Skip to comments.DEMS DO "THE NSA STRADDLE"
Posted on 02/07/2006 8:15:53 AM PST by CyberAnt
Democrats Praise President Bush's Terrorist Surveillance Program One Minute; Outraged The Next
Dems Try To Have It Every Way On President Bush's Terrorist Surveillance Program:
"[Democrats] Could Pay A Large Price - Though A Political One - If They Do Not Strike The Right Tone In The Debate Over The National Security Agency's Domestic Eavesdropping Program." (Sheryl Gay Stolberg, "Balancing Act By Democrats At Hearing," The New York Times, 2/7/06)
"As They Head Into The 2006 Midterm Elections, Democrats, Eager To Pick Up Congressional Seats, Know They Must Look Tough On National Security Issues." (Sheryl Gay Stolberg, "Balancing Act By Democrats At Hearing," The New York Times, 2/7/06)
"Democrats Are Both Outraged By President Bush's National Security Agency Surveillance Program And Content To See It Continue. They Are At This Incoherent Pass Because Their Reflexive Hostility To The Program Is Tempered By The Dawning Suspicion That They Might Be On The Wrong Side Politically Of Yet Another National-Security Issue - Thus, "The NSA Straddle". (Rich Lowry, Op-Ed, "The NSA Straddle," National Review Online, 1/31/06)
Dems Praise President Bush And His Terrorist Surveillance Program:
Sen. Ted Kennedy (D-MA): "Now, You [Attorney General Gonzales] Make A Very Strong Case In Your Presentation Here About The Authority In Which You Are Acting On. You Talk About The Authorization By The Congress, You Talk About Inherent Power, You Talk About The President Having The Authority And The Power To Do This." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Russ Feingold (D-WI): "[I] Just Want To Read Again What You [Attorney General Alberto Gonzales] Said. 'As The President Has Said, If You Are Talking With Al Qaida, We Want To Know What You're Saying.' Absolutely Right. No One On This Committee, I Think No One In This Body, Believes Anything Other Than That, And I Want To State It As Firmly As I Can." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Feingold: "All Of Us Are Committed To Defeating The Terrorists Who Threaten Our Country, Mr. Attorney General. It Is, Without A Doubt, Our Top Priority." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Patrick Leahy (D-VT): "Every Single Member Of Congress Agrees [The Bush Administration] Should Have The Tools Necessary To Protect The American People." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Leahy: "We All Agree That If You Have Al Qaida Terrorists Calling We Should Be Wiretapping Them." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Charles Schumer (D-NY): "[I] Want The President To Have All The Legal Tools He Needs As We Work Together To Keep Our Nation Safe And Free, Including Wiretapping." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Dems Criticize Terrorist Surveillance Program, Launch Partisan Attacks Against Attorney General Alberto Gonzales:
Sen. Ted Kennedy (D-MA): "This Whole Program Has Been Questioned In Terms Of Its Legality ..." (Sen. Kennedy, Press Conference, 2/6/06)
Sen. Russ Feingold (D-WI): "[I] Do Believe [Your 2005 Confirmation Testimony] Was Materially Misleading. But I Am Even More Concerned About The Credibility Of Your Administration." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Feingold: "You Wanted This Committee And The American People To Think That This Kind Of Program Was Not Going On. But It Was And You Knew That. And I Think That's Unacceptable." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Patrick Leahy (D-VT): "[T]he Bush Administration [Did] Not Seek Broader Legal Authority, It Kept Its Very Existence Of This Illegal Wiretapping Program Completely Secret ..." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Leahy: "[T]he Press Caught You Violating The Statute With This Secret Wiretapping Of Americans Without Warrants." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Some Dems Even Want Bush Administration To Expand Terrorist Surveillance Program:
Sen. Joseph Biden (D-DE): "[I] Don't Understand Why You Would Limit Your Eavesdropping Only To Foreign Conversations ... It's Only Emanating From A Foreign Country, Correct? ... Why Limit It To That?" (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Biden: "Well, The President Said He'd Do Everything Under The Law To Prevent Another 9/11. The Communications That Occurred Within This Country, Not Outside This Country, Which, In Fact, Brought About 9/11 Would Not Be Captured By The President's Efforts Here." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Herb Kohl (D-WI): "Just To Go Back To What Senator Biden ... Referred To About Al Qaida-To-Al Qaida Within The Country, You're Saying We Do Not Get Involved In Those Calls ... To Those Of Us Who Are Listening, That's Incomprehensible." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
Sen. Kohl: "If You Would Go Al Qaida-To-Al Qaida Outside The Country ... But You Would Not Intrude Into Al Qaida-To-Al Qaida Within The Country ... There's Something That Unfathomable About That Remark." (Committee On The Judiciary, U.S. Senate, Hearing, 2/6/06)
I agree with you about Constitutional powers and checks. Why would the FISA court turn down or alter warrants, unless there isn't enough evidence?
