Yes it does explain it...very well!!

The GOP and this president are used to getting what they want.  The FISA court and the Constitution be damned.  It is abuse of power plain and simple.  The Constitution calls for three separate but equal branches of government which will protect, uphold, and defend the Constitution...suspension of our 4th amendment rights and disregard of the Judicial Branch by the Executive Branch isn't what our founders had in mind imho...

I agree with similar comments on this story - this may explain the reason behind circumventing the law, but it leaves gaping holes in the logic behind the illegal wiretaps, and yet another question - just when did they begin? 

We have no way of knowing how our tax monies are spent within the spy agencies, but if the wiretaps began just after 9/11, are we expected to believe that this brilliant data-mining application was sitting on the shelf, waiting patiently beside other controversial programs, for the neocon dream to unfold (visions of PNAC dance, once again, in my head)?  Why has there been virtually no reporting, no justification, for a system that was designed to spy within, clearly developed prior to the administration's [illegal] requirement that such spying must occur in the interest of national security?

My stint in the government gave me one takeaway - information technology is mired in all sorts of bureaucratic red tape, and nothing happens overnight.  Or maybe it did and the system is prone to significant error, which leads me to the terrorizing (how ironic!) reality that virtually any one of us could be the victim of such an error, resulting in an extended vacation in Guantanamo Bay and no constitutional protection.

So my question is this - is the super-secret NSA wiretap program a product of evolution, or one of intelligent design?  The man with the gaping hole between those big ears has some 'splainin' to do. 

• DUIs
• cocaine
• evading the draft
• invading countries
• torture

So, "How did it all begin?" Six applications were denied; they had to fix up lots of shoddy applications; and (from what I've read elsewhere) they had tapped some members of the UN Security council.

Earlier, I'd imagined 3 possible reasons for their rejection of FISA.

1) hubris
2) laziness
3) embarrassing targets

It turns out: all 3!

Actually, I believe hubris is the over-arching one. The number of wiretaps would have soared with 9/11, but they began ignoring the court almost immediately. They wouldn't have built up a record of rejections for awhile.

I think it's fair to say that the Administration never brought its NSA spying program before the FISA court.  The President's legal advisors knew the court would not approve it, so they didn't try.  That's why the White House wasn't being "lazy" when it chose to avoid the FISA court.  Confronting the court on an unwinnable issue would have been pointless.  

I suppose the "lazyness" came at the stage when the White House refused to engage Congress about changing FISA so the NSA program could be run legally.  The White House knew FISA, as currently constituted, could not accomodate its spying program.  Instead of working to change FISA, as the constitution requires, the Administration bypassed it.  In doing so, it broke the law.  

But let's be frank.  The real story has always has been the White House's contention that is free to break the law whenever it wants.  The Administration's stance boils down to the idea that the anti-terrorism activities of the FBI, CIA, DOD, and NSA cannot be regulated or limited by Congress in any way, shape, or form.  Congress's authority is limited to cutting checks.  Congress has no power in matters of national security beyond cutting checks.

Taken to its natural conclusion, the White House's theory is that FISA is unconstitutional, insofar as it attempts to limit the President's unlimited wartime power.  This makes the media's focus on whether or not the White House "avoided" FISA puzzling, to say the least.  Do reporters not get it?  FISA is a joke to the White House.    When will reporters look beyond the BS and pay attention to what the White House is actually telling them?  They are saying: we only follow FISA when we want to.  It Does Not Apply.  Period.

The story Matt links to is just another red herring thrown out there by Karl Rove.  They are trying to spin the facts so it appears they had to bypass the FISA court, which was denying too many warrant requests.  It's no shocker this spin is being delivered through a moonie outlet.  As many posters have pointed out, the dates don't remotely match up: the FISA court modifications didn't start until 2003, well after the NSA program had started.  

Just another distraction in a story where the media just can't seem to follow the bouncing ball...

