Originally Posted By woody "That's an unsupportable statement. All presidents would probably like to claim as much power as they can, but that doesn't mean either a). they all think they have the right to bypass FISA (which would mean they all consider themselves above the law), or b). the court will find that they do have that right." As for (a), ask and you shall receive. ------------------------- <a href="http://www.cnsnews.com/ViewPolitics.asp?Page=" target="_blank">http://www.cnsnews.com/ViewPol itics.asp?Page=</a>\Politics\archive\200512/POL20051223a.html John Schmidt, who served as associate attorney general between 1994 and 1997, argues that both Congress and the Supreme Court have recognized presidents' "inherent authority" to bypass warrants in ordering the eavesdropping of U.S. citizens suspected of conspiring with foreign governments or terrorists to injure or kill Americans. But in at least one well-documented case, Clinton authorized domestic electronic surveillance of a U.S. citizen without a warrant. FBI agents were allowed to break into the home of 31-year CIA veteran Aldrich Ames in 1993 to install eavesdropping devices. An FBI summary of the case described it this way: "FBI Special Agents and Investigative Specialists conducted intensive physical and electronic surveillance of Ames during a ten-month investigation. Searches of Ames's residence revealed documents and other information linking Ames to the Russian foreign intelligence service." The book "Main Justice: The Men and Women Who Enforce Our Nation's Criminal Laws and Guard Its Liberties," by The Washington Post's Jim McGee and U.S. News & World Report's Brian Duffy had much more detail. "In the early morning hours of an autumn morning in 1993, an unmarked government sedan rolled slowly down an empty tree-lined street in Arlington. The FBI agents inside parked just up from a handsome two-story home. The agents knew the place well. Three months earlier, an FBI team had gone inside to bug the place. That operation had been a quick in and out. This time the agents planned to stay for a while. The owners were out of town on vacation. The house was vacant," the pair wrote. "With several hours to go before dawn, the FBI team slipped inside. They had with them the necessary equipment, but they did not have a warrant." Though Ames's attorney initially planned to challenge the admissibility of the evidence collected through the warrantless searches and surveillance, Ames decided to plead guilty to espionage charges instead. He is serving life in prison without possibility of parole. Schmidt, writing in the Chicago TribuneThursday, hinted that Presidents Clinton and Bush both may have relied on the "death or serious bodily harm" exception. "Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next," Schmidt wrote, analyzing Bush's decision-making dilemma after the 9/11 terrorist attacks. "FISA does not anticipate a post-Sept. 11 situation." ---------------- The investigation of CIA veteran Aldrich Ames had an DOMESTIC ELECTRONICS SURVELIENCE component. All this talk about physical searches with the Aldrich Ames case is untrue. He was tapped without a warrant. John Schmidt worked in the Clinton Administration. I guess he is really a Bush poser.
Originally Posted By DouglasDubh <No she didn't.> She spent three paragraphs on it. "And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA. For example, al Qaeda Agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, Agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of Agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack. Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda Agent A is captured in Afghanistan and has Agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to Agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring Agent C just because he landed on U.S. soil?" How would you answer her question, Dabob?
Originally Posted By Dabob2 <<"What a laugh. You posted the DOJ argument as though it was what the supreme court decided - as though you weren't even aware that it was talking points rather than an actual decision.">> <How would you know what I was thinking? You don't. More nothingness from you.> Not at all. I know what you were thinking because you prefaced that link with "The Supreme Court have already ruled on the issue. They won't again." Which was just ignorant. <I posted a valid argument. And you reject it out of hand.> I don't reject it out of hand. a). I disagree with it, and b). I recognize, as you apparently didn't, that it's just one of the arguments that will ultimately be presented. It's far from "The Supreme Court have already ruled on the issue. They won't again." <WOW. You're so deep.> AND groovy. Thank you. <Keep bothering. More nothingness from you.> Sometimes you make it too easy. <As for (a), ask and you shall receive.> Tom already answered Ames question.
