A university is just a group of buildings gathered around a library. ~Shelby Foote

Monday, December 19, 2005

Bush, the War, and the Law

Finally, two plus years into the thing, we finally get a talk from President Bush on Iraq. About time, Mr. President, though watching Bush sit rather awkwardly behind that desk aimlessly flopping his hands around, you get a pretty good feel for why he hadn't done this earlier. He's just not very good at it.

That said, at least he finally, finally, made the very simple, and very effective, arguement that we should not cut and run from Iraq at this point in time because we are winning. He also, somewhat obliquely, answered all the liberals out there that seem to be totally obsessed with the "No WMDs= Bush lied" talking points. I wish he had made the argument better, and more clearly, but as noted above, he's not very good at this sort of "direct to the people" talk.

Unfortunately, the talk came one day after Bush effectively said it was okay for the government to spy on folks without getting a court order, a statement he reiterated earlier today. Um, no. If there is reason to believe that there is a need to monitor calls, the NSA should get a friggin' court order, Mr. President. I'm not a big fan of the "slippery slope" argument, and I understand that this war is different than previous wars, but this is a dangerous, dangerous precedent to set.

And then, I still have issues with this administration's defense of torture-- or refusal to renounce torture, if you prefer. The argument that "such and so" isn't actually torture, or that what is torture is isolated is soothing, but ultimately unconvincing to me. Bush should support the McCain amendment. Torture should be banned, end of story. This is not how we do business, or at least, it shouldn't be. The tipping point for me is contained in this post. Ultimately, compromising on this issue is corrosive to the principles on which this country is founded.

One of the main reasons I think that both support for the war and Bush's popularity numbers have fallen is that the justification generally comes down to, "Trust me. I have the best interests of the country in mind, so it's okay for me to do these things." The big problem being that I no longer trust Bush, and in a number of areas, I don't think it's okay for him to be doing these things, even if I did trust him. Because even if the power Bush wants for the NSA and the CIA and interrogators in the military is used wisely and effectively for now, a doubtful premise, the precedent it sets for the future is disturbing.

There need to be checks and balances on power, for the very good reason that even good people abuse power, and evil people abuse it as extensively as they can. Our Founding Fathers recognized that, and a more visionary and brilliant group may never have existed in one place at one time ever before or since. I have to say, I'm more inclined to trust them and the system of checks and balances they established 200+ years ago, then I am to trust George Bush, Dick Cheney and Alberto Gonzalez.


We've already had the debate on torture, so there's no need to revisit that. But you seem to be missing a couple of news stories of late:

Bush has agreed to implement McCain's 'no torture or inhumane treatment' policy.

Bush's polls have increased to 50%+.

Hopefully memory doesn't fail here, but 69% of people polled want to finish the war, not withdraw.
John, depending on the poll you look at, Bush is doing better, but I haven't seen any of the polls showing him at 50%+ yet. Here's the Washington Post's latest.

Bush's overall approval rating rose to 47 percent, from 39 percent in early November, with 52 percent saying they disapprove of how he is handling his job. His approval rating on Iraq jumped 10 percentage points since early November, to 46 percent, while his rating on the economy rose 11 points, to 47 percent. A clear majority, 56 percent, said they approve of the way Bush is handling the fight against terrorism -- a traditional strong point in his reputation that nonetheless had flagged to 48 percent in the November poll.

Nick, regarding the need for a friggin' court order, let's keep in mind that the Fourth Amendment only prohibits unreasonable searches and seizures; not all searches require a warrant to be legal.

Also, more of the original NYT story that started this debate needs to be read. The NYT loves to bury facts deep in their stories, knowing that many won't read the whole thing.

What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, the officials said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

One problem that the U.S. faced immediately following September 11th was that our intelligence agencies weren't able to talk to each other. Another problem that some of those agencies had was that they could only monitor international communications or, if the trail reached the U.S., they could only monitor the communications if the U.S. side of those communications was made by a foreign power or an agent of a foreign power (see 50 USC 1801). If the agencies didn't know who was being contacted in the U.S., they needed to get a FISA warrant in order to continue to monitor the communications.

