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Specter Wants Hearings on NSA Surveillance:
The latest update.
Medis:
As a pure matter of "realpolitik", one had to wonder if even Republican members of Congress would go along quietly with the Cheney-Gonzales theory of Presidential power. Particularly since a lot of them may plan on still being around for the next Administration (and maybe more).
12.21.2005 9:11pm
JohnAnnArbor:
It'll be interesting when they call Clinton officials who used similar powers--with no press complaints.
12.21.2005 9:13pm
frankcross (mail):
My understanding is that the Clinton officials did not use similar powers. They used warrantless physical searches until the FISA was amended to prohibit them. What is the evidence that the Clinton Administration undertook this behavior. Or if you mean Echelon, Clinton Administration officials announced they were scrupulous in not listening to conversations in the US. Do you know this to be false?
12.21.2005 9:38pm
TC (mail):
Under what authority did Clinton officials use warrantless searches?

And how are warrantless searches any better than surveillance?
12.21.2005 10:07pm
OrinKerr:
I believe Frank's point was that Congress hadn't prohibited the searches (which, at least in their current version, are covered in a different part of FISA), so whether the searches were legal didn't raise the same statutory question.
12.21.2005 10:15pm
Medis:
TC,

I think frankcross's point is that the Clinton Administration did not put itself into an actual conflict with Congress. The 4th Amendment is arguably a different matter--but to paraphrase, the 4th Amendment cannot conduct Congressional hearings.
12.21.2005 10:17pm
Medis:
Dang--I was outdrawn by Orin.
12.21.2005 10:27pm
Nobody (mail):
At some point, it will no longer be responsive to say, when faced with wrongdoing by the president, that "Clinton did it." (whether Clinton did it or not.) Hopefully, that point will come in my lifetime (projected to be another 40-odd years).

Prediction: Republican congressmen and senators, eager to distance themselves from the unpopular President Bush in advance of the 2006 midterm elections, will be tripping over each other to condemn the administration's lawlessness at Specter's hearings (and similar hearings in the House, if called). Is that "realpolitik"?
12.21.2005 10:37pm
Humble Law Student:
Prediction: No one will care by 2006.

However, I do agree that the hearings should be interesting. If Bush is half smart about it, they will use the opportunity to explain the program's importance and necessity. However, they will probably prove inept at counterattacking - as they all to often are.
12.21.2005 10:44pm
Humble Law Student:
Edit: No one will care by the midterm elections in 2006.

(Obviously, they will care in "2006" because the new year is only a few days away.)
12.21.2005 10:45pm
Wintermute (www):
I wonder how many times I have to go through this in one lifetime under what touts itself as the greatest government ever. Yesterday I read the testimony before the Church committee of the head of NSA, who said this would never happen.

Cheney is revealing that to him this is an assertion of executive power needed to restore what was lost after Nixon, the War Powers Act, and FISA. It can happen when one party controls the White House and both houses of Congress. (I'm beginning to wonder if this reveals a basic defect in our Constitution.) How else could they slip that preamble into FISA laying a foundation for an adjudication of the primacy of Article II power? Well, one-party rule and taking advantage of a terrorist incident.

Human nature and history make me fear an endless cycle of Alien and Sedition Acts, with the S.P.E.C.T.R.E. of Big Brother-grade spy technology worsening the prospects for liberty being preserved against power grabs by the Executive and the Congress.

I think Specter has the hearing order wrong: domestic spying, then Alito, because in a Constitutional confrontation a SCt should not be populated with former partisans who fast-tracked themselves onto the Courts of Appeal by sucking up heavily, right-wing style. Roberts was enough "electoral consequence" for me, TY. The people may settle against a nominee like Alito if they are first given the choice of whether they want their privacy back.

And the so-called "Patriot Act" (which is NewSpeak; it should have been called the Big Brother Act, or at least the Domestic Surveillance Act) should only be renewed with less and less invasive terms (to recognize a reduced state of alert) and shorter and shorter sunset leashes, because provisions can expire on their own terms by the will of a majority of either House (or 2/5 +1 if not nuked) but can only be repealed by 2/3 +1 if resisted by the President.

