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Update [2006-1-4 7:15:40 by Armando]: arbortender links to a better excerpt. A nugget:
In order to overturn the system established by FISA in 1978, and bring the NSA back into domestic wiretaps without court approval, administration lawyers have issued a series of secret legal opinions, similar to those written in support of the harsh interrogation tactics used on detainees captured in Iraq and Afghanistan. The Bush administration legal opinions that supported the use of harsh interrogation techniques on al Qaeda detainees have, of course, proven controversial, drawing complaints from allies, objections from civil liberties advocates, and court challenges. The administration faced its first serious legal rebuke in June 2004 when the U.S. Supreme Court rejected the administration's effort to hold "enemy combatants" without a hearing. The court warned that "a state of war is not a blank check for the president." The same could be said about the Program. Yet the NSA domestic spying operation has remained secret, and so the legal opinions and other documents related to the NSA program are still classified. The administration apparently has several legal opinions to support the NSA operation, written by lawyers at the White House, the CIA, the NSA, and the Justice Department. They all rely heavily on a broad interpretation of Article Two of the Constitution, which grants power to the president as commander in chief of the armed forces. Relying largely on those constitutional powers, Congress passed a resolution just days after the September 11 attacks granting the president the authority to wage a global war on terrorism, and Bush administration lawyers later decided that the war resolution provided the legal basis they needed to support the NSA operation to eavesdrop on American citizens.
The President as King. Like I said.

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

Orin Kerr apparently has gotten a copy of James Risen's (Risen is the NYTimes reporter who, along with fellow Timesman Eric Lichtblau, broke the NSA warrantless surveillance story) book State of War: The Secret History of the CIA and the Bush Administration, and someone seems incredibly off base on FISA. Kerr says:

According to Risen, the key to the new program is a shift in telecommunications technology in recent decades that has made U.S. networks the carriers of lots of international telephone and e-mail traffic.

In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls -- calls that do not begin or end in America -- also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. . . . In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.

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

Nooooo. Eavesdropping on those calls absolutely would NOT be a violation of FISA. This is remarkably clear, as Kerr notes:

Okay, so now let's take a look at the legal questions again. Recall that FISA prohibits "electronic surveillance," defined in relevant part as follows by 50 U.S.C. 1801(f):

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

As I read this language, monitoring communications both sent to and received by individuals located outside the United States is not prohibited by FISA. This surveillance is technically domestic -- it occurs within the United States -- but it does not involve monitoring "a person in the United States." So if I'm understanding things correctly -- always a big "if" when you post after 2 am -- most of the program did not violate FISA.

The activities described clearly and unequivocally would NOT violate FISA for the reason Kerr states. What is not clear is why Kerr describes this as "most of the program" and, more importantly, this clearly is not the part of the program that has caused the trouble. Any simpleton can obviously see that the monitoring described does NOT violate FISA. No, the trouble is this:

If most of the program dealt with international calls, and didn't violate FISA, why would the program be designed so that it also tapped the calls of 500 or so [NOTE: It is unclear where Kerr gets this number from or whether it is accurate, a daily number or otherwise. The point is presumably it could 300 million for all we know.] people in the United States? If the communications tapped were wire communications, then tapping those communications inside the United States seems to clearly violate FISA under 1801(f)(2).

That is exactly the problem and it has ALWAYS been the problem. I am not at all sure what Kerr is confused about here. Some Right Wing folks have trouble dealing with the reality as clearly and expressly stated by Bush and Attorney General Alberto Gonzales - FISA has been deliberately violated.

I'll discuss that on the other side.

One who did not have a problem understanding Gonzales was conservative lawyer George Conway:

The Government apparently didn't comply with FISA's procedures, which, when they apply, require the Government to go to a special, secret court, the Foreign Intelligence Surveillance Court, to get a order (somewhat, but not completely, resembling a traditional search warrant) allowing the surveillance. The Attorney General's remarks at a White House press briefing this week made clear that the Government is saying that another law satisfied Section 1809's "except as authorized by statute" carve-out--Congress's 2001 joint resolution authorizing the use of force against al Qaeda. The Attorney General said this pretty explicitly:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow--there is--unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

Of course, the Bush position that the AUMF authorized warrantless domestic surveillance is preposterous, as even Conway and Kerr admit.

The truth is that the Bush Administration continues to argue the John Yoo position -- that War Makes Presidents Kings, and thus not bound by Congressional law. And that is not only a preposterous position - it is one of the most dangerous arguments ever made by a President. It is a direct assault on the Constitution.

While reasonable and intelligent conservatives like Professor Kerr struggle desperately to avoid this, it is inescapable -- President Bush has mounted a frontal assault on the Constitution.

Originally posted to Daily Kos on Wed Jan 04, 2006 at 03:28 AM PST.

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Comment Preferences

  •  There are alot of people (none)
    who are gonna have a real hard time understanding that the steely-eyed rocket man who keeps them safe is not really a good guy you want to have a beer with.  Lot of people gonna need therapy.

    "This ain't no party, this ain't no disco, this ain't no foolin' around!"

    by demkat620 on Wed Jan 04, 2006 at 03:30:36 AM PST

  •  What Bush needs now (4.00)
    is a new style Zimmerman Telegram to use as justification for his activities.
    •  It's hard to see what that would be (none)
      Nobody has explained any circumstance where there would be a need to conduct surveillance, where it would be impossible to get a FISC warrant, either ahead of time or after the fact.  So, it's hard to understand what would fill such a role.
    •  I was just thinking the same thing (none)
      The parallels to the Zimmerman telegram are pretty interesting!  For any who might not know, this was a telegram sent from the Germans to Mexico at the outset of World War I, which was intercepted by American telegraph operators (or was it British?), for precisely the same reasons as are illustrated in Armando's excerpt here: the signals transited the U.S. telegraph network.  The infamous telegram revealed that the Germans were soliciting Pancho Villa to attack the Southwest United States, to prevent us from entering the War in Europe.  Of course, when it was discovered and publicized by President Wilson, this telegram is what helped galvanize anti-German, pro-War public sentiment in the U.S.

      So this is how liberty dies, with thunderous applause -- Padme

      by dnta on Wed Jan 04, 2006 at 04:52:48 AM PST

      [ Parent ]

      •  Zimmermann Proposal More Substantial (none)
        The Zimmermann (who was the German Foreign Minister) telegram was sent to the Mexican government in early 1917 at the height of WW1 after the Germans had concluded their Verdun offensive to be a losing proposition.  The German's telegram was intercepted and decoded by the British, who controlled the only global telegraph system operating at the time.  

