Spying on US citizens

[KRC]

KRC, please let me take a stab at it if you will.

 

VA, you are correct that Congress did authorize the use of force.  Do you agree though that they did not "declare war"?  This is the key concept on whether paragraph 1811 of FISA is applicable.  If war was declared, then 1811 is applicable.  1811 is the only part of FISA that allows wire taps without the "72 hour" warrant.

 

If war was not declared, then 1811 is not invoked.  The applicable portions of FISA are from 1802 and 1803 which DO require the AG to request a warrant from the FISA court justice pool w/in 72 hours of approving the wire tap.

 

This all still may go to one of the gray areas brought up by other posters on the board.  But Gonzales appears to have been saying the taps were legal under FISA because the US is at war (perhaps his justification will change as time goes on).  That does not appear to be correct because technically the US is not at war because Congress never issued a Declaration of War.

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Thank you.

[Mickey]

Oh that's clear   

 

But legally I believe this gives him everything he needs to act both overseas and at home to deter future acts.  The whole this word vs. that word is why people never understand anything.

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Laws are made of words. This isn't a semantic debate. This is a fundamental question effecting the balance of powers between the courts, the congress and the President.

 

As near as I can tell, the President is claiming that there is an unenumerated power, ie, one not listed or mentioned, in the Constitution that permits him to act with plenary authority when it comes to national security. Further, he seems to think that this unenumerated power comes with ancillary powers to do whatever he wants to do or says he needs to do to carry out his obligations with regard to national security. That is what is meant by Rice, the President and Gonzalez when they keep referring to the "President's Constitutional Authority".

 

Gonzalez even said this in his confirmation hearings:

 

SEN. DURBIN: But you believe he has that authority; he could ignore a law passed by this Congress, signed by this president or another one, and decide that it is unconstitutional and refuse to comply with that law?

 

MR. GONZALES: Senator, again, you're asking me where the -- hypothetically, does that authority exist? And I guess I would have to say that hypothetically that authority may exist.

 

In the Hamdi case the Administration argued that:

 

The Government maintains that no explicit Congressional authorization [to detain enemy combatants] is required because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution.

 

This situation with the wire taps is really just the latest incarnation of the core argument by the administration that it has plenary authority to essentially ignore the Constitution and the other two branches of government in carrying out its unenumerated executive power regarding national security and the ancillary powers needed to carry out that objective.

[Wacka]

I'm asking this because I honestly don't know.

Doesn't a declaration of war have to be against an established government?

Al Queda isn't an established government.

[KRC]

I'm asking this because I honestly don't know.

Doesn't a declaration of war have  to be against an established government?

Al Queda isn't an established government.

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I believe you are correct.

[VABills]

http://www.aclu.org//privacy/spying/15189prs20021118.html

http://www.epic.org/privacy/terrorism/fisa/FISCR_opinion.pdf

 

Ruling for the first time in its history, the ultra-secret Foreign Intelligence Surveillance Court of Review today gave the green light to a Justice Department bid to broadly expand its powers to spy on U.S. citizens.

 

 

"As of today," she said, "the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices."

 

The FISA court and the Court of Review were created under a law passed by Congress in 1978, which authorizes government wiretap requests in foreign intelligence investigations. Under these procedures, all hearings and decisions are conducted in secret.

[VABills]

And more details about FISA, FISC, changes to the acts, and how everything is authorized under the 1978 law changes and the amendments to that law.

 

http://www.epic.org/privacy/terrorism/fisa/

 

 

But the bigger question is, after all you "legal libs" read this would you even admit that you're wrong and state that based on the FISA rulings that admin was authorized? Because as Mickey puts it I do not understand a lot of the "legal wording". I find that to be offensive to the average US citizens that laws have to be so esoteric that they are not understandable by the layman.

 

 

The statement in there that I see is on page 15.

the Executive Branch should be excused from securing a warrant only when "the object of the search or the surveillance is a foreign power, its agents or collaborators," and "the surveillance is conducted 'primarily' for foreign intelligence reasons." Id. at 915. Targets must "receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution." Id. at 916.

[Alexander Hamilton]

And more details about FISA, FISC, changes to the acts, and how everything is authorized under the 1978 law changes and the amendments to that law. 

 

http://www.epic.org/privacy/terrorism/fisa/

But the bigger question is, after all you "legal libs" read this would you even admit that you're wrong and state that based on the FISA rulings that admin was authorized?  Because as Mickey puts it I do not understand a lot of the "legal wording".  I find that to be offensive to the average US citizens that laws have to be so esoteric that they are not understandable by the layman.

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That opinion is taking me a long time to slog through, but I'm sure you digested it all.

[VABills]

That opinion is taking me a long time to slog through, but I'm sure you digested it all.

