Baseball Crank
Covering the Front and Back Pages of the Newspaper
August 17, 2006
WAR/LAW: The NSA Decision: Judging Without Facts or Law

Today, at the instigation of the ACLU, CAIR, Greenpeace, the National Association of Criminal Defense Lawyers and a number of individual plaintiffs (including, most dishearteningly, Christopher Hitchens), Judge Anna Diggs Taylor of the US District Court for the Eastern District of Michigan - a Jimmy Carter appointee - issued a permanent injunction halting the use of the NSA's Al Qaeda surveillance program that was disclosed to the public by the New York Times in December. Judge Taylor's opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process. In the meantime, Judge Taylor's decision unambiguously does two things: it reinforces the importance of appointing good conservative judges, and it demonstrates the damage already done to our security by the Times's unauthorized disclosure of the NSA program.

Read on

To refresh your recollection, the program the court refers to as "TSP" ("Terrorist Surveillance Program") intercepts and monitors - without a warrant or other judicial review - telephone "communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Slip op. at 13. Note that even Judge Taylor has to admit to two things that critics of the program have usually glossed over: it doesn't apply to domestic (i.e., solely within the U.S.) communications, and it is narrowly tailored to capture communications of Al Qaeda and those affiliated with or supporting Al Qaeda - i.e., exactly the people that even the most die-hard opponents of the Bush Administration admit we are at war with. Or so you would think: Judge Taylor gives away her bias on p. 9 when she refers to "the War on Terror of this administration".

I explained back in December why I believe that the NSA program is easily within the president's powers under the Constitution, is not barred by any express Constitutional limits, and is at least arguably justified by the September 2001 Authorization to Use Military Force against Al Qaeda, on the theory that the AUMF implicitly repealed the statutory limitations of the Foreign Intelligence Surveillance Act ("FISA") within the limited context of the war against Al Qaeda. In a nutshell -- go read the whole thing for more elaboration -- the President has the traditional power to conduct surveillance of the enemy in wartime, and that power is not diminished when the enemy crosses our border or communicates across our border. If -- and in this case it is -- the surveillance is reasonable, and thus in step with the Fourth Amendment, and because it is the proper exercise of a war power implicit in the AUMF, the strictures of FISA do not apply. Others have argued that the surveillance is actually consistent with FISA; being no expert on FISA and lacking all the facts, I have not addressed that question and won't do so here. The Bush Administration has not sought to publicly advance that argument, though it is not clear whether this is at least partly because the Administration does not want to disclose any more of the details of this program than have already been splashed across the front page of the NY Times.

The Opinion

State Secrets

The first issue Judge Taylor addresses is the state secrets privilege, recently reaffirmed by a unanimous Supreme Court back in 2005 in Tenet v. Doe, 544 U.S. 1 (2005). The privilege -- requiring the dismissal of lawsuits where either the proof of the plaintiff's claim or the defendant's defense would require disclosure of state secrets -- was originally developed to limit the bringing of breach of contract claims by unpaid spies. The Court in Tenet rejected such a narrow view of the rule:

[The Ninth Circuit] reasoned first that Totten developed merely a contract rule, prohibiting breach-of-contract claims seeking to enforce the terms of espionage agreements but not barring claims based on due process or estoppel theories. In fact, Totten was not so limited: "[P]ublic policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential." Id., at 107 (emphasis added); see also ibid. ("The secrecy which such contracts impose precludes any action for their enforcement" (emphasis added)). No matter the clothing in which alleged spies dress their claims, Totten precludes judicial review in cases such as respondents' where success depends upon the existence of their secret espionage relationship with the Government.

+ + +

We adhere to Totten. The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: "Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to 'close up like a clam.'" CIA v. Sims, 471 U. S. 159, 175 (1985). Forcing the Government to litigate these claims would also make it vulnerable to "graymail," i.e., individual lawsuits brought to induce the CIA to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations. And requiring the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or denying relationships with individual plaintiffs.

Judge Taylor reaches exactly the conclusion the Supreme Court unanimously rejected a year ago:

Defendants' assertion of the privilege without any request for answers to any discovery has prompted this court to first analyze this case under Totten/Tenet, since it appears that Defendants are arguing that this case should not be subject to judicial review. As discussed supra, the Totten/Tenet cases provide an absolute bar to any kind of judicial review. Tenet, 544 U.S. at 8. This rule should not be applied in the instant case, however, since the rule applies to actions where there is a secret espionage relationship between the Plaintiff and the Government. Id. at 7-8. It is undisputed that Plaintiffs' [sic] do not claim to be parties to a secret espionage relationship with Defendants. Accordingly, the court finds the Totten/Tenet rule is not applicable to the instant case.

Slip op. at 11. As Judge Taylor notes - and explaining why this case was brought in Michigan rather than in the DC Circuit, where it belongs - the DC Circuit in 1978 applied the state secrets doctrine to dismiss claims challenging warrantless surveillance by the NSA and other government agencies, because litigation would disclose the NSA's methods and the identities of those surveilled, among other things. Slip op. at 5-7. Indeed, Judge Taylor's discussion of the caselaw makes clear that the law in the Sixth Circuit, as well as the DC Circuit, overwhelmingly supported dismissal of the present lawsuit.

However, Judge Taylor is undeterred by such precedent. First, she notes that certain basic outlines of the program have been made public and confirmed by the Administration (gliding over who forced this issue into the public eye), and notes that the plaintiffs are asking for a permanent injunction solely on the basis of the facts publicly admitted -- utterly ignoring the possibility that more detailed discovery (if such a thing were not unduly intrusive of national security, which it obviously is) would bear on such things as the reasonableness of the government's need to conduct such surveillance. As we shall see below, once Judge Taylor gets past the state secrets issue, she repeatedly rejects the government's defenses precisely on the grounds that they are not supported by sufficient evidence. She simply assumes that, just because the government is unwilling to disclose additional facts, they must not exist.

Part of her justification for this kangaroo-court approach to evidence is the following:

It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.

+++

The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information.

Slip op. at 14. Of course, the Bush Administration, having reached this conclusion based on all the facts, including those that are classified, will state for the public such justifications as it can advance based on the information already disclosed by the Times, without compromising more secrets. The idea that the Administration's public defense of its position under intense attack by the Times and others on the Left constitutes some sort of waiver of its position that the program's secret details should not be further protected -- or are not relevant to the program's legality -- is absurd.

Standing

Of course, to challenge a government program, you need evidence that you have actually been affected by it; in other words, you need standing. I don't have time or space here to catalogue all of Judge Taylor's misreadings of the standing cases (Leon Wolf does that here, but three points are worth making.

