Judge Orders DOJ to Release Spying Records

[Henry Bowman]

When the courts, the American people, and even the more sober Democrats in Congress get a better idea of what really went on, we will say, "Was THAT it? Well that was really no big deal."

But the less sober Democrats (e.g., from MA) and MSM (who profit from hyperfrenzy) will not be so restrained.

Warrantless domestic searches....

You keep saying that word. I don't think that word means what you think it means.

 

[Bartholomew Roberts]

I may not like it, but GWB has all the legal justification he needs for the NSA to do the surviellance.

And we are supposed to believe this because a biased political magazine tells us that the super-secret review court said so when reviewing the secret review court's decision?

Even assuming that the interpretation of the court's decision is correct, the President's power is still limited to conducting foreign intelligence. He may only use that power in conjuction with surveilling American citizens without a warrant if there is a significant reason to believe they are talking with a foreign agent or terrorist.

Of course, we don't know whether it is being used that way or not since we didn't even bother to notify the super-secret court that has denied only 5 requests in 25 years (including the case you mentioned that was overturned). The President had to bypas a court that approves around 1700 warrants a year - almost three times the total number of federal domestic wiretap warrants from all other agencies combined.

Put aside for a moment that whatever it is that Bush is doing was so far out there that they had to bypass the FISA court. Does anyone see a potential problem with the Executive Branch being able to listen to American citizens without any oversight? Maybe the program is needed, maybe it isn't - since the President made a conscious decision to cut Congress and the Judicial branch out the loop, I guess we will just have to take his word on it. Just like we will have to allow the same level of trust to any future Presidents.

 

[TequilaMockingbird]

I wonder whose phones and emails soem future President H. Clinton will want to monitor without a warrant...

"Just trust her!" the liberal Democrats will crow. "She's only spying on terrorists and anti-government extremists..."

Come Jan. 2009 today's statist "conservatives" might turn into born-again libertarians.

 

[Headless Thompson Gunner]

And we are supposed to believe this because a biased political magazine tells us that the super-secret review court said so when reviewing the secret review court's decision?

That's no less reasonable than believing these interceptions are illegal based on the reports of a biased political mainstream media.

It's not like Bush is listening in on average Americans going about their daily, private activities. These are international interceptions, not domestic. They're made against known enemies of the United States, not average/random/innocent Americans.

This isn't about gathering evidence for a civil prosecution of criminals. This is about defending the nation against foreign attack. Due process rights have never applied to military enemies, nor should they now.

Does the constitution require our infantrymen to Mirandize enemy soldiers before opening fire? Does the constitution require the Marines to file eminent domain procedings before occupying a beachhead? Gimme a break.

Civil due process rights do NOT apply to military actions taken against foreign enemies. Ain't nothin' unconstitutional about it, neither.

 

[RealGun]

Come Jan. 2009 today's statist "conservatives" might turn into born-again libertarians. - TequilaMockingbird

That reminds me of the SNL line "what the hell happened?", circa Bush I losing to Clinton.

 

[Bartholomew Roberts]

It's not like Bush is listening in on average Americans going about their daily, private activities. These are international interceptions, not domestic. They're made against known enemies of the United States, not average/random/innocent Americans.

Then in that case, aren't you disturbed that so many Americans are talking to "known enemies of the United States" that we need an automated program to filter through the messages? And that even after that processing there are at least 4,990 Americans talking to "known enemies of the United States" who were listened to and monitored while talking to these "known enemies" but who we just let go about their business and never even bothered to get a warrant to see what they were doing domestically? Either America has a lot of enemies living amongst us, or somebody is lying to us. I'll leave it to you to judge which you think more likely.

This isn't about gathering evidence for a civil prosecution of criminals. This is about defending the nation against foreign attack. Due process rights have never applied to military enemies, nor should they now.

Due process rights DO apply to American citizens though - and at least one end of this conversation involves American citizens. As for the other end, it is you assertion that it invoves military enemies; but the evidence to support that claim hasn't been forthcoming. It is also important to realize that COMPLETELY DOMESTIC CONVERSATIONS TAKING PLACE ONLY WITHIN THE UNITED STATES can be monitored under the President's foreign intelligence authority if one of those people is believed to be a foreign agent. This is set out quite clearly in FISA. How do you think this new program is applying that existing rule given the broad interpretation being sought?

 

[TheEgg]

Quote:
And we are supposed to believe this because a biased political magazine tells us that the super-secret review court said so when reviewing the secret review court's decision?

