Talk:NSA warrantless surveillance controversy

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Contents

[edit] Footnotes

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<ref>{{cite press release |publisher= |date= |title= |url= |accessdate=}}</ref>

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[edit] POV tag added

Note the bias inherent in the following editorial "However, it seems necessary to take such statements cautiously, given that the Administration considers its current program also to be conducted pursuant to applicable law; the meaning that might be attributed to such a statement is not necessarily the meaning that would be attributed in the light of more detailed information."

There is no way to read this except "The Administration thinks the current program is legal and we all know that to be false so all statements from the ADmin are suspect". —The preceding unsigned comment was added by Jpat34721 (talk • contribs) 00:19, 30 January 2007 (UTC).

[edit] weasel/pov falsehhoods

"Any search inside of the United States, however, would still clearly require a warrant."

This is false. Warrantless exceptions have been upheld against foreign powers and their agents many times by many circuits.

"Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to thewarrant requirement for searches conducted >>within the United States<< which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980)" —The preceding unsigned comment was added by Jpat34721 (talk • contribs) 00:32, 30 January 2007 (UTC).

[edit] more weaseling

"On January 27, in response to growing criticism, the Department of Justice released an informal four page document titled The NSA Program to Detect and Prevent Terrorist Attacks - Myth vs Reality defending the NSA program. It argued that "[t]he NSA activities described by the President are consistent with FISA" on the grounds that:"

The auithor here assigns motive ("in response to growing criticism") without citation. —The preceding unsigned comment was added by Jpat34721 (talk • contribs) 01:29, 30 January 2007 (UTC).

[edit] More POV and falsehoods

"and had used this [sic - the installed supercomputers] to perform mass eavesdropping and order police investigations of tens of thousands of ordinary Americans without judicial warrant"

The cited article refers to mass data collection. As has been noted (and ignored) clear in earlier posts by other editors, the NSA has two programs, the one under discussion here involves listening in on conversations. The other one referenced in the article gathers information about calls and call patterns but does not listen to actual conversations.

I've corrected this sentence to read "and had used them to collect information on millions of private domestic calls". I've eliminated the unsupported reference to ordering "police investigations of tens of thousands of ordinary Americans without judicial warrant" which appears in neither article.

I've always thought that the two were part of the same program. I've heard something about "roving wiretaps", where cell-phones conversations are randomly listened into by a computer voice recognition system, which searches for a set of words/phrases. I don't know any of the details or sources, but this would certainly be part of the controversy, and would provide a point of overlap between the two procedures you mentioned. I'm fine with the wording. Just wanted to express my thoughts on the matter. Btw, please sign you posts by typing ~~~~. It helps everyone follow the flow of dialogue. Kevin Baastalk 03:05, 31 January 2007 (UTC)
They are not the same and there is a separate controversy page for the NSA call database issue. Roving wiretaps is a Patriot Acr issue that has nothing to due with the FISA controversy at hand Jpat34721 17:20, 31 January 2007 (UTC)
Wouldn't roving wiretaps, being warrantless electronic domestic surveillance (which includes listening into conversations, albeit by a computer) violate the text of FISA? And wouldn't that therefore quite directly pertain to the FISA controversy? Kevin Baastalk 04:49, 2 February 2007 (UTC)
The Patriot Act specifically ammended FISA to allow roving wiretaps. There is no question that they are legal. If there is controversy, it's with the PA but its a done deal. Also keep in mind that the NSA program we're talking about involved calls originating from outside of the US. The domestic end of the conversation terminates where ever it terminates. Roving wiretaps don't come into playJpat34721

[edit] Legal issues - format contradicts the intro

The intro to "Legal issues" says that the legal issues fall into two broad disciplines: statutory interpretation and constitutional law, but the section is broken down into five sub-sections:

   * 3.1 Statutory Issues
         o 3.1.1 Sufficiency of FISA
         o 3.1.2 Wiretapping without warrants and FISA emergency authorizations
   * 3.2 Constitutional Issues
         o 3.2.1 Separation of Powers and Unitary Executive theory
         o 3.2.2 Duty to notify Congressional leaders and Congress
         o 3.2.3 Fourth Amendment
   * 3.3 Authorization for Use of Military Force Resolution (AUMF)
   * 3.4 Classified information
         o 3.4.1 Leaking of classified information
         o 3.4.2 Publication of classified information
   * 3.5 Admissibility

Presumably, all non-constitutional issues are statutory, thus 3.3, 3.4, & 3.5 belong under 3.1. However, that would subsume a set of distinct issues under one heading. I think the current categorization into five sections is more intuitive, informative, and helpful to the reader. Perhaps the wording of the intro can be modified to accurately reflect the current categorization scheme. Kevin Baastalk 04:19, 31 January 2007 (UTC)

Yeah sorry, I had just gotten started on the Legal issues section and hit save instead of preview. (I haven't figured out how to undo yet). I think the article would be much more useful if we could boil the legal arguments down to their essence and present them NPOV as close to the top of the section as possible. My intent is to structure the Legal Issues section using the same hierarcy a court would (using distillation of opposing points of view (DOV) as the presentation vehicle), looking first at Stautory Interpretation and application to the known facts (was the objectional intelligence gathered foreign or domestic, did the AUMF supercede FISA etc), and next at the Constitutional questions raised (mainly DOV on balance of powers issues).
I think we should add another major section for dealing with the ancillary issues (or move them to their own page). The article is way too long and disjoint in my opinion. --Jpat34721 13:59, 31 January 2007 (UTC)