Originally Posted By Dabob2 <<<<She explained why FISA warrants don't work so well in the age of cell phones.>>> <<No she didn't.>> <She spent three paragraphs on it.> None of that had anything to do with cell phones as opposed to land lines. <How would you answer her question, Dabob?> Easily. She makes certain assumptions she cannot support. She ends her first paragraph with "The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA." That is unsupportable. From what we know of Gonzalez, he's going to TURN DOWN an emergency intercept? In the third paragraph she says "That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism." Also unsupportable. That's for the court to decide, not her. And FISA has only turned down a relative handful of requests, so in the real world they're granting just about everything asked for.
Originally Posted By woody <As for (a), ask and you shall receive.> "Tom already answered Ames question." So you won't accept any other evidence on the contrary without links. That's right, Tom did not provide any links for his assertion. And Tom did not look into all the contrary evidence that I posted. The Ames questions has a physical and electronics survellience component. They gotten no warrants for either one, which is especially telling when Ames' home was searched IN THE UNITED STATES. What about the Fourth Amendment? It applied to domestic searches!!! "Sometimes you make it too easy." You didn't really respond. You make it easy for yourself to ignore the arguments and facts.
Originally Posted By woody Dabob2: What do you think about John Schmidt? He worked in the Clinton Administration. Silence on your part. You asked me the question and now you ignore it. You said "That's an unsupportable statement. All presidents would probably like to claim as much power as they can, but that doesn't mean either a). they all think they have the right to bypass FISA (which would mean they all consider themselves above the law), or b). the court will find that they do have that right." WRONG AGAIN ------------- <a href="http://www.cnsnews.com/ViewPolitics.aspPage=" target="_blank">http://www.cnsnews.com/ViewPol itics.aspPage=</a>\Politics\archive\200512/POL20051223a.html Schmidt, writing in the Chicago TribuneThursday, hinted that Presidents Clinton and Bush both may have relied on the "death or serious bodily harm" exception. "Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next," Schmidt wrote, analyzing Bush's decision-making dilemma after the 9/11 terrorist attacks. "FISA does not anticipate a post-Sept. 11 situation."
Originally Posted By DouglasDubh <None of that had anything to do with cell phones as opposed to land lines.> All of it did. <Easily. She makes certain assumptions she cannot support.> On the contrary, she supported them all. <That is unsupportable. From what we know of Gonzalez, he's going to TURN DOWN an emergency intercept?> Yes, and she explained why: "And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. . . Background information must be prepared and the document delivered to the attorney general." <In the third paragraph she says "That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism." Also unsupportable. That's for the court to decide, not her. And FISA has only turned down a relative handful of requests, so in the real world they're granting just about everything asked for.> If you're just going to ignore what people who actually worked with FISA are telling us about what it was like, there's little point in discussing it further.
Originally Posted By woody Dabob2: >>I don't reject it out of hand. a). I disagree with it, and b). I recognize, as you apparently didn't, that it's just one of the arguments that will ultimately be presented. It's far from "The Supreme Court have already ruled on the issue. They won't again."<< Okay, I'll make it easier for you. The Supreme Court ruled on the authority of the President with the AUMF. Perhaps they will rule again on the issue to re-affirm it. Read the ruling of Hamdi, 542 U.S. at 536, Hamdi versus Rumsfeld. <a href="http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf" target="_blank">http://a257.g.akamaitech.net/7 /257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf</a> No. 03–6696. Argued April 28, 2004—Decided June 28, 2004 After Congress passed a resolution—the Authorization for Use of Mili-tary Force (AUMF)—empowering the President to “use all necessary and appropriate force†against “nations, organizations, or persons†that he determines “planned, authorized, committed, or aided†in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Hamdi, an American citizen whom the Government has classified as an “enemy combatant†for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi’s father filed this habeas petition on his be-half under 28 U. S. C. §2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. ------------ WOW. What an introduction. AUMF was being tested in this case. ---------------- Page 12. "The AUMF authorizes the President to use “all neces-sary and appropriate force†against “nations, organiza-tions, or persons†associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network respon-sible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force†Congress has authorized the Presi-dent to use." Page 14 "In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Be-cause detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,†Congress has clearly and unmistakably authorized deten-tion in the narrow circumstances considered here." -------- The court is opening a wide latitude for the President in his interpretation of AUMF. I think the case means a hearing will be made on the evidence for "enemy combatants", but there clearly is opportunities for the President to prove his case. There should be no restrictions in gathering intelligence, but the court can have a different opinion of warrantless wiretapping... of course.