That's no less reasonable than believing these interceptions are illegal based on the reports of a biased political mainstream media.

Crux of the matter -- this is why I want to see the fruits of the FOIA action. Because right now, all I have to go on are biased sources. Let us have the facts please.

 

[Bartholomew Roberts]

A little history lesson on FISA and the associated NSA surveillance:

In the 25 years since FISA was enacted, only FIVE requests have ever been denied. One of these requests was later overturned by the first ever meeting of the FISA Review Court in 2002. The remaining four requests were denied in 2003 (out of 1,727 applications). All, 1,758 applications requested in 2004 were approved.

FISA has been amended five times since 2001. Under the Patriot Act, several important changes were made to the FISA act. One of these was that surveillance could begin immediately as long as a warrant was requested within 72 hours.

The second was a lower surveillance standard. Originally, FISA required that the surveillance have a primary purpose of gathering foreign intelligence. Under the Patriot Act this was lowered to be a "significant" purpose.

The third area it was changed was to loosen restrictions on roving traces without a specific phone number and "trapping" of phone numbers to and from certain areas.

In addition to these restrictions, the collection of the NSA is governed by United States Signals Intelligence Directive 18 which spells out under what circumstances the NSA can monitor United States citizens without a warrant or approval from the Director NSA.

There is no question that Bush has violated FISA. Nobody, including the administration, is disputing this fact. The Bush administration claims two authorities for violating FISA. The first is that the authorization for the use of military force passed after 9/11 authorizes this type of surveillance. The second is under the authority granted by the Constitution, the President may collect foreign intelligence.

There are two primary challenges to the authority offered by the President. One if that many of the members who voted for the authorization of military force (Repubilcan as well as Democrat) do not agree with the assertion of the White House on this matter. The second is that while the President (and past Presidents) have always asserted the power to carry out surveillance of American citizens without a warrant in the process of collecting foreign intelligence, this President appears to be asserting this power much more broadly.

An important factor being missed in these discussions, is that whatever it is the Bush administration wanted to do, NONE of these loopholes were big enough to allow it. The President made a conscious choice to bypass both FISA (a secret court that had rarely ever denied him a request) and the majority of Congress (House and Senate Intelligence leaders were briefed on this program in 2003, and the Bush administration approached select Congressmembers about the possibility of amending FISA for a sixth time after it became apaprent the NYT would run the story).

Finally the Washington Post reports that after an automated selection process of some sort, 5,000 Americans had their international phone calls listened to. Of these 5,000 Americans, 10 were deemed worthy of pursuing an actual warrant to allow surveillance of domestic calls as well.

So those maintaining that only Americans talking to al-Quaida or terrorists have been monitored have a dilemmna on their hands. Either the administration is allowing 4,990 guilty people to go free or many Americans who have not been talking to terrorists had their conversations monitored without a warrant.

Personally, I am all for this type of monitoring if it is necessary for our security; BUT right now the executive branch claims the sole authority to
A) determine who gets monitored
B) decide whether that monitoring is legal
C) decide whether that monitoring is being abused

Putting all that power in one branch of government is a recipe for disaster. Considering that the FISA court has considered well over 15,000 requests and denied only five of them, I can't believe that anybody would seriously argue that there is a valid reason for the executive branch not to submit to oversight from Congress and the Judiciary given the stakes involved.

 

[roo_ster]

Wouldn't Know a Fact if It Was Stepped on & Bit by It

I already provided some, but they get passed by in preference to speculative flatulence.

How 'bout I do your homework for y'all, Oh Seekers of Facts*?

FISA Court of Review In re: Sealed Case No. 02-001

Maybe fas.org is a biased source with somehow faulty facts. Try findlaw.com's .pdf of the same case.

Hey, the FISA Court of review decision cited Truong. How do we know that Truong was not about, oh, sexually oriented business' right to sell smut to 12 year olds?

Golly gee! That new-fangled thingy called, "Google" sure does come in handy, cause here she is!

Here is a pesky fact:

The origin of what the government refers to as the false dichotomy between foreign intelligence information that is evidence of foreign intelligence crimes and that which is not appears to have been a Fourth Circuit case decided in 1980. United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980). That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power. In approving the district court’s exclusion of evidence obtained through a warrantless surveillance subsequent to the point in time when the government’s investigation became “primarily” driven by law enforcement objectives, the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” Id. at 915. Targets must “receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.” Id. at 916. Although the Truong court acknowledged that “almost all foreign intelligence investigations are in part criminal” ones, it rejected the government’s assertion that “if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.” Id. at 915.