I worry about giving the President too much power.
Great, then we don't have anything to worry about.
Are we technically at war?
"I agree with you. If we are intercepting calls from AQ and any of the calls go to the US, we should listen in on that call AND then start listening in on the phone of the American that they called. All I am saying is get a warrant."
Why get a warrant? It's not required by the Constitution when dealing with the enemy in a time of war. Even FISA, which is irrelevant in these cases as it is superceded by the Constitution, allows it with a statutory exception. We have such a statutory exception from Congress passed shortly after 9/11 so everything's hunky dory. So why would a warrant be necessary then? Especially if all it would accomplish would be to ensure that delays are encountered and that the NSA will be unable to listen to certain conversations due to time constraints?
"Are we technically at war?"
I'm not sure what else you would call the "Authorization for Use of Military Force" passed by Congress on September 18, 2001.
I agree. What if it turns out that they intercepted communication of Americans who weren't involved with any enemy activity, and did so without a warrant? Can they blanketly monitor everyone without warrants and then decide who to continue surveillance on?
I assume they are doing that or something similar right now.
50 USC § 1811. Authorization during time of warAttorney General Gonzales made sure to assert that we are not in a state of war, that the AUMF being an authorization us use military force is something different from that.
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
I think the "AUMF results in a 'statutory grant of authority' (or avoids violation of statutory law) for the NSA program" has a number of pitfalls for the administration, but they are making the argument.
"I worry about giving the President too much power."
I worry about previous laws (such as FISA) which have taken TOO much power from the president. Yes, there needs to be checks and balances but the Constitution gives different branches different powers (e.g., Congress has the power to declare war, the President has the power to act as the commander in chief of the military, etc). FISA is likely unconstitutional as it pertains to foreign surveillance in a time of war. Remember, it is merely a law passed by Congress. The Constitution can override it.
"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."
This helps make Gonzalez's point. Clearly Congress recognized the need for warrantless surveillance but surely they didn't think it necessary for only 15 days! Which is why FISA also says is that it shall be the exclusive means of conducting foreign surveillance EXCEPT AS AUTHORIZED BY STATUTE. AUMF is precisely that statute!
"Attorney General Gonzales made sure to assert that we are not in a state of war, that the AUMF being an authorization us use military force is something different from that."
I disagree. In Gonzalez prepared statement from yesterday he asserted we are at war many times. See http://www.usdoj.gov/ag/speeches/2006/ag_speech_060206.html.
Go back to DU. That is not the law. The AG has to certify that they have probable cause before they can start and listening and they they have to file the paperwork and get it approved within 72 hours.
In DU lingo, that means they already have to know what their listening for and who their listening to, and the FISA Court will agree that these people are bad.
Why is that bad or difficult?
Secondly, 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.
But a roving wiretap means -- it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he'd do? He'd get him another phone, particularly with the advent of the cell phones. And so he'd start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on -- roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see? And that didn't make any sense in the post-9/11 era. If we couldn't use a tool that we're using against mobsters on terrorists, something needed to happen.
The Patriot Act changed that. So with court order, law enforcement officials can now use what's called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.
Thirdly, to give you an example of what we're talking about, there's something called delayed notification warrants. Those are very important. I see some people, first responders nodding their heads about what they mean. These are a common tool used to catch mobsters. In other words, it allows people to collect data before everybody is aware of what's going on. It requires a court order. It requires protection under the law. We couldn't use these against terrorists, but we could use against gangs.
We had real problems chasing paper -- following paper trails of people. The law was just such that we could run down a problem for a crooked businessman; we couldn't use the same tools necessary to chase down a terrorist. That doesn't make any sense. And sometimes the use of paper trails and paper will lead local first responders and local officials to a potential terrorist. We're going to have every tool, is what I'm telling you, available for our people who I expect to do their job, and you expect to do their jobs.
Here is the site address of the whole speech
I am not a DU troll, I just want to make sure that the war on terror is fought lawfully, and I have a question about that.
Sooner or later the Dems will get their shorts into such a knot over NSA wiretaps that they will pinch their little teenie weenie testicles and then try to blame Bush for the pain.
That's what Congress wrote into FISA, 15 days, free pass on warrantless electronic surveillance. There are other conditions under which electronic surveillance can be undertaken without a warrant, that do not require an "external enabling statute." 50 USC 1802 describes the conditions for that.
Which is why FISA also says is that it shall be the exclusive means of conducting foreign surveillance EXCEPT AS AUTHORIZED BY STATUTE.
Yep. Gonzales is arguing that the AUMF constitutes specific authorization for some sort of electronic surveillance without a warrant. In other words, that Congress itself has authorized the NSA program by the AUMF. "We're just doing what Congress said we could." A good number of the members of Congress are miffed at that assertion. They take it as an unreasonable extension of the language in the AUMF. Sure, the point can be argued. Any point can be argued. But Gonzales and the President would be smart to hear the "we're miffed" message, and act accordingly.
