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Presidential Legal Lawbreaking - The Nixon Theory

danarhea

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Bush is not the first president to claim that, in order to preverve the union, he has the right to break the law, or as he puts it, he is not doing anything illegal when he violates the law. This is the same argument advanced by Richard Nixon more than 30 years ago. Nixon lost on the merits of his arguments, and Bush will also lose on these same arguments. No government official, including the president, is above the law.

Article is here.
 
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aps

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I posted this in another thread, but it merits another posting. :lol:

1972 SHATTERING THE POLICY OF WARRANTLESS GOVERNMENT SURVEILLANCE
Government Misconduct

As a constant feature of its defense of political activists, CCR found itself challenging the use of illegal electronic surveillance in case after case. CCR first challenged the Nixon Administration's policy of national security wiretapping in 1969 during the Chicago 8 case. At that time the government had announced that it did not need a court order to wiretap anyone it considered to be a threat to domestic security. Although the courts were not always responsive, and the government usually denied the existence of wiretaps, CCR continued to press the issue. That perseverance, coupled with the Nixon Administration's flagrant violation of constitutional rights, resulted in one of the Center's most significant and far-reaching legal victories in 1972. In a prosecution for conspiracy to destroy government property (United States v. Plamondun et al), the government finally admitted wiretapping without a warrant, and a courageous judge ordered that the defendants be given the records of the wiretaps. In an attempt to avoid disclosing the records, the government took the issue to the Supreme Court (United States v. United States District Court). In a landmark opinion, the Court unanimously declared that engaging in domestic electronic surveillance without a warrant is unconstitutional. This decision rejected the government's attempt to gain legitimacy for its experiment in using the power of the Executive branch to invade people's privacy and monitor their political activity. The government subsequently dropped a series of political prosecutions, including those against Leslie Bacon, Abbie Hoffman, and many of the May Day defendants, rather than reveal its Illegal surveillance program.

http://www.ccr-ny.org/v2/about/history04.asp


Uh-oh Someone's in trouble.......;)
 

cnredd

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aps said:
I posted this in another thread, but it merits another posting. :lol:

1972 SHATTERING THE POLICY OF WARRANTLESS GOVERNMENT SURVEILLANCE
Government Misconduct

As a constant feature of its defense of political activists, CCR found itself challenging the use of illegal electronic surveillance in case after case. CCR first challenged the Nixon Administration's policy of national security wiretapping in 1969 during the Chicago 8 case. At that time the government had announced that it did not need a court order to wiretap anyone it considered to be a threat to domestic security. Although the courts were not always responsive, and the government usually denied the existence of wiretaps, CCR continued to press the issue. That perseverance, coupled with the Nixon Administration's flagrant violation of constitutional rights, resulted in one of the Center's most significant and far-reaching legal victories in 1972. In a prosecution for conspiracy to destroy government property (United States v. Plamondun et al), the government finally admitted wiretapping without a warrant, and a courageous judge ordered that the defendants be given the records of the wiretaps. In an attempt to avoid disclosing the records, the government took the issue to the Supreme Court (United States v. United States District Court). In a landmark opinion, the Court unanimously declared that engaging in domestic electronic surveillance without a warrant is unconstitutional. This decision rejected the government's attempt to gain legitimacy for its experiment in using the power of the Executive branch to invade people's privacy and monitor their political activity. The government subsequently dropped a series of political prosecutions, including those against Leslie Bacon, Abbie Hoffman, and many of the May Day defendants, rather than reveal its Illegal surveillance program.

http://www.ccr-ny.org/v2/about/history04.asp


Uh-oh Someone's in trouble.......;)
That's a pretty good article...Apparently, nothing has happened since 1972 to change that...:roll:

I can show you an Amendment saying alcohol is illegal...Has anything changed since then, too?...:2wave:
 

aps

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cnredd said:
That's a pretty good article...Apparently, nothing has happened since 1972 to change that...:roll:
If you know otherwise, then show me.

I can show you an Amendment saying alcohol is illegal...Has anything changed since then, too?...:2wave:
Yup.
 

oldreliable67

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The article cited by danarhea is good one. Authored by former Nixon guy and Watergate conspirator John Dean, it offers some interesting historical parallels between the Nixon WH and the Bush WH. However, it is interesting that Dean begins with declamations of absolute certainty that Bush has committed the same impeachable offenses as Nixon. But later in the article, the heading becomes softer, less certain:

Is Bush's Unauthorized Surveillance Action Justified? Not Persuasively.

