Talk:NSA warrantless surveillance (2001–2007)/Archive 2

Rename?

The title NSA surveillance without warrants controversy does not roll off from the tongue very easily... how about NSA surveillance controversy? Titoxd^{(?!? - help us)} 22:50, 22 December 2005 (UTC)

NSA surveillance is always controversial, even when it is done under a FISA court order. I think that title, while somewhat clunky, is accurate and limits the scope of the article. - Ta bu shi da yu 14:09, 23 December 2005 (UTC)

We could put "2005" in the title. Something like 2005 NSA controversy or 2005 NSA surveillance controversy would be better, in my opinion. Alternatively, or in addition, "surveillance without warrants" could be changed to "warrantless surveilance." Dave (talk) 01:50, 28 December 2005 (UTC)

No one has commented so far. Should I be bold? Dave (talk) 03:23, 29 December 2005 (UTC)

Go ahead! - Ta bu shi da yu 00:39, 30 December 2005 (UTC)

Done. I also created some redirects and fixed existing ones. I now have seven versions of this article on my watchlist :-) Dave (talk) 00:55, 30 December 2005 (UTC)

I think that this is a much better title. I've updated articles linking to the old title to point to the new title. mmmbeer^{T / C / ?} 03:03, 30 December 2005 (UTC)

NPOV

This seems to be pretty lopsided against Bush. Things that should be added are Jamie Gorelick's House testimony when she was in the Clinton administration that says the President has this authority. It should include the Aldrich Ames matter as a case when the President not only did this but ended up with a conviction. It should include Carter and Reagan did this. It should also include several court cases that uphold that this is valid. -- Jbamb 23:26, 22 December 2005 (UTC)

• Not much of a contribution to NPOV. Do some research and add it yourself. And then see if it sticks with these sticklers, lol! Holon67 00:56, 23 December 2005 (UTC)
  • Hey, maybe I'm a little busy. I only get a score of 157 on the wikiholic quiz... -- Jbamb 00:58, 23 December 2005 (UTC)
• Here's a 1982 Times article for you Court Says U.S. Spy Agency Can Tap Overseas Messages.--SVTCobra 01:31, 23 December 2005 (UTC)
• Here's a Thursday Washington Post - Judges on Surveillance Court To Be Briefed on Spy Program. Judge Colleen Kollar-Kotelly wants the other judges to hear the administration's reasoning. Contriving a reason for the surveillance was too difficult, Gonzales decided. Metarhyme 02:49, 23 December 2005 (UTC)
• I agree with Jbamb... let's do it folks! - Ta bu shi da yu 14:10, 23 December 2005 (UTC)
  • I'll take up the issues when I get back. I have a 40 page memo to complete. I think with the release of the DOJ memo, we can better balance the article. Most of what was out there before was conjecture about what was believed to be the legal basis for the president's authority. mmmbeer^{T / C / ?} 14:13, 23 December 2005 (UTC)

I'm all for having an "other presidents" or "history" section or something that can include past violations. I also think that we'll need to work on the legality of warrantless wiretaps section, which is currently quite scattered. I'm not sure that's really an NPOV problem, though. I may read some National Review articles on the subject to add more pro-Bush arguments, when I'm feeling less nauseated. Dave (talk) 02:18, 28 December 2005 (UTC)

Cass Sunstein, who is no fan of Bush, argues that the monitoring is at least arguably legal. A New York Times op-ed argues in favor of Bush as well. I'm not sure how to insert these; we probably want a daughter article for the legality section. In the mean time, ya'all can be bold and put this stuff in or wait for me to do it, whichever you prefer. Dave (talk) 02:55, 28 December 2005 (UTC)

Is it possible to have an NPOV article on the legality of this if the legal community and experts in the field can't even come into a consensus? -- Jbamb 17:43, 31 December 2005 (UTC)

The better question is whether this article is still so POV as to require the NPOV banner. I personally don't think it is. mmmbeer^{T / C / ?} 20:40, 31 December 2005 (UTC)

I agree with Beer. Mmmm. Dave (talk) 00:00, 1 January 2006 (UTC)

:This article still needs massive NPOV work. I saw sections which stated a conclusion that the warantless surveillance is backed by caselaw something that I and many others from both political parties would disagree with. -- SusanLarson ^{(User Talk, New talk, Contribs)}10:20, 2 January 2006 (UTC)

I hate to sound like a jerk, but it doesn't matter if you disagree with conclusions held by analysts. Their conclusions were recorded and cited, not held forward as fact. Make sure you evaluate the article's content, not just scan for phrases in contrast with your point of view. DRJ 14:15, 5 January 2006 (UTC)

Also, if you actually READ the article, you'd see that the section that supports of the idea that case law MAY support a president's Art. II authority in this situation is far more nuanced than you right. The very last paragraph has a significant caveat--namely that no court has really addressed the issue at hand. However, court HAVE in the past supported very broad interpretation of the executive's authority on issues of security. If you wish to dispute that, go ahead. Also, this is not to suggest that other important authorities on the issue do not exist (see the Federalist papers), but they're not case law. mmmbeer^{T / C / ?} 15:07, 5 January 2006 (UTC)