        In fact, one of the first acts by the British when the balloon went up at the start of WW1 was to deliberately cut the German telegraph cables running from the continent to secure total and exclusive control of the global telegraph system.  The Germans persuaded themselves that their codes were secure enough to safely use the available telegraph lines, even though the British had been reading almost all German communications from virtually the start of the war.  One strange fact about the war is that during the day before the Battle of Jutland the British fleet received notice to raise steam and head to sea before the German High Seas Fleet had the message.

        The Germans had tried to induce the Mexican government to attack the US in collaboration with the Germans and possibly the Japanese.  The Mexican leadership concluded the Germans could not really assist the stated planned recovery of the old Mexican territories in the southwest, including Texas.  The Mexican government prudently decided to decline the overture.  Pancho Villa was never involved in the discussion.

        The Zimmeramn Telegram fully justified Wilson's request to Congress to declare war on Germany.  Even more than the unrestricted submarine warfare, it demonstrated the German's hostility toward the US and willingness to openly and blatantly harm US interests.  Dubya would be so lucky to be presented a missive like the Zimmermann Telegram by al Qaeda.  What more could bin Laden threaten than the danger the administration has already claimed exists from al Qaeda?  

  •  What about Clinton's EO 12949? (none)
    Which is here:
    EO12949
    If this elephant has already been flogged, pardon my ignorance.
    Anyhow, what is the correct response to someone who says,

    "Executive Order 12949, signed by President Clinton, February 9, 1995 makes the FISA rules you see in the news irrelevant and what the NSA does (spy on terrorists, not you talking to your girlfriend) completely legal."

    Also, you may already know that part of Risen's book was published at Cryptome today, which I noted earlier at http://www.dailykos.com/...
    where there's a link to that file.

    ...gleefully connecting dots since 1966 scratch

    by arbortender on Wed Jan 04, 2006 at 03:39:57 AM PST

    •  There's a critical qualification (none)
      in Clinton's order, namely "if the Attorney General makes the certifications required by that section."  There's a similar qualification regarding others listed who can request the intelligence.  Presumably, these certifications include review and approval by the FISA court.

      The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt. Bertrand Russell

      by accumbens on Wed Jan 04, 2006 at 03:50:31 AM PST

      [ Parent ]

      •  Okay, so freep my Epinion on Verizon will ya? (none)
        at epinions.com, and help me make this point.  I've collected two don't show ratings already, which keeps it offscreen for searchers.
        Help me out here, please.
        I'm open for further comments on that question here.

        Presumably...presumably that's a hole as it quacks like a hole.
        Are these certifications (AG or others) required to include review and approval by the FISA Court, or aren't they?  If yes, by what legislative/constitutional/judicial/secret authority?

        ...gleefully connecting dots since 1966 scratch

        by arbortender on Wed Jan 04, 2006 at 04:11:05 AM PST

        [ Parent ]

    •  Come now (none)
      You don't need any help with that one do you?

      authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

      Sec. 2.  Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign
      Intelligence Surveillance Court under section 303 of the Act
      to obtain orders for physical searches for the purpose of collecting foreign intelligence information.

      Sec. 3.  Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or
      defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches

      What part do you not get?

      The SCOTUS is extraordinary.

      by Armando on Wed Jan 04, 2006 at 04:02:44 AM PST

      [ Parent ]

      •  See above please n/t (none)

        ...gleefully connecting dots since 1966 scratch

        by arbortender on Wed Jan 04, 2006 at 04:12:18 AM PST

        [ Parent ]

      •  Also, I'm new. Doing my derndest to catch up fast (4.00)

        ...gleefully connecting dots since 1966 scratch

        by arbortender on Wed Jan 04, 2006 at 04:13:28 AM PST

        [ Parent ]

      •  I do. I'm new, fertheluvvapete! This part. (none)
        Sec 1. notgets
        None here, if we can safely presume that the AG did make such certification within his power to so authorize. So that part's clear.

        Sec. 2. notgets

        Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign
        Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.

        Sec.3 notgets

        Now that I'm reading that, there's a fairly significant grammar gaf in

        Sec. 3.  Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or
        defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches

        which I think is in the actual text, and not your typo.  Should be 'are'? Simple?  Deliberate?  What?  What are we to infer, if anything, from that error?

        Assuming 'are' was meant, so what? So General Rip & Kernel Snort are so-designated.  I don't see "shall certify", "must certify."

        ...gleefully connecting dots since 1966 scratch

        by arbortender on Wed Jan 04, 2006 at 04:29:08 AM PST

        [ Parent ]

        •  Huh? (none)
          what don't you get?

          The SCOTUS is extraordinary.

          by Armando on Wed Jan 04, 2006 at 04:34:58 AM PST

          [ Parent ]

          •  give me the nail so I can hammer it, please. (none)
            As I'd rather catch more of your new front pages as they emerge.
            However, in case you do return here:
            Here is where I'm pointing:

            The Attorney General is authorized to approve applications to the FISC

            and

            Specified national security or defense employees [are] designated to make the certifications  in support of [such AG-authorized] applications

            BUT, where is the line in there, or somewhere(?) clearly stating that they are required to be bothered with doing either?

            So empowered, but not so required....or do you read it differently?

            Put another way, the language I don't see is:
            The AG shall...
            The certifying authority shall...

            I'm not arguing that they're not required to.
            Nope,
            I'm struggling with the chronic and deliberate weasel-wording that seems to leave a truck-size loop for steppin' through.

            So help me out here:

            AG: Where does it say I must do that?
            arbortender:  um...
            Armando: Wellsir. Here ye go, right here.
            arbortender: where?

            ...gleefully connecting dots since 1966 scratch

            by arbortender on Wed Jan 04, 2006 at 09:39:40 PM PST

            [ Parent ]

    •  There's a big difference (none)
      For one thing, your friend didn't find the right EO, since this one is related to physical searches (Subchapter II), not electronic surveillance (Subchapter I) of the FISA.  I'm sure that a similar EO exists for electronic surveillance though because this is exactly the sort of EO that you would expect under the FISA.

      Section 1802 allows the President to authorize surveillance without a FISC warrant under clearly defined circumstances, circumstances which the AG must certify yearly in writing have been followed.  The conditions are 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;

      Now, the problem for the administration is that if we go and check to see what Section 1801 (a) says we find:


      (a) "Foreign power" means--
      (1) a foreign government or any component thereof, whether or not recognized by the United States;
      (2) a faction of a foreign nation or nations, not substantially composed of United States persons;
      (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;

      (4) a group engaged in international terrorism or activities in preparation therefor;
      (5) a foreign-based political organization, not substantially composed of United States persons; or
      (6) an entity that is directed and controlled by a foreign government or governments.