Originally Posted By Dabob2 First, Tom answered the Ames question quite sufficiently. You obviously don't want to accept it, but that's another matter. I will say also that even if the Clinton Admin. was in the wrong there, that two wrongs don't make a right. You seem to be confusing me with someone who thinks that if Clinton did something, it was automatically right and therefore a justification for Bush to do it. I don't think that at all. Clinton was capable of overreaching on executive authority every bit as much as Bush is, perhaps, and the courts simply did not rule of everything that might be uncovered later. <<Dabob2: What do you think about John Schmidt? He worked in the Clinton Administration. Silence on your part.> Huh? Have you asked me about Schmidt before? If not, how can there be "silence" on my part? <You asked me the question and now you ignore it.> I don't even know what question you're referring to. Once again, you are not nearly as clear to others as you are to yourself. <You said "That's an unsupportable statement. All presidents would probably like to claim as much power as they can, but that doesn't mean either a). they all think they have the right to bypass FISA (which would mean they all consider themselves above the law), or b). the court will find that they do have that right."> <WRONG AGAIN ------------- <a href="http://www.cnsnews.com/ViewPol" target="_blank">http://www.cnsnews.com/ViewPol</a> itics.aspPage=\Politics\archive\200512/POL20051223a.html Schmidt, writing in the Chicago TribuneThursday, hinted that Presidents Clinton and Bush both may have relied on the "death or serious bodily harm" exception. "Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next," Schmidt wrote, analyzing Bush's decision-making dilemma after the 9/11 terrorist attacks. "FISA does not anticipate a post-Sept. 11 situation."> Nothing in that proves me "wrong" - if anything it points out what I said before about all presidents wanting to claim as much power as they can. You shouldn't let your hatred of Clinton blind you to the fact that this is about executive power in general, not the man who is the executive for the moment. < but the court can have a different opinion of warrantless wiretapping... of course.> Good, you saved me from going over that whole post. The status of enemy combatants and warrantless wiretapping are indeed two completely different things.
Originally Posted By Dabob2 <<None of that had anything to do with cell phones as opposed to land lines.>> <All of it did.> Nope. <<Easily. She makes certain assumptions she cannot support.>> <On the contrary, she supported them all.> No she didn't. You must have very low standards for what constitutes "support," at least for conservatives. <<That is unsupportable. From what we know of Gonzalez, he's going to TURN DOWN an emergency intercept?>> <Yes, and she explained why: "And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. . . Background information must be prepared and the document delivered to the attorney general."> That doesn't speak to the fact that taps can be performed without a warrant at all, and the FISA warrant applied for up to 3 days AFTER THE FACT. <<In the third paragraph she says "That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism." Also unsupportable. That's for the court to decide, not her. And FISA has only turned down a relative handful of requests, so in the real world they're granting just about everything asked for.>> <If you're just going to ignore what people who actually worked with FISA are telling us about what it was like, there's little point in discussing it further.> If you're going to rely on this one woman with an ax to grind and her anecdotal, possibly unusual, examples - as opposed to plenty of other people who have also worked with FISA and found no reason why it should be bypassed, not to mention the simple fact that so few requests have ever been turned down... well, I'd have to say the same for you.
Originally Posted By DouglasDubh <That doesn't speak to the fact that taps can be performed without a warrant at all, and the FISA warrant applied for up to 3 days AFTER THE FACT.> And the warrant can only be granted if FISA decides there was probable cause before the warrant. One of the concerns FISA judges had was that these warrantless monitorings would be used to provide evidence for additional warrants. Why would that be a bad thing? <If you're going to rely on this one woman with an ax to grind and her anecdotal, possibly unusual, examples - as opposed to plenty of other people who have also worked with FISA and found no reason why it should be bypassed, not to mention the simple fact that so few requests have ever been turned down... well, I'd have to say the same for you.> I'm not relying on just this one person's testimony. I've read a half dozen others that told similar stories, but no reports from people that worked under FISA and said it was no problem getting warrants, even after the fact.