::: I am going to have to be a jerk right back, I apologize in advance. The POV of an article can be skewed simply by quoting one sides point of view to exclusion of the other. I am saying the article should present both view points that it is legal and the view point that it is not and the justification for both of them and then let the reader decide. This section appears to echo the talking points used by the administration to justify their actions. Get some arguments for the other side and go from there. I am not saying I support the program or that I don't. I am just saying it needs balance. Other than that I think the point of view of the article is fine. -- SusanLarson ^{(User Talk, New talk, Contribs)} 08:32, 6 January 2006 (UTC)

::: I propose to replace POV with POV-section in the Legal issues section. -- SusanLarson ^{(User Talk, New talk, Contribs)} 08:32, 6 January 2006 (UTC)

NPOV back due to sockpuppet newlead

Rather than revert, research lead placed above the article by a suspected sockpuppet. But if there is no motivation to keep the place up, a couple of labels is going to be the extent of my maintenance. Metarhyme 17:47, 26 January 2006 (UTC)

Responding to determined POV & sourceless stuff, replacing NPOV with Controversial3 tag. 207.172.134.175 19:17, 27 January 2006 (UTC)

Massive rewrite of the legality section

I was bold. I've done two things. First, I wrote up a summary of the significant legal arguments. SEcond, I've moved the notable legal commentary to it's own section. I think that this fills in the actual issues much better. mmmbeer^{T / C / ?} 16:29, 28 December 2005 (UTC)

It's cool, it's good to be bold on these sort of articles, lest they become crufty. - Ta bu shi da yu 01:13, 29 December 2005 (UTC)

Thanks. Yeah, and it was in pretty silly shape before. A compilation of commentary wasn't particularly clear. mmmbeer^{T / C / ?} 01:29, 29 December 2005 (UTC)

Looks good. Two issues:

1. Could we get more sources for the stuff you wrote? Specifically, I'd like to see sources for what you said about previous administration and about the existinc case law, so it can be verified by readers.
2. I'm not sure what the following three paragraphs mean or how they relate to things:

On the other hand, the Fourth Amendment protects the "right of the people to be secure... against unreasonable searches and seizures". It continues that "no Warrants shall issue, but upon probable cause". A number of cases have found that authorization for surveillance under FISA did not violate the Fourth Amendment. The Fourth Amendment is couched in reasonableness, and the courts have long recognized exceptions from the warrant requirement for "special needs" outside "the normal need for law enforcement." In In Re Sealed Case, the court recognized foreign intelligence surveillance is different from surveillance used for criminal prosecution.

In addition, courts have rejected arguments under the Due process or the Equal protection clauses. This is not clearly the case for authorization given to the NSA by the President.

Importantly, courts addressing the President’s inherent authority have done so with respect to surveillance of foreign powers, their agents and those communications incident to such surveillance. The courts have never specifically addressed whether such power extends to very broad authorization, which may more broadly cover the communications of US persons.

Dave (talk) 03:52, 29 December 2005 (UTC)

Thanks. I think it's a lot clearer now. Dave (talk) 20:55, 29 December 2005 (UTC)

Thanks, I try. mmmbeer^{T / C / ?} 02:54, 30 December 2005 (UTC)

Footnotes

Just a friendly reminder for everyone to help out with the footnotes. If you add one or delete one, make sure it works and is in the right order. I had to put up the {inuse} template for more than 20 minutes while I fixed everything, and may have prevented someone from making more useful edits. Everything should be working now, though :-). Dave (talk) 03:09, 29 December 2005 (UTC)

I went through and fixed them as several had been added out of place. Also formated them all the same. [url title] other text; Author, Source; date. -- SusanLarson ^{(User Talk, New talk, Contribs)} 10:18, 6 January 2006 (UTC)

Is everyone aware that they can now just use a <ref>example text</ref>? You just have to add <references /> to get them to show up. Example<ref>Example 1</ref>

<references />

Ta bu shi da yu 07:13, 19 January 2006 (UTC)

What would be a good way to do them a little at a time? There are a lot of them. Metarhyme 19:02, 19 January 2006 (UTC)

Today's feature article has a robust footnotes section. The way it was done there was to hide the footnotes in the body of the article and project them into the footnotes section so that they keep their order in case they are moved from one place to another in the article. At the moment this NSA controversy article has a sometimes malfunctioning mixture - the footnotes at the bottom can easily be incorrect. Would the style of footnoting used in the War of the League of Cambrai article be better? Metarhyme 07:03, 14 January 2006 (UTC)

Perhaps, however the footnotes would work fine if people didn't go into the article adding direct references [http://www.nybooks.com/articles/18650] That messes up the numbering system and makes them get out of order. I have fixed them in the process replacing 5 new inline references with proper footnotes. -- SusanLarson ^{(User Talk, New talk, Contribs)} 05:09, 19 January 2006 (UTC)

I saw that - it's a hassle, isn't it? People ought to extend direct references [http://www.nybooks.com/articles/18650 ON NSA SPYING: A LETTER TO CONGRESS] so that the footnote numbers don't get messed up, true, but I don't think it's realistic to expect it. I'm not sure what would happen if it were Cambrai'd. Metarhyme 18:33, 19 January 2006 (UTC)

I have started to in-line the footnotes as Ta bu shi da yu suggested. Metarhyme 04:19, 31 January 2006 (UTC)

Someone should double-check me

I'm not a lawyer, and I wanted to make sure that this edit interprets Kerr correctly. Thanks for checking up on me, Dave (talk) 22:51, 29 December 2005 (UTC)

More or less. Good job. 208.27.111.121 21:55, 5 January 2006 (UTC)

Clarification

This article states that "Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order". I have read parts of FISA (I had to for research into Title II of the Patriot Act), and I don't remember reading this. I do remember reading that the surveillance can be renewed for up to a period of one year by the FISC. I don't think they can actually do surveillance for up to a year without a court order!

