Discussion:
Gonzales Crushes Arguments Against NSA's International Surveillance
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Pookie
2006-01-24 20:21:12 UTC
Permalink
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance

This morning, Attorney General Alberto Gonzales participated in a debate at
Georgetown University's law school on the NSA's international surveillance
program. Gonzales did an excellent job of spelling out the reasons why the
program is not only necessary, but legal. You can read Gonzales' prepared
text here; what follows are some key excerpts:

A word of caution here. This remains a highly classified program. It
remains an important tool in protecting America. So my remarks today speak
only to those activities confirmed publicly by the President, and not to
other purported activities described in press reports. These press accounts
are in almost every case, in one way or another, misinformed, confusing, or
wrong.
No surprise there.

I've noticed that through all of the noise on this topic, very few have
asked that the terrorist surveillance program be stopped. The American
people are, however, asking two important questions: Is this program
necessary? And is it lawful? The answer to each is yes.
An important point: very few of the progam's liberal critics are actually
willing to take responsibility for calling for the termination of the NSA
international surveillance program. They know what would happen if the
program were in fact terminated, and an attack ensued.

The conflict against al Qaeda is, in fundamental respects, a war of
information. We cannot build walls thick enough, fences high enough, or
systems strong enough to keep our enemies out of our open and welcoming
country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we
must understand better who they are and what they're doing - we have to
collect more dots, if you will, before we can "connect the dots." This
program to surveil al Qaeda is a necessary weapon as we fight to detect and
prevent another attack before it happens.
Didn't that "collect the dots" theme originate on the internet? I think so.

[F]rom the outset, the Justice Department thoroughly examined this program
against al Qaeda, and concluded that the President is acting within his
power in authorizing it. These activities are lawful. The Justice Department
is not alone in reaching that conclusion. Career lawyers at the NSA and the
NSA's Inspector General have been intimately involved in reviewing the
program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the President's
constitutional authorities. *** It has long been recognized that the
President's constitutional powers include the authority to conduct
warrantless surveillance aimed at detecting and preventing armed attacks on
the United States. Presidents have uniformly relied on their inherent power
to gather foreign intelligence for reasons both diplomatic and military, and
the federal courts have consistently upheld this longstanding practice.

If this is the case in ordinary times, it is even more so in the present
circumstances of our armed conflict with al Qaeda and its allies.


As I've said many times, I think this is the key point that must be made
again and again. It is supported by at least five federal appellate court
decisions. How many such decisions are there on the other side? Zero.
Gonzales continues:

The President's authority to take military action-including the use of
communications intelligence targeted at the enemy-does not come merely from
his inherent constitutional powers. It comes directly from Congress as well.
He goes on to discuss the Authorization for the Use of Military Force and
the Hamdi decision. Most of that discussion is good, but he stumbles by
referring to Justice Jackson's confused concurrence in the Youngstown steel
mill seizure case. When I have time, I'm going to write a fuller explanation
of why Jackson's tripartite theory is not just unhelpful, but wrong.

Gonzales supplies some historical perspective:

[A]s long as electronic communications have existed, the United States has
conducted surveillance of those communications during wartime-all without
judicial warrant. In the Civil War, for example, telegraph wiretapping was
common, and provided important intelligence for both sides. In World War I,
President Wilson ordered the interception of all cable communications
between the United States and Europe; he inferred the authority to do so
from the Constitution and from a general congressional authorization to use
military force that did not mention anything about such surveillance. So too
in World War II; the day after the attack on Pearl Harbor, President
Roosevelt authorized the interception of all communications traffic into and
out of the United States. The terrorist surveillance program, of course, is
far more focused, since it involves only the interception of international
communications that are linked to al Qaeda or its allies.
Gonzales continues with the best discussion of FISA I've seen by an
administration spokesman:

Some contend that even if the President has constitutional authority to
engage in the surveillance of our enemy in a time of war, that authority has
been constrained by Congress with the passage in 1978 of the Foreign
Intelligence Surveillance Act. *** For purposes of this discussion, because
I cannot discuss operational details, I'm going to assume here that
intercepts of al Qaeda communications under the terrorist surveillance
program fall within the definition of "electronic surveillance" in FISA.
Interesting. As I've said before, I assume that this must be true, or else
the administration would make the point that FISA has no application to the
international surveillance in question. Even saying that much, however,
could tip the terrorists off as to what categories of communications are
being intercepted and whether the NSA is using facilities located abroad or
in the U.S., distinctions on which FISA's definition of "electronic
surveillance" can turn.

