January 24, 2006 12:21 PM PST

Bush allies defend NSA surveillance

WASHINGTON--President Bush and his closest allies are stepping up their defense of a domestic surveillance program in the face of congressional criticism, multiple lawsuits and a Senate hearing planned for next month.

In a continuation of a full-court press that began a day earlier, Attorney General Alberto Gonzales on Tuesday told students at Georgetown University that a wartime president has the lawful authority to eavesdrop on Americans' telephone calls and e-mail messages without court approval.

"The terrorist surveillance program is both necessary and lawful," Gonzales said. "Accordingly, the president has done with this lawful authority the only responsible thing: use it."

Gonzales' defense of the program, which uses the National Security Agency to conduct warrantless wiretaps of conversations, comes as scrutiny of the traditionally publicity-shy agency is growing.

Rep. John Conyers, a top Democrat from Michigan, on Friday asked (click here for PDF) companies including Google, Yahoo, EarthLink, Verizon Communications and T-Mobile whether they have given the government access to their networks when not authorized by a court order. And Sen. Arlen Specter, a Pennsylvania Republican, has scheduled a Judiciary committee hearing for Feb. 6. Specter has indicated he believes the surveillance program to be illegal.

Bush himself defended the program during a speech at Kansas State University on Monday. "Federal courts have consistently ruled that a president has authority under the Constitution to conduct foreign intelligence surveillance against our enemies," he said. "Predecessors of mine have used that same constitutional authority."

Michael Hayden, a former NSA director who is now a top intelligence official, went even further. In a speech in Washington on Monday (click here for PDF), Hayden said that "had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al-Qaida operatives in the United States, and we would have identified them as such."

Attorney General Gonzales echoed that argument, saying the threat of al-Qaida was real and reminded the audience that a videotape from Osama bin Laden surfaced last week. He emphasized that press accounts describing the program's scope have been, with little exception, "misinformed, confusing or wrong." But he refused to reveal further details about the program, saying it remains "highly classified."

At one point during Gonzales' speech to about 100 students, dozens stood up and turned their backs to the attorney general.

If nowhere else, the authorization for the exercise of presidential powers can be found in a congressional resolution passed just days after Sept. 11, Gonzales said. That measure, known as the "Authorization for Use of Military Force," allows the president to "use all necessary and appropriate force" against suspected terrorists and their allies.

That argument may soon be tested in court. The American Civil Liberties Union filed a lawsuit last week claiming that the NSA program violates both the U.S. Constitution's Bill of Rights and a federal law saying that a court order is generally necessary to spy on Americans. The group is asking for a preliminary injunction that would halt the surveillance program.

A separate lawsuit (click here for PDF) was filed last week by the Electronic Privacy Information Center. That suit asks a federal judge in Washington, D.C., to force the Bush administration to release information about the NSA spying program.

EPIC had filed a Freedom of Information Act request, but the Justice Department said it could not comply with it by the legal deadline. The request asks for an audit of the NSA's domestic surveillance activities, legal opinions created by Bush administration attorneys justifying the program, and what kind of guidance or "checklist" is used to determine who to monitor.

The Bush administration is out of line in its reading of the law, said David Cole, a Georgetown law professor specializing in constitutional law who spoke on a four-member panel discussion that took place after Gonzales' speech.

"It's a crime to conduct electronic surveillance without authorization in two places in the statute," Cole said, referring to the Foreign Intelligence Surveillance Act (FISA). He said that under FISA, the president may conduct wiretapping without a warrant for 15 days after the declaration of war but must seek authorization for activities continuing beyond that period.

Given that context, "how can it be that authorization to use military force somehow gives him four years of unchecked power?" Cole asked.

He also rejected the administration's claims that the Supreme Court's decision in the detainee case offered justification for its wiretapping actions. A court likely would not have drawn the same conclusion had there been a law such as FISA that set a 15-day limit for detaining American citizens suspected of being enemy combatants, he said.

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70 comments

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Response to the spin is meaningless
The administration is masterful at recasting problems as a
sources of strength and labeling dissenters as wusses.

This is no different. What they will never explain, however, is
why warrants are bipassed when they can be obtained after-the-
fact with the FISA structure that is already in place.

