So What else in the US Constitution Doesn't Apply During a Self-Declared War?

[President Bush]

If the wiretaps were of international calls, the surveillance was not domestic.

Let's refresh ourselves on the definition of "domestic.":

do•mes•tic (də-mĕs'tĭk)
adj.
1. Of or relating to the family or household: domestic chores.
2. Fond of home life and household affairs.
3. Tame or domesticated. Used of animals.
4. Of or relating to a country's internal affairs: domestic issues such as tax rates and highway construction.
5. Produced in or indigenous to a particular country: domestic oil; domestic wine.

You've picked some odd language to parse, Mycroft... this morning, Tuesday, January 17, Google has 1,850,000 links for a President Bush's domestic surveillance program search.

 

[Mycroft]

You've picked some odd language to parse, Mycroft... this morning, Tuesday, January 17, Google has 1,850,000 links for a President Bush's domestic surveillance program search.

Oh, what's that fallacy where you assert your right just because a lot of people agree with you? I forget.

International calls are not domestic any more than international flights are domestic. The term is simply incorrect, and since the legality of these wiretaps may hang on the term, it's seems important.

 

[Cylinder]

Also, if the AUMF had authorized court-free wiretapping, why would the executive have sought an expansion of the reach of FISA in the USA Patriot Act II when it already had been granted a greater power to surveil (through the AUMF) than an expanded FISA could provide?

I can think of three that come to mind rather quickly. The AUMF is limited both in scope and time and there have existed since the War Powers Act of 1973 a tradition of respect for comity and a desire to delay the showdown over the separation-of-powers question.

First, the AUMF authorizes action only against "those nations, organizations, or persons [the President] determine[d] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" - a limit that has applied to al Qaeda and the Taliban with action against more obscure domestic support groups falling under the USA PATRIOT Act, for the most part. I have not read the Presidential Determination and a quick Google turns up unrelated links so anyine with a link would be appreciated.

Secondly and contrary to many opinions, the AUMF is not an open-ended proposition. At some point in the future, some President for whatever reason will feel compelled to report to Congress that the objectives set forth in the AUMF have been fulfilled and operations against the primaries have ceased.

Finally, since the War Powers Act became law in 1973, no President has agreed to its limitations - though each President has chose to abide its provisions. (Some in political advocacy positions would like the less-informed to believe that executive signing statement that dispute constitutional or statutory limitations are a unprecedented abuse of power on the part of the Bush administration but a look at the record show these have existed for war powers at least from that act of Congress in 1973.) By asking for inclusion of this (from the administration's point-of-view) existing power to be enumerated in the USA PATRIOT Act - a fact I have not verified but do take at face value from the assertions made here - the President could have been trying avoid the Constitutional questions that are being asked in this very thread.

 

[Cylinder]

Also, if the AUMF had authorized court-free wiretapping, why would the executive have sought an expansion of the reach of FISA in the USA Patriot Act II when it already had been granted a greater power to surveil (through the AUMF) than an expanded FISA could provide?

Another consideration I failed to mention would be the use of NSA intercepts as evidence to support a civilian criminal charge. From my understanding, this is not possible without specific Congressional authorization such as exists under FISA.

 

[Manny]

Another consideration I failed to mention would be the use of NSA intercepts as evidence to support a civilian criminal charge. From my understanding, this is not possible without specific Congressional authorization such as exists under FISA.

That's exactly right. And as a practical matter this program may be seriously flawed precisely because of that. If they're listening in on an al Qaeda guy and the other party to the conversation isn't an al Qaeda terrorist but is plotting or committing some big crime, too bad so sad, the information dies in a NSA database somewhere. If Democrats actually cared about national security or, for instance, EVER WANTED TO WIN A FREAKING ELECTION AGAIN they'd criticize the program on its merits instead of allowing their BDS to convince them that this time it's really impeachmas.

 

[WildCat]

impeachmas.

 

[gnome]

Sure. Name a war that the US was a party in which signals intelligence did not play a signifigant role.

