Talk:NSA warrantless surveillance (2001–2007)/Archive 3

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Lead section

I like:

In 2002 the President of the United States, George W. Bush, issued an executive order which authorized the National Security Agency (NSA) to conduct warrantless phone-taps of persons who were believed to be linked to al-Qaeda or its affiliates. (The complete details of this authorization are still not fully known). The NSA maintained wiretaps on international communications, including those that included U.S. participants. Such spying on U.S persons without the approval of the United States Foreign Intelligence Surveillance Court is believed by many legal experts to be barred under the 1978 Foreign Intelligence Surveillance Act (FISA) but Michael Hayden said, "The constitutional standard is 'reasonable.' And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable." Address to the National Press Club January 23, 2006.

Better than:

In 2002 the President of the United States, George W. Bush, issued an executive order which authorized the National Security Agency (NSA) to conduct warrantless phone-taps of persons who were believed to be linked to al-Qaeda or its affiliates. (The complete details of this authorization are still not fully known). The NSA maintained wiretaps on international communications, including those that included U.S. participants. Such spying on U.S persons without the approval of the United States Foreign Intelligence Surveillance Court is believed by critics to barred under the 1978 Foreign Intelligence Surveillance Act (FISA) but based on the personal experience of a knowledgebable, but unidentified, Intelligence Community official that is not correct.

The first edit is more specific, and verifiable. - Ta bu shi da yu 01:43, 27 January 2006 (UTC)

Why not just tell the truth, the first bold part is from Patrick Leahy's speech in opposition to the Alito confirmation. The important point about this is that the spying began not in response to 9/11 but when Bush first took office, most of it is surveillance of domestic stock exchanges and other financial and commercial transactions, as provided by the patriot Act, and of the political opposition. Its also not just the NSA but a long list of Executive Department spy agencies.

Proposed lead:

In 2000, the President of the United States, applying Samuel Alito's theory that as unitary executive of the executive branch had the authority to do as he pleased with all the resources of the Executive Branch including the Defense Department, began warrantless spying on more than 10,000 American citizens in the United States for whom not one arrest has yet to result.

• Bush didn't start it in 2000, because Bush wasn't sworn in until January 20 2001. If he then started it immediately, to say so it is necessary to cite a reputable source saying that's what he did. The unitary executive theory has been around since before the Alien and Sedition Acts - this theory comes and goes. It wasn't cooked up by Alito - it's old. If the unitary executive theory was Bush's reason, then that needs citation. Like dates, figures need verity. Who says 10,000? Didn't Ali al-Timimi get not merely arrested but tried, convicted and sentenced to life in prison? The "for whom not one arrest has yet to result" statement is very unlikely. Metarhyme 23:15, 27 January 2006 (UTC)

Using a long list of Executive Branch Departments and their agencies, and a variety of techniques varying from data mining the internet and reading emails to taping phones and covert operations such as the anthrax attack on the Hart office building which resulted in the Republicans having access to the computers of the Democrats in Congress for three years warrantless spying concealed from Congress and the American people became business as usual.

• Well, if Bush dropped the anthrax letters into the mail box in New Jersey, you need to prove your case. Nothing in this paragraph belongs in this article, which is narrowly focused on the fact of NSA surveillance without warrants, contrary to the language of the Foreign Intelligence Surveillance Act, which says that it is the exclusive means by which government may do the thing legally. For material other than that, you need to find other articles or start them. Metarhyme 23:15, 27 January 2006 (UTC)

Its silly to think that NSA spying can be narrowly focused when they share their information with over 100 other agencies and various presidential advisors from corporate America. Its hard to ignore the inter-relation between dirty tricks and intelligence agencies given the history.

• It's sort of like getting Al Capone on income tax evasion, but they couldn't get him on anything else. Record destruction a couple years ago is an indication that NSA thought it was breaking the law. This law has $10000 fines and two year jail terms - it's a criminal, not a civil matter. Immunity doesn't cover the participants. I could create an NSA spying article for you. If you stop being anonymous you should be able to do it yourself. Metarhyme 20:59, 28 January 2006 (UTC)

In 2002 George W. Bush, issued an executive order which authorized the National Security Agency (NSA) to conduct warrantless phone-taps of persons who were believed to be linked to al-Qaeda or its affiliates. (The complete details of this authorization are still not fully known). The NSA maintained wiretaps on international communications, including those that included U.S. participants. Such spying on U.S persons without the approval of the United States Foreign Intelligence Surveillance Court was barred under the 1978 Foreign Intelligence Surveillance Act (FISA).

• Unitary point of view is not permitted in Wikipedia articles. Characterizing believers in the letter of FISA as nitwits or critics is as impermissable as wiping out the other point of view. Hayden was denying stuff in his press conference, like NSA staffers leaking the existence of The Program, but he was willing to explain quite a bit. Metarhyme 23:46, 27 January 2006 (UTC)

The 2002 presidential authorization was classified, and thus the program was concealed from public knowledge until December 2005, when it was first reported on by the New York Times, which had somehow known about the program for approximately a year. Public knowledge of this program promptly led to a major national controversy over such issues as: --(posted by User:69.164.66.203 27 January 2006.

• This paragraph is unchanged from present article content. Metarhyme 23:46, 27 January 2006 (UTC)

Look, I've edited this section for intelligibility and moved your Executive Department spy agencies list to your talk page. I have no problem with outing the government if reputable sources can be cited. If the only source you have for your assertions is your anonymous self, I can't see how the material deserves to exist in the lead. Let's take a very minor example. You want the NYT to have been about to be scooped by 60 minutes. Where did you get that? If it's true it should be where you want it. Metarhyme 19:42, 27 January 2006 (UTC) Can you provide a link to Senator Leahy's speech and point to the part where he states that the spying started in 2000? That would belong in the lead. Metarhyme 21:51, 27 January 2006 (UTC)

If you want to, you can google any of those sources or executive department agencies and see how many employees have been added under the Bush administration. For example since 2000 the number of NSA employees worldwide has gone from 16,000 to 58,000. The spying began before 9/11 and has always targeted, economic, political and media sources.

Why not just tell the truth, the first bold part is from Patrick Leahy's speech in opposition to the Alito confirmation in which he cited [http://freeinternetpress.com/modules.php?name=News&file=article&sid=5549 The FBI's complaint that the NSA was giving it too many leads to process. While General Hayden denies that any data mining is going on, the defense Department has been issuing contracts for this technology. Basically its just a combination of packet sniffing, structured query language, trace routing and better GUI's.

There are three major components to this. First the FISA standard has been changed from what the law requires which is a FISA warrant, and under the 4th ammendment no warrant shall issue but on probable cause, to the Gonzales standard, "no unreasonable searches". Gonzales goes back to the Patriot Acts money laundering provisions which allow surveillance of financial institutions if there is "reasonable suspicion" that money is going back and forth between terrorist groups, such as ALF and PETA and Americans who may be sympathetic or support their activities.

This leads to the second component. Certainly groups such as ALF or PETA receive some support from Democrats and liberals. Once Democrats and their sources of revenue become suspected of a link to terrorists such as ALF or PETA or anti war protesters such as the Quakers, or potential demonstrators (covered under the CITA legislation) that might demonstrate against a critical defense industry such as Halliburton, they become people of interest and so do their fundraising efforts so when you hear that phrase "international phonecalls", what is really being surveilled is any substantive transfer of funds in the stock markets. That was always the real purpose of the Patriot Act which is a 400 page document approved by Congress on October 26, which means it was already written on 9/11.

