Sep 06 2006
Ground Hog Day On NSA
Lawyers and a judge attempting to determine the legality of the NSA Terrorist Surveillance Program, and how it touches people here in the US, were stunned to realize the administration doesn’t see the NSA program a violation of FISA:
In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.
It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.
“We don’t agree,†the lawyer, Anthony J. Coppolino, said, “that the government has specifically conceded that point.†He added that the question could not be answered without endangering national security.
That’s because the NSA’s surveillance has been going on for decades. The NSA, under military orders, monitors our enemies. Iin this time of war on terrorism the NSA monitors terrorists who have been determined to be organizing, planning and supporting attacks on America, her citizens and her allies. The NSA is a military outfit and under the military chain of command. It is not a law enforcement agency and has NO STANDING to request warrants from a federal court.
Conversely, the Judicial branch cannot be directed to confirm or affirm orders given through the military chain of command. Can you see a judge demanding commanders get his or her permission before attacking, killing, destroying, capturing enemy personal or property? What next, Miranda rights before a battle? “You have the right to surrender. If you give up that right to surrender you may be captured, maimed, killed or forced to watch Dan Rather”.
The NSA portion of this issue has always been ‘legal’. What the FIS Court opposed post 9-11, and the NY Times totally misreported, was that after 9-11 the NSA began passing leads it had uncovered regarding terrorist contacts here in the US to the FBI. Prior to 9-11 the tradition and Gorelick wall required any leads the NSA (and presumably all other intel agencies like the CIA) had on people in the US associated with terrorism were simple destroyed. The military may be able to give local law enforcement information on a local robbery suspect, but identifying potential terrorists was a big no-no.
The FBI now investigates these leads and, if there is something dangerous discovered, they go to FISA to gain a warrant to all communications related to that suspect can be monitored. People who say the NSA must go to FISA or that the NSA must need a warrant are just not dealing with reality. Since when can a judge insert itself into the chain of command?
The answer is so simple it amazes me all these talking heads cannot grasp it. If the NSA passes on a lead to the FBI, and the FBI investigates that lead and determines there is a danger – the FIS Court should allow for an emergency 3-6 month warrant. After that time the process begins again. That way the NSA does its normal job – listening in on terrorists – and the FBI and Courts deal with suspects here under FISA. The only gap is people who talk to terrorists will always have those conversations monitored. After all, they are communicating with the enemy. What did they expect?
AJ, I’ve lost count of the number of times you explained this, and in terms simple enough for even the most simple-minded and uninformed to grasp. And yet, there are still those, almost exclusively on the Left, who keep repeating the same tired phrase “what’s wrong with getting a warrant?” I think it’s waaaaaay past time that we ignore such people, and get on with what has to be done to defeat our enemies.
Spook,
I hear ya!
“It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.”
Unfortunately, the democrats and leftwingers are using this to help defend their arguments that this program is illegal.
Sure can’t argue with these people!
Sure can’t argue with these people!
Not sure what happened to the rest of my comment, which was “No, so the only thing left to do is DEFEAT them”!
Just to throw a little throwback wayback machine into the mix, how many on the most protective of personal info and aggregious access by the comisar goberment abusive….add your adjectives here, remember the 500+ Hillary FBI files “research project”
Has anyone seen a list of the files accessed?
Two senarios come to mind
1) who do we have to bend to place our “prior administration members” in post clinton juicy positions.
2) who has “pressure points” that can be exploited to block future agenda items when we are “on the outside”
3) Yeah I only promised two, Hillary was only interested in who contributed to Girl Scout Cookies on a regular basis!
It takes a village, but have you ever seen what Napalm can do to a village?
Another favorite mantra from the left:
“No one wants to destroy the program…we JUST NEED TO DO IT LEGALLY.” Sigh.
Again…s.l.o.w.l.y…for the mentally impaired…it IS legal…GET OVER IT AND GET ON WITH IT…your life or whatever the heck you were doing before you decided to make all our lives miserable with you whining and complaining.
