I’ll fess up to not being completely familiar with the Foreign Intelligence Surveillance Act [FISA] which was enacted in 1978. After a story by NewsMax Sunday about the use of NSA’s Echelon program by the Clinton Administration I did a little more looking.
First I found some snippets from the 60 Minutes story referenced by NewsMax:
The NSA runs Echelon with Canada, Britain, Australia and New Zealand as a series of listening posts around the world that eavesdrop on terrorists, drug lords and hostile foreign governments. But to find out what the bad guys are up to, all electronic communications, including those of the good guys, must be captured and analyzed for key words by super computers, a fact that makes Former [Canadian] spy Mike Frost uncomfortable.
“My concern is no accountability and nothing, no safety net in place for the innocent people who fall through the cracks,” he tells Kroft.
As an example of those innocent people, Frost cites a woman whose name and telephone number went into the Echelon database as a possible terrorist simply because she told a friend on the phone that her son had bombed in a school play.
“The computer spit that conversation out. The analyst was not too sure what the conversation was referring to, so, erring on the side of caution, he listed that lady,” Frost recalls.
Democracies usually have laws against spying on citizens, but Frost says Echelon members could ask another member to spy for them in an end run around those laws. Frost tells Kroft that his Canadian intelligence boss spied on British government officials for Prime Minister Margaret Thatcher.
Two more sites expand on the story of Echelon, former Canadian spy Mike Frost, and Margaret Newsham (another of the former spy’s featured in the 60 Minutes piece) – What Really Happened and cryptome
In the far corners of the Internet, the NSA’s domestic spying capability is hardly news. In one section in a rambling history of the program the applicability of FISA is discussed.
Within the United States, FISA still leaves the NSA free to pull into its massive vacuum cleaner every telephone call and message entering, leaving, OR TRANSITING the country.
By carefully inserting the words “by the National Security Agency” into the FISA legislation, the NSA has skillfully excluded from the coverage of the FISA statute as well as the surveillance court all interceptions received from the British GCHQ or any other non-NSA source.
Thus it is possible for GCHQ to monitor the necessary domestic circuits and pass them on to the NSA through the UKUSA Agreement, giving them impunity to target and watch-list Americans.While there may be debate about whether or not such spying is appropriate, it appears that the US government (and it’s allies) have specifically built a system designed to give them the capability to do this type of surveillance, and apparently to do so legally.
The wisdom of a “black” operations like this (which dates back to the 1940’s) is up for debate, but trying to spin it as an invention of the Bush administration, or their use of it as “unprecedented” doesn’t jibe with history.
Update: Think Progress argues that during the Clinton administration the use of Echelon was done strictly in compliance with FISA. They cite no less an authority than this bit of testimony from former CIA director George Tenet as proof.
There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.
All of which completely ignores the fact that Echelon was designed to catch ALL communications, and that the information sharing system and distributed processing system described in the 60 Minutes piece (and elsewhere) make that statement potentially “false but accurate.”
The system was designed to allow other allied countries to do spying for the U.S. that it couldn’t and vice versa, which creates a convenient wall of deniability and compliance. Under Clinton (and presumably other Presidents) the Echelon program was used for industrial espionage (see APEC and the Independent / UK), again presumably outside of the purview of the lax FISA review process.
Tenet’s testimony sound suspiciously like the defense of the program given by Bush and Gonzales, and most certainly does not prove that the Clinton administration always used the FISA process.
The courts, by the way, where considered thw weakest branch at the founding as they have not the power of the purse nor any enforcement arm. Indeed, they cannot even act unless a case is brought before them by someone or some institution with standing.
Tob
I’ll cease belaboring this point now if no one minds. It just bothers me how many people don’t understand the separation of powers doctrine and federalism and how these concepts protect We the People. This is especially true of the young and the foreigners who comment on our political process. I don’t know if the educational system has just gone to hell or whether these are classes that students can just sleep through and still pass.
Tob
This means that each coequal branch is obligated to interpret same to the best of its ability and act in godd faith thereto. If the President/Congress/Judiciary sincerely believes that its interpretation is correct and that the other branch is wrong, that branch is required to wage politics
I don’t know where you get this stuff. True, each branch is obligated to interpret to the best of its ability. But if there are disagreements, the courts are the final arbiters (short of a constitutional amendment).
