Unwarranted Criticism

[Pendragon_6]

May 10, 2006

General Hayden’s reading of the Fourth Amendment is correct, and his critics are mistaken.

By Adam White

General Michael Hayden has been nominated to direct the CIA, but his confirmation may have less to do with the CIA than with the formerly Hayden-led National Security Agency (NSA)—or, more specifically, with the NSA’s widely-publicized surveillance of communications between U.S. persons and suspected terrorist organizations. Already, critics point to Hayden’s January 2006 speech at the National Press Club, where his explanation of the rights afforded by the Fourth Amendment was received with great hostility.

Hayden was right and his critics were wrong. The next CIA director’s understanding of the Fourth Amendment entirely comports with the text of the amendment and with the Supreme Court’s interpretation of it.

In his January speech, Hayden was confronted by Knight-Ridder’s Jonathan Landay over the protections of the Fourth Amendment. The exchange, reprinted Monday on Editor & Publisher’s website, bears reprinting in full:

LANDAY: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.


National Review (http://article.nationalreview.com/?q=ODgxN2VkMzA3MTFjNWFmNzZjNzZiODVlYzI3YTdiZTc=)

[Borgia]

General Hayden’s reading of the Fourth Amendment is correct, and his critics are mistaken.

LANDAY: my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.


Hmm, you would think the author might actually quote the 4th Amednment to his audience. But of course to do that would make Hayden look a tad foolish:


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It does not look like Hayden read the full text of the Amendment. He must have read the Cliff Notes version.

[DoctorDoom]

Amendment IV (1791)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And in what way does that prohibit monitoring communications involving terrorist activity? The liberal definition of "unreasonable" is an invitation to America's enemies to run roughshod over the country.

[Borgia]

Amendment IV (1791)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And in what way does that prohibit monitoring communications involving terrorist activity? The liberal definition of "unreasonable" is an invitation to America's enemies to run roughshod over the country.

The reporter used the term, "probable cause" and Hayden corrected him yet the exact same term, "probable cause" is in the amendment in question.

Can the US legally listen in to your phone calls if they think you are a terrorist, Doom?

[Rhino]

Hmm, you would think the author might actually quote the 4th Amednment to his audience. But of course to do that would make Hayden look a tad foolish:He did quote it. Did you not read the link?

It does not look like Hayden read the full text of the Amendment. He must have read the Cliff Notes version.Looks to me like Landay used the Cliff Notes.

The reporter used the term, "probable cause" and Hayden corrected him yet the exact same term, "probable cause" is in the amendment in question.You are making the same mistake the reporter did. The probable cause requirement is for warrants, which is not applicable in the scenarios they were discussing. The article goes on to explain that warrants are not required for all searches and seizures, and the Supreme Court decision quoted in the article also stipulates that probable cause is not always required for searches/seizures. Hayden was correct. Landay was the one looking foolish.

Can the US legally listen in to your phone calls if they think you are a terrorist, Doom?Yes, subject to certain restrictions. Okay, okay, the question wasn't directed to me. I couldn't resist.

[DesertFox]

Borgia was using the Cliff Notes version of libs vs. FreeCon. :D

[Lazarus]

He did quote it. Did you not read the link?...Apparently not... I also recall the Amendment being quoted in its entireity with key phrases highlighted for emphasis...

I thought the author of the article did a thorough job of vindicating the NSA position... Good article...

[Borgia]

He did quote it. Did you not read the link?

No, I did not until now. It is my understanding that the excepted part would have the salient points but the excerpt in this case was just a teaser. My bad.


You are making the same mistake the reporter did. The probable cause requirement is for warrants, which is not applicable in the scenarios they were discussing. The article goes on to explain that warrants are not required for all searches and seizures, and the Supreme Court decision quoted in the article also stipulates that probable cause is not always required for searches/seizures. Hayden was correct. Landay was the one looking foolish.

In Lindsay's opening paragraph the subject is wiretaps. We were talking about wiretaps, right? In the US and on a US citizen, can you get a wiretap without a warrant? My understanding is no, you cannot. So first you need a warrant to have a wiretap. What is the measure of getting a warrant? Why it is probable cause. That is what Lindsey was referring to but Hayden tried to obfuscate by pretending the subject was general searches which it was not. Read it again.

[Rhino]

In the US and on a US citizen, can you get a wiretap without a warrant? My understanding is no, you cannot.Yes, you can in certain circumstances, so probable cause is not always an issue, hence Hayden's remarks. The circumstances get very involved, but they do legally exist. Besides, these were not calls in the US. They were overseas calls. The rules differ for those, even if one end of the call is in the US.

[Rhino]

And by the way, in situations like this, the restriction is not on US citizens per se, but on what is termed "US persons". That includes more than just citizens.

[Borgia]

Yes, you can in certain circumstances, so probable cause is not always an issue, hence Hayden's remarks. The circumstances get very involved, but they do legally exist.

Oh? Please elucidate me as to what those circumstances are that do not erquire a warant to tap a phone line.


Besides, these were not calls in the US. They were overseas calls. The rules differ for those, even if one end of the call is in the US.

Actually, the constition protects all American citizens, even those receiving suspected Al Qaeda calls. A reading of FISA details this and makes it quite clear that if one side of the phone call could be reasonably assumed to be a US citizen, a warrant is required.

[DesertFox]

From the article:

As the Fourth Amendment provides (emphasis added),

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

On its face, the amendment only provides for protection against unreasonable searches and seizures, while it later provides that no warrant shall issue without “probable cause.” Landay and Hayden’s critics mistakenly apply the “probable cause” requirement to the “searches and seizures” provision. That reading is erroneous on its face; to apply the amendment’s warrant requirements to the searches and seizures clause would also require that searches be supported “by oath or affirmation,” with the objects of the search described in advance. Hayden’s reading—that searches must only be “reasonable”—is the better reading. ...

In the Vernonia School District 47J v. Acton (1995), for example, the Court roundly rejected Hayden’s critics’ reading of the amendment (emphasis in original):

Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”


It's a slam dunk. The general's right and the reporter wrong.

[Borgia]

DesertFox, yes I had read that but the author is ignoring that Linday was talking about wiretaps.

My understanding of wiretaps, and it could be wrong I am waiting for info from Rhino, is that they require a warrant.

Since wiretaps require warrants, it falls under the aegis of "probable cause".

It seems Hayden forgot that they were talking about wiretaps and thought they had somehow steered into general searches.

[DesertFox]

Read again, Borgia: a warrant is not required to establish the reasonableness of all government searchesThe reporter's grasp of the 4A is too small; the general's is properly encompassing.

This isn't rocket science. What is the crucible of probable cause? Reasonableness. No judge is going to approve an unreasonable presentation of probable cause.

"Your honor, we think there's probable cause that this dude is a terrorist."

"Based on what?"

"He likes M-80 firecrackers."

"Yeah, sure, that's reasonable."

Not likely.

[Rhino]

Oh? Please elucidate me as to what those circumstances are that do not erquire a warant to tap a phone line.Overseas communications for one. There are others, but I don't know them all. As far as overseas calls are concerned, I can't personally speak on them due to my past involvement with intelligence programs. I simply don't know what is or is not sensitive now, so I prefer not to address it al all. However, a Google search will reveal quite a bit.

Actually, the constition protects all American citizens, even those receiving suspected Al Qaeda calls.And we've already shown there is no constitutional problem here.

A reading of FISA details this and makes it quite clear that if one side of the phone call could be reasonably assumed to be a US citizen, a warrant is required.FISA does not require warrants, citizen or not. Although the term "FISA warrants" is bandied about, there is technically no such thing.

[Borgia]

re: FISA

Warrant, court order..whatever you want to call it, Rhino. Anyway, FISA stipulates that probable cause is required when US citizens are involved in the phone conversation. Thus, it is the same requirement that Linday mentioned that Hayden erroneously dismissed.

By the way, I am not sure, but I am wondering if you are heading down the road of arguing that FISA is unconstitutional. If so, you should be aware that two court cases found it constitutional:

United States v. Duggan
United States v. Nicholson

[Borgia]

a warrant is not required to establish the reasonableness of all government searches

Read again, Borgia: The reporter's grasp of the 4A is too small; the general's is properly encompassing.

This isn't rocket science. What is the crucible of probable cause? Reasonableness. No judge is going to approve an unreasonable presentation of probable cause.

"Your honor, we think there's probable cause that this dude is a terrorist."

"Based on what?"

"He likes M-80 firecrackers."

"Yeah, sure, that's reasonable."

Not likely.

I am not saying all searches require a warrant. Just unreasonable ones and courts have ruled wiretaps as falling under that category. A quite reasonable search is whent he cop stops you whilst walking down the middle of the street and makes sure (searches) you have no weapons on you. Or when called to a house, a cop can enter if he hears a gunshot inside. Does not need a warrant. You get my drift.

