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    « The Pullback in Iraq has Begun | Main | Constitutional, Maybe; Wise? Almost Certainly Not »

    December 17, 2005



    i thought this revelation is unprecedented precisely because it involves domestic spying on US Citizens (that is, not the 'agents of foreign powers'). Is this really a constitutional gray area?

    Eric Umansky

    Sorry, I probably could have been clearer: Spying on U.S. citizens who are believed to be working for U.S. foreign powers--think Aldrich Ames or some of the dudes in Sleeper Cell--really is a constitutional gray area.


    Although I'm no lawyer, I think if you look at USC Title 50, Chapter 36, Subchapter 1, Section 1802 (definitions in section 1801), the President was well within his Constitutional legal authority in ordering the NSA to conduct these surveillance "wiretaps." As pointed out by the Astute Blogger, it seems pretty clear that the NY Times very deliberately published an article based on illegal CIA leaks on the day of the Iraqi elections in order to strike a blow against the Bush administration. The elite liberal intelligentsia have decided to do whatever they can to oppose President Bush, even if that means supporting anti-American terrorists.


    Gandalin --

    USC Title 50, Chapter 36, Subchapter 1, Section 1802 (a) (1) (B) [surveillance without court order is allowed if] there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

    How can you say that this requirement is met if they are explicitly wiretapping the phone of a United States person? That section of the code was intended to protect the rights of U. S. citizens -- exactly what the administration has admitted doing. This section does not exonerate the President on this matter; it's instead quite damning given the section quoted above.

    Even if none of that were part of the statute, please note that the section you're referring to applies only to "foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title." That explicitly leaves out **(a)(4)** which is defined as "a group engaged in international terrorism or activities in preparation therefor".


    Well JoeYangtree, you may be right.

    But let's start with your last comment. I also noticed that the statue specifically excludes terrorist groups as those targeted by these special provisions. Weird isn't it?

    But unless you know exactly which phones were ordered to be tapped, you really don't know if the groups targeted fall under the provisions of the act, do you?

    Since President Bush was evidently very concerned to comply with the provisions of the law, I think it's safe to assume that the stated reasons for doing the eavesdropping would fall under the provisions of the law.

    The same goes for the US citizen provision. Were the phones that were tapped phones that were in the US and did they belong to US citizens? Or were the conversations of US citizens recorded because they were connected to foreign phones (or US phones) that belonged to foreigners?

    Do you know?

    Without dragging into the open even more classified information, information that would aid and abet our enemies, I don't think you and I can answer these questions.

    The bottom line for me, though, is that the New York Times intended to aid and abet our enemies, either by directly providing them with valuable operational classified information (information about how our counter-intelligence operations work) or simply by weakening the American government's avility to respond.

    Terry Ott

    I went to law school for a year, then came to my senses. So I won't embarrass myself by feigning competence to interpret the relevant statutes. I DO feel competent to conclude, after reading pages of commentary from people who SEEM to have good intellect, training and insight, that: The law is "murky", unsettled, slippery in this scenario.

    I'm a practical guy. I think the POTUS is not in any trouble with "Americans in general" if he authorized taps of US residents whom a reasonable person could conclude were in cahoots with terrorism practitioners/enablers/supporters. He IS in trouble IF the reason he didn't go the warrant route is to eavesdrop on citizens for other reasons, using the terrorism connection as a ruse, such that warrants would likely have been denied.

    So, the legal scholars and combatants will debate if and how a provision of the (potentially unclear) law was broken or circumvented, or not. I trust them to deconstruct the thing from that perspective.

    I'm more interested in why he did it the way he did, whether or not it could be shown to be within the technical bounds of the law. Then I'll form an opinion about how I feel about it, and so will lots of others ... including the great mass of people who are not lawyers.

    Terry Ott

    Clarifying, sorry.

    I said: ... not in any trouble with "Americans in general" if he authorized taps of US residents whom a reasonable person could conclude were in cahoots with terrorism practitioners/enablers/supporters.

    I should have said "whom a reasonable person could discern MIGHT be in cahoots with..."

    Joe Yangtree


    You said: "Were the phones that were tapped phones that were in the US and did they belong to US citizens? Or were the conversations of US citizens recorded because they were connected to foreign phones (or US phones) that belonged to foreigners? Do you know?