The FISA Court of Review, the special court of appeals charged with
hearing appeals of decisions by the FISA court, stated in 2002 that, quote,
"[w]e take for granted that the President does have that [inherent]
authority" and, "assuming that is so, FISA could not encroach on the
President's constitutional power." We do not have to decide whether, when we
are at war and there is a vital need for the terrorist surveillance program,
FISA unconstitutionally encroaches - or places an unconstitutional
constraint upon - the President's Article II powers. We can avoid that tough
question because Congress gave the President the Force Resolution, and that
statute removes any possible tension between what Congress said in 1978 in
FISA and the President's constitutional authority today.
I agree with that last point, but I also think it is vital to insist that
Congress has no power to restrict the President's constitutional authority,
any more than the President can detract from Congress's constitutional
powers by issuing an executive order.

Gonzales makes several cogent points about FISA; I haven't seen this one
before:

You may have heard about the provision of FISA that allows the President
to conduct warrantless surveillance for 15 days following a declaration of
war. That provision shows that Congress knew that warrantless surveillance
would be essential in wartime. But no one could reasonably suggest that all
such critical military surveillance in a time of war would end after only 15
days.
Instead, the legislative history of this provision makes it clear that
Congress elected NOT TO DECIDE how surveillance might need to be conducted
in the event of a particular armed conflict. Congress expected that it would
revisit the issue in light of events and likely would enact a special
authorization during that 15-day period. That is exactly what happened three
days after the attacks of 9/11, when Congress passed the Force Resolution,
permitting the President to exercise "all necessary and appropriate"
incidents of military force.

Thus, it is simply not the case that Congress in 1978 anticipated all the
ways that the President might need to act in times of armed conflict to
protect the United States. FISA, by its own terms, was not intended to be
the last word on these critical issues.


Gonzales makes the familiar argument that the Authorization for the Use of
Military Force constitutes an "authoriz[ation] by statute" that makes the
current wartime surveillance an exception to FISA. He goes on to address the
72-hour emergency provision of FISA, on which leftists have put so much
weight:

Some have pointed to the provision in FISA that allows for so-called
"emergency authorizations" of surveillance for 72 hours without a court
order. There's a serious misconception about these emergency authorizations.
People should know that we do not approve emergency authorizations without
knowing that we will receive court approval within 72 hours. FISA requires
the Attorney General to determine IN ADVANCE that a FISA application for
that particular intercept will be fully supported and will be approved by
the court before an emergency authorization may be granted. That review
process can take precious time.
Thus, to initiate surveillance under a FISA emergency authorization, it is
not enough to rely on the best judgment of our intelligence officers alone.
Those intelligence officers would have to get the sign-off of lawyers at the
NSA that all provisions of FISA have been satisfied, then lawyers in the
Department of Justice would have to be similarly satisfied, and finally as
Attorney General, I would have to be satisfied that the search meets the
requirements of FISA. And we would have to be prepared to follow up with a
full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own
right: The work of several lawyers; the preparation of a legal brief and
supporting declarations; the approval of a Cabinet-level officer; a
certification from the National Security Adviser, the Director of the FBI,
or another designated Senate-confirmed officer; and, finally, of course, the
approval of an Article III judge.


So the FISA "emergency" process would require days, at a minimum, and
perhaps weeks, to complete; and it must be completed before surveillance can
begin. Thinking about this reminded me of the fact that the NSA actually
picked up two electronic communications on September 10, 2001, which
countless liberal web sites have pointed to as evidence of malfeasance or
worse on the part of the administration. Here is how General Michael Hayden
described those two intercepts in his testimony before the Senate
Intelligence Committee:

There is one other area in our pre-September 11th performance that has
attracted a great deal of public attention. In the hours just prior to the
attacks, NSA did obtain two pieces of information suggesting that
individuals with terrorist connections believed something significant would
happen on September 11th. This information did not specifically indicate an
attack would take place on that day. It did not contain any details on the
time, place, or nature of what might happen. It also contained no suggestion
of airplanes being used as weapons. Because of the processing involved, we
were unable to report the information until September 12th.
Now, consider this. What would happen if the President had not authorized
the international surveillance program after September 11, and instead had
relied solely on FISA, and the following events were to take place: the NSA
obtains information that an al Qaeda operative overseas is planning a
nuclear attack in conjunction with a cell inside the United States. The NSA
decides to intercept all communications between the overseas al Qaeda
operative and individuals located inside the U.S.; but first, it must obtain
multiple layers of approval from lawyers and assemble all of the information
needed to complete a FISA application. It begins that process, but the next
day, while NSA is still working on getting the necessary approvals, a
nuclear device levels much of Washington, D.C.

Suppose that disaster had happened a year ago. How do you think the
surviving Democrats would have responded? Do you think they would have
praised the administration for refusing to go outside the bounds of FISA's
procedures? Or do you think they would have denounced President Bush and his
administration as the most irresponsible, feckless and ineffective officials
to control the executive branch since James Buchanan?

