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25 Jan '06

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[Clips] Constitutional Spying
by R. A. Hettinga 24 Jan '06

24 Jan '06

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Sat, 21 Jan 2006 22:33:49 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Constitutional Spying Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=6533&…> Weekly Standard Constitutional Spying The solution to the FISA problem by Gary Schmitt 01/02/2006, Volume 011, Issue 16 The Foreign Intelligence Surveillance Act (FISA) is a chronic problem. The controversy over President Bush's decision to bypass FISA warrants in the electronic surveillance of al Qaeda operatives has highlighted the act's limitations. But FISA has been a problem ever since it became law in 1978. Congress passed and President Carter signed the bill regulating electronic surveillance for foreign intelligence collection in the wake of an extended, post--Watergate debate about the so--called "imperial presidency." The debate was given added urgency by reports and official investigations of indiscriminate snooping in this country by elements of the U.S. intelligence community. However, like so much else from that period, the broad arguments about the president's role in the constitutional order were wrong, and the laws designed to correct real problems created a new set of problems. One irony of today's debate is that so many liberals are now defending FISA. Previously, a common complaint from the ACLU and others was that the secret federal court that issues warrants for foreign intelligence surveillance in this country had become a "rubber stamp" for the executive branch. Out of the thousands of applications put forward by the Department of Justice to the panel over the years, only a handful had ever been rejected. Instead of a check on executive authority, the court had become complicit in its activities-or so it was said. And to a certain extent that has been the case. Yet the reason for the high percentage of approvals has less to do with deference to executive judgment than with FISA's standard for obtaining a warrant when it involves surveillance of an American citizen or an alien residing legally in the United States. Before the government can get a warrant, the Justice Department must put together a case to present before the court stating the "facts and circumstances relied upon . . . to justify [the attorney general's] belief that the target is an agent of a foreign power" or "engages . . . in international terrorism." And the FISA judges can only grant the warrant when "there is probable cause to believe that the target" is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good. FISA is less about collecting intelligence than confirming intelligence. This shouldn't be news. The inability of the FBI to aggressively pursue suspected foreign agents on U.S. soil was well aired in the 9/11 post--mortems, especially the notorious case of the "20th hijacker," French Moroccan Zacarias Moussaoui. His laptop was in the possession of FBI agents in Minneapolis in August 2001 but, for want of a warrant, was not searched before 9/11. Though much of the court's workings are classified, there are known instances in which FISA's "probable cause" standard prevented the government from getting warrants where common sense made it perfectly clear surveillance was justified. Notably, there was the case of Wen Ho Lee, the Chinese--American scientist who worked at the Los Alamos nuclear weapons lab. Lee downloaded nuclear codes and databases from the lab's secure computers. "In the wrong hands," his boss noted, such information could "change the global strategic balance." Despite this, and the fact that Lee had access to a warhead design that had leaked to the Chinese, had visited China in the period when Beijing apparently acquired the data, and had obvious friendly ties to Chinese nuclear scientists, it was judged that a FISA warrant could not be obtained. It didn't matter how grave the damage might be if Lee was actually engaged in espionage; what mattered was the government had no real evidence that Lee was a likely spy. In retrospect, the fastidiousness shown in the Lee and Moussaoui cases seems ludicrous, and some politicians and experts who have an interest in saving FISA have argued that the law was read too narrowly in both instances. Yet the law is what it is. And certainly it is these same politicians and experts who would be the first to complain about the government not abiding by FISA's standards should a case come to light involving dubious surveillance. Contrary to what many might think, the FBI, NSA, and the permanent bureaucracy at the Department of Justice have supported FISA primarily because it provided a line that they believed protected their organizations from the kinds of public trouble, political second--guessing, and congressional investigations that plagued them in the 1970s. And, for the most part, it has-although at an obvious cost. More broadly, the law rests on a shallow understanding of the Constitution's system of separated powers. FISA's supporters believe that life without the law would lead to unfettered executive power and violate the system's guiding principle of "checks and