Ok, got home from work awhile ago and am now just going through the NSA Wiretap Hearings transcript.
Just a few thoughts while I read through it. I heard the various snippets of newshour reports where the Democrats repeatedely asked the question “why didn’t Bush just ask us to change the FISA statute to allow these wiretaps?”
More political claptrap if you ask me. This program was SECRET! Hello? That means we did not wish the world knowing that we were listening in on terrorists overseas as they called terrorists inside the States. Do you think this would have been secret if the Administration announced they wished to change FISA to allow this? Come on, the Democrats would have been all over it calling it unnecessary since there was a emergency provision anyways. Geez.
Well, I’ll update as I read through the transcript.
UPDATE
LEAHY: But my concern is the laws of America. My concern is when we see peaceful Quakers being spied upon, where we see babies and nuns who can’t fly on airplanes because they’re on a terrorist watch list put together by your government.
Holy bejesus this guy is a fruitcake. Since when do Quakers use the phone? What kind of retarded example is this? He went on and on like this basically stating wrong information as the truth. Such as:
But now the Bush administration concedes the president knowingly created a program involving thousands of wiretaps of Americans in the United States over the period of the last four or five years without complying with FISA.
So approx. 30 taps turned into thousands.
Not only did the Bush administration not seek broader legal authority, it kept its very existence of this illegal wiretapping program completely secret from 527 of the 535 members of Congress, including members of this committee and members on the Intelligence Committee.
Hell yes they kept it a secret, since the program is only useful if it is SECRET. They briefed the ranking members as they should have and got on with business.
UPDATE II
Gonzales: Nor can we forget that this is a war against a radical and unconventional enemy. Al Qaida has no boundaries, no government, no standing army. Yet they are capable of wreaking death and destruction on our shores.
And they have sought to fight us not just with bombs and guns. Our enemies are trained in the most sophisticated communications, counter-intelligence and counter-surveillance techniques. And their tactics are constantly changing.
They use video feed and worldwide television networks to communicate with their forces; e-mail, the Internet and cell phones to direct their operations; and even our own training academies to learn how to fly aircraft as suicide-driven missiles.
To fight this unconventional war, while remaining open and vibrantly engaged with the world, we must search out the terrorists abroad and pinpoint their cells here at home.
Something that needs to be repeated again and again until those on the left who believe we are safe and warm here at home get it through their pea-sized brains.
UPDATE III
Pretty good run down by the AG about the nuts and bolts of the operation and the safeguards put into place:
GONZALES: It’s an early warning system designed for the 21st century. It is the modern equivalent to a scout team, sent ahead to do reconnaissance, or a series of radar outposts designed to detect enemy movements. And as with all wartime operations, speed, agility and secrecy are essential to its success.
While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans.
First, only international communications are authorized for interception under this program. That is communications between a foreign country and this country.
Second, the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization. As the president has said, if you’re talking with Al Qaida, we want to know what you’re saying.
Third, to protect the privacy of Americans still further, the NSA employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons.
Fourth, this program is administered by career professionals at NSA, expert intelligence analysts and their senior supervisors with access to the best available information. They make the decisions to initiate surveillance. The operation of the program is reviewed by NSA lawyers, and rigorous oversight is provided by the NSA inspector general.
I have been personally assured that no other foreign intelligence program in the history of NSA has received a more thorough review.
Fifth, the program expires by its own terms approximately every 45 days. The program may be reauthorized, but only on the recommendation of intelligence professionals, and there must be a determination that Al Qaida continues to pose a continuing threat to America based on the latest intelligence.
Finally, the bipartisan leadership of the House and Senate Intelligence Committees has known about this program for years.
He then goes on to detail some of the Constitutional authority that authorizes the President to conduct these taps:
Mr. Chairman, the terrorist surveillance program is lawful in all respects. As we have thoroughly explained in our written analysis, the president is acting with authority provided both by the Constitution and by statute.
First and foremost, the president is consistent with our Constitution. Under Article 2, the president has the duty and the authority to protect America from attack. Article 2 also makes the president, in the words of the Supreme Court, quote, “the sole organ of government in the field of international relations.”
These inherent authorities vested in the president by the Constitution include the power to spy on enemies like Al Qaida without prior approval from other branches of government. The courts have uniformly upheld this principle in case after case.
Fifty-five years ago, the Supreme Court explained that the president’s inherent constitutional authorities expressly include, quote, “the authority to use secretive means to collect intelligence necessary for the conduct of foreign affairs and military campaigns.”
More recently, in 2002, the FISA Court of review explained that, quote, “All the other courts who have decided the issue have held that the president did have inherent authority to conduct warrantless searches to obtain intelligence information.”
The court went on to add, quote, “We take for granted that the president does have that authority. And assuming that that is so, FISA could not encroach on the president’s constitutional powers.”
Now, it is significant, this statement stressing the constitutional limits of the Foreign Intelligence Surveillance Act, or FISA, came from the very appellate court that Congress established to review the decisions of the FISA Court.
