Talk:NSA warrantless surveillance (2001–2007)

FISA Discussion

This article, so far, is poorly written and a bit overblown. An actual evaluation of FISA reveals that the President does have the legal authority to order electronic surveillance without court order, even on conversations taking place between folks inside of the US and folks outside of the US. You can read the law here [1] and a (probably conservative) evaluation of FISA here. [2] Let's work to improve an article that can be a contribution rather than a smokescreen for political viewpoints. DRJ 14:35, 20 December 2005 (UTC)

DRJ, what provision authorizes the wiretaps? The section you cite has exceptions that are inapplicable here. See [3].

I'll link you to another evaluation that might be about as skewed as Kerr's (who starts off by stating that he thinks the activity was likely illegal (hardly a fair starting point). This evaluation starts off with the notion that it was probably legal and goes through an explanation of why. Unfortunately, the actual law is receiving little press time, and of course, this is standard; if you remember the general ignorance regarding the Libby/Rove controversy, Plame would have had to have been on a covert opp within the five years prior to the "revelation," which, of course, she wasn't. Anyhow, that was a long ax and it's been ground. Here's the link. [4] You'll note that "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" and that "the surveillance must be aimed at 'the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers.'" and that "as defined in section 1801, subsection (a), 'foreign power' can mean 'a group engaged in international terrorism or activities in preparation therefore.'" It's also important to note that "Section 1801 subsection (c) defines international terrorism as, among other things, terrorist actions that 'occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.' So if you are hiding, making plans, facilitating, attacking, or intending to spread fear inside the US, and have a link abroad, you are an international terrorist." Anyhow, after all of this, the author goes on to explain how a citizen might lose their priveleges to remain outside of surveillance activities. It's interesting and worth reading, even if you throw up hearing the words "National Review." Have fun! DRJ 18:42, 20 December 2005 (UTC)

    What, no reply?  Oh, well.  Maybe sign next time. DRJ 13:31, 21 December 2005 (UTC)

• Maybe he threw up. John Yoo's 25 September 2001 memorandum cites Hamilton: "'...there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency.'" Yoo's memo ends with this (at the end of its last footnote): "In the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable." No need to worry about Congress or the Courts, as I read it. Most of the Yoo memos aren't public, but this one is. Torture is another activity based on Yoo's manifestos of Presidential omnipotence. Metarhyme 10:57, 24 December 2005 (UTC)

I second the above thoughts wholeheartedly; there is clearly a lot of political axe-grinding going on here, rather than factual & informative content. I would only disagree that there is a "smokescreen for political viewpoints," as the political slant has been quite blatant. While the President's actions are clearly controversial, the revelation of this highly classified program is the only obvious and serious law-breaking that has been reported so far. --AustinKnight 14:47, 20 December 2005 (UTC)

As to "who done it?" with regard to the original, highly-illegal release of highly-classified information? My money would be on members of a particular political party that were legally briefed into the program, and then chose to violate the law because they sensed a political opportunity. It would subsequently not be too hard for the NYT to find disenfranchised members of the intelligence community to confirm the existence of the program once confronted about it. --AustinKnight 15:05, 20 December 2005 (UTC)

I'm in agreement with you on both of the above comments. Austin, by the way, sounds like a nice place to live. Anyhow, what's the best way to rewrite the article with an appropriate evaluation of FISA? Point-by-point? Or should we just state in this article that some people (we can cite instances) have accused various other people of violating FISA with this surveillance and then have a link to FISA as it's own point-by-point article with an analysis of cases that have emerged in relation to its contents? Any ideas are welcome. I'm new to the Wikiworld and from my experience, it needs some vox veritas. DRJ 15:12, 20 December 2005 (UTC)

The article (and Wikipedia) can only be saved by focusing on the truth. I'd be reluctant to lay out a roadmap for how to get 'there' from 'here', as it's best to just let things unfold. You'll find that Wikipedia struggles to maintain a truly neutral point-of-view. In the end, either it'll be a useful, informative collection of thoughts, or just another throw-away screed from one side of the political spectrum. --AustinKnight 15:28, 20 December 2005 (UTC)

Some people here seem to think that , under FISA, American citizens suspected of cooperating with foreign terrorists are subject to the same unwarranted electronic surveillance that foreign terrorists are subject to. FISA, however, makes it very clear that this is not the case. It allows the President to authorize electronic surveillance without a court order so long as, "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." (1802 B)