Oh, the Specter of a President demanding that Congress give him a tool back that he just said he didn't need anyway.

I'm less sanguine about the outcome than I was 35 years ago, when we had hippies and radicals willing to go all out to avoid being sacrificed to the god of interventionism in Vietnam, and we had politicians like Eugene McCarthy and Frank Church, instead of Generation X'ers, volunteer armed forces, and politicians like we have today.
12.21.2005 11:45pm
Kazinski:
Wintermute,
I think you are right about the constitutional flaw. I'd be much happier under a parlimentary government with a Republican House of Commons and no written constitution where there are zero checks and balances. Then we wouldn't be dealing with filibusters on judges, ANWR and the Patriot Act.

If Democrats don't like the way things are, then they should quit whining and win some elections. And the only way Democrats are going to win some meaningful elections is to back the President 100% on the GWOT so we can win it. And then they can focus on domestic issues where they are stronger. That's a well proven strategy that convinced the voters to kick Churchill out on the street after he won WWII, and limited Bush I to one term after the Republicans won the cold war.
12.22.2005 12:07am
Medis:
Kaz,

Care to define the conditions for a "win" in the GWOT? Because unfortunately, I strongly suspect the GWOT may go on for decades, or even generations.
12.22.2005 12:13am
Anderson (mail) (www):
Off topic (?), see this WaPo article about the FISA judges' getting (demanding?) a briefing on the secret program:
The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.
Some remarks from judges:
As it launched the dramatic change in domestic surveillance policy, the administration chose to secretly brief only the presiding FISA court judges about it. Officials first advised U.S. District Judge Royce C. Lamberth, the head of FISA in the fall of 2001, and then Kollar-Kotelly, who replaced him in that position in May 2002. U.S. District Judge George Kazen of the Southern District of Texas said in an interview yesterday that his information about the program has been largely limited to press accounts over the past several days.

"Why didn't it go through FISA," Kazen asked. "I think those are valid questions. The president at first said he didn't want to talk about it. Now he says, 'You're darn right I did it, and it's completely legal.' I gather he's got lawyers telling him this is legal. I want to hear those arguments." Judge Michael J. Davis of Minnesota said he, too, wants to be sure the secret program did not produce unreliable or legally suspect information that was then used to obtain FISA warrants.

"I share the other judges' concerns," he said.

But Judge Malcolm Howard of eastern North Carolina said he tends to think the terrorist threat to the United States is so grave that the president should use every tool available and every ounce of executive power to combat it.

"I am not overly concerned" about the surveillance program, he said, but "I would welcome hearing more specifics."
Good old North Carolina (a Mississippian is speaking).

Anyway, given the candor of some of these judges, I look forward to their reactions after the briefing. If Kazen and Davis, for ex., are convinced the program's excusable, that will count for something.
12.22.2005 12:37am
Kazinski:
Anderson:
If the Adminstration briefed the Presiding FISA Judge on the program then I think that is an awfully good indication that they thought it was legal. And that the Presiding Judge(s) thought so too.

Medis:
I'd say it would be enough if the Democrats were as supportive on GWOT as Lieberman and Hillary Clinton are over the next three years. Fortunately I think this whole NSA imbroglio just shows again that they think of the GWOT as a law enforcement problem, not a war. If the US was invaded by a foreign power does the Bill of Rights kick in as they cross the border? The fact that these AQ agents sneak in or come into the country under false pretense doesn't change the fact that they are agents of a foreign power with which we are at war.
12.22.2005 1:06am
Michael B (mail):
The Media, the NSA and the PATRIOT Act, posted at the CounterTerrorism Blog.
12.22.2005 2:14am
OpinionPro:
There have been many claims that the Clinton Administration conducted searches without warrants similar to the covert wiretapping program under President Bush. However, the Clinton executive order specifically excluded people of the United States (citizens and residents) from warrantless searches. A recent Republican Party press release misleadingly omits the exception in the Clintonian executive order, as Hardball and several other shows have recently reported.
12.22.2005 3:38am
JamesB:
Kazinski:

Tell me is the War on Drugs a war? Is the war on poverty a war? A state of war exists only when congress explicitly declares it. The reason for this is that when war is declared it is assumed the nation itself is in grave jeopardy of falling or being destroyed. As a result when war is declared the executive gains enormous powers.

