America... Spying on Americans

It is certainly reasonable to be concerned about the possibility of the President exceeding his executive authority. It is certainly reasonable to be concerned about surveillance that is conducted without court warrants. It is certainly reasonable to want more information so as to be able to determine if the President has overstepped the limits of his authority and circumvented the law

Finn d'Abuzz wrote:

FreeDuck wrote:

The fact that existing law was not followed is not in dispute -- he has admitted it. The only question is whether the president has Constitutional authority to disregard the law.

It's a big question though, isn't it?

Yes, it is. Too big to be dismissed as a partisan attack, and too big to be ignored or left up to faith.

Uh, yeah.

Have a look around, Finn. You are the only poster I have seen even acknowledge that there is a valid concern. Every other poster from the dark side :wink: appears to be asserting that one must either dismiss the reporting as a partisan attack or be drinking the liberal koolaid. I'm specifically referring to earlier in this thread (I haven't been around for a few days, so it might be a ways back) and on the Bush supporters thread (to be expected, I guess). If you'd like me to name names, I can do that too, but it might derail the thread as they each come forward to defend themselves.

No names are necessary.

I mistakenly thought you were coyly suggesting it was I, and I attempted to coyly draw it out of you.

It's in preperation for my soon to arrive 2006 resolution not to write posts based on possibly erroneous assumptions.

It doesn't oficially kick in until a minute after midnight tonight (CST) so don't hold me to it yet.

. . . A blurb from the NPR webpage:

Ever since The New York Times revealed that a National Security Agency program was wiretapping U.S. citizens on an order from the president, experts around the country have been working to determine exactly what the secret program was.

The primary mystery is why the government would need to go around the Foreign Intelligence Surveillance Act (FISA). . . .


. . . let's assume the issue is undecided until the Supreme Court weighs in, while maintaining our personal opinions on whether or not the President of the United States has the authority to order this surveillance without obtaining court warrants.

If Naftali is correct, then the Administration has been, essentially, going on a fishing expedition with this surveillance . . . in the hope that the mass of aggregate information will reveal patterns that can pinpoint actual Sleepers.

Would this change anyone's previously held position on the issue?

The City’s position would effectively eviscerate the Fourth Amendment. It is quite possible that both protestors and passersby would be safer if the City were permitted to engage in mass, warrantless, suspicionless searches. Indeed, it is quite possible that our nation would be safer if police were permitted to stop and search anyone they wanted, at any time, for no reason at all. Cf. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (requiring that police demonstrate individualized suspicion that a suspect is armed before frisking him). Nevertheless, the Fourth Amendment embodies a value judgment by the Framers that prevents us from gradually trading ever-increasing amounts of freedom and privacy for additional security. It establishes searches based on evidence—rather than potentially effective, broad, prophylactic dragnets—as the constitutional norm.

. . . We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.

Now imagine that you are the President of the United States in a post-9/11 America. If the NSA came to you and convinced you that it had the means of identifying likely terrorist Sleepers in our country which would lead us to being able to foil terrorist plans, but it would be necessary to conduct wiretaps and e-mail intercepts of people without any known terrorist affiliations, what would you do?

I think we should all be able to agree that the first step would be to obtain a legal opinion from the Attorney General.

Dear Attorney General:

I intend to conduct mass suspicionless and warrantless dragnet searches and seizures of the electronic communications of the American people in the hope that I can identify potential terrorists. At least, that's my ostensible purpose and if I detect other private conversations that incidently help me in other ways, oh well. (wink, wink) Both the Constitution and FISA stand in my way. Therefore, I request a secret written legal opinion from the Department of Justifications that states the President is "above the law." In other words, I request a secret written legal opinion that states the President has "inherent constitutional authority" to do what I intend to do notwithstanding the Fourth Amendment and FISA. (Things would be a lot easier if this was a dictatorship and I was the dictator, LOL).

I will then stash that secret written opinion away in a secret place. In the meantime, while I am conducting mass suspicionless warrantless searches, I will openly lie to the American people and tell them that nothing has changed. I will make speeches throughout the nation. I will proclaim that wiretaps still require a court order because we respect the Constitution and the laws of this country. Those lies will generate the false confidence that the American people may have that I am a president who honors his oath. After all, I have to get re-elected and the false confidence of the electorate is necessary to achieve that goal.

If my secret domestic spy program is shamefully leaked by some whistleblower and the media exposes my program to the public, I will then whip out your secret written opinion to justify my actions and as a means to cover my ass.

Respectfully, your freedom-loving (ha, ha) President,
George W. Bush

If we were convinced that this program would be of significant value, might we instruct White House Counsel to find a legal argument that might justify the program, and then ask the Attorney General to consider it?