JEEZ!!!
Carol
I have a problem with their efforts to legalize an already legal program.
Sigh…
I wonder if it has dawned on the people who worry about this program that they are making the US the safest place in which terrorists can operate. After all as long as you get make sure one end of tha phone call takes place on a phone with an American number, you are safe.
Folks –
Just ’cause AJ (or Burt Starr or Malcolm X or Condi Rice) says “Factual Assertion X”, doesn’t mean that AJ (etc.) is right and that “X” is an accurate statement of reality. This we all can agree upon.
Now, while AJ has proffered his legal opinion on the NSA question several times, we can likewise agree (I am sure) that the mere repetition of an assertion does not tend to cure the failure of that assertion to actually reflect reality, if in fact, the assertion was not true to begin with.
I confess that I am not persuaded by AJ’s legal analysis, to the extent that he has formulated a legal analysis. This may be because I am particularly dense, or it may be because AJ’s analysis is rubbish, or perhaps something in between.
In any event, is anyone (including AJ) able to set forth a legal analysis (citing to particular statutory, constitutional, or caselaw provisions) in support of his position that “The NSA portion of this issue has always been ‘legal’”? Alternatively (indeed, preferrably), can anyone point to a readily web-available exposition of AJ’s position which is advanced by someone with legal training (e.g., a lawyer).
Finally, it is my understanding that until President Bush changed the regimen post-911 (by issuing new marching orders to the NSA), the NSA in fact did not freely monitor overseas communications which terminated in the US. This understanding of course is also directly contrary to AJ’s assertion. Can anyone point me to reliable sources in support of (or contrary to) AJ’s position on this factual question ?
Regards
DGF
You are well entitled to your opinion, but please do not attempt to burden USwith any additional requirement of having to “prove and document” to you our basis of reasoning. If you believe so strongly it is wrong, then by all means do YOUR homework and come back with concrete proof to debunk AJ’s position.
If you complete your homework assignment successfully, we are reasonable and we may give you extra credit!
The blogsphere’s strength is it’s point by point credible debunking of accepted mantras and improperly presented positions.
This is done by factual destruction of the proposed position.
Attempting to burden us with some insufficently specified lack of confidence by you is not our problem, it is yours. If you disagree it is your duty to provide a burden of proof for your position.
Otherwise all you present is the concept of looking for negative contrapositives, a tactic we have all witnessed too many times.
Merl —
I wasn’t attempting to burden anyone with anything. Simply, rather, I was asking if anyone was well-informed enough to share some of their knowledge with me.
You are to date the only one to respond, and you either have none of the requested knowledge available for sharing, or you do have some such knowledge and for some perverse reason decline to share it. In either event, your response is non-responsive and unhelpful, and you might have saved your fingertips the “burden” they incurred, by simply remaining silent.
I would note, finally, re: “debunking” that as an ordinary matter, the burden is on proponent of a position to support that position with facts tied together with argument. So far as I am aware, AJ’s “position” on the NSA question referenced in my post is not backed up with facts ~ either “legal facts” (= legal authority, as used here) or with “real-world” facts (e.g., where does AJ come by his naked assertion that the NSA “has always” freely intercepted overseas commuincations which terminate in the US).
Of course, just because no facts have been provided doesn’t mean that AJ’s not right. Just that no one has any particular reason to believe that AJ’s assertion is accurate.
Again, if anyone can help in this regard, that would be appreciated. If not, well we all will survive notwithstanding.
Regards.
DGF:
What facts are in question here? Do you question that the NSA is a military intelligence organization? Do you question that they ‘tap the lines of overseas terrorists’? Do you question that sometimes these terrorists (or terrorist suspects) sometimes called people in the US?
I assume you question none of these facts.
So, the only point you question is now, what? That the NSA has stopped destroying these leads? That the NSA has started to pass them on to the FBI?
That is a pretty well known fact, and it is trivial to look up.
The media has labelled the issue “warrantless spying on Americans”.
Clever reframe. Paradigm shift. Spin.