Whitehouse Transcripts

I propose a link to C-SPAN's video feed of instead of the White House transcript. Scott McClellan's words have been altered in the official White House text on at least one occasion. --24.31.29.171 23:50, 18 December 2005 (UTC)

Good idea. What is the link? We can add both links, incidently. There is absolutely no harm in it. - Ta bu shi da yu 02:00, 19 December 2005 (UTC)

Added. --24.31.29.171 07:36, 19 December 2005 (UTC)

Good work :) Ta bu shi da yu 08:47, 19 December 2005 (UTC)

Feingold's statement

Yahoo is running this statement by Feingold. Can we incorporate it into the article? - Ta bu shi da yu 02:05, 19 December 2005 (UTC)

Editorializing?

Is the final section really necessary? I don't disagree with it but it seems like a call to arms:

"This event may constitute a violation of the Fourth Amendment to the United States Constitution which makes search and seizure without a warrant illegal. Some have suggested that ECHELON already violates this ammendment routinely, but such admissions have never been made by any branch of US government before now. While the illegality of this action has not been fully considered in all quarters, the level of protest is relatively light at this point. Charges of impeachment have been brought against presidents for seemingly lesser affairs, and while calls for President Bush's impeachment have been made by those on the far left such charges can be expected to increase in frequency and force in coming weeks and months. The president, and his supporters will most likely argue that it is legal under the concept of war powers, a concept without clear legal boundaries under American law. With a Republican congress and senate calls for impeachment seem unlikely, but already moderates such as Sen. Arlen Specter and other moderate Republicans who have decried the policy, seem to make long term analysis of the possibilities difficult.

It also lacks sources for the claims it makes - i.e. "The president, and his supporters will most likely argue that it is legal under the concept of war powers - etc... Nrbelex ^(talk) 02:57, 19 December 2005 (UTC)

Its not intended as a call to arms, but given the limited and disorganized response of Democrats so far, it seems fair speculation on an event that has only begun to unfold. President Bush has used the war powers clause successfully when dealing with the Guantanimo prisoners, and other issues dealing with the war, and his statement on Saturday did envoke the concept of war powers, if not by name clearly, by association. There has already been talk of impeachment over the allegations concerning the 'misleading of America into war' so this will certainly add more fuel to the fire. Its mainly speculative, but at this point seems reasonable and balanced. There's considerable information in the President Bush article concernig charges leveled at and criticisms of the administration, and this seems in keeping with that phenominon. I used the 'may constitute' deliberately, and noted that some have already charged that ECHELON already does this with impunity, which I believe implies that it may in fact blow over, without any real harm. The American left has already criticized the presidents conduct of the war and its prelude as far worse than anything Clinton did and one can hardly expect that they will refuse this opportunity to do the same on another front. I could have linked to the presidents address, but as I said the use of war powers is implicit and the article is already linked to the address. I'd be glad to clean it up, if you or someone else would offer suggestions on keeping it less inflammatory. - unsigned comment by User talk:68.223.18.182

And what's this about "...those on the far left..."? Remember that US politics is clearly skewed to the right in comparison to world politics. When a US citizen uses the term "far left", invariably they're right-wing and the person or organisation they're referring to would be better described as simply "left wing" or even "centre-left". I think almost any mention of far-anything politics is NPOV. Imroy 05:10, 19 December 2005 (UTC)

Again, while I don't disagree with the statements, I also don't believe it belongs in Wikipedia - I hate doing this but...

Wikipedia is not a collection of unverifiable speculation. All articles about future events must be verifiable, and the subject matter must be of sufficiently wide interest that it would merit an article if the event had already occurred.... Individual scheduled or expected future events should only be included if the event is notable and almost certain to take place.... Articles that present extrapolation, speculation, and "future history" are original research and therefore inappropriate. Of course, we do and should have articles about notable artistic works, essays, or credible research that embody predictions. An article on Star Trek is appropriate; an article on "Weapons to be used in World War IV" is not....It is appropriate to report discussion and arguments about the prospects for success of future proposals and projects or whether some development will occur, provided that discussion is properly referenced. It is not appropriate for an editor to insert their own opinions or analysis, because of Wikipedia's prohibition on original research. Forward-looking articles about unreleased products (e.g. movies, games, etc.) require special care to make sure that they are not advertising.[5]

Given that, I just don't know if it belongs... Nrbelex ^(talk) 05:42, 19 December 2005 (UTC)

Well, there must be some prominent commentator who has so far speculated on the legal basis under which the Bush Administration will justify this. It should not be too difficult to find that and reword the paragraph in question with a source for the speculation. --Saforrest 14:12, 19 December 2005 (UTC)

I'd be happy with that, given it would have to be a prominent commentator, not the Cat in the Hat. :P Nrbelex ^(talk) 23:22, 19 December 2005 (UTC)

G. W. Nixon?

Will the great ape resign and board the black helicopter from the lawn? I think he should! 195.70.32.136 15:27, 19 December 2005 (UTC)

I disagree. He deserves much worse.

