THE US, THE UN AND IRAQ, TENTH THREAD.

Hey ican, you keeping your nose up?

Police Headquarters Attacked in Baghdad

By DAVID RISING
The Associated Press
Wednesday, September 20, 2006; 8:31 AM



BAGHDAD, Iraq -- An Iraqi police headquarters in Baghdad was hit by a suicide truck bomb Wednesday, killing at least seven people in a deadly 24-hour period that saw more than 45 killings throughout Iraq, authorities said.

The military said an American soldier was killed by a roadside blast northeast of Baghdad on Tuesday.

The news came after the U.S. military announced the deaths of four other soldiers in Iraq. One was killed Tuesday by a suicide car bombing, which also wounded two other soldiers. Another two soldiers were killed Sunday _ one by small arms fire and the other by a roadside bomb in Baghdad. A fourth soldier, assigned to a medical task force, died Monday of non-combat related injuries in the capital.

The truck bomb attack in the southern Baghdad neighborhood of Dora happened as policemen were coming on duty, said Capt. Jamil Hussein. At least 14 others were injured, and he said the number of casualties was expected to rise.

Police in Mosul confirmed that tandem bombings killed 21 people near the northern city and wounded 50 others.

A parked car bomb detonated near an Iraqi army base in Sharqat, about 45 miles south of Mosul, on Tuesday night, and a suicide bomber detonated his explosives as a crowd gathered at the scene of the first bombing, police said.

Another policeman was killed when a mortar round landed near a patrol in northern Baghdad, police Lt. Bilal Majid said. Two civilians were also wounded in the attack in the Waziriya neighborhood, Majid said.

Attacks around Iraq on Tuesday killed at least 16 Iraqis, including 10 in a rocket attack on a Shiite neighborhood of Baghdad. At least 55 others were injured in the attacks around the country.

In other violence reported Wednesday, the mutilated body of a policeman was turned in to the morgue in Kut, about 100 miles southeast of Baghdad, after being found in the al-Falahiya district east of the city in the morning.

The body of Mahmoud Hassan Mohammed was found blindfolded with his arms and legs cuffed, and he was shot in various place and showed signs of torture, morgue official Mamoun Ajeel Al-Rubai'ey said.

The body of an unknown civilian in a similar condition also was turned in to the morgue after being dragged out of the Tigris River about 30 miles south of Baghdad, Al-Rubai'ey said.

Nearly 200 bodies of Iraqis who had been tortured and shot have turned up around Baghdad in the past week, including three found Tuesday in an eastern section of the capital.

Most are found bound and blindfolded, apparent victims of sectarian violence. Both Shiite and Sunni lawmakers called Tuesday for the defense and interior ministers to take steps to stop the death squads.

Another 12 civilians were injured in a series of three roadside bombings aimed at police patrols Wednesday in the Hillah area, about 60 miles south of Baghdad, police Lt. Osama Ahmed said. No police were reported injured.

http://uscode.house.gov/download/pls/50C36.txt

50 USC CHAPTER 36 - FOREIGN INTELLIGENCE SURVEILLANCE 01/19/04

-EXPCITE-
TITLE 50 - WAR AND NATIONAL DEFENSE
CHAPTER 36 - FOREIGN INTELLIGENCE SURVEILLANCE

-HEAD-
CHAPTER 36 - FOREIGN INTELLIGENCE SURVEILLANCE

...

http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act

Foreign Intelligence Surveillance Act of 1978
From Wikipedia, the free encyclopedia
...
The Foreign Intelligence Surveillance Act (FISA) of 1978 prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers".

FISA is codified in 50 U.S.C. §§1801-1811, 1821-29, 1841-46, and 1861-62.[1] The subchapters of FISA provide for:

Electronic Surveillance
Physical Searches
Pen Registers and Trap & Trace Devices for Foreign Intelligence Purposes
Access to certain Business Records for Foreign Intelligence Purposes
The Act was amended by the USA Act (part of the USA PATRIOT Act) of 2001, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government.

...

History
The Foreign Intelligence Surveillance Act resulted from extensive investigations into domestic intelligence activities by Senate Committees, led separately by Sam Ervin and Frank Church in the 1970s (see the Church Committee report).