Any law Congress passes is subject to judicial review. Any directive the President orders is subject to judicial review. The judiciary is the weakest branch in that it cannot initiate action. But its findings are the strongest.
But regardless of all that, you’re just straying from the initial point. Getting your lawyers to tell you something is OK is not “legal review and approval” to the extent that it completely excuses you from any judicial review by a court.
Really? The courts are the final arbeiters you think? What if the executive doesn’t obey and refuses to accept their judgement? What if the Congress eliminated the lower courts or impeached the justices themselves. The court has no enforcement arm or money of its own. Do you just not understand the political system? The Cherokee sure do. Google Jackson Marsahll Cherokee and you will see an example of a real separation of powers dustup.
The political system is set up such that no one branch can attain mastery but rather the concordance of two branches is required. This seeking of concordance is really politics. What we generally refer to as politics today is really partisan politics, that is, factional machinations for power within the constitutional system.
I swear, its not the things you don’t that hurt you kids, its the the things that you know that aint so.
Tob
“But regardless of all that, you’re just straying from the initial point. Getting your lawyers to tell you something is OK is not “legal review and approval” to the extent that it completely excuses you from any judicial review by a court.”
Oddly, I don’t think that I strayed, perhaps you didn’t read all my posts. The President, through the staff of the executive branch, made a decision or judgement that his executive order was within his rights and duties under A2 of the Constitution and statutes as passed by Congress. Congress, through its leadership, did not object to this interpretation in any meaningful manner. Thats two branches in effective accord. How would the SC get involved?
Congress, acting as an institution, may agree that the executive had disregarded their will, enacted through statute. They would then have standing to ask the SC to ‘break the tie’ or they could just vote articles of impeachment and have the trial themselves.
The Court could also intervene if someone could prove that they themselves were harmed. Tough to prove when the executive could just disregard the discovery of evidence by the plaintiff or orders from the court. Again, only Congress, through its constitutional right of impeachment, can force the executive branch to do a damn thing.
Thats why I say its a political question. Luckily for our polity, it almost never goes that far. One or more of the branches will decide that their interpretation many not be right since they stand alone or they may fear the electorate if they get too upset. (although, how they get around their sworn ath to uphold the Constitution I don’t know but I guess nobodys perfect 😉
Tob
Or perhaps, I miss your point. Are you saying that the President and his lawyers are lying? That they don’t really believe that they have this authority? If so, just go ahead and say it so that I can quit wasting my time with your foolishness.
Tob
“Again, only Congress, through its constitutional right of impeachment, can force the executive branch to do a damn thing.”
oops, and the power of the purse, don’t forget the purse Toby. 😉
Tob
There is even a third, arcane, coup d’etat-ish method. The congress could use the 25th ammendment:
(Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.)
to create just such a body, override an obvious presidential veto, and declare that the President is obiously insane, due to his continuing disregard for the law, and therefore unable to act as president.
They’d have to be really pissed or scared to act in such a manner but it would be ‘legal and constitutional’.
And on that frightening example of my insanity, I’m going to bed.
Tob
Please just disregard that last post, it really was insane since to override the veto means they would have the votes to just impeach the sucker. Unfortunately, the post will be preserved in google cache for all eternity. 🙁 I may never live this one down.
Tob
Really, just disregard it … please.
Darleen
I’m not sure what gang banging has to do with this, other than as a scare tactic.
The only citizens who won’t submit to the govt are the bad guys…right?
You seem to believe that everyone that that wants a little liberty with their so called democracy is against the president.
I would submit that Ben Franklin said it right:
“Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”
How about if all those like you, who don’t mind the govt snooping in their business, sign a waiver. Give them permission to review your library records, credit card purchases, phone calls, monitor your internet connection, email…etc.
If you felt real secure they could just stick a bug on you and track all your movements.
Please reconsider what it means to have a free society, even while it has enemies that would like to eliminate us.
He (Clinton) actually went to the courts and got warrants before intercepting these calls. Bush did not get any warrants even retroactively.
