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One of the reasons why the NSA program is not subsidiary to the FISA act is so that NO ONE knows who has been surveilled.

FISA warrants for electronic surveillance have that property too. Actually, so do domestic applcations of electronic surveillance - no knowledge unless you are arrensted and put on trial.

At that point, the contents of FISA "searches" (to the extent the contents represent national security interests) remain sealed from the defendant.

How can your account be suspended...and yet you are participating on this thread?

I am? I was? Oh my, must be very very very naughty.

See....I said earlier, from Kyl's questioning...and Sessions...that perhaps this may end up with WIDER powers for Bush....as far a domestic taps if known al-queda members are talking with each other.

I said that back in December. The administration should have no fear of, and no objection to hearings on this issue.

I think that telling a denied target is in the statute.

I'm looking now. But think about it, if that is in there, it is a stupid requirement.

Targets of physical searches (not DENIED targets, but actual ones) have to be apprised that their premises were tossed.

I think the Bush Administration doesn't trust the FISA court much.

What Gonzales just said sure indicates that.

AFAIK, there are ZERO leaks attributed to a FISA court, or to any court that has had opportunity to review FISA warrants. If the courts aren't leakers, Gonzales should not suggest in public that they would be, given the opportunity.

Why is your account suspended?

Because I have been very very naughty.

I heard Gonzales say that this NSA domestic to foreign calls surveillance was not claimed under the FISA law, not meant to override the FISA law.. but the President's authority claimed was by the authorization given by Congress to fight Al Queda.

The argument that I find lame is the one that aims to show thatteh surveillance in question is within the boundaries expressed in FISA, because FISA says "or other authorization," and the AUMF is that "other authorization."

Grassley, wisely brings up "sleeper cells." And they aren't sleeping.

Which raises a question about the wisdom of limiting the warrantless surveillance to international calls.

I can't believe Gonzales is saying the FISA judges would leak. That is, if approval not granted, judge will leak (notify the targets that there was interest) - but if approval is granted, judge won't leak.

I agree with your take on all three...
BUT, wouldn't you consider the FIRST one the most important anyway?

For prosecution of war against terror, it's the only argument that "lasts."

She said at the time there was no law for it so then the Constitution Trumps and since there wasn't an AUMF Gorelick broke the law.

Basically. And extending that history to today, Congress might change the law to comport with terrorist surveillance.

I thought Gonzales was not making the argument under FISA at all!

The argument is in the Dec. 22 letter, it's in the whitepaper, and Gonzales made it orally today.

Feinstein covering for Gorelick suggesting there was no law at that time?

FISA had no physical search provision, therefore there was no legal mechanism to get a warrant for physical entry. At the time, FISA did have a provision for an electronic surveillance warrant, and one of those -WAS- obtained.

Since then, FISA has been extended, and now has facilities for making physical entry under a warrant, and for making physical entry without a warrant.

FISA Statutes

Bringing up the Ames/Search history is also a weak argument. There was a FISA surveillance law, and Clinton -DID- get warrants for the electronic surveaillance.

I guess they are using the authority under AUMF as a separate justification than the one he has under the Constitution.

The administration has basically raised three arguments. The only one that holds water under intense pressure is the inherent authority argument, countered with the 4th amendment.

The "legal under FISA" argument, which Gonzales is making, stinks to high heaven. It is a poor argument, and I am surprized it is even made.

THe "legal under AUMF" argument is fair, but has a number of foraward-looking weaknesses that I have pointed out above.

How do we get this to the SC.

That process always starts with a lawsuit.

Gonzales says that the dialog with Congress, about amending the law to admit the surveillance in question, didn't happen until 2004.

Most reports are phrased in such a way to lead the reader to think that dialog happened in 2001.

I have to think thorough this point, but Gonzales basically just said that he can't put a warrant request together, regaredless of the time allowed, because the surveillance doesn't satisfy the requirements for obtaining a warrant.

Pss't - Gonzales -- amend FISA by putting terrorist organizations, recited in 1801(a)(4), as one of the entities that does not require a warrant under 50 USC 1802(a).

1802 (a) (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) [insert "(4)" here] of this title

---

1801 As used in this subchapter:
(a) "Foreign power" means--
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

I think use of AUMF as justification for the terrorist surveillance activity (and specifically citing AUMF as expounded on in the Hamdi case) opens this can of worms. Gonzales invited this line of counter attack.

If the evidence is there we WILL prosecute (NYT and leakers). That sounds like no holding back, if the facts admit for a prosecution.

The article is published - not much investigation required as to wehther its contents violate 18 USC 798.

§ 798. Disclosure of classified information

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information-- ...

(3) concerning the communication intelligence activities of the United States or any foreign government; ...

Shall be fined under this title or imprisoned not more than ten years, or both.

(b) As used in subsection (a) of this section--
The term "classified information" means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution; ...
The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients; ...

(d)
(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law--
(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and
(B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.
(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).

If the NYT is in violation, bye-bye printing presses.