Libertarian Librarian

So let's see, it's two parts of 'you don't have to worry if you're not doing anything wrong' to three parts of 'it's Bush-Hatred' sprinkled with just a pinch of 'pining for Watergate?'

That's going to be this week's talking points? got it.

Has f-all to do with, you know, breaking the law, but I'm sure we can flog these old things to within a hair of relevance.
 

T.C., you state that it has f-all to do with, you know, breaking the law. Is it your contention that the law was broken and, if so, could you please state the statute or statutes that were allegedly violated, who committed the alleged violations, and what actions they performed to do so?
 

Did you read the whole article, tc? Methinks not, since your comments seems to be in relation only to the bit I highlighted. I highlighted it simply to explain why my reflex reaction to the story was "My God! The horror!" Which still may turn out to be the appropriate reaction once all the details are known, but now that some of those details are coming out, the whole situation seems much less incendiary than it appears at first blush.

I would like someone to look into why, if the President really thought that the Congress had given him authority to do this post-9/11 the administration didn't want to verify that authority with Congress for fear of being turned down. I would like to know what criteria the NSA is using to qualify someone as a "foreign agent." I would also like to know why FISA has rejected far more of Bush's warrant applications than any previous presidents-- either the requests overreach badly, or FISA is hamstringing national security for reasons unknown. Which of those two things is actually the case would be good to know.

Prof. Sunstein is no reflexive Administration hack-- an argument you might be able to make against the White House Counsel's assurance that the program was legal. Sunstein is a Harvard Law graduate, who clerked for Thurgood Marshall, is a Professor at the University of Chicago and served on the President's Advisory Committee on Public Interest Obligations of Digital Television Broadcasters during the Clinton administration.

He has some "cred" and he doesn't think that what Bush did was illegal. That doesn't mean it was right or shouldn't be reviewed more thoroughly, but most legal scholars do seem to feel the NSA program was legal.
 

Why, if the President really thought that the Congress had given him authority to do this post-9/11, the administration didn't want to verify that authority with Congress for fear of being turned down.

When Congress passed the Authorization for Use of Military Force (AUMF), and when the President signed Senate Joint Resolution 23 on 18 September 2001, it became law. Once a law exists, the administration (like others before it) will consult counsel to ensure that they are acting within the parameters of the law, but the neither the executive nor the judicial branches need to consult the legislature in order to verify the intent of Congress in regards to a bill that has been sent to the President and become law. The duty of the legislature, in regards to a bill, is done when that bill is sent to the executive.

The judicial branch, when executing its Constitutional duties to judge the constitutionality of our laws, does not consult the legislature in order to determine what their intent was when a bill was debated and passed. Instead, the courts judge based upon the law that is in place, legal argument and precedent, and their interpretation of its constitutionality.

The executive branch is a co-equal branch of the federal government and derives its powers from the Constitution; carrying out its duties as the branch of the federal government which commands the military and oversees the departments responsible for national security, especially with the AUMF signed into law, does not require the consultation of the other two branches of the federal government regarding the verification of their intent during the execution of their Constitutional duties.

Part of waging war, as noted in the post you linked to, involves taking prisoners and conducting surveillance. The Supreme Court, in their ruling in the Hamdi case, stated clearly that, while the AUMF does not specifically mention powers to capture and detain the enemy, that that power is implicit in the AUMF because it is a normal action in the course of waging war. As well, the Hamdi ruling noted that enemy combatants may be foreigners or citizens; that citizenship does not exclude one from the capability of being an enemy of the same nation that grants one citizenship.

Considering that, Hamdi seems to reinforce the administration's contention that surveillance of enemy communications, even if those communications may occur within the borders of our nation, and even if citizens of our nation may be parties to those communications, would be allowed because such surveillance would be a normal action in the course of waging war.

Also, keep in mind that the administration did brief members of Congress on multiple occasions regarding this NSA program.


I would like to know what criteria the NSA is using to qualify someone as a "foreign agent."

While I can't say definitively, the NSA is most likely using the definition of a "foreign agent" found in 50 USC 1801, which is:

(1) any person other than a United States person, who (A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section (50 USC 1801); (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or

(2) any person who (A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States; (B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States; (C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; (D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or (E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

The key parts of this would be that (2)(C) defines a foreign agent as any person who knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; and (2)(E) defines a foreign agent as any person who knowingly aids or abets any person involved in clandestine intelligence gathering for a foreign power, clandestine intelligence gathering at the behest of a foreign power, or actions or preparation for actions involving sabotage or international terrorism.

Note that only (1)(A) and (1)(B) refer to "any person other than a United States person." The definition provided in (2)(A)-(E) refers to "any person," and does not exclude a United States person.