That’s because Clinton had to go to the courts to actually find the phone numbers – now Bush has the convenience of the Do-Not-Call list for his listening pleasure…
🙂
Really? The courts are the final arbeiters you think? What if the executive doesn’t obey and refuses to accept their judgement? What if the Congress eliminated the lower courts or impeached the justices themselves.
Oh, please. I’m talking about who has the final legally-binding say on an issue. I’m not talking about who has the ability to attack the branch of government that disagrees with that final determination. Yes, the Congress could dissolve the courts. Yes, the President can ignore the Supreme Court’s decision. The President can even order the army to shell the Supreme Court itself. I doubt the SC would approve, but that wouldn’t stop the President from having the final word.
Those are unrealistic scenarios that indicate a severe legal and/or constitutional crisis never before faced by this country. Why you would throw your support behind a president who you think would put the country in such a position is mind-boggling.
Don’t you worry about what I teach my kids… worry about your own.
Actually, I assumed you were a kid.
Note that I down played the chances of any of that happening, I merely used it as an argument of exaggeration to point out the operative underpinings of the separation of powers doctrine. The two things the founder feared were, for want of better terms, Royalty and King Mob. They feared a concentration of power with any one branch or group. That included but was not limited to the government branches and so designed a system where ambition fights ambition and sharing of power is required. They further designed a Republican form of government and required the states to have the same in order to convince the people that elections and the political process were superior to mob action
Under this system, its ludicrous to suggest that any branch, by itself, gets the final word as you suggested by banging the drum for judicial review. The executives Constitutional powers as granted by Article 2, most particularly the executive’s powers as commander of the navy and army, cannot be challenged by either remaining branch, just as the law making powers granted to the Congress cannot be usurped by the executive.
If, and the news accounts are unclear, the executive branch has determined that the intercepts in question were legitimate under the CINC powers of the President, no judicial review is required. The other branches could try to force the issue but only through politics not law.
How about this: Legality is when all the branches agree on the constitutional issues, Politics is when they don’t.
Tob
PS Since you came back, how about answering my query, to wit: Do you think that the President and his lawyers are sincere in their stated belief that this is a valid exercise of the executives war powers or do you think they are just lying?
Under this system, its ludicrous to suggest that any branch, by itself, gets the final word as you suggested by banging the drum for judicial review. The executives Constitutional powers as granted by Article 2, most particularly the executive’s powers as commander of the navy and army, cannot be challenged by either remaining branch, just as the law making powers granted to the Congress cannot be usurped by the executive.
Boy, you are 100% wrong. The executive’s powers can absolutely be challenged by the judiciary. As previously stated, the judiciary can’t initiate the challenge, but once a challenge is initiated by someone with proper standing, the judiciary can certainly declare an executive order unconstitutional. And while congressional power cannot be usurped by the executive, it can similary be struck down by the judiciary. Short of a constitutional amendment, neither the executive nor legislative branches can legally overrule the judicial branch.
If, and the news accounts are unclear, the executive branch has determined that the intercepts in question were legitimate under the CINC powers of the President, no judicial review is required. The other branches could try to force the issue but only through politics not law.
The executive branch does not get to “determine” that. They may offer an opinion, and Congress may offer an opinion. The disagreement is settled by the judiciary (again, once some party with proper standing brings action). As you pointed out, anyone can ignore the ruling of the SCOTUS, but now you’re talking coupe scenarios.
Do you think that the President and his lawyers are sincere in their stated belief that this is a valid exercise of the executives war powers or do you think they are just lying?
I think they pretty clearly stated their train of thought. Gonzales himself said that the administration considered going to Congress and asking for laws allowing them to do what they did, but they felt that Congress would never grant them that power. So they then proffered that Congress had already implicitly given them this power by authorizing “force” against the enemy. I think this justification tells you all you need to know about how secure they are about the extent of the president’s power.
“Boy, you are 100% wrong. The executive’s powers can absolutely be challenged by the judiciary.”
I dispair. 😉 Fine, continue on with your beliefs and then you can wonder why things just don’t work out for your side when its self evident that your side is correct.
