posted
Legal experts (including conservative think tank folks) are questioning why, if the President asserts the right to wiretap communications between foreign and domestic callers, calls between two domestic sources were not included.
It's in all the papers today, so you can see for yourself what Congress is asking Mr. Gonzalez.
My question is this:
How credible is Alberto Gonzalez? When he asserts that no purely domestic calls were monitored without a warrant, do you believe him?
He says they were worried about public uproar if the program targetted purely domestic sources, and that the Justice Dept hasn't had time to fully review the legal issues involved.
However, the legal scholars cited in the press are saying that there is no difference between the 1/2 domestic and purely domestic cases. If its legal in one, its legal in both!
Maybe Dag can help disentangle that. Is this just competing legal opinions?
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posted
ah crud, Kayla, I'm so sorry! The one time I decide NOT to link to the Washington Post, it turns out I was referencing an article that was their own analysis, and not a wire feed. Drat!
quote:The fact that he is not sworn in before congress makes his testimony questionable.
Not really. It's still a crime to lie to Congress, and Gonzoles can't get away with the "I didn't know that" defense.
Bob, the short answer is that Gonzales has not stated a position on whether or not it would be legal to intercept purely domestic calls. They chose not to do so, and for reasons not solely related to legality.
The longer answer is that the Post managed to irrespnsibly sum up a very complex legal issue.
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Do you believe that if warrantless wiretaps are legal if only one party is domestic, then it's also legal if both parties are domestic?
Can you give a hint as to what the additional legal wrinkles are?
I mean it does seem that a few of the Senators are bugged by this (pardon the pun) and that even some conservative legal scholars are pushing on the Administration to explain the difference.
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quote:Do you believe that if warrantless wiretaps are legal if only one party is domestic, then it's also legal if both parties are domestic?
I don't know.
quote:Can you give a hint as to what the additional legal wrinkles are?
1.) Think of customs. You come into the ocuntry, even as a citizen, and they have the right to search you and your luggage with no probable cause at all. It's an anology only, meant to highlight one possible area of difference.
2.) The justification is based on the executive control of military and foreign relations. The Court has explored this area before, and one of the common threads has been that the executive power in these arenas is far greater when the activity is entirely foreign, far less when entirely domestic, and in a gray area when it is both. For example, Dames & Moore, the Iranian claims case, hinged at least partially on the fact that one of the parties in the affected cases was a foreign power. Curtiss-Wright, which dealt with a law that banned sales to Bolivia based on a particular executive finding (in essence leaving it up to the President to decide if sales were banned) stated that the President is the sole organ of the nation in foreign affairs and the sole spokesman. Both of these dealt with delegation of power.
Ex Parte Milligan, a civil war detention case, turned on whether the detention occurred within a territory in which the courts were operating. Quirin, in holding that military courts could execute Germans captured on U.S. soil, relied in part on the fact that the Germans had come assure (crossing the border). Eisentrager held that judicial oversight of habeas corpus does not apply outside the U.S. during wartime, while Yamashida established that it did apply in U.S. territories (the Phillipines).
One of the Administrations strongest arguments is that the use of force resolution authorized all necessary components of military force. Remember, Hamdi declared that the military force resolution authorized the president to detain U.S. citizens without criminal charges being levied - a huge restriction on 5th amendment rights was held to be a necessary component of military force. The court required minimal review to determine if the person held is an enemy combatant.
It is very plausible that sigint is a necessary component of military force but that it does not entail domestic wiretapping. Hamdi doesn't allow non-enemy combatant U.S. citizens to be held. It's possible, using an analogous line of reasoning, that the authorization of sigint does not include purely domestic calls.
I know I didn't explain these cases, and I know that each and everyone of these cases can be distinguished or interpreted so as not to support the Administration's view. But there's lots of gray in Court decisions on separation of powers, and at least some of that gray is about whether the activity involves the border. This should give you a starting point if you want to research more.
posted
I do wish Congress had just gone with ye standard olde declaration of war against the nations we wanted to go to war against, instead of this newfangled use of force resolution. It has given the President more near temporally unbounded powers than I suspect anyone in Congress knew or intended.