      So the highlighted sections are 1801(a)(1),(2),(3).  You'll notice that terrorist groups aren't included in 1801(a)(1),(2),(3), so there is no way that the government can eavesdrop on terrorists without a FISC warrant.

      The thing that sets Clinton's order apart from Bush's program is that Clinton directed the administration to follow the law.  He included in the EO the requirement that the AG make the certifications required by the FISA statute.


      ...if the Attorney General makes the certifications
      required by that section...

      On the other hand, Bush directed the NSA to break the law.

      •  Can't surveill (none)
        in the United States you mean.

        The SCOTUS is extraordinary.

        by Armando on Wed Jan 04, 2006 at 04:17:36 AM PST

        [ Parent ]

        •  Right (none)
          Eavesdropping on communications involving only persons outside of the US doesn't constitute "electronic surveillance" in the FISA.

          I've come to agree that Kerr is very subtlely spinning this topic.  He's not willing to buy into the wacky John Yoo legal justifications, but his emphasis is always designed to minimize the seriousness of the situation.  It's very disappointing.  If most of the program were about surveillance of parties not in the US, then why wouldn't Bush say so, since every law professor in the country would agree that that is legal.

          •  hard to say (none)
            that YOUR GUY is deliberately subverting the Constitution.

            I can't say that is so strange. We are all human after all.

            Sunstein is the guy who makes no sense.

            The SCOTUS is extraordinary.

            by Armando on Wed Jan 04, 2006 at 04:50:49 AM PST

            [ Parent ]

      •  Questions (none)
        Section 1802 allows the President to authorize surveillance without a FISC warrant under clearly defined circumstances, circumstances which the AG must certify yearly in writing have been followed.

        Question:...and the above authorization is done by EO, or some secret mechanism?

        You'll notice that terrorist groups aren't included in 1801(a)(1),(2),(3),so there is no way that the government can eavesdrop on terrorists without a FISC warrant.

        Right, noted.  period.

        Now, about

        Clinton's order v. Bush's program
        , see my first question.
        Whichever the answer is, does that instrument contain, (or must it contain?) what Clinton's EO did, to wit,
        the requirement that the AG make the certifications required by the FISA statute
        ?  Can we know this, if it's secret?

        On the other hand, Bush directed the NSA to break the law.

        Are we going to find any specific evidence of this on paper/email, or settle for the recent proud public statements of acknowledgement?
        Are such recorded videotaped statements adequate evidence to prosecute for the crime?

        ...gleefully connecting dots since 1966 scratch

        by arbortender on Wed Jan 04, 2006 at 06:23:09 AM PST

        [ Parent ]

  •  Great Job (none)
    Ok, so things have changed in the telcom industry and "globalization" has now become a problem for our legal system concerning national security. This to me is the extortion that BushCo could have been using on the Telco's to have access to these switches without warrants.

    Doesn't it seem that we need to have some legislation that would restrict these telcos from combining international to international calls with international to domestic or domestic to domestic calls on switches in the US? Seems to me that that would be the threat that BushCo would employ in order to gain access and the telcos keep their mouths shut about it. It really always boils down to dollars, and if the Telco Industry was held to task to reconfigure their worldwide communications in order to comply with US security laws, it would cost them a hell of a lot of money. So it stands to reason that BushCo/Congress/Telcos are negligent in allowing this kind of Network Configuring to be happening in the first place.

    •  FISA and telecoms (none)
      FISA requires common carriers -- i.e., telecoms -- to cooperate with lawful NSA surveillance.  Not sure they have much wiggle room, other than to take the position that the ordered surveillance is not lawful.  It would take an in-house lawyer with 10 pound ovaries to make that determination when the NSA comes a'knockin'.

      "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

      by scorponic on Wed Jan 04, 2006 at 04:32:04 AM PST

      [ Parent ]

      •  Right, okay, FISA at § 1802(a)(4). (none)
        the Justice Department may engage in electronic surveillance to collect FII (Foreign Intelligence Information) without a court order for periods up to one year. 50 U.S.C. § 1802. There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. § 1802(a)(1)(B).

        Such electronic surveillance must be certified by the Attorney General and then noticed to the Senate and House intelligence committees. § 1802(a)(2).

        A copy of the certification must be filed with the FISC, where it remains sealed unless (a) an application for a warrant with respect to it is filed, or (b) the legality of the surveillance is challenged in another federal district court under § 1806(f). § 1802(a)(3).

        >>Common carriers must assist in the surveillance and maintain its secrecy. § 1802(a)(4).

        In emergencies, the Attorney General may authorize immediate surveillance but must "as soon as practicable, but not more than twenty-four hours" later, seek judicial review of the emergency application. § 1805(e).

        and if

        § 1802(a)(3)b) the legality of the surveillance is challenged in another federal district court under § 1806(f)

        then I have to find out about 1806(f)....
        so,
        I found a footnote in In Re: Sealed Case, to a statement that appears to be the  beginning of a new paragraph (though it's preceded by a redacted section):

        "Amici particularly focus on the differences between the two statutes concerning notice(24)"

        (The two being Title III & FISA)
        The footnote:
        24 "Amici also emphasize that Title III generally entitles a defendant to obtain the
        surveillance application and order to challenge to the legality of the surveillance, 18 U.S.C. §
        2518(9), while FISA does not normally allow a defendant to obtain the same if the Attorney General states that disclosure or an adversary hearing would harm national security, 50 U.S.C. § 1806(f). Under such circumstances, the judge conducts an in camera and ex parte review to determine whether the electronic surveillance was lawful, whether disclosure or discovery is necessary, and whether to grant a motion to suppress. Id. §§ 1806(f), (g).
        Clearly, the decision whether to allow a defendant to obtain FISA materials is made by a district judge on a case by case basis, and the issue whether such a decision protects a defendant's onstitutional rights in any given case is not before us."

        Hmmm.
        Well, I think I have it, that this statement:

        the Justice Department may engage in electronic surveillance to collect FII (Foreign Intelligence Information)  without a court order for periods up to one year. 50 U.S.C. § 1802.

        is the one qualified by this statement:
        >>Common carriers must assist in the surveillance and maintain its secrecy. § 1802(a)(4).

        Sorry it took me so long to get here, but if that's accurate..It looks like the Common carriers were not under obligation (here, anyway) to assist or maintain secrecy on anything but "electronic surveillance to collect FII (Foreign Intelligence Information"
        Doesn't take 10 lb. ovaries to stand on that, does it?
        Does this boil down to some arcane secret re-definition of the word Foreign?  That's got to be defined somewhere...