They talked it over and decided to go the hang out route. It might work out like the Mumbai Bollywood casting couch "scandal" - the public was neither shocked nor interested. Metarhyme 02:24, 23 December 2005 (UTC)

"Legal Issues" section

The third paragraph needs to be reworked. The claim that the "far left" has called for impeachment since the "beginning of his first term" needs to be cited if it is a fact. Speculating what Bush's defense of the issue will be in the future is unverifiable. --24.31.29.171 17:56, 19 December 2005 (UTC)

What I would like to know is who these persons from the "far left" are. - Quirk 18:06, 19 December 2005 (UTC)

Done. Here is the edit in case anyone wants to look at what I've removed: [6] --24.31.29.171 19:56, 19 December 2005 (UTC)

I notice that all the legal issues are focusing on the legality of the wiretaps. There is no mention at all of the legal status of the New York Times obtaining the information. This seems to make it a bit lopsided. -RannXXV 23:03, 19 December 2005 (UTC)

I could easily be wrong here but wouldn't that legal issue be revealing classified info by those who did it? As part of the press I think the Times is in the clear... Nrbelex ^(talk) 23:23, 19 December 2005 (UTC)

From Bush today: "There is a process that goes on inside the Justice Department about leaks, and I presume that process is moving forward. My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. ...We're at war, and we must protect America's secrets. And so the Justice Department, I presume, will proceed forward with a full investigation. I haven't ordered one, because I understand there's kind of a natural progression that will take place when this kind of leak emerges. [7] Seeing as the NY Times conferred with the White House for a year before publishing the story, I think they are well in the clear. --24.31.29.171 23:34, 19 December 2005 (UTC)

Revelation of a highly classified program (revised: during a time of war or peace) hardly puts the NY Times "well in the clear." It puts them square in the center of breaking U.S. law with respect to the release of highly classified information, whether you agree with the President's legal basis of the wiretaps or not. I think that the NY Times has unintelligently thrown their own fat in the fire, and risked or outright damaged U.S. security in the process. The President is hardly in the clear on this, or else there would be no controversy, but let's keep our own heads clear here. --AustinKnight 14:57, 20 December 2005 (UTC)

Only "in 2002"? I got the gist that GWB has been doing it SINCE 2002, and said he is authorizing these currently, and plans on doing it in the future. Maybe it should say "since" instead of "in". -- Yekrats 00:28, 20 December 2005 (UTC)

Is there not some debate, which should be noted in the article, as to whether the NY Times has broken the law through "the release of highly classified information during wartime", namely in that it is debatable as to whether the US is at war (no declaration of war having been signed). Is there any US legal precedent that demonstrates that the US is, at present, in a period of wartime? Bondegezou, 20 Dec 2005

I think it would be POV to assert that the US is "at war", so we need to modify the article. — Matt Crypto 16:06, 20 December 2005 (UTC)

You've got to be kidding. DRJ 16:11, 20 December 2005 (UTC)

I'm not, as it happens. — Matt Crypto 16:18, 20 December 2005 (UTC)

http://lawofnations.blogspot.com/2005/12/declaring-war-and-executive-power.html argues in some detail that there has been no declaration of war. Bondegezou 16:30, 20 December 2005 (UTC)

Alright, enough. The fact that the U.S. is engaged in fighting a foreign and domestic enemy is indisputeable. However, that matters with regard to the release of highly-classified information only so-far as the extremity of the permissable punishments (death, as it happens, in wartime). The fact that the NY Times released highly-classified information -- whether we're at peace or at war -- is illegal in any case. --AustinKnight 16:30, 20 December 2005 (UTC)

Under the courts' reasoning in the Pentagon Papers case, that's not entirely clear.