    If you read the initial story from the NYT, the first two paragraphs answer this question. The NSA was authorized in this program to "eavesdrop on Americans and others inside the United States" and has "monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants." The administration has not, at any time, denied the correctness of this assessment of the program. The statute that you introduced clearly states that this is not allowed even if there is a "substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." Clearly, that has been violated, if you accept the Times quote above. But hey, at least my first post got you from "I think...the President was well within his Constitutional legal authority" to "I don't think you and I can answer these questions," so that's tremendous progress that I commend you for.

    Back to the point that I can't know who was targeted and thus can't know if they fall under (a)- (c) or (d) (or (e) or (f) for that matter), that's true. I'm simply taking President Bush at his word on that one. He said that this ability was instrumental to "the war on terror," not instrumental to our ability to spy on what France is plotting. But, I can agree that he could be being deceptive on that point.

    Without dragging into the open even more classified information, information that would aid and abet our enemies, I don't think you and I can answer these questions. Now this is an interesting argument, given that the Bush administration could have acquired these warrants through the (secret) FISA Court. They chose not to. Do you know why? I don't. I'd love to hear the best reason that you can come up with though, because I'm really stumped.

    Since you like the questions, though, I have a few of my own:

    1) How do you "know" that "the New York Times intended to aid and abet our enemies"? Where's your irrefutable evidence? You so far haven't given any. Why so certain of this declarative statement?

    2) If this is legal according to existing statues, then why did the President need an executive order at all to get this done? Why couldn't he just have requested it as a normal operational aspect of the NSA's duties?

    One point I will agree with above. This is legally murky. I agree that there are no certainties here. But, given Bush's track record, he doesn't get my trust when it comes to interpreting whether or not the President has these powers. I'd like to see a court decide this. You know, like the Constitution gives them power to do. That can never happen when you have secret programs that no court has ever been informed of.

    There are several problems with the Administration's position. Leaving aside the question of whether a party is an agent of a foreign power, the statute prohibits monitoring when the party monitored is a US national. Second, there IS a provision that provides for warrantless monitoring, but it lasts only one year--something that can't be applicable now.
    The real problem here is not that there might be wiretapping, but that there was a way to do it legally but the Administration chose to ignore that legal route. At least on the basis of the justifications offered, there is NO explanation for the WH failure, 4 years after 9/11, to simply seek a change to the law.

    Eric Umansky

    Yes, it is a big mystery why the White House felt the need to skip FISA. Here's one best theory that I've seen:

    Thanks--that's an intriguing notion. But if that's the case, it makes me wonder what kind of activity this would be. I wouldn't think the FISA court would be sqeamish, so the idea that there's something out there that no court would approve of makes me uncomfortable.
    In the meantime, I think the most plausible notion is still the Administration's general casualness about legal niceties.


    Joe Yangtree,

    My comment about the purposes of the editorial board of the New York Times was merely my personal judgment call based on reading the newspaper for the past 30 years.

    I agree with you that the legal issues are murky, and my thinking about them has become murkier since reading a transcript of the President's press conference today.

    I think it hinges on whether the United States is at war, or not.

    Joe Yangtree


    Well, I have to say that you're a lot more reasonable than your original source, "Astute Pundit". That guy is a (in the words of Bugs Bunny) a maroon. Alberto Gonzales has admitted that this program would violate FISA, so I think that all parties are agreed on that point. The administration has chosen to rely on Article II and the 2001 "war resolution" as the basis for this program. Their court record of expanding the powers of the executive using this argument has been less than stellar so far, but, of course, every case is different.

    Murky legal issues are why we have the courts. That's why I'm glad that we now know about this program. As long as it was secret, it was a new power that the President had granted himself with no meaningful review. Now, the law will be settled and the program will either continue legally or be discontinued as illegal.


    Joe Yangtree,

    John Hinderaker has an interesting comment posted, in which he argues that the courts have already repeatedly determined that (quoting from a FISCR opinion) "all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

    Let alone the growing body of evidence that suggests the present Administration did nothing more than was ordered by both Presidents Carter and Clinton in the past.

