CNN's Ensor baselessly reported that Senate wiretapping hearings will focus on changes to FISA
SUMMARY: CNN's David Ensor reported that the upcoming Senate Judiciary Committee hearings on President Bush's warrantless domestic surveillance program are being held to determine "whether the law should be changed to require court approval of all domestic surveillance." In fact, the purpose of the hearings, as described by the committee chairman, is to determine whether the president had the constitutional authority to ignore the law.
On the January 23 edition of CNN's The Situation Room, CNN national security correspondent David Ensor reported that the upcoming Senate Judiciary Committee hearings on President Bush's warrantless domestic surveillance program are being held to determine "whether the law should be changed to require court approval of all domestic surveillance." In fact, the purpose of the hearings, as described by the committee chairman, is not to consider changes to the law requiring warrants for such surveillance, but to determine whether the president has the constitutional authority to ignore the law, as defenders of the program have repeatedly argued.
In a report on Bush's January 23 speech defending his authorization of the National Security Agency (NSA) to conduct warrantless domestic surveillance, Ensor informed viewers that the Senate hearings will address whether the law governing such surveillance -- the Foreign Intelligence Surveillance Act (FISA) -- "should be changed" to accommodate these activities:
ENSOR: The administration faces hearings early next month on whether the law should be changed to require court approval of all domestic surveillance. But administration officials believing the program is actually a political asset are now aggressively promoting it as part of the war on terror.
But, contrary to Ensor's suggestion, the issue raised by the NSA's warrantless surveillance program isn't whether FISA "should be changed to require court approval of all domestic surveillance." The administration has all but admitted that FISA already prohibits the warrantless surveillance that the president has authorized. For example, in a January 23 talk he gave at the National Press Club in Washington, D.C., principal deputy director of national intelligence and former NSA director Gen. Michael V. Hayden stated that the president's authorization of the domestic wiretapping program pre-empted FISA:
HAYDEN: In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. ... There is an operational impact here, and I have two paths in front of me, both of them lawful: one FISA, one ... the president's authorization. And we go down this path because our operational judgment is -- it is much more effective.
Since the public disclosure of the program in December 2005, the Bush administration has repeatedly asserted its legal authority to carry out domestic surveillance without obtaining warrants pursuant to FISA. The White House's defense was most recently articulated in a Department of Justice (DOJ) "white paper" released on January 19. In the paper, the DOJ put forth a two-pronged argument: the program was authorized by the Authorization of Military Force passed by Congress on September 18, 2001; and "the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework." It is that assertion of authority -- as Judiciary Committee chairman Arlen Specter (R-PA) has indicated -- that will be the focus of the hearings. On the January 8 edition of CBS's Face the Nation, Specter said:
SPECTER: We will not be going in to the secrets as to what has been undertaken, but the legal basis: whether the resolution authorizing the use of force included the authority to eavesdrop without a warrant.
On December 16, 2005, the same day The New York Times published the initial article on the surveillance program, Specter "put the Bush administration on notice" that the Judiciary Committee would hold hearings on the issue. On December 18, he met with Attorney General Alberto Gonzales to discuss the White House's legal rationale for the NSA program. Afterward, Specter stated that he had "grave doubts" about the legal basis put forth by Gonzales and renewed his pledge to conduct hearings on the matter in early 2006, as a December 22 Associated Press article reported.
Furthermore, shortly after Ensor's January 23 report, Specter again made clear that the hearings would primarily explore the question of legal authority during an interview with Situation Room host Wolf Blitzer:
BLITZER: You are going to hold hearings on this very subject next month. What is your sense, going into this? You have expressed some initial concern. Where do you stand? Does the president have the legal authority to do what he has ordered?
SPECTER: Wolf, that's the question we are going to explore at a hearing. The initial claim to authority from the resolution to authorize the use of force, I think, is very, very thin. If the president had asked for authority in the [USA] Patriot Act, we would have had a determination as to whether Congress wanted to give it to him. But to say that there was congressional intent in the resolution for force, I think, is a stretch. It's a different issue under Article II, but where you have the Congress using our power, under Article I, to say that the exclusive way to have electronic surveillance is to get a court order, the presumption is against the president. But I think we have to give him a hearing.
Nonetheless, during a separate edition of The Situation Room that aired later that evening, Ensor again reported: "The administration faces hearings early next month on whether the law should be changed or require approval of all domestic surveillance."
Check it out:
[link to glenngreenwald.blogspot.com]
Someone posted a well written response that in a nutshell says that warrantless searches fall outside FISA and the administration was not prepared to push for changes within FISA since they were not having problems with FISA. The warrantless searches are constitutional under the 4th amendment, especially given the extreme circumstances and the expectation that there would be little privacy violations.
Glenn's smoking gun is worthless since he is viewing FISA as the ultimate legal and constitutional sayso under all circumstances, which it clearly is not.
"Someone posted a well written response that in a nutshell says that warrantless searches fall outside FISA and the administration was not prepared to push for changes within FISA since they were not having problems with FISA."
Oh please post a link to that. I will gladly tear it apart. So, when FISA says that it is the only means for domestic surveillance, what does that mean? How can warrantless searchs (wiretaps, you mean?) "fall outside" of the only legal means to conduct such activity? And if they weren't having problems with FISA, doesn't that sort of destroy the argument that they needed a "second avenue"?
"The warrantless searches are constitutional under the 4th amendment, especially given the extreme circumstances and the expectation that there would be little privacy violations. "
Show me the part of the fourth amendment that makes exceptions for "extreme circumstances" and "expectations". Whose expectations, Bush's? Don't you think judges are supposed to make the conclusions about "probable cause", anyway?
"Glenn's smoking gun is worthless since he is viewing FISA as the ultimate legal and constitutional sayso under all circumstances, which it clearly is not."
You really don't have a clue what you are talking about. FISA is the law set up for exactly what Bush says he was doing, therefore he had to comply with it.
Anonymous said... I think the dodge here that Hayden was alluding too and josh narins picked up on is that none of these warrantless searches were subject to the FISA and are permissible under a good faith interpretation of existing fourth amendment jurisprudence as either being conducted under exigent circumstances or because there was no reasonable expectation of privacy in the communications. I would agree with Glenn that this does not excuse violating the FISA, but actually FISA, by definition, only applies to "electronic survellience" which would otherwise require a warrant under the fourth amendment. So the argument is we oppose the DeWine amendment because we do not think it is constituional to lower the standard for issuing warrants, and we don't have a problem with getting warrants under FISA. The warrantless survellience does not fall under FISA because the fourth amendment does not require warrants for all searches in particular not those conducted under exigent circumstances in for communications in which there is no reasonable expectation of privacy.
Here is the defintion of electronic survellience from FISA: Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
Please provide a link. The fact that this is listed as a "dodge" and the name "Josh Narins" leads me to believe that you are taking something out of context. In case that is not so...
"...is that none of these warrantless searches were subject to the FISA and are permissible under a good faith interpretation of existing fourth amendment jurisprudence as either being conducted under exigent circumstances or because there was no reasonable expectation of privacy in the communications."
What "exigent circumstances"? "No reasonable expectation of privacy"? Are you high? We're supposed to believe that we are looking for vital information in Al Queda communications, but there was no expectation of privacy in such communications?
"I would agree with Glenn that this does not excuse violating the FISA, but actually FISA, by definition, only applies to "electronic survellience" which would otherwise require a warrant under the fourth amendment."
What? The fourth amendment demands warrants, and so does FISA. And the activity in question fits the definition of "electronic surveillance", so how does this help your case?
So how is it that these searches are not applicable to FISA? How is that possible? "...and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted". The exclusive means by which this is conducted. So how can anything fall outside of that, unless you are arguing that the wiretapping is not "electronic"?
There is nothing more irksome about the age of the partisan pundit than the constant use of the word "clearly" to describe concepts that the pundit has just completely failed to make clear. The Kafkaesque pseudo-legal arguments being pushed by Leatherhelmet on this and other threads do not make anything at all clear. Nor are they intended to.
Yes, the pasted text is "well written" in the mind of Leatherhelmet. I thought perhaps I was just too tired to grasp the full meaning last night, but upon further reading it's still gobbledegook.
That's the difference between garbage like that and Greenwald. Greenwald makes very clear, logical arguments. Some may not agree with the conclusions, but I don't see how anyone can read it and say "what does that mean??" like the stuff the right-wingers vomit up.
should be that it is enforced and this administration charge with a violation of law and removed from office.
The warrantless survellience does not fall under FISA because the fourth amendment does not require warrants for all searches in particular not those conducted under exigent circumstances in for communications in which there is no reasonable expectation of privacy. - leatherhelmet / Wednesday January 25, 2006 12:15:06 AM EST
True only if you take leatherhelmet's word for it. Here's what the fourth amendment actually says: FOURTH AMENDMENT [U.S. Constitution] - '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.'
[link to www.lectlaw.com]