Originally Posted By Dabob2 <<That doesn't speak to the fact that taps can be performed without a warrant at all, and the FISA warrant applied for up to 3 days AFTER THE FACT.>> <And the warrant can only be granted if FISA decides there was probable cause before the warrant.> Which is a reasonable standard. <One of the concerns FISA judges had was that these warrantless monitorings would be used to provide evidence for additional warrants. Why would that be a bad thing?> Frankly, I haven't given that much thought - so I'll have to say I don't know for now. <<If you're going to rely on this one woman with an ax to grind and her anecdotal, possibly unusual, examples - as opposed to plenty of other people who have also worked with FISA and found no reason why it should be bypassed, not to mention the simple fact that so few requests have ever been turned down... well, I'd have to say the same for you.>> <I'm not relying on just this one person's testimony. I've read a half dozen others that told similar stories, but no reports from people that worked under FISA and said it was no problem getting warrants, even after the fact.> The mere fact that FISA granted so many and turned down so few speaks to the ease of getting them. It's pretty simple: if the target is legit, get a warrant. That's reasonable. Declaring oneself (or one's boss) above the existing law is not.
Originally Posted By woody >>"First, Tom answered the Ames question quite sufficiently."<< He didn't. He said in Post 108, "The FBI was very careful about obtaining FISA warrants for the wiretaps. The FBI agents did perform a warrantless search of Ames' home, but at the time FISA did not prohibit that. Physical searches were added to FISA a year after the Ames case." TomS also said in Post 143 "But FISA was expresslly about searches in places where the Constitution wasn't the legal authority - foreign embassies, foreign lands, etc. FISA never permitted warrantless searches of US citizens of in places where the Constitution was the basis of the law, Woody." In my linked column, it said the agents entered into Ames' home for a physical search and installed bugs for electronic surveillence in Arlington (UNITED STATES). It was both a physical and electronic surveillence. They bypassed FISA and the Fourth Amendment for the electronic bugs. The courts found the searches to be legal. Since you really have a hard time with your own arguments. I'll parse it down in small sentences. >>All presidents would probably like to claim as much power as they can, but that doesn't mean either a). they all think they have the right to bypass FISA (which would mean they all consider themselves above the law), << The Clinton and Bush Administrations do not believe they bypassed FISA. They believe they are acting within the confines of the FISA and other laws. They do think they are acting within the law. John Schmidt is also claiming an exception since "FISA does not anticipate a post-Sept. 11 situation." FISA does have an exception clause. >>"or b). the court will find that they do have that right."<< The laws were tested in various forms like the AUMF with the Hamdi versus Rumsfeld case, and other Supreme Court rulings. In the Hamdi versus Rumsfeld case, the Supreme Court gives the President a wide latitude in interpreting his war powers. Since you really won't read the court findings, this is where I'll end it.
Originally Posted By woody "You shouldn't let your hatred of Clinton blind you to the fact that this is about executive power in general, not the man who is the executive for the moment." This is a snide comment. I posted the comments from John Schmidt to prove that the Clinton Administration claimed the same rights as the Bush Administration. There is no difference on their claims. The fact that Gorelick, Bill, and Hillary is saying something else right NOW is besides the point.
Originally Posted By DouglasDubh <Which is a reasonable standard.> For investigating criminal acts, sure. For learning vital intelligence from an enemy, not really. <Declaring oneself (or one's boss) above the existing law is not.> No one has declared themselves above the law. What they have said is that what they are doing is allowed by the law.
