Appeals Court Rules NSA Program to Continue:

[kinggovernor]

Third, I keep hearing, “Why not FISA?” “Why didn’t the President get orders from the FISA court approving these NSA intercepts of al Qaeda communications?”

We have to remember that we’re talking about a wartime foreign intelligence program. It is an “early warning system” with only one purpose: To detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is imperative for national security that we can detect RELIABLY, IMMEDIATELY, and WITHOUT DELAY whenever communications associated with al Qaeda enter or leave the United States. That may be the only way to alert us to the presence of an al Qaeda agent in our country and to the existence of an unfolding plot.

Consistent with the wartime intelligence nature of this program, the optimal way to achieve the necessary speed and agility is to leave the decisions about particular intercepts to the judgment of professional intelligence officers, based on the best available intelligence information. They can make that call quickly. If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of DELAY, and there would be critical holes in our early warning system.

Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.

We all agree that there should be appropriate checks and balances on our branches of government. The FISA process makes perfect sense in almost all cases of foreign intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the War on Terror, and one that we are using to its fullest and will continue to use against al Qaeda and other foreign threats. But as the President has explained, the terrorist surveillance program operated by the NSA requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack. And we cannot afford to fail.

***

Finally, let me explain why the NSA’s terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures.

The Fourth Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant. There are also searches at the border or when you’ve been pulled over at a checkpoint designed to identify folks driving while under the influence. Those searches do not violate the Fourth Amendment because they involve “special needs” beyond routine law enforcement. The Supreme Court has repeatedly held that these circumstances make such a search reasonable even without a warrant.

The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this “special needs” category. This is by no means a novel conclusion. The Justice Department during the Clinton Administration testified in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment.

The key question, then, under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. This requires balancing privacy with the government’s interests – and ensuring that we maintain appropriate safeguards. We’ve done that here.

No one takes lightly the concerns that have been raised about the interception of communications inside the United States. But this terrorist surveillance program involves intercepting the international communications of persons reasonably believed to be members or agents of al Qaeda or affiliated terrorist organizations. This surveillance is narrowly focused and fully consistent with the traditional forms of enemy surveillance found to be necessary in all previous armed conflicts. The authorities are reviewed approximately every 45 days to ensure that the al Qaeda threat to the national security of this nation continues to exist. Moreover, the standard applied − “reasonable basis to believe” − is essentially the same as the traditional Fourth Amendment probable cause standard. As the Supreme Court has stated, “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.”

If we conduct this reasonable surveillance – while taking special care to preserve civil liberties as we have – we can all continue to enjoy our rights and freedoms for generations to come.

***

Prepared Remarks for Attorney General Alberto R. Gonzales at the Georgetown University Law Center (01-24-06)

If we are going to demand that the executive branch protects us from attacks then we have to give them the proper tools to do so. You can't have it both ways where you hamstring the executive branch and then say they failed to prevent an attack.

[Kytro]

We have to remember that we’re talking about a wartime foreign intelligence program. It is an “early warning system” with only one purpose: To detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is imperative for national security that we can detect RELIABLY, IMMEDIATELY, and WITHOUT DELAY whenever communications associated with al Qaeda enter or leave the United States. That may be the only way to alert us to the presence of an al Qaeda agent in our country and to the existence of an unfolding plot.

First thing which sets off alarm bells is the use of the phrase "wartime". If the war on terror is considered to be like a real war, then all time is "wartime".

You cannot conduct a war agsint terror, or even terrorism, you can can only enact police or military action against terrorists. So calling it a "war" that needs special "powers" is decpetive.

It is basically saying if we tack "terrorists" onto it, we should be able to do anything we want.

Consistent with the wartime intelligence nature of this program, the optimal way to achieve the necessary speed and agility is to leave the decisions about particular intercepts to the judgment of professional intelligence officers, based on the best available intelligence information. They can make that call quickly. If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of DELAY, and there would be critical holes in our early warning system.

Having invoked "wartime", the theme is continued as if fact to build on. There is no mention here that there is no delay to undertaking the action other than ensuring you have a reason to undertake the action in the first place.

Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

None of the above should be a problem if there is genuine concern. If it is a problem, why is not being addressed by lawmakers?

