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One Small step for the President, one giant leap for Big Brother
Posted by: Jon Henke on Friday, December 16, 2005

How do free societies become unfree societies? One step at a time. For "security". Like this...
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.
Balkinization notes that if you accept that "(1) emergency justifies suspension of constitutional rights and (2) that the President cannot be bound by the rule of law when he acts as Commander-in-Chief, there is very little left to restrain the President. And so he has not been restrained."

Naturally, many people will jump to defend the administration, pointing out that, you know, terrorists and evildoers and national security and what're you, some kind of traitor who wants another 9/11? They'll continue making that argument until, say, Hillary Clinton ascends to the White House and it occurs to them that, hey, maybe giving the Executive Branch near-unlimited power to reinterpret and/or flaunt the laws might not be such a great idea after all.

Having your own ox gored by power tends to do that to a person in a way that goring other people with power doesn't.

MORE:

As Hit and Run points out, this kind of thing has come up previously when things were different. Democrats controlled the Executive Branch, Republicans controlled Congress and there was a furor over the nature
and scope of ECHELON...
In the greatest surveillance effort ever established, the US National Security Agency (NSA) has created a global spy system, codename ECHELON, which captures and analyzes virtually every phone call, fax, email and telex message sent anywhere in the world.
There were significant allegations that ECHELON was being used for political and domestic purposes. When a Congressional Investigation looked into the NSA program, various "peculiar" roadblocks were thrown up to prevent Congressional examination. Porter Goss—then chairman of the House Permanent Select Committee on Intelligence—wrote that if "in its effort to provide timely intelligence to the nation's policy makers, the NSA General Counsel construed the Agency's authorities too permissively, then the privacy interests of the citizens of the United States could be at risk."

When pressed on whether they're doing domestic spying, NSA director Hayden conceded that "his agency snoops on Americans only under rigid controls", and that in order to do so "the agency must prove to a special court that the eavesdropping is a matter of national security and the target is an agent of a foreign power, a spy or a terrorist".

Such restrictions have been, it seems, relaxed since then.

So, where did Republicans stand on such surveillance back then? WorldNetDaily printed an article citing Porter Goss, Bob Barr and civil libertarians being critical of the loose standards of oversight and comparing ECHELON to the illegal 70s era domestic spying programs and arguing that if the NSA "successfully avoids substantive congressional oversight, many observers fear that the bridge over the abyss [to make tyranny total] may grow closer to completion."

Republican Bob Barr said that "the government is snooping far too much and without any oversight or reasonable or probable cause basis on which to listen in". In April of 2000, George Tenet argued that "We protect the rights of Americans and their privacy. We do not violate them and we never will."

Ultimately, it seems, Bob Barr was right and George Tenet was wrong. [cross-posted to Chequer Board]

MORE:

President Bush admits he ordered the Code Red. See here for the similarities between Bush's assertion of near-complete Executive Power and Colonel Jessep's disdain for people who sleep under the blanket of the very freedom that he provide, then questions the manner in which he provides it.
 
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Previous Comments to this Post 

Comments
There’s nothing at all new about the NSA monitoring international communications of persons (citizens or not) inside the Untied States.
 
Written By: Arcs
URL: http://
I’m not sure this is the earth-shattering travesty it’s being made out to be. The communications that were intercepted were largely identified for such treatment as follows:
What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top al Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists’ computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, the officials said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.
Further on in the piece we learn that the monitored communications are of a limited set:
Under the agency’s longstanding rules, the N.S.A. can target for interception phone calls or e-mail messages on foreign soil, even if the recipients of those communications are in the United States.

[snip]

Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.

Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court.
The program wasn’t quite as secret as the story initially suggests either:
After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney’s office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency’s director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.
Moreover, there really is a legitimate question as to how efficient it would be for the NSA to go through a Judge in every instance where a wire-tap was needed, especially where requiring an adherence to "form over function" would eviscerate opportunities to stop the enemy:
The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant - intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups - and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.

Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.’s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
Suffice it to say that while this Executive Order should raise a red flag for those who are vigilant in monitoring our government, this doesn’t rise to the level of "freedom erosion" being suggested. It could get there I suppose, but not very likely considering what this program actually does. And while your point, Jon, about the howling from the Right if Pres. Hilary had instituted the program is on the money, that’s politics not policy. From a policy standpoint this seems IMHO to be toeing the line more than ignoring the line altogether.
 
