On Thursday the President once again signed into law a statute--the Patriot Act renewal--which amends the Foreign Intelligence Surveillance Act (FISA). The Patriot Act made many significant changes to FISA--changes which were made permanent by this bill--but there is one crucial provision that has not changed; FISA still clearly states that its procedures "shall be the exclusive means by which electronic surveillance . . . may be conducted." In other words, the President has once again reaffirmed the validity of a law which expressly criminalizes the type of warrantless surveillance which his administration has been conducting for four and a half years.
Meanwhile, documents released on Thursday--and highlighted by Glenn--provide a window into the bizarre legal maneuvering within the administration following the public disclosure of this program. The central figure in these documents is David Kris, who was the Associate Deputy Attorney General from 2000-2003. Marty Lederman, who worked with Kris at the DOJ, has written an excellent post discussing the significance of these documents. As Marty explains, Kris' memorandum thoroughly dismantles the administration's legal arguments, particularly the assertion that the AUMF somehow provided the President with the statutory authority to bypass FISA.
Marty also confirms something that seems pretty clear from reading the documents: despite being the person at the DOJ most knowledgeable about FISA, Kris was left entirely out of the loop with respect to the NSA program. That's a rather astounding fact given that the administration sent Kris to Congress on several occasions to testify about FISA. For example, on September 10, 2002--well after the NSA program began--Kris testified before the Senate Judiciary Committee and said the following: "Let me repeat for emphasis: We cannot monitor anyone today whom we could not have monitored at this time last year." Keep in mind that "at this time last year" the September 11 attacks had not yet occurred.
Perhaps even more significantly, Kris' emails reveal that, as late as January 2006, the administration's legal justifications for the NSA program were still highly fluid and evolving. It's as if the DOJ never really gave the issue much thought until the New York Times broke the story. In a Dec. 22, 2005 email, Kris writes:
[I]t looks like you guys are leading with Article II and using the AUMF as support, rather than leading with the AUMF interpreted broadly in light of constitutional avoidance doctrine, and then falling back on Article II. If I'm reading it right, that's an interesting choice--maybe it reflects the VP's philosophy that the best defense is a good offense.
As we know, the DOJ's White Paper took the approach Kris suggested, putting primary emphasis on the AUMF and constitutional avoidance arguments and relying on the Article II argument only secondarily. And for good reason. In a one-sentence email on Dec. 21, Kris pointed out the rather glaring conceptual flaw in the administration's Article II argument:
"My major disagreement with this, I think, is that the President's inherent authority to conduct electronic surveillance or physical searches in the *absence* of legislation is not the same as his inherent authority to do so in the *presence* of such legislation" (emphasis added).
You know you don't have a very strong argument when it takes just one sentence to destroy it. Perhaps that's why the DOJ's white paper is unsigned. I doubt any aspiring attorney wants to be forever associated with those legal arguments.
All of this just makes me more curious to see the official legal opinions on which this program is based. Why was all this last minute legal brainstorming necessary if the administration had already submitted this program to intensive legal review, as it claims? Why did the administration feel the need to reach out to Kris in 2006--in the private sector--when it had left him entirely out of the loop when he actually worked for the DOJ? Nothing about this makes any sense to me. Someday perhaps Jack Goldsmith can explain to us why the administration is so afraid to release his 2004 OLC opinion. I have a guess, but at this point, who really knows.
I am eager to see how their insanely bold (read: insane) defense of these crimes hold up to scrutiny.
ReplyDeleteNow...if we could only bring about a confrontation between Law and Bush....
Why is the Administration so reluctant to allow Congress to see these memos? My hunch is that it's because the Administration's current legal posture looks very different than the one it originally adopted when it authorized this program in late 2001. I suspect very strongly that the Administration's primary argument for the legality of the program--that Congress authorized the President to take such measures when it passed the AUMF--is of relatively recent vintage.
ReplyDeleteGeorgia at Kos has a diary on this issue that sums it up quite well and that is the “After the Fact” quality to all of this.
I have always been bothered by Attorney General Gonzales's statement that the legal justifications for the program have "evolved over time." Reading through these emails, it becomes apparent that that is perhaps one of the biggest understatements of this scandal. Four years after the program allegedly first passed legal review, the Department of Justice was still scrambling to find legal footing for the program. This despite the fact the program was allegedly reviewed every 45 days for the last four years by legal experts.
