Jan 11 2006
NSA-FISA Fuss
To date we have two claims and incredibly wild and baseless accusations. I have said this before on too many posts to link to, but the NY Times only claimed NSA monitored US citizenz without a warrant and the FISA judges expressed concern that information gleaned from NSA monitoring of US citizens ‘tainted’ FISA warrants. Check the record folks, no claim from a government source that Bush circumvented FISA – as opposed to NSA being a precursor effort that was used to identify and find terrorists here in the US, which then were leads that went to FISA for warrant.
American citizens are open to ‘warrantless’ surveillance all the time in the US. Ignorance is the only crime I see. A warrant for surveillance identifies a target for monitoring. All who contact that target are monitored without a warrant to monitor them specifically. Duh.
Same thing with NSA. They monitor terrorists and all who contact them.
But what is so striking is the FISA judge reactions. Judge James Robertson, who resigned supposedly in protest, only voiced one concern through his surrogates: FISA warrants had been tainted by NSA intel.
FISA judges were not aware some of the leads came from NSA intercepts because only the Chief Justice of FISA was briefed this was happening. So when they figured it out what happened? Did they violate precendence of the court? Did they decide they could not be used to follow up leads from intel garnered by the NSA and CIA and DIA?
One thing Lindsey Grahm did do in yesterday’s hearings was some excellent anologies to monitoring our enemies, detaining (locking up) our enemies and of course implied was killing our enemies on the battle field. The constitution does not provide, and the case law and precedence agree, for enemy combatants to have full civil rights. They can be detained with Miranda, without counsel, and indefinitely as prisoners of war. They can be killed (executed) in battle. If these actions are legal, the so is monitoring. And it does not matter if they are US citizens or in US soil. Declared enemies of this country abrogate their civil rights and access to civil courts when the declare war and fighting begins.
No one is holding a gun to these people’s heads to support Al Qaeda in their efforts to kill us. But once they do take the side against us in war, they have made a decision to give up the protections of this country. Too bad for them. And the fact liberals don’t understand is too bad for them as well. But most of us do understand. If you are attacking us and are here in country to execute that attack, sorry but you are an enemy combatant. Not a possible criminal.
Yes, war powers are awesome and intimidating. That is why we don’t want to be at war. However, when war has been declared by the other side and we have been attacked, it is clear we must act to defend ourselves and take out the enemy. Trying to pretend are enemy is a criminal and nothing more is not going to win the war. In fact, it could easily lose it.
Liberals want us to surrender Iraq. Could they possibly be also ready to surrender America? If the terrorists get here in the US and become protected by liberals ready to take any step to get Bush – maybe they are ready to surrender. Maybe they honestly feel more afraid of Bush than Al Qaeda.
Eliminating civil liberties based on a suspicion is so clearly illegal, immoral and against every principle America is based on that I’m literally speechless.
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“Give me liberty or give me DEATH” is more than a slogan…it is a reality.
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You go on home and crawl into your snuggly warm bed and pull the covers up over your head and pray to your little tin god King George to keep you safe from the bad ole terrorists while he wipes his ass with your Constitution. Meanwhile, those of us who ARE in fact patriots will go about the business of defending the Republic.”
Note who they are defending the Republic from. Not terrorists – Bush. A duly elected President of this fine country. Talk about sore losers.
UPDATE:
Tom Maguire is back in the saddle and has a variation on my claim that NSA precedes FISA and finds leads through contacts to terrorists overseas, which they then passed through FISA for warrants of surveillance here in the US. Tom adds in the time delays some scenarios can impose between recording the call and then determining the import of the call. However, I think FISA’s 72 hour rule begins when the AG determines their is a target of interest in the US – not when then intel is first obtained.
The bottom line: no one has claimed NSA bypassed FISA. All indications were NSA was a precursor to FISA for leads on terrorists in the US. No FISA judge has complained of being bypassed – and neither has any government source. They all complain about warrantless surveillance, which we pointed out happens all the time.
Here is an example where the court has said the warrantless NSA information given to the FBI at their request, was an invasion of privacy. You can read the entire case here.
If, in fact, the object of the surveillance in question was an agent or collaborator of a foreign power, [**53] it is arguable that a warrant would not have been required for interception. See Part V, Supra. Despite this, the defendants’ argument overlooks the fact that the FBI requested NSA to supply the Bureau with any information about Jabara which came into NSA’s possession in the course of its foreign intelligence activities. Thus, while the impetus for intercepting [*579] the communications in question may not have been Jabara’s activities, Jabara clearly was the target of this intelligence activity insofar as it was the FBI’s request which caused Jabara’s communications to be targeted for transmission to and examination by the Bureau. This, the Court believes, is a clear violation of Jabara’s fourth amendment rights regardless of whether he or an agent or collaborator of a foreign power was the target of the surveillance. n12 Therefore, the Court is of the opinion that the defendants have failed to produce and could not produce any evidence which would establishthat the transmission and examination of Jabara’s communications was subject to the foreign agent or collaborator exception to the warrant requirement.
n12. There is nothing in the record to suggest that any impetus for the transmission and subsequent examination of these summaries existed other than the fact that Jabara was a participant in the communications.
Furthermore, any contention that a warrantless search directed at Jabara can be justified by the plaintiff’s affiliations must fail in light of the Court’s earlier finding “that its In camera review (of materials submitted by the government) has not revealed any evidence to establish that the plaintiff or the domestic organization to which he belongs has been implicated in any way with a foreign agent or organization or acting in collaboration with a foreign power.” Jabara v. Kelley, 75 F.R.D. at 493.
Thus, it is clear to the Court that a fourth amendment violation has occurred. As noted above, the mode of interception employed by NSA does involve serious fourth amendment questions with respect to whether NSA surveillance Alone violates a person’s reasonable expectations of privacy and is subject to the warrant requirement of the fourth amendment. However, the examination of the contents of conversations thus intercepted would violate a person’s reasonable expectation of privacy n13 and is tantamount to what has generally been referred to as an interception in cases and statutes dealing with more traditional modes of electronic surveillance. Consequently, absent some recognized exception [**55] to the warrant requirement, the targeting of a person’s conversations intercepted by NSA for summarization, transmission to, and subsequent examination by other agencies must be done pursuant to prior judicial authorization akin to a warrant. Here no such exception exists. Jabara has not been shown to be an agent or collaborator of a foreign power and even if it were shown that such an agent or collaborator was the other party to Jabara’s intercepted communications, that circumstance would be irrelevant to the warrant requirement. Since the FBI’s interest in Jabara led to the transmission and examination of the summaries in question, any applicable exception to the warrant requirement must be based on Jabara’s status or identity.
SBD
Re: “Give me liberty or give me death”
Let’s not misunderstand the rest of Henry’s inspired speech:
“Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.
I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House.
Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir.
These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other.”
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“It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace—but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have?
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”
The whole thing.
Context is key, ladies & gentlemen. Henry’s own words fit the Islamofascist threat almost perfectly, and the Bush administration not at all.
RINO SIGHTINGS: Three Day Weekend edition
RINO SIGHTINGS: Three Day Weekend Edition
In R.I.N.O Land we have a tradition of tossing out some of the best of our best for a little viewership pleasure every week. And Since Indy was beaten in the playoffs (Curse you god) and New England lost (…
[…] Here is one post out of many where I pointed out how NSA was not a bypass for FISA, but an organization and process the preceded FISA warrants when tips were found to people in the US. […]