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Good analysis of Bush jeopardy re wiretaps

 
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Schadow
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PostPosted: Tue Dec 20, 2005 2:21 am    Post subject: Good analysis of Bush jeopardy re wiretaps Reply with quote

This from lawyer John Hinderaker at PowerLine:

Quote:
I haven't had time yet to study the legal arguments surrounding the NSA intercepts of international communications; Hugh Hewitt, for one, has addressed some of the technical issues. But there are a couple of fundamental points that, while obvious, haven't been made often enough.

First, those who leap to the conclusion that the intercepts must be unconstitutional seem to assume that all searches require a warrant. That is not correct. The Fourth Amendment prohibits "unreasonable" searches and seizures. Warrantless searches are legal, and appropriately so, in a number of circumstances.

Second, the issue of speed is critical. When we capture a cell phone or laptop being used by a terrorist, it is usually because we captured or killed the terrorist. The amount of time we have to exploit the capture is very short. The terrorists will soon figure out that their confederate is out of business, and stop using his cell phone numbers and email addresses. So if we are to benefit from the capture, we must begin obtaining information right now. A delay of even a few days may render the information useless, as the terrorists will have realized that their colleague has been neutralized. And it is likely that the first hours or even minutes after we obtain a cell phone number or email address are most apt to yield helpful new information. So it is easy to see why going through the process needed to obtain a warrant from the FISA court would undermine the effectiveness of our anti-terror operations.

This is entirely different from the situation we are all familiar with, where wiretaps are authorized against organized crime figures. Such wiretaps are not executed in connection with an arrest. They often continue for months or even years. There is ordinarily nothing about the context to suggest that the utility of the wiretap will expire in a matter of days, if not hours. Hence the delay required to obtain a warrant is usually immaterial.

Under the circumstances we face in dealing with the terrorist threat, is it unreasonable--the Constitutional standard--to begin immediately intercepting calls being made to a captured terrorist cell phone, whether those calls originate in the U.S. or another country? Of course not.

I'm just guessing here, but I suspect that we have technology in place that allows us to begin intercepting phone calls within a matter of minutes after we learn of a phone number being used by an al Qaeda operative overseas. My guess is that there is a system into which our military can plug a new phone number, and begin receiving intercepts almost immediately. I hope so, anyway; and I'm guessing that the disclosure of this system to al Qaeda is one of the reasons why President Bush is so unhappy with the New York Times. If we do have such a technology, it certainly would help to explain the remarkable fact that the terrorists haven't executed a successful attack on our soil since September 2001. And the disclosure of such a system, by leaking Democrats in the federal bureaucracy and the New York Times, makes it more likely, by an unknowable percentage, that al Qaeda and other terrrorist organizations will launch successful attacks in the future.


http://powerlineblog.com/archives/012606.php

Schadow
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GM Strong
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PostPosted: Tue Dec 20, 2005 2:36 am    Post subject: Reply with quote

What would have happened in WWII had ULTRA and other Intelligence gathering been subjected to this kind of garbage??? It is incredible that ULTRA was maintained as secret far beyond the war's end, especially with as many people as were involved.
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docford
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PostPosted: Tue Dec 20, 2005 2:47 am    Post subject: Reply with quote

Another point that everyone frequently forgets - the issue of whether a search/wiretap was reasonable under the Fourth Amendment only comes up if the evidence is being used during a court proceeding where the US Constitution is applied. In the case of terrorists, that is highly unlikely.
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USAFE5
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PostPosted: Tue Dec 20, 2005 2:52 am    Post subject: Reply with quote

And as the master of radio pointed out, the Democrats are using Iraq when questioning the authority given to the President, but he is using it against Al-Q, which is perfectly within the authorization given after 9/11. This small point will be used by the MSM without clarifying this point until people really think it is Iraq not AlQ being targeted.

Quote:
THE PRESIDENT: I want to make clear to the people listening that this program is limited in nature to those that are known Al-Qaeda ties and/or affiliates. That's important. So it's a program that's limited -- these calls are not intercepted within the country. They are from outside the country to in the country or vice-versa. So it's not a -- you know, if you're calling from Houston to LA, that call is not monitored, and if there was ever any need to monitor, there would be a process to do that. A open debate about law would say to the enemy here's what we're going to do, and this is an enemy which adjusts. We monitor this program carefully. We have consulted with members of the Congress over a dozen times. We are constantly reviewing the program. Those of us who review the program have a duty to uphold the laws of the United States, and we take that duty very seriously.
(from rush's site)
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Last edited by USAFE5 on Tue Dec 20, 2005 4:10 am; edited 1 time in total
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Schadow
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PostPosted: Tue Dec 20, 2005 4:03 am    Post subject: Reply with quote

I think there is no doubt that the President will not get in trouble over this in spite of the Dems' best efforts. The term "unreasonable" provides excellent cover in time of war, declared or not.

