Spies like us
[Phillip Carter,
Friday December 16, 2005 at 4:22am ]
The New York Times reports today that the White House authorized the National Security Agency to conduct surveillance within the U.S., outside the bounds of any existing legal framework, over the past three years in order to gather intelligence about possible Al Qaeda activities in the U.S. This program has apparently resulted in the actual surveillance of hundreds (or perhaps thousands of Americans) — at any given time. According to the Times:
More to follow . . .
Update I: GWU law prof Orin Kerr, an expert in surveillance and computer crime law, has some initial thoughts on this story over at the Volokh Conspiracy. He's also got a link to the United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000), which makes for a great primer on the Constitutional issues raised by this story.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.This is huge news on its own. But it gets even bigger — check out this paragraph, which appears about 1/6 into the story:
The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
* * *
While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials.
Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.
The eavesdropping program grew out of concerns after the Sept. 11 attacks that the nation's intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic restrictions better suited to peacetime than war, according to officials. In response, President Bush significantly eased limits on American intelligence and law enforcement agencies and the military.
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.Wow. That's huge. If the White House made that kind of request to the Times — and the Times acceded to it — then this program really had some juice. This isn't just some developmental program (like Total Information Awareness was), or some basement program (like Able Danger) — this was/is probably a centerpiece of the federal government's counter-terrorism efforts.
More to follow . . .
Update I: GWU law prof Orin Kerr, an expert in surveillance and computer crime law, has some initial thoughts on this story over at the Volokh Conspiracy. He's also got a link to the United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000), which makes for a great primer on the Constitutional issues raised by this story.
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2) Where do they find these "administration lawyers" to
provide pathetic figleaf arguments for gross violations of
the law and the constitution ? Can we get those people
permanently disbarred for either dishonesty or gross
incompetence ?
3) Another example of the way the constitution basically
falls apart at the seams if the president makes no
good-faith effort to respect the other branches (and his
own oath to uphold the law).
Go read the article.
What jumps out at me are two things:
-They're monitoring international commo coming and going from the US, (within their mission and they've always done this)BUT THEY GET A WARRANT FOR DOMESTIC COMMO. Furthermore you can infer from the cases they talk about that they hand over domestic criminal stuff to the FBI which is also exactly what they should do, (the Volokh article Phil links to doesn't get this nuance).
-The program was put in place to exploit computers and cell phones, (and their numbers) taken on the battlefield overseas.
Like I said, read the article. All in all the NSA is doing exactly what one would expect them to do at all times, and it's within their mission. Lastly before getting all worked up and engaging in histrionics we all should remember that this is exactly the stuff the 9/11 commission dinged them for not doing that could have prevented 9/11.
I'm not going to go as far as saying it's a non-story, but it is what we pay them for and as such is shouldn't surprise anyone.
We have no way of knowing whether or not "it is what we pay them for" do we?
I am not sure why warrantless searches - which implies no oversite at all from anyone outside the NSA - are necessary in any but a very small number of cases. That there are 500 going on at any one time seems way beyond what we would expect. It is hard to see how the oversite required by a warrant would interfere with that often. That large number indicates that they made it the rule, rather than the exception, not to ask for a warrant. That would indicate they feared that the special security court would have refused permission for at least some of them.
Are we to take it that we should accept the unilateral judgement of the President about when such searches are appropriate? I am not comfortable with any politician exercising that kind of unchecked power whether he is President or not.
As a matter of style, wouldn't it be simpler and more
straightforward to say "illegal surveillance",
rather than "surveillance .. outside the bounds of any
existing legal framework" ? Or is there some subtle
distinction that I'm just not grokking ?
Take this together with the recent story that the military
have been gathering information on peaceful domestic anti-war protesters, and we're sliding downhill pretty
fast.
As for the idea that the 9/11 commission criticized the
rules in place before 9/11 - well, maybe, but in an actual
functioning democracy the answer would be to CHANGE THE
LAW!! After public debate. Not just secretly violate
the law with no debate and no oversight.
Here's a modest proposal to bring things back in balance:
the majority and minority chairman of each House and Senate
committe should be authorized to a) secretly tap the phones
of all executive-branch officials, and b) at committee
hearings, apply to executive-branch witnesses any and all
techniques of interrogation approved for use by the military
and CIA (e.g. waterboarding, induced hypothermia). Then
we might find out what's been going on.
My mother lives in the UK. I'm a permanent resident of the
US. As far as I, or anyone else outside the administration,
knows, every time I phoned home for the last 3 years the
NSA may have been listening in. There's no way to know,
there's no way to stop it. When you come down to it, all we
have from the administration is "trust us". And that's
definitely not the way the Constitution is supposed to
function under any administration, least of all this one
which has repeatedly proved itself utterly untrustworthy on
such matters as prewar intelligence and interrogation
policy.
Actually it was my impression that the NSA monitors commo into and out of the US on a routine basis without discriminating in what they go after, (this is one of the problems the 9/11 commission pointed out because the data volume was too high for effective analysis).
So to answer your question, NSA probly could and may have "listened" in on one of your conversations home for the entire time you've lived in the US and not just the last three years.
What seems to be different about this is that they're discriminating. First based on stuff captured overseas, and second based on what they find out here when they track their overseas source(s) back here.
However, in discussing it over lunch with a Gov't Attorney here in DC today on the article's face regulations were bent to make it happen. Whether it crossed the line is still to be determined. So, until I know more about it I'm going to suspend judgement and not jump on the another-sign-of-th-death-of-the-republic bandwagon yet.
This may be true, but under FISA they shouldn't have been.