        ...gleefully connecting dots since 1966 scratch

        by arbortender on Wed Jan 04, 2006 at 07:14:42 AM PST

        [ Parent ]

        •  That assumes the common carriers... (none)
          ...were told about the precise nature, scope and targets of the surveillance.  I would imagine, for "national security" purposes, the spooks simply tell the carriers they're conducting FISA surveillance and ask for the keys to the switches.

          "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

          by scorponic on Wed Jan 04, 2006 at 08:10:33 AM PST

          [ Parent ]

          •  Anything beyond the International Gateway Switches (none)
            is a violation of FISA, the way I read it so far.  I don't buy that the Telcoms are oblivious to their responsibilities under FISA.  That is extremely unlikely.

            Pardon repost:

            If this statement is correct:

                "The ONLY locations where purely international traffic can be "captured" and hence "examined" by surveillance technolgies is at the international gateway switch, the switch that is directly connected to international cables or satellite links.  Calls entering and exiting those switches are clearly international, but everything on the other side of the switch is digitally combined, so that you could never distinguish the source or destination of the signal from that point forward."

            Then, does it not follow that these "international gateway switches" would be the ONLY switches where one could fulfill 1802(a)(1)(B):

                There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. §1802(a)(1)(B).

            And if it does so follow, then where is the exclusion that allows interception at any other switches than these?

            ...gleefully connecting dots since 1966 scratch

            by arbortender on Wed Jan 04, 2006 at 08:50:08 PM PST

            [ Parent ]

            •  You're missing the point. (none)
              The FISA court and its proceedings are secret -- i.e., classified.  I doubt the NSA is in the habit of showing common carriers warrants issued by the FISA court, even when they actually have them.  The common carrier probably doesn't even know if one really exists, but is simply told that the NSA is conducting "lawful surveillance."  For all the common carriers know, any surveillance the NSA does anywhere in the network is pursuant to a warrant issued by the FISA court.  The way I read FISA, NSA has no obligation to show -- and is probably prohibited from showing -- warrants to anyone outside the agency, DOJ or the White House, given the classified nature of the information in them.  The carriers have no reason to be suspicious of any particular request, I would imagine, since NSA obviously has authority under the law to surveil communications of US persons if they have a warrant to do so.

              "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

              by scorponic on Thu Jan 05, 2006 at 02:40:15 AM PST

              [ Parent ]

              •  I'm not missing the point (none)
                but you may be missing mine.

                I think you are saying that the common carriers trusted the NSA to uphold their own central tenets (SIGINT directives), and that on that basis, NSA could ask for and get what they wanted, regardless of whether they had a FISA warrant to do so.

                I agree that might well be true.
                Trust is great.

                Would NSA have had to make any representation at all of their specific authority to do this?  For example, some type of statement or document to the effect that "We have a warrant issued by the FISC, authorizing us to secretly secrete on Mr. Secret", or are the common carriers' doors pretty much open, to Mr. NSA, to do as thou wilt?

                and at the risk of seeming argumentative...

                The common carrier probably doesn't even know if one really exists, but is simply told that the NSA is conducting "lawful surveillance."

                Who is simply told and who simply authorizes on that basis?  No, really...who?

                For all the common carriers know, any surveillance the NSA does anywhere in the network is pursuant to a warrant issued by the FISA court.

                Given the present blatant state of affairs, can this still be true?  Was it ever lawful for the common carriers to make this assumption?

                I've got to dig out my verizon contracts and see what I agreed to, precisely, but this irks me terribly.

                ...gleefully connecting dots since 1966 scratch

                by arbortender on Fri Jan 06, 2006 at 12:43:38 AM PST

                [ Parent ]

                •  Um... (none)
                  ...your Verizon contracts aren't going to mention NSA surveillance, believe me.

                  You want a name of who speaks to the common carriers on the NSA's behalf?  I have no idea, but my guess is that a letter is sent from the NSA's legal counsel's office (I used to know the former chief legal counsel for the NSA, by the way, although he never discussed his work with me) requesting this or that specific cooperation and citing the statute's section requiring the carrier's cooperation.  All I know is that, whatever personal doubts I might have about the request, as an in-house lawyer receiving a letter on NSA letterhead citing a statute requiring my company's cooperation, I would never in a million years deny the request if I wanted to keep my job.

                  "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

                  by scorponic on Fri Jan 06, 2006 at 03:44:17 AM PST

                  [ Parent ]

    •  There's a lot of confusion about telecom (none)
      in relation to FISA and NSA spying.  (This happens to be my field, and I wish I had the time to diary it.)

      The excerpt from the book is accurate concerning the growth of international transit traffic through the U.S.  But it's also important to recognize that there has been exponential growth in ALL telecoms traffic worldwide, not just traffic to and through the U.S. networks.  

      More important, the ubiquitous use of digital multiplexing and Intelligent Network signaling makes it virtually impossible to separate on class of traffic (domestic) from another (international) once it enters our borders.  The ONLY locations where purely international traffic can be "captured" and hence "examined" by surveillance technolgies is at the international gateway switch, the switch that is directly connected to international cables or satellite links.  Calls entering and exiting those switches are clearly international, but everything on the other side of the switch is digitally combined, so that you could never distinguish the source or destination of the signal from that point forward.

      As a practical matter, it is not even possible to "eavesdrop" on telephone calls anywhere outside of the gateway switches, anyway, as these are essentially the only locations where traffic is isolated as independent connections.  (Even that's not really true, as calls from specific other locations are all multiplexed together, too, but they can be demuxed at the switch.)  The only other option is an old-fashioned wire-tap right at the premises of the party making or receiving the call.  There is literally no way that any technology can simply plug into a wire somewhere in the middle of the network and "listen" to phone calls, the way it was once done.  (The case is different with cell phones, of course.)

      Hope this helps a little.

      So this is how liberty dies, with thunderous applause -- Padme

      by dnta on Wed Jan 04, 2006 at 05:08:05 AM PST

      [ Parent ]

      •  You should definitely diary this... (none)
        ...although I am confused about what your conclusions and corrections of the record are.  The more sophisticated commentators realize that there is not much physical listening going on.  Instead, data is being sorted by computer to identify communications that trigger pre-determined flags -- either as to sender, recipient, content, etc.  Although some very suspect pre-targeted listening seems to have occurred, since Bolton was fed transcripts of some highly sensitive (and non-GWOT-related) communications involving State Department people.