Finally the spying against foreign corporations has never been questioned so any international corporation which happens to receive overseas phone calls from a suspected Democrat or liberal or a bank that has contributed to the campaigns of Democrats or Liberals now might be suspected of being aided or abbetted by people who may be terrorists...

The important point about this is that the spying began not in response to 9/11 but when Bush first took office, most of it is surveillance of domestic stock exchanges and other financial and commercial transactions, as provided by the patriot Act, and of the political opposition. Its also not just the NSA but a long list of Executive Department spy agencies. DNI Director of National Intelligence National Intelligence Director ODNI Office of the Director of National Intelligence, NCTC National Counterterrorism Center TSC Terrorist Screening Center NVTC National Virtual Translation Center DIA/DT Directorate for MASINT and Technical Collection IAIP Information Analysis Infrastructure Protection NIC National Intelligence Council NCIX National Counterintelligence Executive NIP National Intelligence Program IC United States Intelligence Community U.S. Intelligence Community US Intelligence Community DCI CIA U.S. Central Intelligence Agency US Central Intelligence Agency Central Intelligence Agency the Company the Agency HUMINT human intelligence DIA U.S. Defense Intelligence Agency US Defense Intelligence Agency Defense Intelligence Agency MASINT NRO National Reconnaissance Office NGA National Geospatial-Intelligence Agency NIMA National Imagery and Mapping Agency IMINT, NSA National Security Agency No Such Agency The Puzzle Palace code breakers cryptography SIGINT signal intelligence COMINT, USA United States Army Army Intelligence US Army Intelligence U.S. Army Intelligence USN United States Navy Navy Intelligence US Navy Intelligence U.S. Navy Intelligence USAF United States Air Force US Air Force, U.S. Air Force Intelligence US Air Force Intelligence U.S. Air Force Intelligence USMC United States Marine Corps US Marine Corps U.S. Marine Corps Marines Intelligence US Marines Intelligence U.S. Marines Intelligence Marine Corps Intelligence US Marine Corps Intelligence U.S. Marine Corps Intelligence Department of Treasury Department of Energy DOS Department of State FBI United States Federal Bureau of Investigation U.S. Federal Bureau of Investigation US Federal Bureau of Investigation USCG United States Coast Guard Coast Guard Intelligence US Coast Guard Intelligence U.S. Coast Guard Intelligence DHS Department of Homeland Security Homeland Security Department United States Department of Homeland Security, United States Homeland Security Department U.S. Department of Homeland Security US Department of Homeland Security U.S. Homeland Security Department US Homeland Security Department Department of Homeland Security Intelligence US Department of Homeland Security Intelligence U.S. Department of Homeland Security Intelligence NDIC National Drug Intelligence Center EPIC El Paso Intelligence Center, WINAC Weapons Intelligence Nonproliferation and Arms Control, WINAAC, CNC Crime and Narcotics Center NIPC National Infrastructure Protection Center,

In 2000, the President of the United States, applying Samuel Alito's theory that as unitary executive of the executive branch had the authority to do as he pleased with all the resources of the Executive Branch including the Defense Department, began warrantless spying on more than 10,000 American citizens in the United States for whom not one arrest has yet to result.

Using a long list of Executive Branch Departments and their agencies, and a variety of techniques varying from data mining the internet and reading emails to taping phones and covert operations such as the anthrax attack on the Hart office building which resulted in the Republicans having access to the computers of the Democrats in Congress for three years warrantless spying concealed from Congress and the American people became business as usual.

In 2002 George W. Bush, issued an executive order which authorized the National Security Agency (NSA) to conduct warrantless phone-taps of persons who were believed to be linked to al-Qaeda or its affiliates. (The complete details of this authorization are still not fully known). The NSA maintained wiretaps on international communications, including those that included U.S. participants. Such spying on U.S persons without the approval of the United States Foreign Intelligence Surveillance Court was barred under the 1978 Foreign Intelligence Surveillance Act (FISA).69.164.66.203 19:02, 28 January 2006 (UTC)

• Thank you for responding. I can see that you are trying. I wish to respect your first edit by inserting the following where you put the 4th ammendment. If we can agree and no one objects, it's a go:

The Fourth Amendment says 'no warrants shall issue, but upon probable cause, which legally is couched in reasonableness. Although Keith (pdf) ruled out warrantless searches in domestic criminal cases, exceptions from the warrant requirement for "special needs" outside "the normal need for law enforcement" have been held to be legal (see below). Metarhyme 20:59, 28 January 2006 (UTC)

Metarhyme recently sent me a message accusing me of vandalism and made threats because I added some information about the warrantless spying that began immediately after the Supreme Court selected Bush vs Gore to be president. I don't understand the thinking there.

Anybody can go on line and read the executive orders

Executive Order President's Information Technology Advisory Committee, Further Amendment to Executive Order 13035, as Amended

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the High-Performance Computing Act of 1991 (Public Law 102-194), as amended by the Next Generation Internet Research Act of 1998 (Public Law 105-305), and in order to extend the life of the President's Information Technology Advisory Committee so that it may continue to carry out its responsibilities, it is hereby ordered that Executive Order 13035 of February 11, 1997, as amended by Executive Orders 13092 and 13113 ("Executive Order 13035, as amended"), is further amended as follows:

Section 4(b) of Executive Order 13035, as amended, is further amended by deleting "February 11, 2001 and inserting "June 1, 2001," in lieu thereof.

GEORGE W. BUSH THE WHITE HOUSE, February 11, 2001.

Anybody can check out Dec 8, 2000

Richard Clarke of the National Security Council tells a computer security conference in Washington State that as he puts it "those who wish to do us ill in cyberspace can do so easily." He says possible disruptions could affect electric power grids, telecommunications networks and defense command and control systems.

Mr. Clarke charges most government agencies have poor cyber-security. And he warns that what he calls "crackers, criminals, and foreign powers" are developing sophisticated cyber-attack capabilities and already conducting reconnaissance on U-S government networks. Mr. Clarke says the new president "better move fast" to shore up the nation's computer security. (Signed)

the date the NSA was first charged with "applying an axe instead of a scalpel"the date the US Terror Rewards program reward was posted for Osama bin Ladin, Dec, 12 2000, the date the War on terror was first announced

Anybody can read the Patriot Act about surveilence of financial institutions,and for that matter people who put money in financial institutions including business and political interests.

SEC. 358. BANK SECRECY PROVISIONS AND ACTIVITIES OF UNITED STATES INTELLIGENCE AGENCIES TO FIGHT INTERNATIONAL TERRORISM.