If the "War on Terror" counts as war - in my opinion it
doesn't - then we all know it isn't going to have any
definite end. So you've just given up your civil liberties
forever. And, what's worse, my civil liberties as well.
And what's even more absurd is that we're paying $500B/year,
abandoning our civil liberties, and we're still losing!
Because there's way more global terrorism than there was
before 2001. I sometimes think the only sane people left
in the USA are the ACLU - who understand that rights have
to be defended *especially* when they're inconvenient.
Signma,
Come on, seriously lets be intellectually honest and think about who we're talking about here. Don't make me drag out Mr. Buffoon...er, Mr. Bolton and his shenanigans with "intel" dragged out from the same group for political advantage.
I seriously think Bush has, once again, screwed the pooch. There are a myriad ways of securing warrants, post-haste, for suspicious activity from suspicious, or soon to be, suspicious persons. This is defacto internal monitoring of US personnel, and if they are not US citizens then grabbing a warrant shouldn't be that big of a deal, anymore.
However, look at the full story. There were people in the NSA (NRO?) who didn't want to even know the program was in existence due to "legal" issues. Knowledge of right vs wrong is the first thing prosecutors look for in a criminal case.
I think we can skip the congressional inquiry and move right into the grand jury to figure out who else was party to this.
Another detail: the White House can order the NSA to break
the law - but it surely can't "authorize" that behavior.
Which is the whole problem with all this Yoo-based crapola.
Go tell that to the authors of the Constitution - legislative,
executive, and judiciary are separate branches each with
their own powers, very specifically and deliberately
designed to "second guess" each other. And if we give that
up, then we cease to function as the United States of America
and become something very scary indeed.
What is significant to me is that military and civilian personnel are leaking this info, meaning they are afraid of what the fearmongers are secretly doing. Think about that....
As to "being at war", let's once again revisit the absurdity of a "war against terror". Terror is a tactic, not an enemy. But the word "terror" can used to stimulate fear. "Terror's gonna get yo momma"! Terror sneaks up and attacks you while you aren't looking. Let's not forget that the second most deadly terror attack in our lives was made by a conservative American in OKC.
It is more frightening to learn that gov't officials snoop on us with impunity than to fear "terror" itself. If you are mistakenly accused, trust me, it will cost you significant time and MONEY to clear your name. Ask the attorney in Oregon who was wrongly accused of being involved with the AQ Madrid bombing. He was not reimbursed the costs of defending himself.
I'm beginning to feel like I'm living out one of the movie theater serials we watched every Saturday afternoon during the 40's and 50's. The absolutely good hero battling the absolutely evil enemy using never before heard of means, secret weapons and extra-legal tricks. This "war on Terror", which is being directed and scripted by politicians who have NEVER trained for war, NEVER studied warfare, NEVER fought in a war, and NEVER sent their offspring off to war, is as fantasy based as the serials.
Al
This means that, as the unending war goes on and on, more and more 'advanced' methods will be required by the government to 'combat terrorism'. We'll get the usual governmental assurances that they'll only target the bad guys, and the usual complacent idiots who think that, if you've done nothing wrong, you have nothing to fear.
Until eventually, we'll get a government willing to 'dissapear' it's own citizens for nothing more than the suspicion of dissent.
Think it can't happen? The USA heled create states where it was the norm.
Does the name Pinochet mean anything to anyone here? He was a US stooge, and the product of a line of a government that's still perpetuated by the Bush administration. Pinochet's Chile was what these people wanted the US to be.
I'm not kidding here. We trained him, and we created his government.
It certainly didn't "begin" on 9/11 either, because, as Josh says, it is human nature to wage struggles in devious ways, and there will always be people willing to do evil things. Which is why these "emergency measures" are so BS, because this "emergency" has existed for a long, long time. And if the threat really is so dire that it excuses violating the FISA law instead of asking Congress for an exemption, then why is port security so lax? Bush asked for, and Congress passed, the Patriot Act. Things the government wasn't allowed to do before it was now allowed to do. This program apparently exceeded even the "emergency measures" of the Patriot Act, which means Bush KNEW Congress would not allow him to do it, and he KNEW it was against the law to do it anyway. If there was any doubt he would have simply asked for clarification by Congress, perhaps in the Patriot Act itself. He didn't. Arguments that it didn't violate the law ring false when convincing arguments show it probably was illegal, or at least of really questionable legality.
But of course no threat excuses violating the law. The President is sworn in to see that our laws are carried out, not to be a lawmaker himself. We forget now, in the days of the imperial presidency, that presidents were not supposed to be lawmakers, but simply the CEO of government services, making sure everything ran right.
So if the president "needs" authority to do things forbidden by FISA, he must seek that authority. He can't claim he has it already simply because he is CinC, because it was always expected that the military would report to him, but never expected for him to decide what the law should be.
Thus every excuse for why we really, really, really needed to listen in on conversations in ways that were against the law are false. An "emergency" call is different, for instance two days after 9/11, the president decides he needs to do this and orders it done WHILE he seeks authority from Congress, because he assumes they will "let him." That didn't happen. It went on for years with no attempt to change FISA.
The president strayed from his lane. The SC can't issue commands to generals, the president can't convene courts, and Congress can't pass unconstitutional laws. All of this presumes that each branch stays in its own lane. When the chief executive decides that the exigencies of war allow him to decide what the law should be, and ignore laws passed by Congress that forbid him from doing something, our whole system comes crashing down.
That this challenge (by the President to the authority of Congress, who passed the FISA law) was prompted by the president's desire to spy within the US, on our own citizens, makes it pretty scary stuff.