Remember Pearl Harbor? Hours before the attack the Signals Intelligence Service - a preciursor of the National Security Agency - intercepted the diplomatic message from Tokyo to the Japanese ambassodor to the US in which Japan informs the US of attacks and breaks off diplomatics relations.

In the US Civil War, there was a almost universal practice of telegraph taps to glean intelligence from opposing forces. In fact, modern US cryptographic practices date back to the US Civil War.

There was a incident during WWII, related in his six-volume history, where Britsh PM Winston Churchill had his private phone call to FDR interrupted by a US telephone censor for discussing strategic matters over an unsecure line.

During the course of the war, civilian communication from sensitive war industry areas such as Oak Ridge, Los Alamos, and naval yards were routinely monitored for espionage indicators.

Once again quoting Justice O'Connor in Hamdi:

You make a good case that wiretapping is necessary. However... how about the case that warrantless wiretapping is necessary?

 

[Manny]

Heh. I can't take credit for that. The lefty blogosphere was referring to the then-imminent special prosecutor's report on the Plame leak as Fitzmas.

 

[Random]

That's exactly right. And as a practical matter this program may be seriously flawed precisely because of that. If they're listening in on an al Qaeda guy and the other party to the conversation isn't an al Qaeda terrorist but is plotting or committing some big crime, too bad so sad, the information dies in a NSA database somewhere. If Democrats actually cared about national security or, for instance, EVER WANTED TO WIN A FREAKING ELECTION AGAIN they'd criticize the program on its merits instead of allowing their BDS to convince them that this time it's really impeachmas.

Ok. We'll judge the program on it's merits. (New York Times subscription required)

From the article:

But the results of the program look very different to some officials charged with tracking terrorism in the United States. More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.

"We'd chase a number, find it's a schoolteacher with no indication they've ever been involved in international terrorism - case closed," said one former F.B.I. official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

and

Some of the officials said the eavesdropping program might have helped uncover people with ties to Al Qaeda in Albany; Portland, Ore.; and Minneapolis. Some of the activities involved recruitment, training or fund-raising.

But, along with several British counterterrorism officials, some of the officials questioned assertions by the Bush administration that the program was the key to uncovering a plot to detonate fertilizer bombs in London in 2004. The F.B.I. and other law enforcement officials also expressed doubts about the importance of the program's role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch.

Some officials said that in both cases, they had already learned of the plans through interrogation of prisoners or other means.

and

F.B.I. field agents, who were not told of the domestic surveillance programs, complained that they often were given no information about why names or numbers had come under suspicion. A former senior prosecutor who was familiar with the eavesdropping programs said intelligence officials turning over the tips "would always say that we had information whose source we can't share, but it indicates that this person has been communicating with a suspected Qaeda operative." He said, "I would always wonder, what does 'suspected' mean?"

 

[Cylinder]

You make a good case that wiretapping is necessary. However... how about the case that warrantless wiretapping is necessary?

If you find that intelligence intercepts are "necessary and appropriate" then the President has specific statutory authorization from Congress to carry out this program - regardless of the issue of warrants. All is a big word.

Regardless, the case can be made for justifying an intercept program that does seek FISA warrants. For instance:

• The judiciary does not have the Constitutional power or expertise required to make strategic or tactical military decisions.
  
  
• As a strategic military decision, the President (apparently on the advice of the intelligence community and military leadership) decided to cast a wider net than the probable cause standard will allow.
  
  
• The level of compartmentalization required for the NSA intercept program excluded judicial notification.

 

[Cylinder]

If they're listening in on an al Qaeda guy and the other party to the conversation isn't an al Qaeda terrorist but is plotting or committing some big crime, too bad so sad, the information dies in a NSA database somewhere.

Actually it seems a fairly weak argument, since the FISA court requires notification of the defendant of the nature of the evidence before it can be used in court. The sensitive nature of this NSA program would trump any run-of-the-mill domestic crime.

