leejo

Help me understand how your post rises above these things with which you have a problem. I don't see how you contribute to the debate, and to me your post reads like a self-righteous little bit of character assasination.

When one's only ambition is to get you steaming at the ears? Whose only amibition? That's not mine and I don't remember you asking me, for example, what my ambitions were. Did you ask anyone else to clarify their remarks before you deemed them "insane", "childish" or "degrading"? Did you have another point to make other than calling those people names?

And who decides which analogies are sane and which are not? You? Should I just PM you with my thoughts to see if they meet with your approval from now on? Or maybe we should let each person make their points without the need for Bommando's approval or fear of waking up one morning to see that you've attempted to humiliate them publicly without having once asked them a question or bothered to confirm your own assumptions about their remarks or positions.

Maybe next time you could cite some specific examples of analogies you find "insane" and clarify *why* you find them insane so that the person has the opportunity to correct your misunderstanding or their misstatements before you trash them in a forum? Just a suggestion, if you are truly more interested in improving the debate and not simply puffing yourself up and others' expense.

No, I think after 12 pages of debate on this topic things have managed to remain interesting and congenial without the need for some martinet to bully his way into the middle of things and straighten us out.

If you have a point to make that contributes to the debate, I'd love to see it. If the only thing you have to offer is thinly-veiled personal attacks, well I can live without that and have some suggestions about what you might do with your opinions.

If you intended to come across as more respectful and less condescending of me in particular and to the people posting in this thread in general, then I apoligize.

leejo

Diceman, first of all I'd like to say how much you've impressed me. Most people simply start calling me names or slinging neg rep in my direction when I push back on their ideas and assumptions. With you, the discussion has stayed right on track and cordial. Amazing.

The section of the opinion I quoted discussed the limits of the opinion's scope, and I thought it relevant to call attention to the fact that the justices themselves made no claim about the limits, if any, on Presidential authority to conduct foreign surveilance. I understood your previous reference to this case as meaning that it somehow represented case law associated with electronic surveilance used in collecting intelligence on foreign agents, when this opinion specifically states that such efforts are out of scope. So I did actually think the quote dismissed an assertion you had made earlier, that the Court's decision in UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972) in any way serves as guide for what limits may exist on Presidential authority to conduct surveillance on foreign powers or their agents.

I take it for granted that we all agree that there must be one standard for domestic intelligence gathering targeting citizens who are involved in domestic activities, and another standard when targeting foreign agents or spies seeking to overthrow our government and kill our fellow citizens. I see no need to extend the bill of rights protections to someone who'd like to do away with the bill of rights and is not a citizen.

What I found especially interesting and relevant in the opinion was the references to the president's authority to conduct warrantless surveilance on foreign powers or their agents. I should have quoted them but left it to each reader to draw their own conclusions from the opinion without my force-feeding the points *I* found interesting or relevant, since there are also some quotes in the opinion that, taken out of context, might seem to support the position that the President's recent NSA executive order is illegal.

Anyway, here is another quote that I hope amplifies my point:

Here we see members of Congress not just stating that they have no intention of defining, granting, or limiting Presidential power with regard to national security, but also stating that they do not have the power to grant or revoke that authority.

CingularDuality

The Court specifically did NOT find anything that related to limiting the President's authority to conduct national security investigations on foreign agents!

Jeebus, Leejo already quoted it for you!
I urge everyone to read this page WITHOUT skipping paragraphs: http://www.eff.org/Censorship/Terror.../fisa_faq.html

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Beatnik

<ducks back into the thread>

Just to clarify, I've done no name calling or neg. rep dealing. In fact I've given positive rep to both participants arguing the opposing points, as well as to others who's points I've agreed with.

I agree with most of that, but the fact that there is no apparent distinction between domestic activities and foreign agents or spies is the central point of this entire "debate".

Speaking to your point though...that standard is called a warrant.

<ducks back out>

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leejo

The distinction between domestic activities and foreign agents or spies is that the former are tried in US courts who have jurisdiction, which courts have already held that they require warrants to admit evidence collected using wiretaps when the wiretap targeted a domestic group's activities.

So if the government attempts to prosecute a citizen, then it will be up to the government to satisfy the court that all information was gathered in a manner consistent with law and precedent. That's my point. You can't just enter something into evidence in a court without someone challenging it.

Diceman

I think I hear what you are saying and I also think we are getting closer to the root of our misunderstanding. I'll paraphrase you, in an effort to make clear my understanding of your position. I believe your position to be that the case is question is limited to domestic surveillance matters, and as such, it has no bearing on the surveillance of foreign agents, which is what the current administration has been up to. Is this accurate?

In my recap, I made two statements. The first, which has caused the contention, was intended to show only that the government must get a warrant to surveil US citizens, whether they are perceived as national security threats or not. I think this is substantiated by the quotes previously provided. The second statement addresses the legal aspects and restrictions of surveillance of foreign targets.