`(2) PURPOSE- It is the purpose of this section to require the maintenance of appropriate types of records by insured depository institutions in the United States where such records have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, recognizes that, given the threat posed to the security of the Nation on and after the terrorist attacks against the United States on September 11, 2001, such records may also have a high degree of usefulness in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism.'. (e) AMENDMENT RELATING TO THE PURPOSES OF THE BANK SECRECY ACT- Section 123(a) of Public Law 91-508 (12 U.S.C. 1953(a)) is amended to read as follows:

`(a) REGULATIONS- If the Secretary determines that the maintenance of appropriate records and procedures by any uninsured bank or uninsured institution, or any person engaging in the business of carrying on in the United States any of the functions referred to in subsection (b), has a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, and that, given the threat posed to the security of the Nation on and after the terrorist attacks against the United States on September 11, 2001, such records may also have a high degree of usefulness in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism, he may by regulation require such bank, institution, or person.'.

(f) AMENDMENTS TO THE RIGHT TO FINANCIAL PRIVACY ACT- The Right to Financial Privacy Act of 1978 is amended--

(1) in section 1112(a) (12 U.S.C. 3412(a)), by inserting `, or intelligence or counterintelligence activity, investigation or analysis related to international terrorism' after `legitimate law enforcement inquiry';

SEC. 903. SENSE OF CONGRESS ON THE ESTABLISHMENT AND MAINTENANCE OF INTELLIGENCE RELATIONSHIPS TO ACQUIRE INFORMATION ON TERRORISTS AND TERRORIST ORGANIZATIONS. It is the sense of Congress that officers and employees of the intelligence community of the Federal Government, acting within the course of their official duties, should be encouraged, and should make every effort, to establish and maintain intelligence relationships with any person, entity, or group for the purpose of engaging in lawful intelligence activities, including the acquisition of information on the identity, location, finances, affiliations, capabilities, plans, or intentions of a terrorist or terrorist organization, or information on any other person, entity, or group (including a foreign government) engaged in harboring, comforting, financing, aiding, or assisting a terrorist or terrorist organization.

check out the ACLU lawsuits, read the articles about the republicans having access to the Democrats computers in the Hart office building after the Anthrax scare, read about L0pht, Mudgeand @stake 69.164.66.203 22:11, 28 January 2006 (UTC)

NSA Surveillance Data Led FBI To Dead Ends Or Innocent Americans is a copyright violation of a NYT article pasted to Free Internet Press by Intellpuke. This Wikipedia article has a links directly to that NYT story in the Administration response section. The New York Times is reputable. Intellpuke is not. The key is that Wikipedia is neither a thugish right nor a screaming left mouthpiece - it attempts to be neutral and present information that can be verified. You need to study WP:CITE to understand how to state and back up your assertions. Metarhyme 22:30, 28 January 2006 (UTC)

I'm a little concerned that you think the New York Times is still reputable. No mainstream media is still reputable. We can debate this if you want, but opinion is never a good substitute for facts. Here is the primary source REPORT TO THE PRESIDENT, MARCH 31, 2005

"This failure was in large part the result of analytical shortcomings; intelligence analysts were too wedded to their assumptions about Saddam's intentions. But it was also a failure on the part of those who collect intelligence--CIA's and the Defense Intelligence Agency 's (DIA) spies, the National Security Agency 's (NSA) eavesdroppers, and the National Geospatial-Intelligence Agency 's (NGA) imagery experts.1 In the end, those agencies collected precious little intelligence for the analysts to analyze, and much of what they did collect was either worthless or misleading"

I'm also a little curious why I'm reading this...

"You have recently vandalized a Wikipedia article, and you are now being asked to stop this type of behavior. You're welcome to continue editing Wikipedia, so long as these edits are constructive. Please see Wikipedia's Blocking policy and what constitutes vandalism; such actions are not tolerated on Wikipedia, and are not taken lightly.

We hope that you will become a legitimate editor and create an account. Again, you are welcome here at Wikipedia, but remember not to vandalize or you will soon be blocked from editing. metarhyme"

The rules seem to say that people should expect what they write to be edited.

Now as I cited above its clear that the NSA warrantless surveilance was already underway in December of 2000. Your lead in makes it appear that this didn't begin until 2002. What evidence do you have of that?

Keep in mind that just for staff to grow from 16,000 to 58,000 reguires substantial secure infrastructure to have been built, you can't just lease it. People have to have recruited, interviewed, hired and had their prospects security clearances checked out. Mission statement had to have been prepared, contracts had to be advertized to pre-certified qualified defense contractors, let for research and development and then gone into full scale production, bases had to be set up overseas.

I'm a little concerned that you think the New York Times is still reputable. No mainstream media is still reputable. We can debate this if you want, but opinion is never a good substitute for facts. Here is the primary source REPORT TO THE PRESIDENT, MARCH 31, 2005

"This failure was in large part the result of analytical shortcomings; intelligence analysts were too wedded to their assumptions about Saddam's intentions. But it was also a failure on the part of those who collect intelligence--CIA's and the Defense Intelligence Agency 's (DIA) spies, the National Security Agency 's (NSA) eavesdroppers, and the National Geospatial-Intelligence Agency 's (NGA) imagery experts.1 In the end, those agencies collected precious little intelligence for the analysts to analyze, and much of what they did collect was either worthless or misleading"

I'm also a little curious why I'm reading this...

"You have recently vandalized a Wikipedia article, and you are now being asked to stop this type of behavior. You're welcome to continue editing Wikipedia, so long as these edits are constructive. Please see Wikipedia's Blocking policy and what constitutes vandalism; such actions are not tolerated on Wikipedia, and are not taken lightly.

We hope that you will become a legitimate editor and create an account. Again, you are welcome here at Wikipedia, but remember not to vandalize or you will soon be blocked from editing. metarhyme"

The rules seem to say that people should expect what they write to be edited.

Now as I cited above its clear that the NSA warrantless surveilance was already underway in December of 2000. Your lead in makes it appear that this didn't begin until 2002. What evidence do you have of that?

Keep in mind that just for staff to grow from 16,000 to 58,000 reguires substantial secure infrastructure to have been built, you can't just lease it. People have to have recruited, interviewed, hired and had their prospects security clearances checked out. Mission statement had to have been prepared, contracts had to be advertized to pre-certified qualified defense contractors, let for research and development and then gone into full scale production, bases had to be set up overseas.

You feel you have clearly shown that warrantless domestic surveillance in violation of the FISA was underway in December of 2000. You cite one source, the March 31 2005 report. If somewhere in there it said that, the scandal would not have broken on December 19 2005. If you have concluded a date or I have concluded a date, that doesn't cut it because it's OR. An anonymous source would work, as long as there's a findable scandalmonger. So: Who Said That?

There are lots of government reports if you go look. You can go all the way back to Truman and follow the story incrementally through the sucessive Executive orders, Agency press releases, government contracts and watch it build if you want to.

I admit it doesn't hurt to have some first hand knowledge. Check out Contel Federal Systems vs Gruman. Contel is a division of GTE. Up through the mid nineties they did the satellites, fiber optic backpones, cellphone repeaters, etc; The New York Times found the story, the President came in and asked them to sit on the story and they sat on it right through the last elections.

Previously you cited Bush's extension of eo13025. How does Executive Order 13035 (pdf) trash FISA? It doesn't.