You may presume that every law is inherently legal and just. I don't.

When a federal law is not inheritantly just, the onus falls on Congress to modify it.  When a federal law is not inheritantly legal, the onus falls on the Supreme Court to strike it down.  Nowhere in the constitution is there authority for a President to simply bypass a law because it is inherantly unjust or illegal.  

It's that whole seperation of powers thing.

Because the Bush administration seems habitually incapable of taking the long view, to consider the consequences of their actions, we have this consequence described in the NYT:

Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The president has defiantly proclaimed that he will continue the warrantless snooping, therefore does this mean that any future cases coming to trial based upon information obtained by the illegal practices could be challenged in court, no matter how strong the evidence against the defendant?  Could this lead to dangerous terrorists being released among us because the whole case against them is tainted?

And these are the folks we are expected to trust to protect us!

That or he just started getting really sloppy later on.

Or they got increasingly aggressive and started pushing the envelope farther than even the fairly lax FISA standards could accommodate.

Josh, by the way, had reported this increased rate of modifications by the FISA court shortly after the story broke about the warrantless searches. 

Re: Aren't there news reports that expanded warrantless wiretapping started shortly after 9/11, before the upswing in requests for modifications and rejections by the FISA court. I think I saw a NYT story about it....with UN diplomats in their homes shortly after 9/11. Anyone know any details?
============
No, I remember the news bleep about some guys monitoring/bugging the State Department, sometime around the time of 9-11.  That was incredible to me. 

Yes I understand that. You are positing a narrower point than I am. I can visualize a handful of alternate/parallel means for acquiring information, for each legal/illegal scenario highlighted so far,  by virtue of the fact that there is an absence of a law/rule governing them. I draw this analogy from what happens during a corporation's audit process.  

This sounds good in theory, but I don't see how it applies to the Administration's activities in the present context.  The White House has not argued that its program is legal because it falls outside of the current law/rules governing surveillance.  It is arguing that the President has the "inherant constitutional authority" to override the current law/rules governing surveillance.  

In short, the White House claims the current law/rules governing surveillance are void, as applied to the executive branch (FBI, CIA, DOD, NSA, etc.).  This is very different from saying that it believes its activities were legal because they were not proscribed or addressed under current law.  

It's the difference between saying, "I didn't know I wasn't allowed in the cookie jar," and saying, "I know there's a rule against reaching in the cookie jar, but I'm allowed to break that rule whenever I want."

 

It's also been working for him his whole life.

owenz, you may be very right, but at best, it's going to cost a lot of taxpayer money, and it has pulled the rug from under the prosecuters.

I read Media Matters enough to know that incendiary condemnations are no stranger to cable news. But I don't know whether liberals get, or try, to make them on cable news.

I don't see why they don't try, though. My theory, bolstered by reading the last Pew survey, is that the balance of power in America is held by people who pay only the scantest information to any sort of world affairs, and the Republicans have been winning them over, not by what they directly say on the news (because these people don't watch it), but by how those charges filter through to them in other ways. To non-thinkers, the stronger propositions that the Republicans make sound naturally more plausible. And these people also already hear that Democrats relentless demonize Bush -- so why not actually do it? We're not winning any points by holding back.

This raises the question of what precisely is the problem with a data-mining "fishing expedition"?  



What about the 4th amendment?  That's what I think is the problem with the fishing expedition.

Since we have opened the door to possible Supreme Court review, indulge me as I explore some of the possibilities...

The Supremes will try very hard to dodge the core issue of the President's "inherant authority."  There's a good chance they will latch onto the 2001 Congressional Resolution authorizating of force against al-Qaida, which is the easiest way to decide the question while limiting any discussion of the President's "inherant authority."  