We all agree that there should be appropriate checks and balances on our branches of government. The FISA process makes perfect sense in almost all cases of foreign intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the War on Terror, and one that we are using to its fullest and will continue to use against al Qaeda and other foreign threats. But as the President has explained, the terrorist surveillance program operated by the NSA requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack. And we cannot afford to fail.

This basically says "we need checks and balances, but not really".

Basically the premise is false to begin with

[motivez]

They haven't gone to Congress and asked for anything else. They simply went around FISA instead of working within our legal system and the way the government is set up, which is illegal and an impeachable offense.

Most of his early arguement revolves around a false dillemma, ie: it's going to slow us down and we wont be able to catch the terrorists because we're too busy with paperwork!

Hogwash. They can do the wiretap first, and do the paperwork later. If they need more people to do the paperwork, rather than violate the law.. they can hire more people.

His 4th Amendment reasoning is hogwash, and nearly every respected legal scholar has contradicted their flawed reasoning and said that it's an obviously illegal program. Including the American Bar Assosciation.

[Scrum]

Originally Posted by kinggovernor

yes. the constitution is not a suicide pact

That totally goes against the things this country was founded on.

[Scrum]

Originally Posted by motivez

They haven't gone to Congress and asked for anything else. They simply went around FISA instead of working within our legal system and the way the government is set up, which is illegal and an impeachable offense.

Most of his early arguement revolves around a false dillemma, ie: it's going to slow us down and we wont be able to catch the terrorists because we're too busy with paperwork!

Hogwash. They can do the wiretap first, and do the paperwork later. If they need more people to do the paperwork, rather than violate the law.. they can hire more people.

His 4th Amendment reasoning is hogwash, and nearly every respected legal scholar has contradicted their flawed reasoning and said that it's an obviously illegal program. Including the American Bar Assosciation.

[kinggovernor]

Originally Posted by Scrumtralecent

That totally goes against the things this country was founded on.

not at all. During times of war executive powers have expanded but now and in the past.

[Scrum]

Originally Posted by kinggovernor

not at all. During times of war executive powers have expanded but now and in the past.

We haven't declared war. You can't declare war on an idea. Even with a declaration of war, and even though we did things wrong in the past too, it doesn't make it right now.

This country was not founded to be a society that starts giving up freedom for any reason.
It's the freedoms that make this counrty and we don't hand them away.

[WickedLou9]

Originally Posted by kinggovernor

not at all. During times of war executive powers have expanded but now and in the past.

I don't believe that we are at war. If the war on terrorism is a true war, then our country has been at war without a break for the past 300 years. There was the war on terror, the war on drugs, the war on comunism, I think we had a war on alcohol somewhere in there... I don't believe that there has been a time where some thing or another has not been a problem for the US and our elected officials have declared a figurative war on it.

We are not at war right now. Is terrorism a problem? Sure it is. Do we have to do something about it? Of course we do. BUt we are no more at war now then we have been during any of the "war's" that we have declared on ideas and concepts at so many times in the past. Call it a struggle or a conflict or whatever. But when you expand presidential powers and take away peoples freedoms.. The very freedoms that makes our country great. The very freedoms that separate us from places like Iran... and you base it on some loose definition of "war".. You have turned this country over to the same people who want to destroy it. maybe not all at once. but bit by bit, if we continue down this path we are losing.

[kinggovernor]

I am really bored of debating this around and around, if you don't think we are a country at war then what are we doing in afghanistan and iraq? We stopped declaring war on countries a long time ago.

[WickedLou9]

Originally Posted by kinggovernor

I am really bored of debating this around and around, if you don't think we are a country at war then what are we doing in afghanistan and iraq? We stopped declaring war on countries a long time ago.

We have troops all over the world. Are we at war with every country we have troops in? Are we at war with Germany? We have troops there. Are we at war with South Korea? We have troops there.

[Scrum]

Originally Posted by kinggovernor

I am really bored of debating this around and around, if you don't think we are a country at war then what are we doing in afghanistan and iraq? We stopped declaring war on countries a long time ago.