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No, I haven't, and too be honest there is a lot of "legal" wording that is not understandable IMHO. That's why I ask for an honest look, and not a one sided hate fest.

[Mickey]

And more details about FISA, FISC, changes to the acts, and how everything is authorized under the 1978 law changes and the amendments to that law. 

 

http://www.epic.org/privacy/terrorism/fisa/

537989[/snapback]

FISA is the procedure set up to handle this issue which the President by-passed.

 

Based on the links you provided, since 2000 6,652 warrant applications were granted by the FISA courts and 4 were rejected. That means that the government got the warrant they wanted 99.9399% of the time.

[VABills]

FISA is the procedure set up to handle this issue which the President by-passed.

 

Based on the links you provided, since 2000 6,652 warrant applications were granted by the FISA courts and 4 were rejected.  That means that the government got the warrant they wanted 99.9399% of the time.

538076[/snapback]

But read the whole ruling. I interpret it as long as they are not in the process of building a criminal case but still gathering intelligence against an agent, a warrant is not required.

[Taro T]

And more details about FISA, FISC, changes to the acts, and how everything is authorized under the 1978 law changes and the amendments to that law. 

 

http://www.epic.org/privacy/terrorism/fisa/

But the bigger question is, after all you "legal libs" read this would you even admit that you're wrong and state that based on the FISA rulings that admin was authorized?  Because as Mickey puts it I do not understand a lot of the "legal wording".  I find that to be offensive to the average US citizens that laws have to be so esoteric that they are not understandable by the layman.

The statement in there that I see is on page 15.

537989[/snapback]

VA, little of the information in the articles you cite are applicable to the current discussion. The "warrant" you refer to is a standard search warrant which must be issued PRIOR to initiating the surveillance of a subject (start reading on page 14, the case in question was prior to FISA's enactment). We are discussing the FISA warrant not a standard criminal search warrant.

 

FISA is very specific with regards to the circumstances that the 72 hour warrant is not required. The AG stated in his press conference that the Administration believes these requirements were met when Congress authorized the President to use force against Afghanistan and Al Queda. Several members of Congress have stated they don't agree with that assessment and my reading of FISA (not my reading of someone else's interpretation of FISA) lead me to believe that the Congress critters are correct on this one.

 

Are the wire taps w/out the 72 hour warrants legal due to some other gray area of the law? I honestly don't know that. I do know that the adminsitration has stated that all calls in question involved persons physically outside the US and those inside the US. As others have stated, depending upon where and how the calls were intercepted, the intercepts MAY have been legal. Also, as Mickey has stated, there may be an expediancy aspect to this issue which would make this legal and which the AG did allude to in his press conference.

 

I don't know if one or more of these other issues will provide justification that the taps were legal. I do not see how the "we are at war" justification causes them to be legal. Personally, I hope that they are legal because I don't want to lose what appears to be an effective tool against Al Queda.

[stuckincincy]

This story has been boiling for a few days.

 

spying story

 

Over the weekend, I saw both Rice and Gonzalez two-stepping around this issue of wiretapping US citizens without a warrant. It's just plain illegal, and that the government would do it is frightening.

 

Condi's explanation on Meet the Press was twofold: (1) I'm not a lawyer, and (2) the President acted within his authority. As to the first dodge, she can bite me. She was the fugging National Security Advisor when this was going on. She can't hide from the question of whether it was legal or not by saying she's not a lawyer. IT was her job to insure things like this are legal. As to her second refrain, that the president acted within his authority, she couldn't be more wrong. Nothing, not war, not anything, gives the federal government the right to wiretap US citizens without a warrant. Nothing.

 

Gonzalez's explanation is that Congress authorized this wiretapping when it authorized the wars in Afghanistan and Iraq. That is a complete load of sh1t, and I can't believe he's got the brass balls to say that.

 

This, to me, is an impeachable offense. It's a blatant violation of the law. There is no gray area here to play in. I understand that the war on terror changes many things, but the rights of Americans to be free of search without warrant is clear.

 

Since Bush personally authorized this wiretapping several times, I hope he gets impeached. No matter how pure his motivations in fighting the war on terror and keeping America safe, this is an extreme Constitutional violation.

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I trust you shall continue your defense of the Constitution if our unfettered adversaries reduce it to a pile of ashes...

[Mickey]

And more details about FISA, FISC, changes to the acts, and how everything is authorized under the 1978 law changes and the amendments to that law. 

 

http://www.epic.org/privacy/terrorism/fisa/

But the bigger question is, after all you "legal libs" read this would you even admit that you're wrong and state that based on the FISA rulings that admin was authorized?  Because as Mickey puts it I do not understand a lot of the "legal wording".  I find that to be offensive to the average US citizens that laws have to be so esoteric that they are not understandable by the layman.