balances." What the Constitution demands, in their view, is a two--key approach to public authority: No branch gets to act in key instances without concurrent approval from a second branch. That approach, however, conflates the Constitution's scheme of "checks and balances" with its more fundamental system of separated powers. Although some checks do exist-like the president's qualified veto over legislation, or the Senate's role in confirming nominations-they are not the norms for government action but the exceptions. Far more common is for the president, Congress, and the courts to do their own thing, each interacting with the others indirectly and rarely concurrently. And that is the way it was meant to be. Justice Brandeis's famous line that the "doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power" is at best a half truth. After a decade of living under the Articles of Confederation, and seeing state legislatures run roughshod over weak executives, the Constitution's drafters wanted a system of separated powers that would free up the executive, not tie it down. By the time they convened in Philadelphia, the bias against the executive that arose from the fight with the British crown was pretty well gone. So much so that The Federalist would argue during the ratification debate that "energy in the executive is a leading character in the definition of good government" and that "decision, activity, secrecy and dispatch" were qualities only a unitary and independent executive could provide. It's no surprise then that it is precisely these qualities that we see in President Bush's decision to go around FISA in the wake of 9/11 and to order the National Security Agency to conduct warrantless surveillance of emails and calls going back and forth from suspected al Qaeda operatives abroad to the United States, and vice versa. Some critics of the president's actions have argued that he should have asked Congress to amend FISA to meet these new circumstances. Leave aside the practicalities of getting legislation of this sort passed in a timely manner, and without the underlying rationale leaking. This president (or any president worth his salt) would only accept legislation that either confirmed his discretionary authority, or reduced the standard for getting a warrant to some minimal requirement that the collection be "reasonably" connected to the country's foreign intelligence needs. But if legislation of that type were passed, what role would the FISA court actually play? Either it really would become a rubber stamp, or it would become a surrogate executive confirming or denying a warrant based on reasoning that isn't, at bottom, judicial. Do we really want judges to play the role of second--guessers of executive branch decisions, substituting their own judgment on matters of national security for that of the president and his duly appointed subordinates? So, then, what is to be done? Well, to start, we should have a serious debate about abolishing FISA and restoring the president's inherent constitutional authority to conduct warrantless searches for foreign intelligence purposes. And no, this wouldn't return us to the bad old days of a snooping J. Edgar Hoover. Within the executive branch there are now reams of guidelines and teams of inspector generals that make renegade operations improbable or, at least, difficult to keep hidden very long. Just as important, there are now standing intelligence committees in both the House and the Senate. One of the odd effects of FISA has been to take serious and sustained congressional oversight of electronic surveillance off the table. The constitutional body that should be watching the executive's discretionary behavior is, after all, primarily Congress. Here we reach the nub of the matter: The Founders, in the words of The Federalist, did not think it was wise or even possible to set a "limitation of that authority which is to provide for the defense and protection of the community." At the end of the day, a government has to do what is necessary to protect itself and its people. Yet, at the same time, the Founders believed in limited government. How did they square the circle? When it comes to the conduct of war, the history is pretty clear: They expected presidents to do what was required to secure the country's safety. But they did anticipate that Congress would play the role of Monday--morning quarterback: exposing malfeasance when called for, adding or cutting off funds when necessary, passing laws to regularize the exercise of executive discretion without undermining it, and, in the face of truly egregious behavior, being ready to impeach a president. Obviously there is no neat solution to the problem of power and responsibility. However, as Winston Churchill said about democracy itself, the system of discretion and oversight the Constitution establishes is the worst possible solution-except for all others that have been tried. Gary Schmitt is director of the program on advanced strategic studies at the American Enterprise Institute and former executive director of the President's Foreign Intelligence Advisory Board. -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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NSA: REDACTING WITH CONFIDENCE
by coderman 24 Jan '06