What this comes down to is that, under the new rules that Bush is being criticized for, when we got Zubaydah's phone directories, the NSA could monitor the communication lines found therein as long as one of the sources was outside of the U.S. or one of the sources was a foreign power or an agent thereof. Previous to this, the NSA would have needed to stop monitoring the communications, if the communication lines hit an unknown source in the U.S., until a warrant could be secured.

This wasn't a situation of the Bush administration monitoring Ted Kennedy's calls to the liquor store, this was the NSA continuing to monitor communications with suspected or known terrorists with at least one of the sources outside of the U.S. or one of the sources being a foreign power or agent thereof.

There were issues that came up with this program. The FBI wasn't sure, when it encountered some surveillance problems, whether they would be able to continue to monitor the Brooklyn Bridge terrorist because they might not be able to use the NSA's intel.

A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.

One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment.

A related issue arose in a case in which the F.B.I. was monitoring the communications of a terrorist suspect under a F.I.S.A.-approved warrant, even though the National Security Agency was already conducting warrantless eavesdropping. According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for a short time because of technical problems. At the time, senior Justice Department officials worried what would happen if the N.S.A. picked up information that needed to be presented in court. The government would then either have to disclose the N.S.A. program or mislead a criminal court about how it had gotten the information.

Luckily, we did take him down before another New York landmark disappeared.

So, I'll need to disagree here. I think that it is okay for certain individuals to be spied upon without a friggin' court order, especially when the authorized surveillance is reviewed approximately every 45 days, each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland, previous activities under the authorization are reviewed, the review includes approval by the Attorney General and the Counsel to the President, the activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, and leaders in Congress (from both parties) have been briefed more than a dozen times on this authorization and the activities conducted under it.

Yes, considering all of this, I fail to see the slippery slope argument pan out, especially since one could make the argument that the President is fully authorized under Constitutional authority recognized by the 1972 Supreme Court decision in United States v. United States District Court (407 U.S. 297). In that case the SCOTUS noted "the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest," but that "[f]urther, the 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." The Supreme Court also went on to opine that the affidavit from the Attorney General in the case stated that the surveillances were deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government.

And as far as McCain's amendment on torture goes (S.1043 - Department of Defense Authorization Act for Fiscal Year 2006 - Sec. 1075), I was against it for one word: Degrading. How long will it be until a so-called civil rights group complains that some terrorist we are holding has received degrading treatment because a woman interrogated him, and that is degrading to someone following a strict fundamentalist form of Islam? I can see that or any other asinine complaint arising on the basis of the action being "degrading."

The only good news is that, maybe, when field commanders are making decisions about the enemy combatants firing on friendly positions from the location just down range, that those commanders will destroy the target instead of risking the lives of American troops because we wouldn't want to worry about someone degrading them in confinement.

And with that in mind, maybe we should treat them all like POWs. After all, POWs are held until the end of hostilities.

In fact, maybe that was McCain's plan all along. If we don't kill them on the battlefield, then they'll die in captivity. He beat his political opponents at their own game. What an evil bastard. He really must be a Republican.
Well, Mojo, as usual you are correct. I thought Bush had hit 50 in the Rasmussen poll, but 48 was the highest for December as of 12-20.

And as far as McCain being an evil bastard, that's Karl Rove's job. Just ask any democrat.

Otherwise, a great response, as always!
How hard is it to get a warrant? Under the cirmcumstances described, I think it would have taken about 5 minutes. And, since it's legal, why was it a secret? Perhaps because most people don't want the government eavesdropping on the citizenry without substantial justification? If that justification exists, getting a warrant won't be a problem. If it doesn't, why do I want the government to be able to tap that phone? I am having increasing difficulty accepting this administrations general disdain for the checks and balances that have existed in this country since its inception.

As to the torture amendment-- I am glad that Bush signed it. I wish he hadn't done it so grudgingly, but at least he did sign it.