Of course the SC or the Congress can challenge, they just don’t have the power to prevail without a consensus with another branch. This root fact is why it never goes that far. I’m sure that its a comfort to you that the AG and his lawyers took into account previous court decisions when formulating their opinion on whether this snooping was an A2 power or not so that’s sort of constituted a judicial review. Its in the realm of politics now. If the Congress wants to fight (unlikely IMHO) or the court to intervene, or the opposition party to go to the people with the plank that the Republicans are just too zealous in hunting and killing our enemies, then get it on.
I’m done, but I will leave with an interesting link: http://writ.news.findlaw.com/dean/20020607.html
Excerpt:
While FDR continued to ask Congress for what he needed, he gave them no choice as to whether they would accede. For example, in demanding that Congress repeal provisions in the Price Control Act (prohibiting ceilings on certain food products), he told the Congress: “In the event the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.” And he reminded the Congress: “The President has the power … to take measures necessary to avert a disaster which would interfere with winning of the war.”
Goodbye and good luck.
Tob
Let me cover my backside by noting that Bush could puss out if challenged as he did with Campaign Finance Reform which he stated was unconstitutional but signed anyway. I don’t think that he will since he invoked his A2 powers which presidents tend to be quite zealous about protecting but you never know with this guy since he’s not a true conservation IMHO.
So you may win in the end through politics but that doesn’t change my argument from principle. I just dont think it will work out that way.
Again Goodbye.
Tob
Of course the SC or the Congress can challenge, they just don’t have the power to prevail without a consensus with another branch.
Wow, that is so incorrect, my jaw is on the floor. The SC can find a presidential order to be unconstitutional, period. It does not need Congress to consent. That is the law, not politics. I guess it’s impossible to make this clear to someone who has such a poor understanding of the role of the three branches.
“Wow, that is so incorrect, my jaw is on the floor. The SC can find a presidential order to be unconstitutional, period. It does not need Congress to consent.”
Damn, I keep trying to leave and you keep calling me back 😉
The SC can do find however they want, they just can’t make it happen alone. Even in cases where the executive accepts the courts interpretation, thats two brances in accord. I don’t think that is that fine a distinction but rather a clear difference in our views. Again, have the blessings of the season on you and may you continue in your beliefs to your bafflement why nothing will come of this blatant crime.
Tob
One last thought (and it really is my last as this discussion thread has become a conversation just between you and me).
I am perturbed at myself for my seeming inablity to get you to see my viewpoint regardless of whether you argee with it or not. I’m sure its completely my fault. I may be speaking in such broad term as to make this countrys political system appear lawless so let me posit a scenerio, narrowly drawn (indeed, ripped from today’s headlines as L&O would say) that presumes your worst fears.
It is revealed that Bush has authorized warrantless wiretaps and, further, warrantless physical searches of American citizens, not just ‘American persons’.
Bush defends these actions as necessary to defend the nation in a time of war and invokes his expressed article 2 powers as justification.
Someone is able to present evidence, that the SC will accept, that they, personally, have been harmed, and so gain standing to sue. The SC finds in their favor and orders the executive branch to cease.
Bush is adamant that he has these powers and is required by his oath of office to defend the country and the Constitution ‘against all enemies, foreign and domestic’. He refuses to comply.
The Congress, either because they agree with the President or they are party loyalists or they fear the righteous wrath of the voting public, stays out of the affair.
Has anything changed? Are we at that point, living in a fascist nightmare, or is it the political system that the founders intended? Did the opinion of the SC, standing alone have any real power? Are the presidents actions illegal or unconstitutional at that point? Does it matter?
I know that its a strawman argument since nothing like this is happening but I use it to illustrate my point. I hope you will generalize from it to what I’m trying to say.
Agree, disagree, or whatever. I’m done using the Wiz’s bandwidth on this issue. Send me an email or something, I may or may not reply.
Tob
I will read any response but I will post no more, forever, on this thread. (wild cheering from the crowd and shouts of Good Riddance! Begone foul dwimmerlaik!)
