# Senate Judiciary Hearings on NSA Surveillance **URL:** \ **Category:** Great Debates\ **Created:** [February 6, 2006, 5:18pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256 "2006-02-06T17:18:28Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 9, 2006, 8:04pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/101 "2006-02-09T20:04:11Z")
Update: The Admin might have (illegally) used information gained from warrantless wiretaps to obtain/bootstrap FISA warrants; a Justice Department official warned the FISA judges of this twice in the past four years. [http://www.washingtonpost.com/wp-dyn/content/article/2006/02/08/AR2006020802511.html](http://www.washingtonpost.com/wp-dyn/content/article/2006/02/08/AR2006020802511.html) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 9, 2006, 8:26pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/102 "2006-02-09T20:26:10Z")
Of course, the administration’s position is that the the warrantless wiretaps are perfectly legal, so I don’t know why this would be a surprise. In fact, if the administration decided that they couldn’t use warrantless wiretap info to get FISA warrants, wouldn’t that be a tacit admission that the program was illegal? ---
**Author:** ![vibrotronica](https://avatars.discourse-cdn.com/v4/letter/v/a9a28c/32.png) [@vibrotronica](https://boards.straightdope.com/u/vibrotronica)\ **Post date:** [February 9, 2006, 9:00pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/103 "2006-02-09T21:00:45Z")
The administration erroniously claims that the wiretaps are legal, but they were specifically told by the FISA judges that evidence gathered by warrantless wiretaps would not be admissible in their court. And yet they submitted the evidence anyways. Now, given that they’ve lied about the program to the congress, to the judicial branch, and to the American people, why shoud we trust them not to abuse this power to persecute their political enemies or curtail or undermine lawful political expression or blackmail people for their own ends? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 9, 2006, 9:03pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/104 "2006-02-09T21:03:45Z")
> [@John Mace](#): > > Of course, the administration’s position is that the the warrantless wiretaps are perfectly legal, so I don’t know why this would be a surprise. In fact, if the administration decided that they couldn’t use warrantless wiretap info to get FISA warrants, wouldn’t that be a tacit admission that the program was illegal? Yes . . . but so is seeking FISA warrants at all. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 9, 2006, 9:06pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/105 "2006-02-09T21:06:06Z")
> [@vibrotronica](#): > > Now, given that they’ve lied about the program to the congress, to the judicial branch, and to the American people, why shoud we trust them not to abuse this power to persecute their political enemies or curtail or undermine lawful political expression or blackmail people for their own ends? And in more practical terms, these tactics legally taint the evidence against any suspected terrorist they might want to use it to prosecute. I can just hear an army of high-powered criminal defense lawyers licking their chops. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 9, 2006, 9:26pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/106 "2006-02-09T21:26:10Z")
> [@John Mace](#): > > Of course, the administration’s position is that the the warrantless wiretaps are perfectly legal, so I don’t know why this would be a surprise. In fact, if the administration decided that they couldn’t use warrantless wiretap info to get FISA warrants, wouldn’t that be a tacit admission that the program was illegal? It’s my understanding that it was the judge’s decision not to allow the government to use the warrantless wiretap information in securing a FISA warrant. In the two cases in the cite above, the government went ahead and did it anyway. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 9, 2006, 9:26pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/107 "2006-02-09T21:26:43Z")
> [@vibrotronica](#): > > ``` > ...given that they've lied about the program to the congress, to the judicial branch, and to the American people, why shoud we trust them not to abuse this power to persecute their political enemies or curtail or undermine lawful political expression or blackmail people for their own ends? > > ``` What specifically was the lie? > [@BrainGlutton](#): > > And in more practical terms, these tactics legally taint the evidence against any suspected terrorist they might want to use it to prosecute. I can just hear an army of high-powered criminal defense lawyers licking their chops. That happened the first day the story broke in Dec. There are all kinds of legal challenges being raised simply on the suspicion that this data might have been used. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 9, 2006, 10:01pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/108 "2006-02-09T22:01:27Z")