Please allow me to rephrase, for clarification, my previous two statements. It is my position that any surveillance conducted by US authorities is either domestic in nature, involving and limited to organizations that are not foreign powers or US persons who are not agents of a foreign power, or foreign in nature, involving any foreign power or any individual who is an agent of a foreign power, regardless of the citizenship held by the individual(s) in question. Furthermore:

1. Warrants are needed to conduct domestic surveillance, regardless if the target is a threat to national security.
2. Warrants are needed to conduct foreign surveillance, regardless if the target is a threat to national security.

Agreed, with a qualification. My comment is that we want to be careful in attributing motive to the "agent(s) of a foreign power". After all, FISA governs generally those surveillances conducted as counter-intelligence, specifically foreign in nature. But "counter-intelligence" is a wide net to cast, and the plurality of targets that could be spied upon under its auspicies likely have many motives. I would further imagine that not every possible target even wishes to cause the general idea of "harm to America" (with instantiations of that harm being to kill people, destroy property, subjugate order, etc). When we attribute a motive, particularly a vicious motive, to those that we only need more information on regarding their activities, then we colour our own reality. As those who seek better solutions and a just society, we are beholden to the activity of removing our own blinders. This is accomplished, in part, by waiting to judge motive until we have a specific situation and players at hand. We do not know the specific situation. We do not know the players.

But you must see that this doesn't have any weight whatsoever due the court's self-stated scope of opinion. They are clear that they are not talking about Presidential powers to spy as it relates to foreign powers and agents. When we bear in mind that the Bush administration has represented their wiretaps as being solely executed on agents of foreign powers (i.e. terrorists), then it is plain that this opinion has no direct bearing on the current action. If the case were otherwise, I suspect that we would have heard about this case from many other sources besides the EFF. The only purpose this case can serve, as I see it within the context of this discussion, is to underscore the importance of warrants when the government wants to conduct surveillance on domestic targets.

All this talk about what is permissable in relation to domestic and foreign targets is important, because the Bush Administration has maintained that they were going after terrorists with their wiretaps. But if they were going after terrorists, then the legalalities of the wiretaps are obviously covered by FISA. FISA demands a warrant, and FISA is just about as close as one could want to a "rubber stamp of judicial approval"; Not only can it be applied for up to 72 hours retroactively, but I believe 4 applications out of 15,000+ applications were denied. Frankly, I do not believe that Bush and the Attorney General could not have gotten their wiretap applications approved, given only one condition: that the wiretaps are what the Administration represents them to the public as being.

As you know, FISA was established in the aftermath of Watergate. It has been argued that FISA was only a knee-jerk reaction to Watergate, but this downplays the constitutional repercussions of other law enforcement shenanigans that occured over the previous few decades. Examples, including COINTELPRO, are listed in Cing's much vaunted FAQ. But that is was established in the aftermath of Watergate is important, because it underscores that it is legislation which is designed explicitly to prevent the totalitarian tendancies of the Nixon regime; specifically via the government spying on honest, law-abiding, but dissenting members of the citizenry, against both the spirit and the letter of the constitution. I think it only stands to reason that this is the primary contravention that the FISA judges look for in an application.

But FISA exists as Congressionally enacted federal law. And, as we all know, FISA does spell out what can and can't be done, which could be seen as granting or revoking authority, depending on your perspective. Furthermore, lower courts have found FISA to be constitutional. Thus it does not exist in contradiction to the constitution which provides for Presidential authority. Bear in mind that these are lower courts only; I'm not aware of SCOTUS having reviewed the constitutionality of FISA. See the following cases for details:

• United States v. Duggan, 743 F.2d 59(2d Cir. 1984)
• United States v. Belfield, 692 F.2d 141 (D.C.Cir 1982)
• United States v. Nicholson, 955 F.Supp. 588 (E.D. Va. 1997)

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leejo

Another good post. +rep for Diceman everyone. doitdoitdoit.

Yes.

Wrong. Warrants are needed to conduct suveillance that *targets* domestic groups or individuals. Suppose we finally get UBL on a cell phone and listen in. when suddenly he calls Gary Coleman or Mr. Coleman calls him. The NSA doesn't have to hang up because Coleman wasn't the target and the Executive needs no permission to listen to UBL's phone calls. They don't need permission to listen to a mid-level terror operative in Hamburg, either, and if that person happens to get chatty with Mr. Coleman, tough luck for Gary.

You've lost me. You cite this United States v. U.S. District Court case as one that supports your position that the President's actions were improper or illegal, and then when I point out that the opinion goes out of its way to stay away from the President's authority to conduct surveillance on foreign powers and agents, you say it's an irrelevant case? That was my point exactly!

FYI this case is discussed in *many* other places besides EFF. It's AKA the "Keith case"

Maybe. But that's not the only reason why the administration would decline to seek a warrant. Bush took office having run on a platform of restoring dignity to the Office. His administration has also taken opportunities to assert its primacy where possible and appropriate in an effort to restore some powers of the office that had been eroded during previous administrations. Their legal arguments are now available to all (http://news.findlaw.com/hdocs/docs/n...nsa11906wp.pdf) but I think the unspoken goal here is to challenge and roll back an unconstitutional law, FISA, in which Congress inserted requirements where they had no authority and accept no responsibility.