First, the plaintiffs' proof of standing is itself more than a little disturbing; second, the plaintiffs have not actually met their evidentiary burden:

[T]he court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions regarding the TSP. Plaintiffs' declarations establish that their communications would be monitored under the TSP.

Slip op. at 13. Of course, the plaintiffs do not actually show that they were surveilled, but several of them did file affidavits with the court in which they admitted to consorting with people linked to Al Qaeda:

[I]n a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. Attorney William Swor also provided a similar declaration. Journalist Tara McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq.

Slip op. at 13 n. 7. This may be grounds for indicting or deporting these fine, upstanding citizens, but it's not evidence that they were actually surveilled. The court rejects the questions raised by the government on this point on the grounds that they are "unsubstantiated." Slip op. at 23. Well, of course they are unsubstantiated because the government doesn't want to reveal any more state secrets. But having assumed away the state secrets problem by saying she needs no more evidence, Judge Taylor just forgets about it whenever she demands more evidence from the government.

The third point about standing is this alarming passage:

All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.

Slip op. at 17-18 (emphasis addded). Actually, to be more precise, the New York Times' disclosure of TSP caused these Al Qaeda-affiliated individuals to clam up. Gone, in a single sentence, is any pretense that the Times' defenders may have that the disclosure of this program did not blow important secrets, and did not cause any change in terrorists' behavior.

Judge Taylor's Constitutional "Analysis"

This is the point at which I would, ordinarily, address Judge Taylor's reasons for coming to the opposite conclusion that I did - first and foremost, why she thinks that the program violates the Constitution - but her analysis is so flimsy that it is hard to even discuss. As I noted in my prior discussion, the touchstone of any Fourth Amendment analysis is reasonableness, not the presence of a warrant, and the courts have upheld this rule. This is the basis, for example, for many exceptions to the Fourth Amendment recognized by the Supreme Court, such as the exigency requirement. Yet Judge Taylor, without any citation at all, baldly asserts that the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens." Slip op. at 31. She then turns to discuss FISA, ignoring the fact that if a search is constitutionally valid, it does not become invalid simply because a statute says otherwise (it may violate the statute, but that's a separate issue). Then she concludes:

The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

Id. I guess "obviously" dispels the need to actually engage in any analysis. So much for judicial reasoning.

If anything, Judge Taylor's First Amendment analysis is even worse. She notes that the plaintiffs have shown that they were 'chilled' in expressing themselves by knowledge of the surveillance. The flimsiness of the proof on that point notwithstanding, she continues by noting that the government can justify such a chilling effect "upon showing of a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." Slip op. at 32.

Does Judge Taylor then discuss the exigencies of the governmental interest involved, or compare the details of the program to some purportedly less restrictive alternative? Of course not, because that would require discussing the facts - and she has already said she could rule without those! So she instead cites some language in FISA and some language dealing with interests in suppressing criticism of the government, and concludes:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

Slip op. at 33. Say what?

Then, there's the separation of powers and the statutory conflict issues, which are dealt with in similar fashion. For example, Judge Taylor notes that the Supreme Court rejected the exigency of President Truman's seizure of steel mills during a strike in the Korean War (a case having nothing to do with surveillance), and baldly asserts:

As long ago as the Youngstown case, the Truman administration argued that the cumbersome procedures required to obtain warrants made the process unworkable. The Youngstown court made short shift of that argument and, it appears, the present Defendants' need for speed and agility is equally weightless.

Slip op. at 42. Note the word "weightless" - as in, not proven by evidence. What evidence? The evidence the court said the government didn't need, of course!

Finally, the court grievously mischaracterizes the "inherent power" argument, which, as I discussed previously, goes only to the question of what the source of the government's power is:

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

Slip op. at 40.

Anyway, the permanent injunction has, at this writing, alrady been stayed pending appeal; this will certainly not be the last word on the matter. However, even a momentary lapse in our ability to keep constant watch on Al Qaeda would have been enough to remind us of the dangers posed to us in the form of judges appointed by a Democrat a quarter century ago, and of the damage done to national security by leaking this essential terror-fighting tool on the front page of a leading newspaper. Shame on the Times, shame on the plaintiffs, shame on Jimmy Carter, and most of all shame on Judge Taylor.

Posted by Baseball Crank at 6:00 PM | Law 2006-08 • | War 2006 | Comments (64) | TrackBack (0)
Comments

And shame on the American people for not seeing the danger that others like Judge Taylor are putting them in.

Posted by: maddirishman at August 17, 2006 11:29 PM

This judge is just more evidence why Carter is considered by anyone with a clue to be the worst president of the U.S.

Posted by: LargeBill at August 17, 2006 11:58 PM

Bush's NSA snoops on every phone call in the U.S. minus so much as a look-see by a solitary judge, and you're calling the judge names? If there's a parody of bad legal reasoning here, it's your's, not the judge's -- who, by the way, adopted the same logic used by Bush appointee Vaughn Walker. The AUMF is not a blank check, despite your (and the administration's) eternally wishful thinking; a note from their own lawyer does not make their diktat law! This is the most shameful administration since Nixon's, and incredibly, with even fewer scruples.

Posted by: Rob McMillin at August 18, 2006 3:13 AM

Interesting post Crank, I always enjoy reading your analysis of these opinions. I suppose it makes little difference in the end what this judge says since this will end up in the SCOTUS but I'll be interested to see what the appeals court says.

Oh. May I?

Bush's NSA snoops on every phone call in the U.S. minus...

Great example of Greenwaldian argument - start with misstatement of the fundamental facts and proceed from there.

Posted by: Dwilkers at August 18, 2006 6:12 AM

Wasn't the FISA court set up in 1978 to handle such issues as state secrets and the contitionality of secret warrantless searches? At least in my non legal mind it would appear to. The state secret doctrine from the DC appeals court was changed by the introduction of FISA and FISA law should hold now on searches and wire taps.

The main question I have had throughout this entire warrantles wire taps is "How the FISA court is too burdonsome for the administration?"

Posted by: Big Tim at August 18, 2006 8:34 AM

Crank's reasoning may or may not be sound, but it is legalistic, and typical of today's so-called conservatives (who used to be concerned with the Constitution) who tend to work backwards from their goal of justifying the administration.
I feel quite confident in saying that Crank would not make the effort to justify an analogous Clinton aggrandizement of power.
If this administration can't function in secret it can't function at all- its policies have failed, even by its own ever-shifting standards, and it cannot tolerate the scrutiny necessary to a healthy republic.
Edit: this administration barely functions at all even in secret.