[Naturalized-Texan]

In Lindsay's opening paragraph the subject is wiretaps. We were talking about wiretaps, right? In the US and on a US citizen, can you get a wiretap without a warrant? My understanding is no, you cannot. So first you need a warrant to have a wiretap. What is the measure of getting a warrant? Why it is probable cause. That is what Lindsey was referring to but Hayden tried to obfuscate by pretending the subject was general searches which it was not. Read it again.
No, we are definitely NOT talking about wiretaps. We are talking about surveillance of battlefield communications initiated by suspected terrorists either in the U.S. or to someone in the U.S. That NSA surveillance has been ruled constitutional by the FISA Court that has jurisdiction over the gathering of such battlefield intelligence.

[MichaelS]

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

- George W. Bush; Remarks by the President in a Conversation on the USA Patriot Act (http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html); Buffalo, NY; April 20, 2004Always loved this one.

[Pendragon_6]

Are we the few who don't mind wire-tapping suspected terrorists? If the wire-tap prevents a terrorist attack, will the whiners still whine? Absolutely, since their agenda is to see to it that the USA loses the war on terror.

[Rhino]

re: FISA

Warrant, court order..whatever you want to call it, Rhino. Anyway, FISA stipulates that probable cause is required when US citizens are involved in the phone conversation. Thus, it is the same requirement that Linday mentioned that Hayden erroneously dismissed.Actually, Hayden was asked a question in the context of the fourth amendment, which he answered correctly. Was the context narrow? Yes. But Hayden didn't establish that context. Landay did.

By the way, I am not sure, but I am wondering if you are heading down the road of arguing that FISA is unconstitutional.Nope.

I am not saying all searches require a warrant. Just unreasonable ones and courts have ruled wiretaps as falling under that category.No they haven't. Not in all circumstances anyway. 'Warrantless' wiretaps have been upheld by the courts before.

A quite reasonable search is whent he cop stops you whilst walking down the middle of the street and makes sure (searches) you have no weapons on you. Or when called to a house, a cop can enter if he hears a gunshot inside. Does not need a warrant. You get my drift.Criminal matters. The courts have affirmed that FISA is treated differently from criminal matters. There are similarities, and there are differences, and sometimes the lines cross, but the courts have dealt with that too.

In the context of FISA, all they have to say is that they reasonably believe the person is an agent of a foreign power, and that constitutes probable cause. Additionally, if they are monitoring communications with a foreign or terrorist entity for intelligence purposes, and that entity receives or establishes communications with a US person, then that person has by default met that bar of reasonable belief, and therefore probable cause.

I'm curious. Do you think they are just blanket monitoring the communications of just any US citizen at will? They aren't. There has to be reason for it.

By the way, if the intercept facility is outside the US, these FISA restrictions don't apply. Others do, but not FISA.

[Rhino]

Always loved this one.Sounds good to me too. He's exactly right.

[MichaelS]

Dealing specifically with the referenced article...

As the Fourth Amendment provides (emphasis added), The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
On its face, the amendment only provides for protection against unreasonable searches and seizures, while it later provides that no warrant shall issue without “probable cause.” Landay and Hayden’s critics mistakenly apply the “probable cause” requirement to the “searches and seizures” provision. That reading is erroneous on its face; to apply the amendment’s warrant requirements to the searches and seizures clause would also require that searches be supported “by oath or affirmation,” with the objects of the search described in advance. The author's interpretation implies that the two components of the amendment are mutually exclusive. They are not. The provision that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," does not and could not stand alone. The remaining verbiage of the amendment is specifically intended to reinforce the former, thus the specific references to places "searched" and items "seized". The intent behind it that, yes, all searches would indeed require a warrant. That is the ideal.

In practice, this ideal is not always attainable. Thus warrantless "probable cause" searches aforementioned by Borgia and the "special needs" circumstances noted in the Supreme Court rulling included by the article author.

A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”
So, the viability of the wiretaps is determined by whether or not they meet one of these two warrant-free allowances.

Warrantless probable cause searches are temporary, based on immediate circumstances, and must still hold up under cause scrutiny after the fact. For instance, searching a house where a gunshot is heard, using the previously mentioned example. The search is temporary, based on immediacy, and still holds up under subsequent inspection for cause. However, it does not permit agents of the government to then search that house at any time thereafter.

If the wiretaps were based on immediate circumstances and temporary in nature, they might fall into this category. While there have been plenty of claims of immediate need, I've heard no affirmation that the wiretaps are subsequently removed once the pertinent conversation on which the immediacy is based has concluded. And the probable cause requirement is still applicable and open to subsequent validation.

"Special needs beyond the normal need for law enforcement." That couldn't be more wide open to interpretation. However, I've seen nothing to indicate that the nature and need for the wiretaps would preclude them from the requirements of "normal law enforcement" outside of the need for secrecy, which, in my understanding, was the foundation for the formation of the FISA court. In other words, wiretaps such as these are the exact reason why the FISA court was created, and I've seen nothing to indicate any exceptional nature of these taps to place them beyond the reach and review of that court.

Essentially, if the taps are indeed against potential terrorist suspects having conversations with known members of terrorist organizations abroad, then they should have no issue with holding up under the court's scrutiny and, thus, contain no "special need" to bypass it.

[MichaelS]

Are we the few who don't mind wire-tapping suspected terrorists? If the wire-tap prevents a terrorist attack, will the whiners still whine? Absolutely, since their agenda is to see to it that the USA loses the war on terror. I don't know of anyone that minds "wire-tapping suspected terrorists". I know I don't. However, there's nothing about the requisite cause and court order that precludes such taps. They just have to be justifiable. If they are indeed "wiretaps of suspected terrorists," there should be no issue there, and, as a result, no need to bypass the judicial requirements.

[Rhino]

The intent behind it that, yes, all searches would indeed require a warrant.The courts have disagreed with you.

So, the viability of the wiretaps is determined by whether or not they meet one of these two warrant-free allowances.......And the probable cause requirement is still applicable and open to subsequent validation.You're mixing criminal law with FISA. In most cases, that doesn't work.

"Special needs beyond the normal need for law enforcement." That couldn't be more wide open to interpretation.That's the basis of most opposition to the Patriot Act. Much of the definitions are vague.

However, I've seen nothing to indicate that the nature and need for the wiretaps would preclude them from the requirements of "normal law enforcement" outside of the need for secrecy, which, in my understanding, was the foundation for the formation of the FISA court. In other words, wiretaps such as these are the exact reason why the FISA court was created, and I've seen nothing to indicate any exceptional nature of these taps to place them beyond the reach and review of that court.Nobody is placing them beyond that reach or review.

Essentially, if the taps are indeed against potential terrorist suspects having conversations with known members of terrorist organizations abroad, then they should have no issue with holding up under the court's scrutiny and, thus, contain no "special need" to bypass it.No one is bypassing it.

[Rhino]

The President has the authority though:

Warrantless Searches of Americans? That’s Shocking!
Except when it happens every day.



When not cavalierly talking "impeachment," here's the Left's talking point of the day:

What makes this president think he can invade the privacy of Americans without a warrant?

I don't know. Could it be the powers, long recognized by federal law, to:

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;http://www.nationalreview.com/mccarthy/mccarthy200512201735.asp

There's a lot more at the link.

[Rhino]

This is good too.

http://fas.org/irp/agency/doj/fisa/doj032406.pdf

[Rhino]

Ah, now I get the context. He was speaking of the NSA program not covered under FISA. Now the light bulb comes on. I've been answering questions in the context of FISA only. Pardon me if I misunderstood any previous comments.

Yes, it's still legal. The entire transcript of that exchange is quite interesting. Hayden didn't actually say "reasonably believe".

....You know, the 9/11 commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are no communications more important to the safety of this country than those affiliated with al Qaeda with one end in the United States. The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.

The purpose of all this is not to collect reams of intelligence, but to detect and prevent attacks. The intelligence community has neither the time, the resources nor the legal authority to read communications that aren't likely to protect us, and NSA has no interest in doing so. These are communications that we have reason to believe are al Qaeda communications, a judgment made by American intelligence professionals, not folks like me or political appointees, a judgment made by the American intelligence professionals most trained to understand al Qaeda tactics, al Qaeda communications and al Qaeda aims.

Their work is actively overseen by the most intense oversight regime in the history of the National Security Agency. The agency's conduct of this program is thoroughly reviewed by the NSA's general counsel and inspector general. The program has also been reviewed by the Department of Justice for compliance with the president's authorization. Oversight also includes an aggressive training program to ensure that all activities are consistent with the letter and the intent of the authorization and with the preservation of civil liberties.

Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about.

This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. We bring to bear all the technology we can to ensure that this is so. And if there were ever an anomaly, and we discovered that there had been an inadvertent intercept of a domestic-to-domestic call, that intercept would be destroyed and not reported. But the incident, what we call inadvertent collection, would be recorded and reported. But that's a normal NSA procedure. It's been our procedure for the last quarter century. And as always, as we always do when dealing with U.S. person information, as I said earlier, U.S. identities are expunged when they're not essential to understanding the intelligence value of any report. Again, that's a normal NSA procedure.........The entire transcript is available here (http://www.fas.org/irp/news/2006/01/hayden012306.html), and again, it's an interesting read.