Can we get a source on this statement? I would be happy with a reference to FISA or the U.S. code. - Ta bu shi da yu 23:35, 29 December 2005 (UTC)

• I've added the citation to 50 U.S.C. §1802(a)(1) which explicitly authorizes this. mmmbeer^{T / C / ?} 02:51, 30 December 2005 (UTC)

Editorializing

These sections were added by an anonymous user/users. The "technical" section may have a lot of true statements (I've read some pretty scary things about data mining) it needs to be verified. I don't know about the other one. Dave (talk) 02:57, 30 December 2005 (UTC)

• If the Technical issues section is just speculation, revealing classified information might not apply. If verified, it would reveal SIGINT strategies and methods - codeword classified. The Political control section isn't a felony. Metarhyme 16:19, 30 December 2005 (UTC)

• It's a copyvio - I saw this text somewhere on the web, not sure where though. 207.172.134.175 17:27, 5 February 2006 (UTC)

Technical issues

While the NYT respected the administration request to limit disclosure to the fact that domestic calls were being wiretapped and avoid the technical issues, a combination of leaks, disclosures about related programs, and NSA history has brought forward a fair description of the new class of capabilities being used.

• Record it all, sort it out later.

Recording is not of specific calls, it is the entire content of major telephone and internet trunks. Satellites previously used to pick up microwave telephone links of other nations have been repositioned to harvest all calls passing through particular USA links. This information is brought in and bulk stored, totally without warrant.

• Looking backwards: Retrospective review.

When an investigator develops interest in a person, they can then look backwards in time, studying their phone calls from months or years ago. If they speak to someone else, that number can likewise be followed through the system. Given your phone number, your last few years of calls can be called up.

• Cross reference with other data sources

Similar mass harvesting of e-mail and other data through government requirements such as [Carnivore] imposed on Internet Service Providers allows review of e-mails, phone calls, travel, and medical records from the same console.

• After the fact application for FISA warrant

Once a suspect has been identified by these means, it becomes possible to know where to look and what to look for to build a "laundered" case file which can be used to apply for an FISC warrant.

• Used to build database for VOICECAST and related systems

A systematic survey is used to build a library of voiceprints by scanning telephone lines and correlating them with voiceprints found on them. This is fed into systems such as VOICECAST which are used to automatically identify you when you try to make an anonymous phone call. The system correlates the voiceprint back to the sounds monitored on the person's most frequently used home or cell phone, once it has harvested the templates from scanning all lines.

• Switching design defeats controls.

The cut-in to the nation's major trunk lines makes available all traffic to the wiretapping electronics. Regardless of what system is then claimed to reduce access to the traffic, modern computer switching is such that consoles can be set up with unfettered access to the raw information, bypassing any hardware imposing restrictions and audit trails. It is easy to show or claim a console with restrictions and claim they exist, but the technical reality is all traffic becomes available once the initial ultra-broadband tap is in place.

Political control

While most discourse focusses on terrorists, the unrestrained power claimed by the Executive Branch to override the other branches has caused great concerns about the future of domestic politics. Federal executive branch wiretaps, considered improper as recently as the 1960's have a long history of abuse in American politics. From LBJ using them to monitor activity leading up to the 1968 Democratic Convention as a political tool against RFK, to J. Edgar Hoover sending wiretap tapes to Martin Luther King and suggesting he commit suicide, to the famous cable splice connecting all traffic in the telephone exchange of Congress to an FBI safe house where it was monitored, to Richard Nixon, dirty business with wiretaps has been a recurrent violation by the exective branch. While many people state they have nothing to hide and would be personally unaffected by wiretaps, as a representative democracy, most skulduggery occurs by wiretapping elected representatives of Federal and State legislatures and other officials or persons of influence to gather material for blackmail, anticipate their thinking, and find vulnerabilities. While wiretapping was once considered questionable, in recent times, the Federal Executive has advanced the 21st century notion that they have a right to impose technology mandates to force any communications medium to be redesigned to technically facilitate wiretapping. For example, VOIP internet telephone was held back from FCC standardization by the FBI until an order was issued requiring conformance to technical standards that allowed convenient FBI wiretapping. The unwillingness of the government to permit any new telecom medium to exist where people can communicate without a backdoor the government can listen at coupled with the assertion that they are entitled to have the same wiretap access as they had in the previous medium as a right has drawn controversy, as the wiretap access they had in the past is held by many to be just the kind of intrusive government procedure the Fourth Amendment was targeted to prevent.