The Act came into public prominence in December 2005 following publication by the New York Times of an article[2] that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency since 2002 (a subsequent Bloomberg article[3] suggested that this may had already begun by June 2000). Many critics, including some Republicans, have asserted that the Administration's warrantless spying program is a criminal violation of FISA. The Bush administration, while conceding that it does not follow FISA, asserts that the program is nonetheless legal on the grounds that FISA is an unconstitutional infringement of executive power and/or FISA was implicitly amended or abrogated by the Authorization for Use of Military Force resolution passed by Congress.

The Attorney General Gonzales in at speech at Georgetown University on January 24, 2006 said:[4]

Just a few days after the events of September 11th, Congress enacted a joint resolution to support and authorize a military response to the attacks on American soil. In this resolution, the Authorization for Use of Military Force, Congress did two important things. First, it expressly recognized the President’s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” Second, it supplemented that authority by authorizing the President to, quote, “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” in order to prevent further attacks on the United States.

http://www.pbs.org/newshour/bb/military/terroristattack/joint-resolution_9-14.html

Joint Resolution of Congress: Passed September 14, 2001. To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
...
(a) IN GENERAL- 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.

http://positiveliberty.com/2006/06/the-hamdan-decision-for-laymen-part-iv.html

June 30th 2006, 6:17 pm
The Hamdan Decision for Laymen, Part IV
by Timothy Sandefur

Justice Thomas’ dissent


Justice Thomas agrees with Scalia that the Court has no power to hear the case. Strictly speaking, that’s the end of the story. But, he says, since the Court talks about whether the military tribunal system is legal, he will respond to the Court’s decision. Of course, in what follows, Thomas is speaking only for himself, Justice Scalia, and, in some places, Justice Alito.
...

I'm not really interested in the Dissent, thanks; the majority opinion is, of course, the one that matters.

Cycloptichorn

http://www.law.cornell.edu/supct/html/05-184.ZO.html

Justice Stevens, Opinion of the Court

NOTICE: <>This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. <>Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
SALIM AHMED HAMDAN, PETITIONER v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.

on writ of certiorari to the united states court of appeals for the district of columbia circuit

--------------------------------------------------------------------------------

[June 29, 2006]

--------------------------------------------------------------------------------

Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, Parts VI through VI-D-iii, Part VI-D-v, and Part VII, and an opinion with respect to Parts V and VI-D-iv, in which Justice Souter, Justice Ginsburg, and Justice Breyer join.

Petitioner Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces and turned over to the U. S. military. In June 2002, he was transported to Guantanamo Bay. Over a year later, the President deemed him eligible for trial by military commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy "to commit ... offenses triable by military commission." App. to Pet. for Cert. 65a.

Hamdan filed petitions for writs of habeas corpus and mandamus to challenge the Executive Branch's intended means of prosecuting this charge. He concedes that a court-martial constituted in accordance with the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq. (2000 ed. and Supp. III), would have authority to try him. His objection is that the military commission the President has convened lacks such authority, for two principal reasons: First, neither congressional Act nor the common law of war supports trial by this commission for the crime of conspiracy--an offense that, Hamdan says, is not a violation of the law of war. Second, Hamdan contends, the procedures that the President has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

...

My question then and now is what connection do you see between the Supreme Court's decision regarding the lawfulness of using a military tribunal to try Hamdan for certain specifically alleged war crimes, and whether or not the President has the Constitutional authority to eavesdrop/wiretap for the purpose of defending Americans, and not for the purpose of indicting and trying perpetrators?

Hamdan is about obtaining a fair trial; CIA eavesdrop/wiretap is about obtaining adequate intelligence to win a war.

Thursday, June 29, 2006
The significance of Hamdan v. Rumsfeld

(updated below)

The Supreme Court today, by a 5-3 decision (.pdf) in Hamdan v. Rumsfeld, held that the Bush administration's military commissions at Guantanamo (a) exceed the president's legal authorization given by Congress and (b) violate the law of war, including Common Article 3 of the Geneva Conventions which, the Court held, applies to all detainees in any armed conflict, including Al Qaeda members.

