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Politics : View from the Center and Left -- Ignore unavailable to you. Want to Upgrade?

To: JohnM who wrote (12281)	2/16/2006 1:07:38 PM
From: carranza2	Read Replies (1) \| Respond to of 541346

only the public statements of administration members who believe presidential authority in this area has no limits and should have no limits I thought there was an effort to tone down the rhetoric and partisanship here. I still don't know what you propose. Do you think FISA in its present form is a good statute? I gather so, but I cannot tell.

To: JohnM who wrote (12281)	2/16/2006 1:28:43 PM
From: carranza2	Read Replies (1) \| Respond to of 541346

We don't have strong evidence the present system has failed, only the public statements of administration members who believe presidential authority in this area has no limits and should have no limits. I can't accept that. The Moussaoui case and the TWA 847 hijacking case might convince you otherwise. Here is an article from the WSJ written by a lawyer who dealt with FISA for a number of years that is informative: <<<.The Wall Street Journal Terrorists on Tap By VICTORIA TOENSING January 19, 2006; Page A14 In a speech this week, former vice president Al Gore took another swing at the National Security Agency's electronic surveillance program, which monitors international communications when one party is affiliated with terrorists. Specifically, Mr. Gore argued that George Bush "has been breaking the law repeatedly and persistently," and that such actions might constitute an impeachable offense. The question he raises is whether the president illegally bypassed the Foreign Intelligence Surveillance Act (FISA). But the real issue is national security: FISA is as adept at detecting -- and, thus, preventing -- a terrorist attack as a horse-and-buggy is at getting us from New York to Paris. I have extensive experience with the consequences of government bungling due to over-strict interpretations of FISA. As chief counsel for the Senate Intelligence Committee from 1981 to 1984, I participated in oversight of FISA in the first years after its passage. When I subsequently became deputy assistant attorney general in the Reagan administration, one of my responsibilities was the terrorism portfolio, which included working with FISA. In 1985, I experienced the pain of terminating a FISA wiretap when to do so defied common sense and thwarted the possibility of gaining information about American hostages. During the TWA 847 hijacking, American serviceman Robert Stethem was murdered and the remaining American male passengers taken hostage. We had a previously placed tap in the U.S. and thought there was a possibility we could learn the hostages' location. But Justice Department career lawyers told me that the FISA statute defined its "primary purpose" as foreign intelligence gathering. Because crimes were taking place, the FBI had to shut down the wire. FISA's "primary purpose" became the basis for the "wall" in 1995, when the Clinton-Gore Justice Department prohibited those on the intelligence side from even communicating with those doing law enforcement. The Patriot Act corrected this problem and the FISA appeals court upheld the constitutionality of that amendment, characterizing the rigid interpretation as "puzzling." The court cited an FBI agent's testimony that efforts to investigate two of the Sept. 11 hijackers were blocked by senior FBI officials, concerned about the FISA rule requiring separation. Today, FISA remains ill-equipped to deal with ever-changing terrorist threats. It was never envisioned to be a speedy collector of information to prevent an imminent attack on our soil. And the reasons the president might decide to bypass FISA courts are readily understandable, as it is easy to conjure up scenarios like the TWA hijacking, where strict adherence to FISA would jeopardize American lives. The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war. The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda. If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S. New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers. Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.? If we had used this ability before 9/11, as the vice president has noted, we could have detected the presence of Khalid al-Mihdhar and Nawaf al-Hazmi in San Diego, more than a year before they crashed AA Flight 77 into the Pentagon. And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA. For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack. Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil? Why did the president not ask Congress in 2001 to amend FISA to address these problems? My experience is instructive. After the TWA incident, I suggested asking the Hill to change the law. A career Justice Department official responded, "Congress will make it a political issue and we may come away with less ability to monitor." The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern. It took 9/11 for Congress to pass the amendment breaking down the "wall," which had been on the Justice Department's wish list for 16 years. And that was just the simple tweak of changing two words. The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation. There are other valid reasons for the president not to ask Congress for a legislative fix. To have public debate informs terrorists how we monitor them, harming our intelligence-gathering to an even greater extent than the New York Times revelation about the NSA program. Asking Congress for legislation would also weaken the legal argument, cited by every administration since 1978, that the president has constitutional authority beyond FISA to conduct warrantless wiretaps to acquire foreign intelligence information. The courts may ultimately decide the legality of the NSA program. Meanwhile, the public should decide whether it wants NSA to monitor terrorists, or wait while congressional critics and Al Gore fiddle. Ms. Toensing, a Washington lawyer, was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration.

