President Bush and the NSA Wiretaps

[TomFoolery]

President Bush has approved NSA wiretaps without judicial warrants of international phone calls made to known or suspected terrorists. The policy was reviewed every 30-45 days and the Senate Intelligence Committee was briefed several times.

Past Presidents probably agree with Bush.

http://www.nationalreview.com/york/york200512200946.asp

In a little-remembered debate from 1994, the Clinton administration argued that the president has "inherent authority" to order physical searches — including break-ins at the homes of U.S. citizens — for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.

The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

Reporting the day after Gorelick's testimony, the Washington Post's headline — on page A-19 — read, "Administration Backing No-Warrant Spy Searches." The story began, "The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers."

Do you think Bush overstepped his authority?

Do you think it is an impeachable offense?

Would you feel differently if Clinton had done it?

[TomFoolery]

The last one is a gut-check for most people. I wonder if there would be a Republican outroar if Clinton had done the same thing. I wonder if Democrats would have been silent if it were Clinton. Do you think the ACLU would respond differently based upon who was doing it?

I don't know enough about the legal aspects to make an informed decision, but i'm guessing he should have gotten judicial warrants.

[Noseypoo]

I thought it was legal under Patriot Act ... guess I was wrong.

If there's wiretapping going on it should be under court-order, end of story ...

[TomFoolery]

Most people don't really understand what the Patriot Act does.

This has nothing to do with your post, but I get tired of people ranting about the Patriot act when they haven't even read it.

I believe the issue here is whether or not the NSA can spy within our borders.

[Radu]

Most people don't really understand what the Patriot Act does.

This has nothing to do with your post, but I get tired of people ranting about the Patriot act when they haven't even read it.

I believe the issue here is whether or not the NSA can spy within our borders. That actually has a lot to do with the Patriot Act. I have read most of it (in responding to another thread). Unfortunately, most of the text is refferencing to changes made in other texts, so you'd have to juggle between documents to get a full, easy-to-read picture. It does mention FISA quite a bit. But it also requires warrents for tapping (though a lot of the procedure isn't typical of a normal search warrant). Here's the table of contents, though, to give an idea of what it entails:

TITLE II—ENHANCED SURVEILLANCE PROCEDURES
Sec. 201. Authority to intercept wire, oral, and electronic communications relating to terrorism.
Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses.
Sec. 203. Authority to share criminal investigative information.
Sec. 204. Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications.
Sec. 207. Duration of FISA surveillance of non-United States persons who are
agents of a foreign power.
Sec. 208. Designation of judges.
Sec. 209. Seizure of voice-mail messages pursuant to warrants.
Sec. 210. Scope of subpoenas for records of electronic communications.
Sec. 211. Clarification of scope.
Sec. 212. Emergency disclosure of electronic communications to protect life and limb.
Sec. 213. Authority for delaying notice of the execution of a warrant.
Sec. 214. Pen register and trap and trace authority under FISA.
Sec. 215. Access to records and other items under the Foreign Intelligence Surveillance Act.
Sec. 216. Modification of authorities relating to use of pen registers and trap and trace devices.
PUBLIC LAW 107–56—OCT. 26, 2001 115 STAT. 273
Sec. 217. Interception of computer trespasser communications.
Sec. 219. Single-jurisdiction search warrants for terrorism.
Sec. 220. Nationwide service of search warrants for electronic evidence.
Sec. 225. Immunity for compliance with FISA wiretap.

It also defines what an act of terrorism is, which includes US citizens living within the US.
The term ‘domestic terrorism’ means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction
of the United States.’’.
...
(b) CONFORMING AMENDMENT.—Section 3077(1) of title 18,
United States Code, is amended to read as follows:
‘act of terrorism’ means an act of domestic or international
terrorism as defined in section 2331;

So, I don't know if what Bush is doing is legal or illegal, but the Patriot Act will play a heavy roll in determining that. Personally, when this news came out, I could smell impeachment all over it. Bush is too politically weak right now, and Democrats have been scurring around since re-election to grab a foot-hold. They'll exploit this for all it's worth. I don't think he'll get evicted from office, but I certainly think it'll lead to an impeachment trial as soon as they can find a shred of solid evidence that his actions were shady.

[Justawoman]

Okay, I had to re-read that first post and look yet again for Bush's actual name. Your post is actually confirming that Clinton put the whole surveillance thing into play. I did find this about Bush.

The New York Times revealed in a front page story December 16th that the Bush administration allowed the NSA to wiretap calls involving someone resident in the United States (N.B.: not necessarily an American citizen) without seeking a court warrant, as long as at least one party to the call was overseas and the American was a known al-Qaeda contact.

http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=20635


I also found this concerning how Clinton had this whole thing set up back in his time:

Clinton also authorized the NSA to wiretap and search the home of CIA spy Aldrich Ames. He soon broadened the NSA’s authority to include “classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes.”

A few months later (on February 9, 1995), Clinton signed Executive Order 12949, stating, “the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year.”


Same web site as the first quote.

And I found this interesting and on the same website.