So just who did approve of the program? And what was their basis, if, four years after the fact, the Department of Justice still can't find legal ground to justify the program?
I think this is important, because it almost everything the White House is doing and saying has an “after the fact” quality to it, from Iraq, Katrina, and on and on.
In short, they do what they want to do, and come up with legal and rational explanations after they do it. This is part and parcel of their fundamental war with reality, and their insistence that they “can create their own reality.”
It’s all about the propaganda, which changes depending on how bad their decisions are falling apart, and what crimes have been exposed. Facts, laws, reality, none of that matters anymore – it’s all about Orwellian props, and fictional talking points to create “their” reality.
Maybe we should stop looking for a method to their madness, and just accept it as “madness” for that is what it has become.
The government is broken, Congress isn't doing its job, the lobbyists are writing the laws, Bush ignores all criticism as he has since day 1 of his awful reign and does whatever he wants to do both domestically and in foreign policy. Whoever gets the job of president in 2008 will have a HUGE ball of problems to solve, not least of which is that the economy is largely bankrupt from the Iraq (sorry, LONG)war. America will be in the hole for a long time to come.
ReplyDeleteQuoting David Kris: "My major disagreement with this, I think, is that the President's inherent authority to conduct electronic surveillance or physical searches in the *absence* of legislation is not the same as his inherent authority to do so in the *presence* of such legislation"
ReplyDeleteSumming up and demonstrating that at least one lawyer in Bush's DoJ has read Justice Jacksons's Youngstown Opinion, and grasps its applicability.
The evidence is mounting that the crime syndicate that is running the country used to be long on confidence but is now increasingly short on brains.
ReplyDeleteWas Gonzales involved in every stage of the evolving justifications, from counsel to attorney general? If so, he hasn't acquitted himself well.
Why can't unlimited power and money guarantee that you'll buy good lawyering?
AL:
ReplyDeleteThank you so much for providing a link to Mr. Kris' excellent brief. Mr. Kris made a very reasoned and objective presentation of the law and the strengths and weaknesses of his point of view. Much better than many publications by law professors which I have read.
As a lawyer, you should realize that this brief has no legal significance at all as a legal opinion binding on a court or the President. It is merely a brief by an attorney to the DOJ giving his personal analysis. Thus, apart from some interesting legal arguments, it has no meaning to your allegations of criminal wrongdoing.
Also, the fact that DOJ is entertaining a variety of legal viewpoints doesn't do much for your argument that Justice is a group of yes men engaged in some sort of nefarious coverup.
Now to the legal arguments. Let's start with the two key areas of Mr. Kris' agreement with Justice...
1) The AUMF on it face would authorize electronic intelligence gathering against the enemy and its agents.
2) Article II of the Constitution gives the President as CiC constitutional authority over gathering electronic intelligence gathering against the enemy and its agents.
The two legal issues which Mr. Kris spends most of his time wrestling with arise out of these areas of agreement...
1) Does the AUMF amend FISA to make an exception for gathering electronic intelligence gathering against the enemy and its agents?
2) If the AUMF does not create an exception to FISA, does Congress have the constitutional authority to limit or eliminate the President's Article II power to gathering electronic intelligence gathering against the enemy and its agents?
As to the AUMF issue, Mr. Kris makes a plausible and the best argument I have seen to date that the AUMF did not amend FISA.
On whether another statute may amend FISA, Mr. Kris points out the two relevant portions of FISA - its exclusivity provision and a later provision which allows electronic surveillance as allowed by other statutes.
Mr. Kris admits that these two provisions of FISA conflict. In a reasonable effort to harmonize them, Kris argues that only statutes which directly address electronic surveillance may amend FISA. Thus, the AUMF may not implicitly amend FISA. Mr. Kris admits that the case law concerning exclusivity provisions never really addressed the issue he raises and should not be given undue importance.
Mr. Kris makes a much weaker argument (which has been made previously on this blog and elsewhere) that Congress may not have intended to use the AUMF to amend FISA because it was concurrently amending FISA through the Patriot Act. However, Mr. Kris for about the only time in his brief shies away from citing any legislative history to back up this claim. We know that the WH asked Congress to enact the Patriot Act in part to amend FISA because Justice was using FISA extensively to gather evidence for criminal prosecutions, not to get permission to spy on the enemy and its agents. Congress is silent on that distinction.
