One of the stories I follow pretty regularly is the NSA eavesdropping/domestic spying program authorized by President Bush after 9/11. The more I read, the more confused I get.
Now I understand, and encourage, the gathering of foreign intelligence to protect the US. The question that no one seems to be answering (and if I have missed that answer let me know) is if they were monitoring purely domestic telephone conversations (and other forms of communication) between U.S. citizens who are supporters of terrorist organizations.
I will be the first to tell you, I do not have any experience with FISA. It just seems that if they are monitoring domestic communications, then there needs to be a warrant (Yes, I understand that they say its communications between targets in other countries and agents in the US, but anyone can say anything at this point since there is a lack of information). The breakdown, at least in my mind, hinges on how we are going to define who is a foreign agent.
When FISA was initially enacted, the drafters were not contemplating terror groups. These groups are essenitally nationless actors, at least in respect to the ones we are dealing with during this current incarnation of the "War on Terror". These groups receive support from a variety of sources, including some foreign governments and private benefactors both in the US and abroad. Although they, in some cases, receive subsidies from foreign governments, I am not sure one could successfully argue that they are agents of those governments. The goals of the terror groups and the governments may coincide but the terror groups are not controlled by the government. Its a bit like, at least in my mind, an alliance and not integrated group. (Again, if someone would like to correct me, go ahead and show me the mistake I have made.)
Robert Turner, a constitutional scholar, argues, that there is inherent authority in the Constitution for the president to authorization the type of activities which the NSA has apparently conducted during times of war. He states, that according to precendent, joint resolutions of Congress are constitutionally indistinguishable from a formal declaration of war. However, it seems like this is something that was not contemplated by the framers. It would seem that terror groups are not nations in the sense that the Constitution would recognize war could be declared against. They seem to be closer to pirates and other outlaws that existed contemporaneously. No declaration of war was needed to take action against piracy. However, I am sure that Mr. Turner would disagree with me since he cites the resolutions passed by Congress to support Jefferson's campagin against the Barbary States. In turn, I am not sure that the analogy works since in that case, the pirates were effectively the navies of the Barbary States and worked at their direction.
Since modern terror groups seem to be nationless, though made up of people from various nations, how do you redefine a foreign agent and not include legitimate political groups who are not practicing or supporting violence. If you make it too narrow, you lose some of legitimate targets of surveillance. If you make it too broad, you include groups which want to achieve change via legal means. If you do not definte it, you make it too arbitrary.
At least for me, my fear of the third route has to do with the way the Bush Administration has treated dissent, of any type. Furthermore, it has to do with some of the choices that the President made in filling out his cabinet, especially when it came to appointing John Ashcroft as Attorney General. This was a man who seemed more concern about the state of dress of statutes at the Department of Justice building than civil rights.
Which is why when I read the following, I do not have great faith in whether corners were unreasonably cut in listening in on conversations. According to an article in Newsday, General Michael Hayden, deputy director of the NSA, stated, "The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general[.]" The Attorney General was of course: John Ashcroft.
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