Is there more to this story which actually might justify the above labelling by the media? Personally, I am not sure. I have not seen anything which justifies that. I could be incorrect. I want to see more facts laid out on the issue before deciding.
These things noted, there remains for me a major problem in that the government is failing to elucidate their position. I think this is a common failing for our government that dates back at least to the Vietnam War.
Pull –
As indicated in my last post, for example a “real world fact” in question is this: what reliable source supports AJ’s assertion-as-fact that the NSA “has always†freely intercepted overseas communications which terminate in the US ?
As to other facts, “legal facts” (as defined above), what reliable source is there that supports AJ’s similarly naked and unsupported assertion that “[NSA} is not a law enforcement agency and has NO STANDING to request warrants from a federal court.” ?
Similarly AJ writes (wholly conclusorily) : “Conversely, the Judicial branch cannot be directed to confirm or affirm orders given through the military chain of command.” I’m not sure what point AJ was making here, but as best as I can make out, AJ’s asserting that “The federal judiciary cannot legitimately issue judicial orders (to a military entity or person (?)) which affirm *or* contravene or are at odds with military orders issued with respect to the same subject matter.” (or something like that; I admit here that I’m guestimating somewhat). In further particular, my understanding of AJ’s position in this regard is that the FISA Court simply cannot (for some unarticulated reason/principle or provision of law) legitimately approve or disapprove NSA wiretapping of international phone calls, one of whose communicants is a US citizen in the United States. While this may be true (tho it is opposite to my understanding), what reliable source persuades anyone that it is true ?
Regards
contravene
DGF:
I do not understand where you are going with points one and two.
Even the initial stories substantiate these points:
http://www.newyorker.com/talk/content/articles/060529ta_talk_hersh
http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm
http://www.nytimes.com/2005/12/16/politics/16program.html?ei=5090&en=e32072d786623ac1&ex=1292389200
Are you stating that the CIA and NSA have been working against Americans all along? That they have some kind of authority to eavesdrop and spy on them… maybe even to arrest and kill them?
A lot of people believe this.
So, I don’t know, maybe you are saying this.
I would rather stop there and come to that issue first before looking at anything else.
DGF:
I have a reply stuck in the moderator’s bin, probably because it contains multiple links.
As it is end of the day… I will go ahead and repost this question: Where are you going with points one and two?
Do you believe the CIA and NSA previously had the right to spy on American citizens and that they did do this?
A lot of people out there say this.
I provide references answering points one and two in the form of references to the initial articles which broke these stories. That is from the New Yorker, from the NY Times, and from USA Today.
But, I think you are being vague here and may subscribe to these populist beliefs… but, knowing how dubious they are, you are unwilling to admit this.
I hope I am wrong. If so, apologies.
This said, I think there are a lot of things about this case which are in the grey. I won’t decide personally until I get more information. As far as the overall picture of being able to report to the FBI contacts from terrorists — on that point I completely agree. I do believe there are indications that there is more to all of this then just this issue, however.
But, I do not know.
In general, we have a history of being pansies when it comes to intelligence. So I am definitely leaning towards the direction that this whole thing is as substantial as the Plamegate affair. And it is far more detrimental. Leaning. Until I see more facts.
DGF, during my 24 year Navy Signals Intelligence career I was assigned to NSA on 4 different occasions, so I’d like to think that I have a unique perspective to answer some of your questions. I can’t answer them all, because, as the saying goes, then I’d have to kill you, heh, heh.
what reliable source is there that supports AJ’s similarly naked and unsupported assertion that “[NSA} is not a law enforcement agency and has NO STANDING to request warrants from a federal court.†?
The best evidence, other than my word as a retired Naval Security Group officer, is this:
Similarly AJ writes (wholly conclusorily) : “Conversely, the Judicial branch cannot be directed to confirm or affirm orders given through the military chain of command.â€
The military has it’s own “judiciary” in the form of the Judge Advocate General Corps of each branch.