> [@John Mace](#): > > That happened the first day the story broke in Dec. There are all kinds of legal challenges being raised simply on the suspicion that this data might have been used. That I hadn’t heard. In what prosecutions, specifically? ---
**Author:** ![vibrotronica](https://avatars.discourse-cdn.com/v4/letter/v/a9a28c/32.png) [@vibrotronica](https://boards.straightdope.com/u/vibrotronica)\ **Post date:** [February 9, 2006, 10:06pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/109 "2006-02-09T22:06:13Z")
> [@](#): > > Sen. Russ Feingold, a Wisconsin Democrat, accused Gonzales of misleading Congress during his 2005 confirmation hearings, when Feingold asked him whether the president could “authorize violations of the criminal law when there are duly enacted statutes, simply because he’s commander in chief.” > > At the time, Gonzales called that a hypothetical situation and said, “It’s not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.” > > Monday, he said no laws were broken when Bush ordered the wiretapping program without court approval. > > “I told the truth then. I’m telling the truth now,” he said. “You asked about a hypothetical situation of the president of the United States authorizing electronic surveillance in violation of our criminal statutes. That has not occurred.” > > Feingold shot back that Gonzales “has taken mincing words to a new high.” > > “There’s no question in my mind that when you answered the question that was a hypothetical you knew it was not a hypothetical – and you were under oath at the time,” he said. From [CNN](http://www.cnn.com/2006/POLITICS/02/06/nsa.gonzales/?section=cnn_allpolitics). On April 20, 2004, the President himself said that any wiretaps the government conducted require a court order and a warrant. [Here is a link with a video](http://thinkprogress.org/2005/12/20/bush-caught-on-tape/) of King George telling that lie. But surely, **John Mace** , someone as informed as you on this issue and with as much time on your hands as you have was already aware of these lies. Will you present the “lie-that-is-not-a-lie” defense, AKA the “Sixteen Words gambit” or the “WMD Shuffle”? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 9, 2006, 10:07pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/110 "2006-02-09T22:07:25Z")
> [@BrainGlutton](#): > > That I hadn’t heard. In what prosecutions, specifically? [Defense in terror cases to challenge NSA spying](http://www.msnbc.msn.com/id/10628591/from/RSS/) ---
**Author:** ![bup](https://avatars.discourse-cdn.com/v4/letter/b/6bbea6/32.png) [@bup](https://boards.straightdope.com/u/bup)\ **Post date:** [February 9, 2006, 10:10pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/111 "2006-02-09T22:10:37Z")
> [@John Mace](#): > > What specifically was the lie? Well, at least to the American people, how about [this](http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html)? > [@W](#): > > The Patriot Act changed that. So with court order, law enforcement officials can now use what’s called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies. > > Thirdly, to give you an example of what we’re talking about, there’s something called delayed notification warrants. Those are very important. I see some people, first responders nodding their heads about what they mean. These are a common tool used to catch mobsters. In other words, it allows people to collect data before everybody is aware of what’s going on. It requires a court order. It requires protection under the law. We couldn’t use these against terrorists, but we could use against gangs. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 9, 2006, 10:26pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/112 "2006-02-09T22:26:47Z")
> [@vibrotronica](#): > > From [CNN](http://www.cnn.com/2006/POLITICS/02/06/nsa.gonzales/?section=cnn_allpolitics). > > On April 20, 2004, the President himself said that any wiretaps the government conducted require a court order and a warrant. [Here is a link with a video](http://thinkprogress.org/2005/12/20/bush-caught-on-tape/) of King George telling that lie. > > But surely, **John Mace** , someone as informed as you on this issue and with as much time on your hands as you have was already aware of these lies. Will you present the “lie-that-is-not-a-lie” defense, AKA the “Sixteen Words gambit” or the “WMD Shuffle”? I just asked a question. No need to get so snarky. I honestly didn’t know what you were referring to. The President claims that he was talking about the Patriot act in that audio clip. And, in fact, he was addressing concerns people had about that legislation. But, by speaking as broadly as he did, it’s certainly fair to call what he said a lie. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 9, 2006, 10:53pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/113 "2006-02-09T22:53:33Z")