Written By: MichaelW
URL: http://
Disclaimer - I don’t really get too bunched up about the Gov’t doing stuff. I have too many other things to worry about that I consider a higher priority.

It is the job of the Gov’t to, among other tasks, protect the citizens. How else to do this than to monitor the borders, electronic and otherwise?

If a citizen wants to do something (that hasn’t been explicitly outlawed, like shoot some guy in the face for dissing his ride) [/ineffective_humor] then he should expect to do it "privately". If that means locking the door so you and your same-sex partner aren’t hassled, then so be it. Even though I am a conservative and a Christain, I have no interest in the Gov’t intervening like they did in Texas a few years back.
Now it the two want to broadcast their deal to everyone, my kids included, then I have a problem with it. But we already have laws to prevent excessive public sexual activity. The teaching of all this in the schools is saved for a different post...

If the citizen wants to have a private conversation with a friend and wants to do it using an invention of mine, I should be authorized to limit what is talked about. The invention is mine.
This is the same lense I view this case through. The Citizen wants to talk to Mommy back in the Old Country and is being listened to by Big Brother. So what! If he is telling her about the hottie he met, then no one cares and his call is not tagged. If he tells her that he is ready with the Bomb Belt and has his ticket, don’t we all want to know about that? Before we board the train/plane/etc?

These people are using technology that is the publics, true, but that means that the public’s bodyguard should be paying attention. If two law-abiding citizns don’t like it, they are well-advised to "close the door" and not use public technology. They may have to invent thier own radio/telephone/internet technology, but tough.

Does this make any sense? do you disagree with my take on this? I suspect there are smarter folk out there, and those who better understand the limits of public vs. private space and all that. So remember, I am only offering my opinion. Nothing nasty, please...
 
Written By: Tom_with_a_Dream
URL: http://dreaming_big_dreams.blogs.com/
It is both extremely scary, and very disappointing, that most of the responses I’ve seen in regards to these reports are being passed off as ’okay.’

Amerika used to be a free Republic, and I wish I could answer the question of ’What Happened’ to citizens sticking up for their rights.

Today, I weep.

-Abject.
 
Written By: Abject_Disappointment
URL: http://www.justinbuist.org/blog
Yes, Yes, Abject, they came for the Trade Unionists in my neighborhood this morning, but I wasn’t a trade unionist....Oh Yeah, right they DIDN’T come for the Trade Unionists, or the Socialists, or the Communists or the Jews, this morning, yesterday morning, of the morning of 12 Sept. 2001, either.

In fact, no one has been arrested, disappeared or suffered in any way... unless Ward Churchill , Cindy Sheehan, and the rest have had accidents today...

And as to someone’s "ox being gored", submitter, I believe Khobar Towers, East Africa and the like really ought to have been a wake-up call but they weren’t so thing called 9-11 occurred and so now the US decided that the Islamo-Fascists REALLY meant what they said about wanting to kill us in job lots!

Had Gore been President in 2001 I’d have supported HIS decision to sign this EO. The world WAS different on 9-10, than it was on 9-12, something folks sometimes want to miss.
 
Written By: Joe
URL: http://
Amerika used to be a free Republic, and I wish I could answer the question of ’What Happened’ to citizens sticking up for their rights.
What "right" do citizens have to consort with terrorists in private?
 
Written By: MichaelW
URL: http://
Does anyone really have any expectation of privacy when making an international phone call or email?

Should anyone really expect that?

Has anything really changed, except that we’re gaining intel directly from captured terrorists overseas that lead back to persons in the United States.
Under the agency’s longstanding rules, the N.S.A. can target for interception phone calls or e-mail messages on foreign soil, even if the recipients of those communications are in the United States.
 
Written By: Keith, Indy
URL: http://
When I saw the news article I went looking. One of the things I found was this:

http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html

It is interesting reading.


"If the target is a "U.S. person," which includes permanent resident aliens and associations and corporations substantially composed of U.S. citizens or permanent resident aliens, 50 U.S.C.A. § 1801(i), there must be probable cause to believe that the U.S. person’s activities "may" or "are about to" involve a violation of the criminal statutes of the United States. § 1801(b)(2)(A),(B); see also § 1801(b)(2)(C) (knowingly engages in activities in preparation for sabotage or "international terrorism" on behalf of a foreign power); § 1801(b)(2)(D) (knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power).

