President Bush has authorized wiretaps of foreign calls to the USA from persons with alleged Al Qaeda ties. Is this legal? NSAFiles is a Pajamas Media blog that examines the controversy over surveillance methods of the National Security Agency, as well as related intellligence matters.

AJ Strata points us to an op-ed by the other Republican senator from Arizona—Jon Kyl—on the dynamic nature of the Global War on Terror and our efforts in successfully adapting to the changes.

When I looked in on David Horowitz’ regular gathering of movement conservatives last week there was a lot of loose talk about hoping the New York Times will get prosecuted. Y’know, for publishing the leaked info about the NSA surveillance program.

I just shrugged all that off as cheap, partisan wanking. The same way I shrug off the way some liberals are now talking about impeachment. Ain’t gonna happen.

Turns out — at least on the first issue– I could be wrong.

I didn’t get around to blogging this yesterday, but much was made of this Washington Post article with a couple of interesting tidbits regarding the NSA Surveillance program; a hint that there is more unrevealed eavesdropping going on than the President’s program, and a tacit admission that the AUMF argument is of recent vintage.

The New York Times is suing the Department of Defense in order to get the department to disclose (more) classified information, specifically the names of persons targeted by the National Security Agency’s Terrorist Surveillance Program. Bluto at My Pet Jawa has more. AJ Strata wonders whether the New York Times staff has high-level sources of information on this matter.

I wonder how these three terrorists were caught in the United States … I bet you can guess where I am going with this … The NSA apparently wiretapped these individuals and now have an indictment.

[I]f FISA’s sole purpose is to throw out leads from the NSA, or wait until the FBI can confirm the lead independently (which can never happen in 72 hours) I think it is time to toss out FISA and the secret judges who are making idiotic decisions about national security in a secret Star Chamber court. …

The Judiciary and Congress have no more say on this matter than they do on how to wage any military action.

Yesterday—in contrast to the House decision—the Senate rejected further inquiry into the NSA Terrorist Surveillance Program. The legislative body’s Democrats, however, are none too pleased about it.

“It is more than apparent to me that the White House has applied heavy pressure in recent days, in recent weeks, to prevent the committee from doing its job,” Sen. John D. Rockefeller IV (D-W.Va.), vice chairman of the intelligence committee, said after the panel voted along party lines not to consider his motion for an investigation.

Jeff has a long series of posts containing pertinent laws, research, coupled with extensive interpretation and commentary.

The first judicial opinion touching on the NSA domestic surveillance program was issued today, and it didn’t go well for the Bush Administration.

On the same day that Pat Roberts indicated he was satisfied for now that the Administration was willing to negotiate an updated FISA, thus declining to hold hearings in the Senate Select Committee On Intelligence, Representatives in the House apparently agreed to move forward with their hearing, though the scope is in dispute:

As it became clear FISA was stonewalling the same kinds of leads that would have prevented 9-11, any politician worth their salt was not going to stand against Bush’s decision.

The Washington Post has the latest.

One of the more annoying self righteous attacks on the administration in recent years (and perhaps the most disingenuous) is the whole surveillance controversy…We’re constantly hearing from lefties how America is turning to a fascist country. That we should be more like Europe. The European lefties themselves chime in with their smarmy finger-snapping disdain.

For Europeans, scolding the Bush administration for everything from Guantanamo to the Iraq War to secret CIA prisons has become a full-time job. But when it comes to the American scandal over President Bush’s warrantless wiretaps, there’s been a curious reaction from the other side of the Atlantic: silence.

Have you noticed how the Democrats have gone mostly silent recently on the NSA/FISA issue? Particularly on the “Impeach Bush” hysteria? It can be explained by this article:

Two key Democrats yesterday called the NSA domestic surveillance program necessary for fighting terrorism but questioned whether President Bush had the legal authority to order it done without getting congressional approval.

Despite former President Jimmy Carter’s pointed jabs at the Bush administration over the NSA surveillance program this past week, it turns out that Carter has more familiarity with warrantless eavesdropping than he let on…

Not only does Jimmy Carter betray his hypocrisy here, but his Attorney General told Congress when it debated the FISA law in 1978 that FISA would not impede the president from exercising precisely this power under the Constitution.

