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Warrantless Wiretaps III
Posted by: Dale Franks on Tuesday, December 27, 2005

David Tell, writing for the Editors of the Weekly Standard, looks beyond the legal issues, to talk about the pragmatic issues with foreign intelligence wiretaps and FISA.
Set aside, for the moment, all the broad and complicated questions of law at issue here, and consider just the factual record as it's been revealed in any number of authoritative, after—the—disaster investigations. According to the December 2002 report of the House and Senate intelligence committees' Joint Inquiry into the Terrorist Attacks of September 11, 2001, for one, the FISA system as a whole-and the FISA court in particular-went seriously off the rails sometime around 1995. A false impression began mysteriously to take hold throughout the government that the FISA statute, in combination with the Fourth Amendment, erected an almost impermeable barrier between intelligence agents and law enforcement personnel where electronic eavesdropping was concerned. And by the time, a few years later, that Osama bin Laden had finally become an official counterterrorism priority, this FISA court—enforced "wall" had already crippled the government's al Qaeda monitoring efforts.

Absent specific, prior authorization from the FISA court, federal al Qaeda investigators were formally prohibited from sharing surveillance—derived intelligence information about terrorism suspects and plots with their law enforcement counterparts. And in late 2000, after federal prosecutors discovered a series of legally inconsequential errors and omissions in certain al Qaeda—related surveillance applications the FISA court had previously approved, the court's infamously prickly presiding judge, Royce Lamberth, appears to have had a temper tantrum ferocious enough to all but shut down the Justice Department's terrorism wiretapping program. "The consequences of the FISA Court's approach to the Wall between intelligence gathering and law enforcement before September 11 were extensive," the Joint Inquiry explained. "Many FISA surveillances of suspected al Qaeda agents expired because [Justice officials] were not willing to apply for application renewals when they were not completely confident of their accuracy." And new applications were not forthcoming, the result being that, at least by the reckoning of one FBI manager who testified before the intelligence committees, "no FISA orders targeted against al Qaeda existed in 2001" at all. Not one.

Non—Justice intelligence agencies quailed before Judge Lamberth, too, it should be noted. The National Security Agency, for example, "began to indicate on all reports of terrorism—related information that the content could not be shared with law enforcement personnel without FISA Court approval." It used to be, not so long ago, that NSA's pre—9/11 timidity about such eavesdropping was universally considered a terrible mistake. The agency's "cautious approach to any collection of intelligence relating to activities in the United States," the Joint Inquiry concluded, helped blind it to the nature of al Qaeda's threat. NSA "adopted a policy that avoided intercepting communications between individuals in the United States and foreign countries." What's more, NSA adopted this unfortunate policy "even though the collection of such communications is within its mission," even though "a significant portion of the communications collected by NSA" has always involved "U.S. persons or contain[ed] information about U.S. persons," and even though "the NSA and the FBI have the authority, in certain circumstances, to intercept . . . communications that have one communicant in the United States and one in a foreign country."
Judges don't, in general, turn down a lot of warrants. That's because police don't waste their time asking for warrants they don't think will be grantedIn any event, the practical issues are something that we can't simply dismiss. Much has been written on the left about how the FISA court only denied 4 warrants in its history. Part of the reason for that is that, unless the FBI was dang sure the FISA court would grant the warrant before they even asked. Having applied for a fairly large number of warrants myself, I can safely say that judges don't, in general, turn down a lot of warrants. That's not because judges are so accommodating. It's because both police commanders and prosecutors don't waste their time asking for warrants they don't think will be granted.

Oh, sure, occasionally, you have a judge who you know'll bend your way when a warrant's probable cause is...uh...kinda shaky. But, for the most part, you have a pretty good idea whether a warrant will fly or not, and you don't ask for a warrant until your PC isn't so...questionable.

So, I'm not impressed with the argument that the FISA court was so accommodating to the administration. We simply can't draw that conclusion by knowing only the stats of warrant application approvals.

But, what we do know is that the FISA court process isn't as simple and straightforward as some have argued it to be, as the 9/11 comission made perfectly clear.

Although, as Michael Barone reminds us, the legal issues are not inconsequential.
To be sure, federal courts have ruled that the Fourth Amendment's bar of "unreasonable" searches and seizures limits the president's power to intercept communications without obtaining a warrant. But that doesn't apply to foreign intercepts, as the Supreme Court made clear in a 1972 case, writing, "The instant case requires no judgment on the scope of the president's surveillance power with respect to the activities of foreign powers, within or without this country." The federal courts of appeals for the 5th, 3rd, 9th and 4th Circuits, in cases decided in 1970, 1974, 1977 and 1980, took the same view. In 2002, the special federal court superintending the Foreign Intelligence Surveillance Act wrote, "The Truong court, as did all the other courts to have decided the issue, held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the president does have that authority and, assuming that is so, FISA could not encroach on the president's constitutional power."
As I've written before, this is a complicated issue, and is not amenable to simplistic analysis.
 
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Set aside, for the moment, all the broad and complicated questions of law at issue here, and consider just the factual record as it’s been revealed in any number of authoritative, after—the—disaster investigations
Please stop printing right wing propaganda. Please. Stop now. There are no broad and complicated questions regarding the law. David Tell is lying. Bush broke the law. Whether he did is not the issue.

This propaganda constitutes the opening lines from the portion of David Tell’s opinion piece. David Tell is not a lawyer. Therefore, and to be frank, he doesn’t know what the F*** he is talking about when it comes to the legal issues. I, for one, am sick and tired of non-lawyers "analyzing" the law, and non-lawyers citing non-lawyers talking about the law.