Did you just overlook the part about HPCC? HPCC Stratfor’s History Founded in 1995 in Baton Rouge Spin-off from Center for Geopolitical Studies Headquartered in Austin, Texas Clients in defense, media, telecommunications, investment banking, law, textiles, petrochemical, forestry, regional government and other areas Global Intelligence Update launched in 1995 Web-based intelligence center launched in March 1999 Sister company: Infraworks ... Stratfor’s Tasks Public Monitor events on a global scale identifying significant pointers Provide real time analysis of events Generate high level geopolitical analysis ... Build on public services Use same methodology for monitoring, analyzing and forecasting client significant events Provide specialized, focused intelligence services Narrow monitoring Focused projects Training for staff and senior executives Open Source Intelligence

Denotes “published” Not a term we use We use the concept “legally obtained information”

What we don’t do National technical means espionage, illegal activities What we do: most other things Rely heavily on digital information Enabled by Technology Pre-1980: information scarcity Ephemeral information Lack of connectivity

Intelligence focus on collection Post-1980 Digitized information Intensifying connectivity Intelligence focus on sorting Core issue remains: analysis Cyberspace

Caveats Most information produced in the world is still in paper Most valuable digitized information is not on-line or requires special protocols for access. Most of the web has not been catalogued and is not accessible through search engines

A good research library dwarfs the web: Quantity of usable information Quality of usable information Accessibility of information

Web’s advantage: speed and timeliness System Exists to Serve the Analyst Primary task of system is to discard information Information provided to analyst Push process Pull process

Goals Prevent information overload Provide information teasers Create atmosphere of calm reflection for the analyst Analyst Process ... Global Intelligence Update Naïve sitrepping Rotating analysts Tremendous tension; greatly encouraged Browsing Process Identification of strategic locations in cyberspace Varies by mission Varies over time Cannot/should not be routinized Create monitoring protocols Outcome Information Pointers to new sources before search engines can catalogue Pointers to paper sources Pointers to individuals Website as Magnet

Careful analysis of web traffic by users Generation of email GIU Signups Discussion of issues Aggressive management of email Use of email to establish on-line relationships Potential for the development of off-line relationships

The only thing that matters...Being Right!

The Microsoft Ethic brought to intelligence Brains…not credentials Insight…not social graces Originality…not the conventional wisdom Success…not excuses

We don’t get invited to cocktail parties and we wouldn’t go if we were.

Where does the pdf you cited do that? It doesn't.

"This failure was in large part the result of analytical shortcomings; intelligence analysts were too wedded to their assumptions about Saddam's intentions. But it was also a failure on the part of those who collect intelligence--CIA's and the Defense Intelligence Agency 's (DIA) spies, the National Security Agency 's (NSA) eavesdroppers, and the National Geospatial-Intelligence Agency 's (NGA) imagery experts.1 In the end, those agencies collected precious little intelligence for the analysts to analyze, and much of what they did collect was either worthless or misleading. Finally, it was a failure to communicate effectively with policymakers; the Intelligence Community didn't adequately explain just how little good intelligence it had--or how much its assessments were driven by assumptions and inferences rather than concrete evidence. "

What that document does is say that cyber is in crappy condition,

What it means is that so much information was brought in that they couldn't process it all. They had no way to evaluate what was valuable and what wasn't.

and if you're concerned about that here are two mil articles I found at Category:Computer security - Military intrusion detection honeypots and National Strategy to Secure Cyberspace. The first will probably get merged. The second is based on cyberspace strategy (pdf) if you want to work on it. It is not relevant to documenting the flap around the legal issue of the NSA violating the FISA, if that's what it did, whenever Bush told it to, although nailing down the start time would be excellent.

I have no problem working on something, but let's be clear here, if you listen to what I'm going to tell you there may be some degree of cognative dissonance.

Being disruptive is considered vandalism. My revert was bad tempered.

Fair enough, let's not be grumpy, if you have specific questions just ask me and I will try and give you an answer.

Policy called for the warning - I used what I thought was an appropriate template. I was working on your 4th amendment addition when I found you'd gone on to dump a lot of [POV] at the top of the article. Yes, we are supposed to work together to achieve a concensus. A lot of people have done that to get the article to where it's at. We have a disagreement. You think the article should be about cyber intrusion generally. I think the article should be about the NSA warrantless surveillance controversy specifically. Do you agree with that asessment? Metarhyme 03:09, 29 January 2006 (UTC)

I do agree it should be about the NSA warrantless surveillance controversy, ...not just the NSA warrantless surveillance...but also the controversy...includingwhether the NSA warrantless data mining is legal.

January 20, 2006 NSA Data Mining Is Legal, Necessary, Sec. Chertoff Says By Mort Kondracke

"I think it's important to point out," Homeland Security Secretary Michael Chertoff told me in an interview, "that there's no evidence that this is a program designed to achieve political ends or do something nefarious."

He was talking about the National Security Agency's warrantless "domestic spying" program, and I couldn't agree with him more. Despite the alarms sounded by the American Civil Liberties Union, former Vice President Al Gore and various Members of Congress, "there hasn't even been a hint" that the program is targeted at domestic dissidents or innocent bystanders, Chertoff said. It's designed to find and stop terrorists.

"If you go back to the post-Sept. 11 analyses and the 9/11 commission, the whole message was that we were inadequately sensitive to the need to identify the dots and connect them," he said.

"Now, what we're trying to do is gather as many dots as we can, figure out which are the ones that have to be connected and we're getting them connected," he said.

While refusing to discuss how the highly classified program works, Chertoff made it pretty clear that it involves "data mining" -collecting vast amounts of international communications data, running it through computers to spot key words and honing in on potential terrorists.

A former prosecutor, federal judge and head of the Justice Department's criminal division, he convincingly defended the program's legal basis and intelligence value.

I asked him why the Bush administration can't comply with the 1978 Foreign Intelligence Surveillance Act, which allows the government to conduct "emergency" wiretaps for 72 hours.

"It's hard to talk about classified stuff," he said, "but suffice it to say that if you have a large volume of data, a large number of [phone] numbers you're intercepting, the typical model for any kind of warrant requires you to establish probable cause [that one party is a foreign agent] on an individual number."

FISA warrant applications are inches thick, he said, and "if you're trying to sift through an enormous amount of data very quickly, I think it would be impractical." He said that getting an ordinary FISA warrant is "a voluminous, time-consuming process" and "if you're culling through literally thousands of phone numbers ... you could wind up with a huge problem managing the amount of paper you'd have to generate."

What I understood Chertoff to be saying is that when data mining produces evidence of a terrorist contact, the government will then seek a FISA warrant to actually tap the person's phones or "undertake other kinds of activity in order to disrupt something."

As legal authority for the program, Chertoff cited a 2002 decision of the FISA Court of Review, which is one level down from the U.S. Supreme Court, holding that a president has "inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

"We take it for granted that the president does have that authority," the court said, "and, assuming it is so, FISA could not encroach on the president's constitutional powers."

Chertoff also said that the courts have given wide latitude to the government in controlling and monitoring activity across international borders. All reports on the NSA activity assert that it's limited to international communications.

What about the assertion in The New York Times on Tuesday that virtually all of the thousands of NSA leads sent to the FBI in the months after the Sept. 11, 2001, terrorist attacks led to dead ends or innocent persons?

Chertoff said, "You're going to bat well below .100 any time you do intelligence gathering. That's true even in conventional law enforcement. If you get even a small percentage of things to pan out, you've succeeded to a significant degree.

