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[Clips] Why Bush Approved the Wiretaps
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 11:57:58 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Why Bush Approved the Wiretaps Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.nationalreview.com/script/printpage.p?ref=/york/york200512191334…> The National Review Byron York December 19, 2005, 1:34 p.m. Why Bush Approved the Wiretaps Not long ago, both parties agreed the FISA court was a problem. In the days since the revelation that President Bush authorized the National Security Agency to bypass, in certain cases of suspected al Qaeda activity, the special court set up to provide warrants for national-security wiretaps, the question has come up repeatedly: Why did he do it? At his news conference this morning, the president explained that he believed the U.S. government had to "be able to act fast" to intercept the "international communications of people with known links to al Qaeda." "Al Qaeda was not a conventional enemy," Bush said. "This new threat required us to think and act differently." But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court - problems examined by members of the September 11 Commission - and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror. People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things. Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late. Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002. The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained. "Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process." It was in the context of such bureaucratic bottlenecks that the president first authorized, and then renewed, the program to bypass the FISA court in cases of international communications of people with known al Qaeda links. There were other reasons for the president to act, as well. In short, it appears that he was trying to shake the bureaucracy into action. The September 11 Commission report pointed to a deeply entrenched it's-not-my-job mentality within the National Security Agency that led the organization to shy away from aggressive antiterrorism surveillance. "The law requires the NSA to not deliberately collect data on U.S. citizens or on persons in the United States without a warrant based on foreign intelligence requirements," the 9/11 commission report wrote, While the NSA had the technical capability to report on communications with suspected terrorist facilities in the Middle East, the NSA did not seek FISA Court warrants to collect communications between individuals in the United States and foreign countries, because it believed that this was an FBI role. It also did not want to be viewed as targeting persons in the United States and possibly violating laws that governed NSA's collection of foreign intelligence. An almost obsessive protection of sources and methods by the NSA, and its focus on foreign intelligence, and its avoidance of anything domestic would...be important elements in the story of 9/11. Bush's order, it appears, was an attempt to change that situation. Especially before, and even after, passage of the Patriot Act, the FISA bureaucracy and the agencies that dealt with it were too unwieldy to handle some fast-moving intelligence cases. And now, a group of 43 Democrats and four Republicans is trying to undo even those improvements brought by the Patriot Act; after the effort to renew the law was filibustered last week, Senate Minority Leader Harry Reid exulted, "We killed the Patriot Act." Put all those factors together, and they explain the president's impassioned argument that he has to act to keep the pressure on al Qaeda - especially at a time when others, for whatever reasons, are trying to stop him. - Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President - and Why They'll Try Even Harder Next Time. -- ----------------- 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] Thank You for Wiretapping
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 11:16:31 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Thank You for Wiretapping Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://online.wsj.com/article_print/SB113503784784326861.html> The Wall Street Journal December 20, 2005 REVIEW & OUTLOOK Thank You for Wiretapping December 20, 2005; Page A14 Wisconsin Democrat Russ Feingold wants to be President, and that's fair enough. By all means go for it in 2008. The same applies to Lindsey Graham, the South Carolina Republican who's always on the Sunday shows fretting about the latest criticism of the Bush Administration's prosecution of the war on terror. But until you run nationwide and win, Senators, please stop stripping the Presidency of its Constitutional authority to defend America. That is the real issue raised by the Beltway furor over last week's leak of National Security Agency wiretaps on international phone calls involving al Qaeda suspects. The usual assortment of Senators and media potentates is howling that the wiretaps are "illegal," done "in total secret," and threaten to bring us a long, dark night of fascism. "I believe it does violate the law," averred Mr. Feingold on CNN Sunday. The truth is closer to the opposite. What we really have here is a perfect illustration of why America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility. There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power -- and endangering the country in the process. * * * The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed. The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that, "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." On Sunday Mr. Graham opined that "I don't know of any legal basis to go around" FISA -- which suggests that next time he should do his homework before he implies on national TV that a President is acting like a dictator. (Mr. Graham made his admission of ignorance on CBS's "Face the Nation," where he was representing the Republican point of view. Democrat Joe Biden was certain that laws had been broken, while the two journalists asking questions clearly had no idea what they were talking about. So much for enlightening television.) The mere Constitution aside, the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties. Far from being "secret," key Members of Congress were informed about them at least 12 times, President Bush said yesterday. The two district court judges who have presided over the FISA court since 9/11 also knew about them. Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear. All the more so because there are sound and essential security reasons for allowing such wiretaps. The FISA process was designed for wiretaps on suspected foreign agents operating in this country during the Cold War. In that context, we had the luxury of time to go to the FISA court for a warrant to spy on, say, the economic counselor at the Soviet embassy. In the war on terror, the communications between terrorists in Frankfurt and agents in Florida are harder to track, and when we gather a lead the response often has to be immediate. As we learned on 9/11, acting with dispatch can be a matter of life and death. The information gathered in these wiretaps is not for criminal prosecution but solely to detect and deter future attacks. This is precisely the kind of contingency for which Presidential power and responsibility is designed. What the critics in Congress seem to be proposing -- to the extent they've even thought much about it -- is the establishment of a new intelligence "wall" that would allow the NSA only to tap phones overseas while the FBI would tap them here. Terrorists aren't about to honor such a distinction. As Secretary of State Condoleezza Rice said Sunday on NBC's "Meet the Press," before 9/11 "Our intelligence agencies looked out; our law enforcement agencies looked in. And people could -- terrorists could -- exploit the seam between them." The wiretaps are designed to close the seam. * * * As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn't get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees. Congress wants to be aware of everything the executive branch does, but without being accountable for anything at all. If Democrats want to continue this game of intelligence and wiretap "gotcha," the White House should release the names of every Congressman who received such a briefing. Which brings us to this national security leak, which Mr. Bush yesterday called "a shameful act." We won't second guess the New York Times decision to publish. But everyone should note the irony that both the Times and Washington Post claimed to be outraged by, and demanded a special counsel to investigate, the leak of Valerie Plame's identity, which did zero national security damage. By contrast, the Times's NSA leak last week, and an earlier leak in the Washington Post on "secret" prisons for al Qaeda detainees in Europe, are likely to do genuine harm by alerting terrorists to our defenses. If more reporters from these newspapers now face the choice of revealing their sources or ending up in jail, those two papers will share the Plame blame. The NSA wiretap uproar is one of those episodes, alas far too common, that makes us wonder if Washington is still a serious place. Too many in the media and on Capitol Hill have forgotten that terrorism in the age of WMD poses an existential threat to our free society. We're glad Mr. Bush and his team are forcefully defending their entirely legal and necessary authority to wiretap enemies seeking to kill innocent Americans. -- ----------------- 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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20 Dec '05