Posted by: higtaper at August 18, 2006 8:58 AM

Rob - First of all, you are egregiously misrepresenting the facts here. Second, I love how Greenwald's post cites almost exclusively to non-lawyer conservatives and then concludes that conservatives must not have any legal objections to the program. Third, how is the AUMF "a note from their own lawyer"? Last I checked, Congress is not Bush's own lawyer.

The AUMF entitles Bush to treat Al Qaeda and all those who associate with it as an enemy at war. Historically, that includes the right to surveillance of the enemy. I agree that the issue of the AUMF's repeal of FISA is a debatable proposition but I am heartened to see that the Administration takes an aggressive view of what it can do to defeat Al Qaeda.

higtaper - I would not defend Clinton if he used a program like this to, say, snoop on domestic phone calls between the Heritage Foundation and the RNC. But I would have no problem with Clinton acting aggressively in the nation's defense. No, if a Democrat wins in 2008, I won't be complaining if they continue policies like this one.

Posted by: The Crank at August 18, 2006 9:49 AM
The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process.
They won't have a problem. They like the song regardless of who the singer is, what the arrangement is like, or whether it's sung on-key. Posted by: Dave Schuler at August 18, 2006 9:55 AM

I think of FISA as a way of saying there are ways out of the 4th amendment. As always, after that, it is subject to the times and what we perceive as necessary.

My understanding is that the Bush Administration never tried to get a warrant even after the fact, even though they could. At the same time, we are clearly besieged by enemies, of whom Al Qaeda is but a part, that is planning mass murder. So we have the usual tug of war between limitless freedom and hindered privacy. So while the Bush Administration was and is on the right trail when they want to see what sort of tendencies our enemies use when they want to destroy us, they have also overstepped the rather loose bounds FISA placed on it. My guess is the ACLU does nto like FISA at all, so let them blame Jimmy Carter. It exists and it is law. The issue then in some way is that the Bushies monitor everyone too much, with no regard to restraint. This judge is the rubber band going the other way.

Ever hear the story when George Bernard Shaw asked a woman if she would sleep with him for $1000? When she said yes, he then said, "Take $20." When she then huffily said, "What do you think I am?" Shaw responded, "Madam, we've already established that. Now we are simply negotiating the price."

So that is what this is all about. The executive branch should not have unlimmited powers to monitor everything, but they clearly need the ability to monitor some things. They should indeed be able to monitor bank transactions. We've ceded that to the IRS whenever a transaction exceeds $10,000 now. Same with communications. So now we are simply negotiating. As it should be.

Posted by: Daryl Rosenblatt at August 18, 2006 10:06 AM

This judge is one more nail in the coffin of Liberal Democratic perfidy. I hope we do not, as a country, have to wait too much longer for these fools to retire or die off.

This type of reasoning and circular logic in the instant case is a throwback to the 1960's logic of superficiality and "don't trust anyone over the age of 30." Unfortunately for them, they are all over 30 now.

This ruling is pathetic!

Posted by: vet66 at August 18, 2006 10:18 AM

Vet66 says the following: "My understanding is that the Bush Administration never tried to get a warrant even after the fact, even though they could."

AG Gonzales has stated in his testimony to Congress that the administration has sought and obtained warrants, under the FISA rules, when it is necessary and appropriate.

Necessary and appropriate would likely be when the NSA hands off a file to the FBI, that is, when the surveillance goes from "foreign" to "domestic" targets, as defined by FISA. That is the key to this controversy--FISA applies to "foreign intelligence" activities that are occuring within the US. Under the definitions of FISA itself, if the _primary_ target for surveillance is outside the US, the FISA warrant requirement doesn't apply. The fact that a primary target is talking to someone _inside_ the US doesn't make the US-person on this end of the phone the target, hence, FISA still doesn't require a warrant.

What is disturbing to me in Judge Taylor's opinion is that she doesn't cite any FISA provisions or definitions at all, and doesn't doesn't see the difference between a military effort and a law enforcement effort.

Which leads to the final point: many critics of this program seem not to know or care the NSA is part and parcel of the military. It is overwhelmingly staffed by military personnel, and its work supports military objectives by the DOD, not criminal prosecutions by the FBI. This is why the AUMF is the controlling authority, not FISA. It is also why AG Gonzales continues to seek warrants once that line is crossed and FISA _does_ apply.

Posted by: DrSteve at August 18, 2006 11:45 AM

Didn't Carter himself have a signing statement that indicated that he would still be free to go beyond the FISA law given his Presidential Powers?

Posted by: rightwing at August 18, 2006 12:08 PM

Legal minds get so involved in splitting the rarefied hair that they never come down for a good dose of common sense. Hello - we are fight a war here. We are targeting the enemies of our survival. Please step aside while we secure our right to exist.

Morons.

Posted by: ColdComfort at August 18, 2006 1:10 PM

First of all, you are egregiously misrepresenting the facts here.

Just how do you know that? The program is by its nature secret, and what we do know -- entire floors of equipment in every major telco office -- indicates not a selective set of taps of a few individuals, but a mammoth trawling through every phone call imaginable. Since the President has refused to obey even the minimal and relatively flimsy standards set by the FISA court -- i.e. the NSA has illegally engaged in whatever wiretapping activities it has done -- I don't see how you can avoid the conclusion that the President has decided to push forward with a huge invasion of privacy on an unprecedented scale. This was exactly the scenario I feared when Clinton signed into law the ill-considered CALEA bill; only one administration later, we've got abuses left and right.

how is the AUMF "a note from their own lawyer"?

Gonzalez has tried to paint everything the President does subject to the AUMF and as a result "legal" without review of any kind. At least, this is the sort of scenario he hopes will pass muster with everyone else; it certainly explains why the administration has been so hot to keep cases like this one out of the courts. Tell me, Crank, is there anything the President could do that wouldn't be subject to the AUMF? Why, just the other week, we heard that the President was trying to introduce a law that would allow the Secretary of Defense to declare any crime he liked a subject of military tribunals where the Bill of Rights would be a dead letter.

I know, I'm just one of those Greenwaldian crazies who takes the Constitution at face value rather than the more, um, "sophisticated" view the neocons do, but quite frankly, I like the idea of the United States not turning into a surveillance state with extraterritorial gulags.

Posted by: Rob McMillin at August 18, 2006 1:45 PM

Sorry, the above should have read "... introduce a bill ..."

Posted by: Rob McMillin at August 18, 2006 1:45 PM

The bottom line is whether the NSA surveillence program is a violation of the Fourth Amendment. If it is, can anyone please tell me why sobriety checkpoints and airport searches are not?

