John Yoo:
The latest Obama administration controversy will not prove as bad as it first seems. Apparently, the administration has been asking Verizon for all of the “metadata” on all of its customers’ calling — the phone numbers called and received, but not the content of the calls themselves.
In the days after the September 11, 2001 attacks, the Bush administration’s Justice Department (in which I served) approved a program that may have relied on similar technology, but was far narrower in scope. Both programs, however, seek to use communications coming into the United States from a known terrorist abroad to identify an al-Qaeda network within the country.
The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers, in contrast to the content of the communications, because individuals lose privacy over those numbers when they are given to the phone company. The Constitution protects the content of the communications, whether it be a phone call, e-mail, or old-fashioned letter. And Congress approved a change to the FISA statute to allow such collection, and a court of federal judges approved it. And as commander-in-chief, the president has the wartime authority to find and intercept enemy communications, known as signals intelligence. Analyzing such metadata — what is sometimes called data mining — is perhaps the most effective way to find terrorist cells in the U.S. and stop future attacks because the Obama administration has dropped our best methods for producing intelligence (the detention and interrogation of al-Qaeda leaders).
The revelation of broad e-mail surveillance is more troubling, but it is because we don’t know the program’s scope. If the program only intercepts the content of e-mails for foreigners abroad, as is being reported, there is no constitutional violation. As the Supreme Court has made clear, the Fourth Amendment does not protect the communications of non-U.S. persons that take place abroad. In fact, the Justices reached that conclusion because they observed that it would be impossible for the U.S. to fight a war against a foreign enemy if limited by the Fourth Amendment. Allowing the government to intercept foreign, potentially enemy signals intelligence abroad without a warrant recognizes the reality of war, as opposed to the precise targeting of communications that would apply if domestic law enforcement were the framework.
We shouldn’t expect any measured response to the Obama administration’s program from the usual libertarian critics, should we? When news broke in 2006 that the National Security Agency had been collecting phone-call metadata, Senate Democrats called for President Bush’s censure or perhaps impeachment, New York Times and Washington Post editorial writers attacked Bush as a violator of the Constitution, academic leaders such as Yale law-school dean Harold Koh called it “quite shocking” and without judicial approval, and Senator Patrick Leahy had a hearing where he yelled “are you telling me that tens of millions of Americans are involved with al-Qaeda?”
What is called into question now with scandal after scandal is: can you trust what they are saying? You and I had better take notice of the slow seemingly insignificant attacks against the Constitution. A little here a little there.
The irony is that Obama is meeting with the Chinese to try to thwart the numerous attacks apparently coming from China to spy on American people and companies. While Obama spies on Americans (and don’t say that he doesn’t; nowadays an abundance of caution is called for (no pun intended)). What is going on inside the government (i.e., singling our Conservatives for harassment and classifying information just to keep it from American citizens) is unknown. And when there are leaks there are coverups, misinformation, lies and false accusations against innocents by Obama and his administration.
[Keep in mind that the spying done could also be industrial and business spying by the US government and not for finding militants.]
On Fox News today, Chris Wallace said he would not trade American rights for Chinese rights. However, we’re headed in that direction if we don’t stand up to the government criminal violations of our Constitution. Acquiescing to the scams and power grabs is tantamount to saying it is OK. Years after World War II, we’re still fighting that bad guys. Obama is a despot, a proven liar, an unrighteous indignant psychopath (look it up), a Constitutional rights criminal and a tyrant.
We must assert our Constitution and vigorously defend it against little by little erosion of our coveted rights. There is no way anyone can justify spying on Americans no matter what. The highest law of the land (above judges and government) says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
@AdrianS:
Knowing how secrecy works in the government, we have to wonder what else we are not being told or that they are outright lying about.
Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance
Obama orders US to draw up overseas target list for cyber-attacks
At a press conference in California, President Obama declaratively said, “When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program is about.”
And if you believe that, he has this border security system he wants to sell you.
I will say this:
I have no problem with NSA monitoring accounts of foreigners who have gmail, yahoo, skype, etc. accounts and I am fairly confident that is what they were doing with PRISM. NSA is under DoD, doesn’t have a bunch of partisans, current director is a General who has been serving since 2005 in that position. I don’t believe the director would obey an order to spy on citizens and would go to the Intelligence Committee as that would be an unlawful order. If he did try to carry it out, I believe the agency employees would report it to Congress.
The problem I have is with FBI collecting 100% of all domestic telephone records in a data modeling / mining operation. On the surface, they may claim they are trying to establish the scope of networks communicating with known terrorists. But under Holder in particular and what we have seen from Democrat partisans in general in the other departments of government, I personally can’t trust them not to use that data to establish the scope of how the Democrats’ political opposition is communicating.