Legal analysis' "statutory exemption" paragraph

I'm looking at recent changes to the legal analysis of AUMF as statutory authorization under FISA. Let's be clear here, there are two ways to use AUMF under FISA. First, it could be understood as a declaration of war for purposes of 50 U.S.C. §1811. In this case, you get into the semi-ambiguous language which permits the president to "authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress". I take it that the person that made the change read this to mean "in the 15 days following a declaration of war the president may authorize indefinite surveillance". That may be one interpretation. The other way to read it is, "after a declaration of war, a president can authorize surveillance for periods not to exceed 15 days". Either interpretation seems to work.

Second, as I originally intended the paragraph and the interpretation relied upon by the administration, AUMF may provide an out from criminal and civil liability under 50 U.S.C. §§ 1809 and 1810. Under those provisions (and the analogous ones for physical searches), there is no liability if the actions were "authorized by statute". AUMF may be such statutory authorization.

I am going to revert the paragraph tomorrow morning if no one objects. As it is now, I'm not even sure that it gets the law correct. mmmbeer^{T / C / ?} 03:59, 30 December 2005 (UTC)

Regarding the 15 day exemption in 1811, the interpretation that it means "in the 15 days following a declaration of war the president may authorize indefinite surveillance" is not supported by the legislative history. Neither is "after a declaration of war, a president can authorize surveillance for periods not to exceed 15 days". Rather, the legislative history shows that it was designed to “allow time for consideration of any amendment to [FISA] that may be appropriate during a wartime emergency.” The following is footnote 91 of the Congressional Research Service memo, on the legislative history:

This provision originated in the House version of the bill, which would have allowed the President to authorize electronic surveillance for periods up to a year during time of war declared by Congress. The conference substituted a compromise provision authorizing electronic surveillance without a court order to acquire foreign intelligence information for 15 days following a declaration of war. H.R. CONF. REP. NO. 95-1720, at 34 (1978). The 15-day period was intended to “allow time for consideration of any amendment to [FISA] that may be appropriate during a wartime emergency.” Id. The conferees also expressed their intent that “all other provisions of this act not pertaining to the court order requirement shall remain in effect during this period.”

Moreover, the Administration (as reflected in the DOJ letter) did not advance the two interpretations discussed here, and a Jan 9 letter from 14 highly respected law professors and former government lawyers interpret Section 1811 to mean "the law limits warrantless wiretapping to the first fifteen days of the conflict." [1].

Removal of NPOV flag?

Is the neutrality of the article still in serious dispute? I think as it stands it does a decent job of being NPOV. I'd be inclined to remove the NPOV flag if no one has a specific objection. -- John Callender 16:58, 31 December 2005 (UTC)

I'm not certain about removing it. The problem, I suggest, is that much of the article concerns a legal analysis of what happened, but such is inherently speculative. Until the various issues go before an actual US court and the various legal arguments are tested, it is difficult to say anything verifiable that isn't just "one analysis says this..." and "one analysis says that...". Those analyses are obviously politically sensitive. So, what is the best way of handling the uncertainty? I don't think we've found it yet, because the article still reads in parts as saying "this is the truth" over matters that remain unclear (e.g. is the US at war). Bondegezou 17:17, 31 December 2005 (UTC)

Part of the problem is that this is still fresh news, and the problem with the media lately is that they run to press so quickly before the issues are fully vetted and we only get skin-deep details. If you ignore the fact that the NY Times sat on this story for over a year before publishing it. 171.159.64.10 13:56, 7 February 2006 (UTC)For instance, this only monitored calls for data-mining that either came from overseas or went overseas (with an emphasis on Afghanistan). Much of the public debate seems to miss that point. Some of this has been tested in court, to a degree. Before FISA, appeals courts held that the President can do warrantless searches in the case of agents of foreign powers only. Does that apply to this situation? Maybe. It's hardly as nefarious as it is presented because it is subject of intelligent debate. However the media has a vested interest in conflict. It gets people to tune in and boost advertising revenues. It's probably impossible for this to ever get NPOV until the dust settles. -- Jbamb 17:42, 31 December 2005 (UTC)

I don't think I can do NPOV here. The NYT report that the program's expansion was resisted needs some text. I could flesh out the brief mention but I hope someone else will. Metarhyme 05:18, 1 January 2006 (UTC)

Silly question ,but how is it that an article is POV because the ultimate legal conclusion is currently unknowable? While it's true that non-inclusion of relevant information might be POV; this doesn't really seem to be the case here. Indeed, if anything, this is a relitively inclusive. Likewise, saying the the article is in need of expansion doesn't make it POV either. So saying that we haven't fully incorporated particular source material doesn't mean that it's POV. I see nothing from the nays (as in, keep the NPOV tag) to suggest it really is POV. mmmbeer^{T / C / ?} 15:11, 1 January 2006 (UTC)

I would be very conservative about removing the NPOV tag. I have problems with the POV of certain sections as it currently stands. If the POV of various positions in the controversy can be fairly presented, that's the best one can hope for. For example, I would note that Yoo's opinion is at odds with James Madison's in Federalist No. 51Billbrock 01:59, 2 January 2006 (UTC)

OK, I heard you volunteer there to clean up my mess. Metarhyme 04:02, 2 January 2006 (UTC)

: One word yes I seriously dispute the article as it currently stands. Conclusions of fact are stated as undisputed in the article and that needs to be fixed. -- SusanLarson ^{(User Talk, New talk, Contribs)} 10:23, 2 January 2006 (UTC)

See above, I proposed POV be replaced with POV-section and go from there. -- SusanLarson ^{(User Talk, New talk, Contribs)} 08:34, 6 January 2006 (UTC)

Number of legislators briefed?