Another weakness in his AUMF rebuttal is that Mr. Kris gives very little attention to Justice's main argument - when presented with two plausible interpretations of the AUMF and FISA, the court should adopt the interpretation which maintains the constitutionality of FISA. After admitting that the Justice argument in his opinion is "not frivilous" and is therefore plausible, Kris simply dismisses the Justice interpretation in once sentence by claiming it is not as strong as his interpretation. However, the relative strengths of the interpretations are irrelevant under this analysis. Courts strive to keep statutes constitutional so long as there is any plausible reason to do so.
Mr. Kris punts on whether Congress exceeded its constitutional authority in enacting FISA.
Kris observes and I agree that the post-Watergate Congress expressly intended by enacting FISA to limit or eliminate the President's well recognized Article II power to spy on the enemy and its agents in the US. Moreover, Kris quotes the legislative history where Congress cited the Jackson concurrence in the Young case as authority, but admitted on the record that the Supreme Court might not agree with that citation. Congress knew they were reaching here.
After claiming that he cannot offer an opinion without more facts, Kris proceeds in true lawyer fashion to do just that.
Kris admits that the Young and later Dames cases both address conflicts between concurrent powers of Congress and the Executive over the same subject matter. While admitting that the Executive has the power to gather intelligence against the enemy and its agents in the US, Kris cannot cite a single concurrent Congressional power over the same subject matter area.
Moreover, Kris makes the same arguments I have on multiple occasions on this board that Congress cannot exercise command authority in choosing how to use the military. For example, Kris rejects Conrgessional authority to declare war, but tell the President he cannot use tanks and planes. Or to pass legislation ordering the Marines to conduct a flanking maneuver in the battle for Tikrit. Kris even raises doubts that Congress could do this indirectly by placing strings on finding for an agency.
In sum, Kris argues that FISA probably applies to the NSA Program, but concedes that FISA was an intentional and most probably an unconstitutional power grab by Congress over intelligence gathering.
Jack Balkin has some worthwhile thoughts on the Kris brief, including this:
ReplyDeleteFew observers have noted one of the most extraordinary aspects of the DOJ White Paper: In footnote 13 of that White Paper, DOJ responds to this PATRIOT-Act-is-superfluous argument by explaining that, in fact, the PATRIOT Act was not necessary for the "current armed conflict against Al Qaeda and its allies," and that it was instead merely a vehicle for removing "long-standing impediments to the effectiveness of FISA." In other words, the "necessary to defeat Al Qaeda" argument was merely a stalking horse, and the PATRIOT truly was, and remains, a DOJ wish-list to address issues that had long preceded September 11th. This doesn't mean that the PATRIOT Act should, or should not, have been renewed; it's merely to point out that, on DOJ's own reading of the AUMF, the PATRIOT Act is hardly necessary to address the current conflict with Al Qaeda.
The Patriot Act addressed criminal justice evidence gathering.
ReplyDeleteThe NSA program addresses military intelligence gathering.
The courts have made this distinction for over a quarter century when holding that the 4th Amendment does not apply to intelligence gathering against foreign groups and their agents in the US.
This sounds like what Justice is getting at in Footnote 13.
The NSA program addresses military intelligence gathering.
ReplyDeleteWhen you say this, what facts are you referring to?
We agree that the NSA program is listening in on telephone calls involving at least one U.S. resident and involving at least one party with some putative connection to Al Qaeda (perhaps, but not limited to, putative members of Al Qaeda), right?
Referring to such activities as "military intelligence gathering" does violence to the way that ordinary people use ordinary language, such that it suggests that you conceive of yourself as an advocate in these circumstances.
It isn't very surprising at all to know that the administration cherry-picked its legal justification for the NSA scandal - or at least avoided receiving legal analysis from those within the administration who may have a possible dissenting view - even if that person may be the most knowledgeable on the particualr subject (e.g, Mr. Kris).