I think the latter. And you know what? They would have had a point.


http://powerlineblog.com/archives/012926.php
GW Chimpzilla
2006-01-24 20:29:36 UTC
Permalink
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
Quaint, isn't it?
Jack Wills
2006-01-24 20:35:58 UTC
Permalink
Post by GW Chimpzilla
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
Quaint, isn't it?
Wait, just to keep track, which side is Gonzales on for this issue?
GW Chimpzilla
2006-01-24 20:39:13 UTC
Permalink
Post by Jack Wills
Post by GW Chimpzilla
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
Quaint, isn't it?
Wait, just to keep track, which side is Gonzales on for this issue?
"In my judgment, this new paradigm renders obsolete Geneva's strict limitations
on questioning of enemy prisoners and renders quaint some of its provisions."
--Gonzales
Jennie
2006-01-24 21:21:23 UTC
Permalink
Gonsales is trying to keep on the good side of his boss...i understand
that...I want a supreme court ruling...Gonsales has not choose to keep his
job...
--
Bill
Post by GW Chimpzilla
Post by Jack Wills
Post by GW Chimpzilla
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
Quaint, isn't it?
Wait, just to keep track, which side is Gonzales on for this issue?
"In my judgment, this new paradigm renders obsolete Geneva's strict limitations
on questioning of enemy prisoners and renders quaint some of its provisions."
--Gonzales
DH
2006-01-24 20:54:21 UTC
Permalink
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
This morning, Attorney General Alberto Gonzales participated in a debate at
Georgetown University's law school on the NSA's international surveillance
program. Gonzales did an excellent job of spelling out the reasons why the
program is not only necessary, but legal. You can read Gonzales' prepared
A word of caution here. This remains a highly classified program. It
remains an important tool in protecting America. So my remarks today speak
only to those activities confirmed publicly by the President, and not to
other purported activities described in press reports. These press accounts
are in almost every case, in one way or another, misinformed, confusing, or
wrong.
No surprise there.
I like how he starts with a joke. We're keeping this hush-hush because the
terrorists can not possibly imagine we're tapping their phones.
whome?
2006-01-24 22:19:08 UTC
Permalink
Post by Pookie
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
This morning, Attorney General Alberto Gonzales participated in a debate
at
Post by Pookie
Georgetown University's law school on the NSA's international surveillance
program. Gonzales did an excellent job of spelling out the reasons why the
program is not only necessary, but legal. You can read Gonzales' prepared
A word of caution here. This remains a highly classified program. It
remains an important tool in protecting America. So my remarks today speak
only to those activities confirmed publicly by the President, and not to
other purported activities described in press reports. These press
accounts
Post by Pookie
are in almost every case, in one way or another, misinformed, confusing,
or
Post by Pookie
wrong.
No surprise there.
I like how he starts with a joke. We're keeping this hush-hush because the
terrorists can not possibly imagine we're tapping their phones.
His general position is best expressed through his own words:

"In my judgment, this new paradigm renders obsolete Geneva's strict
limitations on questioning of enemy prisoners and renders quaint some of
its provisions."
--Gonzales
Jim E
2006-01-24 22:49:24 UTC
Permalink
Post by GW Chimpzilla
Post by Pookie
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
This morning, Attorney General Alberto Gonzales participated in a debate
at
Post by Pookie
Georgetown University's law school on the NSA's international surveillance
program. Gonzales did an excellent job of spelling out the reasons why the
program is not only necessary, but legal. You can read Gonzales' prepared
A word of caution here. This remains a highly classified program. It
remains an important tool in protecting America. So my remarks today speak
only to those activities confirmed publicly by the President, and not to
other purported activities described in press reports. These press
accounts
Post by Pookie
are in almost every case, in one way or another, misinformed, confusing,
or
Post by Pookie
wrong.
No surprise there.
I like how he starts with a joke. We're keeping this hush-hush because the
terrorists can not possibly imagine we're tapping their phones.
"In my judgment, this new paradigm renders obsolete Geneva's strict
limitations on questioning of enemy prisoners and renders quaint some of
its provisions."
--Gonzales
The GC only works if both sides comply.
If one side does not, the other side has no obligation.


Jim E
Tim
2006-01-25 01:34:33 UTC
Permalink
Post by Jim E
Post by GW Chimpzilla
Post by Pookie
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
This morning, Attorney General Alberto Gonzales participated in a debate
at
Post by Pookie
Georgetown University's law school on the NSA's international surveillance
program. Gonzales did an excellent job of spelling out the reasons why the
program is not only necessary, but legal. You can read Gonzales' prepared
A word of caution here. This remains a highly classified program. It
remains an important tool in protecting America. So my remarks today speak
only to those activities confirmed publicly by the President, and not to
other purported activities described in press reports. These press
accounts
Post by Pookie
are in almost every case, in one way or another, misinformed, confusing,
or
Post by Pookie
wrong.
No surprise there.
I like how he starts with a joke. We're keeping this hush-hush because the
terrorists can not possibly imagine we're tapping their phones.
"In my judgment, this new paradigm renders obsolete Geneva's strict
limitations on questioning of enemy prisoners and renders quaint some of
its provisions."
--Gonzales
The GC only works if both sides comply.
If one side does not, the other side has no obligation.
Jim E
Jim, I'm all for Al and his goons to listen to your phone all day long.