From this point on in the article, Dean writes in terms of 'ifs', and is much less categorical in his Bush impeachable offenses argument.

Certainly, I'm no lawyer, but I find Dean's arguments principled but somewhat dated. In a comparison of Dean's arguments to those of Schmidt, the Assistant AG in the Clinton admin, who supported the Bush admin legal position in a recent article, I find Schmidt's analysis if nothing else, more current and up-to-date with more recent and presumably more relevant precedents and court cases.

Dean barely mentions the case law in the intervening years, instead engages in an ad hominem attack on John Yoo, the legal scholar behind some of the Bush admin's legal positions.

To use Dean's words, Dean's case is not persuasive. Just my opinion - YMMV.
 

danarhea

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oldreliable67 said:
The article cited by danarhea is good one. Authored by former Nixon guy and Watergate conspirator John Dean, it offers some interesting historical parallels between the Nixon WH and the Bush WH. However, it is interesting that Dean begins with declamations of absolute certainty that Bush has committed the same impeachable offenses as Nixon. But later in the article, the heading becomes softer, less certain:

Is Bush's Unauthorized Surveillance Action Justified? Not Persuasively.

From this point on in the article, Dean writes in terms of 'ifs', and is much less categorical in his Bush impeachable offenses argument.

Certainly, I'm no lawyer, but I find Dean's arguments principled but somewhat dated. In a comparison of Dean's arguments to those of Schmidt, the Assistant AG in the Clinton admin, who supported the Bush admin legal position in a recent article, I find Schmidt's analysis if nothing else, more current and up-to-date with more recent and presumably more relevant precedents and court cases.

Dean barely mentions the case law in the intervening years, instead engages in an ad hominem attack on John Yoo, the legal scholar behind some of the Bush admin's legal positions.

To use Dean's words, Dean's case is not persuasive. Just my opinion - YMMV.
With all due respect, I do not buy your argument. Fact is that, after the Nixon debacle, a law was passed making it illegal to conduct wiretaps without warrants. It also provided for FISA where national security was concerned. Bush clearly has violated that law, or dont the laws of the United States of America really matter? If not, then I dont see how rapists and murderers should take the laws of the land seriously either. Actually, they dont, but they are punished when they are caught. Maybe the punishment for rapists and murders means nothing if, on the other hand, we allow someone to get away with his violations right under our very noses. The way things are now might make for a very good argument for rapists and murderers to enter politics after serving their sentences. Of course, they would feel right at home.
 

oldreliable67

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danarhea,

"With all due respect, I do not buy your argument."

Thats nice, but don't confuse argument with observation.

"...after the Nixon debacle, a law was passed making it illegal to conduct wiretaps without warrants. It also provided for FISA where national security was concerned."

Yep. Quite true. Remember, though, that each law is passed with the perceptions of the needs extant at the time of the passing of that law. Times change, needs change, new precedents are set.

"Bush clearly has violated that law..."

That is an opinion, not an adjudicated fact. As of this moment, there are legal scholars on both sides of the argument: some say the legal framework provided by the AG is sound justification for the Bush admin's NSA surveillance program (e.g., Schmidt, former Clinton AG writing in the Chicago Tribune); others disagree (a Georgetown law prof that appeared on Hardball and quoted by aps).

Nice try at reductio ad absurdum.
 

danarhea

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oldreliable67 said:
danarhea,

"With all due respect, I do not buy your argument."

Thats nice, but don't confuse argument with observation.

"...after the Nixon debacle, a law was passed making it illegal to conduct wiretaps without warrants. It also provided for FISA where national security was concerned."

Yep. Quite true. Remember, though, that each law is passed with the perceptions of the needs extant at the time of the passing of that law. Times change, needs change, new precedents are set.

"Bush clearly has violated that law..."

That is an opinion, not an adjudicated fact. As of this moment, there are legal scholars on both sides of the argument: some say the legal framework provided by the AG is sound justification for the Bush admin's NSA surveillance program (e.g., Schmidt, former Clinton AG writing in the Chicago Tribune); others disagree (a Georgetown law prof that appeared on Hardball and quoted by aps).