        "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

        by scorponic on Wed Jan 04, 2006 at 05:25:15 AM PST

        [ Parent ]

      •  The question to ask any American is (none)
        would it be acceptable for France or India to tap into calls going through their countries? Think about how many times Americans call India - I think people would have a shit-fit.
        •  I did ponder your question to America (none)
          then went on to read some more comments, but return now to say, I expect my phone calls to foreign destinations to be covered on my end by the American Constitution and the laws and judgements pertaining to such communication.  But, I cannot expect American standards to hold true for foreign governments.  I expect my mail, packages, emails, phone conversations to be subject to foreign review.
          The crux of this discussion isn't if foreign law violates American constitutional standards, it's if our American government lives up to our constitution.
          So, I wouldn't have a shit fit if France or India Or China reads my mail, I am having a shit fit cause Bush is reading my mail.

          I kinda like Howard Dean, it's those wild eye crazies that came with him I wonder about!

          by redlief on Wed Jan 04, 2006 at 05:55:35 AM PST

          [ Parent ]

          •  I agree w/what you say. I postulate (none)
            this only as a way to get the average American that doesn't think that Bush did anything wrong to see it from another perspective.
            •  Even better. (none)
              What if we found out calls from New York to California were routed through, say, Quebec, and the Canadian government felt they had the right to monitor those conversations at will, with no legal restrictions.  Americans would have a shit-fit at that revelation, in my opinion.

              "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

              by scorponic on Wed Jan 04, 2006 at 06:25:23 AM PST

              [ Parent ]

              •  Or, say, the UK, NZ, AU, etc.... (none)

                ...gleefully connecting dots since 1966 scratch

                by arbortender on Wed Jan 04, 2006 at 07:25:38 AM PST

                [ Parent ]

              •  Well, sure, but ... (none)
                What if we found out calls from New York to California were routed through, say, Quebec, and the Canadian government felt they had the right to monitor those conversations at will, with no legal restrictions.  Americans would have a shit-fit at that revelation, in my opinion.

                Well, sure, but "that's different".  Which is an attitude sometimes referred to as "American Exceptionalism" -- the idea that there are some things that only the US (and sometimes certain US allies) should be allowed to do.  No doubt many Brits felt the same way during the days of the British Empire.  Hell, it probably dates back at least as far as the Roman Empire.

                One of the most elephant-in-the-living-room examples of this is weapons of mass destruction.  It was the major excuse the Bush League used to get the public behind the Iraq War.  But people in the US pretty much shrug off the fact that we've got the biggest stockpile of WMDs on the planet.  Evidently the assumption is that we can be trusted with them ... despite the fact that we're the only folks who've actually used nuclear weapons, and despite the fact that our leaders have made it clear that they're not reserved for retaliatory use.  The repeatedly stated US policy is, essentially, "we'll use them if and when we want to".

                Blessed are the peacemakers, for they will be called children of God.

                by Bearpaw on Wed Jan 04, 2006 at 08:41:33 AM PST

                [ Parent ]

      •  So, (none)
        if this statement is correct:
        "The ONLY locations where purely international traffic can be "captured" and hence "examined" by surveillance technolgies is at the international gateway switch, the switch that is directly connected to international cables or satellite links.  Calls entering and exiting those switches are clearly international, but everything on the other side of the switch is digitally combined, so that you could never distinguish the source or destination of the signal from that point forward."

        Then does it not follow that these "international gateway switches" would be the ONLY switches where one could fulfill 1802(a)(1)(B):

        There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. §1802(a)(1)(B).

        And if it does so follow, then where is the exclusion that allows interception at any other switches than these?
         

        ...gleefully connecting dots since 1966 scratch

        by arbortender on Wed Jan 04, 2006 at 07:23:35 AM PST

        [ Parent ]

        •  I think you've hit the nail on the head (none)
          If they claim that they have only been tapping international calls, incoming or outgoing, then they would have to be plugging in only to the gateway switches.  There is no other way to ensure that domestic calls are not included.  I haven't seen any specifics as to how or where the surveillance has been carried out, but I'd be very interested to find out.

          So this is how liberty dies, with thunderous applause -- Padme

          by dnta on Wed Jan 04, 2006 at 09:16:20 AM PST

          [ Parent ]

      •  Bad for Telecoms? (none)
        So, if foreign countries become wary of having the US tapping their lines, will they eventually find an alternate network? That wouldn't be very good for American Telecoms.
        •  Sure, if the price is right (none)
          The main reason other carriers transit through the U.S. is because our services are so much cheaper than most of the rest of the world.  But as prices come down elsewhere, you can be sure they'll try to avoid going through U.S. networks.

          So this is how liberty dies, with thunderous applause -- Padme

          by dnta on Wed Jan 04, 2006 at 12:00:45 PM PST

          [ Parent ]

  •  Something to consider is the administration claims (none)
    that they were only "tracking" many communications, not acquiring the "contents" of them. This is a technically reasonable claim if not something I can find believable from this administration.

    -6.88/-5.64 * 2005 AD, final score, Internet 1, Corporate America 0 * Merry New Year!

    by John West on Wed Jan 04, 2006 at 03:49:52 AM PST

    •  Technically correct. (none)
      As per my post above, they simply don't have the resources to listen in on or tape all telecommunications.  However, they almost certainly monitored the contents of communications that set off alarms on the equipment they used to "track" communications, and it seems they listened in on the communications of identified U.S. targets wholly unrelated to the GWOT.  E.g., the transcripts supplied to Bolton of his DoS colleagues' communications.

      "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

      by scorponic on Wed Jan 04, 2006 at 05:39:14 AM PST

      [ Parent ]

  •  Sometimes, A'do, they can't take -- (none)
     "We're breaking the law!" for an answer.

    Yes, I find it interesting (but now purely typical and predictable) that apologists for America's Neo Fascist Movement bend and contort and twist an argument and position out of recognition when -- to get to the nut of the matter -- all they have to do is look at the plain words of those for whom they're making excuses for. But "muddying the waters" is now an horse that they saddle-up and ride over and over and over again.

    Bush admits that his Admin, by his directive, monitored telecom coming into the U.S. -- not "passing through" U.S. switches.  Period.  

    Bush admits that his Admin, by his directive, did ,and continues to do, this monitoring, these intercepts, without obtaining FISA Court warrants, as required by law.  Period.

    But Pretzel Logicians like Kerr sticks his fingers in his ears, sings, "La, la, la, la, la, I can't heeear you!" then repairs to his laptop to shovel legal manure and obfuscation.

     BenGoshi
    __________________

    . . . religion is not a syllogism, but a poem. H.L. Mencken

    by BenGoshi on Wed Jan 04, 2006 at 04:02:13 AM PST

  •  It's not hard to wipe the fog from your glasses (4.00)
    Spying on international calls: OK
    Spying on calls from one american to another in the US without court order?  ILLEGAL and NOT OK!