On the other hand, although the NYT is pretty well armored by the first amendment, the treasonous scum who gave the story to them should be discovered and dealt with very harshly. It was probably one of the Congress members who got briefed on the project or - more likely - one of their staff weasels. I do hope Bush gives Gonzales a swift kick in the posterior and orders him to pursue this at flank speed.

Schadow
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srmorton
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PostPosted: Tue Dec 20, 2005 12:00 pm    Post subject: Reply with quote

What gets me is the millions of dollars spent by Fitzgerald to pursue the
Valerie Plame "leak" which, if it even was a leak, is of no consequence
whatever when it comes to national security. This "shameful" leak can
do real harm to our ability to prosecute the WOT, but no one is calling
for the SP to investigate it. Also, it's frustrating that the MSM (as usual)
is skewing the coverage and omitting "little details" about how this same
law was used during the Clinton administration (probably with much less
justification) and how the Democrats in Congress were briefed about it.
Instead they are reporting the denials by the lying Dems that they knew
anything about it.

I applaud our President for trying to break through the barrier of the
MSM by holding the news conference yesterday. I know that it is not a
pleasant experience for him due to the fact that the intent of the WH
reporters is not to discover the truth, but to embarass the POTUS. If
I get frustrated because the Dems and their willing accomplices in the
media have no conpunction about out and out lying, I know it must be
even more frustrating for him, God bless him!
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Schadow
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PostPosted: Tue Dec 20, 2005 4:42 pm    Post subject: Reply with quote

srmorton wrote:
..... Also, it's frustrating that the MSM (as usual)
is skewing the coverage and omitting "little details" about how this same
law was used during the Clinton administration (probably with much less
justification) and how the Democrats in Congress were briefed about it.
Instead they are reporting the denials by the lying Dems that they knew
anything about it.


Here's some more on the Clinton administration's use of warrantless searches, defended by none other than the illustrious Jamie Gorelick:

Quote:
The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court. Meanwhile, Congress began discussing a measure under which the authorization for break-ins would be handled like the authorization for wiretaps, that is, by the FISA court. In her testimony, [Jamie] Gorelick signaled that the administration would go along [with] a congressional decision to place such searches under the court — if, as she testified, it "does not restrict the president's ability to collect foreign intelligence necessary for the national security." In the end, Congress placed the searches under the FISA court, but the Clinton administration did not back down from its contention that the president had the authority to act when necessary.


(Emphasis and edits mine)

Where is Jamie Gorelick? I'm sure that she would be willing to make the same case for George Bush. Rolling Eyes

http://www.nationalreview.com/york/york200512200946.asp

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joeshero
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PostPosted: Tue Dec 20, 2005 5:17 pm    Post subject: Reply with quote

I wonder why the New York Times has not moved yet its headquarter to Qatar. In terms of its blindness in seeing the danger posed by Islamic terrorists, or I tend to believe its deliberate effort to support, Islamofacism, there is no much different between Al Jazeera and NYT.
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PostPosted: Tue Dec 20, 2005 5:25 pm    Post subject: Reply with quote

joeshero wrote:
I wonder why the New York Times has not moved yet its headquarter to Qatar. In terms of its blindness in seeing the danger posed by Islamic terrorists, or I tend to believe its deliberate effort to support, Islamofacism, there is no much different between Al Jazeera and NYT.


There's a big difference, the NYT is printed in ENGLISH and not arabic. Other than that. I agree, no difference.
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PhantomSgt
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PostPosted: Tue Dec 20, 2005 7:05 pm    Post subject: Reply with quote

BuffaloJack wrote:
joeshero wrote:
I wonder why the New York Times has not moved yet its headquarter to Qatar. In terms of its blindness in seeing the danger posed by Islamic terrorists, or I tend to believe its deliberate effort to support, Islamofacism, there is no much different between Al Jazeera and NYT.


There's a big difference, the NYT is printed in ENGLISH and not arabic. Other than that. I agree, no difference.


Any article critical of the US or President Bush published here is translated and printed in Arabic or any other Muslim language and quoted heavily. The NYT reporters have larger readership in the Muslim World than in the USA. Al Jazeera quotes them regularly in their broadcasts to all areas of the planet.

The NY Times might just be the single largest recruiter for terror in the world.



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PostPosted: Tue Dec 20, 2005 9:54 pm    Post subject: Reply with quote

Title 18, Part I, Chapter 119, 2511.2.f:

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Now where's the story?
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PostPosted: Wed Dec 21, 2005 12:01 am    Post subject: Reply with quote

Bush to Democrats...

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I B Squidly
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PostPosted: Wed Dec 21, 2005 6:16 am    Post subject: Reply with quote

The FBI discovered Nixon's sub rosa channel to Thieu through Madame Chang in '68 leaving LBJ outraged and frustrated. He couldn't announce it without revealing the source. Funny that when the CIA planted E Howard Hunt for LBJ as a mole in the Goldwater Campaign it was legal. When Hunt spied on Larry Obrien for Nixon it wasn't. To me, the most hair raising aspect of the whole Watergate affair was John Mitchell telling the Irwin committe that the Justice Dept. employed agents provocateurs to incite violence during the DC peace protests and nobody gave it a second thought. CIA v. FBI turf battles aside, dirty politics aside domestic spying has a long and convoluted history of outrage and indifference.