That's exactly what he's doing. How do you propose we stop him?
Those of us that actualy were against the war before it started, and saw the whole WMD razzle dazzle for what it was have no surprises when it comes to the Bush team. He's been consistantly grabbing as much power as he can for as long as he can.
Oh, and the Volokh Conspiracy has a large number of conservatives in the comments section defending the government's right to tap anyone's phone for any reason without review. Once you drill apst the "war on terror", the real reasons they want it is to piss off the ACLU (which they'd declare a terrroist organization if they could) and to spy on liberals. No kidding.
The USA doesn't have anything like the UK's Official Secrets
Act - thank heavens. So while it's probable that the source
or sources have violated some law, I challenge you to name
any statute the NYTimes might have broken. The press gets
information and prints it; they are not, and should not be,
an arm of the government.
As for finding the source, it seems quite clear from the
article that many people in the NSA and elsewhere were
skeptical about the legality of this program, and might
have been potential whistleblowers. So go ahead and try,
but it won't be easy to pin it on anyone. Harder than the
Plame case, where in fact we still haven't pinned down the
initial leak - of course that's hard because most of the
high-level people in the administration were blabbing their
mouths to the press about Plame at one point or another ...
Y'know, everything here has a legal answer.
So when you say something like: This may be true, but under FISA they shouldn't have been.
FISA says differently. Per 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.
And after the first blush of the story it looks like what's going on isn't FISA enforced because they've gone after people that they have had proof through captured technology have been in commo with AQ and then they've been looking at who those people are talking to.
Now we can argue over whether or not the Gov't should be doing this, but as I said, this is exactly the sort of thing the Gov't was critisized for not doing prior to 9/11 so we the people are going to have to decide what we want because right now some people want it both ways. By that I mean they think the Gov't shouldn't be doing it in the here and now, but they'll jump all over them in the future if something happens because we weren't doing it.
Which tells me that it isn't about the law, it's about politics.
And lastly, on day two of the story it looks like Congress was in the loop on it as was Justice, so I'm thinking that the more interesting story is going to be who leaked it and to what lengths the Gov't will go to hunt them down.
While I agree with the tone of your post I'll disagree that FISA doesn't allow what the President did. See my other comment as it turns out FISA is pretty narrow in when you need to seek a warrant.
Last night I was at a B-day dinner, (I live in DC) and half the table was Gov't Attorneys so this story was the topic du jour. Anyway what was said was that this program grew out of the Massoui case. If some of you don't know it he was the guy who they arrested in August '01 and if the FBI looked at his computer they'd have known about the 9/11 plot.
They didn't get a warrant to look at it because the FBI had no proof that he was an Agent of a Foreign Gov't under FISA, and they couldn't get one under a straight-up Federal statute because they didn't have evidence he'd committed a crime or was participating a criminal conspiracy. So no warrant, no look at his computer, and our best chance to stop 9/11 went down the toilet.
As pointed out by the 9/11 commission it turns out they could have under FISA because of the narrow definition I already wrote about. So, in this context it looks like the President was trying to fix it so it wouldn't happen again.
I am not a lawyer, but what does the quesiton of when a FISA warrant is required have to do with the question of whether the NSA can monitor all communication into and out of the US? The act prohibits any such surveillance without the certification of the Attorney General that, among other things, it will not be likely to capture the communication of a "United States person". FISA was, as I understand it, designed precisely to prevent exactly what you claim is standard NSA practice.
And let me suggest that half a table of government attorneys are unlikely to have had much experience with the details of national security laws and civil liberties. My experience is that this would not prevent most of them from having an opinion on the subject, the same as any law school student and probably less informed.
"Anyway what was said was that this program grew out of the Massoui case."
That seems extremely unlikey given that it seems to have started almost immediately after 911. That idea looks more like a talking point floated to explain it. We can no doubt expect it to show up on the talk shows any day now.
But the central question here is not whether this happened or even if it was necessary. The question is why, if FISA was viewed as too restrictive, the administration chose to simply ignore it rather than ask congress to change it. Its apparent that they could have gotten that authorization in the Patriot Act if they had a good reason for it.
FISA makes it a criminal offense to conduct electronic surveillance except as authorized by statute.
FISA
Criminal Sanctions
If Massoui was the reason for violating FISA, it was a piss-poor one.
If the NSA was doing what they claim - monitoring people
calling numbers associated with AQ, and other calls made
by those people, then it's 99.99% certain the FISA court
would have granted warrants. So why bother to make an end
run around the need for warrants ? Well maybe they're
lying about who the targets were. How can we know, when
nobody outside NSA and the WH got to see the list.
Also at least one story suggested that the program
included "physical surveillance" by military personnel.
So this goes far beyond wiretapping.
We don't know the worst of this yet.
For those insisting FISA was not violated, the president has relied on nothing more than his authority as CinC in wartime - and as I said, that does not, ever, permit him to violate the law except perhaps in an emergency. If it was legal for some other reason the president would not have cited his wartime authority as an excuse. It was plainly illegal.
For those who say this is an emergency, the only reason an emergency excuses such a violation is when there isn't time to go to Congress and get the authority. 9/11 happened years ago. Congress has been in session for years since the attack. No "emergency" excuses pass muster, because there was more than enough time to seek a change in the law to approve this kind of activity. The president didn't do that. Thus no emergency excuses pass muster.