ABC News is reporting the results of a public opinion poll that seems to show that public support for the NSA surveillance program is growing.

Apparently there is a good chance a Grand Jury will be impaneled to investigate the leaks emanating from the NSA leak in the NY Times according to the NY Times (Hat Tip Ace of Spades).

Former Congressman Robert Livingston continues to disappoint those who try to enlist him to attack Republican leaders…

…This tempest in a teapot about treatment of cowardly un-uniformed mass murderers and terror mongers, as well as restriction of his ability to monitor conversations of potential terrorists is in my view asinine…

More Americans should not die because the peace-at-any-cost fringe and antigovernment paranoids still fighting the ghost of Nixon hate President Bush more than they fear al Qaeda.

An interesting trial balloon for Presidential hypocrisy being floated today attempts to triangulate, for purposes of comparison, the idea of “inherent authority” under Article II with the NSA foreign surveillance story and the President’s reaction to Hurricane Katrina.

So now it appears Bush has agreed to brief the full Intelligence Committee on the NSA wiretap program…

Expect leaks to be spread throughout the MSM soon about the operational side of this program, further endangering our intelligence gathering capabilities.

The Thursday Washington Post has a must-read story on how the FISA court has dealt with the NSA domestic surveillance program. … Very interesting stuff. Incidentally, the question of the FISA Court’s authority under existing law to address the legality of the NSA program turns out to be a very interesting issue. I hope to blog more about it soon.

FISA was NEVER INTENDED to supercede a President’s Constitutional authority (numerous lower court rulings have deferred to that presumed authority with regard to foreign intel surveillance)—and, when extended into the realm of military surveillance in a time of war, may well be unconstitutional on its face.

The standoff between Congress and the White House has apparently started to slowly subside, as members in both houses assuage themselves by drafting new legislation to broaden Congressional oversight on the agency’s actions.

After initially balking, the White House has relented, and provided additional details on the NSA domestic surveillance program to the Congress. For several weeks, members of the House and Senate have been pressing the administration for more information on program, but the White House rejected their requests, saying that Congress could not be trusted with highly classified national security information.

The Associated Press reports on some of the reactions from members of the House Intelligence Committee to their briefing on the NSA program. An excerpt:

At least one Democrat left the four-hour House session saying he had a better understanding of legal and operational aspects of the anti-terrorist surveillance program, being conducted without warrants. But he said he still had a number of questions.

The White House has released highly classified details of the NSA program to intercept communications between terrorists and people within the US.

From the Associated Press via Breitbart.com:

After weeks of insisting it would not reveal details of its eavesdropping without warrants, the White House reversed course Wednesday and provided a House committee with highly classified information about the operation.

There were a bunch of signs today that Republican leaders in Congress are not convinced by the Administration’s defense of the NSA surveillance program. First, Heather Wilson, Chair of a House Intelligence Subcommittee with oversight over the NSA, called for full Congressional hearings on the program. Second, Senator Specter …

Yesterday, when I wrote about Arianna Huffington imploring Democrats to fight harder against the NSA terrorist surveillance program, I thought that I’d seen the last of the totally hair-brained articles. Sadly, I was wrong. My proof: Mo Dowd’s firebreathing diatribe in the NY Times.

This extended Pajamas Media video segment from the NSA hearings features an interview with Debra Burlingame, sister of Charles Burlingame, the pilot of hijacked Flight 77. Also, Paul Mirengoff of Power Line has a rather heated exchange with Ted Kennedy and Dick Durbin.

Windows Media Player version.

In video from outside the NSA Hearings, Senator Dick Durbin is questioned by Paul Mirengoff for Pajamas Media and Power Line. Durbin is a little confused about who we are.

Windows Media Player version.

Alright, here we go (and it looks like this won’t be the final installment, after all - the transcript keeps growing!). Let’s start this installment with Dick Durbin, who scores a pretty good point up front:

… bravo to Alberto Gonzales. At yesterday’s Senate judiciary committee hearing, he did the most subtle impersonation of the Red Queen I’ve ever seen. The Alice in Wonderland matriarch once said, “Sometimes I’ve believed as many as six impossible things before breakfast.”