It's not a debate and we didn't stop declaring war. We just haven't done it in a long time. If we would just go back to our origional plan of not deploying troops without a formal declaration of war, everything would be fine.

[WickedLou9]

It all comes down to the fact that you can't expand presidential authoroity because the president himself says we are at war. If you give the president the ability to both declare war and to expand his own powers during a time of war.. you have created an elected king. Exactly what the founding fathers wanted to avoid. If presidential powers are to be expanded during war... congress must declare war.. and that war must have a clear and achieveable goal.. and a duration that can be clearly measured. A beginning and an end. A beginning to mark the period of expanded presidential powers and an end to mark the time when those special powers have been recinded.
To allow the president to delcare war on some idea, expand his own powers and take away constitutionaly protected rights... and have that war continue ad ifinitum...
I can't imagine how any American citizen would NOT have a problem with this.

[Scrum]

Originally Posted by WickedLou9

It all comes down to the fact that you can't expand presidential authoroity because the president himself says we are at war. If you give the president the ability to both declare war and to expand his own powers during a time of war.. you have created an elected king. Exactly what the founding fathers wanted to avoid. If presidential powers are to be expanded during war... congress must declare war.. and that war must have a clear and achieveable goal.. and a duration that can be clearly measured. A beginning and an end. A beginning to mark the period of expanded presidential powers and an end to mark the time when those special powers have been recinded.
To allow the president to delcare war on some idea, expand his own powers and take away constitutionaly protected rights... and have that war continue ad ifinitum...
I can't imagine how any American citizen would NOT have a problem with this.

[motivez]

Originally Posted by kinggovernor

I am really bored of debating this around and around, if you don't think we are a country at war then what are we doing in afghanistan and iraq? We stopped declaring war on countries a long time ago.

Is that because all of the facts you've posted have been thoroughly refuted by people in this thread, as well as the best legal minds in America?

I mean, we've shown that

a) it's not about the FISA courts being overloaded
b) it's not about the "ticking time bomb" scenerio (which is a false dilemma anyway) because they can do retroactive warrants.
c) it's not about a "lack of time to prepare warrants" -- since they didn't ask for more since the last time..
d) even if it was about c -- they still broke the law, an impeachable offense, rather than hiring more people or asking for more time as they have before

So essentially, all you have is a 'war time' argument, and while we're certainly involved in a military conflict, we have not declared war officially.. and there's a difference as far as powers go.

Which leaves your arguement with essentially no legs to stand on.

[Kytro]

Originally Posted by kinggovernor

I am really bored of debating this around and around, if you don't think we are a country at war then what are we doing in afghanistan and iraq? We stopped declaring war on countries a long time ago.

They are really glorfied police actions now. They started as war, but the "expanded power" in "times of war" is only needed to where there is an actual threat from a defined enemy.

This is just bogey-man scare tactics. Terrorists are criminals, and need police action (and military backup in limited circumstances). None of this justifies treating the US as an active battleground

[KatKanPlay]

Originally Posted by WickedLou9

It all comes down to the fact that you can't expand presidential authoroity because the president himself says we are at war. If you give the president the ability to both declare war and to expand his own powers during a time of war.. you have created an elected king. Exactly what the founding fathers wanted to avoid. If presidential powers are to be expanded during war... congress must declare war.. and that war must have a clear and achieveable goal.. and a duration that can be clearly measured. A beginning and an end. A beginning to mark the period of expanded presidential powers and an end to mark the time when those special powers have been recinded.
To allow the president to delcare war on some idea, expand his own powers and take away constitutionaly protected rights... and have that war continue ad ifinitum...
I can't imagine how any American citizen would NOT have a problem with this.

[RMNIXON]

Originally Posted by kinggovernor

not at all. During times of war executive powers have expanded but now and in the past.

While we need to be very viligent in the protection of our liberties I think to be so stingent with the constitution as to put those very liberties in grave danger is a mistake. As you suggest the issue is wartime emergency. The Constitution is not being withdrawn or re-writen.

If anything it is not the Bush administration that violates our liberties as much as it is the terrorists who have put us under such restrictive security measures in an otherwise free society. I think most people would rather trade some NSA snooping over what we go through at an airport these days!