Many of us envy Lincoln's supra-legal incarceration and deportation of seditionists. Few of us remember the Palmer Raids executed without warrant. Over the years we've glamorized the wholey illegal presumptions of Prohibition Agents. At least the Volstead Act was an Amendment where the War on Drugs was largely an Executive yoyo. It got especially ugly under Dick. The DOD announced it would flood the streets of America with 50,000 'Nam vet heroin addicts. To that the old DOH responded with a modest proposal of rehab. Nixon saw an opportunity to demonize both pot smoking hippies and inner city junkies by escalating engagement. He fired the top three tiers of DOH, scrapped their budget and gave the money instead to cities like Gary, Indiana to buy armored cars to fight the drug threat. No-knock, good-faith, anonymous warrants issued from that point. Not even WaPo or NYT made much comment.

The Church committee scrambled any rhyme or reason to domestic spying but moving on to the Reagan years; Nixon's improvizations were judicially endorsed. Congress wouldn't piss in a bottle but all of us in uniform faced random 'Golden Flows'; 4th or 5th Amendment anyone?.....I know Clause 11, page 2 of your contract yada yada. Congress finally had the sense to see the counter-production of the 18th Amendment but can't grasp it of the War on Drugs from which most current abuses of liberty derive.

Later comes Clinton who collected raw FBI files with 'deniability' and short-sheeted all legitmate investigations into his China fund. All the while Dems, (cut that...can't we just call them) 'jackasses' support the murder of innocents for the greater good of 'Asset Recovery', but vilify W for doing less against traitors, consorting with the enemy.

We've gotten to this point with some complicity from Republicans but by statute any evidence so acquired is only useful against proveable traitors. By evidence printed daily in the local rag and brayed on nightly news the Jackasses are indictable. No wonder they howl.
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joeshero
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PostPosted: Wed Dec 21, 2005 6:14 pm    Post subject: Reply with quote

The double standards of the mainstream media on this eavesdropping issue is absolutely outrageous. Noel Sheppard nails it down convincingly.


NSA Eavesdropping and Media Double Standards
December 21st, 2005

http://www.americanthinker.com/articles.php?article_id=5092

There’s an old saying: What’s sauce for the goose is sauce for the gander. When it comes to mainstream media reporting, nothing could be further from the truth.

No finer example of a media double standard has been recently evident than in the furor that has evolved over revelations of National Security Agency eavesdropping. To be more precise, the press response to The New York Times report on this subject last Friday is in stark contract to how they reacted in the ’90s when the Clinton administration was found to be engaging in extraordinarily similar activities.

A perfect example surfaced in a Washington Post article written yesterday by Charles Lane. In it, Lane referred to changes to the Foreign Intelligence Surveillance Act under former President Clinton after the Aldrich Ames affair. For those unfamiliar, Ames was a CIA agent that was convicted in 1994 of working for the former Soviet Union:

“The original version of the law was silent on warrantless physical searches of suspected spies or terrorists. The Clinton administration claimed inherent authority to conduct such “black bag” jobs, including searches of CIA turncoat Aldrich Ames’s house that turned up evidence of his spying for Russia. But it later sought amendments to FISA that brought physical searches under the FISA framework.”

The Post failed to make clear a number of key points:

• The two searches of Ames’ home were illegal under existing law at the time;

• The Clinton administration authorized these illegal searches with full support of former Attorney General Janet Reno and the Justice Department;

• Former deputy attorney general Jamie Gorelick had stated at the time that if the Justice Department tried to meet all the strict rules imposed on police in criminal matters, it would ‘’unduly frustrate’’ America’s counter-intelligence efforts;

• The Clinton administration ended up supporting changes to FISA – the Intelligence Authorization Act – in order to protect it from future legal challenges to its espionage procedures

...more on the above link
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PostPosted: Wed Dec 21, 2005 8:26 pm    Post subject: Reply with quote

John Hinderaker at Powerline appears to be in "Take No Prisoners" mode...good for him...

Quote:
It's Legal

John Schmidt, associate attorney general of the United States in the Clinton administration, superbly explains why the NSA intercept program is legal under all authorities and precedents:
    President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

    In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

    Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
Schmidt quotes the same language from the 2002 decision of the Foreign Intelligence Surveillance Court of Review that we have cited repeatedly:
    the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
This morning, I sent the following email to New York Times reporters Eric Lichtblau and Adam Liptak (other Times reporters who have participated in the NSA stories do not publish their email addresses):
    In your reporting in the Times you appear to have tried to create the impression that the NSA's overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:

    "The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], 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."

    In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program's legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

    Thank you.

    John Hinderaker
I will post any response I receive.

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