There is no way the current crisis can destroy this nation unless we allow our fears to reign supreme and we warp our nation out of all recognition. The best that they have demonstrated they are capable of is killing several thousand people at once, chances are good that eventually they well get a nuke a destroy an entire city. That is far from a minor matter, but it is also not a nation destroying matter either. They do not, and will not, ever have the capability of systematicly invading or destroying the United States.

The war on terror is a battle of ideals and principles. The military cannot win it. What the military can do, and are doing, is to keep the terrorist distracted and provide time for our ideals and principles to take root. However if we allow our fear to push us into becoming more like them then they have won.
12.22.2005 7:23am
Apodaca:

Kazinski writes: If the Adminstration briefed the Presiding FISA Judge on the program then I think that is an awfully good indication that they thought it was legal. And that the Presiding Judge(s) thought so too.
That's rather an odd conclusion, given the reports that Judge Kotelly emphatically demanded that the "take" from the NSA/warrantless eavesdropping not be used in any way to support FISA applications for court authorization.
12.22.2005 8:23am
Medis:
Kaz,

You didn't answer my question--which is what would you would define as "winning" the GWOT?
12.22.2005 8:33am
TC (mail):

At some point, it will no longer be responsive to say, when faced with wrongdoing by the president, that "Clinton did it." (whether Clinton did it or not.) Hopefully, that point will come in my lifetime (projected to be another 40-odd years).



The point in saying "Clinton did it" isn't to excuse wrongdoing, it is to show that in legally contentious issues like this, there is PRECEDENT for the President's actions.

And, in law, PRECEDENT means something.
12.22.2005 9:23am
Al Maviva (mail) (www):
I'm starting to think hearings might be a good idea.

Let's blow the NSA wide open. Make it a matter of public record exactly what intelligence capabilities we have. Our intelligence services have enjoyed conducting activities in secrecy for far, far too long. The only way we can preserve our civil liberties, and our way of life, is to make our intelligence activities completely transparent.

Of course some would argue that wide ranging and open hearings about the details of NSA operations conducted in front of TV cameras by a highly partisan Senate Judiciary Committee wouldn't result in anything useful, but would instead destroy a vital national defense activity, and that the Senate as currently comprised cannot be trusted to conduct itself responsibly here. But hey, citing national defense and facts is the first refuge of a scoundrel. Moreover, didn't Hitler use signals intelligence against his enemies?

/sarcasm

There is a reason that intelligence functions are placed under the oversight of the mostly closed-door, quiet Senate Select Committee on Intelligence, and not under the farcical Senate Judiciary Committee. Judiciary can't even manage to confirm judges in an honest and straightforward manner, and most of the members behave worse and worse in direct relationship to the number of television cameras present. Specter's involvement will turn Bush's program from something that is possibly a travesty, into a full blown traveshamockery. Meanwhile, legitimate legal and national security concerns will likely get short shrift.

On the plus side, maybe Ted Kennedy can roll out the "cold wind blowing" speech, and somehow tie NSA into the abortion controversy. That should make for some great entertainment, tragedy posing as comedy.

Am I the only person feeling disgust in about equal measures, at the leadership of both political parties?
12.22.2005 9:42am
Ginko Bilboa (mail):
Senator Specter is thinking: "Hmmmm, Congressional Hearings. . . hey that means more TV time (and not just on C-Span). Where do I sign up!" I suppose it is unavoidable--but if this truly was a legitmate intelligence program (not some dirty trick)--do we need Congressional Hearings? Even if they are sealed, there will be additional leaks. This story was dead until the NYTs, upset it was getting scooped by its fellow left of center competitors in going after the President, resurrected it. Spying on the other side politically is one thing--spying on the foriegn enemy who is really trying to kill innocents in this country is quite another. Given the intrusiveness of so many things in our lives--I welcome the Government doing a little common sense monitoring of communications going to and from al Qaeda operatives.
12.22.2005 10:28am
corngrower:
WOW!