[Rhino]

Excellent archive of information here (http://fas.org/irp/agency/doj/fisa/).

[MichaelS]

General Hayden's a good dancer.

You know, the 9/11 commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are no communications more important to the safety of this country than those affiliated with al Qaeda with one end in the United States.Agreed. Now why can't you get a warrant?

The president's authorization allows us to track this kind of call more comprehensively and more efficiently.Never mind that it was an authorization given despite the fact that specific wording to enable such surveillance was specifically removed from the Congressional force-authorization declaration, how does it make things more comprehensive or efficient? Details, please, General.

The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.OK. Quicker and softer. That's the foundational need for such laxation. As for only monitoring conversations involving al Qaeda or an affiliate, says who? The FISA court was intended to provide just such oversight. Or are we to just take you, General, and the NSA on your word? If the tap is indeed for such nefarious parties, then a FISA warrant should be a no-brainer.

The purpose of all this is not to collect reams of intelligence, but to detect and prevent attacks. The intelligence community has neither the time, the resources nor the legal authority to read communications that aren't likely to protect us, and NSA has no interest in doing so. Ah. Trust you, you're the NSA. The NSA doesn't lie. You swear, right?

Their work is actively overseen by the most intense oversight regime in the history of the National Security Agency. The agency's conduct of this program is thoroughly reviewed by the NSA's general counsel and inspector general.OK, so you're overseeing yourselves. What could I have been worried about? It's all good.

The program has also been reviewed by the Department of Justice for compliance with the president's authorization.Now whether or not the authorization itself was legal, that's a whole other conversation. Of course, the Republican Congress can't be bothered with investigating that aspect. Georgie said you could do it, so you're covered, right General?

Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about.

This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda.I'd actually understand the expendiency if the taps were based on such technological tools. It they are indeed "targeted and focused" as you claim, General, it should make it all the easier to obtain the requisite warrant and all the more difficult to excuse its absence.

...if there were ever an anomaly, and we discovered that there had been an inadvertent intercept of a domestic-to-domestic call, that intercept would be destroyed and not reported. But the incident, what we call inadvertent collection, would be recorded and reported. But that's a normal NSA procedure. It's been our procedure for the last quarter century. And as always, as we always do when dealing with U.S. person information, as I said earlier, U.S. identities are expunged when they're not essential to understanding the intelligence value of any report. Again, that's a normal NSA procedure.Now you promise, right? We're supposed to trust you on these things. As a member of the intelligence community, you wouldn't be telling us what we want to hear to get us to put our guard down, right?

Overall, General, I gotta tell ya, it's sounding like a whole lotta lip service with no viable explanation as to exactly why the acquisition of a warrant would be unfeasible. If the NSA and the President have nothing to hide from judicial oversight, why hide?

I'm sorry, General, I can't hear you.

[DoctorDoom]

The reporter used the term, "probable cause" and Hayden corrected him yet the exact same term, "probable cause" is in the amendment in question.From the article:

On its face, the amendment only provides for protection against unreasonable searches and seizures, while it later provides that no warrant shall issue without “probable cause.” Landay and Hayden’s critics mistakenly apply the “probable cause” requirement to the “searches and seizures” provision. That reading is erroneous on its face; to apply the amendment’s warrant requirements to the searches and seizures clause would also require that searches be supported “by oath or affirmation,” with the objects of the search described in advance. Hayden’s reading—that searches must only be “reasonable”—is the better reading.

Hayden’s critics’ mistaken reading of the Fourth Amendment is not even supported by the Supreme Court’s decisions. True, the Supreme Court, in interpreting and applying the searches and seizure provision, has in many cases equated “probable cause” with “reasonableness,” even in cases where a warrant is not required. But the Court has explicitly warned that the two terms are not equivalent in all circumstances. In the Vernonia School District 47J v. Acton (1995), for example, the Court roundly rejected Hayden’s critics’ reading of the amendment (emphasis in original):Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”Leftist reporters know jack shit.

Can the US legally listen in to your phone calls if they think you are a terrorist, Doom?Absolutely. As a terrorist, I would expect it, and I would consider the nation weak and foolish if it did not track my punk ass.

So, Borg, do you think it's "unreasonable" to monitor the activities of people who are hell-bent on killing Americans by the thousands and paralyzing the nation?

[DoctorDoom]

I'm sorry, General, I can't hear you.No doubt the General is crushed beyond recuperation by the knowledge that an anonymous, irrelevant leftist on a Web BB "can't hear" him.

Well, he would be if he had that knowledge, but his advisors and associates have spared him the devastating news.

[DesertFox]

Michael Schiavo's just a troll.

[Borgia]

So, Borg, do you think it's "unreasonable" to monitor the activities of people who are hell-bent on killing Americans by the thousands and paralyzing the nation?

Not unreasonable at all. Just get a warrant. FISA has only turned down a handful of the thousands of requests. What's the big deal? Why are you against warrants? SHould we just jettison the 4th Amendment?

To paraphrase: Those who are willing to give up liberty for safety deserve neither.

[Rhino]

Not unreasonable at all. Just get a warrant.Unreasonable, and one of the links explained that. The general gist was that if you intercept an ongoing conversation about terrorist activity, it would be stupid in the extreme to stop monitoring that conversation for 72 hours while you wait for a warrant (the alloted time under the law). You still apply for the warrant whenever possible, but you don't endanger the country by stopping the monitoring. Makes perfect sense to me.

To paraphrase: Those who are willing to give up liberty for safety deserve neither.And those who disregard safety will end up with no liberty.

[DoctorDoom]

Not unreasonable at all. Just get a warrant.How touching it is that that liberals are so concerned about the constitutional "rights" of America's enemies (when a Republican is in the White House). I'm sure they'll spare the bleeding hearts when their next attack comes to pass.

[Borgia]

Unreasonable, and one of the links explained that. The general gist was that if you intercept an ongoing conversation about terrorist activity, it would be stupid in the extreme to stop monitoring that conversation for 72 hours while you wait for a warrant (the alloted time under the law). You still apply for the warrant whenever possible, but you don't endanger the country by stopping the monitoring. Makes perfect sense to me.

You misread the FISA requirement. You do not need to stop monitoring the call to get a warrant. You just need to get a warrant within 72 hours after the fact. The moitoring can continue in the meantime.

Now that we have addressed that, what is your next concern about this?

[HomeschoolrsRUs]

Doc,
Correct me if I've misunderstood about this issue, but isn't the reason for eliminating the warrant step, a matter of time? Seems to me if they suspect someone, they would want to immediately institute action, and if they are forced to wait and wade through bureaucracy to get a warrant, by that time (obviously) the call would be over and the reason and need for action would be moot. Besides, these are calls coming IN from those suspected, to American citizens, not outgoing calls, right? (If all this has been addressed previously, forgive me, I didn't feel like wading back through all the posts,http://www.freeconservatives.com/vb/images/icons/icon11.gif)

[Borgia]

How touching it is that that liberals are so concerned about the constitutional "rights" of America's enemies (when a Republican is in the White House). I'm sure they'll spare the bleeding hearts when their next attack comes to pass.

Who decides who is an enemy and thus no warrant is required? You? The NSA?

Will you place all this trust that the NSA warrantless wiretapping is fine if Hillary is elected? Will you be content with the program as you see it now once a Democrat is put in charge of the NSA? Or will you fear that it could be used improperly and start whining about warrants?

Requiring a simple warrant is hte only dterrent we have to ensure that a powerful program is not subverted into something else. We don't want President Hillary deciding that Hastert should be defined as a possible terrorist so she can listen in on his phone calls.

[Borgia]

Doc,
Correct me if I've misunderstood about this issue, but isn't the reason for eliminating the warrant step, a matter of time? Seems to me if they suspect someone, they would want to immediately institute action, and if they are forced to wait and wade through bureaucracy to get a warrant, by that time (obviously) the call would be over and the reason and need for action would be moot. Besides, these are calls coming IN from those suspected, to American citizens, not outgoing calls, right? (If all this has been addressed previously, forgive me, I didn't feel like wading back through all the posts,http://www.freeconservatives.com/vb/images/icons/icon11.gif)

Homes, they can get a warrant RETROACTIVELY. They do not need to suspend listening in to get the warrant. They can get it up to 72 hours AFTER the call. THe FISA courts make it very easy.

[Rhino]

You misread the FISA requirement. You do not need to stop monitoring the call to get a warrant. You just need to get a warrant within 72 hours after the fact. The moitoring can continue in the meantime.

Now that we have addressed that, what is your next concern about this?I don't have a concern. I thought you did.

I originally thought this exchange was about operations subject to FISA that had somehow found a way around it. Turns out that was not the case, so I had made some mistaken assumptions.

