• This is a political forum that is non-biased/non-partisan and treats every persons position on topics equally. This debate forum is not aligned to any political party. In today's politics, many ideas are split between and even within all the political parties. Often we find ourselves agreeing on one platform but some topics break our mold. We are here to discuss them in a civil political debate. If this is your first visit to our political forums, be sure to check out the RULES. Registering for debate politics is necessary before posting. Register today to participate - it's free!
  • Welcome to our archives. No new posts are allowed here.

Presidential Legal Lawbreaking - The Nixon Theory

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
libertarian,

Thats all been reviewed and discussed and acknowledged previously. Did you have a point in posting it?
 

SouthernDemocrat

Pragmatist
DP Veteran
Joined
Jun 23, 2005
Messages
22,561
Reaction score
13,776
Location
KC
Gender
Male
Political Leaning
Moderate
Pacridge said:
10 to 1? Got a source for that?

As for the second part, I agree. Seems like there's a law in place to deal with these situations, why not follow it?
I am just going by what I have read. The only scholars I have read that agreed with the AG's opinion were either known conservatives, or worked for a Republican administration in the past.

Then again, a lot of conservative scholars think it’s illegal too. The only argument that I have seen in favor of these wiretaps is that the FISA law is inadequate. That’s fine; if that’s the case, get congress to change it. Congress has made changes to the FISA law twice since 9/11. These changes were rejected both times. Just because the administration feels that a law is inadequate, does not mean that they can just ignore it. The FISA statute clearly states that in the event of a declaration of war, there is a 15 day period where wiretaps can be made without court order, after that, you must have a court order. That’s the law. It’s as plain as it can be. You don’t have to be a legal scholar to know that the Administration is violating that law.

The ACLU has an open letter on this issue to the AG. It is as clear as any that I have seen.

http://www.aclu.org/safefree/general/23184leg20051221.html

When you give a President a license to ignore the law and the Constitution, you not only grant that president that license, you give it to every single one that follows. That is why we must have oversight. That is why their must be accountability.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
You people do know, you can actually read your country's own laws right? in fact you can read the published laws of all US states, many cities, and most other countries too.

It's a myth that you need to be a lawyer to understand and know the law.

Notice the electronic surveillence clause above has a nice word in it: "notwithstanding."

"Notwithstanding any other law", and that means in support of or to the contrary, does it not?

Warrantless interceptions of communications with a substantial likelihood of involving a US Person as a party to the communication, is prohibited by law, and subject to civil and crimminal sanctions. period.

Mind you, targeting a US person, exceeds the threshold of "substantial likelihood," because targeting a US Person's communications to intercept is a certain likelihood.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
oldreliable67 said:
libertarian,

Thats all been reviewed and discussed and acknowledged previously. Did you have a point in posting it?
really? damn sorry I missed it, my point followed a little later though.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
oldreliable67 said:
No, it is not the function of the courts to determine threats. It is the function of the coursts to interpret and administer the law. Nothing more, nothing less.



Baloney. It is probably true that Bush, as have many, many presidents before him, especially in wartime, pushed the power of the executive branch to its limits.

To reiterate, it is my hope that the NSA surveillance program question does make it to the SC. This is new ground: stateless terrorism and advanced technology versus laws originating in the world of 1978. Ultimately, if Bush's actions do find their way to the SC, it may be determined that he did something that pushed beyond the limits of the executive branch. Or maybe not. Thats what courts are for. But take a position that he is above the law? Not hardly.
Those laws, written in 1978 already account for the various forms of terrorism. See either they new it was an issue then, or they have amended the law since 1978, and I wouldn't be surprised one of the provisions of the patriot act makes such changes.

EDIT : Just looked it up the USA PATRIOT Act 2001 does in fact amend the laws put in place by FISA 1978.

Saying FISA is old, is lame, it's been updated since then.
 
Last edited:

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
A lot of posts recently I know.

One question in this one, can any defender-of-warrantless-wiretaps-involving-communications-of-a-US-Person please post or cite the relavant law by title and section or chapter, or relavant Federal Court ruling authorizing warrantless-wiretaps-involving-communications-of-a-US-Person?

With of course, the exception of 50 USC1811 (which has not been satsified)
"Section 1811. Authorization during time of war

Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a
court order under this subchapter to acquire foreign intelligence
information for a period not to exceed fifteen calendar days
following a declaration of war by the Congress."
 

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
libertarian_knight said:
were either known conservatives, or worked for a Republican administration in the past.
Ah, so you're 10 to 1 was a SWAG?

libertarian_knight said:
One question in this one, can any defender-of-warrantless-wiretaps-involving-communications-of-a-US-Person please post or cite the relavant law by title and section or chapter, or relavant Federal Court ruling authorizing
warrantless-wiretaps-involving-communications-of-a-US-Person?
Since you asked, lets take a look at some of the court rulings:

> The Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

> In 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the 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, 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."

