Former FISA Judges: Bush's warrantless wiretaps completely legal

[Montgomery Burns]

So much for the "illegal" wiretaps:

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.

"If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now," said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. "I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute."

Yet another Democrat mantra gets flushed down the toilet.

Too bad. I was getting a kick out of their recent campaign slogan:

Bush is spying on terrorists.

We won't.

Vote Democrat!

How can these people be so out of touch with the general public? No matter how much the Republicans stumble, no matter how hostile the MSM media is to the Bush administration, the Democrats still can't gain. Although approval is low for the Republicans at this stage, it is even worse for the Democrats. The Democrats in Congress regularly poll at a dismal 25-29% approval rating (lower than Republicans who are usually in the 30s). The MSM ignores that and concentrates on Bush's poll numbers.

At Bush's January SOTU address, the Democrats stood up and gave a standing ovation when Bush admitted that his Social Security Reform plan had not taken off well. The Democrats created SS. That's their baby and they are so driven by partisan ideology that they are willing to let it die (no credible person denies that SS is going to die), just to get one up on that evil Bush who had the gall to give the masses the option of investing some of it into other avenues.

I thought that that was a defining moment for the Democrat Party. Politics (Bush Hatred) trumps pragmatism.

I'm sorry, but the Democrats are idiots. No wonder Ann Coulter relentlessly mocks them.

[sharkman]

Gee, what happened to all the Bush haters? You'd think they'd be all over this story by now. They're gonna have to dream up another angle on the impeachment thingy.

[GostHacked]

From your article,

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.

How much breifing did they get? What and how much do they know about the program to make that decision?

The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.

Translation? Sure Mr. President, you can wiretap all you want, but it if turns out to be bull, you are gonna be in a heap of trouble. Sure those judges are not democrats setting Mr Bushie up?

[Montgomery Burns]

"...a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order."

"I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute." -- Judge Allan Kornblum, an author of the 1978 FISA Act

"...ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security."

Seems fair to me.

When will the Democrats call for another Commission and Hearings? All in the interests of national security and making sure those terrorists don't learn of our surveillance, of course. Sounds like another winner for the Democrats.

[geoffrey]

It's not a flaw with Bush, its a flaw with the US system.

Executive authority to do whatever in a time of perceived war is such a dangerous tool.

[Montgomery Burns]

Executive authority to do whatever in a time of perceived war is such a dangerous tool

It's not "whatever" and it's not a perceived war, except to Democrats. Just because the homeland hasn't been attacked for 4.5 years, there's no need to let up. Indeed, some attempted attacks on their homeland have been foiled.

You can't call a Congressional Meeting for every little thing during war. It would take too long and that could be dangerous.

[KrustyKidd]

Executive authority to do whatever in a time of perceived war is such a dangerous tool

Like it or not, agree or not, the US is at war. So, it is not a percieved war, rather it is an active one. As for executive power, do not the people go through a phase where hypothetical questioning on various issues and possibilities are put forth before they vote?

[Black Dog]

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.

Good for them. Except the issue never was never about spying on "international agents", but U.S. persons, which is expressly against the law. I don't expect a dishonest partisan hack like MB to get that, though.

[lost&outofcontrol]

Forget about the partisan attacks for a second. Doesn't anyone find it wrong that a government (Democrat or Republican) can spy on its own citizens?

[GostHacked]

Forget about the partisan attacks for a second. Doesn't anyone find it wrong that a government (Democrat or Republican) can spy on its own citizens?

This is exactly what it boils down to. Are you spying on suspected terrorists, or every day citizens? Would you not want to monitor people in other countries? Since that is where the terrorists come from? Or are they all in the US now waiting to strike?

[FTA Lawyer]

Forget about the partisan attacks for a second. Doesn't anyone find it wrong that a government (Democrat or Republican) can spy on its own citizens?

I'll admit, up front that I do not know all of the ins and outs of this issue...just haven't had time to follow all of it in detail. That being said, I agree that too much partisan posturing is going on, clouding the real issues.

The quote being relied upon for this thread, for example, is being misrepresented as to its meaning in order to forward a partisan view.

Having Constitutional authority to do something simply means it is possible...which does not equate to a conclusion that it is therefore lawful in any and all circumstances.

For example, the Government of Canada is possessed of the Constitutional authority to pass laws relating to the definition of marriage...it specifically says so in our Constitution. That doesn't mean if the current government were to pass a law that said that "marriage is the union of two white, anglophone persons of the opposite sex who have a net worth of at least $1,000,000 and are political supporters of the CPC" that this would be "lawful" exercise of their constitutional authority.