Posted by: Dave McGinley at August 18, 2006 1:52 PM

Rob, you have now shifted from making factual assertions to placing the burden on me to deny facts we have no way of knowing. Which, incidentally, just underlines why Judge Taylor was so wrongheaded in claiming that there are no further state secrets here that would have to be disclosed to evaluate the program.

You also appear to be confusing the data-mining operation that monitors a broad stream of calls - and which Judge Taylor left undisturbed - with the much narrower program under which specific flagged calls get human review.

I'll deal with some of the other AUMF issues separately another day. But obviously the President's implied authority under the AUMF is, as I discussed in my December essay (which I hope you have read), limited to the common-sense and in most cases traditional incidents of warfare - signals intelligence, disposition of captured combatants, etc.

Posted by: The Crank at August 18, 2006 2:09 PM

Dave - That's basically the type of reasoning the 2d Circuit relied on last week in upholding random searches of bags on the subway against another ACLU challenge.

Posted by: The Crank at August 18, 2006 2:11 PM

Let one "lefty" pipe in here, if I may. A background fact or two:

1. I believe that Bush & the NSA violated FISA. No doubt. Kerr's December piece on Volokh sums it up.

2. I want to see Bush go down for this & other things, in general.

3. I'm a lawyer.

Therefore . . . I have to acknowledge that Judge Taylor's opinion is an absolute joke. Just ridiculous. She misses the only easy fly ball in the game (FISA), and gets bogged down in overheated rhetoric and irrelevencies, while ignoring facts, precedent & legal reasoning.

I think this controversy is the Administration's to lose, but the 6th Circuit's gonna reverse this holding. I have no doubt.

And I think that's a shame. But I just want to show y'all that there are plenty of us on the left that have honesty & integrity, and can admit when a judicial decision isn't up to snuff.

More on this at my site if you're interested.

Posted by: Mike at August 18, 2006 3:15 PM

I find it odd that you ignored the part of her decision where the judge states that she reviewed confidential documents provided in defense.

She obviously knows a lot more than we'll be aware of for a long time. FISA worked. At least it did before Bush turned into a raving paranoid fueled by his neo-con buddies.

My own conjecture leads me to believe that most of the taps conducted were absolutely useful which necessitated this disavowel of the usefulness of FISA.

I also find your statement that you would have applauded similar actions if they'd been undertaken by a Democrat disingenuous.

Posted by: Kris at August 18, 2006 3:45 PM

CORRECTION:

...most of the taps conducted were absolutely USELESS...

ick

Posted by: Kris at August 18, 2006 3:47 PM

1. We don't know what the govt gave her under seal, but we do know that she purported to rule on the merits entirely on the basis of a few bare-bones public disclosures, and we do know that the government, rather than provide a full record, took the position that they would simply not compromise state secrets. Part of the state secrets doctrine is the longstanding recognition that even in camera review is not a sufficient safeguard, as the Tenet opinion reaffirmed.

2. Believe what you want. I am in favor of a vigorous national defense.

Posted by: The Crank at August 18, 2006 4:04 PM

I am in favor of a vigorous national defense.

That also garrotes a millennium's worth of legal protections against abuse of power. We should be very interested in safeguarding those protections, not eliminating them. Bush thus becomes more dangerous than Osama Bin Laden as a proximate threat to the United States. As with Kris, I find your claim that you would be in favor of a Democrat to have such absurd and dangerous powers both absurd and disingenuous.

Posted by: Rob McMillin at August 18, 2006 9:00 PM

And by the way, Crank, exactly how am I misrepresenting the facts in this instance? We have a deposition from an AT&T employee discussing the nature of the gear in the CO. This is trawling, not selective wiretaps.

Posted by: Rob McMillin at August 18, 2006 9:02 PM

Surely there is some remedy for legal malpractice at this level?

By summarily and willfully ignoring precedent, isn't that an example of judicial conduct that can lead to sanctions?

Posted by: anon at August 18, 2006 10:04 PM

.....entire floors of equipment in every major telco office -- indicates not a selective set of taps of a few individuals, but a mammoth trawling through every phone call imaginable. Since the President has refused to obey even the minimal and relatively flimsy standards set by the FISA court ......

What, are you writing your own movie here? Olive Stone, is that you?

BTW, it was a 1994 law signed by President Clinton that mandated telephone companies to comply with data mining.

Posted by: gm at August 18, 2006 10:12 PM

The opinion in this case is so awful that it literally comes close to rising to the level of sarcasm. Since there is no SC case on point regarding a warrantless search and seizure for foreign intelligence; analysis of reasonable expectation of privacy and the ?reasonableness? of such is search is required. Such analysis is noticeably absent from the opinion. Where is the discussion of the 3rd, 4th, 5th, and 9th circuit opinions recognizing a foreign intelligence exception to the warrant requirement and how why it shouldn?t be applied in this case? And how about a discussion of the cases (and I don?t think there are any at any level) that expressly refute warrantless searches for foreign intelligence. Where is a discussion of the recent FISA court of appeals case? It demands mentioning that both Katz and Keith (cited by Taylor) acknowledge that they don?t address the question presented here (and perhaps even that a footnote in Keith acknowledges that theses searches may be constitutional). The cases permitting warrantless border searches and permitting the opening of international mail without a warrant at least lend enough support to the fact that warrant may not be required when the search and seizure has international elements involved. At least enough support that these cases must be analyzed and distinguished.

Further, in light of the NYT exposure of this program, people who admittingly thereafter communicate with those in the middle east that are thought to have connections to Al Qaeda MUST have a reduced expectation of privacy in their communications.

Further, (and there may be some answer to this) how can there possibly be standing for a 4th amendment claim in this case?? Nothing indicates the plaintiffs are even remotely threatened with criminal prosecution!!!!!!! I understand there is some support for the position that the ?chilling? effect of a law on speech rights, might rise to the level of an injury in fact sufficient for standing, but how can that possibly be for a 4th amendment claim!!?? And for crying out loud, the undeniable fact that the plaintiffs don?t even know for certain that they are being monitored is essentially ignored!!! Instead that court harps on the fact that the odds seem to favor that they are being monitored. That has to affect the standing issue in regards to the 4th amendment claim.

Among a lot of things, the court?s use of the facts in this case is shockingly bad. Either more facts exist in the affidavits and other documents and the court just leaves these out of the opinion or they simply don?t exist.