PRECEDENT!!!! See that is the point of bringing up Clinton. Precedent is more important than the Constitution. re Abortion. See The abortion debate would not be...if...ONE member of congress would bring a bill to the floor. "All women have a protected right to an abortion up to the time of delivery." SEE? simple? HUH? 'cept not a single elected congressperson is willing to lose their job. Because their peers would not allow it to get to the floor, let alone an actual vote. A vote would require a public affermation of a stand on a issue. Congress has found that hiding under the robes of SCOTUS to be a much safer political haven.

To the original post. Democrats need the issue way more than they seek a solution. THIS IS POLITICAL! Still looking for ONE person to introduce a bill to stop these horrible attrocities. Just, there are more political gains to be made in the shouting matches, than,,,,the political fallout from forcing your peers to pony up a vote. It is much easier to parse your words on tv news shows, than a vote on the floor
12.22.2005 10:34am
Medis:
Some of the commentators are using a very odd sense of "precedent", at least in the legal context. There is certainly a long series of HISTORICAL "precedents" involving Presidents claiming extremely broad powers. But not all of those claims have actually been tested in the courts, and when they have been tested in the courts, the President does not always get all the power he has claimed (eg, Hamdi, or Watergate, or the Steel Seizures case, and so on). And it is only when a person's claim is tested and validated in court that it becomes a LEGAL precedent.

So, I don't really understand why people are treating what Clinton (or Nixon or Truman or so on) have claimed for themselves as "precedents" in the legal sense. Of course, they are "precedents" in the historical sense--but lots of illegal, immoral, and unwise things have historical precedents.

Indeed, I am actually laughing to myself about what the world would look like if simply a long series of CLAIMS made for legal precedent--for one thing, prisoners would have a surprising array of constitutional rights as established through habeas corpus petitions. But, of course, mere claims do not make legal precedents.
12.22.2005 10:44am
dk35 (mail):
So if it gets to the point of drawing up articles of impeachment, what do you all think the best argument(s) would be?
12.22.2005 10:47am
tefta (mail):
Spector wants more face time on television.
12.22.2005 10:58am
A. Nonymous (mail):
The request (demand?) of the FISA court for a briefing is interesting from an institutional standpoint I think.

I cannot imagine, say, the entire bench of the Southern District of New York gathering together and getting briefed by the US Attorney in Manhattan on the subject of the FBI or US Attorney's practices. In the midst of a particular case, I can see an individual SDNY judge demanding a complete and total explanation as to a given search of a home or even generally how search warrants of homes are executed. But en banc like this outside the context of specific case? Talk about an institutional shove, plus the questions it raises.

And a judge, even on condition of anonymity, suggesting the disbanding of a court?

The fight that will make the front page will be the Executive vs. the Congress (although the WaPo article was page A1 today). The fight I'm much more interested in is the "undercard"; the Judiciary as a branch/body/institution vs. the Executive.
12.22.2005 11:11am
frankcross (mail):
First, as far as I can tell Clinton didn't do it.

However, the "Clinton did it" or other past practice precedents are politically, if not legally, relevant in the following way. Criticisms tend to become overheated and lead to calls for extreme measures such as impeachment, etc. If there is in fact a past practice of something that (a) suggests that the slippery slope probabilistic consequences are less; (b) puts the moralistic legalism about the violation into some perspective; and (c) undermines claims that this is an impeachable offense.
12.22.2005 11:14am
dk35 (mail):
But Frankcross, if Bush violated the law/constitution in the way he allegedly did, why would calls for impeachment be overheated?
12.22.2005 11:18am
Anderson (mail) (www):
dk35, I'm a card-carrying Bush-hatin' liberal, but I think we'd have to have more facts before impeachment would be on the table.

If Bush approved a program based on legal advice, even the legal advice of a troglodyte like John Yoo, I think impeachment is too strong a remedy.