From having dealt with programs like this, I can tell you the restrictions imposed are enormous, and the oversight extremely onerous. I have a hard time imagining a scenario where an analyst wouldn't want a warrant, because it would make things far easier. I won't say that such a 'warrantless' scenario can't exist, but I have admittedly seen no specific examples of it. From what I saw, they attempt to get warrants wherever possible, even if it's after the fact.

[Borgia]

I don't have a concern. I thought you did.
I have a concern about the warrantless wiretaps of US citizens.


From having dealt with programs like this, I can tell you the restrictions imposed are enormous, and the oversight extremely onerous. I have a hard time imagining a scenario where an analyst wouldn't want a warrant, because it would make things far easier. I won't say that such a 'warrantless' scenario can't exist, but I have admittedly seen no specific examples of it. From what I saw, they attempt to get warrants wherever possible, even if it's after the fact.

Glad to hear that. But the NSA uproar is about the warrantless wiretaps. We know they CAN go through FISA to get the warrants but eth Bush admin has claimed they don't need to and thus they do not in some cases. This is what concerns me.

[Rhino]

Glad to hear that. But the NSA uproar is about the warrantless wiretaps. We know they CAN go through FISA to get the warrants but eth Bush admin has claimed they don't need to and thus they do not in some cases. This is what concerns me.Actually, the administration did not 'claim' that. The courts have said so on several occasions.

[Borgia]

Actually, the administration did not 'claim' that. The courts have said so on several occasions.

I was unaware of this. Please provide sources. Thanks!

My understanding is hte Bush admin has said the Authorizxation for the Use of Force allows them under the "necessary force" doctrine in time of war.

[MichaelS]

The original N.Y Times article (http://www.commondreams.org/headlines05/1216-01.htm)...
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.

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.
The Presidential response (http://www.whitehouse.gov/news/releases/2005/12/20051217.html)...
To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I'm also using constitutional authority vested in me as Commander-in-Chief.

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.
So, the administration is claiming that the warrantless wiretaps and the President's ability to authorize them are in adherence with U.S. law and the Constitution. However, this claim is based on the input of lawyers. The veracity of this claim has not been investigated or validated by court ruling to date.

[Borgia]

MichaleS:

That was my understanding too. That Bush was defending it by pointing to AUMF.

[Rhino]

I was unaware of this. Please provide sources. Thanks!

My understanding is hte Bush admin has said the Authorizxation for the Use of Force allows them under the "necessary force" doctrine in time of war.Some of the links I posted before discuss that. It was very interesting.

[Rhino]

So, the administration is claiming that the warrantless wiretaps and the President's ability to authorize them are in adherence with U.S. law and the Constitution. However, this claim is based on the input of lawyers. The veracity of this claim has not been investigated or validated by court ruling to date.Yes it has. Read some of the prior links.

[Naturalized-Texan]

Liberals oppose the surveillance of enemy communications only when there is a Republican president. However, that surveillance was OK under BJ Clinton and Jimmy Carter. Jamie Gorelick, Janet Reno's deputy and the author of the infamous 1995 "wall" that prevented the CIA and the FBI from sharing intelligence information, stated that the NSA's warrantless surveillance of communications was an "inherent right" of the president as Commander-in-Chief.

[Wyatt_Junker]

Not unreasonable at all. Just get a warrant. FISA has only turned down a handful of the thousands of requests. What's the big deal? Why are you against warrants? SHould we just jettison the 4th Amendment?



That's old info. FISA has shown a surprisingly recent up-tick in turning down requests for warrants.

[Wyatt_Junker]

Will you place all this trust that the NSA warrantless wiretapping is fine if Hillary is elected? Will you be content with the program as you see it now once a Democrat is put in charge of the NSA?


And project codename Carnivore was doing just that under BJ's watch. The media was kind of silent about that one.

Bottom line, it doesn't matter. The entire conversation doesn't matter. If you have someone hell bent on surveilling, they will do so with or without FISA's permission. The entire conversation about this is merely msm theatrics.

[Naturalized-Texan]

Here are 4 excellent articles about the surveillance of enemy communications:

Why Bush Approved The Wiretaps (http://article.nationalreview.com/?q=MjU5NWJjYzM3YmM5NmY3NzhhNmIwMTY4MmNhMGNmZGQ=)

Clinton Claimed Authority to Order No-Warrant Searches (http://article.nationalreview.com/?q=M2Q4NTA4ODJmYjkwZjViYTJmNmRhZmY2ZmMwNzA0OGU=)

Bill Clinton and Warrantless Searches (http://article.nationalreview.com/?q=MTE0MjEzNWVjOWEwOGM5ZTdlNTg1NDAxOTI3OTYzZTY=)

It’s Legal: The solid legal basis for the administration's surveillance program (http://article.nationalreview.com/?q=Y2FjZTQzNjUzOTUzMzgwODQ3ZjEyNWE5OWJmYTU4ZTA=)

This last article describes how the FISA Court of Review (set up by Congress as the FISA appeals court) ruled that warrantless surveillance of enemy communications is constitutional.

[Rhino]

RESPONSES TO QUESTIONS FROM CHAIRMAN SENSENBRENNER

1. The Foreign Intelligence Surveillance Court of Review, as the Congressional
Research Service (CRS) concedes in its 2006 examination of the NSA
program, “is a court of appeals and is the highest court with express
authority over [the Foreign Intelligence Surveillance Act,] FISA to address
the issue, its reference to inherent constitutional authority for the President
to conduct warrantless foreign intelligence surveillance might be interpreted
to carry considerable weight.”6 The FISA Court of Review issued an opinion
in 2002 that stated “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 . . . .”7 The CRS memorandum dated
January 5, 2006 does not dispute the fact that all other courts support the
proposition that the President has inherent authority to conduct warrantless
searches. Instead, the CRS memorandum appears to attempt to downplay
these precedents with a statement that the FISA Court of Review’s “allusion
to the holdings of ‘all the other courts to have considered the issue,’ appears
to have been the cases which pre-date FISA’s passage or which address pre-
FISA surveillances.”8

a. Have any courts addressed this issue since the enactment of FISA?
b. Have any courts since the enactment of FISA concluded that the President did not have inherent authority?
c. Does reliance on pre-FISA cases by the FISA Court of Review “[undercut] the persuasive force”9 of the conclusion that the President has inherent constitutional authority to conduct warrantless surveillance?

As your question states, the FISA Court of Review discussed the President’s inherent authority to conduct warrantless electronic surveillance in 2002, twenty-four years after FISA was enacted. See In re Sealed Case, 310 F.3d 717 (For. Int. Surv. Ct. Rev. 2002). In Sealed Case, the Court of Review considered whether the FISA Court had statutory or constitutional authority to place restrictions on the interaction of criminal prosecutors and foreign intelligence investigators as a condition for granting surveillance orders. The Court of Review held that the FISA Court erred by placing those restrictions on the Government. Because prior court decisions had suggested that this was a restriction on the President’s constitutional authority, the Court of Review discussed the

6 Elizabeth B. Bazan and Jennifer K. Elsea, 30 Congressional Research Service Memorandum: Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, Jan. 5, 2006 [hereinafter CRS Memo].
7 In re Sealed Case, 310 F.3d 717, 742 (FISA Ct. of Review 2002).
8 31 CRS Memo.
9 32 CRS Memo.

scope of the President’s inherent constitutional authority over foreign intelligence surveillance and whether that authority could be restricted or enhanced by statute. In so doing, the Court of Review recognized that the U.S. Court of Appeals for the Fourth Circuit, “as did all the other courts to have decided the issue, held that the President did have authority to conduct warrantless searches to obtain foreign intelligence information.” CRS’s suggestion that the Court of Review somehow overlooked that it was relying on pre-FISA cases, thereby undermining its analysis, is entirely without merit. Indeed, the Court of Review was acutely conscious that the decisions it was discussing involved pre-FISA surveillance, and the court noted that fact repeatedly, see 310 F.3d at 725, 726, 742. But that fact does not undercut the decision: the whole point of the opinion was whether and to what extent FISA could modify the standards governing the President’s inherent constitutional authority. On this point, the Court of Review was clear: it “took for granted” that the President had inherent constitutional authority to conduct foreign intelligence surveillance and “assuming that is so, FISA could not encroach on the President’s constitutional power.” Id. at 742 (emphasis added). In other words, according to the Court of Review, although FISA could supplement the President’s power to conduct foreign intelligence surveillance, it could not take away that power, which is vested in him by Article II of the Constitution.

Moreover, as your question correctly observes, no court since the passage of FISA has held to the contrary. For these reasons, the President was entitled to rely on the definitive pronouncement of the specialized court that Congress created to address precisely these matters.

2. In holding that the President has inherent authority to conduct warrantless surveillance, did any of the cases conclude this inherent authority did not arise from the Constitution?