This is a complicated decision involving complex and sometimes arcane legal issues, and is rendered somewhat more complicated by the fact that Justice Kennedy joined in most but not all of the majority's decision [the Court's opinion was authored by Stevens and joined by Souter, Ginsburg, Breyer and (with some exceptions) Kennedy; in dissent was Scalia, Thomas and Alito. Roberts ruled in favor of the administration in the appellate court (right before he was nominated to the Supreme Court) and therefore did not participate in the ruling]. But the most significant parts of the decision were joined by five justices, rendering it binding. This is a very significant legal defeat, in several ways, for the administration. Following are preliminary observations about this decision:

(1) The Supreme Court held [Sec. VI(D)(ii) of the court's opinion] that Common Article 3 of the Geneva Conventions applies to all detainees captured in military conflicts, including Al Qaeda members or other "enemy combatants," and not merely (as the Administration asserted) to soldiers who fight for established countries which are signatories to the Conventions.

Article 3 requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and the Court ruled [Sec. VI(D)(iii)] that the military commissions established at Guantanamo violate that requirement because they are not regularly constituted tribunals but instead are specially constituted courts in the absence of any emergency. Thus, under the Geneva Conventions, any and all detainees captured in armed conflict can be tried only by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

(2) The Court did not rule on whether it could, in the absence of Congressional mandates, compel the administration to abide by the Geneva Conventions. The Court did not need to rule on this question, because it found [Sec. IV] that the administration was required by Congress -- as part of the Uniform Code of Military Justice ("UCMJ") -- to comply with the rules of law when creating and implementing military commissions. Thus, the Court enforced the Congressional statutory requirement that the administration comply with the rules of law with regard to all military commissions, and rejected any claims by the administration to possess authority to override or act in violation of that statute.

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ (by no longer requiring military commissions to comply with the law of war), since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

(b) More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which requires such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.

(4) This decision illustrates just how critical is the current composition of the Supreme Court. The decision was really 5-4 (because Roberts already ruled in favor of the administration in the lower court). The Justice who wrote the majority opinion, John Paul Stevens, is 86 years old, and as Justice Blackmun once famously warned, he "cannot remain on this Court forever." If the Bush administration is permitted to replace Stevens with yet another worshipper of executive power, the next challenge to the Bush administration's theories of unchecked power could very easily result, by a 5-4 vote, in the opposite outcome.

(5) Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants. It could amend the UCMJ to allow military commissions with the rules established by the President. It has already stripped the Court of jurisdiction to hear future habeas corpus challenges by Guantanamo detainees, and could act to further strip the Court of jurisdiction in these areas. We will undoubtedly hear calls by Pat Roberts, John Cornyn, Jeff Sessions, Tom Coburn (and perhaps Joe Lieberman?) et al. for legislation which would accomplish exactly that.

Nonetheless, opponents of monarchical power should celebrate this decision. It has been some time since real limits were placed on the Bush administration in the area of national security. The rejection of the President's claims to unlimited authority with regard to how Al Qaeda prisoners are treated is extraordinary and encouraging by any measure. The decision is an important step towards re-establishing the principle that there are three co-equal branches of government and that the threat of terrorism does not justify radical departures from the principles of government on which our country was founded.

UPDATE: A few additional points worth noting or emphasizing:

(6) Strictly speaking, the Supreme Court did not enforce the mandates of the Geneva Conventions against the administration, nor did it hold that the administration is required in the absence of Congressional mandate to comply with the Conventions. To the contrary, the Court here was enforcing Congress's "express condition," when authorizing the President as part of the UCMJ to create military commissions, "that the President and those under his command comply with the law of war." The Court was enforcing the statutory requirement against the administration that it comply with the law of war with regard to military commissions, not the Conventions themselves.

For that reason, I think Marty Lederman's claim that "the decision basically resolves the debate about interrogation techniques" might be overstated -- both because (a) one could argue that the Court's decision turns on enforcement of the UCMJ's military-commission-specific requirements, and not the provisions of Article 3 generally; and (b) there is a much stronger argument to make in the interrogation area that Congress implicitly amended the Convention's requirements regarding torture (by enacting the much narrower McCain legislation governing interrogation techniques) than there is in the area of military commissions (where Congress has enacted no specific, subsequent legislation to replace the UCMJ's provisions regarding military tribunals).

