The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.
The proposed legislation by Sen. Mike DeWine (R-Ohio) would have allowed the FBI to obtain surveillance warrants for non-U.S. citizens if they had a "reasonable suspicion" they were connected to terrorism -- a lower standard than the "probable cause" requirement in the statute that governs the warrants.
The administration has contended that it launched a secret program of warrantless domestic eavesdropping by the National Security Agency in part because of the time it takes to obtain such secret warrants from federal judges under the Foreign Intelligence Surveillance Act (FISA).
The wiretapping program, ordered by President Bush in 2001, is used when intelligence agents have a "reasonable basis to believe" that a target is tied to al Qaeda or related groups, according to recent statements by administration officials. It can be used on U.S. citizens as well as foreign nationals, without court oversight.
Democrats and national security law experts who oppose the NSA program say the Justice Department's opposition to the DeWine legislation seriously undermines arguments by Attorney General Alberto R. Gonzales and others, who have said the NSA spying is constitutional and that surveillance warrants are often too cumbersome to obtain.
"It's entirely inconsistent with their current position," said Philip B. Heymann, a deputy attorney general in the Clinton administration who teaches law at Harvard University. "The only reason to do what they've been doing is because they wanted a lower standard than 'probable cause.' A member of Congress offered that to them, but they turned it down."
Like John, I am not a lawer, so I feel ill equipted to discuss this with anything more than a general comment. I am sick and tired of this government "interpreting," the law in any way they like. There is enough questioning of this spying on both sides of the aisle for me to be uncomfortable with it. At minimum, there needs to be thorough bi-partisan hearings before the American Public on this issue.
Let me give a very direct instance of what I mean. We have recently learned that the NSA used law enforcement agencies to track members of a pacifist organisation in Baltimore. This is, first of all, an appalling abuse of state power and an unjustified invasion of privacy, uncovered by any definition of "national security" however expansive. It is, no less importantly, a stupid diversion of scarce resources from the real target. It is a certainty that if all the facts were known we would become aware of many more such cases of misconduct and waste.
Some of us have been concerned for a while now that the NSA thing was about more than spying on a few AQ Sleepers in the U.S.. This would seem to bear out that fear. It's time to get real people. Either you are a die hard Bush Partisan who believes he has the right to do as he wishes, regardless of the constitution, or you are an American, who believes too much blood has been shed and sacrifice made to take for granted those rights.
The mere possibility that such a program is used to spy on those who simply dissagree with the President's policies... rather than legitimate threats to our nation, is chilling in the least. So I ask the question... Where are the conservatives who believe in protecting our constitution. Have we come to a point in our national history where PARTY comes before Patriotism?
Did Americans really believe that it would get to the point where not even your personal mail is sacred anymore?
WASHINGTON - In the 50 years that Grant Goodman has known and corresponded with a colleague in the Philippines he never had any reason to suspect that their friendship was anything but spectacularly ordinary.
But now he believes that the relationship has somehow sparked the interest of the Department of Homeland Security and led the agency to place him under surveillance.
Last month Goodman, an 81-year-old retired University of Kansas history professor, received a letter from his friend in the Philippines that had been opened and resealed with a strip of dark green tape bearing the words "by Border Protection" and carrying the official Homeland Security seal.
"I had no idea (Homeland Security) would open personal letters," Goodman told MSNBC.com in a phone interview. "That's why I alerted the media. I thought it should be known publicly that this is going on," he said. Goodman originally showed the letter to his own local newspaper, the Kansas-based Lawrence Journal-World.
"I was shocked and there was a certain degree of disbelief in the beginning," Goodman said when he noticed the letter had been tampered with, adding that he felt his privacy had been invaded. "I think I must be under some kind of surveillance."
Goodman is no stranger to mail snooping; as an officer during World War II he was responsible for reading all outgoing mail of the men in his command and censoring any passages that might provide clues as to his unit's position. "But we didn't do it as clumsily as they've done it, I can tell you that," Goodman noted, with no small amount of irony in his voice. "Isn't it funny that this doesn't appear to be any kind of surreptitious effort here," he said.
The letter comes from a retired Filipino history professor; Goodman declined to identify her. And although the Philippines is on the U.S. government's radar screen as a potential spawning ground for Muslim related terrorism, Goodman said his friend is a devout Catholic and not given to supporting such causes.
"Nobody should doubt at this point that the Bush Doctrine has less to do with militaristic imperialism than it does with a vastly expanded theory of executive power, a theory more or less spelled out by presidential aide John Yoo. You'll recall that Yoo thinks that basically anything is legal as long as the president feels that it's necessary. The president, in his view, is the law."