That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

There is a good summary of these and other relevant court cases here.

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.
 

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
libertarian_knight said:
The only scholars I have read that agreed with the AG's opinion were either known conservatives, or worked for a Republican administration in the past.
Here are some opinions from non-conservative legal scholars, including John Schmidt, Asst AG under Clinton and Charles Fried of Harvard Law; I don't think either of these could be called conservative though Fried was Solicitor General under Reagan.

> John Schmidt, Asst AG under Clinton…

“President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.”

http://www.chicagotribune.com/news/...3632.story?coll=chi-newsopinioncommentary-hed

> Charles Fried, teaches Constitutional law at Harvard…

“We should ask ourselves what concrete harm is done by such a program. Is a person's privacy truly violated if his international communications are subject to this kind of impersonal, computerized screening? If it is not, at what stage of further focus do real, rather than abstract and hysterical concerns arise? And to what extent is the hew and cry about this program a symptom of a generalized distrust of all government, or of just this administration?

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.”

http://www.boston.com/news/globe/ed.../2005/12/30/the_case_for_surveillance?mode=PF

> Cass Sunstein, Univ of Chicago Law School Faculty Blog…

“The authorization for the use of military force (AUMF) says, "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants -- notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court's view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.

The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)”
http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi.html

> Duke Law Journal…

["when the surveillance occurs outside of the United States, FISA is not applicable, and there is no requirement of prior judicial authorization. In these cases, Executive Order 12,333 is the primary source of regulation”

http://www.law.duke.edu/journals/dlj/articles/dlj50p1467.htm
 

cnredd

Major General Big Lug
DP Veteran
Joined
Jul 5, 2005
Messages
8,682
Reaction score
262
Location
Philadelphia,PA
Gender
Male
Political Leaning
Slightly Conservative
libertarian_knight said:
With of course, the exception of 50 USC1811 (which has not been satsified)
"Section 1811. Authorization during time of war "
50 USC1811?...This is wrong...

It should read "Texas 41 USC 38"...:cool:
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
oldreliable67 said:
Ah, so you're 10 to 1 was a SWAG?

Since you asked, lets take a look at some of the court rulings:

> The Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

> In 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the 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, 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."

That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

There is a good summary of these and other relevant court cases here.

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.

Twice you attributed this statement "The only scholars I have read that agreed with the AG's opinion were either known conservatives, or worked for a Republican administration in the past." to me, it was said by another chatter, not myself.

The site you linked, said numerous times things like:
"So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable."

[Emphasis added.] While acknowledging that American governments had conducted warrantless surveillance in internal security cases "for more than one-quarter of a century," the Court held such surveillance unconstitutional under the circumstances presented.

It should be noted, too, that the Court did not hold that in domestic security cases, warrants are always required; it merely rejected the government's assertion of a blanket exemption for all such surveillance.

====

The concern again, is when US persons are a target of the communications intercetps.

NOT foriegn powers, not Iranian terrorists in Afghanistan. not canadians in Canada.

US PERSONS.

it's generally accepted, under the law, the president can spy on about 6,000,000,000 people on the planet without a warrant, so long as a US person in not part of the communications intercept.

I don't feel my simple question was answered. It does me no good to read through pages and pages and pages and pages of imformation concerning the presidents authority to conduct surviellence on forign powers or foriegn persons. I am not a foriegner, I am a US citizen, and would like to know the law concerning the specific aspect of the state's authority to spy on US citizens, without a warrant.

Of many of those rulings, the court decides to skirt the issue and not answer the question. I think under the law, and limitation of the constitution that the question is satisfactorily answered. The preisdent can't search and seize unreasonably, anything to do with americans.

Probable cause is reasonable, generally because there is actual witnessing, or inherent need, or something to be searched.

Suspicion because Joe Schmoe talks to Haji in Germany is not reasonable, it's paranoid, and seriously ****ing dangerous.

the purpose of the consitution was to limit government authority, if parts are interpreted to have absolute authority, regardless of courts and legislation, it makes the consitution useless, and we do live in anarchy now.

Rule of law is useless, if there is no limit to law.

If congress and the president have no limits in their authority, why bother having written the consitution? Why not just write, "the us government will have a congres that must include two senators from every state. It will have a president, and a judiciary who's job it is to agree with the preisdent and congress." instead of all this pretense for rights, justice and law?

make the *****ing president king and be done with it then, that's what's being argued for.

this is rediculous, that people would even argue in favor of their own subjugation. Slave touting the virtues of slavery. pure insanity, no humanity.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
cnredd said:
50 USC1811?...This is wrong...

It should read "Texas 41 USC 38"...:cool:
ha I just got that, texas won? BOOO TEXAS... not that I care for USC either but, BOOO TEXAS.
 