The article says that 4 were briefed about the program. The WP article it cites says that one person briefed four legislators. Two other sources say that eight legislators were briefed[2][3]. I believe that it's possible that one person briefed four and another person briefed four, bringing the total up to eight, and the article should be changed. Does this look correct to everyone else? Dave (talk) 00:07, 1 January 2006 (UTC)

Should include Kennedy who was apparently briefed and expressed support a few days prior to this story being broken and then expressed moral indignation... I'll find a source. -- Jbamb 01:01, 1 January 2006 (UTC)

NYT

Will someone with a neutral point of view please expand on the Times' New Year's day report on the Bush subordinates unwilling to break the law? I inserted a lead with a footnote linked to the piece at the bottom of the NYT story section. Metarhyme 04:58, 1 January 2006 (UTC) -- The (52 page pdf!) Memorandum from Samuel A. Alito resulted in Mitchell v. Forsyth, [472 U.S. 511] (1985) which cited United States v. United States District Court [407 U.S. 297] (1972). Both cases concern warrantless wiretaps. The '72 case was decided 8-0; opinion by Powell,J.: "The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power." & "These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] Branch." Plamondon, was charged with the dynamite bombing of an office of the Central Intelligence Agency in Ann Arbor, Michigan but John N. Mitchell wouldn't let him see the evidence against him. The case centered on interpretation of 18 U.S.C. 2518, subsection (1), and the competence of judges to assess the need for a wiretap. SCOTUS found that judges were competant. The Alito memo case is more weird, but in short John N. Mitchell was sued by Forsyth, whom he'd bugged. SCOTUS found Mitchell had conditional immunity on narrow grounds. New York Senator Schumer has written a letter to Alito asking if he'd changed his mind about unconditional immunity for cabinet members. Metarhyme 11:28, 1 January 2006 (UTC)

Register-Guard op-ed piece

There's a Register Guard op-ed article that I think is pretty interesting. - Ta bu shi da yu 01:37, 2 January 2006 (UTC)

The President's cabinet officers do not certainly have immunity, which is a snag in the "unchecked power" pitch. Alito counseled holding off on asking unconditional immunity for them in his memo on Mitchell v. Forsyth. The right of citizens to be free from unreasonable searches and seizures is protected by the 4th Ammendment to the United States Constitution, which applies to electronic eavesdropping domestically. NSA is supposed to refrain from spying stateside. Metarhyme 09:01, 3 January 2006 (UTC)

Badly phrased

In a press conference on December 19th by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, General Hayden argued that the FISA process, even under an emergency authorization by the Attorney General, would not meet the program's necessity for agility and speed. He revealed that the actual decisions regarding interception were made by a shift supervisor with the approval of another person, operating under general guidlines, suggesting that the process is a real time or near real time process. General Hayden revealed that the surveillance program had been successful in circumstances where FISA was deemed inadequate:

Q Have you identified armed enemy combatants, through this program, in the United States?

GENERAL HAYDEN: This program has been successful in detecting and preventing attacks inside the United States.

Q General Hayden, I know you're not going to talk about specifics about that, and you say it's been successful. But would it have been as successful -- can you unequivocally say that something has been stopped or there was an imminent attack or you got information through this that you could not have gotten through going to the court?

GENERAL HAYDEN: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.

Q Through the court? Because of the speed that you got it?

GENERAL HAYDEN: Yes, because of the speed, because of the procedures, because of the processes and requirements set up in the FISA process, I can say unequivocally that we have used this program in lieu of that and this program has been successful.

Gen. Hayden also commented on the provisions in FISA allowing for emergency authorization by the Attorney General prior to obtaining a warrant. He stated that even an emergency authorization under FISA required marshaling arguments and "looping paperwork around". He implied that the decisions on whom to intercept were being made in real time or near real time by a shift supervisor and another person, but refused to discuss details of the requirement for speed.

---

Seems to repeat itself... can we rephrase? - Ta bu shi da yu 09:23, 3 January 2006 (UTC)

In a press conference on December 19th by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, General Hayden said, "This program has been successful in detecting and preventing attacks inside the United States." Gen. Hayden also commented on the provisions in FISA allowing for emergency authorization by the Attorney General prior to obtaining a warrant. He stated that even an emergency authorization under FISA required marshaling arguments and "looping paperwork around". He implied that the decisions on whom to intercept were being made in real time or near real time by a shift supervisor and another person, but refused to discuss details of the requirement for speed.
Metarhyme 18:33, 3 January 2006 (UTC)

Hearing no dissent, rephrasing substituted for ta bu shi da yu complaint content. Metarhyme 18:24, 4 January 2006 (UTC)

Sorry I haven't commented! This looks much better :) Well done Metarhyme. - Ta bu shi da yu 09:18, 5 January 2006 (UTC)

If no one truthful, then confusion. Laws of physics have truth. Laws of humans not. Thus one who understands may take up the one thing and put down the other. So I stop editing this article and start chasing lines in space with math, due to its being a more fruitful activity. 207.172.134.175 22:38, 6 January 2006 (UTC)

The NYT report

I think we need to fix the "The New York Times report" section. Among the necessary changes: keep it related to the original (and all directly related) articles about the disclosure of the NSA surveillance scheme. In some sense, the NYT's role is important: the one year delay, the new book, the actual disclosure of classified information, etc. I'm not sure that the section is about those things any longer. It seems to have become a collection of revelations in the media--some substantiated, some not.