The quote attributed to these 5 judges means simply that in spite of the FISA provisions, it remains constitutionally possible for the President to spy on suspected international agents by way of executive order...no comment is made on whether Bush, in the current instances, has actually exercised his constitutional authority in a lawful manner.

Maybe he has, maybe he hasn't, but this quote offers absolutely no assistance in answering the question...which is demonstrated by GostHacked's post.

FTA

[Black Dog]

Forget about the partisan attacks for a second. Doesn't anyone find it wrong that a government (Democrat or Republican) can spy on its own citizens?

Don't you know? They are only spying on terrorists! How do we know? Because the government told us, and they wouldn't lie about something like that! Sure, there was a perfectly legal process in place for spying on suspected terrorists at home or abroad requiring warrants easily-obtained from a rubber-stamp court, but the government needed the flexibility of warrantless spying. Why? Because the government told us, and they wouldn't lie about something like that! [/sarcasm]

Anyway, I looked into the original article Monty posted and found, to my utte rlack of surprise, that it's rubbish. The FISA judges weren't discussing the NSA spying program at all: they were to testify about FISA and about the merits of the proposed legislation to amend it. What's more is, once you get into the actual testimony, the arguments are universally in favour of judicial oversight of executive power. So once again, the MooneyTimes and Mooney Monty are shown to be either liars or idiots.

[America1]

It's not a flaw with Bush, its a flaw with the US system.

Executive authority to do whatever in a time of perceived war is such a dangerous tool.

"perceived" - you're a moron!

[Greg]

"perceived" - you're a moron!

One month suspension for America1

[Montgomery Burns]

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.

Good for them. Except the issue never was never about spying on "international agents", but U.S. persons, which is expressly against the law. I don't expect a dishonest partisan hack like MB to get that, though.

Speaking of dishonest partisan hacks....

Apparently BD thinks the entire forum is clueless as to the definition of "international":

1. Of, relating to, or involving two or more nations: an international commission; international affairs.

2. Extending across or transcending national boundaries: international fame.

Perhaps these dictionaries should be more nuanced.

[Black Dog]

Speaking of dishonest partisan hacks....

Apparently BD thinks the entire forum is clueless as to the definition of "international":

1. Of, relating to, or involving two or more nations: an international commission; international affairs.

2. Extending across or transcending national boundaries: international fame.

Perhaps these dictionaries should be more nuanced.

I know you're all excited about learning a new word today, but really: stick to the issues.

Just to re-cap: saying that spying on international agents is perfectly legal isn't news. That capability has always existed. But then, that's not the issue. The issue is any NSA program targeting U.S. persons for warrantless surveillance are illegal. Period. And if one goes by statements made by Bush's own A.G., there's ample reason to believe such spying is occurring.

[Montgomery Burns]

Black Dog:

Don't you know? They are only spying on terrorists! How do we know? Because the government told us, and they wouldn't lie about something like that! Sure, there was a perfectly legal process in place for spying on suspected terrorists at home or abroad requiring warrants easily-obtained from a rubber-stamp court, but the government needed the flexibility of warrantless spying. Why? Because the government told us, and they wouldn't lie about something like that! [/sarcasm]

Translation: They're Republicans ergo they are liars. They lied about Saddam and Al Qaeda being linked. They lied when they said Saddam sponsored int'l terrorism. They lied about Iraq being a terrorist haven. If only they had listened to Uncle Saddam (or any other mass-murdering dictator). Saddam and his ilk are always to be trusted. Republicans are nothing but liars and the people who continually elect them into power obviously do not live in the reality-based community.

It's super-duper quick to get a warrant. Just snap your fingers and it's there, pronto!

Iran is developing nukes for nuclear power. They said so. Who ya gonna believe? Republicans?!

How does the US know that terrorists want to attack the homeland and kill Americans? Do Republicans have photographic evidence, DNA evidence, or audio...er scrap that last one.

Anyway, I looked into the original article Monty posted and found, to my utte rlack of surprise, that it's rubbish. The FISA judges weren't discussing the NSA spying program at all

Just ignore the first sentence of the article:

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

they were to testify about FISA and about the merits of the proposed legislation to amend it. What's more is, once you get into the actual testimony, the arguments are universally in favour of judicial oversight of executive power.

Another BD lie, unless you count DEMOCRAT arguments as being "universal". I don't know how BD can look at himself in the mirror.

So once again, the MooneyTimes and Mooney Monty are shown to be either liars or idiots.

And BD proves once agains that he is both.

It must've been frustrating for the chap to be unable to attack a Rupert Murdock news source on this thread.

[Montgomery Burns]

Black Dog:

I know you're all excited about learning a new word today, but really: stick to the issues.

I'd rephrase that to, "I'm happy to learn a new word today. Thank you Monty."