Although I am glad the data mining claim was properly tossed, I am a little confused at the logic. I don?t know much about the State Secrets Privilege, but here is what strikes me as odd. She applies the SSP to the data mining, apparently convinced that it requires revealing secret information vital to national security. But she won?t toss the TSP claim citing three facts that she says the Bush administration constantly repeats and based on these facts thinks the prima facie case for the claims has been established. Certainly those same three facts are as equally known and not secret for the data mining operation. Its been known that the data mining operation, at least in regards to phone numbers, 1) exists, 2) operates without warrants, and 3) targets communications to terrorists. So why does one get tossed and not the other? If I am not mistaken, courts have approved of data mining operations without warrants. I would like to think that was perhaps a factor and she couldn?t avoid it. But I don?t recall her mentioning it in the opinion.

I would be interested in knowing Judge Taylor?s stats concerning the number of opinions that have been authored by her and subsequently overturned. The opinion is so poor that if it the author was unknown, it would be assumed the person had no legal training at all.

Posted by: Bill Braskey at August 18, 2006 11:14 PM

What, are you writing your own movie here? Olive Stone, is that you?

The facts hurt, don't they? Resort to sarcasm all day long, it won't change 'em.

BTW, it was a 1994 law signed by President Clinton that mandated telephone companies to comply with data mining.

And so what? That was my point upthread; Clinton certainly couldn't be trusted with such equipment, and neither can the power-mad Bush.

Posted by: Rob McMillin at August 19, 2006 2:48 AM

Rob your link is to a story about the internet data mining operation not the TSP. That hardly represents "Bush's NSA snoops on every phone call in the U.S." or "mammoth trawling through every phone call imaginable", and as to "That also garrotes a millennium's worth of legal protections against abuse of power" - a millenium?

Those are the facts you're misstating. There is no effort by "Bush" to snoop on "every phone call in the US", or to trawl through every "phone call imaginable", and there isn't a "millenium's worth of legal protections" to garrote.

Well, there aren't such efforts as far as we know anyway, and all we can intelligently discuss is what we know about.

Moreover its interesting that you call Crank's assertion of being in favor of vigorous national defense regardless of what party is in power "absurd and disingenuous" then follow that with a declaration that you would be against it regardless of which party was doing it. You seem to be asking to have a grant of assumed honesty extended to you that you are unwilling to grant in return.

This program raises interesting conflicts and issues. How is "reasonable" applied here? How many phone calls intercepted in the effort to protect the population of the US would be reasonable when weighed against the implied privacy invasion involved?

To me this program seems to be very finely drawn, and its certainly possible to be opposed to - or in favor of - it as it has been described. The effort to debate that is made impossible by hyperbole about every telephone call in the US being snooped upon and vitriol about "power mad" etcetera.

The thing that's missing is abuse. If there was evidence that this was being used in a partisan or self aggrandizing way the public support for it would drop to around zero overnight. Since there isn't any evidence of that all the hyperventilating over it seems fairly odd to me. Yes, it poses the usual questions about civil rights and privacy verses public safety. No, it doesn't seem to represent some jaw dropping abuse of power or corruption.

Posted by: Dwilkers at August 19, 2006 5:46 AM

Context matters;
is the gathering of info by the bush administration the problem? is the bush administration spying on U.S, citizens for political advantage or is he spying of citizens for the sake of security? the former would be criminal the latter would be prudent. the judge condems all spying. until it can be proved that the bush administration has spied for the purpose of political advantage all of this is paranoia. As of today no evidence exisist. i would hope there would be rational behind the thinking in the application of the law but for to many paronia seems to be the driving force. BTW, if yjjou are the victim of a terrorist attack will you care if the bush administation is listening????

farmerjoe

Posted by: farmerjoe at August 19, 2006 9:38 AM

Remember that in Hamdan v Rumsfeld, both majority and minority opinions agreed that the AUMF constitutes a declaration of war and triggers the President's war powers?

Remember the argument in ACLU v NSA, here, where Judge Taylor agrees that the plaintiffs had to specify instances where they actually contact suspected terrorists regularly in the conduct of their jobs?

Judge Taylor has decided here that the US Constitution guarantees citizens the right to contact the enemy during a time of war, if it's necessary to do their job, with no fear of surveillance.

That's an absurd result, on the order of 2+2=7, and an 8-year-old could see it.

"Sure, Mr. IBM, Mr. Ford, Mr. GM, you can call up Adolf Hitler's procurement department to discuss the status of your engine plants in the Ruhr Valley. Don't worry, we won't be listening."

The Constitution guarantees this. Right.

Are they INSANE?????

Posted by: Phil Weingart at August 19, 2006 11:07 AM

This fellow Rob McMillan claims "rooms full of equipment," for an effort by "Bush" to snoop on "every phone call in the US", or to trawl through every "phone call imaginable". In support, he posts a single article reporting (but not confirming) a single complaint at a single site in San Fransisco, which posits "a secret room" in which, based on my experience with network equipment, there was probably a single, decent-sized workstation coupled to a large data array and a network tap.

Never mind that it's probably equipment doing the stuff even Judge Taylor agreed was perfectly legal. I'd say Rob overstated his case.

This is why I always read the links leftists provide me. They NEVER say what the poster claims they say. The consistency of this result over time has been so remarkable that I no longer have to trace down the reports before I know I'm being lied to.

McMillan, you've got serious honesty issues. Stop going after "Bush" and take a hard look in the mirror.

Posted by: Phil W at August 19, 2006 11:18 AM

I am not a lawyer, but I do have a background in intel and warfare.
What McMillan, et al seem to forget (or just may not know) is that while some SELECT calls are monitored, (specifically only ones into or out of the US from areas KNOWN to be frequented by enemy elements,) algorithms are what monitors, not necessarily human, until the "pieces fit". In other words, there is specific criteria that must be met in order to trigger more intense review. Otherwise, the program just continues on to the next call. If you're not breaking the law (treason, etc.) then you really have nothing to worry about.

Another aspect which gets left behind, is that although the taps (algorithms) monitor those calls, if there is a shred of suspicion that there is more than meets the eye, then a warrant is immediately called for. In other words, while the initial contact may be unwarranted, if there is anything worth pursuing, it is legally cleared. Period. I don't see how anyone can have issue with that. It obeys the intent and letter of the FISA.

All this Chicken Little mentality is going to get us killed, and if it affects ME, I'll be very pissed at you!

Let them do their job.

Posted by: Paul at August 19, 2006 1:13 PM

Let them do their job.

Yet you seem to ignore, Paul, the salient question of "for whom do they work?"

The answer: They work for us.

And many of us, just as patriotic & as "tough on terror" as you, wish to include "obey the requirements of the federal statute" as a very key part of that job.

FISA gives them 72 hours after the wiretap to procure that warrant. But Gonzo & Bush & NSA say they don't have to do that. Well, some of us say they do.

And they work for us.