ReplyDeleteThis has been the game plan ALL THE TIME ON EVERY SUBJECT. Why do you think Bush (or really Rove) handpicks the audiences on the roadshow's? Why did the White House Iraq Group, which is the source of 75% of the bogus rhetoric and claims regarding pre-war intel - only include those who have shown their willingness to go along with the "program"? Why does the intelligence committee with Pat Roberts in charge get to investigate the same pre-war fuck-ups? (I realize thats the intelligence committee's job) PHASE 2 anybody? If they won't do it, why not set up an independent commission like for 9-11? Oh ya, that was a whitewash too. The pattern of cronyism and lack of accountability is SO F IN OBVIOUS it is almost pointless for me to even bring it up. But i feel i have to because those who are paid to do so, who are trained to do so, and who are supposed to bring such things up won't ever connect the dots. Journalism is dead. Bloggerism is alive and well and gaining momentum perhaps only because they do something so scary to the current administration and its cult of republican leaders...they tell the truth. They connect the dots. They expose the BS. Thank you, again, for doing this so very well.
"The NSA program addresses military intelligence gathering."
ReplyDeleteThat's only true to the extent that you trust low-level NSA officials with no oversight and a culture of plausible denial and secrecy to determine that someone is a military threat. Here are some of the "violent" groups spied upon for "national security" reasons in the past:
*"nonviolent citizens who were against the war in Vietnam"
*"a great number of organizations that you might not today characterize as black nationalist but which were in fact primarily black [including] every Black Student Union and many other black student groups"
*the "nonviolent Southern Christian Leadership Conference"
*"civil rights leaders... not deemed to be "anti-Communist," including most famously, Dr. Martin Luther King Jr.
Those are all from one section of the Church Report on Intelligence Activities.
From what we can tell, Bush hasn't been any better. For example, the Pentagon has illegally maintained records on peaceful protesters including, of all people, a bunch of Quakers link because of the national security risk they posed. We know that the Texas Republicans used the Homeland Security Department to spy on their political opponents.
I suppose it's military intelligence gathering in the sense that the NSA does military intelligence so everything it does is "military intelligence" by definition, but I hope you'll forgive me Bart if I don't find that logic compelling.
Dave
dave said...
ReplyDeleteThat's only true to the extent that you trust low-level NSA officials with no oversight and a culture of plausible denial and secrecy to determine that someone is a military threat.
That is the purpose of Congressional oversight.
If you argues that the executive cannot be trusted to tell Conrgess the truth, then it cannot be trusted to tell a FISA court the truth.
Then, in either case, you are relying upon whistle blowers. Those whistle blowers have access to the IG, Justice and the congressional intel committees without blowing the program to the enemy.
The whistle blowers who did blow this program to the enemy with the help of the NYT present no evidence at all of a repeat of the Kennedy/LBJ/Nixon spying on domestic political groups.
Bart,
ReplyDeleteYou show little understanding of the context of Kris' memo. The people he was trying to persuade with this memo were his former DOJ colleagues. That's why his tone is very diplomatic and his conclusions phrased tentatively. But if you read the memo carefully, it's clear he thinks the administration's legal arguments are incredibly weak (which they are). Don't mistake a diplomatic tone for a belief that these arguments have merit.
As for this:
The Patriot Act addressed criminal justice evidence gathering.
The NSA program addresses military intelligence gathering.
This is wrong on about 42 different levels. First, the Patriot Act amended FISA; FISA is the statute that governs foreign intelligence gathering. Regular law enforcement surveillance is governmed by Title III. The only reason FISA can provide a lower standard for the issuance of a warrant than Title is because "a significant purpose" of that surveillance is for foreign intelligence purposes. Without that component, you can't even use FISA; you have to use Title III. Prior to the Patriot Act, FISA required that this be the "primary purpose" of the surveillance.
To suggest that FISA and the amendments to FISA contained in the Patriot Act were intended only to deal with law enforcement surveillance is totally ass backwards. FISA is primarily intended to govern intelligence gathering. It only governs law enforcement surveillance when that surveillance is intertwined with intelligence gathering.
Second, the NSA is a civilian organization and the surveillance at issue involves U.S. citizens within the United States. To call this "military surveillance" is bizarre.
Third, whatever it is, FISA, by its own terms, provides the exclusive means for doing it. And even if you want to call it "military," Congress has the express constitutional power to create rules which govern the military. Congress also created the NSA just like it creates all federal agencies. And just like all federal agencies, it has the subsidiary power to create rules which those agencies must follow. This is administrative law 101.
Bart said:
ReplyDelete"That is the purpose of Congressional oversight."
Well, congratulations, Bush just won and avoided Congressional oversight.
