Dec 27 2005
Updates at the end
The left is all up in their paranoid poses pretending somehow every American is at risk for monitoring because an Al Qaeda terrorist might come calling and expose their entire life for all to see. Just because they are paranoid doesn’t mean someone is not out to get them.
But while the left plays lose with facts and logic (an impressive trick to be sure), the rest of us prefer to debate issues from a field of facts, clear definitions, and a modicum of seriousness. So for those of us who want to know more, and who believe the danger lies in not monitoring the communications of the people who declared war on us, there is a good article out today on the terminology of surveillance.
Ever since The New York Times broke the story that President Bush had directed the National Security Agency to bypass the Foreign Intelligence Surveillance Act for certain domestic monitoring duties, commentators and members of Congress have been batting the word “wiretap” around in a way that fundamentally muddies the waters.
If we’re going to rationally debate FISA limits, we need to clarify the distinction between law enforcement wiretapping and broadband signals intelligence.
A wiretap is a specific monitoring program placed on a circuit-switched line of an individual person, or on a trunk group that may be part of a central office’s domain of interest. It must be sought by state, local or federal officials through traditional wiretap requests. When national security interests involve the FBI, such requests typically must pass through the FISA Court, the special “star-chamber” surveillance court created in 1978.
Emphasis mine, One must recall the left’s current support of FISA is simply political opportunism, with a dose of delusional conspiracy theory thrown in for fun. But back to the terminology discussion.
The NSA does not wiretap. The global electronic network it manages, nicknamed Echelon, comprises satellites, high-frequency direction-finding antennas and microwave interception dishes, located in orbit and in critical locations on the ground, in the sea and in the air. The network operates continuously, in real-time, collecting everything it can, but analyzing very little of what it collects.
When pundits talk of NSA domestic “collection,” some may picture a magical force field surrounding this country, where all interception equipment is automatically shut down inside the borders. Not so. Domestic “broadband test” bases regularly scoop up communications as part of Echelon. The difference in the post-FISA era is that such information must never be stored, shared with law enforcement or used in other ways. By all accounts, the NSA has tried to abide by that.
That is when the NSA is not pointing their mind control beams at the liberal left, making them believe in all their wild conspiracy theories. But I digress. Here is what Bush has done differently from the past
President Bush, then, asked the agency to keep and analyze specific domestic-to-international communications that already could be collected â€” no new bases, no new “wiretaps.” While the always-on nature of Echelon could inspire some paranoia, concern can be tempered by understanding that the agency has had neither the storage capacity nor the human-analysis staff to examine more than a tiny percentage of the take.
The monitoring is on known Al Qaeda terrorists, outside the US, who have taken a vow to kill Americans. Who they are in contact with is fair game. And make no mistake about it. Liberal loons like Judge James Robertson are not worried about process. They are worried about stopping our efforts to catch the next 9-11 wannabes.
U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.
Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA courtâ€™s work.
Emphasis mine. Robertson and his echo chamber are not comfortable with FISA confirming the monitoring of terrorist communications in the US through FISA. In fact they resisted it. What is supposed to happen is a transition from NSA’s international monitoring to the FBI for domestic response (and prevention) to a potential attack. What FISA was doing was saying they were ‘too pure’ to have intelligence provide them a lead to a terrorist compatriot here in the US. Too pure. Got that? They did not want to ‘taint’ their work….
We would have to ignore the terrorists in our midst because ideologues like Robertson felt dirty spying on sworn enemies hell bent to kill us.
As I pointed out in a previous post, the acid test for any process is whether it would have, without a doubt, snared Hamdi and Midhar – the two 9-11 pilots who were in the US and in contact with their counterparts overseas. If the current process allows a repeat of that mistake, then the current process is no good. The left wants the current process to remain broken â€“ even though we were supposed to have fixed it.
And anyone who has been through a sobriety checkpoint knows there is not a magic, constitutional shield against being searched or questioned.
But the critics are acting like the mere suggestion of a search without a warrant is tantamount to setting up a police state. They don’t tell you the Fourth Amendment itself primarily guards against unreasonable searches and seizures. Courts have always recognized exceptions to the warrant requirement.
That warrants are not absolutely indispensable is also clearly indicated by the very terms of the Foreign Intelligence Surveillance Act, which expressly dispenses with the warrant requirement in certain defined circumstances. Some scholars maintain those exceptions apply to the president’s National Security Agency surveillance of al Qaeda, though the administration doesn’t seem to rely on that position. Instead, Mr. Bush finds his authority in the Constitution and in Congress’ de facto declaration of war following September 11, 2001.
He is not challenging the validity of FISA but merely saying it does not limit his inherent constitutional authority as commander in chief under Article II to conduct such searches, when necessary, to protect national security. Congressional action, in other words, never trumps the Constitution.
If we allow warrantless searches to try and catch drunk drivers using our highways, why is it the left is calling for impeachment because we have warrantless searches of the information flowing through our communications highways? Why is the left trying to stop, again, the process of moving intelligence information on known terrorists to the FBI through the FISA process they pretend to hold so dear?
I have added a new category cover all my FISA-NSA related posts.
I find it helpful to occasionally look at the alternative to confirm that the grass is greenest right were we are. Bush is judiciously using his powers to detect threats (NSA, CIA), identify their US component (NSA, FBI, FISA) and then stop their plans (FBI, Law Enforcement, Courts). The left, when not in the grip of the evil NSA’s mind control ray, are wishing for another round of impeachment:
Bush and company have very wrongly used the commander-in-chief power as a lever to make the President far, far too powerful, powerful far beyond anything intended by the framers, who created a government in which the legislature was to be the more powerful branch.
Someone wasn’t paying attention in high school US government class it seems.