I especially liked this part of the NSA hearings yesterday — which almost (but not quite) made up for having to watch and listen to the Democrats on this particular Senate Committee yet again:

SENATOR GRASSLEY: I’m going to start with something that’s just peripheral to the issues we’re on, but it does deal with our national security, and it’s the leak of this information to the New York Times.

Several former Clinton administration officials are among the group of “scholars of constitutional law and former government officials” who last week submitted a letter to Congress – posted on the New York Review of Books website – asserting that the Bush administration had “fail[ed] to identify any plausible legal authority” for the NSA program that does not comply with the warrant procedure mandated by Congress in FISA (the Foreign Intelligence Surveillance Act of 1978). One of those former Clinton administration officials is Walter Dellinger.

But in 1994, Dellinger was singing a different tune.

If the Senate Judiciary Committee hearings on the NSA intercept program were a boxing match, the Democrats would be ahead on points after the first couple of rounds – but just barely.

That damn Alberto Gonzalez! Man, did he ever get me into trouble. I had spent a good part of the day yesterday listening to his testimony about the NSA spying scandal. I had originally put aside the day to study some strategic poker tips in Card Player magazine, but my attention kept shifting back to Gonzalez’s riveting performance on C-SPAN. I don’t know about you, but I found his arguments quite convincing. So convincing that I couldn’t wait to try them out while playing a few hands of no-limit Texas Hold’Em.

The Washington Post reports that there is a split within the GOP over the issue of domestic spying — further underscoring the inaccuracy of claims that questions raised about it are strictly a partisan affair:

[…] Presumably, many GOP bigwigs read the Post and saw how the hearings went so by Thursday this “rift” will be unchanged, bigger, or healed. If it’s healed that would mean the party is coming together to present a united front against Democrats.

Gonzales Defends Legality of Surveillance (William Branigin, February 6, 2006, Washington Post)

In an opening statement, Gonzales called the NSA program “an early warning system designed for the 21st century.” He told the committee: “It is the modern equivalent to a scout team, sent ahead to do reconnaissance, or a series of radar outposts designed to detect enemy movements. And as with all wartime operations, speed, agility and secrecy are essential to its success.” He said that “no other foreign intelligence program in the history of NSA has received a more thorough review” to ensure there are safeguards to protect the privacy of Americans.

The dreariness of the Senate hearing on the NSA al-Qaeda eavesdropping program was broken by a few moments of amusement — or at least clarity.

First, since the story itself appears in the New York Times, the creakiest of the Antique Media (I love the phrase — is it Hewitt’s?), we can expect some whoppers in the way its presented. The Times does not disappoint.

Bush and Gonzales want us to believe the surveillance program is directed at al Qaeda and other terrorists. But the reality is it is directed at the communications of suspected al Qaeda members overseas with people within this country. (For polling differences that depend upon whether the question is phrased as one or the other, see this article in [today]’s Wall St. Journal (free link.)

FISA prohibits this without a court order, either obtained prior to or in emergency cases shortly thereafter, for good reason. It’s called the minimization requirement.

After a day in which Attorney General Alberto Gonzales faced tough questions from the Senate Judiciary Committee about the legality of America’s best-known secret terrorist surveillance program, the National Security Agency (NSA) said it would alter its wiretap protocol to reduce the threat to civil rights.

Under the new procedures for intercepting a telephone call from an al Qaeda operative to a U.S. resident, the two parties engaged in conversation will hear a brief alarm bell every 30 seconds, followed by a recorded announcement that says: “In order to better protect the United States from devastating terror attacks, this call may be monitored.”

In the hearings earlier today, Attorney General Gonzales argued that FISA’s exceptions should be read broadly under the canon of construction of avoiding constitutional doubt. Consider this exchange between Gonzales and Senator Feinstein:

FEINSTEIN: What in FISA specifically, then, allows you to conduct electronic surveillance within America, on Americans?