For those who say it really, really helps win the war on terror and protect Americans, I say you may be right, but it is completely irrelevant. Congress represents the People, and the People didn't agree that FISA should be changed to allow the president to authorize such spying. End of discussion - whether Congress was right or wrong is not for the president to decide, any more than it is the right of soldiers to refuse to invade Iraq even though they knew for sure it was a dumb idea, and they were right. They still had to go and invade because we are a nation of laws, not of men. You don't have to agree that your orders are right, but you sure as hell have to follow them if you are to remain loyal to your oath. The president took an oath too, and he is ignoring the law, didn't even ask Congress to change the law, and it doesn't matter worth a damn whether we are at war or not. He violated the oath he took, and he broke the law.
The debate about whether it was a good idea to conduct such spying misses the point. Assume for the sake of argument that it was a good idea, and that it prevented the nuking of NYC, LA, and DC. Assume that this violation of the law saved my life and that of my family. Great. Now the president should be impeached and imprisoned for violating the laws he swore to execute. The idea that in a time of crisis the president can make emergency decisions without consulting Congress is correct. The idea that after the president has had time to consult with Congress, he can still decide to violate the law because he thinks it will save lives is justification for a wartime dictatorship - and in a war with no end that means the end of the republic.
Regardless of whether you like or dislike Bush, this is a direct challenge by the President to the authority of the Congress of the United States, and to the Consititutional separation of powers. It is an impeachable offense, inexcusable, unforgiveable, and all citizens now must choose whether they think safety from potential terrorist attacks is worth sacrificing self-government and the Constitution of the United States.
Again, this assumes for the sake of argument that Congress was wrong not to change FISA and let the president spy on anybody he wants however he wants. Assuming that Bush was right, and Congress was wrong to deny the president that authority, the president was still bound by the Constitution of the United States, and had to obey the Congress just like the Army had to obey Bush when he ordered an invasion that most of the senior Army staff thought was insanely stupid. They obeyed, and if they had not they should have gone to jail. Bush should be held to an even higher standard because he is the president of the united states. He failed, he violated the law, there is no excuse to justify it because it occurred for years, even after he had time to ask Congress to change the law, and this president has now committed a high crime worthy of impeachment.
I disagreed with just about everything he ever did before this, but I never saw any impeachable offenses, just decisions I didn't like. I don't have to like those decisions, they aren't mine to make. The people elected the president, he makes the call, and people like me have to accept that until the next election gives us a chance to put somebody in office we agree with more. Until then Bush is in charge, and he can make decisions every day that I disagree with. That is not illegal or an affront to the Constitution, and I would fight anyone who tried to illegally prevent President Bush from exercising the rightful authority of his office.
This is not about that. This was clearly a crime, and the president has now committed an offense that requires impeachment. It was not an exercise of presidential power. It was a crime. We need to stop him. We need to push for impeachment - not because of Iraq, or tax cuts for the rich, or anything that Michael Moore believes. Because this president has committed a very, very serious crime, much more serious than lying under oath in a deposition. Even more serious than covering up a burglary committed by members of the president's staff who tried to break-in at the Watergate Hotel. This is a direct challenge to the authority of Congress to make law, and it can not be permitted to stand.
This is what you get when you run government like a corporation. Can we get caught is the first question and what can they do about it if they do is the second question. If the answers are not likely or not much, then you do whatever improves the bottom line.
NEW BEDFORD -- A senior at UMass Dartmouth was visited by federal agents two months ago, after he requested a copy of Mao Tse-Tung's tome on Communism called "The Little Red Book."
Two history professors at UMass Dartmouth, Brian Glyn Williams and Robert Pontbriand, said the student told them he requested the book through the UMass Dartmouth library's interlibrary loan program.
The student, who was completing a research paper on Communism for Professor Pontbriand's class on fascism and totalitarianism, filled out a form for the request, leaving his name, address, phone number and Social Security number. He was later visited at his parents' home in New Bedford by two agents of the Department of Homeland Security, the professors said.
The professors said the student was told by the agents that the book is on a "watch list," and that his background, which included significant time abroad, triggered them to investigate the student further.
FISA says differently. Per 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.
So let's agree that finding somebody's phone number on a captured AQ computer makes them "an agent of a foreign power". Tapping their phone, in this electronic age, is going to let you distinguish the calls "wholly contained in the United States", and you can choose not to record them. That would be FISA-compliant.
But why would any competent intelligence agency do that? In these cases, they want to know about possible contacts in the USA. Don't they?
If Sigma has stated the law correctly, if that "and" is correct, monitoring somebody in the USA without a warrant is either illegal or inadequate if done to stay within the law.
And, if it came to court, how do you [b]prove[/b] that you didn't monitor communications wholly within the USA?
The really worrying thing is what it suggests about how these wiretaps are done. Aren't there any people in the telephone companies who need to be shown a warrant? Has the NSA root access to the telephone system?
spoken like true fascists
what the fascists, communists, socialists, religious fundamentalists, and modern capitalists fail to realize is that modern prosperity demands unqualified acceptance to democracy. Once you start qualifying your acceptance, once you start with the stupid WOT, you can kiss the good times good bye. No strong dictator has ever kept a country safe and prosperous.
If you mean on US soil, I think there was a lot longer period of no terrorist attacks during the 90's. The gap between World Trade Cetner 1 and 911 was 9 years wasn't it?
If you mean terrorist attacks in general. Havent't we lost over 2000 Americans to terrorist attacks since 911? I think, since 911 there have been more terrorist attacks directed at Americans than at any time in history. Admittedly, a lot of those have actually been attacks by Iraqi and Afghanistan insurgent nationalists who are terrorists only by the loose definition of the media. But many of them are from terrorists that are part of an international terrorist network similar to those responsible for 911.