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by Eugen Leitl 20 Dec '05

20 Dec '05

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19 Dec '05

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[Clips] Bush Announces Do-Not-Wiretap List
by R. A. Hettinga 19 Dec '05

19 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Mon, 19 Dec 2005 17:56:16 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Bush Announces Do-Not-Wiretap List Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.scrappleface.com/?p=2106> ScrappleFace ; December 19, 2005 Bush Announces Do-Not-Wiretap List by Scott Ott (2005-12-19) - Just days after the New York Times released classified information about eavesdropping by the NSA on Americans linked to international terrorists, President George Bush at a news conference today announced creation of a new website which allows people to voluntarily exclude their phone numbers and email addresses from NSA wiretap lists. The new National Do Not Wiretap Registry (DoNotWiretap.gov) follows the successful DoNotCall.gov model of allowing citizens to opt-out of harassment by electronic means. "If you're concerned that your civil rights might be violated simply because some al Qaeda member has your information in his cellphone or computer," the president said, "then go to DoNotWiretap.gov, enter your contact phone number, email address, and names of terrorists who might have you on speed dial and we'll let the National Security Administration know that you don't want them eavesdropping on you." -- ----------------- 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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by Eugen Leitl 19 Dec '05

19 Dec '05

----- Forwarded message from Roger Dingledine <arma(a)mit.edu> -----

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by Eugen Leitl 19 Dec '05

19 Dec '05

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by Eugen Leitl 19 Dec '05

19 Dec '05

----- Forwarded message from John Gilmore <gnu(a)toad.com> -----

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19 Dec '05

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