"If you argues that the executive cannot be trusted to tell Conrgess the truth, then it cannot be trusted to tell a FISA court the truth.
I'm arguing that the current structure of the program doesn't require them to tell anyone and that they should be required to report each wiretapping, not just report on the program as a whole.
Then, in either case, you are relying upon whistle blowers. Those whistle blowers have access to the IG, Justice and the congressional intel committees without blowing the program to the enemy.
Ask Ian Fishback or Robert Mora about how well working within the system works. Mora was fired and Fishback was jailed.
The whistle blowers who did blow this program to the enemy with the help of the NYT present no evidence at all of a repeat of the Kennedy/LBJ/Nixon spying on domestic political groups.
Perhaps, but I just presented two modern examples that show that Bush's domestic surveillance is out of control, and here's a third: the NSA was wiretapping a lawyer's conversations with his client and then used the information to harass a Muslim charity and disrupt due process.
Dave
Straw poll:
ReplyDeleteDoes Bart actually believe the arguments he's presenting?
Your post is nothing short of fascinating, AL. The way in which narrow it down to core, easily understood main points behind all the peripheral discussion is so powerful.
ReplyDeleteI do have a gripe, however. Now that you and Glenn have started throwing such totally absorbing one-two punches at us lately, I no longer even have one hour free time a day to do anything other than read, think about, and forward these posts to everyone I know.
Please stop writing such provocative posts. I need some time to pay some bills before I'm carted away.
BTW, my birthday wish was that something would happen that would lead to Goldsmith being able to testify in televised hearings.
I really believe that if this country is going to be saved from disaster, the brilliant members of the legal community who have chosen to spend their time looking into all these matters, and who care about justice, are our last, best hope.
Response to Dave's straw poll:
ReplyDeleteNo.
But they no doubt reflect some attempts at talking points among party faithfuls. Astute analysis of the law and the Constitution has never been high on Bushco's list of priorities.
I meant Alberto Mora, not Robert Mora. Robert Mora is a photographer.
ReplyDeleteEyes Wide Open said...
ReplyDeleteResponse to Dave's straw poll[re: does bart believe his arguments]:
No.
But they no doubt reflect some attempts at talking points among party faithfuls. Astute analysis of the law and the Constitution has never been high on Bushco's list of priorities.
I agree thar bart doesn't believe in his arguments any more than Gonzalez or the other administration "legal experts" believe their so-called legal arguments. The most compelling proof of this has been pointed out many times before, and that is the fact that the DOJ "White Paper" was not signed. The truth is, the Administration does not care if any of its purported legal justifications are actually legitimate or whether anyone believes them. The whole (successful so far) strategy has been to convince the faithful in Congress that legality doesn't matter, all that matters is protecting Bush and letting him do whatever he wants in the name of "national security." If this strategy continutes to be successful, as seems likely, at least for the foreseeable future, no court will ever have an opportunity to even make a stab at addressing the issues. So, in fact, it really doesn't matter whether the administration, bart, or anybody else believes their bullshit.
Anonymous Liberal said...
ReplyDeleteYou show little understanding of the context of Kris' memo. The people he was trying to persuade with this memo were his former DOJ colleagues. That's why his tone is very diplomatic and his conclusions phrased tentatively. But if you read the memo carefully, it's clear he thinks the administration's legal arguments are incredibly weak (which they are). Don't mistake a diplomatic tone for a belief that these arguments have merit.
You are the one reading anything at all into Mr. Kris' "tone" in your desperation to find some legal underpinning for your claim that Mr. Bush acted illegally. I merely addressed his arguments.
As for this:
The Patriot Act addressed criminal justice evidence gathering.
The NSA program addresses military intelligence gathering.
This is wrong on about 42 different levels. First, the Patriot Act amended FISA; FISA is the statute that governs foreign intelligence gathering. Regular law enforcement surveillance is governmed by Title III.
That will be a big surprise to all of those terrorists and spies convicted with evidence gained under FISA warrants. Justice uses the FISA courts continuously to gain secret warrants in national security criminal cases. I would not be surprised to learn that the Bush Admin has used it more often than any previous administration.
For the purposes of intelligence gathering against foreign groups and their agents, no President has sought a warrant under either statute. Clinton searched American citizen and Soviet agent Aldrich Ames' home without a warrant of any kind for these purposes.