As for who would have imagined it, I think objective observers probably would not only have thought it possible but expected it given the rarity of such attacks in the past.
Terrorism is a lot like having an angry bee in the car. You are in a lot more danger from the driver panicing than you are from getting stung.
The idea that after the president has had time to consult with Congress, he can still decide to violate the law because he thinks it will save lives is justification for a wartime dictatorship - and in a war with no end that means the end of the republic.
Now, for the TomnBeverly's and Frank's out there, do you really think these extra-legal techniques won't be used to political ends? Or that they haven't already? This is the same administration that in 2004 announced a domestic terror alert every time Bush's poll numbers dropped below 50 percent.
Of course, deep down the TomnBev/Franks out there think "yeah, it'll happen, but it won't be me and mine being pulled off planes, disappeared for months and years, tortured to produce politically or beaurocratically correct testimony. That only happens to bad guys, poor folks, and immigrants."
"If you've ever been to
an Arab countryNO,and seen the utter incompetence and waste of resources they exhibit,"LOL
Acts which, in time of peace, would seem insanely self-destructive seem eminently rational in time of war. No sane father would want to send his son into the street fighting when he could be in class learning, but that's exactly what the ANC did during the war against apartheid. It seemed so important, so critical - "liberation, not learning!" - that the need to triumph trumped any and all other considerations.
Now that the struggle HAS been won, of course, the new South African government has to deal with the fact that almost an entire generation has no skills other than the bloody craft of ambush and sabotage. If the new South Africa slides into chaos and internal repression, this decision may be looked back on as the edge of the cliff.
In the Army we learn to do something called "backwards planning". (No smartass comments from the gyrene/squid/wingwiper sections, please). We are told to begin with our desired end state at the planned end-of-mission time and divide our METT-T up into the period between then and now. The reason I bring this up is that the most critical part of this whole GWOT seems to be missing. Where the hell are we going? What's our "end state"? When's our "end-of-mission time"?
It seems to me that the entire "what's the end state and end time?" discussion has been missing from the GWOT. Without that, we seem to be inviting Constitutional crises like this. Of course the Executive is going to try and amass all possible power in its reach during wartime. The Founders designed our government to prevent exactly that - they had just emerged from a war (and had witnessed agitation among officers of the Continental Army to make George Washington "king"...) and knew how difficult it is to run a war by committee. Washington himself complained constantly about Congressional antics and how hard it made his job.
The difference was that the Founders knew what their end state was. And it specifically WASN'T a nation run by the commander-in-chief or a king-like President. Can somebody closer to the
throneOval Office remind GWB about this? He and his pals seem to revere the Founders. Maybe this will remind him that they have been given - as Ben Franklin famously said - "a republic - if you can keep it"...If Bush has committed serious crimes and challenged the proper role of Congress as lawmaker - and it appears he has - then it is up to us to do something about it. We can't just sit back and depend on others to fix this problem. And this problem, if ignored, will end our republic in our own lifetimes. Our children and grandchildren will not know government of the people, by the people, for the people. They will have the title of citizen, but will be subjects.
I am writing to my senators and congressman today to insist on a full investigation, and if the investigation uncovers enough information to prove Bush broke the law, to insist on impeachment. This is really serious stuff, really threatening and very, very dangerous. If Bush gets away with this he is a de facto wartime dictator, and this "war" has no end date. I won't be one of the cheering masses supporting this new Ceasar as he crosses the Rubicon.
When I was in high school there was a recruiting poster that showed a group of our founding fathers, a bunch of WWII soldiers, and a modern soldier. The poster asked, simply, "if not you, who?"
So to all our readers: what have you done for our Republic today? If you don't do something, who?
You write:
And let me suggest that half a table of government attorneys are unlikely to have had much experience with the details of national security laws and civil liberties.
Actually two of them do, and neither are fans of the administration. Furthermore, per the original article Presidential authorization for the program was made in 2002. Massoui was arrested in August of 2001. Per the dinner conversation we had the FBI mis-applied the law(s) and thought they couldn't get a warrant to look at his computer when in fact they could, (which is consistent with the opinion of the 9/11 commission).
Dave says:
So let's agree that finding somebody's phone number on a captured AQ computer makes them "an agent of a foreign power".
No we can't agree on that, and the Administration's position seems to hinge on this point.
I agree with JD that this is a pretty big story, and I also agree that the President should have changed the law if he felt it wasn't good enough to cover this situation. I'm less sure a law was broken, especially since on day four of this story it seems that the targets in the US weren't citizens and they had direct links to AQ overseas. After a close reading if FISA it really seems to be something that the law doesn't cover.
However, I don't find the President's agrument on why he did it very compelling. Sec. Rice says that it's being done to eliminate the seam between overseas intel collecting and intel here at home, and I'm afraid we don't have enough details on it yet for me to believe it, and unfortunately because of the program's nature I don't think we'll hear them. As such it all comes down to "trust us" and as others have pointed out here they don't have any cred in that regard.
I am troubled deeply by Bush's stubborn zeal to win at all costs.
How many examples of horror and evil can we summon to highlight the fallacy of "winning at all costs." Bush is willing to save one American life over preserving the soul of America.
I was taught by a professor who said, "when America falls, it will not be a cataclysmic collapse, but rather the slow crumbling from within from a series of very poor choices."
Can we keep the Republic, FDchief?
I think Bush and a majority of the Republican party has given a pretty clear answer.
I've written to my senators, I've voiced my opinions, I've called others to watch and judge for themselves.