Presumably, then, Congress could amend the UCMJ to exempt military commissions from the law of war (either generally or as it pertains to Al Qaeda members), casting into serious doubt the ongoing validity of the Court's ruling as it pertain to these commissions. Or, Congress could simply abrogate the Geneva Conventions altogether, which would certainly free the administration from those requirements. I would speculate that the Republican-controlled Congress could, without a great deal of difficulty, enact legislation exempting Al Qaeda members from the Article 3 protections.

Having said that, I agree with Marty that the real significance of this decision is not its effects on military commissions themselves, but the broad legal principles the decision affirms. Specifically:

(7) The more I read and think about this opinion, the greater a death blow I think it deals -- at least on the legal front -- to the administration's Yoo theory of unlimited executive power. Not only Justice Kennedy in his concurrence, but also the Court's opinion itself, cited Justice Jackson's 3-prong Youngstown test to re-affirm the proposition that the President's constitutional powers must give way to duly enacted Congressional laws.

More importantly,the Opinion repeatedly places great emphasis on what it calls "the powers granted jointly to the President and Congress in time of war" (See, for instance, Op. at p. 27; emphasis added in all citations). And in a direct repudiation of the administration's claim that Congress is without power to limit or regulate the war powers granted by the Constitution to the President, the Court explained (Op. at p. 29, fn. 23):


"Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).


Whether intended or not, that paragraph, by itself, dispenses with the central misconception -- the myth -- most frequently relied upon by Bush followers in defending the administration's violations of FISA. Specifically, they assert that cases which, pre-FISA, held that the President has inherent authority to eavesdrop mean that Congress cannot regulate that power.

But as the Court today explained -- and as Youngstown held 50 years ago -- even with regard to inherent powers he possesses, the President "may not disregard limitations that Congress . . . in proper exercise of its own war powers" imposes. That principle is based upon "the powers granted jointly to the President and Congress in time of war." Thus, even if the President possesses the power "absent congressional authorization" to, for instance, eavesdrop (or torture people), "he may not disregard limitations that Congress" imposes on such powers.

To appreciate what a severe blow this opinion struck to the broad outlines of the Bush administration's theory of executive power, compare the Court's holding that the President "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers" -- powers which include its own "war powers" -- with the authoritarian claim of unlimited power asserted in the infamous Yoo memorandum:

Quote:

Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

More than anything else, the Court's opinion today is the opposite of -- a clear rejection of -- the crux of the Yoo Memorandum. The Court held that Congress most certainly does have a role to play in the exercise of war powers, and that such decisions are most certainly not "for the President alone to make."

Similarly, in his short one-page opinion -- signed by Justice Kennedy (as well as Ginsberg and Souter) -- Justice Breyer explained that absent emergency, the Constitution requires that the President comply with Congressional law even in areas which lay at the heart of national security:

Quote:

The (fatal) applicability of that paragraph to the administration's general theory of executive power is manifest. Just as Congress denied the President authority to create military commissions which violate the law of war, so, too, has Congress denied the President the authority to eavesdrop on Americans without warrants (and to torture detainees, etc.), and -- just as is the case with military commissions -- there is simply no legal justification for the President to ignore those laws.

posted by Glenn Greenwald | 12:57 PM

Ricks in 'Wash Post': Secret Report Reveals 'Dim' Prospects in Key Iraq Province

By E&P Staff

Published: September 11, 2006 1:00 PM ET

NEW YORK The chief of intelligence for the Marine Corps in Iraq recently filed a secret report "concluding that the prospects for securing that country's western Anbar province are dim and that there is almost nothing the U.S. military can do to improve the political and social situation there, said several military officers and intelligence officials familiar with its contents," according to a front-page article in today's Washington Post by Thomas Ricks.

The Post, Ricks added, was not shown a copy of the classified document. But he related that "officials described Col. Pete Devlin's classified assessment of the dire state of Anbar as the first time that a senior U.S. military officer has filed so negative a report from Iraq."