The NY Times presumably believed they were acting within the law. Until there is a conviction, or at least legal action or clear, authoritative comment, the legality of their actions seems POV. Bondegezou 22:09, 20 December 2005 (UTC)

P.S. The only reason that the U.S. has not formally and technically declared a state of war is because, constitutionally, war can only be declared against a foreign nation...not an extra-national group such as Al Qaeda. Surprising as it may be to foreign nationals, there is no dispute within the U.S. that it is in a state of war, and this is reinforced by the fact that no such disingenous counter-argument is being made even by elected U.S. political opponents of the current administration. --AustinKnight 16:42, 20 December 2005 (UTC)

Not so. Citation? And, if so, why didn't the U.S. declare war against Iraq? A key reason is because this places more authority in the hands of Congress, and less in the hands of the executive branch.

Can we please stop re-titling this section? Brevity is the soul of meaning. --AustinKnight 16:54, 20 December 2005 (UTC)

"Legal Issues" is not to the point, and there's only one legal issue discussed - the legality of the wiretapping. (anon post from 208.27.111.121 )

No, actually it discusses the NY Times law violation as well, and needs to be kept more general for discussion of same. If you revert this again, you will be in violation of the 3RR rule, so I suggest you take a breather. Also, if you are a U.S. gov't employee (as indicated by your IP address as being at a U.S. court in Washington, D.C.), I take great umbrage over that fact that you are editing Wikipedia on the taxpayer's nickel. Whom should such abuse be reported to...? Never mind...I'll sort that out handily. --AustinKnight 17:09, 20 December 2005 (UTC)

Threats, huh? Good luck with that. And that is entirely inappropriate for Wikipedia. And if anyone would like to raise a complaint about AustinKnight threatening to get me fired because he doesn't like my edits: Be my guest. (anon entry by 208.27.111.121)

LOL. Tell me another story. How, again, have I threatened your employment precisely? You're welcome to perceive whatever you'd like, but please don't misquote me. --AustinKnight 17:22, 20 December 2005 (UTC)

"Whom [sic] should that be reported to? I'll sort that out handily".

I agree with anon. That was totally out of line, and to be frank I'm pretty disgusted with such a threat. - Ta bu shi da yu 21:20, 20 December 2005 (UTC)

Likewise. A threat of contacting an editor's employer is entirely inappropriate. -Willmcw 21:56, 20 December 2005 (UTC)

<Yawn> --AustinKnight 22:58, 20 December 2005 (UTC)

Please don't make threats like this again, similar reasoning to Wikipedia:No legal threats. — Matt Crypto 23:39, 20 December 2005 (UTC)

<Zzzzzzzz...> (As you can see, I sleep much better at night than U.S. government bandwidth (and taxpayer paycheck?) wasting trolls...but thanks for the British cheer...and POV.) Cheers, --AustinKnight 23:52, 20 December 2005 (UTC)

P.S. IMHO, and with no small amount of humor, this all falls under the category created by Wyss-the-Wise on her much more enlightened talk page, which she appropriately refers to as "loopy talk page discussions/scoldings." --AustinKnight 00:01, 21 December 2005 (UTC)

I'm sad you find such things boring or humorous, but carry on making such threats and you'll rapidly find yourself blocked. — Matt Crypto 00:18, 21 December 2005 (UTC)

And I suppose the fact that you, Ta bu shi da yu and Willmcw are all glowingly red POV-pushing admins will have nothing to do with your having made such a "fair" threat...? P.S. Has HRH, Matt Crypto, been able yet to resolve for the commoners of the United States as to whether or not our country is at war yet? (see above state of confusion by same on this point) --AustinKnight 00:24, 21 December 2005 (UTC)

Please Wikipedia: be civil. -Willmcw 00:33, 21 December 2005 (UTC)

I was being downright jovially humorous until Matt Crypto felt the unnatural need to pile on and make threats, and am more than happy to return to a smiling, lighthearted state of good humor...with appropriate thanks to all of the above. --AustinKnight 00:38, 21 December 2005 (UTC)

Nobody is interested in your personal vendettas. Please stop hijacking this discussion page. --24.31.29.171 11:51, 21 December 2005 (UTC)

I've merely been responding to others...such as yourself, but usually with something more substantive to be said by both parties. Some people really don't have much to add to the conversation...do they? Thanks, --AustinKnight 14:14, 21 December 2005 (UTC)