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
libertarian_knight said:
Twice you attributed this statement "The only scholars I have read that agreed with the AG's opinion were either known conservatives, or worked for a Republican administration in the past." to me, it was said by another chatter, not myself.
Ah, sorry, a senior moment or two. :(

I don't feel my simple question was answered.
Sorry if it wasn't. There is lots more case law that can be reviewed, but I feel that I've spent enough time doing research that you should be doing for yourself if you feel as strongly about this as you seem to.

the court decides to skirt the issue and not answer the question...The preisdent can't search and seize unreasonably, anything to do with americans.
No, the court doesn't skirt anything. Yes, the Pres can't search and seize unreasonably.

"So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable."
Right. Now go back and quote the rest. Nah, I'll do it for you:

"The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable.

One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.

In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth. The Court held that the Fourth Amendment applies to such conversations, and that in an ordinary criminal prosecution (subject to many exceptions, as noted above) a warrant is required for wiretap information to be admissible in court. The Court specifically noted, however, that its decision did not apply to situations involving national security.

Five years later, the Court decided United States v. United States District Court, 407 U.S. 297 (1972). The court concluded "[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

And again:

"We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents."

The third relevant Supreme Court case is Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The court said:

"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force]."

The Court further noted that apprehending military combatants is a necessary incident of the use of military force:

"We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."

Thus, neither the language of the Constitution nor the Supreme Court’s jurisprudence can justify a claim that the NSA program is illegal. While the Court has never specifically ruled on the issue, its decisions are entirely consistent with the administration's view that the President has the inherent constitutional authority to obtain foreign intelligence information through warrantless searches."

Source.

libertarian_knight said:
I think under the law, and limitation of the constitution that the question is satisfactorily answered.
There is the crux of my argument: is "the question [of the legality of the NSA surveillance program] satisfactorily answered"? My answer is no, it is not. There is sufficient support for the admin position by legal scholars that there is at least a possibility, perhaps even a probability, that the admin's legal position is correct and will be upheld either in part or perhaps even in whole, by the courts.

Consider this: you are able to find support for your arguments to the contrary in the cases, laws and scholarly opinions cited, while I have been able to find in those very same cases, laws and scholarly opinions, support for my arguments in favor of the AG's position. Does not that suggest to you that there is legitimate doubt as to the validity of both the extreme or absolutist pro or con positions? Does it not suggest to you that (to coin a phrase) 'the truth is out there', and most likely to be found somewhere between the extremes of pro and con?
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
Courts certainly do skit the issue.

"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force]."

And they do this all the time. Even if the position of one of the litgants is a certain stance, the courts will often dismiss that stance, and use an alternative, they may not even be an alternative of the Government's during the proceeding (unlike the case above). During that case, the court had perfect time to make a clarity in the ruling as to the extent of article II. (even though, specifically, this is related to detaining an American, as opposed to intercepting communications specifically involving Americans.)

Furthermore, courts have ruled time and again, though the Preisdent has surviellence powers, they are not unlimited blanket powers, and those targeting americans must be tempered.

I really see no reason that FISA was inadequet for the administration and NSA's needs.

It's my opinion that the administration chose to keep this secret because they new it was wrong. Not this BS about "tipping off the enemy." Do you seriously think that terrorist don't think they are being listened to? I don't, hell Osama new for years, or at least suspected, long before any American program activity altered him to it.

Maybe I am just way smarter than the terrorists, which just makes these thugs even more of a waste of time then.

Interestingly though, doesn't AUMF seem somewhat ex-post facto? (it is after all written in the language of the past tense.)

---
regarding the courts skirting the issue, I wonder if it's a way to "pass the buck" to another court that would rule in favor of the state position in the future, at least sometimes.

Judges are, after all, agents of the state, and have an interest in perpetuating and expanding the state, or if nothing else, return return favor to the institution that paid for their homes, kids college, and even fame.
 
Last edited:

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
I really see no reason that FISA was inadequet for the administration and NSA's needs...It's my opinion that the administration chose to keep this secret because they new it was wrong. Not this BS about "tipping off the enemy." Do you seriously think that terrorist don't think they are being listened to?
James Risen's new book has a alternative explanation for the secrecy and why FISA rules and regs may be insufficient. According to his new book, State of War: The Secret History of the CIA and the Bush Administration, the key to the program is a shift in telecommunications technology that in recent decades has made US networks the carriers of lots of international telephone and email traffic. A large volume of purely international telephone calls - calls that do not begin or end in the US - also now travel through switches based in the US. Calls from Asia to Europe, for example, may go through the US-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital "packets" of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephones system ends and the international network begins.

Risen goes on to say,

"In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community. Now that foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States.