And McCain has issues-- mainly his ego-- but he also has core beliefs that he does not back down from. I admire that. I admire the same thing in Russ Feingold even though I disagree with his positions on nearly everything. I admire it in Bush, too, for that matter-- I just wish he was better at articulating those beliefs, and at picking his staff.
You haven't read the FISA legislation if you honestly believe that the NSA could, while in the midst of monitoring the communications of a foreign power or agent thereof (which would include terrorist organizations and terrorists), simply pick up a separate direct line to a FISA court and say, "We're tracking Haji, who has been identified as a major player in the Al Medina group, and he is trying to contact someone in New Jersey at this moment. We'd like to have an instant warrant, or at least one within the next five minutes, to monitor the communication in order to determine the purpose of Haji's communication with this individual in New Jersey."

First, requests for FISA warrants need to go through the Department of Justice. The DOJ reviews all FISA warrant applications from any agency submitting them (including the CIA and the NSA), and each application must be personally approved by the Attorney General.

Second, the application must be made in writing and under oath or affirmation. It must include: The identity of the Federal officer making the application; the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application; the identity, if known, or a description of the target of the electronic surveillance; a statement of the facts and circumstances relied upon by the applicant to justify his belief that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; a statement of the proposed minimization procedures; a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance; a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate that the certifying official deems the information sought to be foreign intelligence information, that a significant purpose of the surveillance is to obtain foreign intelligence information, that such information cannot reasonably be obtained by normal investigative techniques, that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title, and including a statement of the basis for the certification that the information sought is the type of foreign intelligence information designated, and such information cannot reasonably be obtained by normal investigative techniques; a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance; a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device (50 USC 1804).

As you can see here, it isn't a five minute process. Even worse, the procedure becomes more arduous if the surveillance might have the possibility of picking-up the communications of a U.S. citizen or an alien resident of the U.S.

You asked why this process was secret if it's legal. Why are any of our intelligence operations kept secret? They are secret because we need to cloak the personnel, methods, and sources of our intel so that the enemy isn't able to easily harm our personnel, circumvent the collection processes that we have set in place, or feed us false intelligence. Secret does not mean illegal.

In fact, I'd redirect the question. If this was illegal, why did the members of Congress who were briefed on it keep it secret? Senator Rockefeller, vice chairman of the Senate Intelligence Committee and a Democrat who is no friend of the Bush administration, was briefed on this very program. While it has been reported that Senator Rockefeller wrote a letter to Vice President Cheney expressing concerns about the program, the Senator has declined any further comment.

If the program was illegal, then there are Democrats who have been briefed on what would surely be a slam-dunk case of high crimes and misdemeanors. Why wouldn't they call for impeachment? Why is this hemming and hawing only happening now that the NYT has printed as story that correlates well with the debate on the renewal of the Patriot Act and the new book on a related subject from one of the reporters who contributed to the story?

The other big issue here is the one not being discussed at all. According the NYT piece, "Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight." These officials have discussed what appears to be a classified program that is directly related to our national security. Why hasn't there been an outcry for an investigation into those who leaked this?

I say fine. Tie the hands of intelligence agencies so that they need to drop the call at the U.S. shore if we don't know who Ahmed is calling. Chastise those agencies that are trying to maintain national security and trying monitor the terrorist chatter that they were chastised for not monitoring closely enough prior to 9/11. And, while we're at it, ignore those who leak classified information (they're probably just heroic whistle-blowers, anyway).
John, you still trust the President?

Mojo, same question, please.

Just trying to keep track.....
Yes, I still trust the President.
Great reply again, Mojo.

And, yes, Anony, for a politician, Bush is very trustworthy.

Somehow, I don't think that listening in on calls from the US to known terrorists is going to hurt me any.
So it's not a five minute process. I'm afraid I still don't see a pressing need for this wire-tapping. Mojo-- you make it sound like the NSA would need to get a new court ordered warrant for every call. That's just silly. You get the phone book from Zubaydah, and you get the court to issue warrants to monitor those numbers. And you track incoming and outgoing calls to and from that number. Those calls may to be to numbers and individuals previously unknown to the NSA or FBI or CIA-- you get a court order to monitor those.