I'm like Richard now, I'm outraged fatigued. When I thought Bush had hit rock bottom, I thought that was it, but now I see that he has broken out the pick and has started digging to new depths.
Where will he drag us too, I do not know, but I want do want to know is can we survive, or do we go the way of our predecessor, Rome. A glorious memory recorded in the history books, and dim architecual relics that remind us of a bygone era.
representatives that if they don't support a full and
independent investigation, then they'll never get your vote
again.
I'm hoping a suitably plausible show of resolve by Congress
can lead to a thorough change in the attitude (and personnel)
of the administration - just as Reagan accepted a new chief of
staff and more oversight of his administration after
Iran-Contra.
Actually, that's not what's going on at all. If you really
wanted to win the War on Terror, then I'm pretty sure security
experts would have recommened these steps:
1) Put substantial US forces into Afghanistan to capture
the Al Qaida leaders
2) Provide substantial money and support for Afghan
reconstruction to prevent any Taliban resurgence
(the Administration left this out of their budget one
year, though Congress put in $450M or so)
3) Allocate homeland security funding on the basis of need,
rather than as pork. e.g. protect chemical plants,
inspect incoming containers.
4) Complete the destruction of Taliban/Al Qaida in
Afghanistan before/instead of starting an unnecessary
(or at the very least, non-urgent) war against Iraq
5) Spend money to provide enough troops and enough
equipment for these military actions
6) Maintain co-operative intelligence relationships with
all states prepared to help against AQ - in particular
Syria and Iran - rather than indulging in counter-
productive threats.
7) Review the force structure of the US military to provide
better capability against asymmetric threats - e.g.
spend less on air-superiority fighters, nuclear subs,
more on infantry and especially MPs, civil-affairs,
Arabic language training etc.
8) Establish a bipartisan consensus about the aims and
strategy of the War on Terror, so that there can be
a unified long-term strategy with overwhelming political
and popular support.
On each of these points, Bush's team have either done
nothing, or done the exact opposite. So it's hard to
conclude that they're actually trying to beat Al Qaida -
rather it seems that domestic politics have been the
overriding concern on most of these issues - e.g. preserving
tax cuts, using the GWOT as a wedge issue to split
Democrats.
And that leads me to the strong suspicion that when, if
ever, we find out precisely *who* has been wiretapped and
for what reason, we're going to find that some of the names
are domestic political opponents. Which would also explain
why the existing FISA court warrants couldn't be obtained
...
I'm worried about the apologists for this one. It seems like such a no-brainer. I'm writing my reps and sens with the hope that someone will remember that while you can certainly expect to kill the cockroaches, burning down the house is a poor choice of pest control.
Do those two have names? I am not sure what to make of a reliance on authority from a dinner table conversation.
I don't see how this relates to the presidential order. As I understand it, the decision that FBI HQ decided almost immediately after 911 that it had errored in refusing the local FBI agents request to examine the computer. And the evidence they ultmately used to get the warrant had nothing to do with monitoring communications. This sounds like a dinner table conversation discussion.
Let's hope you're right, FDChief. But it sounds as though
the way this program was set up, the names and numbers were
known only to very few people, and with those people subject
to very stringent (NSA/military) secrecy. And Bush/Cheney
have frequently used rhetoric which suggests that anyone
criticizing the war effort is helping the terrorists - and
on their planet they might view that as probable cause for
surveillance. Note also the comments that they feared
exposure if Kerry was elected. I wonder also if this ties
in with Bolton's requests for NSA transcripts ?
Anyway, a big mess all round. We may need a Truth and
Reconciliation Commission after this is all done.
Actually, that's not what's going on at all. If you really
wanted to win the War on Terror, then I'm pretty sure security
experts would have recommened these steps:"
My apologies, Richard for not adding emphasis to was suppose to be sarcasm note. I agree that Bush has no interest in going for a total win in the GWOT, but rather, winning in the sense that anything, and everything is compromisable to his retaining power.
I've been convinced, now, that he feels he is "G-d's man" and he can do and say anything he wants, the rest of us be damned!
re: wht didn't he get FISA approval etc. Bush had a father fixation, resolved that with invading Baghdad. Suddenly discovers the ultimate father figure, the Constitution -- gotta flip the bird at this one.
Actually it does Ross, because both getting into Massoui's computer and what's going on with NSA monitored Commo supposedly fall under FISA. Both supposedly would require going through the same process of going to the same court and getting a warrant from the same judges appointed by the same Chief Justice under the same legal authority. To imply the details don't convey to this argument is facile because what will determine whether or not the President acted legally will be to what degree the process in FISA applies even if we're talking apples and oranges, or Massoui and NSA monitored commo as the case(s) may be.
I think we all need to keep high in our minds this piece of information, as Sigma has pointed out earlier:
The executive branch had briefed the Congressional Select Committees on Intelligence *every time* George W. signed a presidential finding authorizing the NSA to tap the phone calls, as it is supposed to.
Therefore, for all you people screaming constitutional crises, you need to calm down.
Whether the NSA should have sought FISA warrant, that's probably a question for the supreme court to decide. However, the executive branch has done this surveillance with the consent and supervision of the legislative branch. Based on this fact alone (briefings), this wiretapping program is not an impeachable offense.
In this age of the information super highway, it is always difficult to figure out the national borders in the digital domain. It is eminently possible for a phone call or email from Europe to route through a server in CONUS before moving onto a Middle Eastern destination. This program may not have explicitly addressed this digital problem, but it dealt with the overarching problem of borders and people.
