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December 20, 2005

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Listed below are links to weblogs that reference Presidential Wiretapping: Disaggregating the Issues:

» Round Up: Legal Response To Surveillance Story from Joe's Dartblog
I've been skimming the legalese pond on the NSA surveillance story. Orin Kerr's lengthy post--and its 275 attached comments--is a good place to start, but trenchant legal analyses abound on the legality (and constitutionality) of the supposed 'program'... [Read More]

» NSA Surveillance: Blog Post Roundup II from Concurring Opinions
In addition to the blog post roundup I did yesterday, here are more blog posts about Bush's NSA surveillance worth reading: David Cole, Bush's Illegal Spying (Salon, Dec. 20, 2005) "Attorney General Gonzales contends that the authorization by Congress ... [Read More]

» More NSA analysis. Because really, who cant get enough of this stuff? from protein wisdom
Cass Sunstein, on Bushs NSA program:The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, There were ... [Read More]

» The Power That Is BLOG from ~Neophyte Pundit~
The MSM, via the New York Times that is wont to "All the news that is fit to (mis)Print," has taken the president lied mantra to the new level: "The president is now violating Americans' Civil Liberties by warrantless wiretaps."... [Read More]

» It Seems to be Legal from Different River
Lots of folks with the right experience -- both Democrats and Republicans -- seem to be coming out with convincing arguments that President Bush's "impeachable" executive order authorizing certain eavesdropping of terrorist suspects and contacts wit... [Read More]

» Links and Minifeatures 12 22 Thursday from Searchlight Crusade
Mister Snitch has the idea for a Best Posts of 2005. ********** [Read More]

» More Voices of the Invisible from RightPundit
In the last few days more authoritative support has been published for President Bush's policy of wiretapping international communications with suspected terrorists. First, the NSA sent this letter to certain members of Congress spelling out the lega... [Read More]

» My Take On The Surveillance from Myelectionanalysis.com
A couple days ago, I posted my first take on Bushs warrantless surveillance efforts. I wrote: The NSA surveillance program is a very, very, very serious issue, for Republicans and Democrats alike. I’m pretty convinced that the program isn��... [Read More]

» WAR/LAW: Spying on Al Qaeda in the United States from Baseball Crank
Am I bothered by the revelation that President Bush has authorized, without a warrant, surveillance on telephone calls and emails involving people within the United States? Let's walk through the issues to explain why I think the criticisms of the... [Read More]

» One More Time: NSA Program WAS Legal from Iowa Voice
Radio Blogger has the transcript of Hugh Hewitt’s conversation with Cass Sunstein, a liberal law professor and noted authority on Presidential power. Sunstein says that the President had the authority to order the wiretapping of conversations between Al [Read More]

» Conservative Blogs are Wrong - A Roundup from DrewMiller.net
First, I highly recommend this MMA article on the top twelve media myths and falsehoods about Bush's law-breaking ways. Then, I'll go through recent conservative and libertarian blog posts and point out which falsehoods they're buying into: Mainstream ... [Read More]

» NSA Stuff from Pete The Elder
My friend Jeff over at Evil Twin of Williams Jennings Bryan asked me to comment on the Bush NSA wiretap story so here goes. Before talking about Bush however, I think we need to look at what previous presidents have... [Read More]

» NSA Stuff from Pete The Elder
My friend Jeff over at Evil Twin of Williams Jennings Bryan asked me to comment on the Bush NSA wiretap story so here goes. Before talking about Bush however, I think we need to look at what previous presidents have... [Read More]

» NSA Stuff from Pete The Elder
My friend Jeff over at Evil Twin of Williams Jennings Bryan asked me to comment on the Bush NSA wiretap story so here goes. Before talking about Bush however, I think we need to look at what previous presidents have... [Read More]

» WAR/LAW: Spying on Al Qaeda in the United States from Baseball Crank
Am I bothered by the revelation that President Bush has authorized, without a warrant, surveillance on telephone calls and emails involving people within the United States? Let's walk through the issues to explain why I think the criticisms of the... [Read More]