It's a shame we have a populace that's often incapable of
appreciating details.

The administration can do no wrong.
Posted by mgreere (332 comments )
Reply Link Flag
Yep!
It started with Reagan and the 3 by 5 card mentality. Give it to them in little sound bites that they don't have to think about. Especially if you appeal to emotion and prejudice. Reason goes out the window.

I have said this before but it is worth repeating. There is a hilarious book on just this topic.

Who Mumbo-Jumbo Conquered the World
Francis Wheen
ISBN  0007140975

Your brain will thank you for it!
Posted by Mister C (423 comments )
Link Flag
Bush got caught with his hands in the bush...
#1 The FISA provision Bush is relying upon specifically says no other law can supercede FISA. So unless FISA is amended or repealed, no other law before or after can change the rules under FISA.

#2 The FISA section Bush relys on to justify his order specifically says there can be NO POSSIBILITY of inadvertantly monitoring the communications of a US citizen without a court order. Since calls monitored originate or terminate within US borders, it stands to reason that there IS a possibility that a citizen's communications were monitored illegally.

#3 The use of force granted by Congress does not suspend the ultimate law of the land, the US Constitution. Nor does the definition of "force" in Congress' authorization include espionage or surveillance on US citizens. I fail to see where force can be equated to spying..and I'm former military myself.
Posted by Methuss (101 comments )
Reply Link Flag
AUMF
>> Nor does the definition of "force" in Congress'
>> authorization include

The Authorization for the Use of Military Force AUMF) is three paragraphs long.
<a class="jive-link-external" href="http://www.law.du.edu/hughes/conlone/Readings/CongForce.htm" target="_newWindow">http://www.law.du.edu/hughes/conlone/Readings/CongForce.htm</a>

The AUMF bases its grant upon the War Powers Resolution. Section 2.2 "Nothing in this resolution supercedes any requirement of the War Powers Resolution."

The War Powers Resolution specifics says that it does not grant the president any implicit authority, or any authority to act outside the scope of existing laws. Check out section 8.d.1.

<a class="jive-link-external" href="http://www.yale.edu/lawweb/avalon/warpower.htm" target="_newWindow">http://www.yale.edu/lawweb/avalon/warpower.htm</a>

So the argument that the AUMF implicity allows the president to ignore FISA fails every test of statutory construction. Even the Republicans concede this.

<a class="jive-link-external" href="http://news.findlaw.com/hdocs/docs/nsa/specgonz12406ltr.html" target="_newWindow">http://news.findlaw.com/hdocs/docs/nsa/specgonz12406ltr.html</a>
Posted by coranth (6 comments )
Link Flag
They do have the power..Just not to extent Bush would like.
After the abuses of previous administrations congress passed FISA in 70's to deal with presidential authority, wiretapping, and national security and balancing those with civil liberites. FISA gives the president 15 day after the start of a war to conduct surveillance without any judical oversite, and he can goto to congress and ask for an extenstion. FISA also includes a provision that allows the government to conduct surveillance anytime and goto the FISA court up to 72 hours later for approval. The authorization Bush cites says nothing about surveillance and for a long time now it has been that the more specific statue supercedes the more general. FISA would be the specific statue. This constitutional authority Bush claims flies in face of the seperation of power.
Posted by unknown unknown (1951 comments )
Reply Link Flag
One more thing
Claiming that had the program been in place before 9/11 it could have caught some or all of the terrorists reponsible doesn't change the legality.
Our government is suppose operate within the system no outside it.
Posted by unknown unknown (1951 comments )
Link Flag
war?
I though Bush declared the war over last year when Bagdad fell.
Posted by MKenzie (23 comments )
Reply Link Flag
RE
Nope just an end to the heavy fighting. Whether or not there was an actual end is debatable.
Posted by unknown unknown (1951 comments )
Link Flag
That "War" Is Irrelevant
whether or not that military action over there is a war, or even whether or not it's over is irrelevant. they're monitoring al qaeda, which, despite the president's misdirection to the contrary, has virtually nothing to do with the action in iraq.

so, the real question is, is the war on terrorism (which does not include iraq) over? the answer is that with the leadership our president and the republicans provide, it's unlikely to be over . . ever.

i wonder what other rhubarb ideas this president thinks congress has bestowed upon him to stop terrorism.

mark d.
Posted by markdoiron (1138 comments )
Link Flag
Wrong
Wars have many many missions. The banner read, "Mission Accomplished" and was raised by the Navy, not the White House. During the speech Bush stated quite clearly: "The battle of Iraq is one victory in a war on terror that began......"