24 Jan '06

damn, i liked those leaky document formats. more than meets the eye indeed... http://www.fas.org/sgp/news/secrecy/2006/01/012006.html ---c--- NSA: REDACTING WITH CONFIDENCE The National Security Agency has issued new guidance to assist officials in redacting (censoring) documents in Microsoft Word format and producing unclassified Adobe Portable Document (PDF) files without inadvertently disclosing sensitive information. "MS Word is used throughout the DoD and the Intelligence Community (IC) for preparing documents, reports, notes, and other formal and informal materials. PDF is often used as the format for downgraded or sanitized documents." "There are a number of pitfalls for the person attempting to sanitize a Word document for release." For example, "As numerous people have learned to their chagrin, merely converting an MS Word document to PDF does not remove all [sensitive] metadata automatically." "This paper describes the issue, and gives a step-by-step description of how to do it with confidence that inappropriate material will not be released." See "Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF," National Security Agency, December 13, 2005: http://www.fas.org/sgp/othergov/dod/nsa-redact.pdf ---

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[Clips] Gonzales Says NSA Criticism Misleading
by R. A. Hettinga 24 Jan '06

24 Jan '06

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 24 Jan 2006 17:45:26 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Gonzales Says NSA Criticism Misleading Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.lasvegassun.com/sunbin/stories/text/2006/jan/24/012405864.html> Return to the referring page. Las Vegas SUN Today: January 24, 2006 at 11:56:13 PST Gonzales Says NSA Criticism Misleading By PETE YOST ASSOCIATED PRESS WASHINGTON (AP) - Attorney General Alberto Gonzales defended the Bush administration's domestic spying program Tuesday and suggested that some critics and news reports have misled Americans about the breadth of the National Security Agency's surveillance. Gonzales said the warrantless surveillance is critical to prevent another terrorist attack within the United States and falls within President Bush's constitutional authority and the powers granted by Congress immediately following the Sept. 11, 2001 terrorist attacks. At a Georgetown Law School Forum, Gonzales said the nation needs "to remember that ... it's imperative for national security reasons that we can detect reliably, immediately and without delay" any al-Qaida related communication entering or leaving the United States. As he spoke, more than a dozen students stood silently with their backs turned to the attorney general. Outside the classroom where Gonzales was to speak, a pair of protesters held up a sheet that said, "Don't torture the Constitution." Gonzales cautioned his listeners about critics and journalists who have mischaracterized details about the program. "Unfortunately, they have caused concern over the potential breadth of what the President has actually authorized," he said. The attorney general's appearance at the law school is part of a campaign by the Bush administration to overcome criticism, often by attempting to redefine the program. On Monday at Kansas State University, Bush said the program should be termed a "terrorist surveillance program" and contended it has the backing of legal experts, key lawmakers and the Supreme Court. But some members of Congress from both parties have questioned whether the warrantless snooping is legal. And many Democrats along with a number of legal experts say flatly that Bush has broken the law and has committed an impeachable offense. Last week, Gonzales sent leaders of Congress a 42-page legal defense of warrantless eavesdropping which suggests that the Foreign Intelligence Surveillance Act is unconstitutional if it prevents the NSA's warrantless eavesdropping. The National Security Agency program bypassed the special FISA court Congress established in 1978 to approve or reject secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage. -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[Clips] Impeachment hearings: The White House prepares for the worst
by R. A. Hettinga 24 Jan '06

