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December 20, 2005


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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.)


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:

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

The Little Brother Crew


Very interesting blog.


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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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