It isn’t that I don’t more or less get that, the problem that I have is that in this case and cases like it the reason that we wind up with a law is because some power hungry piece of crap had to go and try to push things too far.
Also, I think that once again we may be using the same words but meaning them very differently. Re: reasonable expectations especially. This is, to me, a “what does the word reasonable mean in the English language” question. I think that you are using a more lawyerly meaning.
For me, it is a reasonable expectation to go through my day and do my best to be lawful and at the end of the day not have random spooks listening to my phone calls and digging through my trash. Go figure.
Again, note the deliberate emphasis on foreign intelligence. Note also the requirement for probable cause.
http://www.fas.org/irp/nsa/standards.html
The following Report was required by the FY 2000 Intelligence Authorization Act, and was transmitted to Congress at the end of February 2000.
(U) In the Foreign Intelligence Surveillance Act (FISA) and Executive Order (E.O.) 12333, Congress and the Executive have codified this balancing. Both documents reflect a deference to U.S. persons’ rights by closely regulating the conduct of electronic surveillance that either targets U.S. persons or may result in the acquisition of information to, from, or about U.S. persons. For example, in order to conduct electronic surveillance against a U.S. person located within the United States, FISA requires the intelligence agency to obtain a court order from the Foreign Intelligence Surveillance Court. If the United States person is abroad, the Executive Order requires that the Attorney General approve such surveillance. In both instances, generally speaking there must be probable cause 5 that the target is an agent of a foreign power. 6 In addition, the information sought by the surveillance must be foreign intelligence that cannot be obtained by other less intrusive collection techniques. …
Information about a U.S. person who is not an approved target, if lawfully acquired incidental to the authorized collection, may be retained and disseminated if it amounts to foreign intelligence or counterintelligence; otherwise, it may not be retained or disseminated. …
(U) As alluded to above, FISA is the statutory regime governing electronic surveillance within the United States for foreign intelligence purposes. Enacted in 1978, FISA defines four types of electronic surveillance requiring Court authorization. The Act further mandates the filing of an application approved by the Attorney General setting forth probable cause that the target of the proposed electronic surveillance is either a foreign power or an agent of a foreign power as defined by the statute. The purpose must be to gather foreign intelligence information, and a certification to that effect by a senior Executive Branch official must accompany every application. …
(U) E.O. 12333 prohibits the collection, retention, or dissemination of information about U.S. persons except pursuant to procedures established by the head of the agency and approved by the Attorney General. Each of the intelligence agencies has promulgated such procedures. (See the appendices in the classified version of this report.) The CIA procedures are embodied in Headquarters Regulation (H.R.) 7-1 entitled, “Law and Policy Governing the Conduct of Intelligence Activities.” NSA is governed by Department of Defense Directive 5240.1-R, “DoD Activities that May Affect U.S. Persons,” including a classified appendix particularized for NSA. The guidelines are further enunciated within NSA through an internal directive, U.S. Signals Intelligence Directive 18. The FBI procedures are contained in “Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations.” Any changes to the procedures implemented pursuant to the Order require Attorney General approval, and such changes are also brought to the attention of the congressional intelligence committees as well as the Intelligence Oversight Board of the President’s Foreign Intelligence Advisory Board.
I think that the President’s legal advisor is the Attorney General, not the courts, and that seeking “advisory opinions from the courts” “ahead of time” would be a violation of the Separation of Powers doctrine.
That’s possible, but I don’t know one way or the other. That would however require an Attorney General who is impartial - something I seriously doubt in the case of Gonzales.
Thus when Ashcroft and Gonzalez wrote that unwarranted wiretaps would be legal if approved by the president, they were only pretending to be activist judges. That’s a little kinky.
They should have known better. They should be embarrassed. I think we’ve already settled that this was not lawful. The Congress is busy fighting about it now. Apparently, they (who write the laws) have “problems” with it. If it goes to the Supreme Court, I expect they will have “problems” too.
The problem with something being legal solely because the president said so, is that it is rule by decree. Then too there is that whole constitutional “thing” about being secure in person, home, papers, effects etc. The Attorney General can write anything he wants, the president can tell him to write anything he wants, but that in itself doesn’t make it legal.
A state of war is not a blank check for the president.
Can’t the President simply override the provisions of this Executive Order with a new executive order? Since press reports indicate Bush worked hand in hand with NSA here, how is violating the old EO a problem?
The thing that I find so perplexing is – what’s the use of such a shadowy program? Assuming that the subject of investigation is a bona fide terrorist target, why skirt the law when you can just as easily get a lawful FISA order to collect the intelligence?
Just one word to remember CoIntelPro.
They’ve done it before, and it looks like they’re up to it again.
The only question, is there a congress or senate member, with the guts of Frank Church, to make it all public?
The parallels to the revelations of the Church Committe report are uncanny. Foreign communication intercepts where a US person is a party. Physical security trumping civil liberties in an age of terrorism. Deja-vu all over again.
Alas, (as partner B. doubtless knows) expectation of privacy is term of art, and has nothing to do with the subjective attitude of the phone patron in the united states, nor the privacy standards or their lack in the foreign terminus.
And yes, you have an expectation of privacy when you use the telephone, ipso facto. Even a cell phone. Even a wireless phone that your neighbors baby monitor picks up. You are still entitled to expect privacy. It is the expecttion that is protected, not the privacy itself.
50 USC § 1809 criminalizes only that surveillance NOT authorized by statute. This particular surveillance is authorized by statute, specifically 50 USC § 1811 et seq:
I believe the President is treating the Congressional authorization to use force against terror as a declaration of war, based on the fact the surveillance of individual subjects under his order is limited to fifteen days.
But that’s what you pay your lawyer for…My father was a mob lawyer, and he used to crack up at people who came to lawyers to ask if such and such was legal. He said they are supposed to tell you what they want to do, then you give them lecture on the law, THEN
Isn’t it curious how the Bush administration has abandon morality on many issues, simply because it’s not illegal? I know morality and legality are out of step, but does that mean we should all discover these inconsistencies and take advantage of them? Maybe that’s what the legal system is all about, turning a deaf ear towards morality simply because it’s the legal thing to do.
Are you saying it’s immoral to tap international calls when the purpose is to discover terrorist plots and plans, and when the monitoring has actually produced information, arrests, and convictions for terrorist plots and plans?
Well, if you presuppose a purpose to be terrorism, you can pretty much do anything you want, from what I gather. Spy on your own citizens, go to war on cherry-picked intelligence, torture people, and anything else that can be perpetrated by the big honking camel’s nose under the tent.
Sadly, the moral high ground is quite distant from our current position now. Quoting chapter and verse a bunch of weasel words does nothing to alter the perception by a great number of our citizens and reasonable people throughout the world that we’re dirty, and not to be trusted. I’m amazed that the folks who lecture us on the evils of big government are supportive of perpetrating that which practically defines evil big government. It’s like being caught up in Animal Farm.