But transit traffic also presented a major opportunity. If the NSA could gain access to the American switches, it could easily monitor millions of foreign telephone calls, and do so much more consistently and effectively than it could overseas, where it had to rely on spy satellites and listening stations to try to vacuum up telecommunications signals as they bounced through the air."


So, according to Risen's book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic privider switches in the U.S. to monitor communications that were mostly foreign to foreign.

Consequently, it's not that terrorists may suddenly realize that they may be monitored; that argument never made much sense, as every member of Al-Qaeda must know that they may be monitored. Rather, the security issue is twofold. In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don't happen to route through the U.S. And in the long term, some countries may react to the disclosures of the program by redesigning their telecommunications networks so less traffic goes through the United States. The more people abroad know that the NSA can easily watch their communications routed through the U.S., the less people will be willing to route their communications through the U.S. No doubt it was a long-term priority of the NSA to ensure that lots of international communications traffic was routed through the U.S., where the NSA could have much better access to it. Indeed, Risen's book more or less says this. The disclosure of the program presumably helps frustrate that objective.
 

SouthernDemocrat

Pragmatist
DP Veteran
Joined
Jun 23, 2005
Messages
22,561
Reaction score
13,776
Location
KC
Gender
Male
Political Leaning
Moderate
oldreliable67 said:
James Risen's new book has a alternative explanation for the secrecy and why FISA rules and regs may be insufficient. According to his new book, State of War: The Secret History of the CIA and the Bush Administration, the key to the program is a shift in telecommunications technology that in recent decades has made US networks the carriers of lots of international telephone and email traffic. A large volume of purely international telephone calls - calls that do not begin or end in the US - also now travel through switches based in the US. Calls from Asia to Europe, for example, may go through the US-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital "packets" of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephones system ends and the international network begins.

Risen goes on to say,

"In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community. Now that foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States.

But transit traffic also presented a major opportunity. If the NSA could gain access to the American switches, it could easily monitor millions of foreign telephone calls, and do so much more consistently and effectively than it could overseas, where it had to rely on spy satellites and listening stations to try to vacuum up telecommunications signals as they bounced through the air."


So, according to Risen's book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic privider switches in the U.S. to monitor communications that were mostly foreign to foreign.

Consequently, it's not that terrorists may suddenly realize that they may be monitored; that argument never made much sense, as every member of Al-Qaeda must know that they may be monitored. Rather, the security issue is twofold. In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don't happen to route through the U.S. And in the long term, some countries may react to the disclosures of the program by redesigning their telecommunications networks so less traffic goes through the United States. The more people abroad know that the NSA can easily watch their communications routed through the U.S., the less people will be willing to route their communications through the U.S. No doubt it was a long-term priority of the NSA to ensure that lots of international communications traffic was routed through the U.S., where the NSA could have much better access to it. Indeed, Risen's book more or less says this. The disclosure of the program presumably helps frustrate that objective.
Then change the law, dont just ignore it. Moreover, what about wiretaps of the phone conversations of U.S. citizens? Without oversight, how does one insure that those wiretaps are not for political or other means?

We already know that such groups as PETA and the Quakers have been investigated as a result of these warrantless wiretaps.
 

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
SouthernDemocrat said:
Then change the law, dont just ignore it. Moreover, what about wiretaps of the phone conversations of U.S. citizens? Without oversight, how does one insure that those wiretaps are not for political or other means?
> The legal theory set forth by the AG clearly states that this program is within the purview of the Executive Branch, therefore new legislation is not needed or required. Personally, as I've said before, I'm hoping for a court test.

> The admin maintains that over 30 briefings have been held with key members of Congress. Moreover, the AG has provided the certifications and secret audits necessary that have been provided to those key members. According to various press reports (NYT and WP articles noted in earlier posts), when objections have been raised on minimization grounds by the DoJ, they were addressed, changes were made and the program resumed. Thus, the admin maintains that oversight is in place and functioning.

The lack of protests from congresspeople until after the fact of disclosure suggests the intelligence committees found no groundswell of disapproval among their ranks.
 

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
SouthernDemocrat said:
We already know that such groups as PETA and the Quakers have been investigated as a result of these warrantless wiretaps.
PETA has several subs and affiliated organizations that have been closely linked to various kinds of property destruction, to the point where I believe some media have labeled them as 'eco-terrorists'. From what I've read, there has been sufficient probable cause to look very closely at those aspects of PETA.

But I haven't read about warrantless spying or monitoring of PETA or the Quakers - could you provide a link or two?
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
HOLY CRAP,

Old, I was reading this thinking, "wow, I wonder what OldReliable is going to say about this."

didn't realize you were the poster.

See, now this idea makes it possible for me to see why the administration would be upset at revealing the program, not because of the program itself, but the technological and espionage benefits gained from our phone networks.

EDIT [forgot to hit the post button, and switched windows, so it's a little late, but this is reference to the book except and topic]
 
Last edited:
Top Bottom