Please stick to the issues and drop the spin. I think we're all a bit tired of your Clintonesque "it depends on what your definition of is is" nuance.

Why do you think that the "illegal" wiretaps story has dropped off the radar of the MSM?

[Black Dog]

Translation: They're Republicans ergo they are liars. They lied about Saddam and Al Qaeda being linked. They lied when they said Saddam sponsored int'l terrorism. They lied about Iraq being a terrorist haven. If only they had listened to Uncle Saddam (or any other mass-murdering dictator). Saddam and his ilk are always to be trusted. Republicans are nothing but liars and the people who continually elect them into power obviously do not live in the reality-based community.

Blah blah blah. You've nothing to say, so why waste this board's time with your inanities?

Just ignore the first sentence of the article:

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The article is wrong. At no point did any of the judges say the president "did not act illegally" or that he acted "within the law" when he authorized the NSA warrantless surveillance program. Read the transcript of the testimony:

"We will not be testifying today with regard to the present program implemented by President Bush"

Another BD lie, unless you count DEMOCRAT arguments as being "universal". I don't know how BD can look at himself in the mirror.

The judges' statements are universally in favour of judicial oversight of executive power.

Judge Robertson:

"Seeking judicial approval for government activities that implicate constitutional guarantees is, of course, the American way."

Judge Brotman:

"FISA has worked and worked well. It is a necessary court and its orders reflect the balance to which I have made reference. It has no ax to grind, this court. Judicial review provides confidence to the citizens of our country to know that a court has looked on what is being sought. Times change. Methodology changes. Equipment changes.

Processes change. All these things can be and should be accommodated with the FISA Court."

Judge Stafford:

FISA was created by Congress to clarify that the president had the authority to conduct foreign intelligence surveillance, but that the president would do so through a court composed of judges who had been nominated for lifetime appointments by a president and confirmed by the Senate as provided in Article III of the Constitution. This arrangement seems to have worked well for everyone.

Judge Kornblum:

I also want to emphasize that the real success of the FISA statute is that it's proven indisputably that intelligence and counterintelligence activities are fully enhanced by the rule of law and, in fact, are fully compatible with the rule of law.

It must've been frustrating for the chap to be unable to attack a Rupert Murdock news source on this thread.

The Moony Times is worse than "Murdock".

Please stick to the issues and drop the spin. I think we're all a bit tired of your Clintonesque "it depends on what your definition of is is" nuance.

I apologize for the fact that your brain cannot handle the incedibly simple fact that U.S. law prohibits warrantless spying on U.S. persons. But it's not spin.

Why do you think that the "illegal" wiretaps story has dropped off the radar of the MSM

That's rich: you of all people using the MSM's coverage to defend your arguments. Feel the hypocricy!

Edit:

Same story, different interpretation

In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.

[GostHacked]

Black Dog:

I know you're all excited about learning a new word today, but really: stick to the issues.

I'd rephrase that to, "I'm happy to learn a new word today. Thank you Monty."

Please stick to the issues and drop the spin. I think we're all a bit tired of your Clintonesque "it depends on what your definition of is is" nuance.

Why do you think that the "illegal" wiretaps story has dropped off the radar of the MSM?

Actually it really DOES depend on how the NSA and the FISA define it. Cut through the fluff of the 'language' and you will get a better idea of what it is about. They will twist stuff so it SEEMS like they are a good thing. In reality, people rights and freedoms are being violoated not by international terrorism, but by the US government. Plain and simple.

Hope that helps.

[Montgomery Burns]

I'll let the President handle this one (replying to a liberal audience member yesterday who made a statement full of "progressive" leftwing talking-points; he did NOT ask a question):

THE PRESIDENT: I’m going to start off with what you first said, if you don’t mind, you said that I tap your phones—I think that’s what you said. You tapped your phone—I tapped your phones. Yes. No, that’s right. Yes, no, let me finish.

I’d like to describe that decision I made about protecting this country. You can come to whatever conclusion you want. The conclusion is I’m not going to apologize for what I did on the terrorist surveillance program, and I’ll tell you why. We were accused in Washington, D.C. of not connecting the dots, that we didn’t do everything we could to protect you or others from the attack. And so I called in the people responsible for helping to protect the American people and the homeland. I said, is there anything more we could do.

And there—out of this national—NSA came the recommendation that it would make sense for us to listen to a call outside the country, inside the country from al Qaeda or suspected al Qaeda in order to have real-time information from which to possibly prevent an attack. I thought that made sense, so long as it was constitutional. Now, you may not agree with the constitutional assessment given to me by lawyers—and we’ve got plenty of them in Washington—but they made this assessment that it was constitutional for me to make that decision.