There's a certain level of incoherence there currently. mmmbeer^{T / C / ?} 22:04, 4 January 2006 (UTC)

• Today's editorial is redolent of indignation with them for breaking the story. What happened is continuing to come from their reports, in reverse chronological order. Could the section be a push down stack, with the latest first? Also, while some are very interested, it seems to me that generally people don't want to hear about any of this. Metarhyme 01:11, 5 January 2006 (UTC)

OK, I pluralized "report" and push-down stacked it, tightening the latest items. It's a safe assumption Bush's Executive Order is classified. Someone else may want to trim the December 16,2005 bit. Metarhyme 05:19, 5 January 2006 (UTC)

Also, Reaction in the press

On a somewhat related issue, I'm not sure what the purpose of the "reaction in the press" how are the responses of several unsigned editorials indicative of any real substance? There's lots of mad people about every topic. A better section might be "reaction OF THE press" given the First Amendment questions regarding the disclosure of classified information.

As it stands now, I'm not sure that there's anything there of value. The cited papers aren't particularly huge authorities either. mmmbeer^{T / C / ?} 22:07, 4 January 2006 (UTC)

I have research on two pages which is very useful for press links This is Wiretap and The RSS Wiretap Newsgrabber (the latter takes a minute to load sometimes). Caribmon 10:29, 14 January 2006 (UTC)

Executive Order 12333

Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence said, "[Hayden] had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities." First of all, in the congressional reaction section, I footnoted this to 3, the NYT Hayden story, but it shows footnote 25. Someone needs to fix that - I don't know how. Next, there is a question about whether eo12333 authorizes the head of the NSA to do what he did. Emmel may be relying on The Intelligence Community sections (a) through (e), and after he got approval (f) of eo12333. Before he got approval sections Collection of Information, Collection Techniques, Attorney General Approval, and Consistency With Other Laws and others of eo12333 read like prohibitions, rather than authorizations. We wait for someone to bellow? Metarhyme 04:18, 5 January 2006 (UTC)

Bad flow...

On January 4, 2006, The New York Times printed a story revealing that General Michael Hayden, director of the NSA in 2001, commenced warrantless blended international/domestic surveillance, basing his authorization on Executive Order 12333, which is based on the National Security Act of 1947.^[4]

On January 1, 2006, The New York Times printed a story revealing that aspects of the program were suspended for weeks in 2004. The NYT story said the U.S. Attorney General's office balked in 2004 when asked to give approval, then James B. Comey "played a part in overseeing the reforms that were put in place in 2004," but the oversight by the NSA shift supervisor continued to be unfettered by any pre-approval requirement. The story also said that there had been resistance at the NSA to the program. ^[5]

On December 16, 2005, The New York Times printed a story revealing that, under White House pressure and with an executive order from President George W. Bush, the National Security Agency had been conducting warrantless phone-taps on people in the U.S. calling people outside of the country, in an attempt to combat terrorism. ^[6]

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. The agency, they said, still seeks warrants to monitor entirely domestic communications.

According to the Times:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

Some have claimed that the New York Times' decision to publish the article may have also violated U.S. laws protecting highly-classified information. In the past, prosecution for publication of highly classified information has been muted, in large part due to the inherent risks of exposing even more classified information during the process of adjudication.

This really doesn't flow, and besides which is out of chronological order. Anyway we can get this improved? Also, it states that "Some have claimed" - this is a weasel word. Who claimed this? - Ta bu shi da yu 07:26, 5 January 2006 (UTC)

• Propose a general scheme, please. Did you like how I handled your last request? This whole thing is 39KB and growing -- too long. Is there a very good reason why you can not find out what you want to know and tighten the Dec. 16th section of this NYT section? While you're finding out who said the NYT broke the law, you might want to think about how to shrink and restructure the entire article - not such a trivial matter. For instance, Gonzales has stated the reason why Congress wasn't asked to amend the FISA - it wouldn't have done it - but this is lost in a footnote, whereas it should be in the Hayden-Gonzales press conference section. Metarhyme 08:52, 5 January 2006 (UTC)
  • Well, I'm not rightly sure how I'd do it... however, January 1 comes before Jan 4th... so wouldn't it be better to mention this first? Also, each sentence starts with "On <such and such a date>" - the repetition makes it a might unreadable. That's my general comment. Sorry about not commenting on the previous rephrasing, btw. You did a good job! I think you're right.. the article might need a major restructure or at least refactoring. - Ta bu shi da yu 09:22, 5 January 2006 (UTC)