I've come to the conclusion that there are two types of Republicans ...
selfish, power and money-hungry bastards, and really stupid ones (and
the occasional combination of the two).

Later,

Tim
--
ÐÏࡱá
whome?
2006-01-25 16:37:03 UTC
Permalink
Post by Jim E
Post by GW Chimpzilla
"In my judgment, this new paradigm renders obsolete Geneva's strict
limitations on questioning of enemy prisoners and renders quaint some of
its provisions."
--Gonzales
The GC only works if both sides comply.
If one side does not, the other side has no obligation.
Jim E
It would also be useful to his arguments if Congress actually declared
war rather than shirk their Constitutional responsibilities not to
endanger re-election. There is no war even now.
Jim E
2006-01-27 03:10:47 UTC
Permalink
Post by Jim E
Post by GW Chimpzilla
"In my judgment, this new paradigm renders obsolete Geneva's strict
limitations on questioning of enemy prisoners and renders quaint some of
its provisions."
--Gonzales
The GC only works if both sides comply.
If one side does not, the other side has no obligation.
Jim E
It would also be useful to his arguments if Congress actually declared war
rather than shirk their Constitutional responsibilities not to endanger
re-election. There is no war even now.
You couldn't find enough guts in the entire congress to fill a chicken
carcass.



Jim E

John
2006-01-24 22:13:31 UTC
Permalink
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
On what planet? Sounds like he was poorly received by the law school
crowd.
Voter
2006-01-24 22:19:46 UTC
Permalink
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
http://powerlineblog.com/archives/012926.php
Once again, a simple search provided the evidence needed that your post is
once again nothing more than sloppy and/or desperate "journalism" from a
right wing source.

Most of the article is simply interpretation of the FISA Laws and the
Constitutional powers of the president, all of which are easily rebuffed.

Bat, as usual, the critical quote, this time being:

"...We take for granted that the President does have that authority and,
assuming that is so, (in the Truong case)FISA could not encroach on the
President?s constitutional power..."
U.S. v. Truong

has been flying around right wing blogs and right wing media (it appeared
in th WSJ and Chicago Tribune), and, as usual, out of context and with no
link to the original source.

And for good reason.

Because providing the link would have brought one to these very important
first ten words of the first line.

Here they are:

? We reiterate that Truong dealt with a pre-FISA surveillance..."

Pre-FISA

The quote in context:

? We reiterate that Truong dealt with a pre-FISA surveillance based on the
President?s constitutional responsibility to conduct the foreign affairs of
the United States. Although Truong suggested the line it drew was a
constitutional minimum that would apply to a FISA surveillance, it had no
occasion to consider the application of the statute carefully. The Truong
court, as did all the other courts to have decided the issue(before it),
held that the President did have inherent authority to conduct warrantless
searches to obtain foreign intelligence information.(because the laws
pre-FISA were ambiguous) It was incumbent upon the court(in Truong),
therefore, to determine the boundaries of that constitutional authority in
the case before it. (In the Truong case)We take for granted that the
President does have that authority and, assuming that is so, (in the Truong
case)FISA could not encroach on the President?s constitutional power. The
question before us (now, in 2002, post FISA, post PATRIOT Act) is the
reverse, does FISA amplify the President?s power by providing a mechanism
that at least approaches a classic warrant and which therefore supports the
government?s contention that FISA searches are constitutionally
reasonable.?

Furthermore, the case does not deal with the Presidents authority to
conduct warrantless surveillance, but rather:

...The court?s decision from which the government appeals imposed certain
requirements and limitations accompanying an order authorizing electronic
surveillance of an ?agent of a foreign power? as defined in FISA. There is
no disagreement between the government and the FISA court as to the
propriety of the electronic surveillance; the court found that the
government had shown probable cause to believe that the target is an agent
of a foreign power and otherwise met the basic requirements of FISA. The
government?s application for a surveillance order contains detailed
information to support its contention that the target, who is a United
States person, is aiding, abetting, or conspiring with others in
international terrorism. [approx. 1 page deleted]3 The FISA court
authorized the surveillance, but imposed certain restrictions, which the
government contends are neither mandated nor authorized by FISA.
Particularly, the court ordered thatlaw enforcement officials shall not
make recommendations to intelligence officials concerning the initiation,
operation, continuation or expansion of FISA searches or surveillances.
Additionally, the FBI and the Criminal Division [of the Department of
Justice] shall ensure that law enforcement officials do not direct or
control the use of the FISA procedures to enhance criminal prosecution, and
that advice intended to preserve the option of a criminal prosecution does
not inadvertently result in the Criminal Division?s directing or
controlling the investigation using FISA searches and surveillances toward
law enforcement objectives.
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

==================================

Maybe in the eyes of you right wingers Gonzalez "Crushes Arguments Against
NSA's International Surveillance", but not in the eyes of the law.