Try to keep your facts straight... the Spin can make you dizzy.
Posted by David Arbogast (1709 comments )
Link Flag
As Nelson would say!
Ha! Ha!

Junior and his cronies, at 1600 pennsylvania avenue, are literally killing the ecconomy, whilst wasting taxpayers monies on frivolous imperial projects!

Further, he seeks to justify his absolute abuse of the constitution, with his imaginary authority, to exceed it's control limits on his authority, and willingness to ignore all treaties and conventions enacted into law by the houses of congress!

Oh well, if we believe, what this man is saying, for the ends justify the means, then we've been had big time!

Impeachment is long overdue(so he can't issue presidential pardons for all his buddies who break the law at his direct or indirect behest) and jail his corrupt cronies at the same time!
Posted by heystoopid (691 comments )
Reply Link Flag
WOW
Now there is a typical anti-Bush rant...

All accusations
No supporting examples
Full of emotion.

Nice.
Posted by David Arbogast (1709 comments )
Link Flag
First, understand what you're talking about
The government is not listening to phone conversations that take place entirely within the United States. Each one of the calls monitored involves someone either calling from or calling to a foreign number (in addition to involving at least one suspected al Qaeda operative). It's long been accepted that the federal government has a wide latitude to conduct searches at the nation's borders, which is why passenger luggage, container ships and other things can be searched as they cross into the country without first getting a warrant.

The politicization of this issue has obscured the real data with fluff and partisan diatribe.
Posted by justmyopinion2 (1 comment )
Reply Link Flag
I suggest you take your own advice
Administration framing:

This is about protecting citizens. To call it off is to put us at risk.
Granting authority to wage war is tantamount to granting
unlimited power.

Dissenting opinion:

We all want to protect U.S. citizens. Carefully spying on Al Qaeda
communications is a good idea and probably something we've
been doing for a while now. The problem is that the executive
branch broke the law as it's written and then witheld the
program from full, standard, congressional oversight for over 4
years. Over-reaching, checks and balances, constitution, 4th
amendment. Those are the terms floating in our heads.
Posted by mgreere (332 comments )
Link Flag
RE: First, understand....
How do we know that this is the case? You're basing your
information entirely from the administration's press briefings.
We have no idea who they are actually wire tapping or spying
on... or what connotes a reason to be even be red flagged.

This is why we have judicial oversight. So that those in power
play by the rules. And we can sleep safer knowing that our
liberty is protected. Otherwise, all we can do is take their word
for it. Like you are doing. This was a secret policy, with only one
line of regulation, the FISA court.

Also, I keep hearing over and over that the need to ignore the
FISA court has to do with the need to act quickly. The FISA court
gives warrants out retroactively. As such, my opinion is that the
only reason to bypass the FISA court is that the administration
does not have the required evidence to be granted a warrant.

Also, remember this is a highly classified endeavor that was
never supposed to be leaked. The fact that it was leaked by
sources involved with the operation, leads one to surmise that
even the people doing the spying felt they were tramping on civil
liberties.
Posted by sternla (4 comments )
Link Flag
How do we know that?
First of all how do we know that the calls monitored were just those involving suspected terrorists?

If that was the case then it wouldn't have required going outside of FISA, due to the limited number and the 3 days you have to request a warrant.

If on the other hand all international calls were recorded - something that is much easier to do, and then datamined for those that might involve communications with terrorists, it makes a lot more sense that using FISA would have been impractical.

Whatever the case, FISA was specifically brought about because Nixon attempted to use war-time authority to spy on US citizens, albeit with both parties in the USA. Congress decided that spying on Americans without a warrant, even if we were at war, and even if there were valid grounds to eavesdrop, was illegal. FISA warrants are incredibly easy to obtain, but obviously if millions of phone calls were being monitored then the paperwork involved would have been impossible.