 

[Manny]

Ok. We'll judge the program on it's merits. (New York Times subscription required)

Heh. Based on the excerpts (I don't consider the Times to be an accurate source of information and no longer keep a registration to the site), that article is the best possible case for not attaining FISA warrants before wiretapping. A) It worked; even the people critical of the program in the article allowed that it had indeed caught some real, live al Qaeda types and B) If the FBI can't keep up with the workflow, how in the world would an 11-judge court spread across the country with all the judges also having full-time regular judge jobs hope to do so?

Happily for the case against seeking FISA warrants as a practical matter, I believe the Times article to be inaccurate in many material respects, not least of which is that it appears to conflate all leads coming from NSA -- which includes Echelon stuff, warrant and warrant-free wiretaps of people in the United States and wiretaps (or other survellience) of exclusively international communications.

 

[Cylinder]

F.B.I. field agents, who were not told of the domestic surveillance programs, complained that they often were given no information about why names or numbers had come under suspicion. A former senior prosecutor who was familiar with the eavesdropping programs said intelligence officials turning over the tips "would always say that we had information whose source we can't share, but it indicates that this person has been communicating with a suspected Qaeda operative." He said, "I would always wonder, what does 'suspected' mean?"

It's quotes like these that make me wonder how much of this crap the media actually fabricates. Running around to different desks trying to initiate an overt counter-intelligence operation against your own message traffic is the fast track to a nasty ammendum to your security file, an interesting two-hour conversation with the OSI or comparable agency and PRP revocation.

Of course, since the source was never shared, it's a bit of a stretch to attribute this specific complaint to the NSA intercept program.

 

[President Bush]

Thanks for your answers, Cylinder. You might make a good White House press secretary. Think of me as Helen Thomas if that ever happens. Maybe even uglier.

I can think of three that come to mind rather quickly. The AUMF is limited both in scope and time and there have existed since the War Powers Act of 1973 a tradition of respect for comity and a desire to delay the showdown over the separation-of-powers question.

I have to chuckle at the thought of this administration wishing to avoid a separation-of-powers showdown.

First, the AUMF authorizes action only against "those nations, organizations, or persons [the President] determine[d] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" - a limit that has applied to al Qaeda and the Taliban with action against more obscure domestic support groups falling under the USA PATRIOT Act, for the most part. I have not read the Presidential Determination and a quick Google turns up unrelated links so anyine with a link would be appreciated.

So why have these groups been spied upon?

Secondly and contrary to many opinions, the AUMF is not an open-ended proposition. At some point in the future, some President for whatever reason will feel compelled to report to Congress that the objectives set forth in the AUMF have been fulfilled and operations against the primaries have ceased.

Why would the executive wish to retain authorization to warrantlessly eavesdrop here in the US come the day that operations against the primaries have ceased and the objectives set forth in the AUMF have been fulfilled?

Finally, since the War Powers Act became law in 1973, no President has agreed to its limitations - though each President has chose to abide its provisions. (Some in political advocacy positions would like the less-informed to believe that executive signing statement that dispute constitutional or statutory limitations are a unprecedented abuse of power on the part of the Bush administration but a look at the record show these have existed for war powers at least from that act of Congress in 1973.) By asking for inclusion of this (from the administration's point-of-view) existing power to be enumerated in the USA PATRIOT Act - a fact I have not verified but do take at face value from the assertions made here - the President could have been trying avoid the Constitutional questions that are being asked in this very thread.

By asking for inclusion of this existing power (warrantless domestic eavesdropping) to be enumerated in the USA PATRIOT Act (expanded FISA warrants) the President could have been trying avoid the Constitutional questions that are being asked in this very thread.

That doesn't even rise to the standard of circularity. Powers "enumerated" in the Patriot Act(s) are diminished relative to what's claimed under the AUMF. How does that oil Constitutional gears?

Why not say it's politicians just making stuff up when they're uncertain the law is on their side?