> [@John Mace](#): > > [Defense in terror cases to challenge NSA spying](http://www.msnbc.msn.com/id/10628591/from/RSS/) Then I expect the legality of the surveillance program **will** be reviewed by at least one court, and that right quick. How long, I wonder, before it wends its weary way up to SCOTUS? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 9, 2006, 11:58pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/114 "2006-02-09T23:58:27Z")
> [@BrainGlutton](#): > > Then I expect the legality of the surveillance program **will** be reviewed by at least one court, and that right quick. Nope. No court is going to do anything unless there is actually some evidence that the NSA program was used in those particular cases. The lawyers are just fishing. > [@](#): > > How long, I wonder, before it wends its weary way up to SCOTUS? That was my first question when the story broke in Dec. But the more I think about, the more I think it won’t get there. Unless someone can claim this evidence was actually used against them in a court of law. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 10, 2006, 12:20am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/115 "2006-02-10T00:20:53Z")
> [@John Mace](#): > > Unless someone can claim this evidence was actually used against them in a court of law. They don’t even have to claim that – only that what evidence was presented in court was in some way derived from arguably-unlawfully-obtained evidence. “Fruit of a poisoned tree.” ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 10, 2006, 12:25am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/116 "2006-02-10T00:25:13Z")
> [@BrainGlutton](#): > > They don’t even have to claim that – only that what evidence was presented in court was in some way derived from arguably-unlawfully-obtained evidence. “Fruit of a poisoned tree.” But, in none of those cases is there is no evidence that the NSA program was used to catch or convict the defendant. Imagine what chaos there would be in the courts if everytime a police dept was accused of violating a warrant, that every criminal convicted by the police department could appeal his case without any actual evidence that there was a problem with his original conviction? It would be crazy. There has to be some actual evidence that the original evidence was tainted. The cases that the FISA court is talking about… those might stand a chance if there was a conviction, but we don’t know that. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 10, 2006, 12:26am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/117 "2006-02-10T00:26:34Z")
Gahhh! Should have been: But, in none of those cases is there is any evidence that the NSA program was used to catch or convict the defendant. I aint’ got no good grammar today! ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 10, 2006, 12:30am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/118 "2006-02-10T00:30:59Z")
> [@John Mace](#): > > That was my first question when the story broke in Dec. But the more I think about, the more I think it won’t get there. Unless someone can claim this evidence was actually used against them in a court of law. Some law tlking dudes and professors are batting around the idea that Congress perhaps, maybe, possibly could enact a law broadening a definition of standing to make these suits easier to pursue. Of course, Bush could veto it, but, if it is truly Congress v. President and not Repubs v. Dems, they may get enough votes to override the veto. It would open the door for suits to go to the Supreme Court. I’m not versed enough in standing issues to know how successful that would be, but it’s a thought. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 10, 2006, 12:34am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/119 "2006-02-10T00:34:17Z")
> [@John Mace](#): > > But, in none of those cases is there is no evidence that the NSA program was used to catch or convict the defendant. Not yet, perhaps. But, the can of worms having been opened, defense counsel has the right to conduct discovery to explore the possibility. Happens all the time. A few years ago in Pinellas County, Florida, a story broke about incompetence in the Sheriff’s Office crime lab, and all kinds of cases were reopened to see of any of the evidence presented at trial was unsound. ---
**Author:** ![Merijeek](https://avatars.discourse-cdn.com/v4/letter/m/f05b48/32.png) [@Merijeek](https://boards.straightdope.com/u/Merijeek)\ **Post date:** [February 10, 2006, 1:04am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/120 "2006-02-10T01:04:20Z")
> [@BrainGlutton](#): > > Not yet, perhaps. But, the can of worms having been opened, defense counsel has the right to conduct discovery to explore the possibility. Happens all the time. A few years ago in Pinellas County, Florida, a story broke about incompetence in the Sheriff’s Office crime lab, and all kinds of cases were reopened to see of any of the evidence presented at trial was unsound. What would happen in such a case were the Sheriff’s Office to say, “Sorry, that would be commenting on something ongoing. Can’t do it”? -Joe [Previous page](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256.md?page=5) [Next page](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256.md?page=7)