AustinKnight, I think you're making some premature assumptions about what my actually POV is. There's a world of difference between believing that an assertion needs to be NPOVed, and disagreeing with the actual assertion itself. I really don't appreciate your sneering comments about "HRH Matt Crypto", and I doubt your accusations towards TBSDY and Willmcw are particularly fair, either. — Matt Crypto 14:17, 21 December 2005 (UTC)

"I think it would be POV to assert that the US is "at war"." Really? Sneering, POV comments would seem to abound, eh what? There are several tens of thousands of relatives of over 3000 dead people in New York City, Washington D.C. and of those travelers who ended their trip in Somerset County, Pennsylvania who would like to speak with you about that comment, Matt. And while you are allowed to have your doubts, others rely on their own judgment. At least, some do. --AustinKnight 14:28, 21 December 2005 (UTC)

If you think my comment above is sneering and POV, then you're reading far too much into it. I said I thought assertions that "the US is at war" are POV. That doesn't mean I think the US isn't at war, but rather that I would think there are plenty of people who would argue that the US is not at war. NPOV means we don't take sides, right? Personally, I care very little about the question, although it's obviously an emotive issue for you. I don't see why you have to get rude about it. — Matt Crypto 14:48, 21 December 2005 (UTC)

Numerous people in disagreement with a statement does not a POV make. There are those who think the world is flat. DRJ 15:45, 21 December 2005 (UTC)

Not emoting at all, though I'm sure the relatives of dead U.S. citizens would feel otherwise. The fact that the U.S. is at war is central to the article that we're writing about, and I think that your all-too-casual, (foreign, perhaps?), disrespectful comment regarding the U.S. and its current conflict is central to the issue. Particularly, it is the just the kind of attitude that would lead a U.S. newspaper to publish such a report in the first place. All the more remarkable that the report came out of NYC, but it just goes to show how disconnected they are from their own government. --AustinKnight 15:04, 21 December 2005 (UTC)

To ask for NPOV is not "disrespectful"; get a grip. — Matt Crypto 15:19, 21 December 2005 (UTC)

Now, you're just backtracking...trying to hold up a shield of NPOV defense over offensive remarks is hardly untransparent. --AustinKnight 15:28, 21 December 2005 (UTC)

Here is my, er, offensive remark, again, for everyone to read, and ponder: " I think it would be POV to assert that the US is "at war", so we need to modify the article" [8]. Yes, my goodness, you're absolutely right! That was indeed offensive, disrespectful, POV-pushing nonsense posted by an idiotic foreigner. I see it now! Conversation over. — Matt Crypto 15:38, 21 December 2005 (UTC)

Umm...So, I guess we can still focus on the article at hand. I've updated the legal issues section to include worthwhile analysis in support the actions. I think it lends a nice balance to include the comments of analysts in disagreement on an issue. DRJ 13:47, 21 December 2005 (UTC)

---

A critical missing piece of the issue is the following:

FISA specifically empowers the Attorney General or his designee to start wiretapping on an emergency basis even without a warrant so long as a retroactive application is made for one "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance." FISA 1805(f) - Emergency Orders

This needs to be added. --Ajg 18:22, 20 December 2005 (UTC)

Done --147.182.5.50 18:37, 20 December 2005 (UTC)

---

Ok, I'm reading the legal issues section, and I have to say, that the insertions by AustinKing seem likely wrong. First, these disclosures are not like the things authorized by the Carter and Clinton Executive Orders. You can read the Court of Reviews discussion of them here and the actual contents of them, as linked on the FISA article, here: Carter and Clinton. While I believe that this has made it to a talking point, it's seems patently false. The problem is the domestic surveillance part, not the authorization to spy on foreign powers (reference to sub(a)).

Second, if we're saying the leak of this informatin may be treason and punishable by death, we had better source that. That seems highly POV and currently unsupported by the evidence. Art III, Sec. 3 is a pretty high threshold. Nor have I seen analysis suggesting that leaking classified information is "levying War" or "in adhering to their Enemies, giving them Aid and Comfort". I'm sure the argument can be made, but a wikipedia article is not the place to make that argument.

