WIRETAPS WIN FOR W

New York Post ^ | Jan. 19, 2006 | Dick Morris

[conservativecorner]

DEMOCRATS who criticize President Bush for using warrantless wiretaps to elicit information about potential terrorist activity should be aware that the American people strongly support his decision to do so. Believe it or not, they trust their own government and the president they elected to use the information wisely and for our own protection. The Fox News poll of Jan. 11 asked voters whether the president "should have the power to authorize the National Security Agency to monitor electronic communications of suspected terrorists without getting warrants, even if one end of the communication is in the United States?" By 58 percent to 36 percent, the answer was "yes." Indeed, 42 percent of the nation's Democrats agreed that the president should have this power.

The poll also tells us that Americans attribute the absence of terrorist attacks over the past 41/2 years to our government's efforts to protect us. Asked if the fact that there has been no major terror attack since 9/11 was due to "security measures working" or to "no attack having been planned" by terrorists, Americans credited government efforts by 46 percent (to 22 percent for the terrorists, with another 20 percent saying both factors contributed).

Other results: Some 61 percent — including a majority of the Democrats — said they'd be willing to surrender some of their own privacy to help prevent terror attacks. Respondents support renewal of the Patriot Act by 57 percent to 31 percent. (Even Democrats only oppose renewal by 40-47.)

[Eva]

These are war time conditions, communication with the enemy warrants suspicion. If US citizens are going to try to talk to Al Qaeda members, they expect to be wiretapped. (They got the numbers from computers and cell phones that were captured in Afghanistan)

Plus the Democrats are going to be pretty sorry that they sided with the enemy if it ever becomes widely known that one of the persons who brought the lawsuit is none other than the grand daughter of Ethel Rosenberg.

[Purrcival]

I think one of the problems with earlier polls about this issue was that the MSM and the Dems kept billing it as "Bush's Domestic Spying Policy", making it sound like he could have easily gotten warrants from the FISA court, even 72 hours after the fact -- but didn't do it because he is "power-hungry". They made it sound like the NSA was listening to Aunt Tillie swapping cookie recipes with her next-door neighbor. Once the public started to realize that the surveillance was very narrowly targeted and was focusing on suspected terrorists, they realized that Bush was doing exactly what most of them wanted him to do.

Another so-called Bush "scandal" fizzles.

[Non-Sequitur]

All it would take is one wiretap that the Democrats can twist around and make looks suspicious and these numbers could reverse.

[Cboldt]

This debate about FISA is bogus because FISA is not a comprehensive court. It is a specialized court with a very narrow and limited scope.

You're correct that FISA's competence is limited. It's scope is limited to matters that deal with foreign intelligence information.

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The Chief Justice of the United States shall publicly designate 11 district court judges from seven of the United States judicial circuits of whom no fewer than 3 shall reside within 20 miles of the District of Columbia who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter.

50 USC 1803(a)

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The Foreign Intelligence Surveillance Court shall have jurisdiction to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States ...

50 USC 1822(c)

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Notwithstanding any other provision of law, the Attorney General or a designated attorney for the Government may make an application for an order or an extension of an order authorizing or approving the installation and use of a pen register or trap and trace device for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities ...

Each application under this section shall be in writing under oath or affirmation to--
(1) a judge of the court established by section 1803 (a) of this title; or
(2) a United States Magistrate Judge under chapter 43 of title 28 who is publicly designated by the Chief Justice of the United States to have the power to hear applications for and grant orders approving the installation and use of a pen register or trap and trace device on behalf of a judge of that court.

50 USC 1842

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The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities ...

Each application under this section--
(1) shall be made to--
(A) a judge of the court established by section 1803 (a) of this title; or
(B) a United States Magistrate Judge under chapter 43 of title 28, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court ...

50 USC 1861

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The subject of warrantless electronic surveillance for foreign intelligence purposes is in the scope of jurisdictional grant. Can you clarify your assertion, "This debate about FISA is bogus because FISA is not a comprehensive court"? What are the proper parameters of discussion to take it out of the realm of bogus?

Many legal activities can and always have legally and constitutionally bypassed FISA.

Indeed. Driving, becoming incorporated, obtaining patents and trademarks, entering into contracts, getting married, having babies, obtaining health care ... gosh, I figure most every legal activity and even all sorts of criminal activity that is other than the items listed in the FISA statute can be done without reference to FISA. Likewise most actions by the President are done without reference to FISA. But since the discussion in this thread is generally about warrantless electronic surveillance for anti-terrorism purposes, FISA reasonably seems to be a natural part of the discussion.

But I am quite curious, in all seriousness, to read your proposal for discussion, to take it in a direction that isn't bogus.