I would also like to know why FISA has rejected far more of Bush's warrant applications than any previous presidents-- either the requests overreach badly, or FISA is hamstringing national security for reasons unknown. Which of those two things is actually the case would be good to know.

According to FISA stats that I found at the Electronic Privacy Information Center (EPIC), here are the numbers of requests presented, approved, and rejected as compiled from the annual FISA reports to Congress since its inception in 1979.

Under President Carter's administration, 518 FISA requests were presented (an average of 259 per year), 529 were approved (an average of 264.5 per year), and none were rejected.

Under President Reagan's administration, 4294 FISA requests were presented (an average of 536.75 per year), 4298 were approved (an average of 537.25 per year), and none were rejected.

Under President George H.W. Bush's administration, 2218 FISA requests were presented (an average of 554.5 per year), 2218 were approved (an average of 554.5 per year), and none were rejected.

Under President Clinton's administration, 6057 FISA requests were presented (an average of 757.125 per year), 6057 were approved (an average of 757.125 per year), and none were rejected.

Under President George W. Bush's administration, 5645 FISA requests were presented (an average of 1411.25 per year), 5640 were approved (an average of 1410 per year), and 4 were rejected.

(Note that some of the approval numbers are higher than the some of the request numbers. I believe that this is due to the renewal of requests that have already been approved.)

The United States did not appeal any of the Court's four denials. However, the 2003 FISA report provides additional information about two of the four applications denied:

"(1) In one case, the Court issued supplemental orders with respect to its denial, and the Government filed with the Court a motion for reconsideration of its rulings. The Court subsequently vacated its earlier orders and granted in part and denied in part the Government's motion for reconsideration. The Government has not appealed that ruling. In 2004, the Court approved a revised application regarding this target that incorporated modifications consistent with the Court's prior order with respect to the motion for reconsideration.

"(2) In another case, the Court initially denied the application without prejudice. The Government presented amended orders to the Court later the same day, which the Court approved. Because the Court eventually approved this application, it is included in the 1724 referenced above."

While it is true that there were more FISA requests rejected during G.W. Bush's administration (the only ones ever rejected since 1979 were from requests made in 2003), there were only four rejected out of 1727 (or 0.23% of all requests from 2003). Considering the situation that the U.S. has been in since the attacks of September 11th, 2001, and considering that it appears that revisions of two of these rejected requests were approved, I don't think that the rejections indicate an attempt to overreach as a matter of policy when requesting FISA warrants.
 

This is why we need to be able to tap terrorist communications that route through the U.S. immediately, instead of waiting for lawyers or a warrant:

From the New York Post on Monday, 15 October 2007

'WIRE' LAW FAILED LOST GI
10-HOUR DELAY AS FEDS SOUGHT TAP TO TRACK JIMENEZ CAPTORS IN IRAQ
By CHARLES HURT, Bureau Chief

October 15, 2007 -- WASHINGTON - U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year, The Post has learned.

This week, Congress plans to vote on a bill that leaves in place the legal hurdles in the Foreign Intelligence Surveillance Act - problems that were highlighted during the May search for a group of kidnapped U.S. soldiers.

In the early hours of May 12, seven U.S. soldiers - including Spc. Jimenez - were on lookout near a patrol base in the al Qaeda-controlled area of Iraq called the "Triangle of Death."

Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

Four of the soldiers were killed on the spot and three others were taken hostage.

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the "probable cause" necessary for the attorney general to grant such "emergency" permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

"The intelligence community was forced to abandon our soldiers because of the law," a senior congressional staffer with access to the classified case told The Post.

"How many lawyers does it take to rescue our soldiers?" he asked. "It should be zero."

The FISA law applies even to a cellphone conversation between two people in Iraq, because those communications zip along wires through U.S. hubs, which is where the taps are typically applied. [emphasis mine]

U.S. officials had no way of knowing if Jimenez and his fellow soldiers were still alive during the nearly 10-hour delay.

The body of one was found a few weeks later in the Euphrates River and the terror group Islamic State of Iraq - an al Qaeda offshoot - later claimed in a video that Jimenez and the third soldier had been executed and buried.

"This is terrible. If they would have acted sooner, maybe they would have found something out and been able to find my son," said Jimenez's mother, Maria Duran. "Oh my God. I just keep asking myself, where is my son? What could have happened to him?"

Duran said she was especially frustrated, "because I thought they were doing everything possible to find him."

"You know that this is how this country is - everything is by the law. They just did not want to break the law, and I understand that. They should change the law, because God only knows what type of information they could have found during that time period."