Posted by: Mike at August 19, 2006 3:09 PM

.....entire floors of equipment in every major telco office -- indicates not a selective set of taps of a few individuals, but a mammoth trawling through every phone call imaginable. Since the President has refused to obey even the minimal and relatively flimsy standards set by the FISA court ......

This isn't too persuasive.
First, "monitor every call" is literally impossible, though you don't care about facts obviously.

Secondly, I love how you kids on the left "argue" that Bush should just go to the "rubber stamp" court and everything would be ok.

Posted by: The Ace at August 19, 2006 5:02 PM

FISA gives them 72 hours after the wiretap to procure that warrant.

This is a bit more complicated than that.

But, you're not interested in facts either.

And many of us, just as patriotic & as "tough on terror" as you, wish to include "obey the requirements of the federal statute" as a very key part of that job.

Actually, you're not "tough on terror" nor do you take the threat seriously.

See, saying you're "tough" on something and then inserting a thousand "buts" into why you shouldn't be aggressive against it isn't "tough."

For example, you have utterly convinced yourself the statute in question applies, even when it doesn't.

"tough on terror"?
No

A joke?
Yes

Posted by: The Ace at August 19, 2006 5:06 PM

FISA was set up to slow down HORRIBLE presidential abuses--and the court allows just about anything else. The earlier note that there would be no objection as long as Clinton did not spy on Hertage Foundation etc...is so close to getting the point---it is to curb such abuses that court review is needed for EVERY adminisration. Note missed by all the press I have seen (I read the court opinion): the data mining was NOT stopped.

Historical query: how many democracies have been overthrown from abroad vs from "law and order" (whether left or right) groups within? A non-trivial answer.

Posted by: Attorney steve at August 19, 2006 10:39 PM

I think that you overreact just a little bit. The judge was able to make a plausible chilling argument based solely on undisputed facts that support Standing. The theory is that the plaintiffs have professional needs to talk to terrorists and the like who have a reasonable expectation of being surveiled, given both pronouncements by the government and the expose by the NYT. The plaintiffs were talking to them before the disclosure of the TSP, and that communications after disclosure have dried up. Note that this doesn't depend on the terrorist, et al. actually being surveiled, but rather, that their fear of such led them to not talk to the plaintiffs over the phone.

Of course, that doesn't mean that it is a winning theory, because, as noted above, it would mean that Americans have a 1st Amdt. to speak freely with the enemy during a war, which is not likely I think to prevail.

It is the rest of the decision that is really the most suspect. Over at volokh.com, a lot is being made of the fact that the declarations by the plaintiffs that they had reason to believe that they had been surveiled were unrebutted is sufficient to support the statutory (which statute?) and 4th Amdt. violations. But that of course ignores that the reason that the declarations were unrebutted is that that would require a disclosure of classified information. The government most likely refused to confirm or deny the declarations by the plaintiffs whenever oprational data was involved. And, thus, while it is common for judges to based summary judgement decisions on unrebutted declarations, she can't legitimately do so this time.

And without this, none of the other allegations have any factual basis. Thus, her conclusary decision that the 4th Amdt., statutory law (she never tells us which statute), or the APA were violated are all w/o factual support.

Posted by: Bruce Hayden at August 19, 2006 11:15 PM

Ace-

Thanks for the kind words. You should have called me "a joke" in bold face, as with your other dismissive comments.

Secondly, I love how you kids on the left "argue" that Bush should just go to the "rubber stamp" court and everything would be ok.

Ace, you don't get it. We "kids" aren't saying it will or won't be ok if he goes for his rubber stamp (interesting use of the Strawman, by the way; fairly subtle). We're saying that Bush should follow the law like everyone else.

The fact that he won't is the problem. That he thinks it's ok to rationalize the reasons he doesn't think he needs to follow a statute. And you kids on the right never seem to understand that.

We don't work for Bush. He works for us. Understand that or you'll never understand what "we" want.

Posted by: Mike at August 20, 2006 1:10 AM

A question please?

Don't federal judges have clerks that write their opinions for them?

I thought the way it worked was that the judges would tell the clerks how they were going to rule and why and the clerks drafted out the opinion and produced the background legal stuff, then the judges did final corrections and additions to the opinion as they wished.

I'm just curious because it seems everyone agrees the opinion is poorly done as legal craft.

Posted by: Dwilkers at August 20, 2006 6:26 AM

Dwilkers "gets it." The only reasonable conclusion is that the opinion is so poor because it was not written by the judge.

Assuming that is so, the next question is why her law clerks are running on their own, minus oversight and review?

"Lazy judge" comes to mind. But there's another horrifying possibility -- the judge herself is no better than the law clerks.

And don't get me started on the law schools -- they (with a few exceptions) are nothing more than political correctness indoctrination internment camps.

This "opinion" is really a left wing public policy paper.

Posted by: platypus at August 20, 2006 10:02 AM

Mike,

As a 16-year Army Intelligence type (I specialize in Human Intelligence) currently working on the ground in Baghdad, I am calling BS on your "monitor every call" statement.

I worked in Panama doing counter drug operations in the 90's. Even with the full cooperation of the national phone companies (not US) we were able to evaluate about .001% of phone calls (roughly 1 million distinct nodes). We used linkage to determine interesting phones.

While computing power is higher now, I would doubt the US has the ability to monitor 250 million (or more) cell phones domestically. I can hear my friends in SIGINT laughing about how powerful everyone thinks they are. Let me give you the math. If each phone (plus or minus 250M) is used for ten minutes each day, then you would have 2.5B minutes to be monitored - roughly 100M per hour or (again roughly) 28,000 minutes monitored PER SECOND! You'd have to have a group ten times larger than the current force deployed to Iraq working 24/7 to listen to the calls. Even if you eliminate 99.99% of all call minutes, you still are talking about 168 seconds of talk time per second of monitoring. If the NSA puts 5000 (and they don't have that many) analysts to work for 40 hours a week each (with no time lost) you can monitor 200K minutes a week, or roughly ten seconds of talk time in the US.

I wish I was as all powerful and all knowing as you seem to believe me to be. I lived through the Clinton years - and had my calls to the US monitored without a warrant (I knew the team listening). Know what I did? I made my calls as normal - I didn't break the law on the phone. Know why the people who filed the suit are "chilled" by the thought of monitoring? Because they know they did/are/will be communicating with an enemy of the U.S. during wartime - and commiting a crime against their nation. Don't give me "part of the job". You know better; ethical and/or moral codes of ethics require better of lawyers, academics, and clergy. If you don't think so, consider the medical community rejecting research coming out of Nazi Germany from WWII.