The 2002 Appeals Court Myth

A column in this morning?s Chicago Tribune by John Schmidt argues that
Bush?s secret domestic surveillance program was legal. (Byron York posted a
portion of the piece on the National Review website under the title ?READ
THIS IMPORTANT ARTICLE?) It features this selectively edited excerpt from a
2002 decision by the FISA appeals court:

?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.?

Actually, the quote doesn?t begin with the word ?all?; it begins ?The
Truong court, as did all the other courts?? The Truong case was decided in
1978 ? the same year FISA was passed ? and did not deal with the FISA law.
As the court noted right before the excerpt, ?Truong dealt with a pre-FISA
surveillance? it had no occasion to consider the application of the
statute?? The Truong case dealt with the President?s power in the absence
of a congressional statute.

This is critically important because FISA specifically prohibits the
warrantless domestic searches that the President authorized. As Chief
Justice Roberts explained in his recent confirmation hearings, referrencing
the landmark Supreme Court case Youngstown Sheet, ?where the president is
acting contrary to congressional authority?the president?s authority is at
its lowest ebb.?

The article also conveniently omits the two sentences after the excerpt:

It was incumbent upon the [Truong] court, therefore, to determine the
boundaries of that constitutional authority in the case before it. 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. The
question before us is the reverse?

All the court is saying here is that whether FISA imposes limits on the
President?s authority is not an issue in this case. It was an issue in the
Troung case but, as the court explains, ?[T]he question before us is the
reverse.?
http://thinkprogress.org/2005/12/21/appeals-court-myth/
Captain Compassion
2006-01-25 04:56:28 UTC
Permalink
Post by Voter
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
http://powerlineblog.com/archives/012926.php
Once again, a simple search provided the evidence needed that your post is
once again nothing more than sloppy and/or desperate "journalism" from a
right wing source.
Most of the article is simply interpretation of the FISA Laws and the
Constitutional powers of the president, all of which are easily rebuffed.
"...We take for granted that the President does have that authority and,
assuming that is so, (in the Truong case)FISA could not encroach on the
President?s constitutional power..."
U.S. v. Truong
has been flying around right wing blogs and right wing media (it appeared
in th WSJ and Chicago Tribune), and, as usual, out of context and with no
link to the original source.
And for good reason.
Because providing the link would have brought one to these very important
first ten words of the first line.
? We reiterate that Truong dealt with a pre-FISA surveillance..."
Pre-FISA
? We reiterate that Truong dealt with a pre-FISA surveillance based on the
President?s constitutional responsibility to conduct the foreign affairs of
the United States. Although Truong suggested the line it drew was a
constitutional minimum that would apply to a FISA surveillance, it had no
occasion to consider the application of the statute carefully. The Truong
court, as did all the other courts to have decided the issue(before it),
held that the President did have inherent authority to conduct warrantless
searches to obtain foreign intelligence information.(because the laws
pre-FISA were ambiguous) It was incumbent upon the court(in Truong),
therefore, to determine the boundaries of that constitutional authority in
the case before it. (In the Truong case)We take for granted that the
President does have that authority and, assuming that is so, (in the Truong
case)FISA could not encroach on the President?s constitutional power. The
question before us (now, in 2002, post FISA, post PATRIOT Act) is the
reverse, does FISA amplify the President?s power by providing a mechanism
that at least approaches a classic warrant and which therefore supports the
government?s contention that FISA searches are constitutionally
reasonable.?
Furthermore, the case does not deal with the Presidents authority to
...The court?s decision from which the government appeals imposed certain
requirements and limitations accompanying an order authorizing electronic
surveillance of an ?agent of a foreign power? as defined in FISA. There is
no disagreement between the government and the FISA court as to the
propriety of the electronic surveillance; the court found that the
government had shown probable cause to believe that the target is an agent
of a foreign power and otherwise met the basic requirements of FISA. The
government?s application for a surveillance order contains detailed
information to support its contention that the target, who is a United
States person, is aiding, abetting, or conspiring with others in
international terrorism. [approx. 1 page deleted]3 The FISA court
authorized the surveillance, but imposed certain restrictions, which the
government contends are neither mandated nor authorized by FISA.
Particularly, the court ordered thatlaw enforcement officials shall not
make recommendations to intelligence officials concerning the initiation,
operation, continuation or expansion of FISA searches or surveillances.
Additionally, the FBI and the Criminal Division [of the Department of
Justice] shall ensure that law enforcement officials do not direct or
control the use of the FISA procedures to enhance criminal prosecution, and
that advice intended to preserve the option of a criminal prosecution does
not inadvertently result in the Criminal Division?s directing or
controlling the investigation using FISA searches and surveillances toward
law enforcement objectives.
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
==================================
Maybe in the eyes of you right wingers Gonzalez "Crushes Arguments Against
NSA's International Surveillance", but not in the eyes of the law.
The 2002 Appeals Court Myth
A column in this morning?s Chicago Tribune by John Schmidt argues that
Bush?s secret domestic surveillance program was legal. (Byron York posted a
portion of the piece on the National Review website under the title ?READ
THIS IMPORTANT ARTICLE?) It features this selectively edited excerpt from a
?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.?
Actually, the quote doesn?t begin with the word ?all?; it begins ?The
Truong court, as did all the other courts?? The Truong case was decided in
1978 ? the same year FISA was passed ? and did not deal with the FISA law.
As the court noted right before the excerpt, ?Truong dealt with a pre-FISA
surveillance? it had no occasion to consider the application of the
statute?? The Truong case dealt with the President?s power in the absence
of a congressional statute.
This is critically important because FISA specifically prohibits the
warrantless domestic searches that the President authorized. As Chief
Justice Roberts explained in his recent confirmation hearings, referrencing
the landmark Supreme Court case Youngstown Sheet, ?where the president is
acting contrary to congressional authority?the president?s authority is at
its lowest ebb.?
It was incumbent upon the [Truong] court, therefore, to determine the
boundaries of that constitutional authority in the case before it. 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. The
question before us is the reverse?
All the court is saying here is that whether FISA imposes limits on the
President?s authority is not an issue in this case. It was an issue in the
Troung case but, as the court explains, ?[T]he question before us is the
reverse.?
http://thinkprogress.org/2005/12/21/appeals-court-myth/
"In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and
United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts
upheld warrantless wiretaps. In Brown, a US citizen's conversation was
captured by a wiretap authorized by the Attorney General for foreign
intelligence purposes. In Butenko, the court held a wiretap valid if
the primary purpose was for gathering foreign intelligence
information."
http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act

