The Smoking Gun: NSA Warrantless Wiretapping, they knew it was illegal!

[originalpckelly]

Note: I have been very thorough because I think these are very serious accusations, and I would not want to make false accusations against anyone. It is well worth reading, because it proves the Bush administration knew it was doing something illegal. Hence the reason it is the smoking gun.

The Smoking Gun: NSA Wiretapping Program
PC Kelly

It was hidden in plain sight, on the website of The Center for Public Integrity. The document titled "Domestic Security Enhancement Act of 2003" or popularly know as the "Patriot Act II" contains the most important text on the first page! In section 103 the text is as follows:

"Under 50 U.S.C. §§ 1811, 1829 & 1844, the Attorney General may authorize, without the prior approval of the FISA Court, electronic surveillance, physical searches, or the use of pen registers for a period of 15 days following a congressional declaration of war. This wartime exception is unnecessarily narrow; it may be invoked only when Congress formally has declared war, a rare event in the nation's history and something that has not occurred in more than sixty years. This provision would expand FISA's wartime exception by allowing the wartime exception to be invoked after Congress authorizes the use of military force, or after the United States has suffered an attack creating an national emergency."

The really important part would be:

"This provision would expand FISA's wartime exception by allowing the wartime exception to be invoked after Congress authorizes the use of military force, or after the United States has suffered an attack creating an national emergency."

You see this demonstrates that at the time the second Patriot Act was written, the Department of Justice believed they did not have authorization to wiretap without a warrant. Why? They thought the Authorization of Military Force Against Terrorists did not override FISA. This is the smoking gun. It proves the legal arguments, which have been given by the current Attorney General in his testimony to the Senate Judiciary Committee, were not the original reasoning behind the program. In fact I believe it shows the former Attorney General or the specific person who drafted this law (Patriot Act II) knew it was illegal to wiretap a suspect without a court order. Basically:

Why would someone seek to legalize something, if they already thought the something was legal?

I do trust the source of the document that I have quoted, as it is a non-partisan organization with a very good record. I just don't see why they would have written up 120 pages of a law and have it be fake. (In other words I think the document is so long, it must be real.)


Sources:
The specific page on The Center for Public Integrities website (includes a link to the full text of the act available in PDF format):
http://www.publicintegrity.org/report.aspx?aid=94&sid=200

The Foreign Intelligence Surveillance Act (all of it):
http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36_20_I.html

Section 1811 the part which was supposed to be enlarged in scope to include an AUMF trigger:
http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001811----000-.html

The Attorney General's written testimony including his legal reliance on the AUMF:
http://judiciary.senate.gov/testimony.cfm?id=1727&wit_id=3936

The Spoken Testimony is available at c-span.org under the Link "Response to Terrorism."

[yourout]

1. They would have used FISA but....

they knew what they were doing was so illegal that the FISA judges would have thrown them out.

[ClassWarrior]

2. And what were they doing that was so illegal? I'm guessing...

...it was spying on their political enemies for personal gain. Another RW power grab.

16+5=2006

NGU.

[biscotti]

5. Bingo

[mom cat]

3. Welcome to DU originalpckelley! Very good post!

:hi:

[file83]

4. Wow - I bet this ends up in the newspapers in a couple days...

AND WELCOME TO THE DU!! :hi:

Excellent catch - by the way...what in the hell were you doing combing through 120 page legal documents? DAMN you are dedicated! :patriot:

[opihimoimoi]

6. Good Job man....well done......sending beer and ribs

[originalpckelly]

7. NY Times and Republican Rule of Law Quotes

I actually sent a comment into the New York Times, and they are supposed to be reading it (they said they sent it to the pertinent editor.) We all have to hope that they aren't full of (you know what.) On Monday, I plan to call the attorneys for the ACLU who are part of the multi-party suit brought to stop the program. As you can guess, this information is seriously going to help them.

You know, I really actually can't believe I found this. Little ol' me. I was so excited this morning, I ran around shouting. This might be what brings down the evil empire.

I thought this might be helpful to demonstrate how hypocritical the Republicans will be if they don't impeach the President.

From Wikipedia on the Monica Lewinsky scandal; Republican quotes about the rule of law:
"I will have no part in the creation of a constitutional double-standard to benefit the President. He is not above the law. If an ordinary citizen committed these crimes, he would go to jail." (Bill Frist)

"This nation sits at a crossroads. One direction points to the higher road of the rule of law. Sometimes hard, sometimes unpleasant, this path relies on truth, justice and the rigorous application of the principle that no man is above the law. Now, the other road is the path of least resistance. This is where we start making exceptions to our laws based on poll numbers and spin control. This is when we pitch the law completely overboard when the mood fits us, when we ignore the facts in order to cover up the truth.