Finally various members of the administration and those inside the NSA tried to say that using FISA was too much trouble, effectively suggesting they were too lazy to fill out the forms because there were too many and took too much time.

This is the most lame-arsed excuse I've ever heard for breaking the law, saying it would take too much effort to obey it.

As for consequences, I believe there should be not very many. All that should happen is the program should be turned off, a record of everyone recorded turned over to a closed-session congressional hearing to verify the truth of the narrow-spectrum statement, and a verification to the President that in future he must abide by the law.
Posted by ajbright (447 comments )
Link Flag
I don't disagree but...
Surely it would have been better to pass legislation authorizing this specific type of activity than to invoke executive authority? The legal situation is at best ambiguous. We can't expect our intelligent officers to operative efficiently under a cloud of uncertainty. The fact that the story was tells us that at least some in the community felt uncomfortable with they were doing.
Posted by Chung Leong (111 comments )
Link Flag
First... Expectation of Privacy
&gt;&gt;&gt; as they cross into the country

Granted. The US Supreme Court has determined that people physically entering the US have (as a matter of law) a lesser expectation of privacy at border checkpoints, and thus can be searched.

But that's not what we're talking about with the NSA taps. We're talking about people on a phone conversation. And the Court has said there IS an expectation of privacy there. Not to mention little things like explicit federal laws in the area.

Now, if the wiretapping had happened ONLY on the foreign end of the call, outside the US, that's not subject to the same US legal limits. Case law has already established that.

It's not partisan to expect the Executive Branch, whose primary job is to enforce the law, to actually obey the law themselves.

Look at the laws. They're bright lines. No fuzzy gray areas. The law said "Thou Shalt Not..." and Bush did.

His motives or long-term goals are not the issue. The fact is he did things that the law says you cannot do. How is that partisan?
Posted by coranth (6 comments )
Link Flag
The law of the land...
Who is this? We are. The people. The people of the United States of America. We are the ones who make the laws. Our law says, The President has 15 days leway. Then he has to follow precedent. There are people telling you all, that George Bush is breaking the law of the United States Constitution. Like this guy:
The Bush administration is out of line in its reading of the law, said David Cole, a [b]Georgetown law professor [i]specializing[/i][/b] in constitutional law. And how about AL GORE. Ex Vice President. He pulled an investigation. And several others. These people know our law and our constitution. The constitution of the good ol USA. We cannot allow Bush to do this. He works for us. Not the other way around. When are you going to open your your eyes to learn that more power you hand the govt., The more freedom you will lose? The choice is everyones and it is especially yours. Our rights are being manipulated and taken one by one. And you want to sit by and let this happen? We had to fight to obtain freedom, and some people Choose to not be informed. So many in this country just do not understand what they are doing. There is no reason that Bush could not have gotten that supeona. So maybe it would take a few days. Big deal.

[Edited by: admin on Jan 25, 2006 11:59 AM]
Posted by Eskiegirl302 (82 comments )
Reply Link Flag
Not to disagree, but
Personally, I'm holding judgement until the situation and ALL relevent facts are evaluated by a process more relevent and competent than a chat room full of media-fed geeks...

BUT...
&lt;&lt;So maybe it would take a few days. Big deal&gt;&gt;
This IS a big deal. A phone call to initiate a terrorism strike takes 5 minutes, and a court order might very well have required probable cause... Even with the 15 day grace period, the NSA might not have been granted the order to eavesdrop simply based on a single person's affiliation with a terrorist organization.
Posted by William Squire (151 comments )
Link Flag
why focus on the Pres?
I doubt it has been the officials... come on.. sure they may not be perfect but keep it straight.......... dont turn this into a political ball game... there are plenty of people to point the finger at... this age of murpheys law explains it all.

those in the know.... know... but I doubt they are willing to admit it.. because they probably know all about he witness protection program....and the future of "their" economy
Posted by freq (121 comments )
Reply Link Flag
In the words of Harry S Truman
"the buck stops here!"
Posted by heystoopid (691 comments )
Link Flag
How hard is it to get a warrant?
As I understand it, it's extremelly easy to get one of these wiretapping warrants, and you can get them retoractively fr a certain period of time.