Are you kidding? The executive branch ignoring the findings of the SCOTUS that their actions are unconstitutional? Yes, that is the very definition a dictatorship, a “fascist nightmare”, as you put it. Because it places zero limits on the executive power. Could Bush have Harry Reid executed, citing national security? Could Bush unilaterally void the 2nd amendment, citing national security? Could Bush order all citizens to wear their underwear on the outside, citing national security? All of this is possible under the system of government that you desire. It defines a system in which the president says “trust me” instead of following the law. It defines a system where the only criteria for whether something is legal is whether we believe (as you keep offering up as if it’s meaningful) that the administration is acting “in good faith”. However, that is absolutely not “the political system that the founders intended”. If you want unchecked executive power, move to Cuba.
You propose a scenario:
The SC … orders the executive branch to cease. Bush is adamant that he has these powers and is required by his oath of office to defend the country and the Constitution ‘against all enemies, foreign and domestic’. He refuses to comply.
That is a “political” response, as you like to call it. Bush cannot legally refuse to comply with the SCOTUS. The SCOTUS has the final say on the law. (See Marbury vs. Madison, if you don’t believe me.) If Bush were to do what you suggest in your scenario it would be a government coupe. Remember, Bush’s oath of office is to preserve, protect and defend the constitution, not the “country”. This was purposefully written into the constitution itself. The framers knew that granting the president power to protect the “country” would imply that he could violate the constitution in doing so. That is why he is sworn to follow the constitution instead.
There is precedent that demonstrates this. Your example of FDR threatening Congress that “if you do not act, I will” is incomplete because it did not involve a constitutional challenge. So let’s look at a case that actually did: Youngstown vs. Sawyer, which you can read about here: http://www.mercurynews.com/mld/mercurynews/13472780.htm
In this case, Truman, citing lack of congressional action, acted on his own, invoking presidential constitutional authority in a time of war. The SCOTUS ruled his actions unconstitutional, stating that, “…government with distributed authority, subject to be challenged in the courts of law — labors under restrictions….” That is to say, the president does not have unrestricted power granted to him by the constitution. That power is ALWAYS subject to the ruling of a court of law. Even when under the guise of national security.
Japanese internment was a presidential order, but it was also subject to judicial review. In that case, the SCOTUS ruled it constitutional (although they later apologized for that ruling and struck it down as precedent). Had they ruled the other way, the president would not have had any legal standing to refuse to comply.
The SCOTUS absolutely has the power to declare an executive order unconstitutional, with that being the final legally recognized finding. Even in times of war.
You have not failed to get me to see your view. I see it very clearly. However, no matter how many times you say it, and even if you click your heels together while doing so, it is wholly meritless, unsupported by any legal case or scholar, without precedent, and completely wrong! You have what is worse than no understanding of our government. You have an incomplete understanding, coupled with the belief that you have a complete understanding. That is the most dangerous position of all, as it allows you to be easily taken in by specious arguments. The public debate is about whether Bush’s actions are constitutional. There is absolutely no serious debate over whether the SCOTUS has the authority to make that declaration, nor over whether Bush is required to follow their decision.
So go, run and hide, as you repeatedly threaten but fail to follow through. But know that it’s because you have no support for your mind-numbingly faulty understanding of the constitution, your hopelessly unsubstantiated assertions, and your chronic lack of legal precedent. I wish upon you the very government that you desire, though it shall be in a different country, under a different constitution, or none at all. I shall waste no more time with you.
“If you’ve done nothing wrong, you have nothing to worry about”
If this is justification for warrantless wiretaps, then it is also justification for warrantless home searches, car searches, and government owned cameras inside your house & car.
Why have judges either? If warrants aren’t needed, why would judges be needed? Law Enforcement Officers could act as judges themselves, no? It would “speed up” the “ancient” legal system.
This argument is completely and utterly absurd. FISA has never turned down a request for wiretap. Never. Not once. Did I mention NEVER? They give the government 72 hours to wiretap someone before you have to face a judge and present a reason for the wiretap (so that it may continue.)
If 72 hours is not enough, why was there NO ATTEMPT TO LENGTHEN THE TIME WITH A REPUBLICAN EXECUTIVE AND LEGISLATIVE BRANCH AND MODERATE TO CONSERVATIVE SUPREME COURT?
Probable Cause is fairly vague. It ain’t hard to get a warrant. No one has ever been refused by the FISA court. Cases can be thrown out of court if evidence was obtained illegally.