In other words, at this point I trust NSA more than I trust Dept. of Justice. The Democrats have betrayed the trust of the American people and have shown that they can not be trusted not to use our personal information for partisan advantage. This is wider in scope than just this administration, this is the entire Democratic Party doing this sort of thing at the federal, state, and local levels, too. There is a current scandal here in San Jose about a health care organization being used by Democrats for campaign purposes.
The entire Democratic Party has gone rotten.
@crosspatch:
The NSA was not only monitoring foreign nationals. Not sure where you’re getting your information but it is woefully incomplete and outdated.
That’s a patently ridiculous statement. Of course the director would obey an order to investigate a citizen, if the NSA suspected them to be a threat to national security. That is part of it’s mission. If you think that the DOD or it’s support agencies can not be stacked with political partisan leadership, you are naive without hope. How do you think the Pentagon the and military Joint Chiefs of Staff are appointed? Who do you think it is that assigns the top brass officers to the various central and theater-of-operation Commands? Ever heard of the term Commander In Chief?
Where does allowing SECRET COURTS appear in the U.S. Constitution??? the entire CONCEPT is more “COMMUNISTIC”…. than it is American….. Our ENEMIES all played like that…. and now that makes it somehow “O.K.” for it to be done HERE?? We’ve been sliding DOWN the “slippery slope” for too long now, it’s time we come to a COMPLETE STOP, and start CLIMBING BACK…. or DIVE HEADFIRST off the slope….. Depending upon if we want AMERICA BACK…. or want to do more of Obama’s LOVE FEST with those who HATE us… and end up.. THEM….
there is something wrong in there for sure and it smell rotten,
when we go back, it erupted with the anti gun event which OBAMA started and
it develop into lost of credibility for him and his future decisions to please him ,
but take it out of THE PEOPLE’S RIGHT according with the CONSTITUTION,
which he arrogantly step on as if it was not important and in his way since his beginning,
and from there he flew on the cloud of hate them, punish them for daring to stand against his decisions
and hell broke loose for him,
he is now in the water trying to stop the ripple after the giant waves have reach the land,
and no one is trying to save him from drawning,
now this order to target the foreign cyber is also putting AMERICANS in danger, so HE is the one putting AMERICA in danger of attack from terrorist, all his actions and decisions shift the blame on THE PEOPLE for being responsible for attacks,
while HE OBAMA is the instigator all this time of having
those terrorist attacks,
why do you think they killed STEVEN in BENGHASI and THE SEALS, they had no grievance with them,
they where killing OBAMA’s actions,
why did they burn his image? they where targeting OBAMA
and his drones killing the leader and his son,
we should tell them to stop being on our back and get on OBAMA’S back,
why should the PEOPLE cover for his decisions?
he has to take his own responsibility,
not drag the AMERICAN WITH HIM on his foreign deals
we are not in it,
Hankster, I believe there was an unfortunate choice of words via the MotherJones author (no surprise there..). The FISC, or FIS Court is far from “secret” and was created with the passage of the original FISA legislation in 1978. The eleven members are appointed by the SCOTUS Chief Justice. This is the current 2013 membership. One of them includes Florida’s Roger Vinson, the same justice who took the WH attorneys to task over O’healthcare for subterfuge and found the legislation unconstitutional in his court. It was Judge Vinson who wrote the FISC order for Verizon to turn over data.
Perhaps MotherJones deemed it “secret” because they haven’t necessarily seen that specifically mentioned opinion. Most of us aren’t’ in the “need to know” position of demanding what FISC opinions should be made public in it’s entirety, or redacted, and which may put national security at risk because most of the cases are related to specific request for surveillance on individuals. However the FAS often publishes links to opinions – likely with appropriate redactions. I believe most,if not all, opinions are available via a publication called the Federal Reporter. Don’t have a link to that. Never looked. Always got to opinions in different ways via select and specific searches.
But I will say that not necessarily *all* opinions, regardless of subject matter, are printed in the Federal Register.
Speaking of redaction and classified, the FISC challenged the WH in 2010, saying the “requirement” to submit FISC opinions to the Executive Branch (to make sure that there was no potential national security issues that were being exposed) prior to publishing in the Federal Reporter was more an “option” than a “requirement.
@MataHarley:
Regardless.. this is NOT the America I grew up in, or the Founders outlined. I think based upon Alexander Tyler’s writing.. the US is almost done….. sad..
I also base many of my comments, not on my own “gut” feelings, but comments and experiences of FAMILY and friends of mine, who LIVED both THRU Nazi occupation, and those who saw the COMBLOC countries of Europe from close up AND inside….. they watch and see what is going on HERE, in the USA today and all say the same thing. WHY are you guys allowing THIS, to happen TO YOU THERE??? Are you Americans crazy?
I can’t give them a good answer..