[edit] POV/ weasels in Legal issue into

"The debate surrounding President Bush's authorization of warrantless surveillance is principally about checks and balances and separation of powers." The statement is unsupported and not factual. It jumps right to Constitutional issues which would only be considered in court after the statutory interpretation was established which would first include applying the avoidance doctrine to see if FISA could be read to avoid the Constitutional issues

"Some lawyers believe the ultimate issue of legality is largely unknowable until the full details of the NSA surveillance operation are known" This is a classic weasel ("some lawyers") which at the very least requires citation or support

"still others, .. claim either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war (although FISA explicitly states that it applies in a modified form in wartime)."

The inclusion of the spin phrase "although FISA explicitly states that it applies in a modified form in wartime" imparts a POV (counter arguements to anti-administration positions are nowhere inserted", and it doesn't even make sense in context. That is, if FISA is unconstitutional the provisions of FISA are irrelevant.

"The American Bar Association, of which more than half of all lawyers in the nation are members, expressly condemns the program as a blatant violation of the law. (see "Third party legal analysis")

POV load and clear. If the ABA used the phrase "blatent violation of the law" it should be quoted and cited. Otherwise the sentiment should be expressed in more neutral languageJpat34721 16:17, 31 January 2007 (UTC)

On second thought, even that would be inadequate. Merely presented attributed conclusions is a form of argument from authority which should be avoided. The better approach would be to distill the ABA argument and present it to show how they reach the conclusion they do. Jpat34721 18:45, 31 January 2007 (UTC)

[edit] Proposed Legal Issue intro and Statutory Issue Section

This is by no means complete but would be interested in comments as to the approach, organization, NPOV etc. Assume appropriate citations will be added. We would also need to added a blurb in the background section on the FISA exclusivity clause (which should be there anyway - its central to the anti-administration argument)

[edit] Legal issues

Analysis of the legal issues involved in this controversy fall into two broad disciplines, statutory interpretation and Constitutional law. The former is is the process of interpreting and applying legislation to tha facts of a given case while the later is the body of law governing the interpretation and implementation of the United States Constitution and covers areas such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States. [1]

[edit] Statutory Issues

A Court of Law faced with determining the legality of the NSA program would have to first grapple with the statutory interpretation of FISA itself[2] Since the Act has the potential to raise certain Constitutional conflicts relating to the powers assigned to to Congress and the Executive in Articles I and II of the Constitution, the Canon of Constitutional Avodance would require the court to first determine if the FISA statutes can be "fairly read" to avoid Constitutional conflict.[3] Assuming such an interpretation can be found, the question then becomes whether or not the NSA wiretap authorizations were violative of the statute so read. Without knowing how a court would resolve the first issue and/or the classified specifics of the program itself, it is not possible to predict the outcome. However, legal scholars on both sides of the debate have weighed in.

The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face[4] and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict which should be resolved in Congress' favor.[5]

Central to both of these views is the argument that the participation of "US persons" as defined in FISA50 U.S.C. § 1801 renders the objectional intercepts "domestic" in nature.[citation needed] Those advocating the "no constitutional issue" position, argue that Congress already has the authority it needs to legislate in this area under Article I and the Fourth Amendment.[citation needed], while those in the other camp argue[6] that the existing deliniation between Congressional and Executive authority in this area is not clear and that Congress, in including the exclusivity clause in FISA, meant to carve out a legimate role for itself in this arena.

The Administration's position with regard to statutory interpretation, as outlined in the DOJ whitepaper, is that Congress allowed for exceptions to the FISA warrant requirements with inclusion of the "unless allowed by statute" clause and the the AUMF was just such a statute.

[edit] ==============================

Jpat34721 00:10, 1 February 2007 (UTC)

[edit] POV in AUMF section

"However, according to the canons of statutory construction, if a statute that governs a specific question in great detail is apparently contradicted by a statute that may apply only generally or vaguely, the detailed statute is the one that applies. In this case, FISA provides a very detailed legal regime for domestic wiretapping, while the AUMF makes no mention of wiretapping and can only be argued to apply to the NSA warrantless surveillance program by a vague and generalized interpretation. This indicates that the AUMF does not affect the applicability of FISA."