"A "United States person" may not be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States." 50 U.S.C. § 1805(a)(3)(A)."



Another question that comes to my mind is: If the FBI does not have the capabilities to conduct the surveillance, can it legally be farmed out to another agency?



 
Written By: ETM
URL: http://
I seem to recall that NSA used to monitor British subjects in Britain and then pass that intel onto the Brits (legal) who would back scratch the NSA by monitoring US citizens in the USA and passing that intel onto our guys (again legal.)

In any case what sounds frightful in 2005 was the correct decision in 2001. Is it still needed now? I don’t know. I’d have to see how many plots it disrupted and how many bad guys were thwarted.

and if Hillary deems that it remains necessary, I’m down with that until the leaks reveal we were secretly tracking Nader or something.

p.s. why the leak in 2005 and not right after the changes were made.....probably because at the time the leaker would agree with it...and now there’s that book coming out, too.

 
Written By: Harun
URL: http://
Benjamin Franklin:

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

 
Written By: Pug
URL: http://
I came over from chequerboard, jon you really are a fool.
ron
 
Written By: ron
URL: http://
"Any society that would give up a little liberty to gain a little security will deserve neither and lose both."
It is important to recognize, however, that Franklin was speaking specifically regarding internal, rather than about external attackers. Franklin also assumed a quite different immigration situation. And, to boot, he also assumed most Americans were armed and ready to take on security needs as they arose.

That aside, I dare say also, that the concept of planes loaded with hundreds of people being used to fly into buildings tall enough that can’t see the top of them, would be a concept that would get right by Franklin or anyone else of his day, for that matter. No, Franklin’s quip was made to a reality some 225 years prior to the reality that we live in, and conditions have changed over that time.

It is instructive to note that the majority of the people who are screaming about rights lost because of actions involving national security in this time of war, are also those who prior to 9/11 were quite happily removing rights for one reason or another, and now suddenly they’re the champions of civil liberties? Sorry, shopkeeper, I’m not buying it.

Context is going missing with many of the people doing the complaining. I respectfully suggest that it’s time we recognize that the first right that the founders wrote of when they wrote about "life, liberty, and the pursuit of happiness" was LIFE then liberty. The reason is simple enough without that first one the rest of them don’t mean much. Again, context.

Not to put too fine an edge on it, 9/11 showed us we’re dealing with an enemy in this war unlike any we have ever faced. As such, the edges of responsibility need to be redrawn to accomidate this situation, if we as a people want to survive the onslaught.

The kinds of freedom and self-reliance needed to deal with security matters out of hand are good goals. HOwever, the reality is that we as Americans have jusr spent the last 80 years being de-balled by the gun-fearing Democrats. That being the case, what is sought will not re-appear overnight.

ON that basis, then, the question becomes How many civillian lives are you willing to sacrifiice for those ideals?
 
Written By: Bithead
URL: http://bitheads.blogspot.com
If we lose our right to not have our calls to Sheikh Khalid’s sat phone in Pakistan monitored then losing our right to bear fully auto assault rifles can not be far behind.

In the spirit of helping our citizens avoid this kind of trouble, perhaps we could publish a no-call list (a list of phone numbers that you should not call if you don’t want to be monitored.)

Kim Jong-Il

Castro

Iranian hardliners (Iranian moderates are allowed, but we sometimes monitor for customer service quality assurance.)

Al Qaeda members

Chinese Public Secuity Bureaus



 
Written By: Harun
URL: http://
Yawn. How often does the dread "slippery slope" fallacy have to be floated before more people note that it is indeed a fallacy?

During World War II, sainted FDR set up an Office of Censorship that monitored pretty much everyone’s mail and inhesitantly tapped any phone conversation they wanted.

Project ECHELON has been around since the 1980s. Amazingly, they didn’t come for the Jews, or the Trade Unioninists, or the Communists, or the Libertarians, or the Greens, or the Gypsies, or even the funny looking or sorta smelly.

Republicans whined about this when they weren’t in charge, and now that Democrats aren’t in charge they whine about it. It’s all pointless and stupid whining.

This doesn’t violate anyone’s Constitutional rights, nor does it show any sign of violating anyone’s Constitutional rights. It is a completely appropriate use of espionage technology to find and kill terrorists.