Congress has been ineffective and cowardly.
Bush has committed the impeachable felony of conspiracy to commit torture, but the media and the politicians refuse to discuss this. He should, however, be impeached for this felony.
Abu Grhaib redux.
In accordance with first amendment values, there should be reporters’ privilege when confidential sources alert them to evildoing by government, but not when confidential sources try to use reporters to further evildoing by government.
Translation: The media should be pawns of the left. How Goebbels of them!
Bush’s claims of power all come down to a single overarching principle, articulated for him in legal terms by John Yoo, and articulated in political speech by Bush himself. That overarching principle is that the President is all powerful whenever he asserts a claim that what he authorizes or does is for the purpose of fighting a war.
Well, ….yes. But it doesn’t hurt when that claim is backed up by a resounding declaration of war from the cowardly US Congress.
John Yoo said that such all-surpassing power comes from the commander-in-chief clause and cannot be limited by Congress. Of course, Yoo shamelessly distorts the commander-in-chief power, which was intended simply to put a civilian in charge of the military lest a general seek to take over the country and become dictator, and was not intended to make the President a dictator, was not intended to give him the dictatorial power that the framers were guarding against in a general.
Bush would be a dictator if he attempted to stay in office without the vote of the people. Until then he is the leader and has powers bestowed upon him. What seems to frighten this poor soul is the fact we have a leader. The guy goes on to rant we cannot take our leaders seriously if we are intellectuals, and then demonstrates what he means by intellectuals:
For we are faced with an Executive, whose charge is led by the dumb Bush and the truly evil Cheney, that says it can do whatever it wants in the name of allegedly safeguarding America, and that whatever it does for this claimed purpose is therefore ipso facto legal regardless of whether it is in violation of statutory law, in violation of longstanding custom and precedent, or in violation of any reasonable conception of humanity.
Is this the kind of fool we want to be handing our national protection over to?
Count me out. BTW, if you think this is the ranting of some immature, anti-globalization demonstrator you are mistaken. This rant filled, incoherent piece is brought to you by a ‘fine legal mind’!
Lawrence R. Velvel is the Dean of Massachusetts School of Law.
From the insane of the left back to reasoned, mature discussion. Human Events takes on the subject here, with some sage advise to all interested and concerned about this issue:
Pundits and politicians are already passing judgment on the Presidentâ€™s actions. Many of their comments are irresponsible and inappropriate. Not enough is known by those who are commenting publicly to justify their factual conclusions, and several of their legal conclusions are demonstrably false.
Of course, that is fairly typical when something in our national security arsenal is leaked to the press and our enemies. Enemies try to not only adjust their actions to thwart our efforts. They would dearly love to see the efforts disbanded in a fit of political correctness run amok.
The article does establish some good grounds from which to discuss the issue
The president has broad constitutional and statutory powers to protect Americans in a time of war. No evidence has been presented that the NSA did anything illegal. To the contrary, the president has clear legal authority to engage in intelligence interceptions abroad without court approval. Because the program under which these interceptions were made is highly classified, only a classified review by the appropriate congressional committeesâ€”a review with appropriate safeguards for national security and the full disclosure of all relevant documents and briefings by the Administrationâ€”will provide the necessary checks and balances envisioned in the Constitution.
As we pointed out above, the issue arise when this information then needs to go to law enforcement such as the FBI, and needs to be brought into the FISA process. A step being fought by the likes of Judge James Robertson. And in their efforts to wrest legal authority from our elected leadership, the Robertson echo chamber were the ones who broke the law:
Leaking the existence of the NSA program to the news media was wrong on many levels. Previous disclosures of this type have allowed al Qaeda to change its methods of communication and have damaged U.S. national security. If government employees suspect that government action is improper, there are appropriate ways to raise the issueâ€”through the normal chain of command, through agency general counsel, and through confidential communications to the relevant inspectors generalâ€”that do not endanger national security. Moreover, there are whistleblower laws to protect people who have the courage of their convictions and expose suspected wrongdoing.
Anonymous leaks to the news media, however, damage U.S. counterterrorism efforts, alert our wartime enemies of our methods of intelligence gathering, and put ongoing investigations at risk. To defend such leaks as furthering the separation of powers is even more preposterous. The leakers knew that congressional leaders had been briefed many times on the program and that members of Congressâ€™s intelligence committees were conducting oversight. (At least one early oversight letter was also leaked.) Apparently, the leakers were dissatisfied with the job Congress was doing or had some other motive for going public. Leaking classified material to the press threatens national security. It is a crime and should be punished.
Some wise words regarding the unconcious or reckless Liberal Death Wish for America:
This NYT article has also warned the terrorists who have kept in touch by telephone with their sleeper cell agents in America, that they are being overheard. They must now switch to a safer way of telling their agents when to set off bombs in our subways, buildings or other public places. Our ability to know about a terror act in advance so that we may help save the life of someone in your family has been denied.
If an agent of the FBI, CIA or NSA happens to learn that Zarqawi or one of his commanders is trying to reach an American here in the USA, do you really want this agent unable to listen in on this conversation until he can find some judge somewhere who can grant a warrant, knowing that this delay could cause us to miss hearing the orders being transmitted to a sleeper cell here in the USA? Do you really think that it better to allow this “civil liberty” to an American traitor rather than do what is necessary to save hundreds of innocent lives of men, women and children?
And if your answer is “I donâ€™t want an agent listening to my phone calls,” what makes you think that any agent would waste his or her time listening to your boring calls? The only people who should worry about their calls or library visits being monitored are terrorists intent on killing Americans!
The left is so sure we are all out to get them, maybe they do not care if we are casualties in the war against terrorists?