One Army officer summarized it as arguing that in Anbar province, "We haven't been defeated militarily but we have been defeated politically -- and that's where wars are won and lost."

The statement was dated Aug. 16 and sent to Washington, where it has been widely discussed within national security circles and at the Pentagon. "I don't know if it is a shock wave, but it's made people uncomfortable," a Defense Department official who has read the report told Ricks.

The full article is posted at www.washingtonpost.com.
E&P Staff

ican711nm wrote:

My question then and now is what connection do you see between the Supreme Court's decision regarding the lawfulness of using a military tribunal to try Hamdan for certain specifically alleged war crimes, and whether or not the President has the Constitutional authority to eavesdrop/wiretap for the purpose of defending Americans, and not for the purpose of indicting and trying perpetrators?

Hamdan is about obtaining a fair trial; CIA eavesdrop/wiretap is about obtaining adequate intelligence to win a war.

...
emphasis added

Quote:

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

...

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.

No! It is not necessarily the case.

An unwillingness to defer to the Executive in all matters does not logically imply an unwillingness to defer to the Executive in one matter.
...
Basically, the Hamdan ruling stated that the Prez doesn't have the authority to break the law just because it is a time of war.

Cycloptichorn

The Constitution of the United States of America
Effective as of March 4, 1789
...
Article I
Section 8. The Congress shall have power ...
...
To constitute tribunals inferior to the Supreme Court;
...

Article II
...
Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States ...

Fifth, FISA does not prohibit the warrantless gathering of intelligence obtained via the eavesdropping/wiretapping of conversations between suspected members of our enemy, for the purpose of waging and winning a declared war against them.

Our ability to adequately defend ourselves and win the war against terrorism requires it.

...
I'm not sure where you garner this from:

Quote:

Fifth, FISA does not prohibit the warrantless gathering of intelligence obtained via the eavesdropping/wiretapping of conversations between suspected members of our enemy, for the purpose of waging and winning a declared war against them.

Can you link to what lead you to this belief?
...
Cycloptichorn

http://uscode.house.gov/download/pls/50C36.txt

Sec. 1802. Electronic surveillance authorization without court
order; certification by Attorney General; reports to
Congressional committees; transmittal under seal; duties and
compensation of communication common carrier; applications;
jurisdiction of court

-STATUTE-
(a)(1) 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 periods of up to one year if the Attorney General
certifies in writing under oath that -
(A) the electronic surveillance is solely directed at -
(i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between
or among foreign powers, as defined in section 1801(a)(1), (2),
or (3) of this title; or
(ii) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this
title;

(B) there is no substantial likelihood that the surveillance
will acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 1801(h) of this title; and

if the Attorney General reports such minimization procedures and
any changes thereto to the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence at
least thirty days prior to their effective date, unless the
Attorney General determines immediate action is required and
notifies the committees immediately of such minimization procedures
and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may
be conducted only in accordance with the Attorney General's
certification and the minimization procedures adopted by him. The
Attorney General shall assess compliance with such procedures and
shall report such assessments to the House Permanent Select
Committee on Intelligence and the Senate Select Committee on
Intelligence under the provisions of section 1808(a) of this title.
(3) The Attorney General shall immediately transmit under seal to
the court established under section 1803(a) of this title a copy of
his certification. Such certification shall be maintained under
security measures established by the Chief Justice with the
concurrence of the Attorney General, in consultation with the
Director of Central Intelligence, and shall remain sealed unless -
(A) an application for a court order with respect to the
surveillance is made under sections 1801(h)(4) and 1804 of this
title; or
(B) the certification is necessary to determine the legality of
the surveillance under section 1806(f) of this title.

(4) With respect to electronic surveillance authorized by this
subsection, the Attorney General may direct a specified
communication common carrier to -
(A) furnish all information, facilities, or technical
assistance necessary to accomplish the electronic surveillance in
such a manner as will protect its secrecy and produce a minimum
of interference with the services that such carrier is providing
its customers; and
(B) maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished which such
carrier wishes to retain.