With all the justifying going on in Conservative Circles, on everything from the justification to go to war in Iraq, to Plamegate, Snoopgate and beyond.... Just how will conservatives feel if the balance of power is shifted to the executive branch forever. Which means the next "Clinton," to take office will have the same powers. Will they howl in protest and claim the constitution is being abused then? This Presidency has almost become an academic excercise in understanding partisanship. On both sides.
My personal take... The rule of law is being dismantled, sometimes subtle ways, sometimes arrogantly, and the people who I have always respected to defend individual rights have abandoned common sense in favor of rabbid partisan political dogmatism.
WASHINGTON, Dec. 30 - The Justice Department said on Friday that it had opened a criminal investigation into the disclosure of classified information about a secret National Security Agency program under which President Bush authorized eavesdropping on people in the United States without court warrants.
The investigation began in recent days after a formal referral from the security agency regarding the leak, federal officials said, speaking on the condition of anonymity because of the secrecy of the investigation.
The program, whose existence was revealed in an article in The New York Times on Dec. 16, has provoked sharp criticism from civil liberties groups, some members of Congress and some former intelligence officials who believe that it circumvents the law governing national security eavesdropping.
President Bush and Attorney General Alberto R. Gonzales have vigorously defended the program as a legal, critical defense against terrorism that has helped prevent attacks in this country. They say Mr. Bush's executive order authorizing the program is constitutional as part of his powers as commander in chief and under the resolution passed by Congress days after the attacks of Sept. 11, 2001. That resolution authorized the use of force against terrorists.
The White House said on Friday that it had played no role in the Justice Department's decision. But in Crawford, Tex., where Mr. Bush has been all week, a spokesman was sent to talk to reporters with a prepared statement about the decision.
"The leaking of classified information is a serious issue," said the spokesman, Trent Duffy.
Does this mean the Justice Department has taken the position that the Bush wiretapping bit was legal? The ACLU has taken the position (and I am sure it will soon be echoed around the left wng of the blogosphere) that the leakers are heroes and whistleblowers. If they are in fact whistleblowers, how can an investigation go forward? It would seem to me the first thing that needs to be done is that Justice has to determine the law was or was not broken, then they can investigate.
Well, I am not going to say that the whistleblowers are heroes, at least not yet. What I will say is that I agree with John... The priorities seem to be a bit skewed here. If it turns out that the law was broken,and the constitution violated... we should give the whistleblowers a parade, right after the impeachment....
As for the Attorney General's zeal in pursuing this case, my opinion is pretty straight forward. This by all appearances is typical Bush tactics, intimidate and silence. It has worked up until now, but I have a sneaking suspicion that the American Public is getting a bit tired of it.
It's rare, but it happens... I agree 100% with Paul's statement on the NSA Spying case.
This might surprise some of you long time Wizbang readers, but I think the Democrats are absolutely correct. We need a congressional investigation.
AND I don't mean an investigation by a sub-sub-sub-committee. I mean the full monty. I want hearing live on felevision with the white hot lights that cause beads of sweat to form on foreheads. I want legal clerks by the dozen taking down every word and looking for perjury.
And more importatny, I want the committee to have subpoena power.
There are serious questions I want answered. And I want them answered under oath.
UPDATE: After getting a comment on this post, I am not sure if Paul and I have the same motives. (Maybe he is mixing the KA, hell I don't know...) Nevertheless, I agree that this calls for hearings. The Conservatives want to shoot the whistleblower. I want to know if the whistleblowing was justified...
Second Update: Paul ships me a crow sandwitch all the way to Costa Rica, and Yummy too. It's okay dude, I forgot about your occassional forays into satire. It's all good. Lets have the hearings anyway. And Boyd, I got your point. I am not sure I agree with it. Since I dont think the AQ guys are so stupid that they dont know we have these capabilities. Nevertheless, I am still concerned about the spying itself. No one has give a satisfactory explanation as to why Bush did not go to the Courts for the spying orders. I have no problems with the whistleblower being persecuted under principle. Likewise I want to see the people who outted Val Plame prosecuted. At least my position remains consistent huh? (wink)
That one of the wingnuts would eventually come up with a "Clinton did it too!," defense of the latest "let's piss on the constitution," party. Well I have a message for my Wingnut friend... If Clinton did it, he was wrong too, as was Carter and any other President who chose to circumvent the constitution. We dont have KINGS in this Country, and we have three branches of Government for a reason. That reason may not be obvious to those who are so full of their own self rightousness that they cant see the threat to ALL of us. But our founders had the right idea.