    This isn't that hard to understand.
    But when the polling and a VAST majority of the pundits and braindead anchors report the controversy over "spying" in general, it muddies the issues.  Who doesn't want terrorists to be listened in on?  I sure do!

    But the NSA should not be allowed to do fishing expiditions by spying on Americans without a court order. Cause that's illegal, whether you are at war or not.  The law is the law.

  •  Note: (none)

     serial typos, verb disagreement, and the like are directly proportional to the hour of the day (6:00) and the fact that I'm only on my first cup of joe.

     BG
    __________

    . . . religion is not a syllogism, but a poem. H.L. Mencken

    by BenGoshi on Wed Jan 04, 2006 at 04:04:55 AM PST

  •  Oh, and look for Kerr on Fox, (none)

     MSGOP, CNN, et al over the next 24-72 hours.  He's no fool -- he's gonna make a pile shilling for Bush.

     BenGoshi
    ___________________

    . . . religion is not a syllogism, but a poem. H.L. Mencken

    by BenGoshi on Wed Jan 04, 2006 at 04:11:04 AM PST

  •  Clear and Present Danger. (none)
    Look, I think you've all seriously underestimated the threat them damn Quakers & sewing-cirlce peace activists pose to your mighty nation.  If you've nothing to hide you've nothing to fear.
  •  How come (none)
    Nobody is jumping up and down about Bolton's requests for NSA transcripts?  Or will that be one of the things investigated by Fitzgerald?  Aside from The Mighty Moustache's recent antics at the UN the Bolton front has been very quiet recently.
  •  The reason I'm skeptical about this book (none)
    ...is because Risen's assertion seems to get the administration off the hook and only validates their claim that the CIA ignored the actual pre-war intel.

    JP
    http://jurassicpork.blogspot.com

    Defending bad taste and liberalism since 2005.

    by jurassicpork on Wed Jan 04, 2006 at 04:31:00 AM PST

    •  And yet it was only last week that (none)
      the wing nuts were attacking the NYTimes for publishing the leak because of the soon to be released book.
    •  The CIA (none)
      already said yesterday that Risen has made errors about the CIA.  I don't think they tried to correct them, however.

      Amazon is out of the Risen book--last time I looked, anyway.
      I ordered it from Booksamillion.com a few days ago, and they shipped it UPS yesterday, the 3rd. Risen is making the rounds on TV. I am wondering if Comey is one of his sources.

      IMPEACH

      "That story isn't worth the paper it's rotten on."--Dorothy Parker

      by martyc35 on Wed Jan 04, 2006 at 10:57:00 AM PST

      [ Parent ]

  •  Is it not correct that (none)
    the AUMF authorized Mr. Bush to go after those involved in the 9/11 attacks, and those aiding and harboring the same? And that it authorized Mr. Bush to go after ONLY those persons, not ALL terrorists in the world?
    •  That is correct (none)

      The SCOTUS is extraordinary.

      by Armando on Wed Jan 04, 2006 at 04:35:40 AM PST

      [ Parent ]

      •  So then this (none)
        statement:

        Relying largely on those constitutional powers, Congress passed a resolution just days after the September 11 attacks granting the president the authority to wage a global war on terrorism, and...--Risen

        is totally bogus, unless the GWoT is understood to mean the GWo(9/11)T.

        •  A lot of bogus in there (none)

          The SCOTUS is extraordinary.

          by Armando on Wed Jan 04, 2006 at 04:46:56 AM PST

          [ Parent ]

        •  For example (4.00)
          In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community.

          In fact, the law covers it remarkably well in its definition of "US Persons", "Surveillance" and "Communications."

          Frankly, there is no need that I can see to amend FISA.

          The SCOTUS is extraordinary.

          by Armando on Wed Jan 04, 2006 at 04:49:15 AM PST

          [ Parent ]

  •  If It's All So Minimal, as Some Suggest, Then Why (none)
    did a senior FISA judge resign in apparent protest, and why did senior officials at the Bush DOJ withhold approval of the program?

    I think efforts to explain away concerns, without awaiting substantial disclosure by the administration, is premature.

    And as to Armando's analysis, I certainly agree.  If the White House was honestly worried that FISA was outdated, they could have sought Congressional approval.  On the other hand, if their own officials were telling them that some actions they were contemplating were in clear violation of U.S. laws, then they had no authorization to pursue those options.  Period.  That did not create an opportunity for them to extend Presidential powers beyond the laws already in existence, though I know that it appears that Law Professor and former administration official John Yoo thought that was the appropriate response.  How did Yoo get that position at U of C's Berkeley School of Law, given his shocking advocacy?

    And, if they thought their actions were within FISA, then certainly they had the right, even the obligation, to go to a FISA judge and make their case.  It seems like they avoided ALL of these options.    Why is that?  The FISA judges seemed quite permissive.  These are questions which deserver thorough and comprehensive investigation and review.  And, if they did attempt these actions, then they should provide the proof of their efforts to comply with the law.  

    But acting outside of the law is not an option.

    As an aside, check out this amazing and outstanding review of John Yoo's new book, as reviewed by Georgetown law professor David Cole.  It explains a lot about thinking in this administration, and the danger to our Nation and Constitution, as manifested by Republican stewardship of the reigns of power in current times.  

    •  Berkeley (none)
      Make no mistake, Yoo is insanely intelligent, which is why he is so dangerous.  He is using his intellectual powers for the Dark Side, unfortunately.  In this case, his service to power has led him to take an indefensible position, but he has a brilliant legal mind, otherwise.

      And as for Berkeley, I went to law school there, and the faculty is dominated by right-wingers.  Terrible irony, given the history of the place and the very, very liberal student body at the law school.

      "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

      by scorponic on Wed Jan 04, 2006 at 05:16:36 AM PST

      [ Parent ]

      •  "Insanely intelligent" (none)
        Excuse me, the evidence of that is sorely lacking at this time.

        The SCOTUS is extraordinary.

        by Armando on Wed Jan 04, 2006 at 05:22:55 AM PST

        [ Parent ]

        •  Don't get me wrong. (none)
          I think the man is the worst thing to happen to the legal profession since Nazi lawyers enabled Hitler, but he is very, very smart.  One can be smart yet still take stupid positions out of ideological compulsion.  See, e.g., Scalia, J. or Buckley, William F.