Why exactly do we need to get these taps without a warrant? After 9/11, when we knew next to nothing, maybe. Maybe. But now? Get warrants for the people you suspect. Get new warrants if you discover new information implicating someone you did not previously suspect.

I suppose the argument would be, that could be too late, but really, that argument could be expanded to anyone. Let's tap all the phones-- because there are terrorists out there we don't know about, after all, and if we don't do it now and without judicial oversight, well, the Washington Monument might get blown up. This is the problem with your argument-- the claim of tieing the hands of intelligence agencies. It's sounds bad, it sounds dangerous, but in fact, I think all requiring warrants would do is to prevent potential abuse by our intelligence agencies.

A fine line, to be sure-- do I want terrorists surveilled? Certainly. Do I want government agents eavesdropping on people with limited oversight? Absolutely not. Streamline the process, perhaps, so that getting those wire tap warrants isn't quite so time consuming, but there is a reason this type of surveillance is normally highly regulated and reviewed.

It's Big Brother/1984 in spades if it gets abused.

By no means do I want to tie the hands of our intelligence operations. At the same time, I by no means want to give them carte blanche to tap anyone and everyone they want because Bush's executive order says they can.

Conservatives often sneer when complaints about civil liberty reductions are cited as bad. Nothing compared to securing our nation, after all. Except they are. That's why the abuse and possible torture of POWs and/or enemy combatants in our power bothers me. That's why this tapping, even if technically legal, bothers me.

Chip, chip, chip.

Hear that? Civil liberties being eroded away. Nothing big. Little bit here. Little bit there. Chip, chip, chip.

Can I throw you tons of statistics and whatnot at you? Maybe, but I don't have the time. Cop out? Maybe, but there it is. I will state quite confidently, however, that after reading quite a lot about our Founding Fathers recently I think they all would disapprove of Bush's recent use of executive power.

Well, except Hamilton. He'd probably applaud heartily-- which is all the more reason to reconsider the program.
Oh, and let me add, that I do think whoever leaked the information on the program should be prosecuted to the same extent as those who leaked classified information in the Plame fiasco. There are times and places where leaking these things is the right thing to do-- but it's still illegal and if you engage in illegal activity, even if it can be seen as morally correct, there is a penalty to be paid.
And, hey, George Will agrees with me:


though some of his reasoning is different than mine. Which is unsurprising given that he is more of a conservative, and I am more of a libertarian.
John, thanks for the kudos. Now get ready for another long response/rebuttal.

Nick, how long do you think that the numbers in Zubaydah's phone directories were good for after we caught him? Even if we got a FISA warrant within 24-hours of his capture for each of those numbers, the numbers were probably no longer in service within 48-hours after we would have received the warrant. Dead lines and useless warrants within 72-hours.

I'm not saying that the NSA would not need to get a new warrant for each call, but an electronic surveillance warrant is generally issued only for the specific lines of communication identified in the warrant. Once those lines of communication cease to function, the warrants become useless.

Also, FISA warrants are for targeting solely international communications, or communications solely involving foreign powers or agents thereof. When a U.S. citizen or resident alien is a likely sender or recipient of one side of that communication, FISA can remove the ability of the intelligence agencies to retain, or pass on to domestic law enforcement, the information about that U.S. person.

Now, if we can identify those who were in possession of the numbers in Zubaydah's phone directories at the time of capture, maybe we can get a roving warrant for them. Having the surveillance tied to the individual, not the means of communication, is a big perk (thank you, Patriot Act). Unfortunately, a roving warrant under FISA would need to focus on foreign powers or agents thereof; no U.S. citizens or resident aliens are supposed to be picked up or targeted, except as authorized by statute.