GONZALES: I believe that it’s Section 109, which talks about persons not engaged in electronic surveillance under cover of law except as authorized by statute. And I may not have it exactly right.

We believe that that is the provision in the statute which allows us to rely upon the authorization to use military force.

Unbelievable …

Leahy, meanwhile, said that while al-Qaida terrorists should be monitored, Bush chose to illegally wiretap Americans’ conversations without safeguards to protect civil liberties. “My concern is for peaceful Quakers who are being spied upon, and other law-abiding Americans and babies and nuns who are placed on terrorist watch lists,” Leahy said.

So … can someone provide me with the names of Quakers who were monitored by the NSA program President Bush authorized?

It seems a some graying writers at the NY Times would like to relive their sordid past by revisiting the Nixon years, using President Bush as a strawman. They claim the surveillance program the administration has admitted to is exactly like what Nixon did when he was “spying on Americans”. The problem with this theory is the circumstances are completely different.

In light of the NSA hearings, I’m reposting - with updates - my December 20th piece on the unfolding of the warrantless spying scandal. Written 72 hours after the story broke, the objective of the post was to illustrate the transparency of the Bush damage control process and to counter what I believed was unwarranted (no pun intended) optimism among many Bush opponents that this was the “big one” and that the administration would suffer the consequences of an audacious power grab.

To wit: this story has never been about NSA misconduct or presidential lawbreaking. It has ALWAYS—and how many times can I stress this, really?—ALWAYS been about Separation of Powers and a desire by the Congress to expand its own authority (or maintain previous expansions, if you prefer) vs. a Chief Executive who is concerned with returning to the office of the presidency constitutional mandates granted to that office, among them, Article II powers.

Washington Post

If Joe Biden didn’t exist, some stand up comic would have to invent him.

During this morning’s round of questions, Senator Biden (in 08!) prattled on about the NSA intercept program, wondering aloud whether or not the President had the authority to carry it out when all of a sudden out of the clear blue sky he asked Albert Gonzalez, the Attorney General of the United States, “When will this war be over.”

I would hope, but don’t expect, that the Democrats involved in the NSA hearings this week would behave more responsibly than Patrick Leahy did over the weekend. Leahy made an incredibly irresponsible, and even more puzzling, comment about the Bush administration knowing the names of the 9/11 hijackers and doing nothing about it before 9/11.

The ACLU are running this full page ad in conjunction with today’s Senate hearings over the NSA.

[…] It should get interesting today as one side accusses the administration of spying on innocent Americans without any evidence to back them up, and the other side defends what was supposed to be a secret program designed to defend us from the enemy. Why anyone should have to defend trying to spy on the enemy is just ridiculous to me.

Am I a Bush apologist? No, I haven’t heard any viable reason why he hasn’t secured our borders, and there are several other issues I have qualms with Bush about. However, listening in on the conversations of those talking to the people who want to kill us is not one of those issues.

There has been much consternation and hyperbolic hysteria amid the revelations that **gasp** the government is monitoring the homeland and listening to people’s conversations. As much publicity as the Carnivore and Echelon surveillance programs received in the past, I didn’t figure anyone should be surprised with these latest “revelations”, if you can call them that. I assumed it was public knowledge that electronic eavesdropping, even within the homeland, was nothing new. This latest “controversy” has been fabricated simply to castigate President Bush.

That said, I just ran across another interesting tidbit from a recent news story focusing on the NSA “domestic spying” program. The only reference I found to this was on several left-wing blogs, but that was about it. However, I think they may have misunderstood the actual context of the item.

In his “hearings preview” oped in the WSJ this morning - “America Expects Surveillance” - Attorney General Alberto Gonzales asks us to consider the facts [of the NSA controversy] “from both a legal and a commonsense perspective.” I have no expertise in the former and barely any in the latter (according to people who know me), but I will venture forth to say this is one of the great “duhs” of our time.

If we’re going to use common sense, let’s imagine this.

I got behind on my news and blog reading this past week and missed this Hugh Hewitt post until tonight.