I need to look at the rest of the argument, I didn't get very far before it became a problem.mmmbeer^{T / C / ?} 14:27, 21 December 2005 (UTC)

Some legitimately good legal analysis

I just got done reading Orin Kerr's legal analysis here. I don't have time to work it into this article, as I have other responsibilities. But, if anything, this probably should be an external link. mmmbeer^{T / C / ?} 03:07, 20 December 2005 (UTC)

Actually, it really is good analysis. Taught me some things I didn't know! Wonder if we could add it? - Ta bu shi da yu 13:50, 20 December 2005 (UTC)

It's on the money. (I am the anonymous user who added the FISA framework section at the beginning.) It needs a summary, however. I think all that is needed is a brief section on why neither the AUMF (from Senate Joint Resolution 23, 2001) nor the president's commander-in-chief power (from the U.S. Constitution, Article II) provide the authority for the executive branch to circumvent FISA.

One comment re the Kerr analysis (which I agree is quite useful). It hinges on a crucial assumption: "As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails)": 99% of us are not in a position to know whether this is a good assumption. There has been informed speculation that NSA is also data-mining domestic communications. Billbrock 04:35, 2 January 2006 (UTC)

As I read everything that's out there from the most adverse sources (that aren't pundits), anything going through "international circuits" has been recorded for data-mining (different than wiretaps). It is possible calls not originating or destined through US got monitored, and could be possible in rare cases US to US calls could be. But the administration seemed to target specific geographies as opposed to everything. For instance, one country mentioned by name is Afghanistan. -- Jbamb 05:01, 2 January 2006 (UTC)

Eric Lichtbau reports on this very topic in the 1/2/2006 NY Times:

Mr. Bush also emphasized that the program was "limited" in nature and designed to intercept communications from known associates of Al Qaeda to the United States. He said several times that the eavesdropping was "limited to calls from outside the United States to calls within the United States."

This assertion was at odds with press accounts and public statements of his senior aides, who have said the authorization for the program required one end of a communication - either incoming or outgoing - to be outside the United States. The White House, clarifying the president's remarks after his appearance, said later that either end of the communication could in fact be outside the United States.

The Times has reported that despite a prohibition on eavesdropping on phone calls or e-mail messages that are regarded as purely domestic, the N.S.A. has accidentally intercepted what are thought to be a small number of communications in which each end was on American soil, due to technical confusion over what constitutes an "international" call.

Officials also say that the N.S.A., beyond eavesdropping on up to 500 phone numbers and e-mail addresses at any one time, has conducted much larger data-mining operations on vast volumes of communication within the United States to identify possible terror suspects. To accomplish this, the agency has reached agreements with major American telecommunications companies to gain access to some of the country's biggest "switches" carrying phone and e-mail traffic into and out of the country.

It's the final paragraph that gives me FISA and Fourth Amendment concerns. Billbrock 05:14, 2 January 2006 (UTC)

Illegality of revealing classified activities

I'd like more clarity on why the NYT reporting this may be "illegal" -- it strikes me that if the administration is doing something blatantly illegal, it can't possibly be "illegal" to report it. Otherwise the President could be eating babies and just declare it "classified," no?

(a) where does it say that reporting classified things is illegal? (b) who decides what is and is not "classified?" (c) what if said classified activity violates national or international law?

(above anonymous entries by 66.129.135.114)

Your questions are obviously hyperbolic, if not outright disingenuous, but for more serious seekers of related information, see Classified information. Also see International law for encyclopedic info regarding this normative convention. Cheers, --AustinKnight 19:44, 20 December 2005 (UTC)

While hyperbolic--namely the eating babies part--the question of whether publishing truthful information is ever punishable is very much a debatable. See Bartnicki v. Vopper, 532 U.S. 514 (2001). In that case, the court state "It would be remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party." That case didn't deal with classified information, but it did deal with publishing information in violation of federal law. Presumably, of course, the government has a significantly greater interest protecting national security.

More on point was the Court's opinion in New York Times Co. v. United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) (also cited by the aforementioned case). This case resolved in favor of publishing the information so long as the newspaper lawfully obtained it from the party who stole it. The court there was incredibly split; there were lots of opinions. Some members of the court suggested that the court could not order an injuction against the newspaper, but the newspaper might nevertheless be criminally/civilly liable.