[Polybius]

4th Amendment: "Unreasonable search and seizure" .............. What is "unreasonable" about searching phone calls of Al Kaeda? ........... Define "unreasonable".

Unreasonable: An adjective found in the Fourth Amendment that Democrats define as anything and everything that can be used in any context, fair or unfair, or used in conjunction with any lie, innuendo or slander to attack President George W. Bush.

[Purrcival]

I don't think he's saying that just 'cuz the Dims did it, it's automatically OK. He's simply pointing out the fact that there is selective outrage in the MSM. If Clinton did it, he gets a pass. But if Bush does anything even remotely similar, Katie, bar the door.

[jammer]

The 4th Amendment says it--"...no warrant shall issue, but upon probable cause..." The warrant guarantees, to the extent possible, that the search and seizure is reasonable.

Sure, the Supreme Court ruled those things you mentioned as Constitutional, but that doesn't make it so, as you state about one case and as we both would state about many others.

Parenthetically, I think we both would agree that a SC ruling on Constitutionality has the force of law, but is now meaningless with respect to whether a law truly conforms to the Constitution.

[been_lurking]

the word 'wiretap' was generic and, admittedly, loose.

The word "wiretap" was yours, not mine.

I understand the meaning of the word. That's why I called you on your gross misinterpretation of the case.

[DugwayDuke]

By definition, if you call a 'suspected terrorist' or a 'suspected terrorists' calls you, you are a 'suspected terrorists'.

But that's not the real question which is - during time of war, must the executive branch get court approval before acting to protect the country? The answer is no, the legislative branch has already granted that authority IAW the Constitution and the judiciary has no authority to prevent such actions.

[Sandy]

there is no '"agent of a foreign power" exception' for warrantless surveillance under FISA.

Yes there is. Section 1804 (plus the other 72 hour emergency provisions elsewhere in the act, but 1804 is the primary section).

1802 provides for warrantless surveillance of a "foreign power" per 1801(a)(1) - (3)

Actually, 1802 provides for surveillance without a court order. 1804 provides for surveillance with a court order. "Court order", not "warrant". There's a significant difference. Look at FISA again and notice that it provides for nothing but warrantless searches. The word "warrant" isn't in there anywhere, other than in some definitions where it says things like "and a warrant would be required for law enforcement purposes". FISA court orders are specifically not warrants. They're fishing permits, which is exactly what the 4th Amendment's Warrant Clause forbids.

[Doe Eyes]

What is "unreasonable"

One could just as easily break the 2nd Amendment down to "Militia".

[takenoprisoner]

"Other results: Some 61 percent — including a majority of the Democrats — said they'd be willing to surrender some of their own privacy to help prevent terror attacks"

For the majority of Americans to be willing to forfeit their own liberty (liberty others died for) for a false sense of security is a national disgrace.

America has much for which to be ashamed if these polls are even remotely correct.

[Cboldt]

there is no '"agent of a foreign power" exception' for warrantless surveillance under FISA.

Yes there is. Section 1804 (plus the other 72 hour emergency provisions elsewhere in the act, but 1804 is the primary section)

Looking ahead to your comment that "warrant" does not equal "court order," I note that section 1804 describes the requirements for an application for a court order. Section 1804 does not describe the circumstances where a court order is not "required." I put that in quotes to differentiate between FISA "requirements" and Constitutional "requirements."

Actually, 1802 provides for surveillance without a court order. 1804 provides for surveillance with a court order. "Court order", not "warrant". There's a significant difference.

I think the difference is semantic. "Court order" being a generic term and all. Some of the requirements for an application under 1804 are:

• the identity, if known, or a description of the target of the electronic surveillance
• a statement of the facts and circumstances relied upon by the applicant to justify his belief that the target of the electronic surveillance is a foreign power or an agent of a foreign power
• a statement of the facts and circumstances relied upon by the applicant to justify his belief that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power
• a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance
• a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or [officials designated by the President, and subject to advice & consent of the Senate for their office] that:
  • that the certifying official deems the information sought to be foreign intelligence information
  • that a significant purpose of the surveillance is to obtain foreign intelligence information [Note, not "primary purpose"]
  • that such information cannot reasonably be obtained by normal investigative techniques
  • that designates the type of foreign intelligence information being sought according to the categories described in section 1801
• a statement of the period of time for which the electronic surveillance is required to be maintained

Likewise, Title III surveillance (for criminal purposes, as opposed to foreign intelligence purposes of FISA) is conducted under what the statutes refer to as "court orders" too. See 18 USC 2516 and 18 USC 2518.

At any rate, I have no objection, if it suits your fancy, to substitute the term "without a court order" for "warrantless." And, for what it's worth, evidence properly obtained under 18 USC 2510 et seq is within the boundary of 4th amendment protection.