Sure, so did the ADA, and the courts have been rolling back the protections that law extends. Just because Congress passes a law and Jimmy Carter signs it (but goes out of his way to say it neither limits nor defines President's authority to conduct surveillance?!) doesn't mean it's a constitutional law that will survive serious challenge.

No, lower courts have rejected 4th amendment challenges to FISA. In their opinions, several have gone out of their way to assert the President's primacy with regard to national security. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."

As if that weren't enough, we are legally in a state of war. For constitutional purposes, the joint resolution passed with a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.

Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.

So I think the President is on excellent legal footing here. In order to show that his administration has behaved in an unconstitutional manner with regard to these NSA activities, one must show that FISA is a constitutional restriction on Presidential authority to conduct surveillance that targets foreign powers or agents. If you are successful in that effort, you must show that the section 1811 proviso does not apply.

I think the distinction is that the NSA needs no warrant to listen to overseas Al Quada members' phone calls, even if they happen to speak with a US Citizen in the USA. However, if the target of the surveillance is a domestic muslim group with ties to al Quada, then one would need a warrant. See the difference?

Zebra

Why do you think the rights under the fourth amendment cease to exist when we're talking about something other than a criminal prosecution? It's not written like the fifth and sixth amendments, which clearly refer to criminal cases. If the founders had been referring only to criminal cases, wouldn't they have made that clear?

I think the assumption of some sort of wartime exception is dubious too. The power to curtail certain rights for reasons of war, invasion, rebellion, or public safety is explicitly written into the third and fifth amendments and Article 1, Section 9. None of them refer to the rights under the fourth amendment, and the amendment itself contains no similar exception.

If they intended the government (specifically, the executive branch, in the absence of any statutory authority from the legislative branch) to have this power, why didn't they write it into the Constitution? It would've taken nothing more than a four or five word addition to one sentence in one amendment. And if the president has blanket authority to assume certain powers and nullify certain rights in times of war, then why not others? Can the first and second amendments be waived? Can he grant himself the power to tax and spend? Can the executive branch become the judge and jury in criminal cases? Perhaps elections can be halted.

CingularDuality

Because the Constitution gives him the authority?

Don't get me started on the constant infringement of your right to bear arms...

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Steeler

Wait, so if the President decided that we need to keep firearms out of the hands of terrorist cells in the US, he could order guns confiscated from anyone he wanted without warrant or judicial review?

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Zebra

Where? All I see is an amendment to the Constitution that specifically says he (on his own, without a warrant issued by a judge) doesn't have this authority.

The infringement to date is mild compared to what an unrestrained executive could do if he has vast, unenumerated war powers, as some claim. He could just issue an executive order saying private gun ownership is a threat to our national security and directing the armed forced to confiscate all firearms. Hey, we're at war. You're not against the commander in chief protecting the American people, are you?

leejo

It's not a matter of being for the commander in chief protecting the American people or not, it's a matter of *reading* and interpreting the Constitution by looking at how past courts have ruled in similar situations.

There is ample discussion in the Constitution to address the dramatic hypothetical situations you pose. I'd suggest looking at the 2nd, 4th, 5th, and 14th amendments, which speak in direct clear language to oppose the scenarios you describe.

In the *actual* situation, no-body's home or personal property is being searched or seized. These US citizens and residents are alleged to have had contact with the subjects of US NSA surveillance and that contact was monitored. If you believe that the Congress had authority over the executive when it drafted FISA and when Carter signed it, I recommend that you read Article one , sections one and eight, and Article two, section two to see what the Constitution has to say about what the Congress does and what the Executive does.

Also, consider what would *actually* happen if a President were to overreach his authority as dramatically, or even less so, as you suggest with these scenarios. There are political consequences for such action. A President who uses his war-time powers to seize personal property would only be re-elected if his constituents favored his action. The minority would challenge his actions in Courts comprising judges likely hostile to such an aggressive assumption of shared power. Congress could, with sufficient political support, impeach and remove such a President.

AMosely

I have to admit that I side with the conservatives on this one. The democrats need to back off. If anything, congress should move to help clarify these wiretaps under law so that proper checks and balances are in place. The White House is a sneaky, shady place these days, but in cases like this we need to see past that. There are more important things at stake.

Surveillance and the intelligence that it provides are critical in the global communication enviroment that we find ourselves in today. Our government needs to do all they can to further the effort while at the same time safeguarding citizen rights as much as possible. Bickering should be kept to a minimum while everyone works towards what is a very common goal.

Steeler

The laws are already clear. There are no grey areas that need sorting out. Unless there is some technology so unique and alien that it defies all categorical legislation. But if there is, we can't know about it, because it is a "matter of national security." Wha?
The government has the power and authority to do these things right now, legally, according to a system that has already been hammered out to provide intelligence while protecting the civil rights of citizens. A system which in fact is very lenient to government requests. Last year, the administration had the opportunity to expand the mandates of the FISA courts to give even more authority, and they decided against lobbying Congress to alter the system. In the meantime, they were ignoring it all together.

The Bush administration broke the law. No amount of equivocating, blustering, or apologizing can change that. If we have decided to live in a state where the executive can not only ignore the rule of law himself, but order government policy in defiance of written law, then our democracy is meaningless.

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