Each of the cases cited in the paper of January 19, 2006 expressly grounded the President’s authority to conduct warrantless surveillance in the Constitution. See United States v. United States District Court (“Keith”), 407 U.S. 297, 308 (1972) (when discussing the “constitutional powers of the President,” reserving any “judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers within or without this country”); United States v. Truong Dinh Hung, 629 F.2d 908, 913-14 (4th Cir. 1980) (stating that the President’s authority to conduct warrantless foreign intelligence surveillance arises from the fact that, “perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States”) (emphasis added); United States v. Butenko, 494 F.2d 593, 601 (3d Cir. 1974) (en banc) (explaining that electronic surveillance is a necessary aid to the President’s fulfilling his constitutional responsibilities as “Commander-in-Chief of the Armed Forces and to administer the nation’s foreign affairs” and stating that congressional attempts to limit foreign electronic surveillance that “hamper the President’s effective performance of his duties in the foreign affairs field would raise constitutional questions”); United States v. Brown, 484 F.2d 418 (5th Cir. 1973) (“because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, . . . the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence”).

3. Is there legal authority to support the proposition drawn from the FISA
Court of Review’s decision in In re Sealed Case,10 that the President continues to have the power to authorize warrantless electronic surveillance
to gather foreign intelligence outside the FISA framework?

The NSA intelligence surveillance activities confirmed by the President involve
targeting for interception by the NSA of communications where one party is outside the United States and there is probable cause (“reasonable grounds”) to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization (hereinafter, the “Terrorist Surveillance Program” or the “Program”). As set forth below, the Terrorist Surveillance Program is consistent with FISA, and we need not consider whether the President may “gather foreign intelligence outside the FISA framework” to conclude that the Program is lawful.

The Supreme Court has explained that the Authorization for the Use of Military Force of September 18, 2001 (hereinafter “Force Resolution”) must be understood to have authorized “fundamental and accepted” incidents of waging war. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion); see id. at 587 (Thomas, J., dissenting). Consistent with this traditional understanding, other Presidents, including Woodrow Wilson and Franklin Roosevelt, have interpreted general force authorization resolutions to permit warrantless surveillance to intercept suspected enemy communications. Cf. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2091 (2005) (explaining that, with the Force Resolution, “Congress intended to authorize the President to take at least those actions permitted by the laws of war”). The Force Resolution thus authorizes the President to conduct the Terrorist Surveillance Program against al Qaeda and affiliated terrorist organizations. FISA itself contemplates that a later enactment, such as the Force Resolution, could authorize electronic surveillance because it provides that electronic surveillance is not prohibited if it is “authorized by statute.” 50 U.S.C. § 1809(a).

In addition, substantial authority indicates that the President has inherent constitutional authority over the gathering of foreign intelligence—authority that Congress may not circumscribe. The Foreign Intelligence Surveillance Court of Review suggested that, even after FISA, the President possesses inherent constitutional authority that FISA could not limit. In re Sealed Case, 310 F.3d 717, 742 (2002). As the court stated: “all the other courts to have decided the issue [have] 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.”

10 See 310 F.3d at 746.

Id. This specialized court that Congress created for the very purpose of hearing appeals from the FISA court is not the only court to suggest that the President maintains some constitutional authority to conduct foreign intelligence surveillance that may not be limited by Congress. The Third Circuit explained that the gathering of foreign intelligence is essential to fulfilling the President’s constitutional responsibilities as “Commander-in-Chief of the Armed Forces and to administer the nation’s foreign affairs.” United States v. Butenko, 494 F.2d 593, 601 (1974) (en banc). Congressionally imposed limitations on that power may so “hamper . . . the President’s effective performance of his duties in the foreign affairs field [to] raise[] constitutional questions.” Id. For that reason, the court interpreted a statute that preceded FISA as not limiting the President’s constitutional authority to conduct foreign intelligence surveillance. Id. These considerations are particularly pressing in the context in which the Terrorist Surveillance Program operates; for, in a time of congressionally authorized armed conflict, the President’s constitutional power is at its apex...........http://fas.org/irp/agency/doj/fisa/doj032406.pdf

[Wyatt_Junker]

The Presidential response (http://www.whitehouse.gov/news/releases/2005/12/20051217.html)...

To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I'm also using constitutional authority vested in me as Commander-in-Chief.

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.

And the problem is...?

Hey dip, read your own link. 'TO INTERCEPT THE INTERNATIONAL COMMUNICATIONS OF PEOPLE WITH KNOWN LINKS TO AL QAEDA AND RELATED TERRORIST ORGANIZATIONS.'

I will tell you one thing. After America gets nunhunderedandelevened again, PART 2, it is people like you, the apologists, the hyperventilating MSM and the DNC who will be odd-man-out on this one. In fact, you already are now.


So, the administration is claiming that the warrantless wiretaps and the President's ability to authorize them are in adherence with U.S. law and the Constitution. However, this claim is based on the input of lawyers. The veracity of this claim has not been investigated or validated by court ruling to date.

Yeah, let's run this one through Johnny Cochran's ass. Okay, he's dead. Boo hoo. Let's find another shyster who can shred reality like cheddar cheese.

[Borgia]

Liberals oppose the surveillance of enemy communications only when there is a Republican president. However, that surveillance was OK under BJ Clinton and Jimmy Carter. Jamie Gorelick, Janet Reno's deputy and the author of the infamous 1995 "wall" that prevented the CIA and the FBI from sharing intelligence information, stated that the NSA's warrantless surveillance of communications was an "inherent right" of the president as Commander-in-Chief.

No, it was wrong then too.

[Borgia]

That's old info. FISA has shown a surprisingly recent up-tick in turning down requests for warrants.

No source for this? How about this:

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

The Foreign Intelligence Surveillance Act Report (http://www.fas.org/irp/agency/doj/fisa/2005rept.html) reveals that the government made 2,072 secret surveillance requests in 2005, a record high and 18 percent more than 2004. None of the requests were denied by the Foreign Intelligence Surveillance Court, the secretive body that issues the warrants.

Or if you don't like that source for whatever reason I have:

http://www.fas.org/irp/agency/doj/fisa/2005rept.html


During calendar year 2005, the FISC approved 2,072 applications for authority to conduct electronic surveillance and physical search. The FISC made substantive modifications to the Government's proposed orders in 61 of those applications. The FISC did not deny, in whole or in part, any application filed by the Government during calendar year 2005.

And you wonder why I don't take your word on everything, Wyatt. Sheesh, you think ZERO requests is an uptick? An uptick from what? I'd love to know your source that told you about the uptick, Wyatt. Or did you just make that up on the spot?

[Naturalized-Texan]

No, it was wrong then too.
How so? If the courts rule that the surveillance is constitutional, how could it be wrong. BTW, under the constitutional separation of powers, the president is Commander-in-Chief and has sole responsibility for conducting foreign policy and fighting wars. We are now in the global War on Terror and the president has the right - AND DUTY - to take whatever measures he thinks necessary to protect the American people from attack, including, especially, the surveillance of terrorist communications, no matter where they originate.

President Bush would be derilict in his duties as Commander-in-Chief in a time of war if he failed to gather intelligence from and about terrorist communicatins. If he failed to conduct surveillance of terrorist communications, he should be impeached and removed from office.

I realize that liberals oppose fighting the War on Terror. That's why they oppose letting President Bush have the required tools with which to fight this war. The libs would rather surrender than fight.

Liberals oppose fighting terrorists in the War on Terror for the same reason that they opposed fighting Communists during the Cold War - they see no enemies on the left.

[Naturalized-Texan]

I was unaware of this. Please provide sources. Thanks!
I already did. Please read them.

[Wyatt_Junker]

During calendar year 2005, the FISC approved 2,072 applications for authority to conduct electronic surveillance and physical search. The FISC made substantive modifications to the Government's proposed orders in 61 of those applications. The FISC did not deny, in whole or in part, any application filed by the Government during calendar year 2005.


What an interesting contradiction. First, notice that last line which you emphasized. Now, read the sentence which immediately precedes it. The FISC made SUBSTANTIVE MODIFICATIONS to the Admin's request in a whopping 61 of the apps. And yet, the FISC did not deny, in whole or in part, any application filed by the Government. Sure, whatever the hell that's supposed to mean.

I hope this clarifies the point and illustrates just how disingenuous the AAG's bureauspeak is...

sub·stan·tive http://cache.lexico.com/dictionary/graphics/AHD4/JPG/pron.jpg (https://secure.reference.com/premium/login.html?rd=2&u=http%3A%2F%2Fdictionary.reference.com%2Fsearch%3 Fq%3Dsubstantive) ( P ) Pronunciation Key (http://dictionary.reference.com/help/ahd4/pronkey.html) (shttp://cache.lexico.com/dictionary/graphics/AHD4/GIF/ubreve.gifbhttp://cache.lexico.com/dictionary/graphics/AHD4/GIF/prime.gifsthttp://cache.lexico.com/dictionary/graphics/AHD4/GIF/schwa.gifn-thttp://cache.lexico.com/dictionary/graphics/AHD4/GIF/ibreve.gifv)
adj.