I have seen the Clinton meme all over the Rightsphere, and Jeff Goldstein has went into spin overdrive on justifying the snooping, all under the guise of... "Gee I really don't know, but I suspect this is much ado about nothing." Hehe... Truth is, the Clinton thing is just another smokescreen...
Oops, I forgot to give credit on this one. Thanks Rogue!
I think I am all "gated" out, but this is an interesting analysis of the latest bombshell out of Washington:
Dec. 19, 2005 - Finally we have a Washington scandal that goes beyond sex, corruption and political intrigue to big issues like security versus liberty and the reasonable bounds of presidential power. President Bush came out swinging on Snoopgate—he made it seem as if those who didn't agree with him wanted to leave us vulnerable to Al Qaeda, but it will not work. We're seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.
No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting,
but one can only imagine the president's desperation.
The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden's use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists—in fact, all American Muslims, period—have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that "the fact that we are discussing this program is helping the enemy." But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a "shameful act," it was the work of a patriot inside the government who was trying to stop a presidential power grab.
No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had "legal authority derived from the Constitution and congressional resolution authorizing force." But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.
What is especially perplexing about this story is that the 1978 law set up a special court to approve eavesdropping in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact. Since 1979, the FISA court has approved tens of thousands of eavesdropping requests and rejected only four. There was no indication the existing system was slow, as the president seemed to claim in his press conference—or in any way required extra-constitutional action.
In the Interim the debate "Rages," at Bush Pal Jeff G's Protien Wisdom. It continues to amaze me that anyone can continue to justify this crap. We have a President, and an administration that continues to defecate on the Constitution and people who are suppossed to be SUPER Patriots, continue to act as apologist for it. Sorry guys, this one definately does not pass the smell test, and as more details become available, and more constitutional lawyers, NOT HACKS weigh in on the matter, it looks worse and worse...
I am going to ask the question again, and I am sure it will be ignored by the trolls who respond to this post... WHERE does Bush's powers as a "War Time President," end?
Jack Grant, writing at The Moderate Voice, asks another important question. One the Righties stumbling all over themselves to spin this story, seem to be ignoring....
My question: Was an Executive Order needed? Were the existing provisions of FISA not sufficient to authorize NSA collection of these communications? Since very few FISA requests are turned down, what special situations arose that were not covered by the FISA?
This is the key question that has been in my mind ever since the story first appeared.
This question needs to be answered, but until then it should be noted that this administration has not shown a tendency towards preserving the individual freedoms enshrined in the Constitution and the Bill of Rights. To the contrary, the administration appears to be trying to circumvent the checks-and-balances system in order to allow the executive branch to operate without any restraints. Because of that history, I view this executive order with extreme suspicion.
I look at just about everything this administration does... with suspicion, as should anyone who has not spent the last year in a bunker.
P6, has a post debunking most of the rationale behind the snooping:
FACT: BUSH PROGRAM DID NOT IMPROVE SPEED OF OBTAINING WARRANTS: Another claim made by members of the administration is that President Bush needed "to skirt the normal process of obtaining court-approved search warrants for the surveillance because it was too cumbersome for fast-paced counterterrorism investigations." This argument has several flaws. For one, the New York Times notes, "government officials are able to get an emergency warrant from the secret court within hours, sometimes minutes, if they can show an imminent threat." More importantly, Section 1805 of the FISA Act states that the government can begin a wiretap as soon as it determines a need and can wait up to 72 hours before obtaining a warrant. The Bush administration "did not seek to do that under the special program."
FACT: RICE UNABLE TO EXPLAIN WHAT GAVE BUSH AUTHORITY TO EAVESDROP WITHOUT WARRANT: Yesterday, Condoleezza Rice was asked a simple question: what is the specific statute or law that gives President Bush the authority to eavesdrop on Americans without a warrant? She had no answer. Instead, Rice referenced unspecified "authorities that derive from his role as Commander in Chief and his need to protect the country," then explained she was "not a lawyer and I am quite certain that the Attorney General will address a lot of these questions." Indeed, Rice said several times that she is "not a lawyer." That fact is irrelevant. Rice was the National Security Adviser when President Bush authorized the NSA program, and said today that she was aware of Bush’s decision at the time. Shouldn’t she know why it was legal?