"What I can tell you is this," Chertoff said. "The technique of electronic surveillance, which is gathering information about who calls whom or intercepting actual conversation, is the most significant tool in the war against terrorism.

"If we didn't have it, I'm quite sure we'd have disrupted fewer attacks and identified fewer [terrorists]."

Buried at the bottom of the Times story were a number of cases where actual terrorist operations had been disrupted, apparently as a result of NSA eavesdropping, including efforts to smuggle a missile launcher into the United States, to cut Brooklyn Bridge cables with a blowtorch and an attempt to blow up a fertilizer bomb in London.

"I would rather move quickly and remove somebody when we've got a legal basis to do so, charge them with a lesser offense [than terrorism] or deport them, than wait till I have a big case with a big press conference. If we wait until people get operational, it's a failure. Somebody could get killed."

The idea that someone could bring down the Brooklyn Bridge with a blowtorch has been ridiculed, but Chertoff said, "People kid about the shoe bomber, but had the bomb gone off and 150 people were killed, I don't think a lot of families would be laughing about it."

Civil libertarians seem to fear that the government is collecting huge quantities of data that it can later use politically, but Chertoff said, "I don't think anybody has an interest in accumulating a lot of information. We can barely manage the stuff we care about for avoiding terrorism.

"I can actually make the case that the more intelligence we've got, the more we actually protect civil liberties. In a world without intelligence, where we don't have a good idea where the threats are, it means searching people, screening names, barriers and checkpoints, questioning people when they get on an airplane."

To me, the bottom line of the NSA spying case is this: Congress should investigate whether President Bush has authority to conduct anti-terrorist data mining. And, if he doesn't, Congress should give it to him - with legislative oversight.

As Chertoff told me, "the name of the game here is trying to figure out, with all the billions of pieces of data that float around the world, what data do you need to focus on? What is the stuff you need to worry about?

"If you don't use all the tools of gathering these kinds of leads, then you're leaving very valuable tools on the table." And, if and when another 9/11 occurs, the first question that will be asked is: Why?

I think you should allow that the NSA works for the DIA along with the CIA and that as they say, a lot of the data is on paper...By Executive order all the intelligence agencies share information. The CIA used to be limited to working overseas, and so far as I know that is still supposed to be the case because a lot of what they do is related to giving US corporations advantages over foreign corporations. With international corporations doing business in the US it gets a lot of weird because the information is also shared with industry leaders.

The NSA can get a warrant for anything that would remotely be construed as reasonable let alone legal. What they have more difficulty with is getting a warrent to packet sniff all the financial transactions between banks (overseas connections, money laundering, campaign contributions, political organizations) What does it take to get a FISA judge handpicked by Rhenquist to resign? How about warrantless searches of the Democrats computers in the hart office building? That the Republicans had access to the Democrats computers between 2000 and 2003 has been wisely reported. If you are knowledgable about networks you might wonder how that was done. Did a rogue sys admin just remove all the $ from the mapping and share the C: drives or was it more than that?69.164.66.203 04:38, 29 January 2006 (UTC)

• Well I think Senator Leahy is not technically inclined. His staff screwed up by indulging in wishful thinking and the republicans took advantage. The Secret Service is looking into it. The 2002 date appears in the NYT scoop and in Risen's book on page 52. Bush didn't dispute it. You don't like that date but won't directly point to who says otherwise. Metarhyme 05:13, 29 January 2006 (UTC)

"On June 21, 2001, Mr. _____ resigned as the Committee's System Administrator and Mr. _____, the System Administrator for Senator Leahy's personal office, performed those duties "unofficially" for the Committee until Mr. ______ (Jason Lundell)was hired on July 17, 2001. This position was first job after obtaining his college degree.

I don't disagree that most Senators are not technologically inclined. If someone talks about Fydor being insecure, I don't think that would compute to people that don't routinely packet sniff let alone the Senate.

However this was not Senator Leahy's staff that was involved, and despite it being tracked back later to Senator Orrin Hatch's and Senator Frists staff, You sort of have to wonder not only who was this guy Manuel C. Miranda that had worked for both Hatch and Frist, but what was Jason Lundell's future boss looking for when in 2000 they recruited Jason Lundell to offer him this position as his first job out of college?

Under the law, its NSA's responsibility to prevent people being able to spy on Congress, even if they happen to be Republicans. Republicans have no special exemption from these laws.

"Manuel C. Miranda, a former Republican Judiciary Committee staff member, ... said that a junior member on the staff of Senator Orrin G. Hatch ... had discovered a flaw in the computer system that allowed him to read some of the Democratic computer traffic. Mr. Miranda ... said that the junior aide was reading the Democratic documents from about May 2002 until the early fall of 2002. ... He described the junior staff aide as someone who had a great deal of time on his hands, and he said most of the documents the aide gave him were of little value. "There was no systematic surveillance, no hacking, no stealing and no violation of any Senate rules," he said.

"The sergeant-at-arms suggested that the unauthorized spying could have violated laws against the receipt of stolen property and lying to investigators, among others. The report also suggested that many other Republican aides might have been involved in trafficking in the stolen documents, and Democrats have questioned whether officials at the Justice Department and the White House were also privy to the material in working to support Mr. Bush's nominees and derail Democratic opposition.

The two aides implicated in the affair have both left the Senate. One, Manuel C. Miranda, who had worked for both the Senate majority leader, Bill Frist, and Senator Orrin G. Hatch, chairman of the Judiciary Committee, has defended his conduct in numerous interviews, saying he was able to access the computer memorandums because of Democratic negligence in securing them, not because of any theft or criminal wrongdoing."

"The Wall Street Journal recently announced that Manuel Miranda, an activist working for the confirmation of President Bush's judicial appointments and former staffer to Senate Majority Leader Bill Frist (R-TN), has joined the roster of columnists at OpinionJournal.com, where he will "report" on the Senate proceedings over the nomination of John G. Roberts Jr. to the Supreme Court. But the Journal has released no similar plans to include a columnist "reporting" from a different perspective. Further, the Journal's introduction of Miranda to its readers briefly noted the "Memogate" affair -- which involved the alleged improper access and subsequent misuse of thousands of Democratic memos on controversial Bush judicial nominees and resulted in Miranda's resignation from Frist's staff -- but failed to disclose that he is the subject of an ongoing criminal investigation in connection with the case."

"During an 18-month period, from late 2001 into early 2003, Miranda and a junior Judiciary staffer, Jason Lundell, accessed at least 4,670 documents from a computer server that was left without safeguards. Only a few of the documents were from Republicans, and the report portrayed Miranda as the leader of the effort in which he instructed Lundell to look through the Democratic files."

The Pickel Report

Even though the names have been concealed in the report, we have enough information above to see who is doing what where and when.

B. History of the Judiciary Committee's Network and Systems Administrators

It was determined from interviews of SAA employees that the Judiciary Committee migrated from a mini-computer system to a Local Area Network prior to October 31st, 1991. The specific date is not known, nor is the name of the Systems Administrator at the time.

On August 14th, 1995, the Judiciary Committee computer software system was upgraded from Microsoft (MS) LAN Manager Version 1.1 to MS Windows NT Server 3.51. In December 1999, another upgrade was completed resulting in the software installation of MS Windows NT Server 4.0.