          "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

          by scorponic on Wed Jan 04, 2006 at 05:31:49 AM PST

          [ Parent ]

        •  Yoo Who? (none)
          According to the review cited above:

          Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. Indeed, ratified treaties, Yoo believes, cannot be enforced by courts unless Congress enacts additional legislation to implement them.

          I'd say this may be insane, but it isn't very smart. Yoo renders all international agreements moot in order to give supreme powers to the president of only one country that ratified the agreement. Is he just hoping that no other country (or coalition of countries) that signed the agreement will get big and strong enough to fight back? Duck! Here comes China! or Here comes Europe! I think the appropriate term is "delusions of grandeur." Another good diagnosis is solipsism, which is way worse than ethno-centrism, being the belief that the self can know only its own modifications and therefore the self is the only thing that exists. Houston, we have a problem.

          Not to mention that, according to the reviewer, Mr. Yoo has now created for himself the impossible task of reconciling his absurd position regarding presidential powers with the "original intent" of the framers of the Constitution, a challenging stretch that has sent him scurrying into libraries, looking for archaic definitions of words such as "declare" and "war." The Constitution does not MEAN that only Congress can declare war, says Yoo. It probably means that only the King, uh, President can start a war, after which Congress can add its stamp of approval. Stop this idiot before he figures out how to argue Congress entirely out of existence.

          I still say the fastest way to stop Bush/Cheney is to stop giving them any money. Shhh. Don't educate Mr. Yoo about the words budget or appropriations. He will just get busy redefining what they mean. Last time I looked, Congress controlled the purse strings.

          I know, some of you will say that Halliburton controls the purse strings, but give me the benefit of the doubt, please. Technically, Congress, although perhaps nearly dead, is still clinging to life.

          "That story isn't worth the paper it's rotten on."--Dorothy Parker

          by martyc35 on Wed Jan 04, 2006 at 12:03:05 PM PST

          [ Parent ]

          •  For a lot of technical reasons... (none)
            ...for which this is not the appropriate forum, Mr. Yoo's positions on these various topics are fairly mainstream.  (I'm referring to the excerpt you quote, not the "Article II makes POTUS a king during war-time" argument).  In fact, as the law now stands, the POTUS does have constitutional authority -- as a matter of domestic (i.e., internal US) law -- to abrogate treaties unilaterally.  (President Carter established this principle when he unilaterally abrogated the U.S.-Taiwan mutual defense treaty.)  He may also, obviously, involve the country in armed conflict without a Congressional declaration of war.  (I think the courts have gone way astray of the plain words of the Constitution here, but they have nevertheless endorsed presidential authority, without Congressional action, in this area.)  Finally, it is true under current U.S. law that a treaty may not be enforced in U.S. courts unless it is deemed "self-executing" by the courts.  The courts deem almost all treaties non-self-executing, meaning they lack the magic language that makes them directly enforceable in U.S. courts, and are thus only enforceable if Congress enacts specific enabling legislation.  For better or worse, these are solidly mainstream positions.  Which just goes to show, in my opinion, how hostile the U.S. in general is to international law -- particularly domestic application of international law.

            "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

            by scorponic on Thu Jan 05, 2006 at 02:50:41 AM PST

            [ Parent ]

          •  A simple point. (none)
            Here is John Yoo's biography from the Boalt Hall website:

            John Yoo received his B.A., summa cum laude, in American history from Harvard University. Between college and law school, he worked as a newspaper reporter in Washington, D.C. He received his J.D. from Yale Law School, where he was an articles editor of the Yale Law Journal. He then clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals of the D.C. Circuit.

            Professor Yoo joined the Boalt faculty in 1993, then clerked for Justice Clarence Thomas of the U.S. Supreme Court. He served as general counsel of the U.S. Senate Judiciary Committee from 1995-96. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers.

            He has been a visiting professor at the University of Chicago and the Free University of Amsterdam. He has received research fellowships from the University of California, Berkeley, the Olin Foundation and the Rockefeller Foundation, and is a visiting scholar at the American Enterprise Institute. Professor Yoo also has received the Paul M. Bator Award for excellence in legal scholarship and teaching from the Federalist Society for Law and Public Policy. He has testified before the judiciary committees of the U.S. Senate and House of Representatives, and has advised the State of California on constitutional issues.

            Professor Yoo has published articles about foreign affairs, international law and constitutional law in a number of the nation's leading law journals, including the law reviews of Boalt Hall, Chicago, Columbia, Michigan, Pennsylvania and Texas. He is the author of War, Peace, and the Constitution (University of Chicago Press, 2005).

            You don't accomplish what he's accomplished without being "smart," in at least some accepted meaning of that word.  The word can mean many things, since there are many types of intelligence.  Being "smart," however, is no guarantee that everything one asserts will be "smart."  Yoo's work in this area of the law is morally and intellectually bankrupt, in my opinion.  But the man is still smart as hell.  I don't see the point in arguing with that assessment, which implies no endorsement whatsoever of his views, or even suggests that the particular views under discussions are, themselves, "smart."  Once again, for the record, I consider them to be indefensible.

            "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

            by scorponic on Thu Jan 05, 2006 at 05:42:08 AM PST

            [ Parent ]

            •  Thanks for responding on John Yoo (none)
              Mr. Yoo has impressive credentials, obviously good enough to get him a job at Berkeley, but let's not forget that he lives in a publish or perish world, so it's his job to be writing all the time, just to survive in academia. I don't much care whether he is intelligent; my argument is that he seems slightly nuts, as does our president. What do you think of David Cole (law professor at Georgetown and author of the review in question)? He seems to respect the notion that some treaties (most likely long established ones such as the Geneva Conventions) ought to be honored:

              Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime--even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.

              Whether the president's prerogative to ignore international agreements is "mainstream" or not isn't very important, is it? What does it matter whether some or many lawyers have weighed in on the issue? Some agreements are more important than others. It takes only one lawyer who has the president's ear to do a whole lot of damage regarding the most important agreements. I lived through the "Police Action" in Korea, no declared war, and the Vietnamese Conflict, too (that's the way to find it in the library). The U.S. has long made its distancing from the United Nations known by not paying its agreed-upon dues; I see that as a tactic, not on a par with ignoring the Geneva Conventions or denying access to due process or breaking the FISA laws. Or flouting the Constitution of the United States.

              I was just reading yesterday about Alito's opinion on presidential opinions, that is, if the president records comments as to how he intends to interpret a bill that he signs, then he has leeway to interpret it contrary to Congress's stated intent in the Congressional Record. This is real, not theoretical, as Senator Carl Levin found out this week, when Bush decided to interpret a new law on Guantanamo detainees in exactly the opposite way that Levin had specified when cosponsoring it. It was an out and out betrayal. Apparently, Bush has done this on nearly every bill he has signed (like the cartoon of him with his fingers crossed behind his back), so even if John McCain thinks they reached an agreement on no torture of detainees, Bush can just do what he wants based on his own interpretation of the law. I'll bet Yoo would love that argument.