Substantial; considerable.
Independent in existence or function; not subordinate.
Not imaginary; actual; real.
Of or relating to the essence or substance; essential: <CITE>substantive information.</CITE>
Having a solid basis; firm.Which basically means the government got bitchslapped by an increasingly ballsy court whose collective id has been inflated by an ever increasing MSM 'investigation' on their bullshit charges about the NSA.

Now, go back to FISA's own website and note the 1980's and 1990's. Note how the older reports to Congress in those decades are only a tiny, briefest-of-brief paragraph. And also note how there was no questioning, no excessive verbiage and no 'modifications' at all. In fact, if you go back far enough you can see a FISA court that even one ups the Government by granting MORE warrants than were even asked for.

Its almost ridiculous comparing these reports to congress now to the ones before BushMcHitlerChimpy took office. The backpedaling of the multi-paragraphed covering of one's ass all started by the MSM and DNC.

Look for yourself. Click on the past year's reports. And the FISA is only going to get more 'inquistive', 'nosy' and 'heady' in their demands as the MSM keeps hammering the point year after year, thanks to the DNC.



FISA Annual Reports to Congress
2005 (http://www.fas.org/irp/agency/doj/fisa/2005rept.html), 2004 (http://www.fas.org/irp/agency/doj/fisa/2004rept.pdf), 2003 (http://www.fas.org/irp/agency/doj/fisa/2003rept.pdf), 2002 (http://www.fas.org/irp/agency/doj/fisa/2002rept.html), 2001 (http://www.fas.org/irp/agency/doj/fisa/2001rept.html), 2000 (http://www.fas.org/irp/agency/doj/fisa/2000rept.html), 1999 (http://www.fas.org/irp/agency/doj/fisa/1999rept.html), 1998 (http://www.fas.org/irp/agency/doj/fisa/1998rept.html), 1997 (http://www.fas.org/irp/agency/doj/fisa/1997rept.html)
1996 (http://www.fas.org/irp/agency/doj/fisa/1996rept.html), 1995 (http://www.fas.org/irp/agency/doj/fisa/1995rept.html), 1994 (http://www.fas.org/irp/agency/doj/fisa/1994rept.html), 1993 (http://www.fas.org/irp/agency/doj/fisa/1993rept.html), 1992 (http://www.fas.org/irp/agency/doj/fisa/1992rept.html), 1991 (http://www.fas.org/irp/agency/doj/fisa/1991rept.html), 1990 (http://www.fas.org/irp/agency/doj/fisa/1990rept.html), 1989 (http://www.fas.org/irp/agency/doj/fisa/1989rept.html), 1988 (http://www.fas.org/irp/agency/doj/fisa/1988rept.html)
1987 (http://www.fas.org/irp/agency/doj/fisa/1987rept.html), 1986 (http://www.fas.org/irp/agency/doj/fisa/1986rept.html), 1985 (http://www.fas.org/irp/agency/doj/fisa/1985rept.html), 1984 (http://www.fas.org/irp/agency/doj/fisa/1984rept.html), 1983 (http://www.fas.org/irp/agency/doj/fisa/1983rept.html), 1982 (http://www.fas.org/irp/agency/doj/fisa/1982rept.html), 1981 (http://www.fas.org/irp/agency/doj/fisa/1981rept.html), 1980 (http://www.fas.org/irp/agency/doj/fisa/1980rept.html), 1979 (http://www.fas.org/irp/agency/doj/fisa/1979rept.html)


http://www.fas.org/irp/agency/doj/fisa/#rept

[Naturalized-Texan]

The MAIN problem with having to get a warrant to intercept a terrorist communication is that the communication would be completed long before any warrant could be issued.

Just imagine terrorist A calling terrorist B to order him to release botulism toxin from a plane flying over New York City - a call that may last as long as 30 seconds. The release of that botulism toxin could kill everyone in the city and the surrounding suburbs. The feds try frantically to find a judge who would be willing to issue the warrant to intercept that terrorist communication and then they have to explain to the judge why the warrant is necessary. By the time the warrant is issued, terrorist B will have released all that poison and millions of people would be dead or dying. Is that what the libs want? It makes one wonder.

I think it was one of our Founding Fathers who said, "The Constitution is not a suicide pact."

[Wyatt_Junker]

And what I'm also assuming is that when you get a substantive modification order from the courts, that essentially your request for a warrant is denied until and unless those modifications are made.

And its only going to get worse based on the level of newfound media scrutiny on these warrants seeing as this is their latest pet cause/action line. Thus, the courts will start babying and nitpicking these requests more and more and it all goes back initially to the DNC calling the shots... in the media, and now in the actual courts themselves as they begin to second guess not only the Administration's motives but reauthor the meaning of the 4th A.

A terrorist's cell phone calling someone in America IS PROBABLE CAUSE. Its simple really. We have a list of names of known terrorists and we tap their conversations. If one of their conversations happens to be with an American citizen, who gives a shit? That's still a terrorist, the fact that they are talking to an American citizen does not negate the FACT that they are still a terrorist. Somehow that a terrorist talking to an American citizen suddenly morphs the flow of intelligance gathering or the way in which it should now be conducted is ludicrous. What is this, 3rd grade? Red light/green light?

[Borgia]

The MAIN problem with having to get a warrant to intercept a terrorist communication is that the communication would be completed long before any warrant could be issued.

Just imagine terrorist A calling terrorist B to order him to release botulism toxin from a plane flying over New York City - a call that may last as long as 30 seconds. The release of that botulism toxin could kill everyone in the city and the surrounding suburbs. The feds try frantically to find a judge who would be willing to issue the warrant to intercept that terrorist communication and then they have to explain to the judge why the warrant is necessary. By the time the warrant is issued, terrorist B will have released all that poison and millions of people would be dead or dying. Is that what the libs want? It makes one wonder.

I think it was one of our Founding Fathers who said, "The Constitution is not a suicide pact."

Are you REALLY this ignorant of the FISA provisions, NT? Normally you are fairly erudite but in this case your scenario reveals your complete ignorance on how FISA works. I'll lay it out there for you:

The govt can wiretap a suspected terrorist communication WITHOUT a warrant and can listen to the WHOLE conversation but MUST get a warrant WITHIN 72 HOURS of the wiretap.

In your scenario above, the govt listens in to the whole 30 second phone call and can act on it knowing that they have 72 hours to get the warrant.

I strongly suggest you actually read the FISA ACt to learn about it.

[Borgia]

A terrorist's cell phone calling someone in America IS PROBABLE CAUSE. Its simple really. We have a list of names of known terrorists and we tap their conversations. If one of their conversations happens to be with an American citizen, who gives a shit? That's still a terrorist, the fact that they are talking to an American citizen does not negate the FACT that they are still a terrorist.

Since it is probable cause, and I agree, then what is the problem getting a warrant within 72 hours AFTER the conversation? The warrant process is a safeguard to ensure the govt stays within the parameters of the law and its intent. without it, we risk abuse.

So what is hte big deal with requiring warrants? I would think those who love the Constitution would support that requirement.

[Borgia]

Wyatt:

Originally you said that FISA has seen a recent uptick in turning down requests for warrants.

I showed you no denials were made in 2005 by the FISA court.

You then modified what you meant and said that when the FISA court requests modifications to requests that somehow counts as denials.

LOL. You are a good dance partner but far better than me, Wyatt. Dance some more for us!

[Incident_command]

Since it is probable cause, and I agree, then what is the problem getting a warrant within 72 hours AFTER the conversation? The warrant process is a safeguard to ensure the govt stays within the parameters of the law and its intent. without it, we risk abuse.

So what is hte big deal with requiring warrants? I would think those who love the Constitution would support that requirement.

Simple. Security and accountability. The last thing we need to be doing, with all the leaks going on is to get judges involved.This is taking another risk.
And who is the judge accoutable to? Damn near nobody. The last thing we need to be doing is putting national security in the hands of judges.

[DesertFox]

It's been awhile since I perused this thread. I see the liberals are still standing up for al Qaeda's right to plan and coordinate attacks on America without NSA or anybody else listening in.

Back after another break.

[Borgia]

Simple. Security and accountability. The last thing we need to be doing, with all the leaks going on is to get judges involved.This is taking another risk.
And who is the judge accoutable to? Damn near nobody. The last thing we need to be doing is putting national security in the hands of judges.

Have you heard about any problems with the FISA judges or are you just making up this boogeyman?

[Borgia]

It's been awhile since I perused this thread. I see the liberals are still standing up for al Qaeda's right to plan and coordinate attacks on America without NSA or anybody else listening in.

Back after another break.

I am all for us listening in on these calls. Just get a warrant. None were denied in 2005 so what is the big deal with actually following the procedure? Why do you hate the Bill of Rights?