In July 1999, Mr. _____ left the Judiciary Committee after serving as its Systems Administrator. According to SAA staff, Mr. _____ was very independent and rarely used their customer support. In August 1999, an SAA team installed new Y2K-compliant workstations within the Committee. This caused a number of network issues to surface as a result of the System Administrator's nonstandard configurations on the servers and customized, non-standard, individual logon script files. In late 1999, the Judiciary Committee requested assistance from the SAA to bring its computer network back to a standard configuration and into Y2K compliance. An SAA contractor assisted the Committee for approximately 2 months during the transition to a new Systems Administrator, Mr. _______.

SAA Service Center tickets which track service requests to the Help Desk show that in December 1999 Mr. ______ requested specific assistance from the SAA Help Desk with regard to the Judiciary computer server upgrade. According to these records, Mr. _____ "successfully changed and synchronized server passwords for proper security measures."

On June 21, 2001, Mr. _____ resigned as the Committee's System Administrator and Mr. _____, the System Administrator for Senator Leahy's personal office, performed those duties "unofficially" for the Committee until Mr. ______ was hired on July 17, 2001. This position was first job after obtaining his college degree.

You can correct me if I'm wrong, but it's a good idea for individual logon script files to be non-standard. If they are standard it makes them easier to hack.

In the seven month period between November 2000 and July 2001 the Bush transition team would have been doing its recruiting for new employees. The Hart Office Building was closed for Anthrax cleanup between October 26 and November 2001, late 2001 the spying began.Sea level 16:59, 29 January 2006 (UTC)

• Be bold#...but don't be reckless!
• polyPOV
• Russ Tice may provide a better date. Let's wait. Metarhyme 08:46, 30 January 2006 (UTC)

NSA History

Dates of Historical NSA Planning, Policy, Infrastructure, Technology or Personnel upgrade significance.

The NSA history traces its origins back to as early as WWI and Navy domination of COMINT to the thirties. In WWII cryptological and language analysis led to the establishment of the Signals Intelligence Service (SIS) in 1942 out of COMINT Army SSA and Navy OP-20-G. The SIS became the Signal Intelligence Division (SID) which became the Signal Security Service (SSS) in 1943 and the Army Security Agency (ASA) in 1945. Rivalry between Army OSS and Navy G2 eventually led to the Joint Intelligence Committee (JIC) and to the inclusion of the Air Force and representatives from the State Department, The Board of Economic Warfare, later the Foreign Economic Administration and the Coordinator of Information later the Office of Strategic Services (OSS). In 1944 The Army Navy Radio Intelligence Committee became the Army Navy Communication Intelligence Coordinating Committee.(ANCICC)In 1945 this became the Army Navy Communications Intelligence Board. (ANCIB). Long story short intelligence agencies continued to proliferate as shown by the increasing emphasis of Executive orders on Security and Intelligence issues and in October of 1952 a Directive of President Trumana confirmed that Intelligence Collecion was a national Priority and by Parallel Directive of the the National Security Council entitled National Security Council Directive Number 9 the Director NSA became a full voting member.

Executive Orders Executive Order 9546 Inspection by the Federal Security Agency of Statistical Transcript Punch Cards Prepared From Individual Income Tax Returns Signed: May 1, 1945 Federal Register page and date: 10 FR 4685, May 2, 1945

Executive Order 9931 Amendment of Executive Order No. 9905, Designating the Membership of the National Security Resources Board Signed: February 19, 1948 Federal Register page and date: 13 FR 763, February 20, 1948 Amends: EO 9905, November 13, 1947

Executive Order 10100 Regulations Relating to the Granting of Certain Allowances by the Director of Central Intelligence Signed: January 28, 1950 Federal Register page and date: 15 FR 499, January 31, 1950 Revoked by: EO 10903, January 9, 1961 See: EO 10011, October 22, 1948

Executive Order 10111 Establishing a Seal for the Central Intelligence Agency Signed: February 17, 1950 Federal Register page and date: 15 FR 909, February 21, 1950

Executive Order 10207 Establishing the President's Commission on Internal Security and Individual Rights Signed: January 23, 1951 Federal Register page and date: 16 FR 709, January 26, 1951 Revoked by: EO 10305, November 14, 1951

Executive Order 10290 Prescribing Regulations Establishing Minimum Standards for the Classification, Transmission, and Handling, by Department and Agencies of the Executive Branch, of Official Information Which Requires Safeguarding in the Interest of the Security of the United States Signed: September 24, 1951 Federal Register page and date: 16 FR 9795, September 27, 1951 Revoked by: EO 10501, November 5, 1953 See: EO 9835, March 21, 1947; EO 10816, May 7, 1959; EO 10964, September 20, 1961

Executive Order 10300 Providing for the Administration of the Mutual Security Act of 1951 and Related Statutes Signed: November 1, 1951 Federal Register page and date: 16 FR 11203, November 3, 1951 Amends: EO 10159, September 8, 1950 Revokes: EO 10099, January 27, 1950 Amended by: EO 10368, June 30, 1952 Superseded by: EO 10476, August 1, 1953 (in part) Revoked by: EO 10458, June 1, 1953 (in part); EO 12553, February 25, 1986 Note: The authority of this Executive order was repealed by Public Law 665 (68 Stat. 832; 22 U.S.C. 1557).

Executive Order 10305 Revoking Executive Order No. 10207 of January 23, 1951, Establishing the President's Commission on Internal Security and Individual Rights Signed: November 14, 1951 Federal Register page and date: 16 FR 11667, November 17, 1951 Revokes: EO 10207, January 23, 1951

Executive Order 10338 Coordination Procedures Under Section 507 of the Mutual Security Act of 1951 Signed: April 4, 1952 Federal Register page and date: 17 FR 3009, April 8, 1952 Revokes: EO 9857, May 22, 1947; EO 9862, May 31, 1947; EO 9864, May 31, 1947; EO 9914, December 26, 1947; EO 9944, April 9, 1948; EO 9960, May 19, 1948; EO 10208, January 25, 1951; EO 10259, June 27, 1951 Superseded by: EO 10476, August 1, 1953 See: EO 10062, June 6, 1949; EO 10063, June 13, 1949; EO 10144, July 21, 1950 ; EO 10368, June 30, 1952

Executive Order 10368 Amendment of Executive Order No. 10300, Entitled "Providing for the Administration of the Mutual Security Act of 1951 and Related Statues "Signed: June 30, 1952 Federal Register page and date: 17 FR 5929, July 2, 1952 Amends: EO 10159, September 8, 1950; EO 10300, November 1, 1951 Revoked by: EO 10458, June 1, 1953 (in part); EO 12553, February 25, 1986 See: EO 10338, April 5, 1952

Executive Order 10387 Specification of Laws From Which Certain Functions Authorized by the Mutual Security Act of 1951, as Amended, Shall be Exempt Signed: August 25, 1952 Federal Register page and date: 17 FR 7799, August 27, 1952 Supersedes: EO 9943, April 9, 1948 Superseded by: EO 10519, March 5, 1954

Executive Order 10421 Providing for the Physical Security of Facilities Important to the National Defense Signed: December 31, 1952 Federal Register page and date: 18 FR 57, January 3, 1953 Amended by: EO 10438, March 13, 1953; EO 10773, July 1, 1958; EO 11051, September 27, 1962; EO 12148, July 20, 1979 Revoked by: EO 12656, November 18, 1988 See: EO 11725, June 27, 1973