The Government shall compensate, at the prevailing rate, such
carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are
authorized if the President has, by written authorization,
empowered the Attorney General to approve applications to the court
having jurisdiction under section 1803 of this title, and a judge
to whom an application is made may, notwithstanding any other law,
grant an order, in conformity with section 1805 of this title,
approving electronic surveillance of a foreign power or an agent of
a foreign power for the purpose of obtaining foreign intelligence
information, except that the court shall not have jurisdiction to
grant any order approving electronic surveillance directed solely
as described in paragraph (1)(A) of subsection (a) of this section
unless such surveillance may involve the acquisition of
communications of any United States person.

-SOURCE-
(Pub. L. 95-511, title I, Sec. 102, Oct. 25, 1978, 92 Stat. 1786.)

STATUTE-
(a)(1) 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 periods of up to one year if the Attorney General
certifies in writing under oath that -
(A) the electronic surveillance is solely directed at -
(i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between
or among foreign powers, as defined in section 1801(a)(1), (2),
or (3) of this title; or
(ii) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this
title;

(B) there is no substantial likelihood that the surveillance
will acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 1801(h) of this title;

Sure, but has the AG actually done any of these things? Not to the best of my knowledge.

I have encountered zero evidence that the AG has not "actually done any of these things."

Quote:

STATUTE-
(a)(1) 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 periods of up to one year if the Attorney General
certifies in writing under oath that -
(A) the electronic surveillance is solely directed at -
(i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between
or among foreign powers, as defined in section 1801(a)(1), (2),
or (3) of this title; or
(ii) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this
title;

(B) there is no substantial likelihood that the surveillance
will acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 1801(h) of this title;

Don't you think that if one of the people is a US citizen, that counts as a 'substantial likelihood that a US person is a party?'

Yes, I think a US citizen or US legal resident counts as a US person. If you were to read FISA further on, you would encounter specifications (and amended specifications) of procedures to be followed in the event a US person is discovered after the fact to have been a party. As I understand it (I'll review it again when I have time), whatever is discovered in warrantless eavesdropping/wiretapping cannot be used against a US person without FISA court approval.

The second part you highlighted; what do you think that means? I can't believe you would have highlighted this part as support of your case, so I think maybe we have a different interpretation.

Quote:

the court shall not have jurisdiction to
grant any order approving electronic surveillance directed solely
as described in paragraph (1)(A) of subsection (a) of this section
unless such surveillance may involve the acquisition of
communications of any United States person.

I think it means that unless a warrantless targeted eavesdropped/wiretapped communication is known ahead of time to involve a US person, the FISA court does not have jurisdiction (i.e., does not have legal authority to rule--have a say--whether such surveillance can proceed).

Cycloptichorn

Insurgency Gains Alarming Support Among Iraq's Sunni Muslims Officials won't say how the assessment was made but found that support for the insurgency has never been higher, with approximately 75 percent of the country's Sunni Muslims in agreement.

When the Pentagon started surveying Iraqi public opinion in 2003, Sunni support for the insurgents stood at approximately 14 percent.

The news comes as September is on track to become one of the deadliest months this year for U.S. troops in Iraq. Forty-nine Americans have been killed this month, with four deaths today.

The Iraqi toll is also climbing. At one Baghdad morgue, taxis and other cars line up to take away the bodies -- the U.S. and Iraqi forces' big push to secure the capital seems to be failing to curb the violence.

"Where is the government?" one man asked. "Where is the promise of security? Where is the prime minister?"

U.S. officials are asking the same questions as they privately express frustration with the government of Iraqi Prime Minister Nuri al-Maliki. Officials say Maliki's government is not doing enough to win support of Iraq's Sunnis.

Former general Jack Keane said the Iraqi government has been "absolutely unable or unwilling to do anything about the Shia militia groups who are causing so much of the violence in Baghdad."

White House press secretary Tony Snow said reports that the president has lost faith in Maliki are "absolutely false." He said the prime minister has been in office just four months, and there has been "significant progress."

But many of the senior military officials ABC News has spoken to simply do not agree with that assessment.

