Court ruling endorses Bush surveillance policy

  • News
  • Thread starter chemisttree
  • Start date
  • #1
chemisttree
Science Advisor
Homework Helper
Gold Member
3,424
454

Main Question or Discussion Point

The http://www.google.com/hostednews/ap/article/ALeqM5g9Q7M6scz4PEW8SuEo_bpOer6ZAQD95NRD1G0" [Broken] that the United States Foreign Intelligence Surveillance Court of Review has issued a ruling that affirms the Bush policy of wiretapping calls involving at least one foriegn party as constitutional. Common sense wins out just in time for Obama to benefit.

Perhaps this is why Bush's approval rating climbed to 34% recently...
 
Last edited by a moderator:

Answers and Replies

  • #2
Gokul43201
Staff Emeritus
Science Advisor
Gold Member
7,051
17
Looks like the FISA court only ruled that the amendment passed by Congress was legal, and said nothing about the legality of the wiretapping program that Bush had in place for 2-3 years before Congress found out about it.
 
  • #3
Ivan Seeking
Staff Emeritus
Science Advisor
Gold Member
7,213
176
Looks like the FISA court only ruled that the amendment passed by Congress was legal, and said nothing about the legality of the wiretapping program that Bush had in place for 2-3 years before Congress found out about it.
Which is entirely the point - lack of oversight; abuse of power.
 
  • #4
2,425
6
I would appreciate if you could explain to me what it means. Does it mean that whenever I call my mother, W can listen ?
 
  • #5
drankin
We've talked about this for along time and I still don't see the problem with it provided the intent is to intercept communications that may be a detriment to the US.
 
  • #6
Gokul43201
Staff Emeritus
Science Advisor
Gold Member
7,051
17
We've talked about this for along time and I still don't see the problem with it provided the intent is to intercept communications that may be a detriment to the US.
Intent can be abused. Of utmost importance are the safeguards that are to be in place to prevent any such abuse.
 
  • #7
Ivan Seeking
Staff Emeritus
Science Advisor
Gold Member
7,213
176
I would appreciate if you could explain to me what it means. Does it mean that whenever I call my mother, W can listen ?
In your case that is probably justified. :biggrin:
 
  • #8
Ivan Seeking
Staff Emeritus
Science Advisor
Gold Member
7,213
176
We've talked about this for along time and I still don't see the problem with it provided the intent is to intercept communications that may be a detriment to the US.
Check and balances are required to prevent abuse of power. This is an essential aspect of Constitutional Law.
 
  • #9
LowlyPion
Homework Helper
3,090
4
Perhaps this is why Bush's approval rating climbed to 34% recently...
His approval rating may have risen because there is precious little left that he can do to the country any more.

The man was a disaster of a President, and we can be thankful that there will be a change at least to competent execution and more thoughtful compassionate leadership.

Only 4 more days until he and Cheney can slink off into their ignominious history.

As to the FIS ruling I wouldn't put a lot of stock into the sweep of it. It was after all only argued by Bush's self-serving self-justifying Justice Department. Their concept of the Law under Gonzales and Mukasey looks to be a trifle tainted by political Neocon ideology and expediency as opposed to any genuine regard for the Law.

The fact that it is perilously entangled with Fourth Amendment concerns of unreasonable searches and seizures, means that it may yet be adjudicated differently by courts with greater authority.
 
  • #10
russ_watters
Mentor
19,662
5,946
I would appreciate if you could explain to me what it means. Does it mean that whenever I call my mother, W can listen ?
If one of you lives in the US and the other not, yes.
 
  • #11
drankin
Check and balances are required to prevent abuse of power. This is an essential aspect of Constitutional Law.
If it is unconstitutional, why hasn't it been ruled as such? I mean, the checks and balances are in place now!
 
  • #12
Ivan Seeking
Staff Emeritus
Science Advisor
Gold Member
7,213
176
If it is unconstitutional, why hasn't it been ruled as such? I mean, the checks and balances are in place now!
They changed the law, didn't they? We have oversight now.

Many people would like to see the Bush admin investigated and prosecuted for a number of offenses where applicable, but whether or not that will happen is not clear.
 
Last edited:
  • #13
chemisttree
Science Advisor
Homework Helper
Gold Member
3,424
454
They changed the law, didn't they? We have oversight now.

Many people would like to see the Bush admin investigated and prosecuted for a number of offenses where applicable, but whether or not that will happen is not clear.
The original FISA statute had allowances for oversight as well and Bush was operating within that framework. The recent amendments to FISA call for enhanced oversight.
 