When it's that easy to get a warrant, why go to all the effort to justify spying on your own citizens without getting one?
Posted by Kelson (64 comments )
Reply Link Flag
Easy - if you actually have evidence
It's trivial to get a FISA warrant if you actually have any reason to get one, even retroactively. They denied around 4 over the last 4 years out of many thousands.

The reason they didn't ask for warrants is that they were trolling; monitoring people where they didn't have probable cause for a warrant. In fact, the #2 administration intelligence person (Gen. Hayden) who was interviewed yesterday kept claiming that "probable cause" wasn't needed for warrants under the 4th amendment, just that it not be "unreasonable" (and claiming everyone at the NSA was very well-versed in the 4th amendment), and if you read the 4th, it says specifically "probable cause" is needed for a warrant. I'm sure he knew this, but that's going to be the strategy - claim that it's "reasonable" and that the constitutional requirement is not relevant due to the theory (put forth by Bush, Scalia, and Alito) of the "unilateral executive".

See <a class="jive-link-external" href="http://www.salon.com/opinion/feature/2006/01/16/gore_spying/index.html" target="_newWindow">http://www.salon.com/opinion/feature/2006/01/16/gore_spying/index.html</a>
Posted by jesup (5 comments )
Link Flag
neocon Weekly Standard?
LOL, you mean the neocon news? Yep they have been so correctly so far.
The Weekly Standard was founded in September 1995 by William Kristol, the son of neoconservative intellectual Irving Kristol and a former aide to Dan Quayle when he was vice president. It's a magazine of ideas -- bold ideas, brilliant ideas and occasionally truly awful ideas.

Without a doubt, the most important idea yet advanced by the Standard came in the essay "Saddam Must Go," written by Kristol and Robert Kagan and published in November 1997. The idea was: Hey, let's invade Iraq, conquer Baghdad and overthrow Saddam Hussein for expelling American weapons inspectors.

Yep neocon talks about WMD in Iraq too. They just can't find it. Obviously, you don't understand the check and balance system. And no, not the way the Bush decides to check themselves for any wrongdoing.
Posted by vhac (68 comments )
Reply Link Flag
No? Then how about the NYTimes ???
How about a little corroberating evidence from one of the U.S.'s most liberal media outlets.. the N.Y. Times:

"Two defectors from Iraqi intelligence said Wednesday that they had worked for several years at a secret Iraqi government camp that had trained Islamic terrorists in rotations of five or six months since 1995.

They said the training in the camp, south of Baghdad, was aimed at carrying out attacks against neighboring countries and possibly Europe and the US."

"These Islamic radicals were a scruffy lot. They needed a lot of training, especially physical training. But from speaking with them it was clear they came from a variety of countries, including Saudi Arabia, Yemen, Algeria, Egypt and Morocco. We were training these people to attack installations important to the United States. The Gulf War never ended for Saddam Hussein. He is at war with the United States. We were repeatedly told this."

Cold, hard, factual evidence always trumps emotional opinion.
Posted by David Arbogast (1709 comments )
Link Flag
Re: Yes... but....
&gt; This isn't a ***-for-tat game of law-enforcement.
&gt; When organized terrorists kill Americans
&gt; by the thousands, America responded with a
&gt; WAR ON TERROR, not by prosecuting the one
&gt; or two terrorists who committed the crime and
&gt; then walk away. You seem to view terrorism as a
&gt; crime problem when in fact, tens of thousands
&gt; of militants are planning numerous attacks
&gt; against you and your family because they
&gt; disagree with your way of life.

Maybe. Perhaps even probably. But in the US we have laws, and the laws say "beyond a reasonable doubt". The laws also talk about "innocent until proven guitly" and "due process".

Terrorism, in the abstract, is a political problem. Terrorist actions are a criminal problem.

But last I checked, even where planned future action is suspected, that is grounds for defensive measures, not offensive unrestrained lashing back at anyone who might be similar.

&gt; Would you give him a lawyer and a fair trial
&gt; too? I'm guessing you would...

Yes. And that's what the law says. We're not talking ideology here, we're talking law.