The statement in there that I see is on page 15.

537989[/snapback]

I don't think you understand what is going on here. FISA is what the President didn't follow. Are you arguing that FISA permits the President to nullify FISA?

 

The way it works is that the Justice Department funnels the warrant applications to the FISA court. The AG certifies certain things in the applications and then sends them on to the court. When a non-US person is involved, there is one standard, another when it involves a US person. For non-US persons, they don't have to get a warrant, the AG can authorize the tap for up to a year. For those taps however, he does have to notify some congressional committees and the FISA court, all under seal. All that can be ignored, even for US persons, if they want for up to 72 hours. They can tap without a warrant (technically it is a court order, not a "warrant" but it has the same effect), all they want, whoever they want for whatever reason they want. However, they have to submit an application within 72 hours in those emergency cases.

 

It really isn't all that complicated. You can tap a non-US person without ever getting a warrant for a year (it can be extended) you just have to let a few congressmen and the court know you are doing it. If you don't want to make that report to a few congressmen and the court, you can just start tapping away and submit an application within 72 hours which you can practically guatantee will be granted. Once you have the warrant you can continue tapping the target just as you had been for the last 72 hours.

 

Typically, getting the warrant is so easy that they use the 72 hour deal where you just start tapping and then get your application together and the warrant issued and continue tapping under the warrant once it is issued. Originally it was 24 hours but the Patriot Act extended that to 72 hours.

 

They can just go ahead and not bother even applying for a warrant but that procedure requires that they let people know they are doing that (a few committee chairmen and the FISA Court).

 

In this case, the President didn't follow any of that. He just tapped who he wanted to tap, including US persons, without letting anyone know it (committe heads and the special court) nor did he use the 72 hour deal where you tap without a warrant at first but apply and get one within 3 days.

[RuntheDamnBall]

I trust you shall continue your defense of the Constitution if our unfettered adversaries reduce it to a pile of ashes...

538182[/snapback]

I'd argue our unfettered adversaries have already won if they can get our own leaders to set fire to it themselves with less than half the leg work and investment.

 

We can fight terror and still figure out how to adapt (to/with) the constitution, instead of eliminating everything we stand for in the face of the enemy. I think Mickey has already pointed to that fact. And again, the administration is not claiming that the current standards don't allow them to do what they want to do. They are claiming that, well, they want to do it, and that's why they're allowed.

[Mickey]

I trust you shall continue your defense of the Constitution if our unfettered adversaries reduce it to a pile of ashes...

538182[/snapback]

Given the procedures under FISA which essentially allows taps of anyone anywhere for any reason without a warrant, how is it that complying with FISA would lead to the Constitution being reduced to ashes by our enemies?

 

Under FISA they can tap like crazy without a warrant for 72 hours, giving plenty of time for a FISA judge to rule on the warrant application which is granted 99.399% of the time. Alternatively, they can tap for a whole year without a warrant, they just have to let certain committee heads in congress and the secret FISA court know about it.

 

How would complying with that wide open rubber stamping warrant procedure have endangered our national security since, by this "reduced to ashes" hyperbole, you seem to think it would?

[Mickey]

But read the whole ruling.  I interpret it as long as they are not in the process of building a criminal case but still gathering intelligence against an agent, a warrant is not required.

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They can tap without a warrant for one year but when they do that the AG must send a list of the targets to certain committee heads in congress and to the secret FISA Court. The alternative is to apply for the warrant within 72 hours and those applications are always granted, well, granted 99.9399% of the time anyway.

 

The President didn't follow either procedure. They just tapped whoever they wanted to tap and didn't apply for a warrant within 72 hours nor informed the required persons that they were tapping so-and-so w/out a warrant. They had to do one or the other. He did neither.

[PastaJoe]

I'm asking this because I honestly don't know.

Doesn't a declaration of war have  to be against an established government?

Al Queda isn't an established government.

537968[/snapback]

 

If that's true, then the administration can't say we're legally "at war", and their claims of implied war powers aren't valid. They can only use powers explicitly given to them by Congress.

[Mickey]

April 20, 2004, while in Buffalo, the President explained how the Patriot Act, wiretapping terrorist and the constitution work. He said:

 

"...there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

 

We now know that in fact, he was tapping without warrants. He lied.

 

GWB in Buffalo

 

While I appreciate his support of the Bills, the guy lied to our face. Anybody care?

[Alexander Hamilton]

I trust you shall continue your defense of the Constitution if our unfettered adversaries reduce it to a pile of ashes...

538182[/snapback]

 

Your argument: "Constitution shmonsititution."

[Alaska Darin]

I trust you shall continue your defense of the Constitution if our unfettered adversaries reduce it to a pile of ashes...

538182[/snapback]

Those who would trade liberty for security deserve neither.