Here the editor presents his/her own conclusions on the applicability of the AUMF and passes judgement on the merits of the administration's argument. Find and expert making the same argument and include that instead. Jpat34721 20:55, 31 January 2007 (UTC)

It's not POV, at worst it's OR(original research) or verifiability. And what's stated is plainly obvious. Do we have to cite a an expert when we say the grass is green? -Kevin_baas
It's our bias that makes us see things as cut and dried when they're not. In this case for instance, the administration argues persuasively that in times of emergency (AUMF was a response to 9/11), a broad authorization of necessity must be dispositive. It is unreasonable in such circumstances, to require Congress to sift through the entire US Code and specifically amend every statute that limits the exercise of executive authority. Jpat34721 11:23, 3 February 2007 (UTC)
On the other hand, I guess we do have math articles that cite references for logical reasoning, however simple. (the structure of what's written is "according to x, if a then b. a is true. thus, according to x, b is true." which is about as simple as logic gets.) I think the last sentence can be stricken. It doesn't really add anything that isn't made plainly obvious by the preceding sentences, so it doesn't meet the "interesting" criteria. Kevin Baastalk 05:38, 2 February 2007 (UTC)
You don't find unsupport conclusions like "and can only be argued to apply .. by a vague and generalized interpretation" and "This indicates that the AUMF does not affect the applicability of FISA" objectionable on POV grounds?? Drawing conclusions on the merits of arguments is the essence of POV. No one is interested in our conclusions which we are unqualified to make. Here's how I rewrote the above

The administration's position is that the AUMF an authorizing statute which satisfies the FISA criteria. Critics contend that by the canon of Ejusdem generis, the specific provisions of the FISA restrictions supercede the general authority granted by the AUMF.

. As this is an issue of statutory interpretation, its placed in that section under "FISA exclusivity". I contend it would be impossible to discern my opinion from the above. That was definately not the case with the original Jpat34721 20:24, 2 February 2007 (UTC)
How much FISA discusses wiretapping is interesting and important (and quite relevant to the canon), as is how much the AUMF discusses wiretapping. And it is an objective fact that the AUMF makes no mention of it, and FISA is a law specifically about survellience. There is no POV in this (though in the original, "very detailed legal regime", esp. with the superlative, is subjective), it is simply a statement of interesting and important facts. Also, it is better to give a brief (say, one sentence) explanation of "Ejusdem generis" (be that the name) than linking to it. Kevin Baastalk 18:09, 3 February 2007 (UTC)

[edit] Question for the experts

In trying to distill the Congressional view of the constitutional issues involved in this controversy, I ran across this excerpt from the Congressional Reasearch Service's publication Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information:

The Senate Judiciary Committee articulated its view with respect to congressional power to tailor the President’s use of an inherent constitutional power:

The basis for this legislation [FISA] is the understanding — concurred in by the Attorney
General — that even if the President has an “inherent” constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance

It seems that this could be interpreted as Congress asserting a power to overrule the President's "inherent constitutional power". I.e. if the President has constitutional authority "to authorize warrantless surveillance for foreign intelligence purposes", how can Congress impose "a reasonable warrant procedure" restricting that authority? Can anyone decipher this seemly contradictory statement? Jpat34721 00:24, 1 February 2007 (UTC)

I don't consider myself an "expert", but I find the clause in article 1 of the constitution: "Congress shall have the power...To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." pretty straightforward. Kevin Baastalk 19:00, 3 February 2007 (UTC)
Yeah, but FISA isn't empowering the "execution of the foregoing powers", it's an attempt to impede them. And your article I argument doesn't address the warrant vs warrantless contidiction contained in the excerpt.Jpat34721 20:26, 4 February 2007 (UTC)
The constitution does not say "empowering". That would obviate the need for a legislature, if the only thing they could do is increase the executive's power. It says "necessary and proper", which is quite different. And FISA certainly does not impede the president's inherent power to be the ranking officer "of the Army and Navy of the United States". Nor does it impede congress' power "To make rules for the government and regulation of the land and naval forces". Furthermore, the constitution includes the bill of rights, and the supremacy clause states that the constitution is the supreme law of the land, and the president, by oath of office and by his official duties, is to "take care that the laws be executed faithfully", so it is clearly a matter of how to "proper"ly carry into execution such powers as are granted by the supreme law, which includes the 1st and 4th amendments, that the president, congress, AND the courts, are obliged to uphold.
I don't see the contradiction. Firstly, congress's warrant procedure applies to domestic survellience. Secondly, it does not say that the president's power to authorize warrantless surveillance for foreign intelligence purposes is unlimited, just that it exists in some form. Finally, under FISA the president CAN authorize survellience for foreign intelligence purposes without a warrant. In some cases, he is obligated to acquire one after-the-fact with a certain time-frame. And in the beginning of a war he is granted much more freedom. Kevin Baastalk 23:16, 4 February 2007 (UTC)

[edit] Proposed restructuring

See the top "intermediate work product" pages in the history to see how existing content would fit into these categories. Also, we really need to shorten this article, its way over the guideline. It seems like a lot of the related issues stuff could be replaced with appropriate links in the related links section. For example, the Congression response/history stuff could (should) be replaced with a pointer to Congressional response to the NSA warrantless surveillance program

  * 1 Developments
   * 2 Background
         o 2.1 FISA
         o 2.2 Authorization for Use of Military Force (AUMF) Resolution
         o 2.3 NSA Surveillance Program
   * 3 Legal issues
         o 3.1 Statutory Interpretation Issues
               + 3.1.1 Statutory arguments against the legality of the NSA program
               + 3.1.2 Administration's statutory position
               + 3.1.3 Judicial Findings
         o 3.2 Constitutional Law issues
               + 3.2.1 Article I and II issues
               + 3.2.2 Fourth Amendment issues
                     # 3.2.2.1 Criminal Prosecution under the NSA program
               + 3.2.3 Circuit Court Findings
         o 3.3 Third-party legal analysis
               + 3.3.1 Arguing that the program is legal or probably legal
               + 3.3.2 Arguing that the program is illegal or probably illegal
   * 4 Related Issues
         o 4.1 Warrantless wiretaps and the history of FISA
         o 4.2 Insufficiency of FISA in the war on terror
         o 4.3 Authorization for Use of Military Force Resolution (AUMF)as Superceding FISA controversy
         o 4.4 Separation of Powers and Unitary Executive theory
         o 4.5 Duty to notify Congressional leaders and Congress
         o 4.6 Classified information
               + 4.6.1 Leaking of classified information
               + 4.6.2 Publication of classified information
   * 5 Responses and analyses
         o 5.1 Administration response to press stories
         o 5.2 Congressional response
   * 6 Legal developments
         o 6.1 Congressionally proposed FISA amendments
         o 6.2 Legal challenges
         o 6.3 FISA Court order
   * 7 See also
         o 7.1 Related articles
         o 7.2 References
         o 7.3 External links
         o 7.4 Wikinews
         o 7.5 Law portal

Jpat34721 03:34, 1 February 2007 (UTC)

The guideline is not mandatory. it's just a rough estimate; a guide. articles dealing with more difficult and complex topics are often much longer than the guideline suggests. articles on very simple topics are often much shorter. Removing redundancies and unimportant/uninteresting stuff and making wording more concise can improve article quality, while having a side effect of reducing article length. shorter is better not because it's better in-and-of-itself, but because it's usually less redundant, more interesting and important, and more concise. if one really is more concerned with length than quality, i think shooting for these four qualities is an effective means to reduce length.
regarding the congressional response section, firstly, the controversy certainly involves the players involved in the controversy, and certainly that includes congress. it's not a "related issue", but a fundamental part of the issue; without it there wouldn't be much of an issue. a "controversy" is a dialogue among controverting parties, and congress is a controverting party. the congressional repsonse section, as it stands, is a summary per Wikipedia:Summary style. Really, when I was reorganizing the article before, it was a huge section, and i created the sub-article you mentioned (per Wikipedia:Page splitting) in an attempt to provide better content balance in this article. Lacking the creative skills, however, i left the "summary" as the first few paragraphs of the sub-article.
I agree with your points here but organizationally I think it would be easier for the reader to digest if we presented the Congressional viewpoint in context. I.e for a given point of contention (say the exclusivity of FISA) we say, the administration position (DOJ whitepaper) on this is..., while Congress (via the CRS report) contends....
Regarding organization, I prefer chronological order for controversial issues - it's the most NPOV, because that way you can't slice and dice things in ways that favor certain positions - the only position it can favor is what really happened. And I try to make topics which are fundamentally a series of events into somewhat of a narrative, because our minds generally operate in a narrative fashion, given that we spend most of our lives, well, - like that, so it makes it easier to follow and comprehend. Now this doesn't mean I'm against categorization. I created the categorical structure of the article that you saw when you first joined our little team. i broke down the main branches into what i think are the different aspects of the controversy, and put those sections in what i felt was a combination between chronological order and a pedagogical order with respect to each other. in each subsection, you'll notice that i put statements made by the controverting parties in chronological order, so that you can clearly see the chain of dialogue that occured. It was, IMHO (and others'), a mess before.
i don't have time right now to look at your proposal in depth, but since you're attempting something I've done, I thought I'd pass on my thoughts as i was doing it, which led to the current organization. Kevin Baastalk 06:12, 2 February 2007 (UTC)
I agree that elimination of redundancy should be a primary goal, which is why I disagree with the chronological narrative approach. If every time some "event" (new position paper, newspaper article, hearing ect.) occurs we were to add a blurb at the bottom, the article quickly becomes a reduntant mess. Often new "events" add nothing new to the argument(s). Plus I would contend that most readers are less concerned with the history of the controversy than the points of contention about which the controversy turns. Significant "events" can be tracked in a "Developments" section, providing some chronology. A timeline can also be useful. Jpat34721 19:35, 2 February 2007 (UTC)
I didn't say that elimination of redundancy should be a primary goal. I don't think there's really a whole lot of redundancy in this article, certainly not compared to a few other articles I've worked on. Eliminating redundancy is a means that requires great care, as it treads on POV grounds (space and balance). And I think it's properly a latter stage in article development. It should happen after all the info is collected and organized. It's easier to do after things are well organized in a way that everyone agrees upon, and one can do so more accurately.
(Kevin) I organized the article into points of contention, by section breakdowns in the issues section. I then put each section in chronological order.
I don't understand how you can organize points of contention chronologically. Jpat34721 12:51, 3 February 2007 (UTC)
in the order that they were discussed/brought up, roughly. Kevin Baastalk 18:20, 3 February 2007 (UTC)
Lets put this off until we get back to organizationJpat34721 08:48, 4 February 2007 (UTC)
It followed that the administration's positions and congress's positions interweaved, as you suggested above; adminstration would say one thing, and congress and/or lawyers would say another, turning on a point of contention that's made clear. (for instance in the "sufficiency of FISA" section, about whether fisa is sufficient.) chronology doesn't neccessarily lead to redundancy. in fact, it can eliminate redundancy. if the same event is stated twice, when put in chronological order, they will appear right next to each other, and it's easy to see that they are redundant. then you just remove the lower quality one.
Some things I wrote while I was offline (this talk page was cached):
  • the AUMF is not "background". it makes no mention of the NSA, survellience, warrants, or FISA. the AUMF is only relevant because the administration has taken the position that congress authorized the disputed program with it while congress argues that it did not. those are two different positions, and to label the AUMF as "background" is to favor the administration's position. For NPOV, we should avoid organizations that favor a position.
Background, by definition is the ancillary information required by the reader in order to understand the issue. The AUMF certainly is background. I've added a reference to Sen Res. 350 to balance the admin's argument in this section Jpat34721 12:51, 3 February 2007 (UTC)
I would say that background is more like "setting". What was in place; what was the context, of the controversy. I don't buy that the administration really read into the AUMF that survellience was authorized. When the program was put in question, they sought a means to justify it legally, and (probably john yoo) came up with the AUMF story after-the-fact. I think putting it in the intro suggests that it wasn't after-the-fact, which is as POV as suggesting that it was (in the article). Perhaps the context - that is, the iraq war and/or the war on terrorism -- would provide the "ancillary information required by the reader in order to understand the issue", and the AUMF could be brought up in that context. Kevin Baastalk 18:20, 3 February 2007 (UTC)
What is it with you and John Woo? :>) Seriously, the facts do not support your suspicions. The NSA program was reviewed by the AG, the Inspector General, and NSA legal before it was implemented. That legal analysis had a rationale, and contrary to the mistaken conclusion of the original article, it wasn't that they thought FISA was unconstitutional. It was that reading FISA to preclude the AUMF as authorizing would be unconstitutional. An understanding of the AUMF is important so that the reader can discern this important distinction. It will also likey be a central issue in any USSC ruling on the NSA program, especially since Hamdi and Hamdan both turned on the issue of the AUMF. It's key to understanding the conflicting views and belongs in the background IMHO. I did move it to the bottom of the background section so as to not over emphasize its importance.Jpat34721 08:48, 4 February 2007 (UTC)
Argument from authority. Call it what you will, their saying the recent AUMF, "neccessary force" clause, which is no different than any other AUMF and has never been interpreted this way, "authorizes" warrantless survellience explicitly prohibited by the plain text of a statute, because of wartime powers it grants the executive, epitomizes UET as espoused by John Yoo. The entire logic of their rational rests on assumptions specific and unique to UET. Kevin Baastalk 18:13, 4 February 2007 (UTC)
It isn't AFA, the argument is in the rationale, not the source. And in both Hamdi and Hamdon, the USSC reached exactly the opposite conclusion, interpreting the "necessary force" clause as overriding the explict language in 18 U.S.C. § 4001(a) (Hamdi) and invoking Presidential war powers (Hamdan), and they didn't need to use the UET to do it. It seems you are concerned that "confusing readers with the facts" might cause them to reach a different conclusion than the one you want them to. The section in dispute is factual and balanced. What's the problem?Jpat34721 20:18, 4 February 2007 (UTC)
There are quite different interpretations of Hamdi vs. Rumsfeld, which has been used to argue both sides of the NSA controversy. They constitute POV's, and should be presented as such in a balanced way. And I never mentioned anything about the court's philosophy/rational with regard to UET. That is irrelevant/immaterial. I don't have any major issue with the current wording of "Separation of Powers and Unitary Executive theory" section. Kevin Baastalk 23:27, 4 February 2007 (UTC)
  • "Insufficiency of FISA in the war on terror" is a POV section title, clearly suggesting that FISA is not sufficient in the war on terror
  • "AUMF as superceding fisa controversy" is also a POV section title in the same manner.
I see your point. I'll change it. Jpat34721 08:48, 4 February 2007 (UTC)
I struggled a bit with this one. I decided on "Insufficiency" because that's what the way the argument is framed- that FISA is insufficient in time of war. To title the section the opposite of what's being argued seemed illogical and POV the other way.
"sufficiency" can be used to refer to the spectrum between not sufficient and sufficient. insufficiency cannot. at bset, "insufficiency" in the title is begging the question. and in any case, it's taking a side. obviously the sufficiency of FISA is brought into question by the mere existence of the controversy. and clearly the reader would know that that question is going to be discussed by a section named "sufficiency of fisa". the title "insufficiency of fisa" or "fisa insufficiency" reads more like an answer. Kevin Baastalk 18:55, 3 February 2007 (UTC)
  • I think the circuit court findings should be under legal developments, rather than issues. it is a legal development, and it is not an issue.
  • similarly, third party legal analysis is not an issue. it is an analysis, much like the administration's and court's analysis, and as these analysis-es constitute positions, they should be put together to provide balance to each other.
I was going to eliminate the legal development section and put all developments in Developments near the top. I think we need to keep the entries in Developments short though, so I put a more throughal discussion of the ruling in the appropriate section. We look at the legal issues title differently. Subtopicly we have "discussion of", "positions on", "analysis of", "rulings on" legal issues. For me it fits.
i'm partial to how that stuff is set up now. i think we would need more editors to discuss this idea. Kevin Baastalk 18:55, 3 February 2007 (UTC)
  • separation of powers and UET belongs in the constitutional law issues section, as it is an issue pertaining to constitution law (article 1,2, & 3).
  • likewise for duty to notify congress.
Unless someone can find a credible source linking UET to the FISA controversy I'm going to eliminate this section. Its misleading (and OR) to make an argument nobody is making. As I've said before, the administrations argument is based on "inherent powers" not UET. The originals authors confusion on this is apparent, he/she even linked text that reads "inherent powers" to UET WP article. They are not at all the same thing. I do agree that the separation of powers/inherent powers needs to be under Constitutional issues.
The whole "inherent powers" phrase is a central tenet of UET. and the whole article 1,2, and 3 conflict is UET. the legal philosophy of the administration is driven by UET. (John Yoo, Office of Legal Counsel) the brunt of the constitutional issues (and statutory issues) is UET coming into conflict with the legal consensus. "Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international." Hence the administration saying that the president's constitutional war powers cannot be restrained by FISA, hence the administration's interpretation of "inherent powers", hence the AUMF as justification, hence the NSA warrantless survellience controversy. Kevin Baastalk 20:32, 3 February 2007 (UTC)
A weasel cite from a discredited wikipedia entry(dropped from the good article list, constant POV disputes, proxy wars etc.) is unconvincing. UET is a much broader concept than the inherent powers issue in dispute here. No one of substance argues that the President does not have inherent powers, only as to their scope and limitations. Congress and the SC have acknowledged IP on numerous occassions. UET at its core is that all executive power is in the hands of the President, not just his war time power. Historically it has come into play way more in peacetime (although I am aware of Yoo's argument on detainee treatment) when Congress tries to assert control over the burearcracy (remove a Dept. head or independent council etc.) or when too executive functions are in dispute (EPA wants to sue the Army Corp of Engineers for example). My challenge still stands. Who of substance is raising the UET in connection with this case? And wikilinking "inherent powers" to the UET entry is just plain deceptive. I could see it as a Related Issue link but that's about it. Jpat34721 08:48, 4 February 2007 (UTC)
I don't condone wikilinking "inherent powers" to the UET entry. "A weasel citation?" what does the word "weasel" mean in this context? I choose the most relevant quote from the article, and then linked it to the most relevant section in the article. Should I have gone for irrelevancy instead? And I find your argument that the UET article achieved the coveted "good article" status means it's not credible rather weak, to say the least. Kevin Baastalk 18:13, 4 February 2007 (UTC)
A weasel citation means the same thing in this context as in any other, Your excerpt from the WP UET entry starts off "Critics assert that...", a classic weasel. The article itself offers no supporting citation. Which critics? What is there credibility? What axes are they grinding? In any case, you still haven't shown anywhere the admin is claiming UET as a justification for the NSA nor any credible critic that claims UET is an issue in this case. Without either of these, this is just OR, and badly done at that.Jpat34721 20:04, 4 February 2007 (UTC)
I think you're confusing weasel wording with the NPOV policy of attribution. Articles should present all significant points of view, but those POV's should be attributed to their source, in this case, "critics". Kevin Baastalk 23:27, 4 February 2007 (UTC)
From the WP entry on Weasel Word

[edit] Generalization using weasel words

Generalization by means of grammatical quantifiers (few, many, people, etc.), as well as the passive voice ("it has been decided") are also part of weasel wording. Generalization in this way helps speakers or writers disappear in the crowd and thus disown responsibility for what they have said.

  • "People say…" (Who are the people who say it?)
  • "I heard that..." (Whom did you hear it from? How, where and when did they learn of it?)
  • "Few of those who knew the truth have spoken up for …" (Which people knew the truth and should have spoken up?)
  • "It has been decided that..." (Who decided?)
  • "It turns out that..." (How, and why, did it "turn out" that way?)

In the following phrases, an indication of where or how the stories started would have removed the weaseling effect:

  • "It has been mentioned he has embezzled money." (Who mentioned it?)
  • "Rumour has it that she sleeps around with just about anybody." (Where was this rumour published or spread? Who is included in the group that is just about anybody?)
  • "There is evidence that..." (What evidence? Where is it? What are the details?)
  • "A source states that..." (What is the source? Is it reliable?)

There are some forms of generalization which are considered unacceptable in standard writing. This category embraces what is termed a semantic cop-out, represented by the term allegedly. This phrase, which became something of a catch-phrase on the weekly satirical BBC television show, Have I Got News For You, implies an absence of ownership of opinion which casts a limited doubt on the opinion being articulated.

I know. "Critics argue" is neither a grammatical quantifier nor a passive voice. And the closest it comes to the examples is the "People say..." example, but it doesn't fit because "Critics argue" answers the question "Who are the people who say it?" quite directly.
To paraphrase 14 lawyers: "In sum, [I] remain as unpersuaded by the [longer attempt] as [I was with the initial shorter attempt]. The ... more extended discussion only reaffirms [my] initial conclusion, because it makes clear that to find [this citation weasel-worded] would require rewriting not only clear specific [NPOV policy], but major aspects of [sentence structure]. Accordingly, [I] continue to believe that [you have] failed to offer any plausible ... justification for [this characterization]."
I've found that it is accepted and established practice on wikipedia to use "Critics argue..." and "Supporters argue...", as part of providing all notable POV's in a balanced manner. And it is very useful for helping the reader understand the subject. It is an integral part of the subject. I.e., it is interesting and important. Though the sentence that I quoted really should cite a source to verify that "critics argue...". Kevin Baastalk 02:55, 6 February 2007 (UTC)

[edit] continued...

  • this really should be a discussion among at least three people. and i could be said to have a vested interest because i proposed the current organization. my reasoning led me to that organization, and the same reasoning would ofcourse tend the same way. i would much like to see someone else's thoughts.
me tooJpat34721 12:51, 3 February 2007 (UTC)
I noticed you went ahead with big changes. they really should be discussed first and a consensus reached, per the tag at the top of this talk page. when i did a total reorganization, i asked people's opinions first, and even though i my proposal had no objections, I waited over a week to implement it.
I couldn't figure out how to do that. While I'm working on the rewrite, other editors are editing the existing article. It became impossible to try to keep them sync'd. Any suggestions? Jpat34721 12:51, 3 February 2007 (UTC)
I just refactored, I don't think I did any actual writting. I let my proposed version get out of sync. After a week of no objection, I replaced the current with the new, and looked back in the history and brought it up to date with the changes. I left a note on the talk page about this, too, and got help from other editors bringing it up to date. Kevin Baastalk 18:55, 3 February 2007 (UTC)
You should probably rollback your more major changes and get some discussion on the issues first, before we decide what changes should be made. Kevin Baastalk 22:29, 2 February 2007 (UTC)
Organization is a big issue, and it's likely to be controversial. when i did a restructuring, i created a subpage (by using a slash like so: /subpage, and put my proposed version on there. That way, there's no controversy over the active version, and the community could see what i envisioned and discuss it, and eventually vote on it replacing the current organization. Kevin Baastalk 22:54, 2 February 2007 (UTC)
I care less about organization than I do about the blatant POV of the original article. The history shows two years of POV complaints that have not been addressed by the community. I propose we concentrate on content for a while and then reorganize (using your construct if that's what everyone wants) once a consensus is reached on neutrality. Jpat34721 12:51, 3 February 2007 (UTC)
Makes sense. It's great to see someone taking the initiative on this article and really working on improving it. After you become familiar with a text, you become blind to it. At least that's what I've experienced. So a new set of eyes is a pleasant sight. Kevin Baastalk 18:00, 3 February 2007 (UTC)

[edit] re a citations

  • [1]: the fact that needs to be supported is not the argument that is central to both of the views, but rather that said argument is"[c]entral to both of these views". —The preceding unsigned comment was added by Kevin Baas (talk • contribs) 19:54, 3 February 2007 (UTC).
I agree. I wanted to get in the interesting point raised by some that Congress inteded to raise a constitutional issue (thereby stripping the Court of the option of invoking the avoidance canon) but the phrasing is awkward. I propose we added a subsection to "Congression position on statutory interpretation" to balance the one for the admin using the CRS report as the source and make a separate paragraph outining the Congressional intent argument. For now, I've changed "central" to "common to" —The preceding unsigned comment was added by Jpat34721 (talk • contribs) 18:08, 4 February 2007 (UTC).

[edit] In Criminal Prosecution under the NSA program propose to eliminate or move everything below weasel tag

Besides the weasel issues with this section, it seems completely unrelated to criminal prosecution. Is there a novel point here not being made somewhere else? If not, I propose elimination and a link to the excerpted article in External Links —The preceding unsigned comment was added by Jpat34721 (talk • contribs) 19:54, 4 February 2007 (UTC).

[edit] rstored factual dispute tag in "Separation of Powers and Unitary Executive theory" section

The disputed fact is the unsupported assertion that "Whether such declarations apply to foreign intelligence has been examined by few courts". It is not OR to point out that this is simply false but if its a cite you need, here is a quote from the Second Circuit:

Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980)

If, as you claim in the edit summary, that the assertion in dispute is from the CRS, you should cite it properly and provide the quote in a context that supports the assertion.