In further particular, my understanding of AJ’s position in this regard is that the FISA Court simply cannot (for some unarticulated reason/principle or provision of law) legitimately approve or disapprove NSA wiretapping of international phone calls, one of whose communicants is a US citizen in the United States.
During most, if not all of my career (I retired in 1989), there was a prohibition in the Sigint community to knowingly collect signals intelligence on “US Persons”, which included pretty much anyone who was in the country legally, citizen or not, even if one end of the conversation originated overseas. My understanding, from contacts I still have in the intelligence community, is that that changed only after 9/11. In my opinion it should have changed long before that, and 9/11 might have been avoided. And even after it changed and AG Gonzales wrote a lengthy legal brief supporting the change, the FISA Court refused to consider for warrants any leads provided to the FBI by NSA, considering them “tainted” and not justification for probable cause. The WAPO (no conservative rag) did a lengthy article about it in February.
As Merlin suggested, why don’t you do a little homework and come back and report to us. The only links I have at my fingertips are an excellent article by Byron York at NRO back in March about the legality of the program, and this brilliant piece by the LAWYERS at Powerline back in January about the unrealistic warrant requirements of FISA. You might search Powerline’s archives as they have done yeoman’s work in researching the legality of the program, as, as I mentioned, they’re LAWYERS.
Good luck. Hope to hear back from you soon.
Pull –
I’ll try to be as responsive as I can to your questions, but I really should go back up on the roof (no, that’s not a metaphor) before I loose the couple of hours left today of sun/non-darkness as I edge towards finishing ripping my roof off (and then hopefully towards completing re-roofing/prepping for Friday’s iffy (?) 20% chance of precipitation (& Saturday’s projected 60%…)). . .
DGF:
…
Anyway, as noted your query is answered by the initial breaking stories, the New Yorker, USA Today, and the NY Times. Most in-depth articles out there will touch on this subject.
The most trivial of google searches shows that.
I know you aren’t stupid, so I would like to understand what you are driving at.
Whether the record of the calls pre-9/11 to terrorists were never recorded in anyway or whether these records were destroyed is a pretty meaningless difference. Whether the full call was recorded… or whether just the fact the call was made was recorded… to later be destroyed automatically… is really meaningless.
AJ was incorrect here:
“on people in the US associated with terrorism were simple destroyed. The military may be able to give local law enforcement information on a local robbery suspect, but identifying potential terrorists was a big no-no.”
Any agent who becomes aware of a crime is obligated legally to report that crime to the proper authorities. This includes the crimes associated with terrorism.
However, lead generation is another matter. It is technically not illegal to talk to a terrorist. It depends on the nature of the conversation. Maybe the person is a reporter. Who knows.
Are there any doubts about that?
Technically it is illegal for you not to report a crime.
Regardless, I do not know where you are coming from on all of this. I suspect you hold beliefs which you do not wish to post about. I will not bother dredging up your past posts to try and figure that out. Either speak or not, please.
DGF, here, in writing and quoted ver batim is the 4th Amendment to the US Constitution. Read it carefully: The first sentence says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” Key word: ‘unreasonable’ Do you believe that any judge would hold that if an American citizen is talking long distance to a “known terrorist or member of a terrorist organization” that it would be “reasonable” for the intelligence agencies to listen in to the conversation?
Amendment IV – Search and Seizure. Ratified 12/15/1791.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V – Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
But even better is the 5th Amendment, read it carefully also:
The NSA is a military operation, it is in time of War or public danger. therefore ” No person shall be held to answer for a capital, or otherwise infamous crime, when in actual service in time of War or public danger.
What this says is, if you are a member of the Military in time or war or public danger and you are obeying military orders (to wiretap for example) you can’t be held accountable for a capital or other infamous crime.
Think of it simply as: A battle in the war is about to take place, the battle is that airplanes in the US are to be seized and flown into a major building. The defense intelligence gets wind of plans and listens in on communications from say someplace near Tora Bora, Afghanistan. This phone call is placed to a number in Boston. Would the military be required to go and get a warrant to listen in on the conversation? Get real.