To: JohnM who wrote (12281)	2/16/2006 1:42:39 PM
From: epicure	Read Replies (1) \| Respond to of 541346

I found this interesting re:FISA. I have read somewhere, although I can't find it, that the speed of the FISA courts is impressive- but I found this instead of what I was looking for: austinchronicle.com Letters at 3AM A republic on paper BY MICHAEL VENTURA Last month the world learned that President Bush authorized the National Security Agency to wiretap the calls and e-mails of American citizens at will and without warrants, though by law the NSA is forbidden to spy on Americans. Bush claimed that the Federal Intelligence Surveillance Act wasn't fast enough, though FISA allows surveillance of a foreigner without a warrant for one year, and of an American citizen for 72 hours, before presenting probable cause to the secret FISA court. In its first 22 years of existence, the FISA court refused only two of more than 13,000 requests, and there is no instance of the FISA process leaking secrets. Therefore, Bush lies when he claims FISA's speed, permissiveness, and secrecy were insufficient. But FISA also requires regular surveillance reports be given in person and in writing to congressional intelligence committees. What Bush really objects to is FISA's demand of accountability. Bush wants no lawful oversight as to whom the NSA spies on or why. Bush doesn't deny breaking our surveillance laws; instead, he says it's his right to do so under the Constitution, while Vice-President Cheney claims Bush "was granted authority by the Congress to use all means necessary to take on the terrorists." The record shows this was not the intent of any congressional resolution. In a Washington Post op-ed on Dec. 23, 2005 (p.21), Tom Daschle, Senate minority leader at the time of the resolution, documents that "the White House proposed that Congress authorize the use of military force to 'deter and pre-empt any future acts of terrorism and/or aggression against the United States.'" Congress thought that language was too permissive. Instead, Congress authorized Bush only to use "all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided" the 9/11 attacks. The resolution was specifically designed to retaliate for 9/11; a blank check for future actions was specifically denied. Daschle writes: "Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas – where we all understood he wanted authority to act – but right here in the United States, potentially against American citizens." Congress refused. Bush, Daschle observes, "now argues those powers were inherently contained in the resolution adopted by Congress – but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language." If Bush's actions are, as he claims, "fully consistent with my constitutional responsibilities and authorities" (The New York Times, Dec. 18, 2005, p.1), then it wouldn't have been necessary to enact FISA or the PATRIOT Act in the first place. But what Bush claims is absurd. A brief reading of the Constitution proves him a liar and a lawbreaker. "Article 1/Section 1: All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives." "Legislative powers" means the power to make laws. "All" means all. The president has no authority to make or change any law of any kind. He certainly has no authority to break laws. Bush has claimed the right to embark on war, detain "enemy combatants," hold them without trial, and even torture them. But Article I/Section 7-11 of the Constitution states that only Congress may "declare war ... and make rules concerning capture on land and water." Congress has shamed itself for decades by refusing to insist on its war prerogative and rubber-stamping presidents who go to war on their own. And, in all the controversy about enemy combatants, Congress, the courts, and the press all seem to have forgotten that only Congress is empowered to "make rules concerning capture." Article I/Section 7-14 assigns to Congress the right "to make rules for the government and regulation of the land and naval forces." The president is commander-in-chief, but Congress makes the rules by which he commands. The Constitution does not allow the president to make those rules. Article I/Section 7-18 entitles Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." [My italics.] "All" means all and "any" means ... well ... any! The Framers knew very well that the word "any" is all-inclusive. "Any department" means just that. Which in turn means that only Congress – not the president – can determine the powers of the National Security Agency. An act of Congress created the NSA, and that act expressly forbade the NSA from spying on Americans. It is against the law for the president to create new powers for the National Security Agency. Article II/Section 1-1: "The executive power shall be vested in a President of the United States." In this instance the meaning of "executive" is "administrative." The president administers laws enacted by Congress. That's why we call the presidency and its staff "the administration." Under the Constitution the president has few additional domestic powers [Article II/Section 2-1] except that "the President shall be commander-in-chief of the Army and Navy of the United States and of the militia of the several States." Or course, modern usages have accommodated the Constitution to contemporary times. It could be said that here is a gray area. Are intelligence services included in the military or are they amongst the "any" agencies of Article I/Section 7-18 above? The answer could reasonably go either way. But the point is: Under the Constitution, that's not for the president to decide. That's for Congress and/or the courts. In any case, to reiterate Article I/Section 7-14 (above): It is for Congress "to make the rules" under which the commander-in-chief commands. Any way you look at it, the president has broken the law. He has taken it upon himself to wiretap citizens without warrants, detain without counsel, condemn without trial – though the Constitution clearly states (Article III/Section 2-3) that "the trial of all crimes, except in cases of impeachment, shall be by jury." [My italics.] "All" doesn't mean "sometimes." "All" means every damn time. Article IV/Section 2: "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the law of the land." To act contrary to the Constitution, and to the laws enacted by its powers, is to break the law of the land. President Bush, former Attorney General John Ashcroft, Attorney General Alberto Gonzales, and any who have followed their orders, have broken and are breaking the law by authorizing warrantless and apparently indefinite NSA wiretaps of American citizens. This would be true even if the Constitution did not include the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." If this amendment no longer suits our era, only Congress has the right to enact an alternative. The president has no rights in this matter. The law has been broken, but as of this writing nothing is being investigated but who leaked the fact that the law has been broken – an investigation ordered by the lawbreakers themselves while they brazenly continue their lawlessness. Many argue that the United States stopped being a functional republic years ago, and that we are now a republic only on paper. Paper, however, is an endurable object. Our republic on paper has not yet been erased. Which means it can yet be enacted – but not if the people are silent. Only Congress has the constitutional power to police the presidency. It is difficult to imagine this Congress taking that responsibility. But we, too, have a responsibility. The Constitution is not finally dead until it dies in us. Silence is not an option, if the Constitution is ever again to rise from the paper on which it was written.