» Be Careful what you Wish For... from Confederate Yankee
Al Gore, former Vice President and Patient Zero of Bush Derangement Syndrome, responded to charges of hypocrisy by White House Press secretary Scott McClellan via left wing Raw Story: "The Administration's response to my speech illustrates perfectly th... [Read More]

» NSA Wins, Terrorists and Liberals Lose from Confederate Yankee
Four Senate Republicans have introduced a bill to provide oversight of the President's NSA terrorist intercept program while rejecting any further investigation: The measure would create terrorist surveillance subcommittees under both the Senate and Ho... [Read More]

» Cass Sunstein's Memo To Democrats: "Keep Terrorism Out Of The News." from Hugh Hewitt
University of Chicago Law Professor Cass Sunstein calls them as he sees them, as was obvious from his analyisis of the NSA's authority to conduct warrantless surveillance of Al Qaeda contactings its U.S. operatives. Now Professor Sunstein has... [Read More]

» Links and Minifeatures 12 22 Thursday from Searchlight Crusade
Mister Snitch has the idea for a Best Posts of 2005. ********** Q and O has more on whether the President's surveillance was legal. I am not qualified to pass judgment on the legality. I am qualified to say it... [Read More]

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Bruce Moomaw

The key passage is this: "(Of course nothing I have said suggests that under the AUMF, the President can engage in surveillance of people without a tie to organizations or nations associated with the attacks of 9/11.)" So who, dammit, is supposed to monitor him to make sure that he's NOT doing so, if not FISA or something like it? Are we seriously supposed to believe that a legal prohibition exists without any conceivable way to enforce it? (Note the clever little way the pro-Bush rightists listed above are deliberate clouding the issue: by insisting that he has the right to wiretap "suspected terrorists", without ever mentioning the question of whether they really are "suspected terrorists" in the judgment of anyone sane and honest.)

p.lukasiak

Maguire wrote: "If you actually think the debate is simply about whether the President could eavesdrop on US citizens with no known connections to terrorists, you are really out to lunch."

The far more rational and sane Mr. Phelps concluded: "Unless we see evidence that FISC was compromised, the conclusion is inescapable: Bush was spying on Americans he shouldn't have been spying on. Bush was spying on Americans without any connection to foreign powers or terrorists. "

We don't know all the facts, but we do know that thousands of American citizens had their communications closely monitored -- and a total of TWO people have been cited to demonstrate the need for the program -- at least one of whom appears to have simply been a nutjob who thought he could melt the Brooklyn Bridge with a blowtorch.

As Mr. Phelps notes, we are not talking about people who would qualify for warrants under the extremely liberal standards of the FISA courts. In other words, we aren't talking about people with demonstrated DIRECT connections to terrorists, or even people for whom there is substantial circumstantial evidence of a terrorist connection.

Maguire seems to live in a fantasy world where the sole reason warrants were not sought for these wiretaps was because of the paperwork burden --- that the Bush regime had successfully identified thousands of domestic terrorists affiliated with al Qaeda that represented such an imminent threat that it had no choice but to forego the paperwork required by FISA, and concentrate on getting the taps in place.

Now, I can personally understand how such a program might be implemented in the immediate aftermath of 9-11, when no one had the slightest clue what could happen the next day, and there was a need to take "desperate" measures that might violate the 4th Amendment. But we're three years beyond that "panic" stage, and there was simply no excuse for the program to continue past the point where everyone was acting out of a sense of panic.


Tyrone Slothrop


Professor Sunstein,

Respectfully, I think steps (3) and (4) in your analysis aggregated themselves again. If the question is, was there a violation of FISA (FISI?), as a matter of statutory interpretation, the answer is -- pretty clearly, though not certainly -- "yes." As a matter of statutory interpretation, the argument about the AUMF is, as you suggest, weak by comparison.