  • #14
Gokul43201
Staff Emeritus
Science Advisor
Gold Member
7,051
17
The original FISA statute had allowances for oversight as well and Bush was operating within that framework. The recent amendments to FISA call for enhanced oversight.
Not true. The original FISA act never made it legal to wiretap any US citizen without a warrant. The new 2007 (renewed in 2008) bill legalized it, in certain cases. The warrantless wiretapping that happened between 2003 and 2007 was almost certainly illegal.

Quoting the wiki on FISA:
The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information; targeting foreign powers as defined by 50 U.S.C. §1801(a)(1),(2),(3) or their agents; 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.
...
Under 50 U.S.C. § 1811, the President may also authorize warrantless surveillance at the beginning of a war. Specifically, he may authorize such surveillance "for a period not to exceed fifteen calendar days following a declaration of war by the Congress."
http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act#Without_a_court_order

But until yesterday, we were told that the only communications that were snooped on were those involving at least one foreign party...

...now that the old administration is gone, the whistle-blowers (Russ Tice, Dave Larson, and who knows how many others) will hopefully start crawling out of the woodwork.

From the wiki:
On the first of two consecutive appearances on MSNBC's Countdown with Keith Olbermann (January 21 [4] and January 22 [5], 2009), Russ Tice stated that while he worked in the NSA, his role was to follow the communications of specific individuals in a program separate from the one that had been previously disclosed. He stated that he initially understood that he was to identify the communication methods of journalists (and entire news organizations) so that they could avoid collection. He subsequently learned that these channels were being recorded 24/7. Since this appeared to be a political and not security operation of the NSA, Tice withheld disclosing it until the next administration. Tice also stated that programs were given dual military and intelligence status so that both types of congressional oversight could be simultaneously denied.
http://en.wikipedia.org/wiki/Russell_Tice

Video links to interview on MSNBC:
http://www.msnbc.msn.com/id/22425001/vp/28781200#28781200
http://www.msnbc.msn.com/id/22425001/vp/28802588#28802588
 
  • #15
LowlyPion
Homework Helper
3,090
4
I don't think that there is any question that people like Cheney and Bush and Rove would unhesitantly and without regret violate privacy rights. These are people that seemingly considered it their Divine Right to act as they wished with the presumption that any laws they broke were for the good if it was in the pursuit of their agenda.

Maybe Bush and Cheney can ultimately come to grips with why it is so many people revile them for their Nixonian disregard for the law. (But I doubt it.) I think hearing Bush try to say he was true to his principles throughout his tenure in office is a laughable self deception on his part. I think the only thing he was apparently true to was being corrupted by his power, won through deceit, and insensitive to the role that he was supposed to play to uphold the Constitution for the benefit of all and not warp it to accommodate his particular ideological agenda.

If he was still in office, I would add the word jihad a number of times in the hopes that the NSA would forward a copy to him.
 
  • #16
Al68
I don't think that there is any question that people like Cheney and Bush and Rove would unhesitantly and without regret violate privacy rights.
I'm sure Democrats will now uphold privacy rights by eliminating the IRS. They would never force anyone to disclose their personal financial situation in order to promote their agenda would they?
 
  • #17
chemisttree
Science Advisor
Homework Helper
Gold Member
3,424
454
Not true. The original FISA act never made it legal to wiretap any US citizen without a warrant. The new 2007 (renewed in 2008) bill legalized it, in certain cases. The warrantless wiretapping that happened between 2003 and 2007 was almost certainly illegal.
The original language of the FISA statute stated the FISA act could be superceded by other statute. The Bush administration interpreted the Authorization to Use Military Force as that statute.

http://www.usdoj.gov/ag/readingroom/surveillance16.pdf
 
  • #18
Gokul43201
Staff Emeritus
Science Advisor
Gold Member
7,051
17
Can you point me to this original language?

The Bush administration interpreted the War Powers act to reject virtually every act of Congress (see his signing statements). We probably won't ever know if this was legal, as it will likely never be challenged in the Courts.

Even Arlen Specter didn't buy the legality of Bush's claim of authority to reject FISA.
Specter said:
Nothing in this Act shall be deemed to amend those provisions of FISA concerning any wire or radio communication sent from outside the United States to a person inside the United States. The constitutionality of such interceptions shall be determined by the courts, including the President's claim that his Article II authority supersedes FISA.
http://www.fas.org/irp/congress/2007_cr/s187.html

In any case, it is false to assert that Bush was working within the framework of FISA, when he was, in fact, claiming he had the authority to work outside the framework of FISA.
The original FISA statute had allowances for oversight as well and Bush was operating within that framework.
 
  • #19
LowlyPion
Homework Helper
3,090
4
I think eventually it will be all sorted out. But I think history will recall that Bush acted extra-legally and outside his constitutional powers, this shadow FISA court notwithstanding, and was the reason that subsequent laws were passed to clarify the limits of the Executive/government to spy on citizens.

