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NSA (letter to Senate)
NRO ^ | KJ Lopez

Posted on 12/22/2005 12:03:18 PM PST by hipaatwo

writes to the Senate about the eavesdropping frenzy.

It's a PDF file


TOPICS: Front Page News; News/Current Events
KEYWORDS: 109th; d; nsa; patriotleak; spying
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To: freema
"Every POS on the left who opens their mouth puts my life and our troops' lives at risk."
Amen mom. I could not have better worded the end result of their treasonous behavior.
181 posted on 12/22/2005 4:01:27 PM PST by Marine_Uncle (Honor must be earned)
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To: 7mmMag@LeftCoast

Gosh, that was sweet. I got a kick out of it on the first read. And tears, the second.

My silly Christmas list has one wish...a trip to Walter Reed on a Friday night to hug those glorious DC FReepers. But, if I may, I'll add your first wish to my list.
I never quit believing, I just forgot about believing for awhile, silly me.

I'm NEVER let down! I just must keep my eyes open : )

I hope Santa's good to you!!!!!!!!!
Merry Christmas!


182 posted on 12/22/2005 4:02:35 PM PST by freema (Proud Marine Mom-What fools they are who doubt the ability of liberty to triumph over despotism)
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To: Wristpin; lugsoul

Good catch about Posner article.

I will say this before I go to figure out a frosting for that cake, we have used warrantless wiretaps against Mobsters and I certainly think that wiretapping AQ who are in contact with Americans is not only appropriate but necessary. Mobsters did not represent a threat to American cities or western civilization, but we wiretapped American citizens anyway in an effort to reduce the influence of mobsters in nearly ever aspect of American life.

As well, no president in our nation's history as ceded authority to any legislative body when our nation was either at war or fighting an enemy.


183 posted on 12/22/2005 4:03:55 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: knews_hound

Sounds like it is true. That's those Texans for you. Too funny.


184 posted on 12/22/2005 4:04:56 PM PST by shield (The fear of the LORD is the beginning of knowledge: but fools despise wisdom and instructions.Pr 1:7)
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To: Peach

Crap. It was 167 & 168. Doh.


185 posted on 12/22/2005 4:05:29 PM PST by freema (Proud Marine Mom-What fools they are who doubt the ability of liberty to triumph over despotism)
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To: freema

I read all of those and sort of knew what you were getting at :-)

Gotta run - Mr. P is waiting for me to frost this cake which hasn't even cooled yet!


186 posted on 12/22/2005 4:06:43 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: Shalom Israel
Ping, so you can educate yourself.
187 posted on 12/22/2005 4:11:09 PM PST by Souled_Out
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To: lugsoul
What I stated is exactly what I've read. The program has monitored communications between two points within the US. They contend it was accidental.

That is not stated in the PDF from the AG office. Only comms into and out of the country are monitored. IF (very BIG IF) they managed to intercept purely domestic, they monitor for until it is clear that it is purely domestic and drop it. I've had lots of training on that aspect of it.

188 posted on 12/22/2005 4:19:39 PM PST by Godzilla (Jesus - The REASON for the SEASON)
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To: Wristpin
It's a good moment to review and re-read the Rockefeller memo. Also, the Ted Kennedy/NAACP "memogate" ocurred in the same time-frame.

It all gives D-Cynthia McKinney's "What did he know; When Did he Know it", so much more of a fun-sounding phrase to begin asking prominent Democrats.

189 posted on 12/22/2005 4:36:29 PM PST by Alia
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To: All
Please pardon any typos. Here is an HTML version of the letter.
U. S. Department of Justice
Office of Legislative Affairs

December 22, 2005

The Honorable Pat Roberts
Chairman
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510

The Honorable John D. Rockefeller, IV
Vice Chairman
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510

The Honorable Peter Hoekstra
Chairman
Permanent Select Committee on Intelligence
U.S. House of Representatives
Washington, D.C. 20515

The Honorable Jane Harman
Ranking Minority Member
Permanent Select Committee on Intelligence
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairmen Roberts and Hoekstra. Vice Chairman Rockefeller, and Ranking Member Harman:

As you know, in response to unauthorized disclosures in the media, the President has described certain activities of the National Security Agency ("NSA") that he has authorized since shortly after September 11, 2001 . As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. The President has made clear that he will use his constitutional and statutory authorities to protect the Amer~can people from further terrorist attacks, and the NSA activities the President described are part of that effort. Leaders of the Congress were briefed on these activities more than a dozen times.

The purpose of this letter is to provide an additional brief summary of the legal authority supporting the NSA activities described by the President.

As an initial matter, I emphasize a few points. The President stated that these activities are crucial to our national security." The President further explained that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country." These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. including the information relating to the


activities described by the President, remain in full force and effect. The unauthorized disclosure of classified information violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such briefings will be conducted in a manner that will not endanger national security.

Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) (stressing that if the Nation is invaded, "the President is not only authorized but hound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[T]he Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.").

This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[A]ll 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. . . ."). The Supreme Court has said that warrants are generally required in the context of purely domestic threats. hut it expressly distinguished, foreign threats. See United States v. United States District Court, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring).

The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States." § 2(a), The AUMF clearly contemplates action within the United States, See also id. pmbl. (the attacks of September 11 "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad"). The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some


have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the United States for months before those attacks. The reality of the September I 1 plot demonstrates that the authorization of force covers activities both on foreign soil and in America.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court addressed the scope of the AUMF. At least five Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war" and is therefore included in the "necessary and appropriate force" authorized by the Congress. Id. at 518-19 (plurality opinion of O'Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices concluded that the AUMF "clearly and unmistakably authorize[s]" the "fundamental incident[s] of waging war." Id. at 518-19 (plurality opinion); see id. at 587 (Thomas, J., dissenting).

Communications intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly and unmistakably authorizes such activities directed against the communications of our enemy. Accordingly, the President's "authority is at its maximum." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); cf: Youngstown, 343 U.S. at 585 (noting the absence of a statute "from which [the asserted authority] c[ould] be fairly implied").

The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 2511(2)(f) of title 18 provides, relevant here, that the procedures of FISA and two chapters of title 18 "shall be the as exclusive means by which electronic surveillance... may be conducted." Section 109 of FISA, in turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50 U.S.C. 1809(a)(1). Importantly, section 109's exception for electronic surveillance "authorized by statute" is broad, especially considered in the context of surrounding provisions. See 18 U.S.C. § 2511(l) ("Except as otherwise specifically provided in this chapter any person who --(a) intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . . .") (emphasis added); id. § 2511(2)(e) (providing a defense to liability to individuals "conduct[ing] electronic surveillance, . . . as authorized by that Act [FISA]") (emphasis added). By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. § 2511(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 2511(2)(f). The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hamdi concluded that it satisfies the requirement in 18 U.S.C. § 4001(a) that no U.S. citizen be detained by the United States "except pursuant to an Act of Congress." See Hamdi, 542


U.S. at 519 (explaining that "it is of no moment that the AUMF does not use specific language of detention"); see id. at 587 (Thomas, J., dissenting). Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, the AUMF and FISA must be construed in harmony to avoid any potential conflict between FISA and the President's Article I1 authority as Commander in Chief. See, e.g., Zachydas v. Davis, 533 U.S. 678, 689 (2001); INS v. St.Cyr, 533 U.S. 289, 300 v. (2001). Accordingly. any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with al Qaeda without complying with FISA procedures must be resolved in favor of a n interpretation that is consistent with the President's long-recognized authority.

The NSA activities described by the President are also consistent with the Fourth Amendment and the protection of civil liberties. The Fourth Amendment's "central requirement is one of reasonableness." Illinois v. McArthur, 531 U.S. 326,330 (2001) (internal quotation marks omitted). For searches conducted in the course of ordinary criminal law enforcement, reasonableness generally requires securing a warrant. See Bd. of Educ, v. Earls, 536 U.S. 822, 828 (2002). Outside the ordinary criminal law enforcement context, however, the Supreme Court has, at times, dispensed with the warrant, instead adjudging the reasonableness of a search under the totality of the circumstances. See United States v. Knights, 534 U.S. 112, 118 (2001). In particular, the Supreme Court has long recognized that "special needs, beyond the normal need for law enforcement," can justify departure from the usual warrant requirement. Vernonia School Dist. 471 v. Acton, 515 U.S. 646, 653 (1995); see also City of Indianapolis v. Edmond, 531 U.S. 32, 41-42 (2000) (striking down checkpoint where "primary purpose was to detect evidence of ordinary criminal wrongdoing").

Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the "special needs" exception to the warrant requirement. Foreign intelligence collection undertaken to prevent further devastating attacks on our Nation serves the highest government purpose through means other than traditional law enforcement. See In re Sealed Case, 310 F.3d at 745; United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (recognizing that the Fourth Amendment implications of foreign intelligence surveillance are far different from ordinary wiretapping, because they are not principally used for criminal prosecution).

Intercepting communications into and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is generally determined by "balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests." Earls, 536 U.S. at 829. There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the President. That must be balanced, however, against the Government's compelling interest in the security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.") (citation and quotation marks omitted). The fact that the NSA activities are reviewed and


reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate further demonstrates the reasonableness of these activities.

As explained above. the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.

We hope this information is helpful.

Sincerely,

William E. Moschella
Assistant Attorney General

190 posted on 12/22/2005 4:37:48 PM PST by Cboldt
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To: freema
It was certainly fun to write, unfortunately I forgot to put in the paragraph breaks.

A very Merry Christmas to you and your family.