Most of the rest of what you say under (3) really belongs under (4) -- it relates to the possible conflict between what Congress did with FISI and the President's powers, as you posit them.

I said more here -- http://allintensivepurposes.blogspot.com/2005/12/fisa-is-pretty-clear-actually.html -- but less concisely, and not as well.

Law Student

I want to make a point about the Fourth Amendment, which is in opposition to the learned scholar who authored this blog. Amend. 4 of the Constitution only prohibits searches that are "unreasonable." Thus, if a search is "reasonable," it is permissible. The key is not necessarily a judicial warrant or probable cause; that is just the qualifications that usually, but not always, makes a search reasonable. See, e.g., United States v. Knights (upholding search of parolee on "reasonable suspicion" standard). Also, the Court is willing to make exceptions to the Fourth Amendment under the special needs doctrine. See, e.g., Stiz (upholding constitutionality of traffic stops with no level of individual suspicion to stop drunk drivers to protect public safety).
The Founding Fathers set a "reasonableness" standard for the sole reason of allowing value judgments to be made. Thus, one could easily conclude that the government's legitimate interest outweigh the individual's right to privacy. After all, preventing terrorism is a very compelling interest and listening to phone conversations is a minimum invasion compared to a strip search, police home invasion, or even a traffic stop. Thus, the search may be "reasonable" under the Fourth Amendment as long as it is very narrowly tailored.
The main concern, and a very serious one, would be if the government started to use the information obtain in a conversation for the purpose of general law enforcement. In other words, if the government, for example, used info obtained during a monitored conversation to arrest someone for a minor drug charge or some other non-terrorism violation of the penal law. This is a legitimate concern. The government must not be allowed to enforce the general criminal law while undercutting the safe guards in the name of terrorism. Also, politics must not be the purpose either. In other words, President Bush should not be allowed to same the following: Howdy, Howard Dean is a "terrorist" so lets monitor his phone calls. He should not be able to use the "terrorist" label broadly enough to swallow the Fourth Amendment.
Thus, the program may be constitutional. However, if is silly to erode civil liberties to fight terrorism, for then the terrorist win. If secret programs continue to expand and are broader in scope, the USA will resemble the former USSR.

The Little Brother Crew

I came across this blog by accident and really appreciate your opinions and willingness to put your feelings into words. Surveillance is an issue that got a bit of press but not neccessarily the attention that needed to be paid to the seriousness of the issue.

Myself and a group of concerned citizens formed what we're calling The Little Brother Commission and are trying to spread the word about surveillance here in Massachusetts and beyond - we're starting to get some government/media attention and are just trying to let others know about us and our mission.

If you have a moment, check out our website:
www.littlebrotheriswatching.com

If not, thanks for drawing attention to such an important topic.

Best,
The Little Brother Crew

jack

Very interesting blog.

sara

Thanks for the comment.

ocnsss

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amg lite

Hi Simon Phelps
is no very good!!!!

Dave Schroeder

I realize this comment is coming over two years after this blog entry was posted, but feel I have to respond to Simon's assertion (directly above this post).

You're overlooking one other critical reason why FISC is bypassed: because the volume of monitoring that was desired simply made the FISC process untenable — without regard to the fact it can be done retroactively. We have seen subsequent assertions from the DNI that, once everything is considered, it takes about 200 manhours to do all work related to a FISC request. It isn't much of a stretch to consider that when one is casting a wide net, it quickly exhausts manpower available for administrative tasks.

Note I am not making a value judgment here; just noting that the ONLY alternative is indeed not that the President "must" have been spying on Americans he shouldn't have been spying on. In fact, there are multiple other explanations — not the least of which is that foreign intelligence collection could be argued to always be allowable without a warrant if the target is a non-US Person outside of the United States, regardless of where the actual surveillance occurs. It already is allowable without a warrant if the interception happens outside the US; there is a fairly convincing argument that can be made that when the traffic travels through equipment on our own soil and telecom operators voluntarily cooperate, we should take every advantage.

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