              The reason that I say such arguments are not very smart is that one can get away with them as long as your enemy is scared of you. If you slip a bit, then they will feel free to use your own tactics against you. Charging ahead on this short-term premise leaves a lot to be desired in the long-term. Getting rid of checks and balances internally will not protect the nation from retaliation for its bullying. There are other checks and balances out there, waiting for the chance to strike back. That's why I say that Mr. Yoo displays some signs of solipsism; he seems to think that the president of the U.S. is king of the world, totally infallible, into perpetuity. For an intelligent person, this is a stupid conclusion. Come to think of it, that was your point, too, wasn't it?

              "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

              by martyc35 on Thu Jan 05, 2006 at 10:49:41 AM PST

              [ Parent ]

  •  "apparently has gotten a copy..." (none)
    The book's release date was pushed up to yesterday, it's available now: http://www.amazon.com/...
    Chris
  •  Not a King (none)
    The President as King. Like I said.

    I'd say this actually is an offense vis à vis the various constitutional monarch's currently reigning who conscientiously do their job without having much political power...

    In fact, it's an offense vis à vis King George III as well... as the American president has in fact more power than George III ever had. We fought the British because they were oppressive but the truth is we traded them for a type of government which in retrospect would be seen by the founding fathers as even more oppressive than George of Hannover's (which ven by that day was on the path of becoming a true parliamentary monarchy)...

    The sad truth is that the current President thinks he's above the law... this is a true imperial presidency, nay, borderline to an autocratic governement of the molds of czarist Russia.

  •  Great job, Armando. (none)
    Critical info both here and in arbortender's piece.
  •  DAMMIT IT'S NOT 500 PEOPLE (none)
    Kerr wrote:
    why would the program be designed so that it also tapped the calls of 500 or so people in the United States

    Countless times I have heard people mention the "500 people" number without qualification, as if that was the total number. It's 500 people on any given day, meaning almost certainly many thousands of people over the years. In an interview the other day, Risen made it sound like those 500 people per day might change very frequently, which sounds to me like the number could very easily be in the hundreds of thousands.

    Please stop letting people get away with using the number 500 in the context of this scandal. It's a pointless number, and only serves to diminish the perceived scope of this eavesdropping. Even those of us who mean well do a disservice to the cause by even mentioning it.

    It's not 500. It's tens, perhaps hundreds of thousands of Americans.

    -Cf

    •  I was actually wondering... (none)
      If someone knows it's "500 people" then there must be a list of WHO those 500 are / were...let's have it!

      But as you point out, the "500" number is just more spin trying to trivialize a huge crime.

      •  Clarifying (4.00)
        The number 500 is from the original NYT article, where it clearly and plainly says there were about 500 people being listened to on any given day, and thousands over the years. Nobody "knows" that it's 500 people - everyone who actually read the article -- or who is involved in the program -- knows that it's tens or even hundreds of thousands.

        Don't hold your breath for that list.

        -Cf

  •  Why this confusion (none)
    NSA has been recording all the calls and email for years but does not listen/read unless approved by FISA. Since Bush has taken over, they monitor nearly 500 American persons real time, listen to their conversation, read their emails, check where they go and whom they meet at any given time. Over the past few years, they may have done this on hundreds of thousands of American.
    Political spying OTOH is probably totally different and more secretive.

    Mushroom cloud for mushroom crowd.

    by Ruffledfeather on Wed Jan 04, 2006 at 07:06:32 AM PST

  •  NSA Spying (none)
    I actually think that Bushco is recording everything; or if they're not now that is their ultimate goal. So hopefully some techie type can answer this:

    Take X million minutes of land line traffic per day, times Y kb disc space per minute

    Z million minutes daily cell traffic times A kb per minute

    E-mail daily traffic and disc space required, in billion bytes.

    Now sum, multiply by 365 and divide by 1,000,000,000, throw in some overhead and we have the required disc space, in gig's, needed to record a year's worth of everything. Just to check that my thought isn't entirely impractical.

    I suspect that the number won't be too large, but would like it confirmed by someone who had a good handle on how much traffic there really is and how much disc space is needed to record it.

    Once Bushco has all this data, presumably they'll data mine it. Now, how well their software will work, what they'll look for and how long it will take them to do the work, is open to speculation.

    Bill Rudman

  •  Secret legal opinions????? (4.00)
    What the fuck is going on in this country?

    We will continue to flog this story until more people are outraged.

    BTW, I read the Time article on this issue this morning, and I got the feeling that they were buying into the line that Bush's spying may be justifiable, that this whole thing will be tacitly approved in retrospect.

    I want to see Armando on Olberman or Air America to make the violations clear. Surely Amy Goodman will have more shows on this.

    Keep up the noise, people!

    "I ain't no stinkin' monument to justice."

    by menodoc on Wed Jan 04, 2006 at 10:20:54 AM PST

  •  Nice read folks, thanks (none)
    Thanks Armando, and everyone. This is an issue we're running behind on even as we speak. Keeping this front and center is essential. From Tweety to Rush, the song has been the same all day (in between Jack helps Dems too stories) : "The wiretaps are no big deal! Move along now, thank you".
  •  I hesitate to waste your time, (none)
    As I'd rather catch more of your new front pages as they emerge.
    However, in case you do return here:
    Here is where I'm pointing:

    The Attorney General is authorized to approve applications to the FISC

    and

    Specified national security or defense employees [are] designated to make the certifications  in support of [such AG-authorized] applications

    BUT, where is the line in there, or somewhere(?) clearly stating that they are required to be bothered with doing either?

    So empowered, but not so required....or do you read it differently?

    Put another way, the language I don't see is:
    The AG shall...
    The certifying authority shall...

    I'm not arguing that they're not required to.
    Nope,
    I'm struggling with the weasel-wording that appears to leave a truck-size loop for steppin' through.
    So help me out here:

    AG: Where does it say I must do that?
    arbortender:  um...
    Armando: Wellsir. Here ye go, right here.
    arbortender: where?

    ...gleefully connecting dots since 1966 scratch

    by arbortender on Wed Jan 04, 2006 at 09:30:52 PM PST

  •  Ignore this misplaced response, reposted on target (none)
    above.

    ...gleefully connecting dots since 1966 scratch

    by arbortender on Wed Jan 04, 2006 at 09:35:15 PM PST

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