Nice try at reductio ad absurdum.
The law was passed by congress and signed into law by President Ford. Thus, it became law of the land, and unless that law was repealed at some point (which it wasnt), then Bush violated that law, thus breaking his oath to faithfully execute the laws of the United States of America. No amount of weasel words from politicians is going to change that. I also find it noteworthy in that the Bush administration has found an ally from inside the former Clinton administration. That explains plenty.
 

oldreliable67

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Danarhea: "The law was passed by congress and signed into law by President Ford. Thus, it became law of the land, and unless that law was repealed at some point (which it wasnt), then Bush violated that law, thus breaking his oath to faithfully execute the laws of the United States of America."

Yep. FISA legislation was passed by Congress and signed into law by Pres. Ford. Nope, haven't heard that it has been repealed, either. But did Bush violate that specific law? Thats your problem. You say yes, he did. Others say no, he didn't. You are entitled to your opinion, as are those who disagree. Without adjudication, both opinions are equally valid. As of this moment, its largely beauty in the eye of the beholder.

Danarhea: "I also find it noteworthy in that the Bush administration has found an ally from inside the former Clinton administration. That explains plenty."

I agree that is an interesting juxtaposition: a former Repub President's right-hand man (Dean) roundly criticizing a Repub President, and a former Asst AG (Schmidt) in a Dem administration that was loathed by Repubs supporting the legal position of a Repub Pres. Though I'm not sure that I agree that it explains anything at all, it is nonetheless, quite remarkable.

As for me, I tend to side with the 'no, he didn't crowd' for now. But I do welcome a congressional hearing and actually am hopeful of an eventual referral to the SC. IMO, these are very important questions and are particularly relevant right here, right now when we find ourselves in circumstances unforeseeable and unknowable in the world of Nixon and Ford. We, the people, need clarity on this and right now we don't have it.
 

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The mechanisms were set in place by the congress for just this sort of situation after the whole Nixon debacle. I have to admit that I'm loving the three major arguments I've heard for the current program.

So the first argument they use is that they have to act quickly. President Bush said this himself. Of course, as we all know, the FISA court was built for speed, allowing for the retroactive application for a warrant after a surveillance operation had begun.

Then I hear that it's about paperwork. That, I have a severe problem with. If the DoJ couldn't keep up with the paperwork, why was action not taken to beef up staffing so that they could?

I hear that it's being done because of the need for roving wiretaps. I have news... That's what Section 206 of the Patriot Act does, is expands the FISA court's authority in order to grant warrants for just this purpose. As a matter of fact, that's one of the provisions that was just extended for five weeks.

According to this Whitehouse "In Focus" page:

Section 206-Roving Wiretaps: Without this authority, the Foreign Intelligence Surveillance Act (FISA) court would be unable to authorize investigators to maintain surveillance when a terrorist or spy engages in a staple of intelligence tradecraft: switching phones and telecommunication providers. Sophisticated terrorists and spies could more easily thwart government surveillance.

So what, I wonder, will be the next excuse?
 

oldreliable67

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JustMyPOV: "The mechanisms were set in place by the congress for just this sort of situation after the whole Nixon debacle."

Not hardly. There were no cell phones then. There was no email then. There was'nt significant stateless terrorism then. The original legislative intent was to address drug dealers/cartels and organized crime figures.

JustMyPOV:"the FISA court was built for speed...If the DoJ couldn't keep up with the paperwork, why was action not taken to beef up staffing so that they could?"

As you suggest, you do have a problem with this, and it is clearly because you don't understand it. FISA was built for speed in the 1978 world and has been modified to keep up with cell phones and advancing technology. Thats great and definitely needed, but it only goes so far in this war. What FISA can't keep up with is the need for near-instantaneous development of intelligence opportunities on battlefields half-way around the world.

Despite your admission that you are loving the three major arguments you've heard for the current program, you still don't seem to appreciate the FISA requirements for a number of approvals to be obtained and signatures evidencing approval, including the AG or designate, before the FISA Court can be approached with a request for an emergency surveillance operation. This takes time. It is not a matter of the DoJ hiring more people. It is a matter of an intelligence opportunity being lost (and with it, perhaps an opportunity to save lives) because it has to work its way through the chains of command (first military, then civilian) before it can be presented to the court.
 

JustMyPOV

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oldreliable67 said:
JustMyPOV: "The mechanisms were set in place by the congress for just this sort of situation after the whole Nixon debacle."