Those who oppose its use will doubtless give us more of the famous "slippery slope" fallacy. It always goes like this:

First you have an income tax, then you are a communist state.

First you regulate corporations so they can’t practice fraud, then, you outlaw all corporations.

First you let the executive listen in on communications that aren’t constitutionally protected, next Big Brother arrests you for saying "I don’t like the President" on the phone.

It’s all a bunch of crap.

This is nothing new. They weren’t allowed to use this technology to arrest and try American citizens before, and they aren’t now. The only change is now they use it to locate our enemies and kill them.

Go USA.

By the way, what would I do if Hillary were President? I’d call her a derelict and irresponsible leader and not fit to be COmmander In Chief if she shut down such a common-sense, sensible, Constitutionally permissible, completely justifiable, and utterly non-liberty-threatening program like this one.
 
Written By: Dean Esmay
URL: http://www.deanesmay.com
Personally, I think Col Jessup was right, altho the result of the code red was wrong.

I’m a law abiding citizen, no ones gored my ox as far as I know.

I will give the president the leverage to do what he feels is necessary until it is shown that privilege has been abused. Then I vote to take it away. I would rather require proof of abuse than have the esoteric debate over what could happen and might happen paralyze us into inaction. If what might ahppen is our judgement criteria, we’d never do anything because any right or privilege can be abused.

I’m ok with this until some substantial violation is shown. The right of the majority to live secure in their persons and homes is an important right to weigh against the right of an individual to privacy. Of all the things the government does, the most important is to protect its citizens and national borders. Show me some real abuse, and I’ll reconsider. Until then, lets not be foolish in attempt to be completely fair.
 
Written By: YoDaddy
URL: http://
Maybe the Republicans earlier objections were mere politics.

Then again, Clinton’s HUD sued citizens for objecting to HUD activities, Clinton’s IRS was quite obviously being used to target political opponents, and Clinton’s FBI was clearly being used to ’investigate’ (read ’smear’) the folks in the White House travel agency. Thousands of FBI files on political opponents were provided to the Clintons.

Where were the Democrats concerns for civil liberties then? Recall any books by NYT reporters on the overbearing menace of the Clintons?
 
Written By: Thomas Hazlewood
URL: http://
Speaking of slippery slopes, let’s turn the question around: how much terrorism are we willing to tolerate before we make any infringements to the civil liberty rights Americans have?

As previous commentators have noted, no one has rounded up Ward Churchill, Cindy Sheehan or other assorted known anti-U.S. whackers. So, until the civil libertarians can answer that question intelligently, I cannot take their fears seriously.
 
Written By: Tim
URL: http://
It’s always worth worrying about preserving civil liberties, but where’s the evidence that free societies become unfree societies one step at a time? That’s not what happened after Lincoln jailed outspoken opponents of the Civil War. It’s not what happened after FDR put many Japanese-Americans in camps. In both cases, civil liberties were restored after the urgency passed.

Most of the examples I can think of where free societies became unfree is when they were conquered by an outside tyranny or where an internal group committed against freedom managed to take over the country.
 
Written By: David
URL: http://
From what I’ve read Bush approved this in something like thirty cases?

I wonder how many of them were outgoing calls from the United States and how many were incoming calls from outside the US, if they were incoming I don’t see how they were protected against government espionage, if someone calls you and he’s under surveillance and you discuss illegal activities you have no right to the protections afforded by the Constitution in regards to such things simply because you’re an American citizen.

Calls originating in the US made by "US persons" should have been done with a FISA warrant, though.
 
Written By: Chaos
URL: http://www.blizzforums.com
Comparing today to 2000 is silly. Nobody would support this type of eavesdropping in the absence of the ongoing war against terror. I certainly would have supported, and in fact expected, Clinton to have done the same thing were he President after 9/11. Heck, a President has a lot more power than this under Article 1 of our Constitution and past Presidents have gone a lot farther than this - Lincoln suspending habeas corpus, FDR and the Japanese internment - without our civil liberties coming crashing down.
 
Written By: Raven
URL: http://
Comparing today to 2000 is silly. Nobody would support this type of eavesdropping in the absence of the ongoing war against terror. I certainly would have supported, and in fact expected, Clinton to have done the same thing were he President after 9/11. Heck, a President has a lot more power than this under Article 1 of our Constitution and past Presidents have gone a lot farther than this - Lincoln suspending habeas corpus, FDR and the Japanese internment - without our civil liberties coming crashing down.
 