In any event, the "blame the messenger's messenger" meme is really politically motivated at this point. There's no doubt, at least I don't think there is, that the leaker can be prosecuted. I'm also pretty sure that there's no whistleblower protection of any sort for him. mmmbeer^{T / C / ?} 14:04, 21 December 2005 (UTC)

Please. The leaker, while clearly a problem child, did not broadcast to the world a highly-classified (and for all we know, successful) ant-terrorist program during a time of war. The First Amendment will be likely prove to be very thin sackcloth, indeed, for the NY Times. --AustinKnight 14:54, 21 December 2005 (UTC)

Well it's good to see that good ol' American values still survive. ::roll eyes:: Anyway, I have no problem with that analysis, but it's almost entirely unsupported by precedent. Would you care to cite any of your sources? Unless, of course, you're just hoping for an activist judge to read no broad authority from the constitution (or an amendment out of the constitution). mmmbeer^{T / C / ?} 14:59, 21 December 2005 (UTC)

You get the feeling it would be fine with him if there were no pesky first amendment? He loves to rattle his chains a lot I see, but always remember, it's people like him we had to fight to get a first amendment... 70.105.38.244 14:58, 21 December 2005 (UTC)

Easy there, partner. Unlike you I spent time on the front lines of the U.S. military defending our Constitution. What's your claim regarding "fight" for a first amendment, exactly? I also note, with alacrity, that Wikipedia seems to be big on silencing voices that it does not agree with. --AustinKnight 15:23, 21 December 2005 (UTC)

"With alacrity" means you're happy about it, are you sure that's what you meant? Also it would be a good idea if you don't assume anything about me, if you don't know anything... 70.105.38.244 15:31, 21 December 2005 (UTC)

I meant it in the "promptly" sense, which you should take the time to look up, apparently. I also see you're big on telling others what to think. Quite a surprise.  ;-) --AustinKnight 15:33, 21 December 2005 (UTC)

Clearly hates America. ;) mmmbeer^{T / C / ?} 15:12, 21 December 2005 (UTC)

Ah, a fine bit of unintellectual provocation from the land of cheese. How are things in Madison these days? Still have T-shirts that proclaim "Go Big Red" with both a badger and a hammer & sickle in the background? --AustinKnight 15:30, 21 December 2005 (UTC)

It's cold, thank you for asking. Still waiting on your legal authorities. I'm not hear to silence any opinions. I think it's largely up in the air. The courts are fairly conservative and tend to defer on issues of national security. However, I'm not so sure that they are willing to undermine the first amendment for the leak of truthful, potentially illegal activities. It would seem good policy would suggest otherwise. We try not to discourage that type of behavior in Democracy. However, if you've got nothing substantive to add, please refrain from trolling. mmmbeer^{T / C / ?} 15:40, 21 December 2005 (UTC)

I think it's pretty likely the leaker will be pursued rather than the NYT. Much like they're looking at the source of the Plame revelation rather than talking with Bob Novak over it. Oh, well. We'll see. DRJ 16:35, 21 December 2005 (UTC)

I don't think that just because an action is illegal, or unconstitutional, or immoral, or a blatant power grab necessarily means that releasing classified information about it is automatically legal. I think in cases it could be the morally right thing to do, and that hopefully it won't harm anyone else, but either way, the original action being illegal doesn't make disclosing classified information about it automatically legal. In this case however, I don't believe the law was broken, or that any new information was revealed. I think that a person would have been able to find out more information about the NSA, some of its methods of collecting information, etc. on December 15th by reading about it here on wikipedia, by looking at the George Washington University's National Security Archive, and perhaps reading James Bamford's book about the National Security Agencym than anyone could decipher the next day just from the NYTimes article. I believe it didn't introduce anything new other than the fact that the progam was being done without warrants - and even that was disclosed earlier in articles in the guardian, articles relating to John Bolton early in 2005, and other sources. Also, I think there are whistleblower laws that may safeguard the "leaker" from retaliation. I don't know whether intelligence agencies are exempt from whistle blower protections though. I guess we'll see. :/ 69.142.146.176 ~ GardenStater

ACLU

The following content:
The [[ACLU]] has expressed concern, and has called for a [[special prosecutor]]. {{ref|ACLUSpecialProsecutor}}
was removed by User:AustinKnight with edit comment, "Removed self-aggrandizing note re. ACLU".
--JWSchmidt 14:16, 21 December 2005 (UTC)

Yes, quite. The ACLU is hardly at the level of elected government officials who are otherwise quoted in that section. If you weren't blinded by your POV, you would have recognized the disparity yourself. --AustinKnight 14:33, 21 December 2005 (UTC)

It might be okay since we now have a Congressional reference supporting an investigation. I'm sure that if that is accepted by the Intelligence/Judiciary committee it'll require a special prosecutor. In any event, I think that there are a number of sourcing problems (like should we really be using the National Review?). mmmbeer^{T / C / ?} 14:34, 21 December 2005 (UTC)