Not hardly. There were no cell phones then. There was no email then. There was'nt significant stateless terrorism then. The original legislative intent was to address drug dealers/cartels and organized crime figures.
Actually, you seem to be referring to RICO. FISA specifically refers to this sort of intelligence gathering ability, explicity referring to terrorists and stateless organizations.

JustMyPOV:"the FISA court was built for speed...If the DoJ couldn't keep up with the paperwork, why was action not taken to beef up staffing so that they could?"

As you suggest, you do have a problem with this, and it is clearly because you don't understand it. FISA was built for speed in the 1978 world and has been modified to keep up with cell phones and advancing technology. Thats great and definitely needed, but it only goes so far in this war. What FISA can't keep up with is the need for near-instantaneous development of intelligence opportunities on battlefields half-way around the world.
I don't discount, nor did I ever call into question the president's inherent authority during wartime to gather intelligence on foreign battlefields without a warrant. I wouldn't even question his authority to tap domestic lines utilized by non-citizens without one. If said intelligence gathered suggests a link to any US citizen, I would say that should be sufficient cause to obtain a "rubber stamp" from the FISA court for a roving wiretap on that citizen.

Despite your admission that you are loving the three major arguments you've heard for the current program, you still don't seem to appreciate the FISA requirements for a number of approvals to be obtained and signatures evidencing approval, including the AG or designate, before the FISA Court can be approached with a request for an emergency surveillance operation. This takes time. It is not a matter of the DoJ hiring more people. It is a matter of an intelligence opportunity being lost (and with it, perhaps an opportunity to save lives) because it has to work its way through the chains of command (first military, then civilian) before it can be presented to the court.
The question I have here is, why not go to congress to get the changes needed made to the FISA law, rather than simply ignoring it? Congress would have easily passed nearly any request from the administration to ensure that adequate time and resources were provided.

Fourth Ammendment issues aside, the likely consequence of these actions, even though it may save lives in the short term, could lead to important evidence being thrown out of court if a US citizen is brought to trial based on a warrantless wiretap. I'd hate to think of a terrorist being released from prison because the government failed to obtain a proper warrant. Jose Padilla's and other terror suspects' lawyers are already jumping all over this. Story Here.
 

oldreliable67

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JustMyPOV:"Actually, you seem to be referring to RICO. FISA specifically refers to this sort of intelligence gathering ability, explicity referring to terrorists and stateless organizations."

Well, no, and yes. I am not familiar with RICO, but yes, FISA does of course deal with intelligence gathering. Except that in 1978 the only terrorists and stateless organizations were the likes of Hamas and Hezbollah, which were targeting Israel, and Israelis, not specifically US citizens and/or the US mainland. The point is that in the 1978 FISA world, the technological challenges were significantly different than today. Yes, FISA has been amended over the years in an effort to continue adapting, and in point of fact, one could argue that the current NSA surveillance program nothing more or less than a continuation of that self-same adaptation.

JustMyPOV: "f said intelligence gathered suggests a link to any US citizen, I would say that should be sufficient cause to obtain a "rubber stamp" from the FISA court for a roving wiretap on that citizen."

So, tell me then, what is the difference between a "rubber stamp" that takes a day or maybe two to obtain, and the immediate, real-time investigation of someone, regardless of where they are located in the world, who, as a result of intelligence recovered on a battlefield, is identified as having communications with terrorists? If it is merely a "rubber stamp", then where is the logic in delaying an investigation or surveillance that might save lives? Which is more important, a "rubber stamp" or a chance to perhaps save lives?

JustMyPOV: "The question I have here is, why not go to congress to get the changes needed made to the FISA law, rather than simply ignoring it?"

That actually is the best question that you have raised, IMO, and is exactly the reason that I hope this does end up in the courts and ultimately before SC. The AG has set forth the admin's legal position; some legal scholars have embraced it, others have disagreed. One thing that can be said that almost all will agree on, I think, is that uncertaintys exist about the admin's presumed legal authority.

Going forward in the fight against terrorism, these are important concepts regarding the collection of intelligence that can be life-saving. We, all of us, whether we agree or disagree on the President's legal authority as of this moment, need and deserve legal clarification.
 

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oldreliable67 said:
JustMyPOV:"Actually, you seem to be referring to RICO. FISA specifically refers to this sort of intelligence gathering ability, explicity referring to terrorists and stateless organizations."