UPDATE IV
While I don’t want to paste Gonzales’ whole statement I feel it’s necessary to paste a large portion of it so that you can get the gist of the Administrations argument:
GONZALES: By its plain terms, FISA prohibits the government from engaging in electronic surveillance, quote, “except as authorized by statute.”
Those words, “except as authorized by statute,” are no mere incident of drafting. Instead, they constitute a far-sighted safety valve.
The Congress that passed FISA in 1978 included those words so that future congresses could address unforeseen challenges. The 1978 Congress afforded future lawmakers the ability to modify or eliminate the need for a FISA application without having to amend or repeal FISA.
Congress provided this safety valve because it knew that the only thing certain about foreign threats is that they change in unpredictable ways.
Mr. Chairman, the resolution authorizing the use of military force is exactly the sort of later statutory authorization contemplated by FISA’s safety valve.
Just as the 1978 Congress anticipate, a new Congress in 2001 found itself facing a radically new reality. In that new environment, Congress did two critical things when it passed the force resolution.
First, Congress recognized the president’s inherent constitutional authority to combat Al Qaida. These inherent authorities, as I have explained, include the right to conduct surveillance of foreign enemies operating inside this country.
Second, Congress confirmed and supplemented the president’s inherent authority by authorizing him, quote, “to use all necessary and appropriate force against Al Qaida.”
GONZALES: This is a very broadly worded authorization. It is also one that must permit electronic surveillance of those associated with Al Qaida.
Our enemies operate secretly and they seek to attack us from within. In this new kind of war, it is both necessary and appropriate for us to take all possible steps to locate our enemy and know what they are plotting before they strike.
Now, we all agree that it’s a necessary and appropriate use of force to fire bullets and missiles at Al Qaida strongholds. Given this common ground, how can anyone conclude that it is not necessary and appropriate to intercept Al Qaida phone calls?
The term “necessary and appropriate force” must allow the president to spy on our enemies, not just shoot at them blindly, hoping we might hit the right target.
In fact, other presidents have used statutes like the force resolution as a basis for authorizing far broader intelligence surveillance programs.
President Wilson, in World War I, cited not just his inherent authority as commander in chief to intercept all telecommunications coming into and out of this country. He also relied on a congressional resolution authorizing the use of force against Germany that parallels the force resolution against Al Qaida.
A few members of Congress have suggested that they personally did not intend the force resolution to authorize the electronic surveillance of the enemy, Al Qaida.
But we are a nation governed by written laws, not the unwritten intentions of individuals. What matters is the plain meaning of the statute passed by Congress and signed by the president.
GONZALES: And in this case those plain words could not be clearer.
The words contained in the force resolution do not limit the president to employing certain tactics against Al Qaida. Instead, they authorize the use of all necessary and appropriate force.
Nor does the force resolution require the president to fight Al Qaida only in foreign countries. The preamble to the force resolution acknowledges the continuing threat, quote, “at home and abroad.”
Congress passed the force resolution in response to a threat that emerged from within our own borders. Plainly, Congress expected the president to address that threat and to do so with all necessary and appropriate force.
He does a good job of laying out the President’s inherent authority granted to him by the Constitution, the fact that the FISA court of appeals has acknowledged this authority and the fact that the use of force granted to him by Congress in 2001 also gave him this authority.
He then asks a great question:
If the detention of an American citizen who fought with Al Qaida is authorized by the force resolution as an incident of waging war, how can it be that merely listening to Al Qaida phone calls into and out of the country in order to disrupt their plots is not?
UPDATE V
To those on the left who constantly harp on “why didn’t he get a emergency warrant?” the AG had an answer:
GONZALES: To be sure, FISA allows the government to begin electronic surveillance without a court order for up to 72 hours in emergency situations or circumstances.
But before that emergency provision can be used, the attorney general must make a determination that all of the requirements of the FISA statute are met in advance.
This requirement can be cumbersome and burdensome.
Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request to make sure it meets all the requirements of the statute. And then lawyers at the Justice Department must also review the request and reach the same judgment or insist on additional information before processing the emergency application.
Finally I, as attorney general, must review the request and make the determination that all of the requirements of FISA are met.
But even this is not the end of the story.
Each emergency authorization must be followed by a detailed formal application to the FISA courts within three days. The government must prepare legal documents laying out all of the relevant facts and law and obtain the approval of a Cabinet-level officer as well as a certification from a senior official with mass security responsibility, such as the director of the FBI.
Finally, a judge must review, consider and approve the application.
All of these steps take time. Al Qaida, however, does not wait.
While FISA is appropriate for general foreign intelligence collection, the president made the determination that FISA is not always sufficient for providing the sort of nimble early-warning system we need against Al Qaida.
Just as we can’t demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.
Ok, got through his statement and will not bore you too much with all the questions and answers. I will bring up those that are interesting, other’s you can get by reading the whole transcript yourself.
UPDATE VI
Gonzales:
And that is the consensus was in a meeting that legislation could not be obtained without compromising the program; i.e., disclosing the existence of the program, how it operated and thereby effectively killing the program.
EXACTLY. How can you keep something secret if you request legislation to change FISA? You can’t.
More tomorrow, only on page 27 of 160….so be prepared for more ranting.
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