United States."  (The White House, Press Briefing, 12/19/05)

So read the quote again and ask you if it is about intercepting the international communications of persons with al Qaeda connections.

they accept troll carcasses.

about the party who is in the United States?  Even if they are a person with connections to Al Qaeda, if they are a citizen of this country (and I acknowledge this is a point of contention) are they or are they not provided with protection under the law?

to an unspecified place where I "don't need them."

discussing sending you to an unspecified place where you don't need fish.

The McCain amendment prohibiting torture would clearly apply here.  Any NSA staffer told to listen to Moore's phones would immediately be eligible for relief under that amendment and could request alternative duty.

/snark

the argument is about the interception of international communications. No one has alleged there has ever been a domestic interception by the NSA. Read the quote again.

If you want to argue your bloggyhorse subject, start your own blog.

the reference to me dead, I found that very civil.  If you're going to call me a troll and talk about posting guidelines, you could at least keep to yourself your fantasies about my dead carcass.

this is the season for sharing.

Good job keeping the conversation from turning personal.  Did I just happen to push your buttons, or are you always such a wonderful person to talk to?

Bye.

charming and witty.

to be an unusually high concentration of trolls on site today?

see if hamilton and co are hyperbole

http://www.nysun.com/article/24610?page_no=1

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR200512190
1027.html

http://www.latimes.com/news/opinion/commentary/la-oe-yoo20dec20,0,4832707.s
tory?coll=la-news-comment-opinions

http://www.nationalreview.com/york/york200512200946.asp

http://www.nationalreview.com/buckley/wfb200512201139.asp

http://realclearpolitics.com/Commentary/com-12_20_05_JKE.html

Sometimes it is necessary to do something, and given a number of solutions only a few might be appropriate. But I think you are right, appropriate is hard to define.

I'd guess it was added in so they could argue about it  - politically. It's a darn shame it isn't even vaguely defined in the resolution, but maybe that is the point - I don't really know.

I'm sure you could come up with some better examples than I, but I'll give it a shot:

In a war quick victory is often seen as necessary. Given a smaller force hiding amongst civilians, one might find certain weapons would make victory quicker and more sure - nukes, napalm, 10 ton bombs, chemicals and biologicals, etc. However, we deem some of those inappropriate in many circumstances such as this.

What ever the reason is for including it in the resolution, it seems to be bantered about quite a bit by Congress and others.

Thanks for the feedback!

Rep. Christopher Smith (R-NJ):

    The resolution is not a blank check. We do this with our eyes open and in fervent prayer, especially the prayer that President Bush and his national security team will be lavished with wisdom from God above to use only that force which is truly necessary and only that force which is truly appropriate.

             [Congressional Record, 9/14/01]

It's also unreasonable to think that every contact a terrorist has is necessarily with another terrorist. These people don't operate in a vacuum.

There must be occasions when they have contact with people outside of their organization. I'm sure even terrorists have relatives and acquaintances that are not party to their activities.

That because leads have to be followed in order to expand our knowledge of their activities, and because this may lead us down some blind alleys, we should hang up the phone and call it a day?

"Sorry, I'd like to have followed up on Ahmad's call to that deep-cover operative, but since he wasn't on our list, we had to protect your civil liberties by going home just in case it turned out he was innocent of any substantial involvement.  Who knew? I hope you don't mind. Anyway, please allow me to express our condolences for your terrible loss."

If a mob boss dies and 500 people go to his funeral some of them will not be mobsters. But you can bet that the cops and the FBI are going to look into all of the one's they don't have on the list already. Oh, and by the way, they are not necessarily going to get warrants for every person they take a look at.

I haven't really seen anyone mention the 4th amendment.

I think you'll find that the Fourth has been 'beat to death' here on Redstate in innumerable stories and diaries so far.

It's been awhile since I took Criminal Procedure, but I'm quite certain a warrantless search by the executive branch is a violation

I'm not a Constitutional scholar or even a lawyer, but evidence gathered without a warrant is certainly inadmissible at trial. But it isn't clear to me that if you have no intent of going to trial that it actually applies. If there is no risk of trial then the provisions of Amendment Four would seem to hinge on protecting privacy for the sake of privacy. But since there is no 'right of privacy'  enumerated in the Constitution, one would have to accept that the modern judicial 'discovery' of this right was what the Founders intended.