Well, no, and yes. I am not familiar with RICO, but yes, FISA does of course deal with intelligence gathering. Except that in 1978 the only terrorists and stateless organizations were the likes of Hamas and Hezbollah, which were targeting Israel, and Israelis, not specifically US citizens and/or the US mainland. The point is that in the 1978 FISA world, the technological challenges were significantly different than today. Yes, FISA has been amended over the years in an effort to continue adapting, and in point of fact, one could argue that the current NSA surveillance program nothing more or less than a continuation of that self-same adaptation.
I must admit I'm sort of oblivious to what it is you're trying to argue here. The technological changes since 1978 have been accounted for both by prior legislation, as well as, more recently, the Patriot Act, as you suggest, so I fail to see what the problem is with acquiring a warrant. One could indeed argue that it's a continuation, except for the fact that judicial review is entirely absent from the process. The other part of the problem I have with that is that the president took it upon himself, rather than seeking the approval of the Congress, to create this "continuation".

JustMyPOV: "f said intelligence gathered suggests a link to any US citizen, I would say that should be sufficient cause to obtain a "rubber stamp" from the FISA court for a roving wiretap on that citizen."

So, tell me then, what is the difference between a "rubber stamp" that takes a day or maybe two to obtain, and the immediate, real-time investigation of someone, regardless of where they are located in the world, who, as a result of intelligence recovered on a battlefield, is identified as having communications with terrorists? If it is merely a "rubber stamp", then where is the logic in delaying an investigation or surveillance that might save lives? Which is more important, a "rubber stamp" or a chance to perhaps save lives?
In a few instances, the FISA court has denied this "rubber stamp". Considering the 19000:5 ratio of approval to denial of warrants, I'd be inclined to assume they must have had pretty good reason to deny those 5. The difference is that between the executive branch of government executing intelligence gathering on US citizens with, or without any sort of check on its authority.

JustMyPOV: "The question I have here is, why not go to congress to get the changes needed made to the FISA law, rather than simply ignoring it?"

That actually is the best question that you have raised, IMO, and is exactly the reason that I hope this does end up in the courts and ultimately before SC. The AG has set forth the admin's legal position; some legal scholars have embraced it, others have disagreed. One thing that can be said that almost all will agree on, I think, is that uncertaintys exist about the admin's presumed legal authority.

Going forward in the fight against terrorism, these are important concepts regarding the collection of intelligence that can be life-saving. We, all of us, whether we agree or disagree on the President's legal authority as of this moment, need and deserve legal clarification.
I know that a solution exsists that preserves checks and balances, yet allows the executive branch ample flexibility to conduct surveillance as needed to defend our nation against terrorists. If they want to increase the amount of time they have to file the necessary paperwork to 6 months, I'd even be fine with that. If, however, the exectutive branch is going to intercept and record my personal and private communications, or that of any other US citizen, at some point, I want a judge to look at it to determine the necessity/legailty of the intelligence gathering.
 

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JustMyPOV said:
If, however, the exectutive branch is going to intercept and record my personal and private communications, or that of any other US citizen,
That characterization speaks volumes as to your knowledge as to what is really happening. The 'executive branch' per se is doing nothing more, has done nothing more than authorize an extension of the means of collecting signals intelligence. The collecting of signals intelligence has been an integral and fundamental part of waging war since, well, since there has been something known as 'war'. The 'executive branch' is doing nothing more than managing the legal authorities under which this activity takes place.

The activity in question does not intercept and record your personal and private communications, or that of any other US citizen, unless that person, who might well be a US citizen, is known a priori to have been in contact with or to have communicated with someone with a known terrorist affiliation as evidenced by a cell phone number, email address or some other such confirmation that was collected in a counter terrorist operation. Notice the requirement: the knowledge of a specific cell phone number or email address must have been acquired first, before any surveillance is initiated. The acquisition of a cell phone number or email address used by a known terrorist certainly suggests probable cause for subsequent surveillance. Doing so immediately might possibly save lives.

Notice the differences between this program and the other NSA surveillance activities. This program relies on the certain knowledge that a cell phone/email address has been used to communicate with known terrorists. True, that communication may ultimately proven to be benign and harmeless, but prudence suggests that is something not to be taken for granted.

On the other hand, the NSA routinely scans a huge number, virtually all in fact, cell phone and other communications worldwide. All automated, the technology employed seeks out the usage of key words and names. When a key word or phrase turns up, the message containing that key word or phrase may ultimately find itself referred to a human analyst whose job it is to rate that communication in terms of its intelligence value and/or threat level. This activiy has been going on for years. Charles Fried teaches constitutional law at Harvard, described it this way,

"Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.