In Gonzalez prepared statement from yesterday he asserted we are at war many times.
Yes, in a colloquial sense. But if we are technically at war, then 50 USC 1811 would kick in, and we are way past the 15 days specified therein.
GONZALES: It's hard to say, Senator, because whether it's 24 or 72, whatever, I have got to make a determination under the law that at the time I grant emergency authorization, that all the requirements of FISA are met. I think General Hayden said it best yesterday: This is not a 72-hour sort of hall pass.
I've got to know when I grant that authorization, whether I then have 24 or 72 hours to submit a written application to the court, I've got to know at the time I say, "Yes, go forward," that all the requirements of FISA are met. That's the problem.
If I could just also make one final point.
BROWNBACK: Fair enough.
GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.
I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.
That's what Congress wrote into FISA, 15 days, free pass on warrantless electronic surveillance. And what about after that?
"The Conferees intend that this [15-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency.... The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter."Since Gonzales is using the "plain language" argument quite liberally, what does the plain language, "allow time for consideration of any amendment to this act" mean? Does it mean that the conferees expected FISA ("this act") to be amended in the event of a wartime emergency?
H.R. Conf. Rep. No. 95-1720, at 34 (1978).
Here is what Gonzales says about the so=called "plain language" above.
Congress expected that it would revisit the issue in light of events and likely would enact a special authorization during that 15-day period. H.R. Conf. Rep. No. 95-1720, at 34. That is exactly what happened three days after the attacks of September 11th, when Congress passed the AUMF, authorizing the President to employ all necessary and appropriate incidents of military force including the use of communications intelligence activities targeted at the enemy.He morphed "amendment to this act" into "enact a special authorization." So, does Gonzales mean for "amendment to this act" and "enact a special authorization" to be equivalent? He expressed unequivocally, more than once, that he is not arguing that the AUMF (special authorization) constitutes amendment to FISA.
GONZALES: And I know today there's going to be some discussion about whether or not we should amend FISA.The only point I am making is that the "AUMF constitutes statutory authorization" argument is a lame argument.
I don't know that FISA needs to be amended per se. Because when you think about it, FISA covers much more than international surveillance. It exists even in the peacetime.
And so when you're talking about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable.
And so that's one of the dangers of trying to seek an amendment to FISA is that there are certain parts of FISA that I think provide good protections. And to make an amendment to FISA in order to allow the activities the president has authorized, I'm concerned will jeopardize this program. ...
GONZALES: Well, Senator, I agree with you: We are a nation of laws. And we do believe we are following the law. And we do believe that the Constitution allows the president of the United States to engage in this kind of surveillance.
We also believe the authorization to use military force represents a supplemental grant of authority by the Congress to engage in this kind of surveillance totally consistent with FISA.
If you study carefully the white paper that we've submitted, we're not arguing that somehow FISA was amended or that we're somehow overriding FISA. That's not what we're talking about here. ...
GONZALES: Senator, it is not in contravention of the FISA law. We believe the authorization to use military force is the kind of congressional action that the FISA law anticipated.
It has never been our position that somehow the AUMF amended FISA. It's never been our position that somehow FISA has been overridden. Quite the contrary: We believe that the president's authorizations are fully consistent with the provisions of FISA.
"Ahem, you spoke of need for warrants. A *Judge* gives a warrant, not the AG."
"Okay, fine. Call the judge and get a warrant. Police do it all the time."
This is not the police, this is our intelligence services.
This is not a crime investigation, this is a war we are fighting.
And the problem has been explained to you:
Judge: "Who is the suspect?"
NSA: "We dont know. the computer profiles it as suspect based on our AI program. we just have a call from Islamabad to Newark.
Judge: "what crime has been commited."
NSA: "None. A future crime. We are trying to prevent the next 9/11."
Judge: No known suspect, no known crime ... what do you want me to do again?
When we broke the Jap code and used it to win the Battle of Midway, we didnt get a warrant for spying.
Was that wrong???
"What if it turns out that they intercepted communication of Americans who weren't involved with any enemy activity, and did so without a warrant?"
They intercepted my kids paper scissors at an airport,
and we werent terrorists. I didnt get bent out of shape about it, but taking off your belts and shoes and getting searched at the airport is a bigger intrusion than having a call to Pakistan listened to.
And frankly the latter is far far far more important to the war on terror.
Of course not. Were Japanese agents calling spies in the USA? Probably, and I'm sure we intercepted some of them. Please also remember that we put Japanese nationals in detention camps, legally. Why haven't we done that to Muslims here today? Do you think that would be legal now??
There is no ultimate ruling on the constitutional muster of the detention order.
The court expressly avoided the issue of internment in Korematsu, and deftly avoided it in Endo.
Sorry, not just Japanese nationals, but US citizens of Japanese descent.
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