Written By: Raven
URL: http://
From what I’ve read Bush approved this in something like thirty cases?
No, he reauthorized the program 30 times. The initial story that broke this said it’s been used in hundreds and perhaps thousands of cases.

 
Written By: Jon Henke
URL: http://www.QandO.net
Dean Esmay and Joe can expect a very favorable audit in April. I’ll be watching the rest of you very closely.
 
Written By: IRS Agent 1984
URL: http://irs.gov
I’m not sure this is the earth-shattering travesty it’s being made out to be.

That’s probably due to the mentality on display through the bulk of this post’s comments, a mentality that has permitted things to get to this point. What’s another step when a thousand have already been taken? The ends justify the means, all else must be side aside so we can feel safe, and those who disagree are gutless, myopic, fifth columnists with quaint but outdated concepts of liberty.

These people are using technology that is the publics, true, but that means that the public’s bodyguard should be paying attention. If two law-abiding citizns don’t like it, they are well-advised to "close the door" and not use public technology.

No, this technology is not the public’s. The FCC does not own my cell phone and the fact that it emits a stream of electrons that can be clandestinely tapped does not give you any partial ownership in it either. This is "externalities" gone insane.

What "right" do citizens have to consort with terrorists in private?

First, you assume the state has accurately determined who is a terrorist and who isn’t. I don’t share that assumption.

Second, if that consorting does not result in the execution, planning, or preparation of an attack, then the right at play here is the same right we’re exercising on this forum: the freedom to communicate and associate.

No, Franklin’s quip was made to a reality some 225 years prior to the reality that we live in, and conditions have changed over that time.

This is the same bad rhetoric used by some to justify gun control. Machine guns, assault rifles, 15-round pistol magazines, .50 caliber sniper rifles, flash suppressors, and synthetic folding stocks weren’t around back then either. So what?

It is instructive to note that the majority of the people who are screaming about rights lost because of actions involving national security in this time of war, are also those who prior to 9/11 were quite happily removing rights for one reason or another, and now suddenly they’re the champions of civil liberties?

Irrelevant. Their argument remains outside of their ability to reconcile it with statements made in the past.

I respectfully suggest that it’s time we recognize that the first right that the founders wrote of when they wrote about "life, liberty, and the pursuit of happiness" was LIFE then liberty. The reason is simple enough without that first one the rest of them don’t mean much.

The fact that we have to be alive to enjoy freedom doesn’t necessitate a coercive, intrusive state apparatus. It also does not necessitate you or someone you elect as your representative having any control over my life.

As such, the edges of responsibility need to be redrawn to accomidate this situation, if we as a people want to survive the onslaught.

You don’t get to define my responsibility to myself or anyone else. Why do you assume that right?

How many civillian lives are you willing to sacrifiice for those ideals?

I don’t sacrifice others for my ideals because taking a stand on an issue doesn’t kill anyone. Again, the gun control analogy: civil libertarians don’t kill people, terrorists kill people.

Project ECHELON has been around since the 1980s. Amazingly, they didn’t come for the Jews, or the Trade Unioninists, or the Communists, or the Libertarians, or the Greens, or the Gypsies, or even the funny looking or sorta smelly.

Are you also one of those "if it ain’t a broken bone, impairment of major bodily function, or death it ain’t torture" kinds of folks, Mr. Esmay?

First you let the executive listen in on communications that aren’t constitutionally protected, next Big Brother arrests you for saying "I don’t like the President" on the phone.

Are you asserting that the FBI/Secret Service/local law enforcement have never visited with or detained someone on the basis of anti-Bush speech they’ve made that falls beneath making a clear threat to his life?

...utterly non-liberty-threatening program like this one.

This is incredulously naïve.
 
Written By: Charles Hueter
URL: http://www.drizzten.com
I used to be critical of the Big Government Democrats. Now, I am thinking of joining them to rein in the profligate spending and excessive government intrusion of the Republicans. Unrestrained government spending, and unchecked government power, used to be something we Republicans were concerned about. Hmmm.
 
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URL: http://
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URL: http://www.littlegiantcenter.com
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