I then, sir, took that decision to members of the United States Congress from both political parties and briefed them on the decision that was made in order to protect the American people. And so members of both parties, both chambers, were fully aware of a program intended to know whether or not al Qaeda was calling in or calling out of the country. It seems like—to make sense, if we’re at war, we ought to be using tools necessary within the Constitution, on a very limited basis, a program that’s reviewed constantly to protect us.

Now, you and I have a different—of agreement on what is needed to be protected. But you said, would I apologize for that? The answer—answer is, absolutely not. (Applause.)

I like President Bush. I believe that history will treat him kindly. A lot of people are going to have egg on their face. The Mid East will slowly reform and people will remember who spoke about freedom from tyranny.

[newbie]

Translation: They're Republicans ergo they are liars. They lied about Saddam and Al Qaeda being linked. They lied when they said Saddam sponsored int'l terrorism. They lied about Iraq being a terrorist haven. If only they had listened to Uncle Saddam (or any other mass-murdering dictator). Saddam and his ilk are always to be trusted. Republicans are nothing but liars and the people who continually elect them into power obviously do not live in the reality-based community..."

Glad to see you finally get it.

[GostHacked]

I'll let the President handle this one (replying to a liberal audience member yesterday who made a statement full of "progressive" leftwing talking-points; he did NOT ask a question):

THE PRESIDENT: I’m going to start off with what you first said, if you don’t mind, you said that I tap your phones—I think that’s what you said. You tapped your phone—I tapped your phones. Yes. No, that’s right. Yes, no, let me finish.

...

Now, you and I have a different—of agreement on what is needed to be protected. But you said, would I apologize for that? The answer—answer is, absolutely not. (Applause.)

I like President Bush. I believe that history will treat him kindly. A lot of people are going to have egg on their face. The Mid East will slowly reform and people will remember who spoke about freedom from tyranny.

I am wondering how he got through the Republican Screening Process and was allowed to be in the audience. I hope they learned their lesson. Watch out for shill moles like that guy who was obviously planted there by the Democrats.

Everything is a media $*@!ing circus.

[GostHacked]

Hope you guys do not use AT&T

http://www.wired.com/news/technology/0,706...l?tw=wn_index_1

Mark Klein, a retired AT&T communications technician, submitted an affidavit in support of the EFF's lawsuit this week. That class action lawsuit, filed in federal court in San Francisco last January, alleges that AT&T violated federal and state laws by surreptitiously allowing the government to monitor phone and internet communications of AT&T customers without warrants.

This was back in 2002, before the wiretapping program was in effect. What other companies has this been done to?

Phone, (land or cell) Internet, everything was monitored. We also know the US government has the ability to shut down the celular network in moments of terrorist attacks. (To avoid somethign like the Madrid bombings who used cell phones to detonate the bombs)

The government IS listening.

[Montgomery Burns]

Uh oh, there's more: It's legal

And then the Court of Review did one more thing, something that has repercussions in today's surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

It was a clear and sweeping statement of executive authority. And what was most likely not known to the Court of Review at the time was that the administration had, in 2002, started a program in which it did exactly what the Court of Review said it had the power to do: order the surveillance of some international communications without a warrant.

Read today, In re: Sealed Case does more than simply outline the president's authority. It also puts the administration's warrantless-surveillance decision in some context. What was going on at the time the president made the decision to go ahead with the surveillance? Well, first Congress passed the Patriot Act, giving the administration new powers. Then the FISA Court refused to recognize those powers and attempted to impose outdated restrictions on the administration. Then the White House, faced with the FISA Court's opposition — and with what administration officials believed were some inherent weaknesses in the FISA law — began to bypass the FISA Court in some cases. And then, in In re: Sealed Case, the administration received irrefutable legal support for its actions.

After the decision was handed down, the American Civil Liberties Union, which had submitted a brief in support of the FISA Court's actions restricting the administration, asked the Supreme Court to review In re: Sealed Case. The justices declined to take any action. That is not the same as the Court's upholding the ruling, but it does mean that the justices looked at the decision and chose not to intervene.

Today, the opinion stands as a bedrock statement of presidential power. And ironically, it came from a case that was not about whether the president had overstepped his bounds, but about whether the courts had overstepped their bounds. The Court of Review ruled strongly in favor of the president, and the Supreme Court declined to reconsider that decision. Reading the opinion, it's no wonder that George W. Bush has so strongly defended the surveillance program. If the FISA Court of Review is right, he has the Constitution on his side.

No wonder Bush has been calling out the Democrats.

No wonder this story has dropped off the MSM radar.

Yet another Bush "scandal" gets flushed down the loo...