To suggest that FISA and the amendments to FISA contained in the Patriot Act were intended only to deal with law enforcement surveillance is totally ass backwards. FISA is primarily intended to govern intelligence gathering. It only governs law enforcement surveillance when that surveillance is intertwined with intelligence gathering.
Really? Is there any Congressional history during the lengthy Patriot Act debates which states this?
Second, the NSA is a civilian organization and the surveillance at issue involves U.S. citizens within the United States. To call this "military surveillance" is bizarre.
The NSA is the primary collector of signals intelligence for all purposes - military and civilian. The NSA program as blown by the NYT monitors telephone numbers captured from an enemy with whom we are currently at war.
Third, whatever it is, FISA, by its own terms, provides the exclusive means for doing it. And even if you want to call it "military," Congress has the express constitutional power to create rules which govern the military.
This is completely incorrect. The power to enact regulations for individual discipline like UCMJ has nothing at all to do with choosing the who, when and how to conduct military intelligence gathering. Find me a single case where a Court found that this provision gives Congress command authority.
Kris does a good job in his brief distinguishing between command functions and regulations.
Congress also created the NSA just like it creates all federal agencies. And just like all federal agencies, it has the subsidiary power to create rules which those agencies must follow. This is administrative law 101.
Reread pages 8 and 9 of the Kris brief. As I posted above, he does a very good job shooting down the argument that the power to regulate or finance can be shoehorned into a power to bar the President from using portions of the military forces under his command or a power to enact statute commanding the military to conduct specific military acts.
Kris is virtually echoing my arguments concerning the distinction between executive command and regulation of individual behavior in a criminal code like the UCMJ.
This comment has been removed by a blog administrator.
ReplyDeleteDave
ReplyDeleteFrom what we can tell, Bush hasn't been any better. For example, the Pentagon has illegally maintained records on peaceful protesters including, of all people, a bunch of Quakers link because of the national security risk they posed.
Hardly. These people attempted to trespass on NSA property. The NSA has its own police department for local security. This PD monitored the demonstrations by that property and made reports of what they saw. It has nothing to do with the NSA electronic surveillance program about which we afre speaking and is not illegal.
We know that the Texas Republicans used the Homeland Security Department to spy on their political opponents.
You mean the Donkeys who fled their state in order to stop redistricting and were holding daily press conferences at their hotel rooms? Please...
here's a third: the NSA was wiretapping a lawyer's conversations with his client and then used the information to harass a Muslim charity and disrupt due process.
Do you read the articles to which you link? The convicted al Qaeda financier's attorney is alleging this without a scintilla of evidence.
Well, congratulations, Bush just won and avoided Congressional oversight.
Mr. Bush notified the leaders of both parties in both houses and the intel committees about this program from the beginning.
The Dem co-chair of the Senate committee, Jay Rockefeller, just received a 6.5 hour briefing at NSA where he had 450 questions answered to his satisfaction.
Under the proposed DeWine bill, another 15 or so reps and senators will get the same briefings any time a US citizen is surveilled without a FISA warrant.
bart said...
ReplyDeleteKris observes and I agree that the post-Watergate Congress expressly intended by enacting FISA to limit or eliminate the President's well recognized Article II power to spy on the enemy and its agents in the US.
No, No, a million times NO. FISA was expressly enacted to ensure that surveillance was limited to ACTUAL enemies and their agents in the US. You do remember Watergate, right? Furthermore in the thirty years of its existence only a handful of warrants were rejected. That's some "elimination" of power.
In the world of the ultra-paranoid everyone conceivably is an enemy, but we're not all Richard Millhouse Nixonites here in the reality-based universe.
The truly shameful part of this whole episode in history is that it took spying on the Democrats for such legislation to occur, never mind the fact that non-violent Black Student Unions, SCLC, MLK jr. etc... were spied on in the name of "national security" previously.
With respect to spying on Quakers, Bart says
ReplyDeleteHardly. These people attempted to trespass on NSA property. The NSA has its own police department for local security. This PD monitored the demonstrations by that property and made reports of what they saw. It has nothing to do with the NSA electronic surveillance program about which we afre speaking and is not illegal.