Uhm...because their POV isn't your POV? Remarkable logic, counselor. Let's instead go quote what Pravda or Al Jazeera are reporting on this, perhaps? --AustinKnight 14:58, 21 December 2005 (UTC)

Um... ok. So much for civility. Look, you can take your attitude and go elsewhere. You have really contributed nothing of substance to any of the discussions and you clearly have an axe to grind. Perhaps you're too close to the issue? And you have demonstrated very little knowledge on the subject of FISA, except insofar as you're able to recite talking points. I was on your side about removing the ACLU link. I think that a contributing editor's opinion (even though he's on the American Foreign Policy Council) about the legality of the president's action isn't particularly persuasive. Do you have a legal authority on the issue? mmmbeer^{T / C / ?} 15:11, 21 December 2005 (UTC)

I think the National Review is a fair and mostly non-polemic source to reference. It's an analysis and it's as legitimate and germaine to the question at hand as the analysis by Kerr--although I'm inclined to disregard Kerr who offers his conclusions before trying to wrangle them out of the sourcelaw. You should also stop attacking folks on this page for disagreements. DRJ 15:33, 21 December 2005 (UTC)

I actually have little problem with the analysis in the NRO article. However, it seems that the amount of space its given is not proportional to its authoritativeness/persuasiveness on the particular issue. I'm merely suggesting that we find one from a legal scholar--wouldn't it be great to have the Whitehouse's memos on the topic--that supports his line of reasoning. Also, I think it might be important to identify who Kerr and Robbins are so that a reader could make their own value judgments on actual value of the argument. mmmbeer^{T / C / ?} 15:50, 21 December 2005 (UTC)

I can agree with that. I'm all for accuracy rather than polemic. A search could be made for an analysis by a well-credentialed legal expert to balance Kerr's. At least, if there is one. I'll look. DRJ 16:22, 21 December 2005 (UTC)

Previous administrations

ACLU= AMERICAN COMMUNIST LIBERTIES UNION.......SHEEEEEEESH....WIKI IS OFFICIALLY USELESS FROM HERE ON OUT.....

Since this seems to have come up, yet again, I'm going to create a talk entry for this. Unless someone wants to provide authority on the point, the talking point that previous administrations have done the same thing seems to be just wrong.

First, no one doubts that the president has authority to authorize surveillance under §1802(a).[9] As I understand it, that's pretty clear. Of course, 1802(a) is limited in a number of important ways, including:

• "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers"; and
• "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party"

In this way, it's fairly clear that this does not surveillance of US persons. Alternative interpretations (what I assume this administration is relying on) are not within the plain reading of this section.

Second, the two E.O.s at issue are usually those of Clinton and Carter. [10] and [11], respectively. These authorize the A.G. to invoke thier authority under 1802(a), but specifically limited to the rules of that section. It does not imply, in any way, a novel reading of FISA.

So unless there's some evidence to the contrary, we shouldn't permit these talking points. mmmbeer^{T / C / ?} 18:38, 21 December 2005 (UTC)

Legal Analysis

I've found an analysis in contrast with Kerr's that might come with a little more relevant authority than that of J. Robbins. You can find the article here: [12]. Everybody who cares to weigh in on whether there should be a summary of this analysis included, please do so. Thanks! DRJ 18:31, 21 December 2005 (UTC)

• I like that one better. Not to mention, this is probably the argument that the Bush administration's lawyers are following.mmmbeer^{T / C / ?} 19:00, 21 December 2005 (UTC)

• Cool. I think I do too after a little more reading. I've removed Robbin's information for now and will work up a decent summary of this to post later today. DRJ 19:34, 21 December 2005 (UTC)

Do not remove legit information until replacing it. -- user:zanimum

Okay. I'm still new at this. DRJ 19:40, 21 December 2005 (UTC)

The Fourth Amendment to the United States Constitution provides:
 
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What has the Supreme Court been deciding this means? Metarhyme 19:23, 4 January 2006 (UTC)

• it's discussed somewhat in the article. The short answer is that the key word is "unreasonable".mmmbeer^{T / C / ?} 20:40, 4 January 2006 (UTC)
  • I'm dropping SEC. 503. [50 U.S.C. 413b] (a) (5) in just above "other legal analysis"

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)

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)

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)

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." [13].

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. 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[14][15]. 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.^[16]

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. ^[17]

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. ^[18]

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)

Footnotes

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)

"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)