24 Jan '06

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 24 Jan 2006 17:47:40 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Impeachment hearings: The White House prepares for the worst Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.insightmag.com/Media/MediaManager/impeachment.htm> Insight Issue Date: January 23-29, 2006, Posted On: 1/23/2006 Impeachment hearings: The White House prepares for the worst President Bush waved to the press on Jan. 22 after returning to the White House from Camp David. (Susan Walsh/Associated Press) The Bush administration is bracing for impeachment hearings in Congress. "A coalition in Congress is being formed to support impeachment," an administration source said. Sources said a prelude to the impeachment process could begin with hearings by the Senate Judiciary Committee in February. They said the hearings would focus on the secret electronic surveillance program and whether Mr. Bush violated the 1978 Foreign Intelligence Surveillance Act. Administration sources said the charges are expected to include false reports to Congress as well as Mr. Bush's authorization of the National Security Agency to engage in electronic surveillance inside the United States without a court warrant. This included the monitoring of overseas telephone calls and e-mail traffic to and from people living in the United States without requisite permission from a secret court. Sources said the probe to determine whether the president violated the law will include Republicans, but that they may not be aware they could be helping to lay the groundwork for a Democratic impeachment campaign against Mr. Bush. "Our arithmetic shows that a majority of the committee could vote against the president," the source said. "If we work hard, there could be a tie." The law limits the government surveillance to no more than 72 hours without a court warrant. The president, citing his constitutional war powers, has pledged to continue wiretaps without a warrant. The hearings would be accompanied by several lawsuits against the administration connected to the surveillance program. At the same time, the Electronic Privacy Information Center has filed a Freedom of Information Act lawsuit that demands information about the NSA spying. Sen. Arlen Specter, Senate Judiciary Committee chairman and Pennsylvania Republican, has acknowledged that the hearings could conclude with a vote of whether Mr. Bush violated the law. Mr. Specter, a critic of the administration's surveillance program, stressed that, although he would not seek it, impeachment is a possible outcome. "Impeachment is a remedy," Mr. Specter said on Jan. 15. "After impeachment, you could have a criminal prosecution. But the principal remedy under our society is to pay a political price." Mr. Specter and other senior members of the committee have been told by legal constitutional experts that Mr. Bush did not have the authority to authorize unlimited secret electronic surveillance. Another leading Republican who has rejected the administration's argument is Sen. Sam Brownback of Kansas. On Jan. 16, former Vice President Al Gore set the tone for impeachment hearings against Mr. Bush by accusing the president of lying to the American people. Mr. Gore, who lost the 2000 election to Mr. Bush, accused the president of "indifference" to the Constitution and urged a serious congressional investigation. He said the administration decided to break the law after Congress refused to change the Foreign Intelligence Surveillance Act. "A president who breaks the law is a threat to the very structure of our government," Mr. Gore said. "I call upon members of Congress in both parties to uphold your oath of office and defend the Constitution," he said. "Stop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the constitution of our country." Impeachment proponents in Congress have been bolstered by a memorandum by the Congressional Research Service on Jan. 6. CRS, which is the research arm of Congress, asserted in a report by national security specialist Alfred Cumming that the amended 1947 law requires the president to keep all members of the House and Senate intelligence committees "fully and currently informed" of a domestic surveillance effort. It was the second CRS report in less than a month that questioned the administration's domestic surveillance program. The latest CRS report said Mr. Bush should have briefed the intelligence committees in the House and Senate. The report said covert programs must be reported to House and Senate leaders as well as the chairs of the intelligence panels, termed the "Gang of Eight." Administration sources said Mr. Bush would wage a vigorous defense of electronic surveillance and other controversial measures enacted after 9/11. They said the president would begin with pressure on Republican members of the Senate Judiciary Committee. Mr. Bush would then point to security measures taken by the former administration of President Bill Clinton. "The argument is that the American people will never forgive any public official who knowingly hurts national security," an administration source said. "We will tell the American people that while we have done everything we can to protect them, our policies are being endangered by a hypocritical Congress." -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[Clips] Gonzales Crushes Arguments Against NSA's International Surveillance
by R. A. Hettinga 24 Jan '06