This latest ruling is at best dubious cover for the Cheney/Bush extravagant foray into violating civil privacy.
 
  • #20
chemisttree
Science Advisor
Homework Helper
Gold Member
3,424
454
Can you point me to this original language?
USC 50. Chap. 36, pp. 1809(a)
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
http://www4.law.cornell.edu/uscode/50/usc_sec_50_00001809----000-.html [Broken]


The Bush administration interpreted the War Powers act to reject virtually every act of Congress (see his signing statements).
Irrelevant...

Even Arlen Specter didn't buy the legality of Bush's claim...
Irrelevant...

In any case, it is false to assert that Bush was working within the framework of FISA, when he was, in fact, claiming he had the authority to work outside the framework of FISA.
Sorry you misunderstood... He was working within the framework as it applied. That framework allowed that the FISA statute could be superceded by other statute(s).
 
Last edited by a moderator:
  • #21
Gokul43201
Staff Emeritus
Science Advisor
Gold Member
7,051
17
But what is not clear is whether SJR 23 provides that "other statute". Bush claims it does, you claim it does, but the general opinion seems to be that the Courts will have to decide, and there's no way to know right now. If it were that obvious, then I doubt Specter would refuse to accept it and promote it himself.

Here's what the wiki states:
A court of law faced with determining the legality of the NSA program would have to first grapple with the statutory interpretation of FISA itself[46] Since FISA has the potential to raise certain Constitutional conflicts relating to the powers assigned to Congress and the Executive in Articles I and II respectively, the canon of constitutional avoidance requires a court to first determine if the FISA statutes can be "fairly read" to avoid Constitutional conflict.[47] Assuming such an interpretation can be found, the question then turns to whether or not the NSA wiretap authorizations were violative of the statute as so read. Without knowing how a court would resolve the first issue and the classified specifics of the program itself, it is not possible to predict the outcome.
http://en.wikipedia.org/wiki/NSA_wa...r_Use_of_Military_Force_.28AUMF.29_Resolution

Besides, if everything Bush was doing was completely and undoubtedly legal, there wouldn't really have been much of a need for McConnell to write the Protect America bill to specifically legalize these actions, would there?

What's more, all this is assuming that the NSA program only wiretapped communications that involved one foreign party. Recent whistleblowers are alleging that this was not the case.
 
  • #22
chemisttree
Science Advisor
Homework Helper
Gold Member
3,424
454
But what is not clear is whether SJR 23 provides that "other statute". Bush claims it does, you claim it does, but the general opinion seems to be that the Courts will have to decide, and there's no way to know right now.
It is likely that to avoid a constitutional crisis and perhaps declare that the original FISA law itself was an unconstitutional encumberance on the powers of the Chief Executive to wage war that the FISA law was amended and the Bush Administration halted it's activities. The right of the Executive to wage war is a very dear one indeed and not to be taken lightly. I think it would have been an interesting case, nonetheless.

In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the "fundamental inciden of waging war." The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force.
http://www.usdoj.gov/ag/readingroom/surveillance16.pdf
Bush had recent Supreme Court case law on his side, you see.

Recent whistleblowers are alleging that this was not the case.
Please provide any information you have that is relevant...
Recall that Tamm, "...told reporters Eric Lichtblau and James Risen nothing about the operational details of the NSA program because he didn't know them, he says. He had never been "read into," or briefed, on the details of the program. All he knew was that a domestic surveillance program existed, and it "didn't smell right." http://www.newsweek.com/id/174601
 
Last edited:
  • #23
Gokul43201
Staff Emeritus
Science Advisor
Gold Member
7,051
17
http://www.usdoj.gov/ag/readingroom/surveillance16.pdf
Bush had recent Supreme Court case law on his side, you see.
What I see is that Bush says that he has recent case law on his side. Naturally, the DoJ is going to makes its best case to argue the legality of the program. A DoJ document hardly counts as an objective source, when we are questioning a program that was sanctioned by DoJ.

Please provide any information you have that is relevant...
I posted some links in post#14.
 
  • #24
WheelsRCool
It was legal and it also allowed America to be protected from multiple attempts at terrorist attacks, such as the plan to bring down the Brooklyn Bridge. Had any of these been achieved, then people would have been screaming, "Why didn't the government take action to thwart such activities?" I believe Clinton did the same thing back in the 1990s as well.
 
Last edited by a moderator:

Related Threads on Court ruling endorses Bush surveillance policy

Replies
3
Views
2K
Replies
50
Views
5K
  • Last Post
Replies
12
Views
3K
Replies
5
Views
2K
Replies
24
Views
5K
Replies
57
Views
5K
  • Last Post
Replies
17
Views
2K
  • Last Post
Replies
16
Views
3K
Replies
39
Views
4K
Replies
57
Views
6K
Top