"The NSA subsequently"

The activity preceded the Executive Order in 2002, so the article's statement that

"The NSA subsequently began performing wiretaps on international communications"

at the beginning of the article isn't accurate. It's clear from Pelosi's letter to Hayden that it was going on in October of 2001, and the Blogosphere has it starting right after Bush was sworn in, but that isn't a good citation. If the NSA went ahead on a wink and a nod, accepting that into the article means a drastic change. It seems to me there is a general will to play ostrich on this topic - we really don't want to know who did what when, but the misstatement of fact - this lie in the article - bothers me. Does it make anyone else feel uncomfortable? Metarhyme 19:32, 15 January 2006 (UTC)

Hello, anybody out there? I guess MLK day tentatively ends Christmas, which is firmly finshed by Valentine's day. Cases filed in motown and manhatten seek to have the courts order warrantless surveillance stopped. I don't expect this article ever to make it to featured status, but I guess it could be better. Sure looks like I'm just whistling in the dark here... Metarhyme 11:35, 18 January 2006 (UTC)

Sorry -- I should have realized the import of this talk-page header. Yes, "subsequently" bothers me too. We need a revision, not sure what it should be just now. BYT 12:59, 18 January 2006 (UTC)

Reading State of War by James Risen - maybe a clue there. Thanks for responding. Metarhyme 15:21, 18 January 2006 (UTC)

Metarhyme, maybe I'm mis-inferring from your first post in this subsection, but are you insinuating that Domestic Surveilance by the NSA began as soon as Pres. Bush was sworn in? I don't have all the sources memorized, but you'll find plenty, both here and on various other web pages to document that other Administrations have exercised this power...from Reagan's to Clinton's. In fact some were more nefarious and egregious that what is currently being talked about. See, for example, President Clinton's use of Echelon in spying on right wing militia groups (both before and after Oklahoma City). I'm not advocating whether it is right or wrong (or constitutional or unconstitutional, for that matter), I'm just saying we need to stop pretending like this is something new. As long as the use of these tactics are necessitated by National Security, it falls within the pervue of Article II Presidential Powers. (I mean, come on, the President, in his role as Commander in Chief, can legally track down and KILL terrorists across the globe, but he can't listen in on their phone calls, just because the recipient/initiatior happens to be in the US or a US citizen). Sorry, now I'm rambling....I'll save it for the blogs.  :-) User:RShackleford 23:10, 06 January 2006 (UTC)

dftt's Metarhyme 00:02, 7 February 2006 (UTC)

Congressional agency cites apparent violation of '47 law, as well=

http://www.truthout.org/docs_2006/011906I.shtml

Justice Department

On January 20, according to Los Angeles Times and other news papers, the Justice Department defended President Bush's surveillance program (http://www.latimes.com/news/nationworld/nation/la-na-spy20jan20,0,2000868.story?coll=la-headlines-nation). At first glance, the defence seems to lend credibility to the Bush Administration use of surveillance. However, a further look reveals that the Justice Department, run by the Attorney General (Alberto Gonzales), belong under the President's Cabinet (http://en.wikipedia.org/wiki/Justice_Department, http://en.wikipedia.org/wiki/United_States_Attorney_General). This means that Attorney General Gonzales ultimately answers to President Bush. This should challenge the credibility of the Justice Department's statement, in my view, due to a conflict of interest. -PJ

Yesterday I put that and Cheney's speech in the Administration Response section. The DoJ website hasn't posted anything on their (40 page?) analysis reportedly sent to congress - maybe it's secret. If the pdf shows up there should be a link to it.

The pdf is available at http://hotlineblog.nationaljournal.com/archives/White Paper on NSA Legal Authorities.pdf so the 42 page white paper is not secret. I linked to it in the article. Metarhyme 21:44, 21 January 2006 (UTC) Also at FindLaw but not yet on DoJ main page. The article footnotes are synched at the moment - that won't last. Bye. Metarhyme 13:40, 22 January 2006 (UTC)

The judicial branch (which is not Gonzales et. al. - it's the judges and courts) could try to settle the argument, but it doesn't have to - it could decide to tell the other two branches to work out their differences. At least a dozen high level officials in the executive branch have been covertly talking to reporters, indicating that the executive branch is divided. The legislative branch is also divided. The judiciary is divided. The media is divided. The People is divided. Maybe world opinion counts, also. Metarhyme 18:38, 20 January 2006 (UTC)

Won't Spy on Innocent Americans

According to Gen. Michael Hayden, who The Merrcury News refers to as the nation's No. 2 intelligence official, defended domestic eavesdropping by insisting that the U.S. doesn't waste time spying on innocent Americans [my emphasis] (http://www.mercurynews.com/mld/mercurynews/news/politics/13697424.htm). Does this mean that it is ok to spy on innocent non-Americans? Furthermore, who says that the person who in fact is under surveillance is not innocent? "Innocent" is a legal label, just as "guilty" is, and it is up to a court to determine whether a person is innocent or guilty. So either the NSA are overstepping their authority when deciding for themselves who is innocent and who is guilty, or there must be a prior sentence. Now if there is a prior sentence, the question to ask is 'of what?'. Will any prior sentence do, like a speeding ticket, or does it have to be related to the reason for which he is being spied on? What in fact is Hayden saying? -PJ

Well, yes. A FISA based surveillance order is authorised by the FISC if there is probable cause that a person is an agent of a foreign power. This applies to Title II of the Patriot Act, the specific sections that I'd suggest that you review are Section 214: Pen register and trap and trace authority, and Section 215: Access to records and other items under FISA. Section 215 states that the US Govt may "make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities".