24 Jan '06

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 24 Jan 2006 16:32:44 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Gonzales Crushes Arguments Against NSA's International Surveillance Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://powerlineblog.com/archives/012926.php> Power Line + CRIMES OF THE TIMES | MAIN JANUARY 24, 2006 GONZALES CRUSHES ARGUMENTS AGAINST NSA'S INTERNATIONAL SURVEILLANCE This morning, Attorney General Alberto Gonzales participated in a debate at Georgetown University's law school on the NSA's international surveillance program. Gonzales did an excellent job of spelling out the reasons why the program is not only necessary, but legal. You can read Gonzales' prepared text here; what follows are some key excerpts: A word of caution here. This remains a highly classified program. It remains an important tool in protecting America. So my remarks today speak only to those activities confirmed publicly by the President, and not to other purported activities described in press reports. These press accounts are in almost every case, in one way or another, misinformed, confusing, or wrong. No surprise there. I've noticed that through all of the noise on this topic, very few have asked that the terrorist surveillance program be stopped. The American people are, however, asking two important questions: Is this program necessary? And is it lawful? The answer to each is yes. An important point: very few of the progam's liberal critics are actually willing to take responsibility for calling for the termination of the NSA international surveillance program. They know what would happen if the program were in fact terminated, and an attack ensued. The conflict against al Qaeda is, in fundamental respects, a war of information. We cannot build walls thick enough, fences high enough, or systems strong enough to keep our enemies out of our open and welcoming country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we must understand better who they are and what they're doing - we have to collect more dots, if you will, before we can "connect the dots." This program to surveil al Qaeda is a necessary weapon as we fight to detect and prevent another attack before it happens. Didn't that "collect the dots" theme originate on the internet? I think so. [F]rom the outset, the Justice Department thoroughly examined this program against al Qaeda, and concluded that the President is acting within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSA's Inspector General have been intimately involved in reviewing the program and ensuring its legality. The terrorist surveillance program is firmly grounded in the President's constitutional authorities. *** It has long been recognized that the President's constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice. If this is the case in ordinary times, it is even more so in the present circumstances of our armed conflict with al Qaeda and its allies. As I've said many times, I think this is the key point that must be made again and again. It is supported by at least five federal appellate court decisions. How many such decisions are there on the other side? Zero. Gonzales continues: The President's authority to take military action-including the use of communications intelligence targeted at the enemy-does not come merely from his inherent constitutional powers. It comes directly from Congress as well. He goes on to discuss the Authorization for the Use of Military Force and the Hamdi decision. Most of that discussion is good, but he stumbles by referring to Justice Jackson's confused concurrence in the Youngstown steel mill seizure case. When I have time, I'm going to write a fuller explanation of why Jackson's tripartite theory is not just unhelpful, but wrong. Gonzales supplies some historical perspective: [A]s long as electronic communications have existed, the United States has conducted surveillance of those communications during wartime-all without judicial warrant. In the Civil War, for example, telegraph wiretapping was common, and provided important intelligence for both sides. In World War I, President Wilson ordered the interception of all cable communications between the United States and Europe; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves only the interception of international communications that are linked to al Qaeda or its allies. Gonzales continues with the best discussion of FISA I've seen by an administration spokesman: Some contend that even if the President has constitutional authority to engage in the surveillance of our enemy in a time of war, that authority has been constrained by Congress with the passage in 1978 of the Foreign Intelligence Surveillance Act. *** For purposes of this discussion, because I cannot discuss operational details, I'm going to assume here that intercepts of al Qaeda communications under the terrorist surveillance program fall within the definition of "electronic surveillance" in FISA. Interesting. As I've said before, I assume that this must be true, or else the administration would make the point that FISA has no application to the international surveillance in question. Even saying that much, however, could tip the terrorists off as to what categories of communications are being intercepted and whether the NSA is