With regard to journalists "leaking" national security secrets, I think the NYT did the right thing consulting with the executive branch. Publishing this story has direct operational concerns, and I think NYT has found the balance between the competing needs of the People. The executive branch probably never expected something like this staying secret forever, so it probably will not be prosecuting anyone at the NYT.
I wonder where all this clarity comes from.
Care to share with us how you confirmed these "facts"?
With all due respect, sir, and in spite of the Emperor's efforts to "construct" things to make it look all well and good, Rome fell with the full knowledge of the Senate.
BTW, welcome to the conversation.
As of today the administration's position is that:
- FISA doesn't apply because AQ aren't members of a Foreign Power or their agents, (per Sec. Rice on Meet the Press) and the Commo isn't wholly in the US.
-The President was granted the authority by Congress to order monitoring the Commo when they authorized him to go after AQ, (per the President in today's Press Conference).
Personally I'm against him on this, but I'm going to say again, no law may have been broken, which is especially compelling in light of how Congress was in the loop at all times on it...
And lastly Jimmy it's my understanding that for SCOTUS to get involved an injured party would have to bring a case to them, like the guy in the article who wanted to blow up the Brooklyn Bridge. Given the classified nature of the program I don't know if there will ever be such a case.
And, more to the point, if there was nothing legally objectionable to these 'taps, why not just run 'em through the FISA judge? It's not like the guys are Ramsey Clark or something - they've approved something like 99.95 percent of all FISA requests.
Every attempt to make this look like business as usual runs into the essential wierdness in keeping the whole thing out of FISA. Why? WHY!?? It's like you come strolling into the kitchen to find your girlfriend chatting on the hpone and as soon as she sees you GF jumps six inches in the air and slams the phone back on the hook. She may just be having a pleasant cose with her mom, but, if so, why the guilty behavior?
If this was a different group of people, I'd say, it was just some dumb thing, no biggie. But these are the same group that told us that Saddam was going to fly anthrax-laden drones through our windows and that fixing IRaq would take 1 billion, tops, really, no shit, trust me, why would I lie to you...?! So I keep coming back to the anomaly - why not just go to the FISA judge in the first place? Why the guilty behavior?
He could have told everybody in the world, and it would not make illegal behavior legal. The "Congressional Select Committees on Intelligence" don't have the authority to change the law either. Only the Congress, in session and voting as a body, have that authority. And Bush had YEARS to ask for a clarification if he really thought this was legal (the argument Mr. Wu makes). He did not, and now relies on his authority as CinC from the 9/11 authorization. Nope, this does not pass the smell test, regardless of whether he notified Congress. "Hey, Congressional Committee, I'm going to order the execution of political enemies, ok, even though it is specifically forbidden." Gee, that makes it ok as long as he told a Congressional Committee? "Hey, Sen. Frist, I'm embezzling $150 million, ok?" That does not mean he didn't steal, it just means there is more than one guilty party.
Congress specifically considered this program during the Cold War, when we thought we might be nuked at any moment. The Congress declared that such wiretaps could only take place with a warrant. The president now claims he did nothing illegal, but cites his wartime authority to show how it was legal. That destroys Mr. Wu's "nothing illegal happened here" argument. If it was legal for him to do it in the first place, no wartime authority would be necessary. That he cited it means he knows it. And guess what? His "wartime authority" does not give him the authority to violate the law for years without seeking a change in the law he is knowingly violating.
I can see a "temporary" violation as being reasonable - if, for instance, right after an attack a law appeared to be unreasonable and prevented a viable defense, then the law is ignored, but only for the short time it takes before "permission" is granted. For instance, in "From Here to Eternity" the arms room sergeant famously refuses to allow access to the arms room without the CO's signature - all while the Japanese are shooting up the barracks. The arms room sergeant is decked by a soldier, and they pour into the arms room and get weapons to shoot back. Violation of the UCMJ? Technically, but it was the right thing to do, and of course the CO would have approved if he were there. No problem.
This is not the case here. The "CO" is Congress, the attack is over, the war is still on but no fighting is occuring at the barracks, and the soldier seeking access to the arms room met with the CO all day and never once asked him to sign a form allowing access to the arms room. He goes down there and says "give me a rifle." No shooting is going on, and the arms room sergeant says "well, do you have the CO's permission?" "I don't need it" says the soldier, and he knocks out the arms room sergeant and breaks in the door. Has a crime been committed? Hell yeah, and you can't excuse it by saying that the Japanese might attack again. We KNOW they will, but the decision to limit access to the weapons was the COs, not the soldier's decision. And that soldier goes to jail. He could have simply asked the CO, but apparently he didn't think the CO would agree - so he BROKE THE LAW. His excuse - that he was right and the CO was wrong - doesn't hold water. The CO is at least as concerned about fighting the Japanese, and holds a higher rank. If we allow privates to second-guess commanding officers then we don't have an army but a lawless mob.
So how much scarier is it that the president ignored the law passed by Congress in order to spy on Americans for years, all without ever seeking permission from Congress to do so, and how scary is it that he thinks this was ok because we are at war?
The president was upset that the Patriot Act wasn't renewed. If we allow this FISA-gate to stand it isn't a problem, though. He just ignores the end of the Patriot Act and does exactly what he was doing before, and simply says "hey, they gave me the authority in the 9/11 declaration." Is that ok with anybody? That he just ignore the will of Congress? Because that is what he has been doing with these NSA wiretaps for years - knowingly violating the law based only on his "wartime" authority.
No, but as I said earlier it hardly surprises me that this is now an administration talking point to reporters. The problem is it doesn't make any sense.