In Hamdi, the Supremes said the 2001 Congressional Resolution gave the President the power to detain American citizens as enemy combatants.  The Supremes dodged the question of whether or not the President had the "inherant authority" to detain Americans by interpreting the Congressional Resolution as a kind of blank check: it gave the President all of the powers of Congress plus his own powers as President.  Thus, the full Presidential power, combined with the full Congressional power, was sufficient to allow the President to hold Hamdi indefinitely as an enemy combatant.  There was no seperation of powers issue because Congress retained the ability to "take back" the resolution and rescind the power it "lent" to the President.

The Administration could frame the NSA spying program the same way: Congress gave all of its powers to the President with the 2001 Resolution, and the full Congressional powers combined with the full Presidential powers, give the President sufficient authority to run his NSA spying program.  It worked once with Hamdi - why not try it again?  

One thing is for sure: the Supreme Court wants to avoid taking the issue of the President's "inherant authority" head on.  In the short term, the easiest road is to simply replay Hamdi by saying the 2001 Resolution gives the President the power to conduct his spying program.  Theoretically, this preserves Congress's power, since Congress retains the ability to rescind its grant of power at any time.  While the Court is aware of the danger presented by a Congressional grant of power to the President that is unlimited in both duration and scope, the Court will point to the fact that Congress will probably rescind or modify the resolution as soon as the Congress and Presidency are controlled by opposing political parties.

So to recap: the easiest route for the Court probably involves it construing the 2001 Resolution as providing the President with the temporary authority he needs to conduct his wiretapping program.

(Note - although most of us know the argument that the President was given King-like powers through the 2001 resolution is laughable on its face, keep in mind that the Supreme Court is looking for some way - any way - to avoid a constitutional crisis.  The Congressional resolution gives the Court a decent vehicle, since the resolution can be construed as Congress voluntarily giving the President the authority he needs to conduct the NSA program.  From the Court's perspective, this is vastly superior to a scenario in which the President takes the power from Congress without asking.)

Question: how could the Supremes rule against Bush while avoiding the "inherant authority" issue head on?  It will be difficult if the Administration is hellbent on pressing the Yoo Doctrine.  The Administration may give the Court an opening to avoid the issue, however, if it replicates Hamdi and sticks with the argument that the President's authority to conduct his NSA spying program is derived from the 2001 Congressional resolution.  

If "inherant authority" is off the table, the Court could distinguish domestic spying from enemy combatants based on the fact that enemy combatants have taken active steps against the U.S. -- while those being monitored in the NSA program have not taken any steps against the U.S.  It could then construe the Congressional resolution as granting the President the power to exercise power only against those who have actively plotted against the U.S.  Thus, the President would retain the power to name Americans who have taken steps against the U.S. as "enemy combatants" but would lack the authority to monitor Americans who have not taken steps against the U.S.

If the Administration gets Alito on the Court, it may feel it can win by copying the Hamdi framework and relying on the 2001 Congressional Resolution for its authority. The President's lawyers may then decide that making the controversial "inherant authority" argument is counter-productive in this context, since the odds are already in their favor and discussing the Yoo Doctrine in open court could give the liberal Justices a heart attack.  After all, why make such radical claims when they can get what they want through conventional means?

Of course, if the White House does press the Yoo Doctrine, all bets are off.  The Supreme Court will be deep into the legal wilderness, exploring areas of constitutional construction that have never been resolved...

This raises the question of what precisely is the problem with a data-mining "fishing expedition"?  Is it that we consider the data-mining a per se unreasonable violation of privacy rights or that we don't trust the NSA (and other federal agencies) to contain the use of the information gained through the warrantless data-mining to counter-terror investigations.

Data-mining is not a "per se unreasonable violation of privacy rights."  The government already mines mountains of semi-private information including consumer info, credit card purchases, plane tickets, and more.  So the issue is narrower than whether data-mining violates privacy.  

At issue is whether the government can monitor telephone and email conversations, which are ordinarily protected by the constitution, using data-mining techniques.  You have to decide this narrow question before moving onto how the data is stored and protected, and whether it is ad