[Incident_command]

Have you heard about any problems with the FISA judges or are you just making up this boogeyman?

Boogieman? Sure Judge Robertsons for starters. Robertson has nad many accuse him of being the origion of leaks . Which is why he resigned.

[Borgia]

Boogieman? Sure Judge Robertsons for starters. Robertson has nad many accuse him of being the origion of leaks . Which is why he resigned.

Cool, I learned something. One FISA judge possibly leaked something. I'll keep my eyes opened.

But generally, it appears the courts do a good job of keeping their information priviliged. Surely you do not advocate getting rid of warrant requirements altogether?

[DoctorDoom]

Given the proliferation of assholes on the bench of late, your obsession with warrants is inviting breaches of US security for political reasons. That is unacceptable when the enemy has already killed 3000 innocent people and ceaselessly lusts to kill millions more.

The fewer uninvolved people who have access to top-secret information, the better it will be. The possibility that surveillance will be compromised by some robed traitor is utterly intolerable.

[Borgia]

I'll stick with the Constitution, Doom. You can pry it from my cold dead fingers.

Sorry to hear you are so afraid of the terrorists that you are willing to abandon it.

[Incident_command]

Surely you do not advocate getting rid of warrant requirements altogether?

No I dont, and please dont call me surely.:grin:

[Rhino]

I'll stick with the Constitution, Doom. You can pry it from my cold dead fingers.

Sorry to hear you are so afraid of the terrorists that you are willing to abandon it.Nobody here wants to abandon it. These taps are in accordance with the Constitution, and the courts have said so. You're the one advocating that it be changed, so if anyone is wanting to abandon it, it is you.

[Borgia]

Nobody here wants to abandon it. These taps are in accordance with the Constitution, and the courts have said so. You're the one advocating that it be changed, so if anyone is wanting to abandon it, it is you.

My understanding is the Constitutionality of the warrantless wiretapping has not been decided in a court of law.

[Incident_command]

Thank goodness for that.

[Naturalized-Texan]

Are you REALLY this ignorant of the FISA provisions, NT? Normally you are fairly erudite but in this case your scenario reveals your complete ignorance on how FISA works. I'll lay it out there for you:
That is exactly the type of scenario that caused the FISA Court of Review to rule that warrants weren't necessary to conduct surveillance on enemy cimmunications.

[Rhino]

My understanding is the Constitutionality of the warrantless wiretapping has not been decided in a court of law.
http://www.freeconservatives.com/vb/showpost.php?p=418458&postcount=53

[Borgia]

That is exactly the type of scenario that caused the FISA Court of Review to rule that warrants weren't necessary to conduct surveillance on enemy cimmunications.

And yet you remain ignorant of the FACT that FISA delineates that you can get warrants after the fact (up to 72 hours) which makes your example completely erroneous.

Do you acknowledge that FISA allows retroactive warrants up to 72 hours?

[Naturalized-Texan]

My understanding is the Constitutionality of the warrantless wiretapping has not been decided in a court of law.
Yes it has. The FISA Court of Review so ruled.

It’S Legal (http://article.nationalreview.com/?q=Y2FjZTQzNjUzOTUzMzgwODQ3ZjEyNWE5OWJmYTU4ZTA=)

In early September 2002, just before the first anniversary of the September 11 terrorist attacks, a group of lawyers gathered in a heavily protected, windowless room in the Department of Justice building in Washington. There were three federal appeals-court judges, Laurence Silberman, Edward Leavy, and Ralph Guy. There was Theodore Olson, the U.S. solicitor general. There was Larry Thompson, the deputy attorney general. And there was John Yoo, the Justice official who had closely studied questions of war powers and presidential authority. Rounding out the group were a few other department staffers, one official from the FBI, and David Addington, Vice President Cheney's top lawyer.

The purpose of the meeting was to argue a case whose details remain so classified that they are known by only a few people, but whose outcome, a decision known as In re: Sealed Case, has become one of the key documents in the hottest argument in Washington today: the fight over what President Bush calls the "terrorist surveillance" of persons with known al-Qaeda connections, and what the president's opponents call "domestic spying."

The three judges made up what is known as the FISA Court of Review. It was created in 1978 by the now-famous Foreign Intelligence Surveillance Act. The act required that the president go to the so-called FISA Court to seek a warrant for surveillance in top-secret foreign-intelligence cases. For any disputed decisions that might arise, Congress also created the Court of Review, a sort of super-secret appeals court.

..............................

In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. "In doing so, the FISA Court erred," the ruling read. "It did not provide any constitutional basis for its action—we think there is none—and misconstrued the main statutory provision on which it relied." The FISA Court, according to the ruling, "refus[ed] to consider the legal significance of the Patriot Act's crucial amendments" and "may well have exceeded the constitutional bounds" governing the courts by asserting "authority to govern the internal organization and investigative procedures of the Department of Justice."

And then the Court of Review did one more thing, something that has repercussions in today's surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant—from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: "The Truong court, as did 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." (Bold emphasis added)

EDIT:
Do you acknowledge that FISA allows retroactive warrants up to 72 hours?
As you can easily see from the above, the FISA Court of Review nullified that part of FISA. That 72-hour provision is null and void.

[Borgia]

http://www.freeconservatives.com/vb/showpost.php?p=418458&postcount=53

Cool. But points #1 and #2 concern themselves with foreign surveillance. Not half domestic and half foreign which is what I am concerned about. Bush can wiretap any foreigner whenever he wants and that is cool with me.

Notice in Point #3 where they get specifically into the Foreign -> US Citizen call they switch tactics and instead of saying courts have authorized it, they NOW say Bush has authority under the AUMF. The reason they switch arguments is because they know the courts have NOT upheld warrantless wiretapping in these cases.

So thanks for the link but it supports my contention that the courts have NOT decided on the Constitutionality of Foreign to US Citizen warrantless wiretapping.

[Wyatt_Junker]

Wyatt:

Originally you said that FISA has seen a recent uptick in turning down requests for warrants.

I showed you no denials were made in 2005 by the FISA court.

You then modified what you meant and said that when the FISA court requests modifications to requests that somehow counts as denials.

LOL. You are a good dance partner but far better than me, Wyatt. Dance some more for us!

And I already showed you that in 61 cases they had to be substantially modified. Denied until substantially modified. Nowhere in the history of the NSA and FISA has this ever happened until all this current trendy media attention. The DNC being the entity entirely responsible for this histrionical second-guessing where none existed prior. And the media dug it hard. In fact, they dig anything the DNC gives them.

So you had twenty years of FISA batting 100%, then with all of this newfound fashionable scrutiny, suddenly FISA finds a pair and begins to challenge the Admin. Interesting. And the reports themselves begin to look long-winded, interjected with exegetical apologetics throughout compared to Willie's record.

If you don't see the double standard, you are being willfully ignorant as much as the the DNC, Hardball and Meet the Press who all know the truth, that this is all just a charade to comandeer political power. We all know what's really going on; this isn't about FISA or the NSA. Its about being a bitch. Its about DC. Its about the DNC and their slutty version of reality, as they whore their way back to the polls and try to regain their last shred of relevance. The laughable thing is that you bought it, unquestioningly like the quisling you are. You are the puppet that doesn't even know its a puppet, but thinks it has an independent brain. And everytime you post, its merely another media bullet point. Nice try, clone.

[Wyatt_Junker]

Cool. But points #1 and #2 concern themselves with foreign surveillance. Not half domestic and half foreign which is what I am concerned about. Bush can wiretap any foreigner whenever he wants and that is cool with me.

Notice in Point #3 where they get specifically into the Foreign -> US Citizen call they switch tactics and instead of saying courts have authorized it, they NOW say Bush has authority under the AUMF. The reason they switch arguments is because they know the courts have NOT upheld warrantless wiretapping in these cases.

So thanks for the link but it supports my contention that the courts have NOT decided on the Constitutionality of Foreign to US Citizen warrantless wiretapping.

Canned cheese.

If a TERRORIST calls into this country, I want that call tapped EVERY TIME. I DON'T give a SHIT who they call here. They could call MR. ROGERS.

Sell your bullshit elsewhere.

[Wyatt_Junker]

Let's compare this to breaking and entering. A person's house has inviolate rights, it should be a sacred place and the 4th A. protects that. But, if I see a pervert looking in the window masturbating. And then I see the pervert make his way into the rear sliding glass door, shatter it and wander in, I am not going to question my actions. Especially when he is a known pervert on record, on CD ROM at the sheriff's dept. I am going to walk RIGHT INTO THE HOUSE without knocking and without a warrant and kick his ass.

President Bush has not only every right, but every RESPONSIBILITY to snatch those foreign based phone calls that come INTO the United States. If he doesn't he is being delinquent. He doesn't need a warrant. He shouldn't EVER need a warrant. They are on a list of sworn enemies that have made it crystal fukin clear what their intent is.

