Assistant Attorney General's Letters to Senate Intelligence Committee Regarding NSA Spying Program

Rockefeller does not keep his mouth shut. This traitor warns foriegn countries in advance of the US intent to go to war in Iraq...I bet he himself was wiretapped by the NSA! And we all know he's being investigated by the DOJ with Durbin...Rember that famous memo of '03? When can we get rid of this asshole?? He's a national security threat to this nation.

This was a great post. And I am glad that we have all this info in one place.

But I am confused about much of the cases . For instance-- Hamdi case is a case concerning whether or not he should be considered a US citizen because he was born here, they (SCOTUS )decided he was a US citizen and ruled that he should be given due process under the law, and not considered an "Enemy Combatant", correct? Maybe I am wrong. But then if this assertion is correct, how does the AG use this as any type of support?

There are two things to read to help answer your questions:

1) http://freerepublic.com/focus/f-news/1544183/posts?page=26#26

2) AG's letter in post #208:
http://freerepublic.com/focus/f-news/1545567/posts?page=208#208

For instance-- Hamdi case is a case concerning whether or not he should be considered a US citizen because he was born here, they (SCOTUS) decided he was a US citizen and ruled that he should be given due process under the law, and not considered an "Enemy Combatant", correct?

There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code, ¶ ;153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that "captured rebels" would be treated "as prisoners of war"). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.
In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

This case gave a limited access then, to "due process" in an Article III court - a process wehreby the detainee could challenge being assigned the status of "enemy combatant."

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.

At any rate, the Hamdi case is being cited by the DoJ (in the NSA case) for the proposition that the AUMF (authorization to use military force, granted by Congress) also gives authority to perform warrantless surveillance on the communications at issue. Just at the Court found that the AUMF authorized holding Hamdi as a possible enemy combatant.

Wait...exactly WHAT was the national security leak?

It was not that NSA was wiretapping terrorist suspects' calls to the USA (and vice versa.) We all hoped that was being done and everyone (including trerrorists) knew that those calls were being monitored. So the NYTs did NOT leak that those calls were being monitored.

All the NYTs revealed was that President Bush had allowed for the calls to be monitored without complying with either Title III or FISA court orders. How does the mere fact that NSA is following a new procedure to do what public law allowed NSA to do anyway impact national security?

All the terrorists coulda learned from NYTs was that there was a new, third, procedure for NSA to use to monitor terrorist calls to and from USA....not that their calls were being monitored in the first place. Terrorists knew their calls to/from USA were being monitored before NYTs article, and they know it now.

While leak should definitely be investigated it should be investigated because the leak breaks the law and impacts law enforcement integrity. But national security concerns are bogus.

As for the leak investigation, I can only guess that the White House didn't see the NYTs story as impacting national security. They didn't start the "national security investigation" when they learned of the leak. The NYTs held off publishing at request of White House for over one year. (If they really wanted to hurt President Bush, they woulda published pre-election. The NYTs had the story.)

So the White House and AG knew about the "national security leak" at least 14 months ago. Why would the govt wait until the NYTs publishes the story to begin this "important" criminal investigation? And why let the leaker, who apparently has a high security clearance, remain in govt for an extra 14 months?

Domestic electronic surveillance is not unlawful when done pursuant to Court Order, FISA (a different statutory framework for FOREIGN intel), or consent by one party. So, the question is not whether Pres can authorize surveillance, but whether he can do do without Ct order or per a different, non-Title III statute, eg FISA.

President's Constitutional authority here would be found under Presidents War Powers, but the real issue is HOW MUCH authority the President can grant to himself in the name of War Powers (without Congresses or a Courts approval.)

There is a very strong doctrinal basis built in the US Constitution of the separation of powers. Founders didn't like the idea of the British King George doing whatever he thought he had the power to do.

As for the letter, I havent had time to look at it in detail. I know Moschella is brilliant and believe he is one of the political appointees who had a distinguished career on Capitol Hill. I don't believe he was ever a state or local prosecutor, however, or practiced criminal law at all. Don't for a minute believe he has read those cases though, that is for more recent law grads at a much lower pay rate. Regardless, the DOJ is obviously preparing briefs on the NSA issue and a federal court will eventually decide.

(I posted this in a different thread, but do not post often...)

Marking for later reference. Good stuff.