The Founders were coming out of a revolution to get rid of a King whose governors and military heads regularly engaged in arbitrary arrest and trial and regularly disregarded the rights of ordinary Englishmen in the colonies. So it seems to me that much of their thinking was 'colored' by their experiences pre-Revolution and that they wanted to guard against such arbitrary arrest and trial in the new government.

Why should we care if this is legal or not, as long as the President is protecting the country?

Others here have made an argument that the President is acting in accordance with this Article II obligations and since the Constitution trumps statute ...

Just one man's opinion ...

--------------

...your a fool, and you haven't done your homework or else you'd know the facts: the surveillance is limited to calls placed from known terrorists abroad to inside the US and calls going out from or to terrorists.

Are you on any terrorist's cell phone directory or computer e-mail list?  I didn't think so.  Then guess what?  YOU HAVE NOTHING TO WORRY ABOUT!

The time it takes you to drive your beloved rugrats to practice - that's how small is the window of time that NSA agents have to uncover or act on information that could lead to protecting us from another attack. When they catch a terrorist with his computer or cell phone with a phone directory, the authorities don't have the 4 1/2 days it takes the FISA court to grant the warrant.  The NY Times or Washington Post will leak the story before we can mine the names, and either apprehend the terrorists or prevent the plots.  

It's exactly your kind of thinking that led Jamie Gorelick (Assistant Attorney General under Bill Clinton) to build the wall between the FBI and the CIA and the Justice Dept.  That wall prevented FBI and Justice officials from downloading the info off of Mousaoui's (the 20th 9/11 hijacker)hardrive/laptop -  information that would have revealed the 9/11 plot.  

The President has the authority under the 4th Ammendment, the 9/11 War Powers act, augmented by Supreme Court precedent dating back to 1972. If you don't like my question, then let me ask you this.  Right now the people that are opposing the President on this are Harry Reid, Barbara Boxer, Richard Durbin, Russ Feingold, Jack Reed, Pat Leahy, the ACLU, and the New York Times and Newsweek.  Who do you trust more to protect you and your children, President Bush and the NSA or these feckless idiots?

 

"are you seriously making the argument that Congress can statutorily limit the enumerated Article II role of the president. That is ridiculous on its face"

I agree.

FISA may be an extension of powers during times of peace, but it cannot limit Article II during a time of war.

However, if that war state extends indefinitely, we do have a problem.

Allege away!

slowly. Move your lips if you have to.

If we can't do surveillance without proof, and in cases where we can't get proof without doing surveillance, then what?

This could be more easily addressed in terms of policy by issuing a narrowly-defined warrant (or its functional equivalent, given that there is some question regarding whether FISA has jurisdiction over the CINC's conduct of war) that limits the way such data can be used, just like any other evidence-gathering done under a court-issued warrant.

This could address the civil-protections concerns without fettering the intelligence agencies' ability to do their work.

Granted, there is still potential for abuse: it might be possible for NSA to stumble on someone's conversation about insider trading or drug use or whatever, and then launder the information (for example, by tipping off other agencies to suggest that they begin a 'clean' investigation of that person).

Leon,

I think you have an interpretation problem here.  

First, your construction of the word "force" goes beyond the plain meaning of the term in the statute, and is not supported by the legislative history of the AUMF.

Second, you totally misrepresent the context of Hamdi v Rumsfeld.  You say this: "SCOTUS has already construed that authorization of force very broadly, to the point that they read it to imply powers not explicitly contained in the authorization even when such a construction directly violated another Federal Statute, 18 U.S.C. 4001(a). (See Hamdi v. Rumsfeld, 542 U.S. 507). If the SCOTUS authorized the detention of a United States Citizen in direct contravention to the provisions of 18 U.S.C. 4001,"

First, SCOTUS restricted their holding quite a bit, saying that the detention was incident to the waging of war and was only okay because of the ongoing hostilities.  Second, SCOTUS plainly said that the detention was authorized by statute (i.e. not in contravention of statute, as you claim) because AUMF is a statute.

Here's the relevant part of the opinion for you:

"[W]e conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress" (assuming, without deciding, that §4001(a) applies to military detentions)."

who is mistaken?

Maybe not.