Moreover, it is likely that at the first, broadest stages of the scan no human being is involved -- only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing."


Source.

By now most have heard of Echelon and the "Terrorist Information Awareness" program. If not, just google them and you'll plenty to keep you up at night.
 

danarhea

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oldreliable67 said:
That characterization speaks volumes as to your knowledge as to what is really happening. The 'executive branch' per se is doing nothing more, has done nothing more than authorize an extension of the means of collecting signals intelligence. The collecting of signals intelligence has been an integral and fundamental part of waging war since, well, since there has been something known as 'war'. The 'executive branch' is doing nothing more than managing the legal authorities under which this activity takes place.

The activity in question does not intercept and record your personal and private communications, or that of any other US citizen, unless that person, who might well be a US citizen, is known a priori to have been in contact with or to have communicated with someone with a known terrorist affiliation as evidenced by a cell phone number, email address or some other such confirmation that was collected in a counter terrorist operation. Notice the requirement: the knowledge of a specific cell phone number or email address must have been acquired first, before any surveillance is initiated. The acquisition of a cell phone number or email address used by a known terrorist certainly suggests probable cause for subsequent surveillance. Doing so immediately might possibly save lives.

Notice the differences between this program and the other NSA surveillance activities. This program relies on the certain knowledge that a cell phone/email address has been used to communicate with known terrorists. True, that communication may ultimately proven to be benign and harmeless, but prudence suggests that is something not to be taken for granted.

On the other hand, the NSA routinely scans a huge number, virtually all in fact, cell phone and other communications worldwide. All automated, the technology employed seeks out the usage of key words and names. When a key word or phrase turns up, the message containing that key word or phrase may ultimately find itself referred to a human analyst whose job it is to rate that communication in terms of its intelligence value and/or threat level. This activiy has been going on for years. Charles Fried teaches constitutional law at Harvard, described it this way,

"Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.

Moreover, it is likely that at the first, broadest stages of the scan no human being is involved -- only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing."


Source.

By now most have heard of Echelon and the "Terrorist Information Awareness" program. If not, just google them and you'll plenty to keep you up at night.
I have made red the section I will refer to in this reply.

Who is to make that determination? The executive branch without any oversight? Excuse me, but considering the history of the executive branch abusing its authority, I want the evidence determined by the judiciary. If a judge gives his or her blessing to the operation (in a FISA court), then the president is free to pursue his branch's intelligence gathering against that person. However, during the Nixon administration, peaceful groups whose only crimes were to be against what Nixon was doing, and speak out against the Nixon administration, were targeted for political purposes only. That was one of the activities which led to Nixon's downfall. Wiretapping went far beyond Watergate in the Nixon administration, hence the need to put in place procedures which limit a president's ability to abuse his office, as Bush is clearly doing here. It became a crime to authorize wiretaps for this very reason. In authorizing his wiretaps, Bush has broken a law which was passed by Congress and signed into law by Gerald Ford. That law, by the way, provides for criminal penalties too.

In the end, what we have is the executive branch violating a criminal law which was passed by the legislative branch, signed into law by the executive branch, and administered by the judical branch. In other words, what we have are some people who are arguing that executive powers be tantamount to that of a King, not a President.
 

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danarhea said:
Bush is not the first president to claim that, in order to preverve the union, he has the right to break the law, or as he puts it, he is not doing anything illegal when he violates the law.
Article is here.
Hold on Babba-lu, you're claiming two totally distinct and seperate things. If he was claiming he had a right to break the law then he could not claim he was acting within the law, which he is and was.

But please post the statement from the Bush administration where they claim they have a right to break the law else withdraw your claim.

And since I and others have posted over and over the cites from the courts and Justice department that what he did was within the law why do you keep making the claim it wasn't?
 

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oldreliable67 said:
The article cited by danarhea is good one. Authored by former Nixon guy and Watergate conspirator John Dean,
:rofl DEAN? versus the other court cases and authorities which say just the opposite. What desperation.
 