Leaving aside that, like it or not, impeachment is a POLITICAL remedy, and Americans are not going to support impeaching the President for listening in on brown people who talk funny and "might" be terrorists. Sorry, but that's the fact. If and when people think that THEY, "real" Americans, are having their rights violated, then ask again.
12.22.2005 11:23am
David Matthews (mail):
I think that there are several valid reasons to bring up the claims of the Clinton (and other previous) administrations:

1. To show the blatant hypocrisy and partisan grandstanding going on by some of these former Clinton administraton officials.

2. To rebut the assertions that what the current administration is claiming is "extreme, never seen before ... (the first time a president has admitted to an impeachable offense, I think were John Dean's words);" i.e., asserting that the adminstration's CLAIMS are unprecedented is clearly false.

3. To question the notion that the administration's actions are impeachable; if previous Congresses have not considered previous administrations' similar assertions of power to be impeachable, why should these actions "rise to the level of impeachable offense." (Many Democrats used similar arguments very effectively in pointing out why Clinton's actions "did not rise to the level....")

Certainly citing previous claims of administrative power do not address the correctness, legality or constitutionality of said claims; but these revelations are not irrelevant.
12.22.2005 11:23am
dk35 (mail):
Anderson,

I suppose you may be right. I guess I'm just trying to stay optimistic.

We are, though, beginning to hear about more and more instances of police/military authorities spying on war protesters and other various opponents of the administration (and not just the "crazy hippies" but also mild mannered senior citizens and students doing research for their term papers). My assumption is that at least some of this activity has received blessing from Bush or his inner circle. I suppose the question is whether these hearings will broaden to the point of investigating such issues as well.
12.22.2005 11:34am
Medis:
I think that impeachment comes on the table only if the President insists that his broad powers authorize him to order people to violate laws passed by Congress (mere assertions of broad powers are not, of course, enough).

At that point--when laws are actually being broken but the President refuses to enforce those laws, and actually orders people to violate them--I don't see another remedy for Congress.

And incidentally, there is indeed precedent for that ... and it supports impeachment.
12.22.2005 11:40am
corngrower:
Lets See....missing FBI files found in the residence of the President? Gee! How did they get there? The President of the United States spying on his enemies? Impeachable?

Get over it! Bush 43 has not come close to the offenses of Clinton. This is historicly correct.

Lets remember that the House of Representatives did have the balls to pony up a votable resolution, and did impeach Clinton. Oh I forgot, seems the bar was so pissed off they jerked his license to be a real lawyer?!

How 'bout now???
12.22.2005 11:51am
Medis:
corngrower,

Actually, the President abusing his powers to spy on his enemies is certainly impeachable. See Nixon.
12.22.2005 11:59am
dk35 (mail):
Corngrower,

I guess I'm not sure how that's relevant?

Medis,

If/when you have time, could you elaborate on your last statement about precedent supporting impeachment? Thanks!
12.22.2005 12:00pm
A.S.:
I think that impeachment comes on the table only if the President insists that his broad powers authorize him to order people to violate laws passed by Congress

Why would impeachment be on the table for insisting on something that is unambiguously true?

After all, even in Steel Seizure Category 3 cases - where the President asserts authority that directly contradicts action by the Legislative branch - Justice Jackson didn't state that the Legislative branch should always win. He said only that Executive power is at its nadir. Which I means that the Executive branch does still have some power in that case.

On what basis do you assert that the President has absolutely no authority under the Constitution in the face of contradicting Legislative action? Because I think the relevant precedents don't say that at all.
12.22.2005 12:11pm
Medis:
dk35,

Sure--I just meant that if you looked at prior Articles of Impeachment, particularly the Nixon Articles, and even more particularly the Johnson Articles, you will see the precedent for impeaching a President who fails to perform his duty to faithfully execute the laws, but rather orders others to violate the law.
12.22.2005 12:14pm
John Lederer (mail):
I think that there is a more inmteresting question than the partisan mortar shells I hear passing overhead.