SGT Dave - livin' the dream in Baghdad

Posted by: SGT Dave at August 20, 2006 12:08 PM

Ace, you don't get it. We "kids" aren't saying it will or won't be ok if he goes for his rubber stamp (interesting use of the Strawman, by the way; fairly subtle).

Strawman?

Um, stupid, I actually quoted someone saying that.

The fact that he won't is the problem. That he thinks it's ok to rationalize the reasons he doesn't think he needs to follow a statute.

1. They've obtained over 5.000 FISA warrants since 2001. So there is no "won't" there.

2. The history of our Republic is chalk full of instances where statutes were ignored by the executive, and here is the Clinton Admin "rationalizing" that:


As we stated there, the Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. (16) Because "[i]t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers." Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.

More:


.Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

Then:
We don't work for Bush. He works for us. Understand that or you'll never understand what "we" want.

Thank you captain obvious for pointing out the President is elected.

What you "want" is silly, ignorant, and childish.

Posted by: The Ace at August 20, 2006 12:09 PM

What in God's name does the fact that the judge is a Jimmy Carter appointee have to do with anything? Mentioning that in the first sentence does nothing to take away from the validity of her ruling as much as it does from your argument. Would it make it more palatable if she was a Reagan appointee instead?

Posted by: curious at August 20, 2006 1:02 PM

Peeps like SG Dave seem well-intentioned, but r very dangerous. It a human fact that unchecked power corrupts. Not very long ago, 1972 say, the president used wiretaps for personal power. While our current president, I believe, does not, it is inevitable that another one, soon, will--if left unchecked. Despite all the Fox News paranoia to the contrary, courts are weak "checkers," but they are way better than nuthin.

Are we a nation of laws, or men? It would be good if SG Dave realized that he was a law breaker, and the fact that government law-breakers are rewarded, not punished, will do little for the freedoms of his grandchildren.

Posted by: Attorney steve at August 20, 2006 3:53 PM

Acy Baby-

Leading off with invective again, huh. Let me remind you here of what I've already told you on your own blog: call your opponent "stupid," "captain obvious" & "silly ignorant & childish," and you've all but admitted to him, and all those who are reading, that You've Lost The Debate. Congrats.

As to the "substance" of your argument, you lay out a directive from Slick Willie (again with the subtle Strawman; try a new technique, big fella, I'm on to this one). Ummm, so what's the import of that? I no more take my orders from Clinton than I do from Bush.

Frankly, Ace, who the hell cares what Clinton says? He's another liar & sneak, like Bush is.

Whether Dem or GOP: the chief executive is my employee, not the other way around. Once again, understand that or you'll never get what we're talking about.

Posted by: Mike at August 20, 2006 4:47 PM

And what if we will out, a few year down the road, that the purpose of all this secrecy is to cover up spying on WH political enemies. I'll be looking for Crank's comments then.

Posted by: higtaper at August 20, 2006 5:11 PM

As to the "substance" of your argument, you lay out a directive from Slick Willie (again with the subtle Strawman; try a new technique, big fella, I'm on to this one). Ummm, so what's the import of that? I no more take my orders from Clinton than I do from Bush.

Um, how is it a "subtle strawman" when it is an

Leading off with invective again, huh. Let me remind you here of what I've already told you on your own blog: call your opponent "stupid," "captain obvious" & "silly ignorant & childish," and you've all but admitted to him, and all those who are reading, that You've Lost The Debate. Congrats.

on point reference to exactly what you said?

Oh, it isn't.

You're lying, that's how.

What is comical is that you can't reply to the substance as you don't have the facts on your side so you must pronounce it a "strawman" and try to move on.

Pathetic.

Leading off with invective again, huh. Let me remind you here of what I've already told you on your own blog: call your opponent "stupid," "captain obvious" & "silly ignorant & childish," and you've all but admitted to him, and all those who are reading, that You've Lost The Debate. Congrats.

Um, idiot, those are facts.

You can't read.
You are stupid.

You can't even begin to address what I posted so you focus on style.

Everyone reading knows why.

Posted by: The Ace at August 20, 2006 5:25 PM

Frankly, Ace, who the hell cares what Clinton says? He's another liar & sneak, like Bush is.

Er, it isn't just Bush making these legal arguments.
You know, the ones you can't respond to.

But as a not so bright person, nobody is surprised.

Ummm, so what's the import of that?

It means that the Executive has almost always held the view regardless of party that a statute can't encroach on the President's powers.

I helpfully reposted your comments and made references just below them with facts eviscerating your bullshit and your reply is "strawman."

Telling.

Posted by: The Ace at August 20, 2006 5:29 PM

Whether Dem or GOP: the chief executive is my employee, not the other way around. Once again, understand that or you'll never get what we're talking about.

Me
Me
I
I

Wow, what "great" response, jackass.

Posted by: The Ace at August 20, 2006 5:33 PM

Are we a nation of laws, or men? It would be good if SG Dave realized that he was a law breaker,

Hilarious.

I'd love to see you provide evidence of this.

Posted by: The Ace at August 20, 2006 5:38 PM

Jeez, Ace. You sound pissed..

The substance of the debate, my friend, was my simple statement that George Bush works for us, and that I find his "I'm fine so long as I substantially follow a statute" stance to be unsatisfactory.

For some reason, you saw fit to blow a gasket at that point, calling me "a joke" & impugning my stance on terrorism. And then as the debate progressed, you rambled further & further off point, while calling me "stupid," "captain obvious" & "silly ignorant & childish."

And now, to top it off, you go off on an unhinged rant, using bold face, quoting me (in block quotes, no less) multiple times, jumping associatively from one topic to the next, all the while uppering the ante yet again with "idiot," "stupid," & "can't read." Finally, you tell me I'm lying.

Uhhh, that'd be why I chose to "focus on style." If you think courtesy & decency are elements of style, then you & I nead to meet on the same planet before we continue this discussion.

As already said, the "substantive" debate was pretty simple. The tried-and-true "I disagree, and here's why . . ." technique has worked for millenia.

Give it a shot if you want this to go any further.

Posted by: Mike at August 20, 2006 5:43 PM

"Are we a nation of laws, or men? It would be good if SG Dave realized that he was a law breaker,"

Not sure who said that. Not me.

Posted by: Mike at August 20, 2006 5:44 PM

George Bush works for us, and that I find his "I'm fine so long as I substantially follow a statute" stance to be unsatisfactory.

and your opinion isn't informed or really relevant.

You sound like a spoiled child (he works for ME!) but as a liberal, nobody is surprised.

For the record, this isn't "substance" it is your silly opinion.

As already said, the "substantive" debate was pretty simple. The tried-and-true "I disagree, and here's why . . ." technique has worked for millenia.