Executive Orders, Public Statements, News Reports about the NSA, Planning for upgrades required to comply with Planning and Government Contracts to facilitate Policy changes, Infrastructure developments and Technology and Personnel upgrades document the progression from surveilence of Signals and Radio to Surveillance of telephone communications analog, digital, voicemail and cellphone, FAX, satellite recconaisance of transfered signals, EMF surveilance, internet surveilance of email and browzing habits and now data mining.Sea level 19:15, 30 January 2006 (UTC)

You left out Executive Order 12333 - section 2.11 seems to be now interpreted to mean somewhat the opposite of what it says. Michael Hayden likes section 1.14(c) which says NSA directs the FBI. Metarhyme 23:56, 1 February 2006 (UTC)

Semi-protection applied

I've been watching anons pushing POV, badly I might add. It's making it hard to edit the article, so I'm treating it like vandalism. I'm applying semi-protection so that our regular, hard working editors who know how the site runs can edit the article. I wish it didn't come to this, but clearly it's our only way forward. - Ta bu shi da yu 05:50, 29 January 2006 (UTC)

[1] A report written by the NSA in December 2000] for the incoming Bush administration argued that the agency had to develop new ways to exploit modern communications systems. While circumspect on specific proposals, the Transition 2001 report, made public after a Freedom of Information Act request by the non-governmental National Security Archives, called for much more expansive monitoring of telecommunications.

The report stated that under conditions in which communications are now “mostly digital, carry billions of bits of data, and contain voice, data and multimedia...senior leadership must understand that today’s and tomorrow’s mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as targeted communications of adversaries.”Sea level 17:26, 29 January 2006 (UTC)

It looks like the anon poster to Lead section (who started editing after an edit by Federal Street) chose to become Sea level. Federal Street's a sockpuppet of Rkteck, whose arb contains a comment which applies to Sea level: "Even though it may be the case that there are fractions of rktects contributions that with massive rework could be usable, filtering and reviewing is far too expensive: the amount of work grossly exceeding that of adding new bona fide fresh content. Rktects modus operandi in talk pages only adds to the problem, making discussion in the conventional sense impossible." Metarhyme 19:16, 30 January 2006 (UTC)

I've tried unsprotecting this for a while. It's certainly true that, sometimes, severe POV pusing amounts to vandalism, but a general inability to edit to a high standard doesn't. WP:SEMI makes clear in terms that it should not be used to prohibit anon editing in general (since that's a m:Foundation issue) and extended sprotection of this article would seem to amount to that — especially given the ending of TBSDY's comment at the start of this section. The site is not only for "those who know", but for everyone, to edit, as long as they are not doing so in bad-faith. If the article is facing a barrage of vandalism then, if blocks fail, it can of course be temporarily sprotected to bore the vandal. Once they're bored, which usually only takes a few hours or maybe a day, I'd encourage unsprotection. In the gap between now and when I lifted the protection, for instance, the article has survived fine. -Splash^talk 01:04, 1 February 2006 (UTC)

No objection - anonymous users contribute valuable content. See Russ Tice. Metarhyme 01:13, 1 February 2006 (UTC)

Length

The article is too long. The discussion is way too long. Archive talk and spin off Legal analysis? Metarhyme 01:13, 1 February 2006 (UTC)

Yes, how about spinning off all the legal stuff i.e. Legal challenges and Legal issues into Legality of warrantless surveillance or similar? We can keep a {{main}} here, of course, with a brief summary. Since the conversion to <ref> is currently underway, I suppose that waiting until that is complete is probably a wise move, or things will just really hairy! They'll be hairy anyway, mind, but less hairy than they would otherwise be. -Splash^talk 02:03, 1 February 2006 (UTC)

If several editors are motivated to duke it out with Sea level, then moving material to Legality of warrantless surveillance could work. How about Suitable units for measure of pyramid passages otherwise? Metarhyme 23:37, 1 February 2006 (UTC)

Legal POV

Federal Street's replaced legal issues with this: Metarhyme 06:21, 3 February 2006 (UTC)

Legal issues

There are a number of legal issues surrounding the surveillance without warrants controversy. Some have suggested that President Bush, in authorizing such surveillance, is in violation of the 1978 Foreign Intelligence Surveillance Act (FISA) and the Constitution. President Bush, however, has claimed authority to approve the NSA program under the September 18, 2001 Congressional Authorization for the Use of Military Force and under his inherent powers under Article II of the Constitution.

Legality of warrantless surveillance

The debate surrounding President Bush's authorization of warrantless surveillance stems from the fact that under the constitution and under FISA its ilegal.

The Atorney general, depending on an untested Unitary Executive theory set well apart from the Unitary Executive doctrine that has been used by other presidents such as Abraham Lincoln, Theodore Roosevelt, Franklin Roosevelt, Harry Truman, Richard Nixon, Ronald Reagan and William Clinton, argues that the authority of the executive branch derives from the Constitution and statutory authority to protect the nation from attack.

Its a bit inconsistant to argue that as a unitary executive the president has unitary control of the executive branch and the defense department within it and the ability to act as commader in chief of the forces of the defense department in time of war and to delare it a time of war, and at the same time needs the authorization of Congress to use force, and is obligated to comply with the restrictions imposed by the FISA Act of 1978, so for purposes of consistancy the President is no longer arguing as he did in April of 2004 that the FISA Act requires him to get a warrant.

Departmental Theory says the United States Constitution is a different type of law than ordinary law. Unlike ordinary law which is used by the government to control the people, Constitutional Law is used by the people to control the government.

Under Departmental Theory the Separation of Powers is both expected and intended to be constantly tested by each branch constantly doing everything it can to extend its power at the expense of the other branches. It is expected that there will be consequences ranging from success to impeachment and that the difficulty will either be worked out by agreement between the branches, or revert to the ultimate authority of the people.

The legal community is fascinated by the issues involved, especially the issue of whether warrantless surveillance can be justified by necessity, because if that argument holds away we no longer will be a nation of laws.

Though the President is in a postion of controlling all three branches of government, the constitution, requires him to both faithfully execute the laws and preserve, protect and defend the constitution.

The legal community is split over whether the President can sucessfully argue neither the constitution, nor the law apply to him when he finds it necessary to ignore the law in order to sucsessfully preserve protect and defend the nation.

Now that the full details of the NSA surveillance operation are known and it has now been revealed by the government that the surveillance includes data mining of American citizens entirely in the United States many people are concerned.

Its very troubling to some Americans that people are targeted for reasons of ideology. Political views that it might be suspected would offer aid and comfort to the enemy by opposing the president and showing a lack of solidarity in time of war are now considered reasonable grounds for surveillance.

Democrats, Liberals, people blogging on the Daily KOS, Quakers, anti war demonstrators, Halliburton protestors, have been wire taped, had their emails and blogs subject to review, been covertly surveilled, and arrested.

It is argued that this is necessitated by a post 9/11 mentality and a war where the enemy may be an individual living in the United States. It is further argued that the FISA laws written in 1978, which require warrants that comply with the constitution which was written centuries ago, simply are obsoleted by the exigencies of this modern struggle.