If the law says "warrantless wiretaps are not allowed" then that is the law. If the law says "you cannot attack people until you have proof that they are dangerous" that is the law.

If you don't like the law, change it. That is what politics are for. But, especially if you are the executive branch, you shouldn't just ignore the law because you don't like it.

That is criminal. It's sad that the current administration has chosen to use criminal and illegal means to accomplish what could be done lawfully.
Posted by coranth (6 comments )
Reply Link Flag
Impeach Cheney first
Start with the real head guy.
Posted by JackfromBerkeley (136 comments )
Reply Link Flag
Freedom is at stake, Believe it!
First and foremost, this kind of debate is what makes this country great. The freedom to comment, the freedom to speak, and the freedom from a government that overstates its position and takes this freedom way. Less government intrusion, NOT more.
Posted by Gpruitt54 (4 comments )
Reply Link Flag
The World Invisioned
Great Day to you, I am writing in a very optimistic and hopeful frame of mind today because of the wonderful news that many American's and Leaders in Congress, and Ex-Presidents, and a growing number
of other Americans are objecting to what is going on with the TOP LEADERS of America.

I am so excited to know that so many people are proving that the POWER of GOODNESS is strong... Americans really are about doing our Best and extending ourselves to support our brothers, sisters, who are our neighbors, and our friends across the globe. You know how we extend our help when it is needed.

What is so exciting now is that Americans know that the message our TOP LEADERS are sending into the WORLD by their WORD and in ACTION is being exposed to be OUT OF WACK with the desires of the Majority of the American people. RECENT POLES SHOWS AMERICANS DO NOT SUPPORT THE WAR OR THE PRESIDENT.

I am excited we Americans are peaceful people and that we are easy to accept differences in each other. We expect to be able to express ourselves. To share in each others company to celebrate life. I am hoping that when this investigation into the legality of eavesdropping and wire tapping is complete that this leads to Impeachment of all the TOP LEADERS for this unlawful and gross Infringement on citizens rights and that a new Election will be held. I am hoping AMERICANS choose wisely someone who is unique in there resolve to serve the AMERICAN people and whom will honor the civil liberties created by Our Fore Fathers and defended with all the energy each American has within in him or her ever since. However Fighting in this WAR killing hundreds of thousands of men women and children based on 287 misleading statements made by the same TOP LEADERS will no longer be accepted by the American people. We want our husbands and wives and children alive, we want our neighbors and their children alive, we want the fathers, mothers and children of the Iraq'i people to be alive.

What does America have to gain by this Iraq'i envolvement?

I know what we have gained so far...is a Huge Deficit, and whole lot of potential for future WAR...

The World is in need of peace and hundreds of years of WARING have not brought PEACE so lets rethink the PEACE process. What does it take to have PEACE? What steps are neccessary for us to take to have peace.

The First thing I assure you that we need to have PEACE is a whole lot of forgiveness. The WORLD is bleading, lets do more than put a band aid on it.

I am hoping that if enough of us speak to our leaders about peace that they will consider moving towards Peaceful Action!

Best Regards, Jo-beth
Posted by jo-beth712 (1 comment )
Reply Link Flag
Power out of balance
I would say that this president finds himself in a position that he does not like. That is, the position where his authoritarian nature is restrained by laws, the US Constitution, and the American peoples built in resistance to authoritarianism. We have seen an increasing move toward instilling more and more fear in the minds of the American people.

In his first State of the Union speech, the president intentionally stirred up a hornets nest by naming targets of US military power (namely the axes of evil). With the exclusion of Iraq. Two of these countries have been involved in nuclear activities. It could be argued that the presidents comments set the stage where a nation, for its own protection, seeks to develop a deterrent to the mightiest military power on Earth.

Now we have a self-fulfilling revelation. You create the circumstance, you use the circumstance instill fear in the minds of the populous, and finally, you eliminate legal and Constitutional constraints, and move into a more authoritarian government. This is what this president is doing.

This country will rule the day if it allows its founding documents and ideas to be trampled under foot. The congress did not do its job by signing sweeping powers to the president. The president went too far, and some things, is still going too far.
Posted by Gpruitt54 (4 comments )
Reply Link Flag
 

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