Assume that technically one could create a program that allows, in real time, communications to be intercepted, on the basis of one or a combination of:

(1) mention of certain keywords, e.g. "Pentagon" and "bomb"
(2) a voiceprint match to a person of interest, e.g., "hey its Zarqawi on the phone"
(3) Packet addresses of interest --"this ip packet comes from the computer in the room the terrorists met in"
(4) Calls linked to known calls, e.g. "known terrorist A called B, B then called C"
(5) relationship of communications to events, e.g. "when we were on our way to arrest terrorist A and were spotted, these call were made from the area"
(6) Patterns of communication -- e.g. "prior to the bombing there were these communications between these points, all using ip addresses issued in the last 2 days"

Assume that the decisions of what to intercept are made on the spot by an electronics staff, and that his resources are limited so he wants only to intercept communications of interest, but that he will have an appreciable error rate.

Now--assuming all that -- what would be a reasonable system of oversight? FISA would not work (wrong base assumptions). What would?
12.22.2005 12:24pm
Medis:
A.S.,

It is probably worth looking at the actual language in Justice Jackson's concurrence:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

So, the only question would be whether Congress had constitutional power over the matter. And given this framework, you don't define Congress's power by taking what the Constitution grants to Congress and subtracting out the President's power (the essential claim, I think, of the Yoo-Cheney-Gonzales argument). Just the opposite: you define the President's power by taking what the Constitution grants to the President and subtracting out Congress's power.

In any event, the President could, of course, make any arguments he wanted in his defense ... either as impeachment was being considered in the House or during his trial in the Senate. My point was just that if Congress believes that they had the constitutional authority to pass the relevant laws, and the President is refusing to enforce those laws but rather is ordering people to violate those laws, then impeachment is an appropriate remedy.

Nothing in Jackson's concurrence suggests otherwise--it just implies that the law in question would have to be within the power of Congress to pass. This, of course, is true in any setting--for example, even an ordinary criminal defendant accused of violating federal law can argue that Congress had no power to pass the law.
12.22.2005 12:29pm
dk35 (mail):
John Lederer,

But doesn't even the current FISA regime allow for retroactive warrants? If that is the case, why are your questions significant? Because then it's fine if technology can be programmed to pick up patterns/communications automatically. The question then becomes whether the government is allowed to use what the technology picks up or not. If a court says no dice, then the government would have to throw out the information.
12.22.2005 12:37pm
John Lederer (mail):
dk35

FISA has as a base assumption that one has a person of interest and wants to intercept that person's communications.
That isn't the case in many of my assumed factors.

The emergency power requires:


Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.


So does the AG have an open phone line from the operations center to the judge to inform the judge of each new intercept? The AG has to dtermine that the factual basis for issuing a warrant exists. That includes:


(3) on the basis of the facts submitted by the applicant there is probable cause to believe that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) the proposed minimization procedures meet the definition of minimization procedures under section 1804 (h) of this title; and
(5) the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804 (a)(7)(E) of this title and any other information furnished under section 1804 (d) of this title.


The "application" need not have been filed, but I think fairly read, the AG has to be sure he can file such an application within 72 hours. Is he going to satisfy himself of each of these requiremetns in an ongoing fluid situation which may involve a large volume of intercepts in a very short time? The system is quite possibly making these intercepts according to a program, not a human decision.

The FISA procedure is unworkable for a system such as I described, even with the possibility of 72 hour emergency approval.

I think when one is talking about regulating a system, one has to look at the parameters of the system.
12.22.2005 1:20pm
Medis:
John,

I agree that the FISA warrant system may not be able to handle everything you describe, although I think it could handle some of it. I also think that some of what you are describing may already be outside the FISA warrant system on FISA's own terms. And insofar as there are gaps where FISA does not make sense, the obvious remedy is to amend FISA.