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Stinger said:
:rofl DEAN? versus the other court cases and authorities which say just the opposite. What desperation.
Sorry, I don't quite follow you here. Permit me to repeat a portion of my observations concerning Dean's article:

"Certainly, I'm no lawyer, but I find Dean's arguments principled but somewhat dated. In a comparison of Dean's arguments to those of Schmidt, the Assistant AG in the Clinton admin, who supported the Bush admin legal position in a recent article, I find Schmidt's analysis if nothing else, more current and up-to-date with more recent and presumably more relevant precedents and court cases."

I find the juxtaposition of a former Repub President's right-hand lawyer guy (Dean) to be now criticizing a Repub and a former asst AG under a Dem (Clinton, of all people) who is now supporting Bush's legal position in this matter, to be quite ironic.

Desperate? In what way?
 

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danarhea said:
In authorizing his wiretaps, Bush has broken a law which was passed by Congress and signed into law by Gerald Ford.
It matters not whether you agree or disagree with Bush's actions in this matter, that statement is an expression of opinion. Nothing more, nothing less. Unless or until the matter is adjudicated and a guilty or innocent verdict is returned, it is just opinion or assertion. You posted your opinion; here is mine, largely reiterating from a post on another thread on this topic.

One constitutional lawyer who I found quite reasonable is Charles Fried, who teaches constitutional law at Harvard Law School; in an article in the Boston Globe, he said, in part:

"The president claims that congressional authorization for military action against Al Qaeda, together with his inherent constitutional powers, make such action lawful. There is some plausibility to that claim but until tested in the courts it is impossible to give a definitive opinion about it.
...
The resolution of this dilemma to allow both the use of an important tool of national security and respect for the rule of law needs ingenuity, discretion, and a good faith search for sensible solutions. So far I have heard only alarmist and hyperbolic pronouncements calculated neither to illuminate nor resolve this problem."


Notice two things about his comments: (1) plausible legal grounds but not definitive until a court test, and (2) denunciation of the hyperbole and alarmist approach to consideration of the questions at hand. This guy makes a lot of sense, IMO.

His article is at:
http://www.boston.com/news/globe/edi...es/2005/12/30/
the_case_for_surveillance/

There are others, including an Asst AG under Clinton, that support Bush's legal position. For another, the legal position set forth in the AG's letter to selected congresspersons sets forth both precedents and authorities in a persuasive manner. I've posted several parts of my reasons for believing that Bush is on ok legal ground on other threads.
 

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oldreliable67 said:
It matters not whether you agree or disagree with Bush's actions in this matter, that statement is an expression of opinion. Nothing more, nothing less. Unless or until the matter is adjudicated and a guilty or innocent verdict is returned, it is just opinion or assertion. You posted your opinion; here is mine, largely reiterating from a post on another thread on this topic.

One constitutional lawyer who I found quite reasonable is Charles Fried, who teaches constitutional law at Harvard Law School; in an article in the Boston Globe, he said, in part:

"The president claims that congressional authorization for military action against Al Qaeda, together with his inherent constitutional powers, make such action lawful. There is some plausibility to that claim but until tested in the courts it is impossible to give a definitive opinion about it.
...
The resolution of this dilemma to allow both the use of an important tool of national security and respect for the rule of law needs ingenuity, discretion, and a good faith search for sensible solutions. So far I have heard only alarmist and hyperbolic pronouncements calculated neither to illuminate nor resolve this problem."


Notice two things about his comments: (1) plausible legal grounds but not definitive until a court test, and (2) denunciation of the hyperbole and alarmist approach to consideration of the questions at hand. This guy makes a lot of sense, IMO.

His article is at:
http://www.boston.com/news/globe/edi...es/2005/12/30/
the_case_for_surveillance/

There are others, including an Asst AG under Clinton, that support Bush's legal position. For another, the legal position set forth in the AG's letter to selected congresspersons sets forth both precedents and authorities in a persuasive manner. I've posted several parts of my reasons for believing that Bush is on ok legal ground on other threads.
What part of this dont you understand?

(a) Prohibited activities A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.

(c) Penalties An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.

(d) Federal jurisdiction There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
Source is Title 50, Chapter 36, Subchapter 1, Paragraph 1809 of the FISA law. You can read the entire law here.
 