Go to law school. For 3 years. Read case after case after case as if your future depended upon doing so. Study for hours on end. Write paper after paper about the law. Sacrifice your sanity, your family, and your friends. Pull your guts out over the injustices of the law and marvel at its brilliance. Take the bar. Practice. A few years later, get reborn and do it all over again. Become a real lawyer. Go through that 10 year process. But until you do, shut the f*** up about the law. You don’t know jack. Especially about what it means.

David Tell is a hack. Would you ask him to diagnose that pain in your side? No. So why in the hell would you rely on his opninion of the state of the law, unless you were a true Kim-like believer?

Bush broke the law. Accept it. If you want to argue the facts justified his doing so, be a man about it. But don’t cite this hack for the proposition that the legal issues are complicated. They aren’t. They are in fact incredibly simple. Bush had no authorit under Article II or FISA. Unless you believe in the Kingship of the Presidency (and even on this so-called neo-lib site with the fanatics who inhabit it that is possible, there is NO authority authorizing what Bush is doing.

As for the UNCONTESTED facts, they are interesting. But so what? Any well heeled fascist can seemingly justify what he is doing based on the facts. Tell is such a hack that he doesn’t even get this. He is merely appealing to emotion, much like our enemy in Iraq.

But that is not the legal question. And it is no defense to the legal question if you are guilty that you had good facts. That Tell doesn’t get this "tells" me more about Tell than is necessary.
 
Written By: mkultra
URL: http://
“Go to law school. For 3 years. Read case after case after case as if your future depended upon doing so. Study for hours on end. Write paper after paper about the law. Sacrifice your sanity, your family, and your friends. Pull your guts out over the injustices of the law and marvel at its brilliance. Take the bar. Practice. A few years later, get reborn and do it all over again. Become a real lawyer. Go through that 10 year process. But until you do, shut the f*** up about the law. You don’t know jack. Especially about what it means. “
MK, for your sake, I hope that your tale of legal travail is fantasy. For it to be true and for it to have produced only you in all your glory is pretty sad. If you have an argument, then make it. Leave out the fictitious bloody legal road to fame stuff. Certainly you are not qualified to practice in a trial capacity or in any other capacity involving real people. Whether or not you are actually licensed to practice law at all is still a question to me. You have had other fantasies.
 
Written By: notherbob2
URL: http://
hey MK, I think that Alberto Gonzalas is a lawyer, I think he went to law school. Guess what, He says no law was broken. HMMM guess its not as simple as you make it out right? Oh! BTW, democratic members of congress who were LAWYERS were advised of these wiretaps and did not protest. OH! Bill Clinton, who was a LAWYER, did the same things in order to catch the spy Aldritch Ames. oopps!
 
Written By: kyle N
URL: http://impudent.blognation.us/blog
I, for one, am sick and tired of non-lawyers "analyzing" the law, and non-lawyers citing non-lawyers talking about the law.
Wow...All hail the lawyers! Bow down, I say, BOW DOWN to our superiors and follow their every command!

We must also wipe clean from our judicial system any non-lawyer who has soiled the courtrooms with their uneducated filth. Purge the judiciary! (oh crap...where did I leave my pitchfork?)
 
Written By: JWG
URL: http://
I, for one, am sick and tired of non-lawyers "analyzing" the law, and non-lawyers citing non-lawyers talking about the law.

I for one am sick and tired of non-military types pretending they know enough about the military to "analyze" what it does.

Does that mean you’ll shut up in the future about such things, MK?

Heh ... yeah, that’s bloody likely, isn’t it?


 
Written By: McQ
URL: http://www.qando.net/
Go to law school. For 3 years. Read case after case after case as if your future depended upon doing so. Study for hours on end. Write paper after paper about the law. Sacrifice your sanity, your family, and your friends. Pull your guts out over the injustices of the law and marvel at its brilliance. Take the bar. Practice. A few years later, get reborn and do it all over again. Become a real lawyer. Go through that 10 year process. But until you do, shut the f*** up about the law. You don’t know jack. Especially about what it means.
Hmmm. And yet Prof. Cass Sunstien, one of the nation’s premier go guys on Con Law—and a good liberal, too—appears to think otherwise than you, despite having gone through that process, and distinguishing himself in the teaching of the law.

Your argument is essentially an appeal to authority—and a particularly foolish one at that, since the "authorities" are in disagreement.
 
Written By: Dale Franks
URL: http://www.qando.net
CHICKENLAWYER!!!
 
Written By: Robb Allen (Sharp as a Marble)
URL: http://sharpmarbles.stufftoread.com
Youse guys...jeeze

Lawyers? forget lawyers. Forget law school. Even this simple paralegal can see that Bush broke the law and generally is out of control in his 2nd term. Keep your eye on the law ball. "Its the law, stupid". This King got no panties on!

To me, those that support Bush are guilty of supporting organized crime. It is un-American and un-Christian to support or apologize for GWB. So.. nyah!

sidebar: There is a special place in net-hell to those who, in knee jerk response, attempt to tie Billary into the fray. "But Bill did it!" good grief....

Once you all (AGAIN!) quit throwing non sequiter rocks at each other, lets get back to the serious matter at hand and impeach POTUS/VPOTUS. I’ll take Hastert over B/C, thank ya very much~~
 
Written By: Rick D.
URL: http://
Even this simple paralegal can see that Bush broke the law
Well that settles it. No need to even provide evidence or refute the evidence of those who disagree.
 
Written By: JWG
URL: http://
Hey, Rick?

My wife’s a paralegal.
Her read is that no law was broken.

And what do you know... of all people, Cass Sunstein agrees with her. AS does Alberto Gonzolez. Hardly cut from the same cloth, these three.

That ought to tell you something, but somehow I have my doubts it will.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
nice blog
 
Written By: Morale
URL: http://camgirlscatalog.info

 
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