IMO the point here isn't who was harmed, or who was informed, or why this was done. The point here is that the chief executive, the very individual with all the command responsibility for carrying out our nation's laws, blew a big fat raspberry at the constitutional limitations of his office.
Where does this make him different from any other banana republic caudillo?
From Senator Reid:
So I bet $10 today on the future of our republic.
I think, at best, there will be a debate over whether this kind of surveillance is necessary and then Congress will pass legislation essentially authorizing it and that will be the end of it.
FISA had nothing to do with getting into Massoui's computer other than giving the government the ability to do so legally. They didn't because they chose not to ask, not because FISA prevented it. The only only facile argument here is the one that trys to connect these two unconnected dots.
With the recent closed session of the Senate, Reid has shown
he's prepared to play hardball. Discipline in the Republican
party has broken down with the drop in Bush's ratings and
a string of embarrassing missteps (Social Security, Katrina,
Harriet Miers, the Plame case) - and many Republican senators
are going to be steamed about this - some because it's a
blatantly unconstitutional power grab, others just because
it isn't going to play well in their home state. We've
already seen the McCain anti-torture amendment get a huge
majority, in defiance of the White House. So I think the
Senate will investigate this seriously.
This is also going to affect the Alito nomination battle -
turns out Alito was involved in a case relating to earlier
warrantless wiretapping (and of course was on the wrong
side). And in general he's going to face difficult
questions about how far executive authority can be
stretched. On the evidence of his past record, he's
going to lie: but whether he can lie convincingly is
another question. In this new context of impending
constitutional crisis, I very much doubt that he can get
through Specter's committee, let alone avoid a filibuster.
Probably against music piracy if the RIAA lobbys for it enough.
And a swift kick in the political nuts to McCain for backing down verbaly on torture and playing up the idiotic "ticking time bomb" scenario.
Asked on ABC's "This Week" whether such treatment of a terrorism suspect who could reveal information that could stop a terrorist operation would shock the conscience, McCain said it would not.
"In that million-to-one situation, then the president of the United States would authorize it and take responsibility for it," McCain said.
Source- The Associated Press.
I don't know the quality of the briefings for the Select Committees. As Sen. Reid, said, it could have been worthless. However, *assuming* that the quality of the briefings is at the same level as that of years past, then the onus is on Congress for failing their duties. If the Select Committees disagree with the surveillances, they easily could have stopped the program. Remember, the intelligence budget is classified, so the Select Committees could easily have inserted language to stop the program within the first year, without violating any security protoccol.
I admit that it was entirely possible that George W. was blowing smoke up the asses of the Select Committees. But if that were true, the people who briefed the Committees (the National Intelligence Officers, or whatever they're called now) would quickly have been fired from their jobs. Based on the self-interest of these NIOs, who are usually career civilian employees, I believe they'd rather tell Congress the truth and risking the temporary wrath of the administration, assuming that this program is as devious as some people have said.
Regarding SIGINT and civil liberties,
It is relatively common knowledge that historically, the NSA and the UK GCHQ (their NSA equivalent) have had a very close reciprocal relationship. The ground rule was this: NSA will spy on UK nationals and UK territory, and the GCHQ will do the same. If the spying turns up anything, then the relevant agency will pass that piece of information along. This story breaks out in the newspapers about once a decade, it seems. The editors will make a fuss, and then it all blows over.
[Of course, that's assuming that such a relationship exists as the various papers and books have made out.]
It is possible that this program involves the reciprocal relationship, which could explain why FISA was not involved.
I agree that this entire NSA story is very strange and does not make sense on several levels. There has to be something special about this for the Select Committees to have kept quiet for so long. Or it could be that the NSA was too incompetent to ask FISA, and that Congress was too incompetent to ask questions.
You're missing (or ignoring) the point: "briefing Congress" does not allow one to invent or repeal any law. Legislation, duly passed by both houses creates and repeals laws. Anything told to the heads of the intelligence committees is utterly irrelevant to the (il)legality of domestic spying. It just doesn't matter.
They didn't brief the committees. They briefed a very small
number of individuals. On the Dem side, I've heard that
Reid, Pelosi, and Rockefeller were briefed. Rockefeller
expressed his concerns in writing. and has published his
copy of that letter. Pelosi says she expressed concerns as
well. Reid was briefed rather late in the game. In each
case they weren't allowed to discuss the program with
other people - not even their staff or independent experts
on the technical or legal aspects.
Under the circumstances, it seems the Democrats briefed
did everything they could to express their disapproval,
without leaking the highly classified information. So you
won't have any luck passing the buck on this.
You raise an interesting point about the money for the
program. Presumably the funding was disguised in some way
to hide it from the Intelligence Committees. And that in
itself might be illegal - lying to Congress and
misappropriating the funds. This is going to get ugly.
... but have no power to change or stop the program. Nor
even to menton it in public. All they can do is object in
private and be ignored.
true oversight requires the support of staff to deal with
technical and legal details, subpoena power to force
executive branch officials to answer questions, and
ultimately control of funding through the appropriations
process. It seems all those elements were missing - hence
Rockefeller's complaint that he couldn't even evaluate the
program, let alone endorse it. And as for going public,
it seems this program was so highly classified that they
wouldn't even discuss it with the full intelligence
committee, so I'm sure any public opposition would have
been required illegal disclosures.
As usual, the Bush/Cheney strategy is to promote public
confusion, paint all opposition as partisan, and play the
fear card. But the facts - even the few facts we know -
seem quite damning, and many honest conservatives, as well
as liberals, are unhappy about this.