If the Attorney General came back to us and reported: "Well a reasonable argument can be made that you do not have the authority to proceed with this program and a reasonable argument can be made that you do, and ultimately, it will fall to the Supreme Court to decide." How would you proceed?

Let's narrow the possibilities even further and say the AG reported that while a reasonable argument could be made that we did have the authority, it was stronger argument that we did not. How would you proceed?

Now let's introduce politics. Our political advisor tells us that if we proceed with this program and it is leaked (as it almost certainly will be) we will face a critical firestorm and impeachment talk -which will take on gravitas if the Democrats win back congress in 2006. He also tells us, though, that if there is another 9/11 style attack on America, we will face a firestorm of criticism because we did not do everything we could to prevent it.

What would you do?

So here's the scenario:

There is a program that offers a good chance to prevent terrorist attacks within America. Arguably you do not have the authority to authorize it, but then again, arguably you do. If the program comes to light (as it almost inevitably will) you will take a political punch in the gut. If there is another terrorist attack, you will take a political punch to the gut.

What do you do?

I have no problem with someone arguing that in the same circumstance that they would not order the program to go forward. To do so is neither negligent or the cowards way out.

What I have an enormous problem with is someone arguing that if under these circumstances someone decides to go forward with the program, they are a tyrant and attempting to establish a dictatorship.

If it could be shown that the President ordered the program to go forward so that his political enemies could be punished, his personal coffers enriched, or his personal power enlarged, I would jump on the impeachment bandwagon. Until then I think it is partisan hysteria.

The management of foreign relations appears to be the most susceptible of abuse, of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts & at such times as will best suit particular views; and because the body of the people are less capable of judging & are more under the influence of prejudices, on that branch of their affairs, than of any other. Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions agst. danger real or pretended from abroad.

Finn d'Abuzz wrote:

So here's the scenario:

There is a program that offers a good chance to prevent terrorist attacks within America. Arguably you do not have the authority to authorize it, but then again, arguably you do. If the program comes to light (as it almost inevitably will) you will take a political punch in the gut. If there is another terrorist attack, you will take a political punch to the gut.

What do you do?

SECRET PROGRAM = SECRET POLICE STATE.

SECRET PROGRAM = lying to the America people and creating an illusion that their President values the fundamental principles that we hold dear as a nation because I erroneously believe the appearance of freedom means more to the American people (or should I say, sheeple) than the reality.

While I appreciate your attempt to play devil's advocate in attempt to paint this dire dilemma that the President supposedly faced when he ordered the mass suspicionless electronic surveillance of the American people, but the amorphous war on terrorism does not require any sitting President to sell his soul to the devil.

But wait, that's a Red Herring because as we all know "Acting in good faith does not put anyone above the law, including the president (and whistleblowers)."

http://www.icq.com/img/friendship/static/card_16961_rs.swf

December 27, 2005
Op-Ed Contributor
Unwarranted Complaints
By DAVID B. RIVKIN and LEE A. CASEY

Washington

SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States. This program was adopted by direct presidential order and was subject to review every 45 days. Judicial warrants for this surveillance were neither sought nor obtained, although key members of Congress were evidently informed. The program's existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.

After all, even the administration's sternest critics do not deny the compelling need to collect intelligence about Al Qaeda's plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush's decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act.

In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has "probable cause" to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.

Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate "spy versus spy" world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use.

Indeed, it is highly doubtful whether individuals involved in a conflict have any "reasonable expectation of privacy" in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself - anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.

Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties. As the FISA court itself noted in 2002, the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

In this instance, in addition to relying on his own inherent constitutional authority, the president can also draw upon the specific Congressional authorization "to use all necessary and appropriate force" against those responsible for the Sept. 11 attacks "in order to prevent any future attacks of international terrorism against the United States." These words are sufficiently broad to encompass the gathering of intelligence about the enemy, its movements, its abilities and its plans, a core part of the use of force against Al Qaeda and its allies. The authorization does not say that the president can order the use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush is barred from doing so.

The fact that the statutory language does not specifically mention intelligence collection, or that this matter was not raised by the White House in negotiations with Congress, or even that the administration had sought even broader language, all points recently raised by former Senator Tom Daschle, is irrelevant.

Overall, this surveillance program is fully within the president's legal authority, is limited in scope (involving communications to or from overseas related to the war against Al Qaeda), and is subject to stringent presidential review. The contretemps its revelation has caused reveals much more about the chattering classes' fundamental antipathy to strong government in general, and strong executive power in particular, than it does about presidential overreaching.

The Constitution's framers did not vest absolute power in any branch of the federal government, including the courts, but they did create a strong executive and equipped the office with sufficient authority to act energetically to defend the national interest in wartime. That is what President Bush has done, and nothing more.

David B. Rivkin and Lee A. Casey are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations.