Talk:NSA warrantless surveillance controversy/Archive 1

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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)

The problem with so much focus on FISA is that it doesn't apply to situations where the surveillee is within the US. It explictly applies only to situations where he isn't. These wiretaps were legal (held so by the courts) before and after FISA, and FISA doesn't apply to them. So why should FISA be more than a blip in this discussion? --syberghost 12:06, 1 Jan 2006 (EST)
The Foreign Intelligence Surveillance Act article contradicts your statement. It has links. If the fines and jail terms it mentions for violating FISA provisions are also incorrect, then the article needs correction. Better do some research. Metarhyme 04:32, 26 January 2006 (UTC)

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. -- 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. -- 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)


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:

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! 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. -- 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] -- 19:56, 19 December 2005 (UTC)

I notice that all the leg

'''''Shutup, bush sucks. I say we impeach bush!'''''

of the legal status of the New York Times obtaining the information. This seems to make

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. mmmbeerT / 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

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. mmmbeerT / 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). mmmbeerT / 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... 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... 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. ;) mmmbeerT / 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. mmmbeerT / 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. :/ ~ GardenStater


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?). mmmbeerT / 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? mmmbeerT / 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. mmmbeerT / 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


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).[7] 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. [8] and [9], 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. mmmbeerT / 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: [10]. 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.mmmbeerT / 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".mmmbeerT / 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"