Actually, if you read the article I linked to, it says that people met at a quaker meeting house in Florida, but I guess if you can define waterboarding as humane, you can define Quaker meeting houses in Florida as NSA Headquarters. With regard to your quip that it's not the NSA wiretapping, that's why I said it was being done by the Pentagon. But it is indicative of this administration's disregard for the distinction between threats to national security and Quakers.
What exactly makes you so sure things have changed? Do you have information I don’t? Or are you just saying this because Bush is in office?
Bart doesn't make a substantive argument about the Democrats that were spied on by DHS, so I won't either.
With regard to the the NSA was wiretapping a lawyer's conversations with his client, Bart asserts that the man is a "convicted al Qaeda financier," which is false; he's running a Muslim charity with alleged links to al Qaeda, but I suppose since you want to do away with due process, you don't see a difference.
Bart hilariously claims that the man's "attorney is alleging [NSA wiretapping] without a scintilla of evidence".... neglecting to read that the FBI gave him the transcripts of his illegally wiretapped phone calls
Congratulations, Bart. If this man actually is a terrorist financier, he may now go free if his lawyers win that due process was violated. Hooray for NSA wiretapping!
Notifying Congress that the wiretapping is taking place isn't the same as notifying someone about each incident, and is insufficient to solve what I described as "low-level NSA officials with... a culture of plausible denial and secrecy" deciding who constitutes a national security threat without oversight on those decisions.
Bart asserts that "Under the proposed DeWine bill, another 15 or so reps and senators will get the same briefings any time a US citizen is surveilled without a FISA warrant."
If you find me a source that says that Congress will be informed about each citizen that's wiretapped, which is what you seem to be claiming, I'll back down a bit. But I doubt it; Congress's "oversight" is for the program as a whole, which is exactly what I've been saying is the problem. Low level NSA agents will be making individual decisions within that program without oversight. Even if a couple members of Congress find out about wiretaps, they won't be able to let their aides read the documents and won't have time to read it all themselves. Even in the best case, DeWine's bill isn't helpful.
If you favor notifying Congress about each incident, why are you unwilling to support notifying the courts about each one?
Dave
bart said...
ReplyDeleteDave
From what we can tell, Bush hasn't been any better. For example, the Pentagon has illegally maintained records on peaceful protesters including, of all people, a bunch of Quakers link because of the national security risk they posed.
Hardly. These people attempted to trespass on NSA property. The NSA has its own police department for local security. This PD monitored the demonstrations by that property and made reports of what they saw. It has nothing to do with the NSA electronic surveillance program about which we afre speaking and is not illegal.
bart, what "people" are you talking about? Certainly not the same people Dave is talking about. These Quakers were not trespassing on anybody's property, let alone NSA property. As the MSNBC report to which Dave's link points states (this has been reported elsewhere, also) the DOD was spying on this group of Quakers who were doing nothing more than meeting in a Quaker meeting house to plan and participate in peaceful anti-war and anti-military demonstrations. They did absolutely nothing illegal. Moreover, how do you know that this has nothing to do with the NSA electronic surveillance program? Nobody outside the Administration and the NSA really knows what that program is, and you don't know how the DOD got the information it has on the Quakers.
We know that the Texas Republicans used the Homeland Security Department to spy on their political opponents.
You mean the Donkeys who fled their state in order to stop redistricting and were holding daily press conferences at their hotel rooms? Please...
Please what? Are you really going to assert that it was appropriate for the Homeland Security Department to spy on a group of Texas Democrats who were involved in a purely local political dispute with the Texas Republican Party because Tom Delay and perhaps other powerful Republicans asked them to? I'll probably regret saying this, but I sort of hope you do make that argument--I'd really like to see what kind of creative insanity you come up with to support that one.
Hey, dave, I hope you don't mind that I added my two cents in to your answer to bart. (Actually, I didn't add it exactly, it seems we posted our comments almost simultaneously.) I should know better, but some things are just too annoying for me to let them pass by without remark.
ReplyDeleteNo problem, PeachKFC:-)
ReplyDeleteDave, reading your posts is a joy. I also like spark's post.
ReplyDeleteEWO, thanks!
ReplyDelete:-)
Dave
Oh my goodness, Bart is still here?
ReplyDeleteHow's that flag waving going there pal?
Are you still taking credit for your brother's service?
Jesus you're a tool. Seriously, putting your brother in harm's way to feel better about yourself is fucked up.
You're broken dude. Get help.