A more important myth – one that could possibly result in impeachment – is that Bush’s aggressive protective measures somehow violated the law. In fact, surveillance without a warrant has been the law of the land for nearly 30 years and was resoundingly upheld at least once during his first term. In 2002, citing an already 22-year-old precedent, the Federal Intelligence Surveillance Court of Review – the court that over sees the process whereby the president taps foreigners – ruled “as did all other courts” 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.

This web site goes into it a bit more. I found it interesting.
http://supreme.lp.findlaw.com/constitution/amendment04/05.html

Once again, in my opinion, it all boils down to the left not liking Bush's stand on this war or anything else he stands for. They are like a dog with a bone. They are going to keep on chewing til they get somewhere or have to bury the bone, one or the other.

[TomFoolery]

Clinton signed an executive order permiting it here: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1995_register&docid=fr13fe95-85.pdf

Carter did it with Executive Order 12139 - http://www.fas.org/irp/offdocs/eo12139.htm

this doesn't seem that uncommon. it seems more political than anything.

[Justawoman]

That is what I got out of it Tom.

[TomFoolery]

This op-ed article is pretty good. it was written by John Schmidt who served under President Clinton from 1994 to 1997 as the associate attorney general of the United States.

http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

[jamesglewisf]

These articles sure make it sound like this is just politics at work.

[Radu]

So, I was watching CSPAN durring lunch, today (like all the cool people, my age, do) and a former NSA cheif was giving a press-conference. Something caught my attention, though, that I think is certainly suspicious.

A member of an organization called "World Can't Wait: Drive Out the Bush Regime!" asked the official if the NSA was tracking political opponents to the Bush administration. The just man responded that they weren't casting a "drift net" over everybody, but that there searches are very specific and targeted. In fact, he seemed to get rather angry at the accusation that they were tracking political opponents.

So the protestor asked, again, for a specific answer on whether or not they were searching political opponents. The official stood silent, and then prompted the moderator for the next question.

Does anybody else find that un-nerving? I know the man didn't outright say that they're spying on these kinds of groups, but the message was sent pretty clearly. That same protestor shouted the question, again, at the end of the conference, but the man just kept walking out the room.

I've been searching the news websites for any mention of that, but havn't found anything. I doubt it'll make the main-stream media, simply because there's no soundbyte to air.

If it's true, though, then that's something that should scare anybody. Before, we could just say "We're not terrorists, so we have nothing to fear", but now if you join a group that doesn't support Bush, you could have your conversations observed.

[pack momma]

We watch Fox news. And quite frankly I am sick and tired of all the partisan junk on both sides. anything one party wants to accomplish the other has to make a lot a racket about and always screaming for an investigation over who did what wrong/overlooked/misjudged etc etc. No wonder this country is going to {devil} "in a handbasket" Its like driving being more interested in whats happening in the rearview mirror instead of whats ahead. As far as the wiretapping is concerned. Bush himself made the comment yesterday, "If I'm trying to break the law, then why am I briefing Congress?" They are stressing is not against citizens, how are they supposed to get the bad guys if they have to ask their permission first/?????
I may get mugged or worse going shopping or out to eat, but so far I havent had to worry about any car bombs coming out of nowhere. We only have the illusion we live in a free country. but thats just fine compared to a lot of places. "Big Brother" has already been around a long time, fortunately he leaves most of us alone.

[Justawoman]

What has always amazed me is the observation that who ever gets the office of Commander in Chief has not really directly changed our lifestyle over here.

They all rant and rave when their parties guy doesn't get in but it never really changes anything. The president (whoever) just has to deal with whatever crisis comes his way and Bushes happened to be a full blown terrorist attack. I doubt any President, Rep or Dem or other, could have done any better.

[pack momma]

In 2008 I vote for God! I know he'll step in when he's ready, and looking at the daily news it's gotta be soon.

[Justawoman]

He might not even be ready for the job. {fonzy}

[Radu]

What Clinton was doing is not the same thing that Bush is doing. There are differences, which is why Democrats can argue against it without being hypocrites. I'll quote Wikepedia... and then dumb it down even more.

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA. These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorizes his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

However, the authorization granted by President Bush to the NSA apparently uses neither FISA approval nor the one-year foreign surveillance authority granted by FISA. Instead, the administration argues that the power is granted by the Constitution and by a statutory exemption. Case law supports the idea that the President has the "inherent authority to conduct warrantless searches to obtain foreign intelligence information." Article II of the Constitution of the United States of America makes the President Commander in Chief with the responsibility to protect the Nation. This authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Whether such declarations apply to foreign intelligence has been examined by few courts.So, basically, Clinton authorized warentless physical searches, using the permission that FISA gave him. Bush is doing warentless ...something... searches using implied powers in the Constitution.

The key words there are "implied powers", which is the big issue. That's what both sides are arguing about, and that's what's going to have to lead to an impeachment before everybody's satisfied.

[TomFoolery]

That might be accurate, but I wouldn't get my history from Wikipedia. It is created and edited by users, and they aren't always apolitical. Just read the articles:

http://www.azdailysun.com/non_sec/nav_includes/story.cfm?storyID=124418
http://news.google.com/news?hl=en&ned=us&q=wikipedia

[Radu]

Ya, I know Wikepedia isn't guarenteed to be accurate, but I believe that lays out the common case against Bush. That seems to be the same argument that political opponents are using against him.