The American Spectator’s Jed Babbin was on John Batchelor’s radio show yesterday, and stated that the intelligence community believes West Virignia Senator Jay Rockefeller is the leaker who illegally supplied the New York Times with the details of the NSA program.

Given that the CIA’s Porter J. Goss stated emphatically that the leak had done very serious damage to the Uniterd States, if Rockefeller is a suspect, he should be hauled before a Grand Jury asap. When the crime was bribery (Abscam)no one protested that a sitting U.S. Senator ought not to be a target.

[…] I wondered the same thing on December 30:

Today, Attorney General Gonzales will testify before the Senate Judiciary Committee about the Bush administration’s surveillance program. He’s got a column in the WSJ this morning, which presumably reflects what he will say […] What will be interesting today will be to see how well Gonzales will be able to defend the program under hard questioning and how far the Senators will be willing to go when they know that part of the answer, explicit or insinuated, will inevitably be that if they oppose the program they do not care enough about national security.

That’s the title of Debra Burlingame’s op-ed in this morning’s New York Post. Debra defends the NSA terrorist surveillance program, on which hearings are getting underway today in the Senate. She notes an NBC report that I didn’t know about:

Missing in the debate over the program to eavesdrop on suspected terrorists without a warrant is the question of whether or not it works.

A 2004 NBC report graphically illustrated what not having this program cost us 41/2 years ago.

Today, Pennsylvania Senator Arlen Specter will convene the Judiciary Hearing on Wartime Executive Power and NSA’s Surveillance Authority. The guest at this roast will be Attorney General Alberto Gonzales. We know a lot about the day’s events already: Senator Specter has supplied us with 15 questions, and the Democratic committee members with six ‘questions’ of their own (more on that in a moment). We also know roughly the message Gonzales will try to convey, both from recent speeches and a preview that has been published in TIME.

Here, then, is a little Q & A that I hope both the uninitiated and the obsessed may find helpful.

For whatever it’s worth, I received the following preview from Sen. Kennedy’s staff regarding his intentions for questioning Alberto Gonzales at tomorrow’s hearings (I’m posting this with their consent):

So as I suggested on Friday – Kennedy is going to take an interesting, unexpected approach in Monday’s wiretapping hearings.

With the recent leak of the NSA’s terrorist surveillance program, some have questioned whether this congressional authorization can be read to encompass signals intelligence. In this case, our military is engaged in signals intelligence when they have reason to believe that at least one person is a member or agent of al Qaeda or a related terrorist organization communicating into or out of the U.S. The purpose is to learn the locations, plans and capabilities of our enemy. Consider the facts from both a legal and a commonsense perspective.

Hearings on the NSA’s warrantless wiretapping start tomorrow. And so far, it’s AG Gonzales’ coming testimony that’s getting all the attention. Fair enough. The man does have some things to answer—and we’ll see if he really does so. But I think the real fireworks might be elsewhere.

Arlen Specter, who called the hearings, just told Big Tim that the witnesses are likely to include some top Justice Department officials who tried to put the kibosh on the program:

It is important for America to see the severity, the gravity of these crimes against America. The left may hate Bush, blame Bush, but the Amerian people elected him. So it is the American people the left holds in contempt and wishes to deliver into dhimmitude - dar al islam.

If George Bush is guilty of domestic spying, then so is every President going back to George Washington himself. Presidents from George Washington to George W. Bush have intercepted communications to ascertain enemy threats to national security,

Interesting…

WASHINGTON - An intense debate erupted during the Ford administration over the president’s powers to eavesdrop without warrants to gather foreign intelligence, according to government documents. George H.W. Bush, Donald Rumsfeld and Dick Cheney are cited in the documents… .

“Yogi Berra was right: It’s deja vu all over again,” said Tom Blanton, executive director for the National Security Archive, a nongovernment research group at George Washington University. “It’s the same debate.”

[…] There is quite a bit of interesting information here.

For one thing, the fact that the members of the Ford administration wanted to ensure that any legislation passed by Congress wasn’t seen as an infrigement upon the executive’s ability to gather foreign intelligence and defend the country. This is consistent with the position taken by members in the Bush administration - many of whom were also members of the Ford administration - today.