And another:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

Go ahead. Mash the links for yourselves & enlighten yourselves to the current law of the land.

In re: Sealed Case No. 02-001 isn't some bean dream of a GWB toady & neither is Truong (which was decided 20 years prior). They exist and are the current law of the land, the former having gone before SCOTUS at the behest of the ACLU, which let it stand & did not take it up.

Whining & avoiding reality in favor of playing whack-a-mole with the GWB administration won't produce anything but more pixelated, misdirected outrage.

GWB has an exceedingly strong case based on COTUS and previous rulings. Deal with it.

Personally, I am a big fan of encrypted commo (ssh, scp, GnuPG, etc., and use it in networks I set up). Technology has allowed the NSA to examine beau coup commo. It is going to take some technology to blunt that ability.

The sooner citizens of the USA use encryption as easily as they use email, the sooner our grandma's banana bread recipies can be safe from the snooping of the NSA.


* Certianly not Finders of Fact.

 

[Headless Thompson Gunner]

Personally, I am a big fan of encrypted commo (ssh, scp, GnuPG, etc., and use it in networks I set up). Technology has allowed the NSA to examine beau coup commo. It is going to take some technology to blunt that ability.

The sooner citizens of the USA use encryption as easily as they use email, the sooner our grandma's banana bread recipies can be safe from the snooping of the NSA.

I wrote a term paper back in college 6 or 7 years ago advocating that very same idea. Strong encryption of all electronic communication, even (especially) the mundane stuff, would be beneficial for everyone. But nobody cares.



There's a great irony hidden in this "warrantless domestic surveillence" (sic) debacle.

The NSA has, for years, been technologically capable of listening in on all electronic communications within the US. With the advent of Echelon, it gained a warrantless/legal means to do so. The Fed has been able to spy on all of us, indiscriminately, for many years. No warrants, no probable cause, no explainations, no recourse, nothing.

Yet nobody seems to care.

Now along comes "King Jorge." He uses the NSA in support of national defense, one of the few areas of the Fed Gov that is actually mandated by the constitution. He targets only those people who are suspected of conspiring with foreign powers intent on attacking the US. He uses the information solely to prevent attacks against Americans on US soil.

And suddenly people everywhere are throwing hissy fits.

It's A-OK to indiscriminately misuse the NSA/Echelon against random, innocent Americans. But it's BAD BAD BAD to use the NSA in its intended, constitutionally sanctioned role of national defense. Up is down, black is white, and right is wrong.

It would be comical, if it wasn't so depressing.

 

[Bartholomew Roberts]

GWB has an exceedingly strong case based on COTUS and previous rulings. Deal with it.

You could have saved yourself a lot of useless ranting by simply reading the second paragraph of the post you replied to. I notice you declined to address that issue at all in your voluminous reply.

I can certainly understand why you would prefer to argue that the National Review's interpretation of In re: Sealed Case is the correct one. After all, none of us can read the case in its entirety and see the specific facts in the decision, so based on the tiny bit that is public knowledge it looks like a pretty slam dunk case.

However, if the case is as strong as you claim then why did the Bush administration go to Congress in 2004 and ask them amend FISA yet again to provide them with authority for this program? And why did Congress say no? For that matter if FISA had already said this program was OK, then why did the Bush administration by pass FISA entirely?

It's A-OK to indiscriminately misuse the NSA/Echelon against random, innocent Americans. But it's BAD BAD BAD to use the NSA in its intended, constitutionally sanctioned role of national defense. Up is down, black is white, and right is wrong.

No, it is not OK; but it is legal since our Constitutional protections can't really stop foreign governments from listening to us. Further there is at least some oversight of Echelon outside of the Executive branch.

The current warrantless surveillance of Americans clearly violates FISA though. If the Bush administration wants to take this to SCOTUS or get Congressional approval, that is one thing. The Bush administration does not get to secretly listen to Americans without a warrant and then also decide that such behavior is both Constitutional and legal as well. That is why this is a major difference from Echelon - it isn't about listening - it is about the incredibly broad power being claimed by the President.

George Bush isn't going to be President forever. I'd think twice about allowing that level of power to any single person. I'd think long and hard before I'd give it to an office that WILL one day be occupied by someone who places personal power at a higher premium than the national good.

 

[ArmedBear]

So I'll ask this again...

Is there any evidence that anyone's civil rights have been violated?