If the POTUS had the right to warantless wire taps under Article II
for the gathering of foreign intelligence information prior to FISA.
How could a mere act of congress take this presidential power away?
--
"The president and I cannot prevent certain politicians from losing
their memory, or their backbone, but we're not going to sit by and
let them rewrite history." -- Dick Cheney 11/16/2005

"War is God's way of teaching Americans geography" -- Ambrose Bierce

"America is a vast conspiracy to make you happy." -- John Updike

"Long term commitment in relationships is only necessary because it takes
so damn long to raise children. Marriage may well be some kind of trick
to keep the males around beyond sexual satiation." -- Captain Compassion

"Progress is the increasing control of the environment by life.
--Will Durant

Joseph R. Darancette
***@NOSPAMverizon.net
Josh Rosenbluth
2006-01-25 13:23:30 UTC
Permalink
Post by Captain Compassion
"In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and
United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts
upheld warrantless wiretaps. In Brown, a US citizen's conversation was
captured by a wiretap authorized by the Attorney General for foreign
intelligence purposes. In Butenko, the court held a wiretap valid if
the primary purpose was for gathering foreign intelligence
information."
http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act
If the POTUS had the right to warantless wire taps under Article II
for the gathering of foreign intelligence information prior to FISA.
How could a mere act of congress take this presidential power away?
All that Brown and Butenko found was that POTUS did not violate the
Fourth Amendment because of his inherent powers. Those decisions do
not address the issue of whether those powers are exclusive to the
executive branch.

Josh Rosenbluth
a***@yahoo.com
2006-01-26 04:50:14 UTC
Permalink
Post by Voter
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
http://powerlineblog.com/archives/012926.php
Once again, a simple search provided the evidence needed that your post is
once again nothing more than sloppy and/or desperate "journalism" from a
right wing source.
Most of the article is simply interpretation of the FISA Laws and the
Constitutional powers of the president, all of which are easily rebuffed.
(cut)
Yeah, they're easily REBUFFED, usually by name calling.
Try REBUTTING the argument. - A. McIntire
Sheldon Levine
2006-01-25 01:08:16 UTC
Permalink
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
Oh My God:

http://glenngreenwald.blogspot.com/2006/01/administrations-new-fisa-defense-
is.html
Liman Jig Tacker
2006-01-25 01:33:10 UTC
Permalink
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
99% of the crossposts come from Pookie and the bellsouth O&A pests.

Send an email with the headers of the abusive post to the appropriate abuse
address. It really does work, but we need more than one or two people
complaining. If they get five or six complaints their ISP's will pull their
accounts.

Pookie's Terms of Service

The user is responsible for determining the policies of a given
group/room before posting to it.

Additionally, users are not permitted to:
Cross-post the same or substantially similar message excessively - in
Cablevision's sole opinion.

Copy a complete Pookie cross posted message with headers and email it to

***@cv.net

This is the only way to get rid of this O&A pest.