Copyright © 2006 ABC News Internet Ventures

The US Department of Defense has done some opinion polling that indicates that 3/4s of Iraqi Sunnis now support what the Pentagon calls the "insurgency". When the DoD started doing polling on the subject in 2003, they found that 14 percent of Sunni Arabs supported the insurgency. If there are 5 million Sunni Arabs, let us say that 1.5 million are less than 15 years of age. Of the 3.5 million left, half are women and less likely to actually engage in violence, though they might offer support for it. So that is 1.75 million men. At 75%, that is 1.3 million male supporters of the guerrilla movement.

Of the 147,000 US troops in Iraq, a very large number of which now seem to be in and around Baghdad itself, I don't know exactly how many are fighters. The traditional rule of thumb is 10%, but I read somewhere that the percentage is much higher in this war. A reader who served over there challenged the latter assertion and said that no, it is just 10%.

If we really just have 14,700 fighters facing 1.3 million Sunni guerrilla supporters, it isn't any mystery why things in Iraq are as they are and why Gen. Casey openly admits that we are not there to win, just to keep a lid on. I can't imagine how they could hope even to keep a lid on. Given the figures released today, I'd say it isn't much of a lid (though remember that the death figures could easily be twice or ten times as bad.)

The other thing to remember is that the Sunni Arab areas have been under US military occupation for the past over 3 years, and that this vast increase in support for the guerrilla movement is therefore in some large part the fault of bad counter-insurgency tactics by the US military. They were all reading that stupid, racist tract, Raphael Patai's The Arab Mind, which says you can control Arabs by humiliating them. What Patai didn't tell them is that yes, you can for a short while, but then in order to recover his self-respect, the humiliated Arab has to spend the rest of his life trying to kill you, and so do his 5 brothers and 25 cousins.

There are probably also at least a couple million Shiite mem who support guerrilla action to get the multinational forces out of their country.

U.N. expert: Iraq torture may be worse
By ELIANE ENGELER, Associated Press Writer
Thu Sep 21, 12:20 PM ET

Torture in Iraq may be worse now than it was under Saddam Hussein, with militias, terrorist groups and government forces disregarding rules on the humane treatment of prisoners, the U.N. anti-torture chief said Thursday.

Manfred Nowak, the U.N. special investigator on torture, made the remarks as he was presenting a report on detainee conditions at the U.S. prison in Guantanamo Bay as well as to brief the U.N. Human Rights Council, the global body's top rights watchdog, on torture worldwide.

Reports from Iraq indicate that torture "is totally out of hand," he said. "The situation is so bad many people say it is worse than it has been in the times of Saddam Hussein."

Nowak added, "That means something, because the torture methods applied under Saddam Hussein were the worst you could imagine."

Some allegations of torture were undoubtedly credible, with government forces among the perpetrators, he said, citing "very serious allegations of torture within the official Iraqi detention centers."

"You have terrorist groups, you have the military, you have police, you have these militias. There are so many people who are actually abducted, seriously tortured and finally killed," Nowak told reporters at the U.N.'s European headquarters.

"It's not just torture by the government. There are much more brutal methods of torture you'll find by private militias," he said.

A report by the U.N. Assistance Mission in Iraq's Human Rights office cited worrying evidence of torture, unlawful detentions, growth of sectarian militias and death squads, and a rise in "honor killings" of women.

Iraq's government, set up in 2006, is "currently facing a generalized breakdown of law and order which presents a serious challenge to the institutions of Iraq" such as police and security forces and the legal system, the U.N. report said, noting that torture was a major concern.

Nowak has yet to make an official visit to Iraq and said such a mission would be unfeasible as long as the security situation there remains perilous. He based his comments on interviews with people during a visit to Amman, Jordan, and other sources.

"You find these bodies with very heavy and very serious torture marks," he said. "Many of these allegations, I have no doubt that they are credible."

According to the U.N. report, the number of Iraqi civilians killed in July and August hit 6,599, a record-high that is far greater than initial estimates suggested, the U.N. report said Wednesday.

It attributed many of the deaths to rising sectarian tensions that have pushed Iraq toward civil war.

Associated Press writers Bradley S. Klapper in Geneva and Nick Wadhams at the United Nations contributed to this report.

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