No man is above the law, and no man is below the law. That's the principle that we all hold very dear in this country." (Tom Delay)

"I suggest impeachment is like beauty: apparently in the eye of the beholder. But I hold a different view. And it's not a vengeful one, it's not vindictive, and it's not craven. It's just a concern for the Constitution and a high respect for the rule of law. ... as a lawyer and a legislator for most of my very long life, I have a particular reverence for our legal system. It protects the innocent, it punishes the guilty, it defends the powerless, it guards freedom, it summons the noblest instincts of the human spirit.

The rule of law protects you and it protects me from the midnight fire on our roof or the 3 a.m. knock on our door." (Henry Hyde)

[FogerRox]

8. I think you may have missed on 1 point

Section 1811 of FISA allows for warrantless wiretaps for the first 15 days of a war--
This does not replace the 72 hr exception. The intent of the FISA authors-- is found in the House, Senate conference commitee report. They wanted to give the President time to propose and Congress to vote on, expanded wartime powers.

edit for cites-

H.R. Conf. Rep. No. 95-1720, at 34 (1978).

And is again cited here towards the end, under notes-

http://www.nybooks.com/articles/18650

Here is a bit more- it seems the House/Senate Conference commitee,
was looking at a 1 year period, but substituted the 15 day period.


http://volokh.com/posts/1135893533.shtml

another edit--

There's a certain irony here, in that FISA itself is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that "otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. 1811.

Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity to ask Congress for a statutory amendment. As the Conference Report explained: "The Conferees intend that this period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.” H.R. Conf. Rep. No. 95-1720, at 34 (1978).

last 2 paragraphs--

http://balkin.blogspot.com/2005/12/nsa-euphemism-watch-part-2.html

The nuance the Conferees cite seems to have been lost on the Alberto Gonzalez or any-other White House Flunky, inluding whoever wrote the Patriot Act- One or Two.

edit-- Oh yeah, cant forget Can o Fun--

http://www.canofun.com/blog/videos/2006/SchiffDomesticSurveillance.asx

[originalpckelly]

9. No

What they wanted to do was take the 15 day period of time in FISA (1811) which allows warrantless electronic surveillance after a formal declaration of war, and extend the exception to an authorization of military force or after a national emergency. This shows that they thought they needed to have this authority legalized. If they had thought they could override FISA with an AUMF the changes to FISA(1811) would be unnecessary. You are right, however, this has nothing to do with the 72 hr. exception. Obviosly you're right about the original intent, but these people seem to take a mile when given an inch, so take the most liberal construction.

[FogerRox]

11. ok- very good-- I see- I re-read your OP-

And the author skirts the issue of why the 15 day period was put into FISA in the first place.

Kudos on connecting the dots.

[FreedomAngel82]

14. Oh good luck!

:hug: I hope you're successful. Please keep us updated okay?

[bleever]

10. Hmmm...

K&R.

[pat_k]

12. "left their incriminating fingerprints everywhere, showing an unmistakabl

The quote is from None Dare Call It Treason and applies to Bush v. Gore edict handed down by the feloneous five, but it is every bit as applicable to their violations of FISA, torture, and other crimes.

"And like typical criminals, the felonious five left their incriminating fingerprints everywhere, showing an unmistakable consciousness of guilt on their part."

We must call on our "leaders" to lead, and to "Dare Call It Treason."

[FreedomAngel82]

13. So now we know why

they keep saying "in a time of war" nonsense because without the "war" they couldn't illegally do this!

[dmr]

15. Welcome to DU, originalpckelly!

Thank you for posting an excellent thread. :)

[originalpckelly]

16. Let me add

This completely disproves all arguments in favor of the NSA surveillance program. Why, if you have the inherit Constitutional authority, would you seek to change a statute to get the authority for an even shorter period of time?

This discovery completely disproves any legal case the President (via the Attorney General) may make, as there is no excuse which can now be given which won't look like it was made up on the spot.

I think I'll call my local AP office because I haven't heard anything from the NY Times yet.

[babsbunny]

17. Another Smoking gun

I wish I could get excited!

[Mnemosyne]

18. I say hangins too good for 'em! Great work and welcome

to DU originalpckelly! :yourock: :hi:

[originalpckelly]

19. Just Called The ACLU Attorney's Supervising The NSA Case

Hopefully the lady I left the message for will understand my phone number and call me back if she has any questions. I called at 9:30 (ET) so hopefully if she'll be in at all, she'll be in soon. Keeping my fingers crossed. I think I'll call the AP office here in town, if the NY Times doesn't respond to the e-mail I sent them this past weekend. Gosh, I was so nervous calling the ACLU, I don't why, they're on the right side.