[Cboldt]

For the majority of Americans to be willing to forfeit their own liberty (liberty others died for) for a false sense of security is a national disgrace.

The question is suitably vague that the general result doesn't surprize or offend me. What I did find interesting was that self-identified Republicans are more willing to give up personal freedom than self-identified Democrats.

Fox News (Opinion Dynamics) Questions of January 11:

30. Do you think the president should or should not have the power to authorize the National Security Agency (NSA) to monitor electronic communications of suspected terrorists without getting warrants, even if one end of the communication is in the United States?
58 should - 36 should not - 6 not sure

31. In an effort to identify terrorist activity, do you think the president should or should not have the power to authorize the National Security Agency (NSA) to do computer searches of large numbers of international phone calls comings in and out of the United States without getting warrants?
60 should - 34 should not - 7 not sure

SAMPLE: 900 registered voters in the U.S., conducted January 10-11
38 democrat - 33 republican - 22 independent - 4 other - 2 don't know

http://www.foxnews.com/story/0,2933,181462,00.html
http://www.foxnews.com/projects/pdf/poll_011206.pdf <- Raw Poll

This poll has lots of interesting questions, generally favoring the DEMs point of view and suggesting that the majority of people would prefer DEMs in power. In that light, note the oversampling of DEMs and the resulting majority in questions 30 and 31, just the same. To question 28, "Would you be willing to give up some of your personal freedom in order to reduce the treat of terrorism?" REPs are more willing (at 74%) than DEMs (at 53%).

[hinckley buzzard]

What say you if military censors went though letters from your loved ones serving in Iraq and blacked out passages that they didn't think you needed to read?

[hinckley buzzard]

outside the framework of then-existing FISA law,

In 2002 a federal district court ruled that FISA court warrants were one way to secure wiretaps but not the only way nor an exclusively required way. Do you think you know more about it than the federal courts? Why?

Do you comprehend the difference between domestic law enforcement and intelligence gathering under wartime conditions? Why not?

[spintreebob]

1) I'm curious how "agent of a foreign power" is stretched... or shrunk.'

At the ANSWR-NION meetings I attended in early 2002 the ANSWR-NION leaders clearly stated that their money and agenda came from Europe and the agendas of others in the meeting that did not consistent with the European agenda were unacceptable.

That was stated very bluntly to the Pakistani immigrants at one meeting I attended. Those Pakistannis were very pro-American capitalism and pro-war back in the home country. They just wanted the INS/ICE to get off their backs so they could make some good capitalist money.

2) I watched "Enemy of the State" with Will Smith last night. Excellent libertarian movie. Interesting how both Will Smith's wife and the ex-NSA operative were quite convinced that the NSA has been spying on Americians for both national security and political purposes for "over 20 years" .... from when the movie was filmed during the Clinton years. The movie specifically used the buzz words that were used in the libertarian opposition to the Janet Reno version of the "Patriot Act" which was 95% identical to the Bush version.

[spintreebob]

4th "unreasonable". 2nd "militia". All: "persons" "citizens" "native born citizens" "rights" "privileges" "powers".

I suggest that the authors of the constitution carefully chose the words they used and had specific meanings for those words.

1) What were those specific meanings in 1789?
2) Which, if any, should be allowed to change in meaning?

I submit that what search & seizure was reasonable in 1789
is not the same as in 2006 due to technology.

Bush might argue what is reasonable is not the same due to 911. I would disagree. As we all know, the terrorist threat existed in the 1st WTC bombing, and in many other incidents that led up to 911. I disagree that it is reasonable to say that "911 changed everything". The only thing it changed was the opportunity of a spineless politician to nuance his positions.

[spintreebob]

re: forfeit their own liberty (liberty others died for) for a false sense of security

Excellent comment. Just like the argument for "gun control" the argument for additional collection of terrorist data might not be "effective" or "pragmatic" which might defeat the argument of sacrificing a little bit of freedom for safety/pragmatism/reality.

Consider 911. Where did the terrorists succeed? Where did they fail? Where did we succeed and fail?

The passengers in 3 planes trusted the Navy, AirForce, CoastGuard, NSA, CIA, FBI, INS, FAA and all government agencies to be their mommy and daddy and protect them.

The passengers in 1 plane over Pennsylvania took direct action in precisely the meaning of "militia" as that word is used in both the body of the constitution, and in the 2d amendment to it.

In a free country, the government must inherently realize that it cannot be everywhere and protect everyone. The government and the people who elect it must realize that it is up to us to protect that freedom.

[NotJustAnotherPrettyFace]

Ping for later reference.