Except the why contained false statements.

If that is "debate" to you, you're even dumber than I imagined.

And yes, I'm calling you stupid and I'm clearly demonstrating how and why.

Posted by: The Ace at August 20, 2006 5:47 PM

Acy boy-

If that is "debate" to you, you're even dumber than I imagined. And yes, I'm calling you stupid

Thereby demonstrating your own definition of debate.

Not interested.

Cheers,

Mike

Posted by: Mike at August 20, 2006 5:54 PM

Thereby demonstrating your own definition of debate.

Coward.

Those with no substance complain about style.

I've seen it a million times.

What is funny is I'm actually making references refuting your nonsense and your reply is "straman, because I say so"

Hilarious.

Posted by: The Ace at August 20, 2006 6:06 PM

How exactly does making the administration get a warrant to wiretap weaken our defense or harm the war on terror?

Are you saying there is a traitor in the Justice Dept?

Posted by: Robert at August 21, 2006 12:50 AM

Nope, no law-breakers here.

I have a copy of 27-10 "Law of Land Warfare". That is the whole Geneva and the Hague Conventions translated into Army-speak. Electronic signals are not private communications; if you can grab it out of the air, it is fair game. (I don't have the legal reference, but it was under the War Powers Act in regard to the OSS in WWII).

If you want privacy on a two-way radio (which a cell phone essentially is) you need to use a code or encryption.

Don't tell me about abuse of White House authority, not with the Clinton years in the rear-view mirror. I had a commander relieved for telling the truth in a report that was unfavorable to that administration. I can't elaborate (I wish I could) but my clearance agreement does not allow it. Unlike some at CIA, I'd go to jail for disclosing classified material.

My basic point is this - the people claiming to have their rights violated under this program also admit to felony activities not constrained by FISA because they involve activities with non-U.S. persons. Read Executive Order 12333 for the definition of U.S. persons under surveillance law. The 15 sections of 12333 apply to the military only, but the definition is the one used by the U.S. government to determine jurisdiction.

Conversely, the White House does not have the resources to do political blackmail on the scale you fear at this time. Too many people involved to keep it a secret - again, numbers. If you just target the Democrats in the Senate and House (Roughly 250 for easy numbers), multiply by staff and/or support personnel (say, 50 each), then figure one cell phone and one land line each comes to 12,500 lines. Figure three hours per day per line gets 37,500 hours per day of intercepts. Again, at 40 hours per week you would need about 6500 people listening. Even if a computer helped by cutting 95% of calls, you'd still have over 300 analysts with nothing else to do but listen to calls for "political gain".

Take off the tinfoil hat; we MI (and other intel) types are good - just not Superman.

Oh, by the way, I am not a crazed supporter of the R-side. When I still resided in MO, my representative was Ike Skelton-tough on Defense and military matters. I didn't like his big-government ideas but he was better than the alternative. Bush isn't ideal for me (I'm a social libertarian that doesn't like any government in my medical/school/social programs while supporting a strong defense and wanting better border security and legal immigration enforcement), but he was much better than Kerry.

SGT Dave, livin' the dream in Baghdad

Posted by: SGT Dave at August 21, 2006 3:03 AM

How exactly does making the administration get a warrant to wiretap weaken our defense or harm the war on terror?

Gen Hayden (and the AG) answered this.
Speed, speed, speed.

Note: you not liking the answer isn't a rebuttal.
Further, you're asking the Admin to get warrants when they don't need one under the law.

It doesn't take too much critical thought to figure out why that sets our efforts back.

These aren't serious questions.

But since you asked:

“Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow. “Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process.”
-from the 9/11 Commission

Coleen Rowley, FBI agent:


the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, are burdensome and restrictive, a virtual roadblock to effective law enforcement

But let's substitute your judgement for theirs.


Posted by: The Ace at August 21, 2006 12:56 PM

Would a better question be is this program the best use of our government resources to fight the war on terror? I guess good old fashion police work and the use of informants is out dated.

http://www.theregister.co.uk/2006/08/17/flying_toilet_terror_labs/

Posted by: Javaman at August 21, 2006 6:10 PM

Ace is an ass: he quotes that FISA warrants are "a virtual roadblock to effective law enforcement."

Ace, that statement is called an obvious lie. (And yes, unlike Bill O'Reilly, you should know that putting on a badge does not prevent someone from lying.)

FISA warrants are almost never denied and are granted AFTER the warrant is in place. Some bottleneck. If the DOJ and the FBI have a "bottleneck," sigh, doesn't that say something about the effectiveness of the Bush administration and his minion Gonzales?

Ya know Ace, I read (translated) the Soviet Constitution; it had wonderful words. If the 4th Amendment is to be more than pretty words, then the guys with guns have to explain, every once in a while, why they invade privacy.

I suspect Ace is like Rush Limbaugh: mock freedoms, but when the cops knock on your door, you discover all sorts of privacy rights.

Posted by: Attorney Steve at August 22, 2006 2:31 AM

With all this talk of trying to out-judge and out-lawyer the arguements of the case - it amazes me, that my perception of the difference between Republicans and Democrats. Is that Rep believe in low state control and more private freedoms (eg low tax and low social policies) whilst Democrats are the opposite - and yet, you seem to think that when it comes to security the Government does know what is best - and should be allowed to do whatever it likes (even if its illegal) because they are smarter than you, and therefore better abled to protect you. Have any of you spared any thought for the millions of people around the world who aren't facing a higher risk of attack because they aren't constantly messing around in other peoples business. The young Americans dying in Iraq - how many Iraqis want them there? how many of their parents want them their? Why of all the battles being fought in the world currently - this is the only one you chose to fight (perhaps oil???)

Posted by: John Clayton at August 24, 2006 1:16 AM

Hmm, let's make it simple: John Clayton, you are a fucking simpleton asshole. "Have any of you spared any thought for the millions of people around the world who aren't facing a higher risk of attack because they aren't constantly messing around in other peoples business."
Right. "Perhaps oil?" Douchebag. Keep your rhetoric to yourself. Your comment grazed issues, then veered off into trash.

Posted by: abe at August 24, 2006 12:34 PM

I find it interesting that people have such different polarised opinions - but you (Abe) havent offered an opinion, merely a torrent of insults. I think perhaps (if you travelled just a little) you would find that the reason your insults mean nothing to me, is almost universally it is PROVEN, that Americans are now disliked. Do you disagree (or merely wish to insult), can you name a single country that has a high opinion of Americans? (even your favourite poodles - the English, regard you as CRAP - as per John Prescotts comments)

Posted by: John Clayton at August 24, 2006 4:03 PM
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