Tired of off topic posts? Report these spammers to their ISP's
Scotius
2006-01-25 05:26:23 UTC
Permalink
On Tue, 24 Jan 2006 15:21:12 -0500, "Pookie"
Post by Pookie
January 24, 2006
Gonzales Crushes Arguments Against NSA's International Surveillance
This morning, Attorney General Alberto Gonzales participated in a debate at
Georgetown University's law school on the NSA's international surveillance
program. Gonzales did an excellent job of spelling out the reasons why the
program is not only necessary, but legal. You can read Gonzales' prepared
A word of caution here. This remains a highly classified program. It
remains an important tool in protecting America. So my remarks today speak
only to those activities confirmed publicly by the President, and not to
other purported activities described in press reports. These press accounts
are in almost every case, in one way or another, misinformed, confusing, or
wrong.
No surprise there.
I've noticed that through all of the noise on this topic, very few have
asked that the terrorist surveillance program be stopped. The American
people are, however, asking two important questions: Is this program
necessary? And is it lawful? The answer to each is yes.
An important point: very few of the progam's liberal critics are actually
willing to take responsibility for calling for the termination of the NSA
international surveillance program. They know what would happen if the
program were in fact terminated, and an attack ensued.
The conflict against al Qaeda is, in fundamental respects, a war of
information. We cannot build walls thick enough, fences high enough, or
systems strong enough to keep our enemies out of our open and welcoming
country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we
must understand better who they are and what they're doing - we have to
collect more dots, if you will, before we can "connect the dots." This
program to surveil al Qaeda is a necessary weapon as we fight to detect and
prevent another attack before it happens.
Didn't that "collect the dots" theme originate on the internet? I think so.
[F]rom the outset, the Justice Department thoroughly examined this program
against al Qaeda, and concluded that the President is acting within his
power in authorizing it. These activities are lawful. The Justice Department
is not alone in reaching that conclusion. Career lawyers at the NSA and the
NSA's Inspector General have been intimately involved in reviewing the
program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the President's
constitutional authorities. *** It has long been recognized that the
President's constitutional powers include the authority to conduct
warrantless surveillance aimed at detecting and preventing armed attacks on
the United States. Presidents have uniformly relied on their inherent power
to gather foreign intelligence for reasons both diplomatic and military, and
the federal courts have consistently upheld this longstanding practice.
If this is the case in ordinary times, it is even more so in the present
circumstances of our armed conflict with al Qaeda and its allies.
As I've said many times, I think this is the key point that must be made
again and again. It is supported by at least five federal appellate court
decisions. How many such decisions are there on the other side? Zero.
The President's authority to take military action-including the use of
communications intelligence targeted at the enemy-does not come merely from
his inherent constitutional powers. It comes directly from Congress as well.
He goes on to discuss the Authorization for the Use of Military Force and
the Hamdi decision. Most of that discussion is good, but he stumbles by
referring to Justice Jackson's confused concurrence in the Youngstown steel
mill seizure case. When I have time, I'm going to write a fuller explanation
of why Jackson's tripartite theory is not just unhelpful, but wrong.
[A]s long as electronic communications have existed, the United States has
conducted surveillance of those communications during wartime-all without
judicial warrant. In the Civil War, for example, telegraph wiretapping was
common, and provided important intelligence for both sides. In World War I,
President Wilson ordered the interception of all cable communications
between the United States and Europe; he inferred the authority to do so
from the Constitution and from a general congressional authorization to use
military force that did not mention anything about such surveillance. So too
in World War II; the day after the attack on Pearl Harbor, President
Roosevelt authorized the interception of all communications traffic into and
out of the United States. The terrorist surveillance program, of course, is
far more focused, since it involves only the interception of international
communications that are linked to al Qaeda or its allies.
Gonzales continues with the best discussion of FISA I've seen by an
Some contend that even if the President has constitutional authority to
engage in the surveillance of our enemy in a time of war, that authority has
been constrained by Congress with the passage in 1978 of the Foreign
Intelligence Surveillance Act. *** For purposes of this discussion, because
I cannot discuss operational details, I'm going to assume here that
intercepts of al Qaeda communications under the terrorist surveillance
program fall within the definition of "electronic surveillance" in FISA.
Interesting. As I've said before, I assume that this must be true, or else
the administration would make the point that FISA has no application to the
international surveillance in question. Even saying that much, however,
could tip the terrorists off as to what categories of communications are
being intercepted and whether the NSA is using facilities located abroad or
in the U.S., distinctions on which FISA's definition of "electronic
surveillance" can turn.
The FISA Court of Review, the special court of appeals charged with
hearing appeals of decisions by the FISA court, stated in 2002 that, quote,
"[w]e take for granted that the President does have that [inherent]
authority" and, "assuming that is so, FISA could not encroach on the
President's constitutional power." We do not have to decide whether, when we
are at war and there is a vital need for the terrorist surveillance program,
FISA unconstitutionally encroaches - or places an unconstitutional
constraint upon - the President's Article II powers. We can avoid that tough