Information misused?

Anyone wrongly arrested? Anyone indicted? Anyone convicted?

Any evidence that there was any reason OTHER than counterterrorist activity for tapping 4900 people's overseas phone conversations with suspected Al Qaeda operatives? (0.0016% of people in the US could actually be somehow involved in some way with someone who is somehow connected to Al Qaeda, even without knowing it. 0.0016% is not implausible by any stretch.)

Anyone listening to opposing political party activists or operatives?

Anyone listening for a profit?

Any other evidence of abuse?

Even if the whole thing was not done by the letter of the law, I do think that the motives of those involved and the use of any information gathered DOES matter.

 

[Biker]

ArmedBear...

www.inthesetimes.com/site/main/article/2474/

Biker

 

[Bartholomew Roberts]

Is there any evidence that anyone's civil rights have been violated?

That is what the EPIC FOIA is all about. We will have to see what their request turns up and which side the evidence supports.

However, do you see any problems with the practical application of your "Is there any evidence" test in determining whether we should be worried or not? The program in question is a secret program - so secret in fact that they chose not to allow the secret court to review their secret warrantless wiretapping. If we can't see the evidence, because it is secret, does that mean we have nothing to worry about?

 

[ArmedBear]

No, of course not.

HOWEVER... The possibility really does exist -- in fact it is a very likely possibility -- that this was simply a secret counterterrorist program.

I live down the road from where the West Coast SEALs train. I've met more than a few over the years, and lived next to one. This makes me more aware than most that our government does conduct secret counterterror operations all the time, and they're pretty secret. All anyone knows is that Joe's off to work this week.

If there hasn't been any abuse, and we don't find any, then the likelihood is nearly 100% that this was just a case of politics destroying an operation that was legitimate, important and productive.

If, in fact, you don't believe that there really IS an organized terror threat from the international Islamofascist movement, and that our government, though imperfect, is doing a good many things to try to counter that threat, then I don't see anywhere that our opinions could meet. Without agreement on the facts, it's hard to agree on anything else.

 

[Lobotomy Boy]

If there hasn't been any abuse, and we don't find any, then the likelihood is nearly 100% that this was just a case of politics destroying an operation that was legitimate, important and productive.

And if there has been abuse, what will this be a case of? Looks to me like it will be a case of an executive branch gone mad with power running roughshod over the Constitution. If that proves to be the case, don't you agree that it is critically important to all of us, especially us gun owners, to reign in such a rogue administration?

 

[ArmedBear]

And if there has been abuse, what will this be a case of?

Violations of several of our important rights, of course. 4th Amendment, 5th Amendment, etc. That would be a big deal.

Looks to me like it will be a case of an executive branch gone mad with power running roughshod over the Constitution. If that proves to be the case, don't you agree that it is critically important to all of us, especially us gun owners, to reign in such a rogue administration?

Looks to me like it is another case of half-educated American people gone mad, lashing out at whatever they can, while the world moves on. And it looks to me like it is a case of media gone crazy in the quest for ratings and excuses to bash the Bush Administration.

I don't even LIKE the Bush Administration, but I find myself defending them, not because I want to, but because I think that a lot of the attacks on them border on insane.

 

[Lobotomy Boy]

Looks to me like it is another case of half-educated American people gone mad, lashing out at whatever they can, while the world moves on. And it looks to me like it is a case of media gone crazy in the quest for ratings and excuses to bash the Bush Administration.

You said yourself that this would be "a big deal," so I'm not sure you you get to this conclusion.

Can you blame the American people for being infuriated at the administration? We appeared to have been duped into fighting a war of choice, and now we appear to be on the verge of losing that war. If the American people weren't mad about that, they wouldn't deserve to live in a free country like the United States.

Also, what makes you think the world is going to move on? Have you seen the reception Bush gets when he travels abroad? I listened to him on the radio this morning and the man sounded like he had come completely unhinged from the hostile reception he's been getting.

 

[ArmedBear]

It does not appear that those actually IN Iraq think we're losing. Read some milblogs or something. The MSM, staffed with people who see everything through the lens of Vietnam, has wanted us to be losing from day one and every story published by certain outlets reflects this.

If you have been paying any attention to the Saddam tapes and other evidence, you will find that we were not duped into the war in Iraq. Saddam planned to do everything we thought he did. It is also a fact that he did work with terrorist groups as a way of getting at the US and the West. He was not responsible for 9/11 and no one said he was. You may not like the war; you may believe it was a dumb idea, but that doesn't lend credence to the "Bush lied, people died" mantra.