Let us be clear: the program in question focuses on international communications. The reason for the program appears to have been to allow intelligence agencies which focus on international communications for national security purposes to lift the FISA restrictions on monitoring and retaining information from communications that are sent by, or intended to be received by, a U.S. citizen or resident alien. This program truly seems to be a gap-filler in our national security surveillance, not an evil program to target the communications of any U.S. citizen.

Don't get this wrong; I am not saying that the NSA program in question was setup to violate FISA. I believe that the NSA program, at least from what I have been able to read about it, is above-board. Secret? Yes, but still legal nonetheless. I cite the following to support this assertion:

1. The 1972 Supreme Court decision in United States v. United States District Court (407 U.S. 297) said that there was a "necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest," but that "Further, the 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."

2. "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General.

"It is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

Deputy Attorney General Jamie Gorelick, testifying before the Senate Intelligence Committee, 14 July 1994

3. "That 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."

Authorization for Use of Military Force (AUMF), S.J. Res. 23, 15 December 2001

4. "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."

United States Foreign Intelligence Surveillance Court of Review, 2002

5. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States."

Hamdi v. Rumsfeld, 2004, in support of the claim that a U.S. citizen can be an enemy combatant

6. In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Hamdi v. Rumsfeld, 2004, in support of the claim that an action taken under the AUMF does not need to be part of the specific language of the AUMF

The fact is that warrantless surveillance is authorized and legal for certain authorities in certain situations. Parts of FISA allow for it, the Attorney General's Manual allows for it, various federal statutes allow for it, and precedent supports it.

Your argument appears to be that a warrant should be used for any surveillance by the NSA. That is fine if that is your opinion. If you are going to argue against the legality of the NSA program, however, then please state which laws have been broken and why the above cited case law and precedent doesn't apply or would be superseded by the authority of any of the statutes allegedly violated.

You state that you don't want government agents eavesdropping on people with limited oversight, yet Congress was briefed multiple times on this program. The following does not sound like limited oversight to me:

- The authorized surveillance is reviewed approximately every 45 days.

- Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland.

- Previous activities under the authorization are reviewed.

- The review includes approval by the Attorney General and the Counsel to the President.

- The activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials.

- Leaders in Congress (from both parties) have been briefed more than a dozen times on this authorization and the activities conducted under it.

I don't think that is a chip, chip, chip that you are hearing. I think it might actually be the click, click, click of a keyboard at the NYT typing out half-truths and innuendo in an attempt to distract the public from recent successes in Iraq, to take a shot at weakening support for the Patriot Act, and to help promote and/or create sales of James Risen's upcoming book.

And as far as how the Founding Fathers' would have viewed President Bush's use of executive power, I think that they would have been happy that they left the Article II powers of the executive branch in less than narrow language so that it could continue apply to ever evolving advancements in technology. I think that they would also probably point out that the executive branch is an equal branch of the federal government, with Constitutional powers that cannot be simply usurped by statute.

George Will does argue that Bush should have requested that Congress change the FISA statues to allow a broader application of the surveillance that it authorizes, but he also stated that "[w]ithout more information than can be publicly available concerning threats from enemies operating in America, the executive branch deserves considerable discretion in combating terrorist conspiracies utilizing new technologies such as cell phones and the Internet." I would also ask Will how he would have expected this program to remain classified if all of Congress and their staff would have known about it in some way, when this classified program couldn't remain classified with only the appropriate committees of Congress and the intelligence community being aware of it.

And, in regards to opposing political view points agreeing with one another, John Schmidt agrees with me. He served under President Clinton from 1994 to 1997 as the associate attorney general of the United States.

The worst part of this entire situation is that a classified program directly related to our national security has been exposed to our enemies and the world because a few people decided to flap their lips. The enemy now knows about this, the program may be lost, and we may soon be seeing legislative battles (based more on partisanship than a concern for civil liberties) which could hamper the ability of our intelligence agencies to carry out their duties in a reasonable and expeditious manner.

I truly hope that the individuals who leaked the information about this classified program are identified and punished to the fullest extent of the law, because in their action is where I think that the true crime really exists.
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