The consensus is now that of Harold Koh, dean of Yale Law School, and Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, who argue that FISA clearly makes the wiretapping let alone the data mining illegal;

Those who like John Schmidt, former Associate Attorney General, and Douglas Kmiec, chair of Pepperdine Law School, argued either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war are generally conceeded to be wrong. see "Other legal analysis" below.

Those such as K.A. Taipale of the World Policy Institute and James Jay Carafano of the Heritage Foundation and Philip Bobbitt of the University of Texas Law School ,who have suggested that, regardless of how one feels about this important Constitutional power issue, FISA itself is no longer adequate to deal with certain technology developments, particularly the transition from circuit-based communications to packet-based communications and needs to be amended may have a better case, but the problem is that the ilegal actions were taken before any such ammemdment was ever proposed.

The 1978 Foreign Intelligence Surveillance Act defines the Justice Department's authority to conduct physical and electronic surveillance for "foreign intelligence information". FISA provides two mechanisms to perform searches. First, FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of the eavesdropping. In this case, FISA authorizes a FISC judge to grant an application for the electronic surveillance if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order. 50 U.S.C. §1802(a)(1). In this situation, the surveillance must be directed solely at communications used exclusively by foreign powers, not U.S. persons. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law but not authorized by statute. FISA defines a "foreign power" as a foreign government, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. FISA limits its use against US persons who are citizens, foreign resident aliens of US corporations. Finally, FISA applies to surveillence whose significant purpose must be for gathering foreign intelligence information, which is information necessary to protect against actual or potential grave attack, sabotage or international terrorism.

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA. These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorizes his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

However, the authorization granted by President Bush to the NSA apparently uses neither FISC approval nor the one-year foreign surveillance authority granted by FISA. Instead, the administration argues that the power is granted by the Constitution and by a statutory exemption. Case law supports the idea that the President has the "inherent authority to conduct warrantless searches to obtain foreign intelligence information." Article II of the Constitution of the United States of America makes the President Commander in Chief with the responsibility to protect the Nation. This authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). Whether such declarations apply to foreign intelligence has been examined by few courts.

In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an important foreign intelligence opinion, In Re Sealed Case No. 02-001. The Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct. Furthermore, professor Orin Kerr argues that the part of In Re Sealed Case that dealt with FISA (rather than the Fourth Amendment) was nonbinding dicta and that the argument does not restrict Congress's power to regulate the executive in general.

Even assuming the President has no authority under Article II of the Consitution, the President's decision may nevertheless be protectible under FISA. Following the 9/11 attacks, Congress passed the Authorization for the Use of Military Force (AUMF). Section 2(a) of the AUMF authorized the President to "use all necessary... force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks." Under FISA, this provides for two basic legal arguments. First, FISA allows for both physical searches and electronic surveillance without a court order for fifteen days after a declaration of war by Congress. 50 U.S.C. §1811. Several cases, including Hamdi v. Rumsfeld and Rumsfeld v. Padilla, have construed the AUMF as a declaration of war-at least, insofar as it authorizes war against Al Qaeda and its agents—although the language it uses also has notable differences with prior declarations of war. In this case, 50 U.S.C. §1811 may permit some level of surveillance. The meaning of 50 U.S.C. §1811 is somewhat ambiguous as to scope of authority permitted under this section. One argument is that it permits the President to authorize, for a period of fifteen days following the declaration, indefinite surveillance of Al Qaeda and its agents, but the repeated reauthorization of the surveillance by the President suggests this argument is not being used by the White House. Another interpretation is that it permits short term surveillance of fifteen days authorized at any point after the declaration of war.

The AUMF may also relieve the administration of any criminal or civil liability under 50 U.S.C. §§ 1809 and 1810. These two provisions, and their corresponding provisions for physical searches, provide that intentional surveillance without authority is a felony "except as authorized by statute." The argument, in this case, is that "all necessary force" includes "foreign surveillance." In Hamdi and Padilla, the Supreme Court found that the detention of both American and Foreign citizens were "clearly and unmistakably" a "fundamental incident of waging war". Intelligence gathering, some argue, would fall under this same rubric of incidents of war. As such, if the AUMF is understood as a "statutory" authority under FISA, neither the criminal nor civil penalities would apply, at the very least, to those individuals targeted by the AUMF. However, former Senate majority leader Tom Daschle, who negotiated the language of the AUMF, explained that "the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate."

Finally, there may be significant legal problems should information gathered under President Bush's authorization be used in criminal trials. Ordinarily, 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. 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. Other cases have allowed the use at criminal trial of evidence obtained incident to authorized FISA.

Courts have only addressed this issue with respect to authorized surveillance of foreign powers, their agents and those communications incident to such surveillance. The courts have never specifically addressed whether it is reasonable to use evidence gained from broad warrantless surveillance, which may more broadly cover the communications of US persons. The National Security Act of 1947 requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

I am reverting back: this is most definitely inferior to what was in the version. It is full of POV assertions like "Its very troubling to some Americans that people are targeted for reasons of ideology. Political views that it might be suspected would offer aid and comfort to the enemy by opposing the president and showing a lack of solidarity in time of war are now considered reasonable grounds for surveillance." - this is not well written. - Ta bu shi da yu 06:53, 4 February 2006 (UTC)

Current Events

Metarhyme notes that the article is being updated to reflect how the legal status is affected by a changing administration posture. Anyone following this issue is probably well aware of the fact that the President, Vice President, Attorney General, Secretary of Defense, The State Department, General Hayden, Negroponte and many other administration officials and members of Congress not to mention innumerable commentators have been issuing statements that affect both the status of the issue and the public perception of it.

Reinforced by public polling which indicates that where it has been shown that the spying was on ordinary Americans and without probable cause, most Americans now support impeachment for the president followed by public trials and appropriate sanctions, the consensus has come down firmly that some action needs to be taken to clarify that this type of behavior is neither legal nor acceptable.

Wire taps are not the same technology as data mining followed up by the covert operations of other government agencies after the data collected has been fed into the system. Spying on Quakers or Halliburton protesters, who have always been American citizens and never left the country or called overseas because their ideology makes them likely opponents of administration policy is a bit different than spying on al Qaeda operatives who live overseas.

Present extensions of claimed authority to go so far as to review internet blogs for possibly disloyal or seditious statements, moniter the email of politicians and the media and the finances of banks and the stock market because some international corporations that make charitable or political contributions are suspected of money laundering, and arresting people for wearing a tshirt with a slogan in a public place are all troubling to Americans.

On the other hand, at this moment the President is in a position of considerable power with his party controlling all three branches of government and may indeed be able to make the law be whatever he claims it is as was attempted with the signing statement issued for the McCain torture bill.Federal Street 12:52, 3 February 2006 (UTC)

Yes, well. Your edit removed a whole lot of information that was extremely useful to the article, and IMO seems to be an argument that the whole surveillance issue is bad. While it may be, this is your POV, and contrary to WP:NPOV. I have reverted you. Please don't make wholesale revisions like this without discussion on the talk page first. Many editors before you made a considerable effort in their edits, having their edits wiped out by someone else like this is discouraging to them, and in this case decreases the quality of the article. - Ta bu shi da yu 07:00, 4 February 2006 (UTC)