Why do I think the world will move on? Because I have more than a kindergarten education.

We fight a bloody war with Germany. 10 years later, Americans start buying a good number of VWs. 20 years later, American hippies fall in love with them.

Japan? Similar story.

If you don't think the world will go on after a few people have had their overseas conversations tapped, even if it was a gross and blatant violation of US law, then it is YOU who have been duped. You've been duped into losing perspective and allowing uncontrolled fear and hatred to convince you that your whole world could be turned upside down by this.

IT'S NOT.

I remember the Cold War, and how we were all told that one day, we'd be blown up in a nuclear holocaust, and that the REAL threat was the evil Ronald Wilson Reagan (666). Yes, that's what the moonbats were babbling back then. Didn't happen, and frankly Reagan was the best President in my lifetime, though that may not be saying a whole lot.

But hey, why should I argue. The sky IS falling! Whatever.

 

[Lobotomy Boy]

I certainly hope that you are correct and that within a decade the western and Islamic world will be one big, happy family, blissfully purchasing each others' products in a gigantic free-trade capitalistic spasm of ecstasy, but I wouldn't bet money on that outcome. Frankly, I think comparing our conflict with Germany and Japan to the current conflict indicates that you may not be using your post-kindergarten education to its fullest potential.

 

[ArmedBear]

Lobotomy-

But you just implied it YOURSELF!

The nearly-inevitable clash with the Islamic world -- a world where women are property and brutal theocracy is the norm even in "moderate" countries -- is a far greater threat to our future than the Bush Administration.

THAT was my point.

It pays to think about who the real enemies are, and which enemies pose the greatest real threat.

 

[Bartholomew Roberts]

If there hasn't been any abuse, and we don't find any, then the likelihood is nearly 100% that this was just a case of politics destroying an operation that was legitimate, important and productive.

I think if the operation was productive you would have seen evidence of it in the recent debate. Washington has never been slow to release sensitive intercepts in order to score political points (like the KAL007 transcripts for just one example).

In any case, there is a lot bigger issue here than a single NSA operation. The President is making a power grab that, if successful, is going to expand the powers of this President and all future Presidents as well. I think some serious scrutiny needs to be applied. The other branches should at least exercise some oversight on it.

 

[Lobotomy Boy]

Testing. I just had a reply disappear, and my computer keeps logging off. Something weird going on here.

Okay, seems to be working. What I said was I agree with you that we are in a long, drawn out struggle with the Islamic world, one that will get much, much worse before it gets better.

 

[ArmedBear]

In any case, there is a lot bigger issue here than a single NSA operation. The President is making a power grab that, if successful, is going to expand the powers of this President and all future Presidents as well. I think some serious scrutiny needs to be applied. The other branches should at least exercise some oversight on it.

Yes. And that's what seems to be happening. Hence, I'm not freaking out about it. And I still hope that the scrutiny doesn't lead to the destruction of useful and legitimate covert defense operations. These things do exist.

 

[silliman89]

Bartholomew Roberts -- #33
Finally the Washington Post reports that after an automated selection process of some sort, 5,000 Americans had their international phone calls listened to. Of these 5,000 Americans, 10 were deemed worthy of pursuing an actual warrant to allow surveillance of domestic calls as well.

I think you're placing an unwarranted amount of trust in these numbers. Let's look at the WaPo news article you linked to as the source.

The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

So, if we believe that WaPo didn't just make this up like the NYT makes up it's stories, then there were two sources for this article. One said "thousands" which could mean anything over 2,000. The other said 5,000.

Under the most charitable interpretation, these guys were estimating. If they were able to push a button on their computer and get an accurate count of the number of conversations recorded, don't you think they would have memorized that number, just to provide a little more credibility to their claim?

Of course there are less charitable interpretations. Out of the thousands of people at NSA, only 2 came forward? Isn't it possible that they are disgruntled employees, or that they have their own ulterior motives?

Here's a middle of the road interpretation though. Suppose there were 5,000 conversations recorded. Don't you think some of those might have been by the same people, instead of 5,000 different people each making one conversation? The number of people, and therefore the success ratio of the program, could easily be completely different than reported by WaPo.

Obviously I'm just guessing. I hope you realize that you are just guessing too. I think the difference is that you're guessing the glass is half empty, while I'm guessing half full. I agree with you though that it's time for full disclosure. The damage to national security caused by revealing our surveillance methods has already been done.