By the way, as an aside, I think it is wrong to say that FISA assumes a known, particular target. That possibility is only one of many in FISA's multi-part definition of electronic surveillance.
12.22.2005 1:26pm
John Lederer (mail):
Medis,

I think the DOJ must have been looking at the earlier discussion we had :) Here is their
defense of the executive order.
12.22.2005 3:47pm
John Lederer (mail):
Medis,

I think the DOJ must have been looking at the earlier discussion we had :) Here is their defense .
12.22.2005 3:48pm
Brian G (mail) (www):
Perhaps Senator Spector should just invite the leaders of Iran, Syria, and the Palestinians and give them the blueprints of all the technology we use. It would be more efficient that way, since they would get the word out real quick.
12.22.2005 3:54pm
dk35 (mail):
John,

So, essentially they are relying on AUMF. If that's the best they can come up with, I think there's still hope that Bush may in for big trouble if Spector takes his job seriously.
12.22.2005 4:00pm
John Lederer (mail):
dk35,

It is not a "slam dunk" (grin), but I think they have a pretty good case. I find it very difficult to envision a court deciding in a way that would interfere with this, particularly when you have a 3 star general saying this has actually allowed us to stop terrorist plots
.
As for Congress, I suspect they will start thinking of the fallout if they do something to stop this program, and then we have a terrorist act that the program could have prevented. Forget the effect on votes, worry about the mob with the hot pots of tar that are ripping up pillows.
12.22.2005 4:27pm
Stevethepatentguy (mail) (www):
Dk and Anderson: I just want to get this straight, the President can order bombs dropped on these guys but he can't order that their phone calls be monitored.

I'm sure a lot of Democrats from red states are going to line up behind that. Saxby Chamblis is their worst nightmare.
12.22.2005 5:17pm
dk35 (mail):
The problem with your argument is that you already have many members of congress saying openly that they didn't intend for AUMF to authorize this kind of conduct. So, obvously they aren't worried about the political fallout they you insinuate they are.
12.22.2005 5:20pm
John Lederer (mail):
dk35,

Not at all, Congress is infinitely flexible.

The preferred congressional position is "I opposed any legislation that led to bad results and supported any legislation that led to good results, and see no problem with the fact that it was the same legislation.".
12.22.2005 5:28pm
Anderson (mail) (www):
Steve: Dk and Anderson: I just want to get this straight, the President can order bombs dropped on these guys but he can't order that their phone calls be monitored.

Right, Steve! There is a law against the monitoring, but not against the bomb-dropping.

Though, recall, the problem arises re: monitoring the phone calls of U.S. citizens. So here's another way to phrase your question:

the President can order bombs dropped on U.S. citizens, but he can't order their phone calls monitored?

If you are so sure that Red State Democrats favor bombing U.S. citizens, fine, but permit me to doubt.
12.22.2005 6:49pm
John Lederer (mail):
Interesting documents, confusingly redacted:
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB23/07-10.htm
12.22.2005 7:31pm
Stevethepatentguy (mail) (www):
Anderson: Your logical dyslexia has me very confused.

There are reasonable arguements the the President has violated FISA and his actions were unconstitutional, you haven't made any. It has been a while since I took Constitutional Law, but I am pretty sure that there is still an Article II. The President has power under Article II and the Congress can't take it away absent an amendment. There is also an Authorization of Use of Military Force 'AUMF' which strengthens his hand in this. There are about 250 posts on this blog alone discussing this.

My point was a political one. Red State Democrats, certainly not those looking at 2006 elections, will not touch this. If you think that protecting Al Qaeda's phone calls into the US is a political winner you are crazy. If you think impeaching a president in time of war for taking action to protect the US is a political winner then you are just plain nuts.
12.22.2005 10:48pm
Anderson (mail) (www):
Steve, your penultimate post seemed relatively lighthearted, and I responded in kind.

There are indeed "arguments" that everything Bush did was just fine. I don't think much of them. Since you are an assiduous reader of this blog's comments on the issue, you have doubtless seen Medis and others exposing said arguments' frailty (and even their "logical dyslexia").

In particular, the notion that Article II suspends the Constitution and the rule of law in time of war is laughable, or would be if it weren't the theory that Cheney &Bush seem to be operating on (but too afraid to argue in public).

I've actually agreed with your point elsewhere, that wiretapping Arabic-speaking folks who "look like" terrorists will probably go over just fine with the American people as a whole. The Republicans certainly have mastered the race card since Nixon.
12.23.2005 11:28am