191 posted on 12/22/2005 4:44:33 PM PST by 7mmMag@LeftCoast
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To: YOUGOTIT
The easy way to Clear the CLIPBOARD -
Open Notepad/Word/Work/or item you are coping from.
Put Cursor on a blank line.
Be-sure the cursor has indicated a blank line and no text.
Do a Command C ( CTRL + C ).
Do a CRTL + V
Should print blank.

Be careful with the CRTL+C command should the cursor be on a blank part of text you will lose what ever is in the clipboard.
192 posted on 12/22/2005 5:14:16 PM PST by Don_Ret_USAF ( "If you chase two rabbits, you will lose them both - Native American Saying.")
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To: lugsoul
There is a more developed analysis on the 4th Amendment issue at Powerline that you may find interesting.

The bottom line is unreasonable is the key word in the 4th Amendment. We are in a state of war with the Al Qaida organization. It is perfectly reasonable for the government to take steps to prevent mass casualty attacks from armed agents of a foriegn power in a open state of conflict with us.

But what is reasonable? Or more precisely, what is reasonable for the NSA? Remember, intelligence is not law enforcement. Protecting every lead that doesn't meet legal muster will completely incapacitate our intelligence collection effort. Your point that the program isn't 100% accurate on the first pass may be vaild. Still, is there any proof that collection continues once a suspected domestic contact is found to lack Al Qaida intelligence value? Or do they move on right away to search for targets that do?

If they do move on right away, then, given the current situation, I think most Americans, as well as the courts, will find that reasonable.

193 posted on 12/22/2005 5:16:14 PM PST by Steel Wolf (* No sleep till Baghdad! *)
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To: All
Good summary of case law re: surveillance ...
http://www2.mnbar.org/benchandbar/2001/nov01/terrorism-feature.htm
194 posted on 12/22/2005 5:18:23 PM PST by Cboldt
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To: Mo1
Ping - need help in posting this PDF Does anyone know how to?

Can you post it in html? My Acrobat will not open - says there is an error in document.

195 posted on 12/22/2005 5:22:31 PM PST by p23185 (Why isn't attempting to take down a sitting Pres & his Admin considered Sedition?)
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To: Souled_Out
Why do you keep humiliating yourself? You still haven't found the spot where the Constitution authorizes the suspension of the fourth amendment for any reason whatsoever. A letter from the wiretappers assuring us that they have the authority to wiretap is of no interest at all.
196 posted on 12/22/2005 5:24:04 PM PST by Shalom Israel (Pray for the peace of Jerusalem.)
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To: Steel Wolf
The bottom line is unreasonable is the key word in the 4th Amendment.

I was waiting for someone to spot that--most haven't even bothered to read the fourth amendment, so they missed the obvious weasel word. By your interpretation, the government can violate the fourth amendment whenever they say it's reasonable of them to do so. The only problem with that interpretation, of course, is that the framers wrote the amendment to limit federal authority; and a limit that gets to be decided upon by the feds themselves is no limit at all.

197 posted on 12/22/2005 5:25:50 PM PST by Shalom Israel (Pray for the peace of Jerusalem.)
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To: Peach
I use ver 6.2 on my Win98SE system and have no problems. When I open a Ver 7.0 get a warning that it was a newer ver of ADOBE. But open it and it displays ok.
Once I had a problem with ver 6.0 - I screwed it up by not loading all of the programs options on start. Removed some files that were needed. I was trying to get the program it load faster. So I downloaded the program using a download manager. Had problem of lockup and crashes. Deleted the program using the Control panel ADD/REMOVE option. Then ran a program called RegCleaner from http://www.jv16.org/. Found many left over register item. Removed any that had ADOBE in the line. Again downloaded ADOBE but without a download manager. Started the program and it ran just fine. Just takes a few minutes to loading a ton of options. Maybe this might help. Merry Christmas and a Happy New Year. LOVE YOUR POST - alway informative.
198 posted on 12/22/2005 5:36:01 PM PST by Don_Ret_USAF ( "If you chase two rabbits, you will lose them both - Native American Saying.")
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To: Steel Wolf
Exactly! Intelligence collection is not for law enforcement purposes.

Yes, and most, if not all MSM commenting on this are only showing their ignorance. Interception of comm going out and coming into the US has been going on at least since WWII and maybe even before that. ONLY WHEN BUSH DOES IT, IT BECOMES A CRIME. The MSM is so disgusting, it is no wonder their listernership, viewership, and readership are going down every month. They have no credibility, but worse yet they are part of the Fifth Column

199 posted on 12/22/2005 5:36:35 PM PST by p23185 (Why isn't attempting to take down a sitting Pres & his Admin considered Sedition?)
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To: Ernest_at_the_Beach

I was unable to read it. Could you give me the gist, please? :-) Thanks


200 posted on 12/22/2005 5:39:53 PM PST by Coop (FR = a lotta talk, but little action)
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