using facilities located abroad or in the U.S., distinctions on which FISA's definition of "electronic surveillance" can turn. The FISA Court of Review, the special court of appeals charged with hearing appeals of decisions by the FISA court, stated in 2002 that, quote, "[w]e take for granted that the President does have that [inherent] authority" and, "assuming that is so, FISA could not encroach on the President's constitutional power." We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches - or places an unconstitutional constraint upon - the President's Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President's constitutional authority today. I agree with that last point, but I also think it is vital to insist that Congress has no power to restrict the President's constitutional authority, any more than the President can detract from Congress's constitutional powers by issuing an executive order. Gonzales makes several cogent points about FISA; I haven't seen this one before: You may have heard about the provision of FISA that allows the President to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime. But no one could reasonably suggest that all such critical military surveillance in a time of war would end after only 15 days. Instead, the legislative history of this provision makes it clear that Congress elected NOT TO DECIDE how surveillance might need to be conducted in the event of a particular armed conflict. Congress expected that it would revisit the issue in light of events and likely would enact a special authorization during that 15-day period. That is exactly what happened three days after the attacks of 9/11, when Congress passed the Force Resolution, permitting the President to exercise "all necessary and appropriate" incidents of military force. Thus, it is simply not the case that Congress in 1978 anticipated all the ways that the President might need to act in times of armed conflict to protect the United States. FISA, by its own terms, was not intended to be the last word on these critical issues. Gonzales makes the familiar argument that the Authorization for the Use of Military Force constitutes an "authoriz[ation] by statute" that makes the current wartime surveillance an exception to FISA. He goes on to address the 72-hour emergency provision of FISA, on which leftists have put so much weight: Some have pointed to the provision in FISA that allows for so-called "emergency authorizations" of surveillance for 72 hours without a court order. There's a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time. Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours. A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge. So the FISA "emergency" process would require days, at a minimum, and perhaps weeks, to complete; and it must be completed before surveillance can begin. Thinking about this reminded me of the fact that the NSA actually picked up two electronic communications on September 10, 2001, which countless liberal web sites have pointed to as evidence of malfeasance or worse on the part of the administration. Here is how General Michael Hayden described those two intercepts in his testimony before the Senate Intelligence Committee: There is one other area in our pre-September 11th performance that has attracted a great deal of public attention. In the hours just prior to the attacks, NSA did obtain two pieces of information suggesting that individuals with terrorist connections believed something significant would happen on September 11th. This information did not specifically indicate an attack would take place on that day. It did not contain any details on the time, place, or nature of what might happen. It also contained no suggestion of airplanes being used as weapons. Because of the processing involved, we were unable to report the information until September 12th. Now, consider this. What would happen if the President had not authorized the international surveillance program after September 11, and instead had relied solely on FISA, and the following events were to take place: the NSA obtains information that an al Qaeda operative overseas is planning a nuclear attack in conjunction with a cell inside the United States. The NSA decides to intercept all communications between the overseas al Qaeda operative and individuals located inside the U.S.; but first, it must obtain multiple layers of approval from lawyers and assemble all of the information needed to complete a FISA application. It begins that process, but the next day, while NSA is still working on getting the necessary approvals, a nuclear device levels much of Washington, D.C. Suppose that disaster had happened a year ago. How do you think the surviving Democrats would have responded? Do you think they would have praised the administration for refusing to go outside the bounds of FISA's procedures? Or do you think they would have denounced President Bush and his administration as the most irresponsible, feckless and ineffective officials to control the executive branch since James Buchanan? I think the latter. And you know what? They would have had a point. Posted by John at 12:48 PM -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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Wow..Mens Love This QE
by Aubrey Salter 24 Jan '06