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danarhea,

I understand that - every bit of it. How much of the DoJ's legal position do you understand? The gist of it follows (the more relevant statements are in bold):

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

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

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

Page 3

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

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

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

The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 2511(2)(f) of title 18 provides, relevant here, that the procedures of FISA and two chapters of title 18 "shall be the as exclusive means by which electronic surveillance... may be conducted." Section 109 of FISA, in turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50 U.S.C. 1809(a)(1). Importantly, section 109's exception for electronic surveillance "authorized by statute" is broad, especially considered in the context of surrounding provisions. See 18 U.S.C. § 2511(1) ("Except as otherwise specifically provided in this chapter any person who --(a) intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . . .") (emphasis added); id. § 2511(2)(e) (providing a defense to liability to individuals "conduct[ing] electronic surveillance, . . . as authorized by that Act [FISA]") (emphasis added).

By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. § 2511(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 2511(2)(f). The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hamdi concluded that it satisfies the requirement in 18 U.S.C. § 4001(a) that no U.S. citizen be detained by the United States "except pursuant to an Act of Congress." See Hamdi, 542


continued...
 

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continued...

U.S. at 519 (explaining that "it is of no moment that the AUMF does not use specific language of detention"); see id. at 587 (Thomas, J., dissenting).

Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, the AUMF and FISA must be construed in harmony to avoid any potential conflict between FISA and the President's Article II authority as Commander in Chief. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 689 (2001); INS v. St. Cyr, 533 U.S. 289, 300 v. (2001). Accordingly. any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with al Qaeda without complying with FISA procedures must be resolved in favor of a n interpretation that is consistent with the President's long-recognized authority.[emphasis added]

The NSA activities described by the President are also consistent with the Fourth Amendment and the protection of civil liberties. The Fourth Amendment's "central requirement is one of reasonableness." Illinois v. McArthur, 531 U.S. 326, 330 (2001) (internal quotation marks omitted). For searches conducted in the course of ordinary criminal law enforcement, reasonableness generally requires securing a warrant. See Bd. of Educ, v. Earls, 536 U.S. 822, 828 (2002). Outside the ordinary criminal law enforcement context, however, the Supreme Court has, at times, dispensed with the warrant, instead adjudging the reasonableness of a search under the totality of the circumstances. See United States v. Knights, 534 U.S. 112, 118 (2001). In particular, the Supreme Court has long recognized that "special needs, beyond the normal need for law enforcement," can justify departure from the usual warrant requirement. [emphasis added] Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); see also City of Indianapolis v. Edmond, 531 U.S. 32, 41-42 (2000) (striking down checkpoint where "primary purpose was to detect evidence of ordinary criminal wrongdoing").

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

Intercepting communications into and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is generally determined by "balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests." Earls, 536 U.S. at 829. There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the President. That must be balanced, however, against the Government's compelling interest in the security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.") (citation and quotation marks omitted). The fact that the NSA activities are reviewed and reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate further demonstrates the reasonableness of these activities.
Apologies for the length of the post; I tried to minimize it by picking the more relevant portions for quoting, but it just seemed to be better to post it up this way.

You can read the entire letter here.

Personally, as between your posts and the precedents and citations offered by the DoJ and other legal scholars, I think I'll rely on the legal scholars.
 

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oldreliable67 said:
continued...



Apologies for the length of the post; I tried to minimize it by picking the more relevant portions for quoting, but it just seemed to be better to post it up this way.

You can read the entire letter here.

Personally, as between your posts and the precedents and citations offered by the DoJ and other legal scholars, I think I'll rely on the legal scholars.
In other words, you will rely on so called legal scholars and talking heads instead of the laws of the United States of America.

Once again, the law reads:

(a) Prohibited activities A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.

(c) Penalties An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.

(d) Federal jurisdiction There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed
Once again, this is the law of the land. It is not open to debate. If someone doesnt like it, then they should work to change it, not break it because they feel it should not have to apply to them. I dont like the marajuana laws, but I am not going to smoke a joint because I think the law is wrong. That is because, as a citizen, I do my best NOT to break the law. The president took an oath to uphold the laws of the United States of America, and not only failed to take his oath seriously, but committed a serious crime in the process.
 
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danarhea said:
Bush is not the first president to claim that, in order to preverve the union, he has the right to break the law, or as he puts it, he is not doing anything illegal when he violates the law. This is the same argument advanced by Richard Nixon more than 30 years ago. Nixon lost on the merits of his arguments, and Bush will also lose on these same arguments. No government official, including the president, is above the law.

Article is here.
Watch "Enemy of the State" now I would have to admit the movie is blown out of proportion of actual spying, but you will get the gist. SPYING isn't illegal.

I take this qoute from the movie: "The only privacy left, is inside your head"
 
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