    Joe Yangtree

    Sorry, Gandalin, I've been distracted with reliapundit, the "Astute Blogger". He can't seem to get past that this program violated the FISA statutes :-) Really, I'm not joking. He still asserts that it was totally legal under the FISA guidelines. He doesn't realize that the rest of the world (including Alberto Gonzales) has invalidated that point.

    On to the question at hand. As I've said, this is a murky issue, which is why we have the courts. The opinion of the court you reference is probably one of the best arguments that the administration has. On the other side, the administration's failure to win two other cases before the Supreme Court where they argued based on "inherent" Presidential powers bodes ill for them. When you argue that point and Scalia votes against you, that's hurdle when you go back to make the exact same argument again.

    If I was arguing against the government, I would first point out the previous cases they refer to were pre-FISA cases: "That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power." Since there were limited guidelines and restrictions passed at that time for foreign intelligence warrants, the courts held that the President did have this ability. Congress, by passing FISA, sought to define exactly where the previously undefined limits were.

    Additionally, quoting from that decision, "the court held that 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." FISA specifically addressed this further by clarifying that "US persons" overrode "agent of foreign power".

    If you read over the 2002 decision, you'll find that it is primarily involved with a FISA warrant that was granted with restrictions ("The FISA court authorized the surveillance, but imposed certain restrictions, which the government contends are neither mandated nor authorized by FISA."). In accordance with FISA and the Patriot Act, the review court determined that the FISA court did not have the authority to impose those additional restrictions. I believe that this is the authority that "could not be encroached on." specifically, to restate this a little differently, the FISA court could not grant the warrant and, at the same time, impose the restrictions they tried to. To do so would infringe on the President's constitutional power.

    Of course, that's just my opinion. For all I know, the administration may win the case based on exactly that sentence.

    However, as an additional analysis point, please consider this. Do you really think that this decision basically invalidated all FISA's restrictions regarding warrants and foreign intelligence gathering? If so, neither the FISA court nor the administration acted as if this were the case. If your interpretation is correct, the FISA court was basically a sham after September 2002, since the court had decided that they had no standing to "encroach on the President's Constitutional power" by ever denying warrants for foreign intelligence. Since that's all they exist to do, they would have no purpose anymore.

    As for the "growing body of evidence that suggest the present Administration did nothing more than was ordered by both Presidents Carter and Clinton in the past," I think you may be being taken in again. Of course, the most obvious difference is that Bush attempted to keep his program secret. Carter and Clinton made no such efforts. My biggest problem with this whole thing is that as long as a program is secret, it cannot be limited or interpreted by the Federal courts. Clinton's and Carter's programs were totally open to challenge.

    As for Carter's program, this is a truly bizarre assertion. As you might know, FISA was passed while Carter was in office 1978. Carter's executive order was "Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section." In other words, FISA has given us the power to do some warrant-less searches, so we'll start doing that, according to the requirements of that act. Wow, what a rebel that Carter was, huh? FISA is passed and he issues an order to do exactly what it says.

    Here's more:

    Of course, maybe you were referring to other mounting evidence. If so I'd love to hear it and respond.

    YO Fuckhead

    YOu stupid shit. The 1972 case is what gave us the FISA courts. FUCKING DUH! Just because you try to legitimize asshat's supposition that his authority is limitless, by you talking to a "liberal law professor", oh then it must be the real way it is, oh OK, I get it. What a fucking nut case you are. He is going to hang by the throat for treason, as he should. And little fucks like you that give him cover will hang too.

    Last post demonstrates the hysteria and gutter talk that is bringing this country down. Anyone who is not partisan and can be intellectually honest, realizes this is a complext legal issue with no clear answer. Fortunately, there's no rational people like all of you, as opposed to this jackass 'yof*ck...'


    Here's the bottom line. If it's so illegal and such a gross violation of power, how come not one democrat is suggesting we take the power away? No one, except the hysterical radical left, has suggested he stop doing this. Congress still has not passed any resolution telling him to stop, which they could. I wonder why? Maybe b/c it's not black and white, and they agree it's necessary. All you have to do with these issues is compare what's being said to what's being done. Same thing with Iraq - withdrawal everyday since 2003, when it comes time to vote for the exact policy advocated? No one shows. Why? B/c the democrats have to speak on TV to the moonbats, but they still manage to act responsibily in congress


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