24 Jan '06

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[Clips] The War on Sedition
by R. A. Hettinga 24 Jan '06

24 Jan '06

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 24 Jan 2006 16:27:34 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] The War on Sedition Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.reason.com/0602/co.mw.the.shtml> Reason: February 2006 The War on Sedition "Anglosphere" allies crack down on speech in the name of fighting terror. Matt Welch If Australian Prime Minister John Howard gets his way, citizens down under will soon face seven years in prison if they are convicted of "sedition." That's not entirely new-sedition laws have been on the country's books for at least 40 years-but the proposed legislation more than doubles the penalty. It also expands the definition of criminal speech to include "assist[ing], by any means whatever, an organisation or country at war with the Commonwealth, whether or not the existence of a state of war has been declared." What comprises such "assistance," and how on earth do you know when an organization is at "war with the Commonwealth" in the absence of a declaration to that effect? The answers are not clear, even after one very heated month of public debate and outcry. "Taking the puff out of someone in a cartoon, or puncturing an ego in a play, is a vastly different proposition from encouraging impressionable young people to become suicide bombers, or inciting violence against our soldiers," Howard wrote in a November 28 Melbourne Herald Sun op-ed piece, during a week in which he had to face down a rebellion by legislators from his own party who objected to the sedition provisions of his signature counter-terrorism package. "The distinctions are not blurred, they are as stark as the difference between day and night. What will not be tolerated will be actions or words designed to harm Australian troops [or] language designed to incite action against our troops in Iraq." Australia wasn't the only English-speaking American ally to put the squeeze on speech last November in the name of fighting Islamic terrorism. At the seat of the monarchy that-on paper, anyway-still reigns over the former penal colony, Prime Minister Tony Blair pushed through by a single vote legislation outlawing the "glorification of terrorism," defined as speaking or publishing words that would encourage the "commission, preparation or instigation of acts of terrorism." This measure came on the heels of another Blair bill, also passed by the House of Commons, outlawing "inciting religious hatred." In the United States, thankfully, you can glorify terrorism every day. As you read this, thousands of college kids and even toddlers are walking around in T-shirts bearing the iconic image of the terrorist Che Guevara without fear of being tackled by cops. Last year I attended a Hoboken fundraiser for the city's annual St. Patrick's Day parade in which the band played several songs glorifying the Irish Republican Army (including "I'm Backin' the IRA!"); no one was led away in handcuffs. Indeed, the audience was full of policemen, politicians, and other Irish Americans who have long sent material and moral support to an organization that has murdered hundreds of civilians. Ward Churchill, professor of ethnic studies at the University of Colorado at Boulder, announced last year that "fragging an officer" by rolling a grenade into his tent "has a much more impactful effect" than mere "conscientious objection." He has not been jailed. We tolerate this kind of talk because the American Founders were hyper-conscious of the thick line separating word from deed. They so strongly believed the government had no business passing laws restricting political speech that they dedicated the very first article of the Bill of Rights to protecting this most elemental of liberties. Two hundred and sixteen years of practical experience with this free speech-however curtailed it has been, whether through Woodrow Wilson's sedition laws during World War I or John McCain's more recent restrictions on political campaigning-have given the average American a unique insight: that letting people rubbish the government, even to the point of advocating its overthrow, serves as an important pressure valve, allowing dark ideas to be exhumed, debated, and shot down openly, rather than left to fester in the shadows. The Brits don't share this ethic, partly because they never got around to writing a constitution. The Australians managed the constitution part but left out the whole Bill of Rights thing. Freedom of speech, the Australian journalist Tim Blair tells me, is more "implied" than codified. The implication in both countries is more than just a lack of legal safeguards against a speech-restricting government. British libel laws are notorious for placing the burden of proof on the accused instead of the plaintiff. "Libel tourism" is a growth industry, as Saudi princes and American celebrities try to harass global newspapers or publishing companies into printing retractions or quashing U.K. releases of American books, such as Craig Unger's House of Bush, House of Saud or Rachel Ehrenfeld's similarly Saudi-bashing Funding Evil. The Australians are "somewhere between the U.K. and the U.S." on libel, says Blair, who is the assistant news editor of The Bulletin. Lacking a constitutional framework, each province sets its own libel and slander rules, the result of which is that every national publication has to operate as if it were governed by the lowest-common-denominator regulations of Queensland, where truth is not an absolute defense, if a court finds the published information lacks sufficient "public interest." This situation leads to the kind of libel-proof euphemisms that make Australian and British newspapers occasionally incomprehensible to Yanks. Instead of "organized crime lord," Blair explains, you have "colorful racing identity"; editors expect readers to understand that a "tired and emotional" celebrity was actually "shitfaced drunk." So the surprise is not that Prime Ministers Howard and Blair (from the right-wing Liberal Party and left-wing Labour Party, respectively) have sought to limit speech in the name of fighting terrorism. It's that their respective legislatures, newspapers, and populations have fought their proposals with such vigor. In London, Blair's counterterrorism package has been his least successful legislation in three terms and nine years as prime minister. In mid-November, the House of Commons gave him his first-ever defeat, when Labour Party backbenchers defected to vote down Blair's proposal to lock up suspected terrorists for 90 days without charge. A few weeks before, the House of Lords-once a rubber-stamp hereditary body of eccentrics, since reformed by Blair into a more meritocratic and relevant legislature-had restricted the prime minister's ban on "inciting religious hatred" by forcing prosecutors to prove malicious intent and adding a provision recognizing the right to "ridicule, insult, or abuse" other religions. At press time, the House of Lords was threatening to scotch Blair's "glorification of terrorism" law altogether. "We need not to worry so much about the loudmouths," the former Conservative cabinet member and cur-rent Lord Douglas Hurd told reporters, sounding very much like an American, "as about the quiet acts of subversion and training by dangerous people, up and down the country, who on the whole keep their mouths shut." In Australia every major newspaper has squealed in outrage at Howard's sedition laws; the bipartisan Senate Constitutional Committee recommended in late November that they be excised from Howard's anti-terrorism package; and now the successful four-term prime minister faces a rare open revolt from within the ranks of his own party. "There is no doubt," Constitutional Committee Chairwoman Marise Payne, a Liberal Party member, told the Australian Parliament, "that they are a very serious incursion into the way in which we currently expect to be able to live our lives in Australia." In many unhappy ways, the free speech traditions of England and the Commonwealth are more in tune with the nervous, fussy bureaucrats of Europe (where wearing religious insignia to school, or insulting Islam, is frequently illegal) than with their loose-lipped cousins in the New World. But the surprising opposition to November's bogus liberty-for-security trades suggests that there might be something to this "Anglosphere" stuff after all. Matt Welch is associate editor of Reason -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[dave@farber.net: [IP] More on Hayden on NSA program]
by Eugen Leitl 24 Jan '06

24 Jan '06

----- Forwarded message from David Farber <dave(a)farber.net> -----

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[dave@farber.net: [IP] More on Hayden on NSA program]
by Eugen Leitl 24 Jan '06

24 Jan '06

----- Forwarded message from David Farber <dave(a)farber.net> -----

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