question because Congress gave the President the Force Resolution, and that
statute removes any possible tension between what Congress said in 1978 in
FISA and the President's constitutional authority today.
I agree with that last point, but I also think it is vital to insist that
Congress has no power to restrict the President's constitutional authority,
any more than the President can detract from Congress's constitutional
powers by issuing an executive order.
Gonzales makes several cogent points about FISA; I haven't seen this one
You may have heard about the provision of FISA that allows the President
to conduct warrantless surveillance for 15 days following a declaration of
war. That provision shows that Congress knew that warrantless surveillance
would be essential in wartime. But no one could reasonably suggest that all
such critical military surveillance in a time of war would end after only 15
days.
Instead, the legislative history of this provision makes it clear that
Congress elected NOT TO DECIDE how surveillance might need to be conducted
in the event of a particular armed conflict. Congress expected that it would
revisit the issue in light of events and likely would enact a special
authorization during that 15-day period. That is exactly what happened three
days after the attacks of 9/11, when Congress passed the Force Resolution,
permitting the President to exercise "all necessary and appropriate"
incidents of military force.
Thus, it is simply not the case that Congress in 1978 anticipated all the
ways that the President might need to act in times of armed conflict to
protect the United States. FISA, by its own terms, was not intended to be
the last word on these critical issues.
Gonzales makes the familiar argument that the Authorization for the Use of
Military Force constitutes an "authoriz[ation] by statute" that makes the
current wartime surveillance an exception to FISA. He goes on to address the
72-hour emergency provision of FISA, on which leftists have put so much
Some have pointed to the provision in FISA that allows for so-called
"emergency authorizations" of surveillance for 72 hours without a court
order. There's a serious misconception about these emergency authorizations.
People should know that we do not approve emergency authorizations without
knowing that we will receive court approval within 72 hours. FISA requires
the Attorney General to determine IN ADVANCE that a FISA application for
that particular intercept will be fully supported and will be approved by
the court before an emergency authorization may be granted. That review
process can take precious time.
Thus, to initiate surveillance under a FISA emergency authorization, it is
not enough to rely on the best judgment of our intelligence officers alone.
Those intelligence officers would have to get the sign-off of lawyers at the
NSA that all provisions of FISA have been satisfied, then lawyers in the
Department of Justice would have to be similarly satisfied, and finally as
Attorney General, I would have to be satisfied that the search meets the
requirements of FISA. And we would have to be prepared to follow up with a
full FISA application within the 72 hours.
A typical FISA application involves a substantial process in its own
right: The work of several lawyers; the preparation of a legal brief and
supporting declarations; the approval of a Cabinet-level officer; a
certification from the National Security Adviser, the Director of the FBI,
or another designated Senate-confirmed officer; and, finally, of course, the
approval of an Article III judge.
So the FISA "emergency" process would require days, at a minimum, and
perhaps weeks, to complete; and it must be completed before surveillance can
begin. Thinking about this reminded me of the fact that the NSA actually
picked up two electronic communications on September 10, 2001, which
countless liberal web sites have pointed to as evidence of malfeasance or
worse on the part of the administration. Here is how General Michael Hayden
described those two intercepts in his testimony before the Senate
There is one other area in our pre-September 11th performance that has
attracted a great deal of public attention. In the hours just prior to the
attacks, NSA did obtain two pieces of information suggesting that
individuals with terrorist connections believed something significant would
happen on September 11th. This information did not specifically indicate an
attack would take place on that day. It did not contain any details on the
time, place, or nature of what might happen. It also contained no suggestion
of airplanes being used as weapons. Because of the processing involved, we
were unable to report the information until September 12th.
Now, consider this. What would happen if the President had not authorized
the international surveillance program after September 11, and instead had
relied solely on FISA, and the following events were to take place: the NSA
obtains information that an al Qaeda operative overseas is planning a
nuclear attack in conjunction with a cell inside the United States. The NSA
decides to intercept all communications between the overseas al Qaeda
operative and individuals located inside the U.S.; but first, it must obtain
multiple layers of approval from lawyers and assemble all of the information
needed to complete a FISA application. It begins that process, but the next
day, while NSA is still working on getting the necessary approvals, a
nuclear device levels much of Washington, D.C.
Suppose that disaster had happened a year ago. How do you think the
surviving Democrats would have responded? Do you think they would have
praised the administration for refusing to go outside the bounds of FISA's
procedures? Or do you think they would have denounced President Bush and his
administration as the most irresponsible, feckless and ineffective officials
to control the executive branch since James Buchanan?
I think the latter. And you know what? They would have had a point.
http://powerlineblog.com/archives/012926.php
I think it's great if he's for the NSA being able to spy on
other nations, their intelligence people, their governments, etc. What
I'd like to hear is what his take is on the Bush administration (or
any administration) using the NSA to spy on Americans. Apparently the
NSA isn't too happy about being used that way either, or they wouldn't
have leaked what they did. Bush better not fuck with them. They're not
stupid.
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