FACT: SOME CONGRESSIONAL INTELLIGENCE OFFICIALS NOT TOLD OF PROGRAM: Yesterday, Condoleezza Rice defended the eavesdropping program by arguing that congressional leaders -- specifically "leaders of the relevant oversight intelligence committees" -- had been briefed on the NSA activities. This is apparently not true. At the time the program was initiated, the Chairman of the Senate Intelligence Committee was former Sen. Bob Graham (D-FL). On Friday's "Nightline," Graham made clear he had never been briefed by the administration about the program: "There was no reference made to the fact that we were going to...begin unwarranted, illegal, and I think unconstitutional, eavesdropping on American citizens." Additionally, in a letter issued last night, House Minority Leader Nancy Pelosi (D-CA) said she had been "advised by Rep. Jane Harman (D-CA), Ranking Democrat on House Intelligence Committee, that the Bush Administration reversed its decision to brief the full House Intelligence Committee on the details of the activities."
Read the whole thing, it is a great piece of work...
President Bush today offered his most elaborate defense yet of his administration's domestic eavesdropping program, saying he was legally and constitutionally authorized to implement it and obligated to do so in order to protect the country from a new kind of enemy.
In a wide-ranging news conference this morning, Bush said his authority to have the National Security Agency eavesdrop without judicial involvement derived from his inherent constitutional powers as commander in chief as well as from the authorization for the use of military force approved by Congress in the wake of the attacks of Sept. 11, 2001. "Congress gave me authority," he said.
He expressed anger at the fact that someone revealed the secret program, saying he assumed the Department of Justice would launch an investigation to determine the source of the leak. "My personal opinion is it was a shameful act for someone to disclose this program in a time of war. . . . The fact that we're discussing this program is helping the enemy," he said.
And he was visibly angered when a reporter asked him what limits there were on "unchecked" presidential authority during wartime. "I disagree with your assertion of unchecked power," Bush said. "There is the check of people being sworn to uphold the law for starters. There is oversight. We're talking to Congress all the time. . . . To say 'unchecked power' is to ascribe dictatorial power to the president, to which I object."
Now what I want to know is simple. I am not being partisan here, I just want to know. WHAT ARE THE LIMITS of Presidential power under this administration?
I dont claim to be a Presidential Historian, and it has been pointed out to me in the past that SOME of the things the Bush Administration has done, have been done by previous Democratic Administrations. I am not looking for a two column scorecard here, but it seems to me that this administration has not only stretched the boundries of Presidential power, but reinterpreted them in some pretty scary ways. From Torture scandals, to massive no bid contracts, buddy appointments and now this scandal, the Bush Administration has seemed to constantly thumb their nose at the constitution and the American people.
I still don't understand why more conservatives, who tend to be privacy advocates, are not more outraged about this. Is there a double standard when it comes to Bush?
Attorney General Alberto R. Gonzales this morning defended the Bush administration's domestic eavesdropping operation, saying it derived its legality from the congressional resolution permitting the use of force to fight terrorism in the wake of September 11, 2001 as well as from the "inherent powers" of the president as commander in chief.
My, my my.... What other powers does the president have that we don't know about... YET?
If you still support the Bush Administration after reading this story, then your partisan political sickness may be terminal:
President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night.
The super-secretive NSA, which has generally been barred from domestic spying except in narrow circumstances involving foreign nationals, has monitored the e-mail, telephone calls and other communications of hundreds, and perhaps thousands, of people under the program, the New York Times disclosed last night.
The aim of the program was to rapidly monitor the phone calls and other communications of people in the United States believed to have contact with suspected associates of al Qaeda and other terrorist groups overseas, according to two former senior administration officials. Authorities, including a former NSA director, Gen. Michael V. Hayden, were worried that vital information could be lost in the time it took to secure a warrant from a special surveillance court, sources said.
There is no defense for actions such as these.
Wiretapping US citizens without a warrant?
This is against the law. There is absolutely no excuse for the President of the United States to violate the civil rights of US citizens..even to stop terrorism.
I can't imagine that this isn't an impeachable offense.
I recognize that there are a lot of scared Americans out there. Terrorism is a scary business.
But terrorism has been with us for centuries. And we've had US citizens die from terrorism on our soil prior to 9/11. When Eric Rudolph murdered abortion doctors and bombed the US Olympics in Atlanta..did we allow secret wiretaps of suspected abortion doctor killers and other suspected whacked out US citizens? When Tim McVeigh bombed the Federal Building in Oklahoma City...did we start those activities then? When Eric Harris and Dylan Klebold murdered their classmates at Columbine High School, did we start secret wiretaps of suspected angry high schoolers?
This is insanity. Any quarter of American society that supports allowing the POTUS to secretly wiretap Americans without having secured a warrant is either so blindly partisan or so blindly scared that they are beyond the reach of common sense.