[Borgia]

NT:

The administration's case will hinge on the precedent set in Truong and will be interesting to see what develops. After a careful review of teh events and cases in question, the Admin may have a case for it being legal considering Truong.

[Naturalized-Texan]

Since the FISA Court of Review ruled in November 2002 that the president has the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant—from the FISA Court or anyone else, any further discussion in this thread is irrelevant.

[Borgia]

By the way, NT, whether FISA is in effect or not, your example is still invalid and betrays you did not know about the 72 hour retroactive warrant.

You were attempting to show how FISA would allow terrorist communication through without being listened to due to the time ti takes to get the warrant. I showed they do not have to wait and can listen in despite having no warrant at the time. So your example is totally erroneous and very misleading since it in no way demonstrates the limitations of FISA.

[Borgia]

Since the FISA Court of Review ruled in November 2002 that the president has the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant—from the FISA Court or anyone else, any further discussion in this thread is irrelevant.

I would not read it as broadly as you put it here, NT. They are talking about a specific type of surveillance.

[Borgia]

And I already showed you that in 61 cases they had to be substantially modified....

And yet you made no mention of changes, just that there had been an uptick in denials. Yet the records show NO denials at all.

Keep dancing Wyatt. Might I suggest you be a bit more precise in your verbiage in the future so you don't make this mistake again?

[Rhino]

Cool. But points #1 and #2 concern themselves with foreign surveillance. Not half domestic and half foreign which is what I am concerned about. Bush can wiretap any foreigner whenever he wants and that is cool with me.Half domestic and half foreign is considered foreign surveillance.

Notice in Point #3 where they get specifically into the Foreign -> US Citizen call they switch tactics and instead of saying courts have authorized it, they NOW say Bush has authority under the AUMF. The reason they switch arguments is because they know the courts have NOT upheld warrantless wiretapping in these cases.They were discussing the "NSA intelligence surveillance activities confirmed by the President", which was in the context of the original questions. The succeeding paragraphs (and some preceding) expounded beyond that context, and did cover court decisions. Just because they may not specifically mention US persons does not mean they are not included in the court decisions. As mentioned above, "foreign surveillance" does sometimes include US persons, so court decisions would normally cover them as well.

So thanks for the link but it supports my contention that the courts have NOT decided on the Constitutionality of Foreign to US Citizen warrantless wiretapping.Yes, they have. You need to stop deciding the conclusion first, and then attempting to remold the facts to fit it.

[DesertFox]

If he did that he'd have to stop being a liberal.

[Rhino]

In United States v. Brown,⁴¹ while affirming Brown’s conviction for a firearm violation, the Fifth Circuit upheld the legality of a warrantless wiretap authorized by the Attorney General for foreign intelligence purposes where the conversation of Brown, an American citizen, was incidentally overheard.⁴² The Third Circuit, in United States v. Butenko,⁴³ in affirming the district court’s denial of an espionage defendant’s application for disclosure of wiretap records, concluded that warrantless electronic surveillance was lawful, violating neither Section 605 of the Communications Act⁴⁴ nor the Fourth Amendment, if its primary purpose was to gather foreign intelligence information.⁴⁵.......

.......The Ninth Circuit, in United States v. Buck⁴⁶ affirmed the conviction of a defendant found guilty of furnishing false information in connection with the acquisition of ammunition and making a false statement with respect to information required to be kept by a licensed firearm dealer. In responding to Buck’s contention on appeal that it was reversible error for the district court to fail to articulate the test it applied in ruling, after an in camera inspection, that the contents of one wiretap did not have to be disclosed to the appellant because it was expressly authorized by the Attorney General and lawful for purposes of gathering foreign intelligence, the Ninth Circuit stated that “[f]oreign security wiretaps” were “a recognized exception to the general warrant requirement and disclosure of wiretaps not involving illegal surveillance was within the trial court’s discretion.”.....http://www.fas.org/sgp/crs/intel/m010506.pdf

There are others. You can find many of them at the links that were earlier posted.

[DoctorDoom]

You need to stop deciding the conclusion first, and then attempting to remold the facts to fit it.It's liberal SOP. Draw the curve and then plot the data.

[Rhino]

It's been awhile since I perused this thread. I see the liberals are still standing up for al Qaeda's right to plan and coordinate attacks on America without NSA or anybody else listening in.
http://home.earthlink.net/~simmoh/images/habit.jpg

[Borgia]

Rhino:

It seems that you agreed with DesertFox's post that alleges that liberals do not want the govt listening in to terrorist phone calls.

Do you really think that is the case? It seems to me all we ask is that you go through FISA (with warrants up to 72 hours retroactive even).

Do you really think DesertFox's characterization of the liberal position is accurate?

[Rhino]

You may not be greatly familiar with me yet. I use humor quite a bit.

[Borgia]

You may not be greatly familiar with me yet. I use humor quite a bit.

That's true. So I should not perceive a humorous Rhino post as endorsing or not endorsing. Ok.

[Borgia]

By the way, I am truly impressed with Pendragon's title for the thread. The double entendre (nonsexual) was truly inspired.

"Unwarranted criticism"

1. The criticism is not warranted -
"Unwarranted criticism"
2. Not having a warrant is being criticized. -
"Unwarranted criticism"

Well done, Pendragon.

[Naturalized-Texan]

By the way, NT, whether FISA is in effect or not, your example is still invalid and betrays you did not know about the 72 hour retroactive warrant.

You were attempting to show how FISA would allow terrorist communication through without being listened to due to the time ti takes to get the warrant. I showed they do not have to wait and can listen in despite having no warrant at the time.
You showed nothing of the kind. By ruling that no warrants are necessary for the surveillance of terrorist communications, the FISA Court of Review negated the 72-hour provision and allowed immediate surveillance without a warrant. BTW, I knew about that FISA Court of Review ruling when I posted that scenario. That's one of the reasons for that ruling.

So your example is totally erroneous and very misleading since it in no way demonstrates the limitations of FISA.
Wrong! Prior to that ruling, if within the 72-hour period the FISA Court turned down or significantly modified the requested warrant, the evidence obtained by that surveillance would have been inadmissible. If that was the case, given my scenario, it's unlikely that anyone would have been able to legally act on the information obtained during the surveillance until after the warrant was approved, which would have been too late. Fortunately, that is no longer the case.

[Naturalized-Texan]

I would not read it as broadly as you put it here, NT. They are talking about a specific type of surveillance.:rolleyes:

The FISA Court of Review ruled that no warrant is required for any surveillance of enemy communications no matter where the communications originate. That is all-encompassing..

[Borgia]

Wrong! Prior to that ruling, if within the 72-hour period the FISA Court turned down or significantly modified the requested warrant, the evidence obtained by that surveillance would have been inadmissible. If that was the case, given my scenario, it's unlikely that anyone would have been able to legally act on the information obtained during the surveillance until after the warrant was approved, which would have been too late. Fortunately, that is no longer the case.

But that is not anywhere near the scenario you created. You created a scenario where:

1. The NSA intercepts a communication from a terrorist
2. The NSA must then suspend listening in until they get a warrant
3. The terrorist succeeds while the NSA tries to get the warrant

But since we know by MY scenario or by YOUR scenario the #2 above is not supported. In either your reading or FISA reading, they can listen in to the whole conversation and act on it and get the warrant within 72 hours (my case).

So either you did not knwo about the 72 hours or your analagy was very poorly crafted and did not reflect reality.

[Borgia]

The MAIN problem with having to get a warrant to intercept a terrorist communication is that the communication would be completed long before any warrant could be issued.

Just imagine terrorist A calling terrorist B to order him to release botulism toxin from a plane flying over New York City - a call that may last as long as 30 seconds. The release of that botulism toxin could kill everyone in the city and the surrounding suburbs. The feds try frantically to find a judge who would be willing to issue the warrant to intercept that terrorist communication and then they have to explain to the judge why the warrant is necessary. By the time the warrant is issued, terrorist B will have released all that poison and millions of people would be dead or dying. Is that what the libs want? It makes one wonder.

Here is your scenario again, NT. Let me repeat in bold what you said:

The MAIN problem with having to get a warrant to intercept a terrorist communication is that the communication would be completed long before any warrant could be issued.

But FISA says you can get the warrant retroactively. Why would the FEDs be frantic about getting the warrant? They have 72 hours and FISA did not reject a single application last year.

[Rhino]

1. Warrantless wiretaps are legal, even where US persons are involved.

2. Borgia thinks they shouldn't be legal and/or shouldn't be necessary, not as an enabler for terrorism, but as a protection of civil liberties.

3. Most of the rest of us disagree, in whole or in part.

Now, all of you, must we go round and round forever arguing miscellaneous details? Sheesh!

Why can't we all just get along?

[Naturalized-Texan]

It all boils down to: Do we want the U.S. to win the War on Terror or not? We conservatives want to win the War on Terror and we want the president to be able to use all the tools at hs disposal to win it. Liberals have shown that they don't really want to win the War on Terror, so the president has no need to use those tools.