Plus, the politics of the situation prevents the Congress from retracting or amending the use of force resolution, at least while Bush is President, much as I can tell even some Republican members of Congress would love to at this point.
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posted
This, to me, is a good enough reason to distrust anything the Administration says about their use of warrantless searches. At least it is symptomatic of their approach.
quote:Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.
The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
posted
Bob, why does this make you not trust them? In both cases, the administration brought the errors to the court's attention on their own initiative. In one case, they even shut down the program to make sure it was running properly.
Oh, and *thwap* ssywak. Posts: 26071 | Registered: Oct 2003
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posted
Dagonee: the article points out the person who brought the errors to the court's attention was considered suspect for such actions, but kept on board because he had a rapport with the judges.
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posted
Y'know... Reality makes a story scarier and more bizarre. The WWII "German*spies" turned themselves into the FBI upon first landing, weren't believed, and settled into normal American lives which had nothing even vaguely connected to spying. Then they were rounded up, railroaded through a kangaroo court, and executed for political purposes by Hoover and Roosevelt.
* The two leaders were American merchant sailors plying the African trade route, who through a series of ship mishaps ended up in a German port. Whereupon they were drafted by the Nazi regime because of their German ancestry, assigned to GermanIntelligence to train Germans to act like Americans, and later reassigned to lead the spying mission.
posted
fugu, it's not clear from the article that the bringing the mistakes to the judges' attention was what made him "suspect" (whatever that means):
quote:Baker also had privately expressed hesitation to his bosses about whether the domestic spying program conflicted with the FISA law, a government official said. Justice higher-ups viewed him as suspect, but they also recognized that he had the judges' confidence and kept him in the pivotal position of obtaining warrants to spy on possible terrorists.
posted
Apparently at least some insider Republicans are breaking ranks with the administration on the legality of this, and the extent of the wiretapping.
quote:Republican Who Oversees NSA Calls for Wiretap Inquiry
By Eric Lichtblau The New York Times Wednesday 08 February 2006
Washington - A House Republican whose subcommittee oversees the National Security Agency broke ranks with the White House on Tuesday and called for a full Congressional inquiry into the Bush administration's domestic eavesdropping program.
The lawmaker, Representative Heather A. Wilson of New Mexico, chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence, said in an interview that she had "serious concerns" about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why.
Ms. Wilson, who was a National Security Council aide in the administration of President Bush's father, is the first Republican on either the House's Intelligence Committee or the Senate's to call for a full Congressional investigation into the program, in which the N.S.A. has been eavesdropping without warrants on the international communications of people inside the United States believed to have links with terrorists. http://www.nytimes.com
posted
You're right, I misread that causation. It is clear, though, that at least some other parts of the administration were either deliberately or accidentally inept at maintaining the separation demanded by the secrets court judges.
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posted
And the intent is to go even further with the spying, according to The Christian Science Monitor. A massive data collection system with the acronym ADVISE is already partly activated, and it's scope will be extremely comprehensive:
quote:
The core of this effort is a little-known system called Analysis, Dissemination, Visualization, Insight, and Semantic Enhancement (ADVISE). Only a few public documents mention it. ADVISE is a research and development program within the Department of Homeland Security (DHS), part of its three-year-old "Threat and Vulnerability, Testing and Assessment" portfolio. The TVTA received nearly $50 million in federal funding this year.
quote:Data-Mining Is a Key Technology
A major part of ADVISE involves data-mining - or "dataveillance," as some call it. It means sifting through data to look for patterns. If a supermarket finds that customers who buy cider also tend to buy fresh-baked bread, it might group the two together. To prevent fraud, credit-card issuers use data-mining to look for patterns of suspicious activity.
What sets ADVISE apart is its scope.It would collect a vast array of corporate and public online information - from financial records to CNN news stories - and cross-reference it against US intelligence and law-enforcement records. The system would then store it as "entities" - linked data about people, places, things, organizations, and events, according to a report summarizing a 2004 DHS conference in Alexandria, Va.The storage requirements alone are huge - enough to retain information about 1 quadrillion entities, the report estimated. If each entity were a penny, they would collectively form a cube a half-mile high - roughly double the height of the Empire State Building. But ADVISE and related DHS technologies aim to do much more ...
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