Wouldn't a better way to have avoided these Constitutional questions be to have worked within the existing legal framework of FISA? I would say "as enumerated in Patriot II", but to characterize Patriot Act II as a worthy fall-back position may be your job here. Not mine.

 

[Random]

Heh. Based on the excerpts (I don't consider the Times to be an accurate source of information and no longer keep a registration to the site), that article is the best possible case for not attaining FISA warrants before wiretapping. A) It worked; even the people critical of the program in the article allowed that it had indeed caught some real, live al Qaeda types and B) If the FBI can't keep up with the workflow, how in the world would an 11-judge court spread across the country with all the judges also having full-time regular judge jobs hope to do so?

Happily for the case against seeking FISA warrants as a practical matter, I believe the Times article to be inaccurate in many material respects, not least of which is that it appears to conflate all leads coming from NSA -- which includes Echelon stuff, warrant and warrant-free wiretaps of people in the United States and wiretaps (or other survellience) of exclusively international communications.

You really should read the article. In it, they talk about the FBI wasting thousands of man hours chasing down false leads for very little result. There were also FBI agents who knew what the source of the false leads was and state so in the article. Thousands of leads, a mere handful of hits. And it doesn't look like any of the hits were very big or the administration would have told us about them (Even if it was something that should be kept secret. Politics trumps security with this administration). Sounds like a collossal fishing expedition, not a real investigation. The NSA just dumped a massive pile of hay on the FBI and told them to see if there were any needles in it. Leaving aside the civil rights of the many innocent people that fell into this very wide net, is this really the best way for the FBI to be spending it's time? Each agent chasing down this stuff is one less agent running infiltration programs, sifting through bank accounts, and checking up on leads from other sources.

As for the argument that the 11 man FISA court would not be able to keep up with these requests, any police officer who searched a house without a warrant and argued that he didn't want to increase the judge's workload would soon find out how far that argument gets him.

 

[Cylinder]

You really should read the article. In it, they talk about the FBI wasting thousands of man hours chasing down false leads for very little result. There were also FBI agents who knew what the source of the false leads was and state so in the article. Thousands of leads, a mere handful of hits.

STOP THE PRESSES!!! NEW YORK TIMES DECLARES INTELLIGENCE GATHERING TEDIOUS AND TIME-CONSUMING ENDEAVOR!!!

Intelligence analysis and collection is very subtle art probably best described with the jigsaw puzzle analogy - except their are no side pieces...and you don't get to look at the box...and not all the pieces belong to your puzzle. If you carefully try each piece and then take the time look back to the larger picture, however, sometimes a broader mosaic may begin to appear.

Regardless of your view of legality, to assert that the US should not be monitoring communications between the US and suspected al Qaeda affiliates and carefully following up on each lead, however tenuous, is stupidity.

"Thousands of leads, a mere handful of hits" is a pretty good return for this game.

 

[President Bush]

Oh, what's that fallacy where you assert your right just because a lot of people agree with you? I forget.

International calls are not domestic any more than international flights are domestic. The term is simply incorrect, and since the legality of these wiretaps may hang on the term, it's seems important.

For some reason this reminds me of Alan Partridge's observation:

... Big Yellow Taxi by Joni Mitchell, a song in which Joni complains they "Paved paradise to put up a parking lot", a measure which actually would have alleviated traffic congestion on the outskirts of paradise, something which Joni singularly fails to point out, perhaps because it doesn't quite fit in with her blinkered view of the world.

In terms of your semantic argument, I agree, for example, that if I fly to Jakarta out of, say, Sheboygan, that flight would be classified properly as an international flight.

Uh oh, I said "Jakarta". Hope the NSA isn't checking this out. I might have accidentally said "anthrax" or...

... biodiesel... chemical plants... jihad... semtex... Abdul... Galloway... boxcutters... Prague... camelbag... ricin... Chomsky... falafel... Fallujah... shoe bomb... Nader... yellowcake... asshat... Sarin... CapelDodger... Uzi... Illuminati... TWA... blowpipe... wire transfer... faketits... Scully... Omaha... chameleon man...