Originally Posted By Dabob2 >>"First, Tom answered the Ames question quite sufficiently."<< <He didn't. He said in Post 108, "The FBI was very careful about obtaining FISA warrants for the wiretaps. The FBI agents did perform a warrantless search of Ames' home, but at the time FISA did not prohibit that. Physical searches were added to FISA a year after the Ames case."> So what about this do you not understand? If FISA did not prohibit something at the time it occurred, it was not against the law. <TomS also said in Post 143 "But FISA was expresslly about searches in places where the Constitution wasn't the legal authority - foreign embassies, foreign lands, etc. FISA never permitted warrantless searches of US citizens of in places where the Constitution was the basis of the law, Woody." In my linked column, it said the agents entered into Ames' home for a physical search and installed bugs for electronic surveillence in Arlington (UNITED STATES). It was both a physical and electronic surveillence. They bypassed FISA and the Fourth Amendment for the electronic bugs. The courts found the searches to be legal.> This does seem a contradiction between Tom's posts, but I'll let Tom take that if he cares to; he's usually right on the money and there may be more there than meets the eye. >>All presidents would probably like to claim as much power as they can, but that doesn't mean either a). they all think they have the right to bypass FISA (which would mean they all consider themselves above the law), << <The Clinton and Bush Administrations do not believe they bypassed FISA. They believe they are acting within the confines of the FISA and other laws. They do think they are acting within the law.> "Believing" one is acting within the law and actually acting within the law are not necessarily the same thing. <John Schmidt is also claiming an exception since "FISA does not anticipate a post-Sept. 11 situation." FISA does have an exception clause.> Look at that for a second. For him to say that "FISA does not anticipate a post-Sept. 11 situation" essentially ADMITS that the FISA law was broken. (But that's it's "okay" because it was after September 11.) If FISA wasn't breached at all, why make the distinction? >>"or b). the court will find that they do have that right."<< <The laws were tested in various forms like the AUMF with the Hamdi versus Rumsfeld case, and other Supreme Court rulings. In the Hamdi versus Rumsfeld case, the Supreme Court gives the President a wide latitude in interpreting his war powers.> But not as wide as Bush or Rumsfeld claimed, remember? They were found in violation of certain things, not so in others. I suspect the same will be true with FISA ultimately. <Since you really won't read the court findings, this is where I'll end it.> I did read them, though. Nice try. <<You shouldn't let your hatred of Clinton blind you to the fact that this is about executive power in general, not the man who is the executive for the moment.>> <This is a snide comment.> Warranted, though (sorry for the pun). <I posted the comments from John Schmidt to prove that the Clinton Administration claimed the same rights as the Bush Administration. There is no difference on their claims.> Yes, there is. <The fact that Gorelick, Bill, and Hillary is saying something else right NOW is besides the point.> You should pay more attention to the distinctions they are making now. You insist that Clinton and Bush claimed the identical rights, but this is not so.
Originally Posted By Dabob2 <<Which is a reasonable standard.>> <For investigating criminal acts, sure. For learning vital intelligence from an enemy, not really.> For that, too - yes, really. If the president (any president) is not required to get a warrant and thus has no court oversight, we have to take ON FAITH that all his searches and wiretaps are on the up and up. We've already seen with Nixon that sometimes presidents tap people for reasons other than national security - there's no reason to believe a future president might not do the same, even if you believe this president is pure as the driven snow. And if he has no judicial oversight, how can anyone be sure WHAT he's doing? It's a necessary check on executive power. <<Declaring oneself (or one's boss) above the existing law is not.>> <No one has declared themselves above the law. What they have said is that what they are doing is allowed by the law.> Despite what the law actually says. Tomato/to-mah-to.
Originally Posted By cape cod joe Hey Beau-------I thought Hannity and Colmes was on at 9? Is that E.S.T. or P.S.T. You guys are just showing off now!) I do appreciate it. This is like my 4 years of college comglomerated into a disney thread> Who would have thunk this?
Originally Posted By woody Dabob2: >>So what about this do you not understand? If FISA did not prohibit something at the time it occurred, it was not against the law.<< The Ames case would be against the law due to the Fourth Amendment alone. Congress cannot write a statue to abridge the Fourth Amendment. FISA is irrelevant. Clinton said so via Gorelick despite your hollow arguments. I tried repeatedly to say this to you over and over again, yet you remain insistent. John Schmidt believes the current and past Administrations are acting within the law especially with exception clause, which was filled in with AUMF (as argued by Alberto Gonzales). You keep saying he ADMITS to breaking the law. He did no such thing. The rest of your post is useless as a way to further extend the debate. Why not make it easier for yourself by saying... I disagree?
Originally Posted By cape cod joe I feel like the duck in that AFLAC commercial who after Yogi Berra talks he says-HUUUUHH? You'all are of course the opposite intellectually of Yogi but my point is that I feel like saying HHHUUU because this stuff is very abstruse and it seems like things are being slanted in all different directions to score points. There is nothing wrong with that as that is the nature of debate of course. You all deserve enormous credit for the effort and heart that you're pouring into this. Thanks!