Now the definition of foreign intelligence is defined in 50 U.S.C. § 1801(e)(2) to mean "information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to the national defense or the security of the United States; or the conduct of the foreign affairs of the United States."

From what I understand (please be aware IANAL) the court is not meant to decide on the validity of the information when they authorise the order (the lawyer Andrew McCarthy says that "it is not the judiciary’s place to question bona fides of a co-equal branch carrying out its own constitutional function"), but it is meant to authorise the order based on whether it does or does not violate the constitutional rights of citzens. The FISC's role in the FISA surveillance order is to make sure the executive branch is not abusing its powers. They don't decide whether the surveillance is actually correct and supervise the order, they just make sure that the surveillance is being done in accordance with the law, and doesn't step outside of this.

Hope this makes sense. - Ta bu shi da yu 03:05, 27 January 2006 (UTC)

Time of initiation of domestic spying

From http://www.truthout.org/docs_2006/011306Z.shtml:

The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.

The NSA's vast data-mining activities began shortly after Bush was sworn in as president and the document contradicts his assertion that the 9/11 attacks prompted him to take the unprecedented step of signing a secret executive order authorizing the NSA to monitor a select number of American citizens thought to have ties to terrorist groups.

truthout.org is a partisan website, but it seems to me the notion that, like invading Iraq, he considered or started this before 9/11 is note-worthy. Have any more credible sources confirmed this? Ken 19:43, 24 January 2006 (UTC)

It's murky. The article used to read, "The NSA subsequently" which got corrected after I pleaded your plea (see above). Removing contested NPOV from the article (it is drifting back) took many hands more than a week. When Coleen took over as head of the FISC I think she got the act cleaned up somewhat - that's the 2004 rukus. If she did have a role, due to its secrecy it can't be cited. I think it's like the NOLA 18 wheelers wandering all over the place ultimately to drop off the ice in Maine. They were trying. That would have been kept secret if it could have been. Signing statements might be the next scandal. Metarhyme 20:22, 24 January 2006 (UTC)

truthout.org is indeed a very partisan website. Ken's quote above is their take on the "declasified documents", not a quote from the "declasified documents" themselves. While it may be true that "the (NSA) advised President Bush in early 2001 that it had been...", nowhere is it confirmed that the "NSA's vast data-mining activities began shortly after Bush was sworn in..." That is truthout.org's spin. As I said above in another subsection, this has been going on for many previous administrations. For example President Clinton's use of Echelon in spying on right-wing militia groups. Again, I'm not saying whether President Bush is right or wrong. But we need to stop pretending like this is something new. The issue is not when this began. The issue is the president's goals/motives/rationale. Warrantless surveilance is constitutional in the President's role as Commander-in-Chief if necessary to protect National Security or prosecute a war. It is most definately not constitutional if used for law-enforcement, political or personal purposes. User:RShackleford 04:00, 07 February 2006 (UTC)

I recommend your checking out Signing statements which contains this sentence: "In Chadha in particular the Supreme Court makes clear that anything which threatens to place the entire control of all three branches of government in a single source is tyranny and against everything the constitution stands for." In Re Sealed Case ruled it can be used for law enforcement. Presidents besides Nixon have used warrantless surveillance for political and personal purposes. The Foreign Intelligence Surveillance Act was crafted to end the abuses. Bush getting caught has upset some Senators - not just democrats. Metarhyme 05:20, 7 February 2006 (UTC)

The Power of Names

Bush insists that the program should be referred to as "terrorist surveillance program" rather than "domestic spying without a warrant" (http://msnbc.msn.com/id/11018747/). It will be very interesting to see if the media catches on to this new term, discarding the old one. The new term definately have a different connotation from the old one, adopting the power word (http://en.wikipedia.org/wiki/Power_word) "terrorist". As the issue over inheritance tax illustrates, the terms used can come to influence opinion (see "Death-tax" http://en.wikipedia.org/wiki/Death_tax). PJ 13:14, 29 January 2006 (UTC)

It will probably go about as far as "homicide bomber" did. Still, it is worth mentioning in the article as it shows the attempt to redirect the issue away from the real topic. --StuffOfInterest 14:38, 25 January 2006 (UTC)

Actually, it is an attempt to redirect the issue to the real topic. If Al-Qaeda is calling people or vice-versa, whether here in the US or anywhere else, I want the government to know what's being said, immediately. And this is within the President's pervue as Commander-in-Chief under Article II. Terrorists are terrorists whether they're using a domestic phone or a foriegn one. User:RShackleford 04:15, 07 February 2006 (UTC)

I have added a sentence on the use of this term in the "Administration's respose" section. Kgwo1972 17:37, 26 January 2006 (UTC)