And BTW, you have to provide any credible source to support your contention that UET is in any way connected to this controversy.Jpat34721 19:06, 16 February 2007 (UTC)

Oh give me a break, the CRS is already in the article. And the case you cited is probably pre-FISA. Kevin Baastalk 21:14, 17 February 2007 (UTC)
Regarding WP:RS there must be sources detailing the fact that numerous courts have already settled the matter of warrantless eavesdropping despite FISA, iow that it is perfectly acceptable. IMHO these have yet to be provided. Unless such a source exists we should not make such assertions. However, I do remember one recent ruling stating this program is illegal. Second, in the articles on unitary executive theory and Commander-in-Chief you will find sufficient sources stating the UET is used to explain why FISA can be ignored.Respectfully Nomen NescioGnothi seauton 13:31, 8 March 2007 (UTC)

[edit] article I and II editors' notes (moved from article)

[Editor's note - it seems that this could be interpreted as Congress asserting a power to overrule the President's "inherent constitutional power". I.e. if the President has constitutional authority "to authorize warrantless surveillance for foreign intelligence purposes", how can Congress impose even "a reasonable warrant procedure" governing that same surveillance? We need an expert to clarify this]

[Response to Editor's note - As a matter of practicality, if Congress were to somehow pass legislation and override the President's veto, the first attempt by the President to use his supposed authority would result in the obtained evidence being challenged by a party with standing (note this doesn't include Congress), most likely the defendant in the criminal case brought by the government. The case would likely be stayed while appeals were heard and probably ending up in the Supreme Court. The current composition of the Court would be likely to strike down the statute passed by Congress as unconstitutional, and allow the evidence stemming from the warrantless surveillance to be admitted, although if the composition of the Court were to change, the outcome would be far less likely to be in the President's favor.] —The preceding unsigned comment was added by Kevin Baas (talk • contribs) 16:51, 9 April 2007 (UTC).

[edit] The infamous hospital visit

Should the hospital visit episode be included in this article (i.e., Gonzales' and Card's visit to Ashcroft in the hospital in order to re-authorize the program on March 11, 2006)? -- Sholom 14:20, 21 May 2007 (UTC)

I vote 'yes' if you have a good source for it. It seems very relevant to whether the program would continue.Mmernex 15:24, 21 May 2007 (UTC)

and there are now two dozen articles on the topic.-- Yellowdesk 15:45, 21 May 2007 (UTC)

Yellowdesk, did you mean two dozen Wikipedia articles on the topic? If so, where? In any event, I hereby volunteer to write the first draft and stick it here (or a subdirectory somewhere? -- if so, tell me where) for folks to take a look at it. -- Sholom 19:25, 21 May 2007 (UTC)
I was meaning about Comey's testimony. I think a search on Comey will turn up rather a bit, including editorials deploring the hospital visit. Note Comey was extrememly careful not to say what the program was. Could be a yet-undisclosed program, though presumably domestic, with the FBI head in the room too. -- Yellowdesk 23:45, 22 May 2007 (UTC)

Another source based in part on interviews with two additonal anonymous sources. Thirty DOJ people were ready to resign. -- Yellowdesk 02:01, 29 May 2007 (UTC)


[edit] first draft / data dump: needs work and edits

I know I still have to source this -- but I'm off-line starting this afternoon for possibly up to a week, so anyone who wants to chip in, please do. Most of it was originally from http://TPMMuckraker.com and http://www.salon.com/opinion/greenwald/ -- if those sources are unacceptable, I'm sure that most of the important stuff on those two web sites are sourced themselves

On October 3, 2003 the Senate confirms Jack L. Goldsmith as the Assistant Attorney General for the OLC, replacing John Yoo, who left to go back to teaching law.

On December 11, 2003, Comey is confirmed as Deputy Attorney General, replacing Larry Thompson. With Comey’s support Goldsmith begins to question what he considered shaky legal reasoning in several crucial opinions, including some drafted by Deputy Assistant Attorney General John Yoo.

Thompson had not been authorized access to the details of the NSA program. But, "Comey was eventually authorized to take part in the program and to review intelligence material that grew out of it” and he set Goldsmith to the task of sorting through the program’s dubious legality. Goldsmith’s review of legal memoranda on the N.S.A. program and interrogation practices apparently became a source of friction between Comey and the White House" (principally, Dick Cheney and David Addington).

Up until this early 2004, Ashcroft had been signing off on the program every 45 days. The next deadline is March 11. For the first time, trained and qualified attorneys within the DOJ had conducted a careful review of the program.

From Comey's testimony

Comey: “A week before that March 11th deadline, I had a private meeting with the attorney general [Ashcroft] for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter.” By the end of that meeting, Ashcroft and Comey had “agreed on a course of action,” to wit, that they “would not certify the program as to its legality.”

This is OLC’s official position, binding on the Executive Branch. Comey and Ashcroft support it. Ashcroft goes into the hospital (end up in ICU for 10 days, in varying degrees of consciousness) and transfers authority to Comey as Acting AG.

On March 11 Comey (as per his prior agreement with Ashcroft) informes the White House that he "would not certify the legality" of the program. Subsequently, President Bush calls Ashcroft in the hospital. Mrs Ashcroft gets the word that Bush’s Legal Counsel (at the time: Alberto Gonzales) and Chief of Staff (Andrew Card) are coming for important business. Mrs. Ashcroft calls Comey to tell him. Comey and Goldsmith race to the hospital with some FBI agents, and Comey calls FBI Director Mueller and tells him what’s happening.

The FBI agents get orders directly from Mueller that “under [no] circumstances” Comey shall be permitted to be forcibly removed from Ashcroft’s room. Comey arrives at the hospital minutes before Gonzales and Card do. From Comey’s testimony:

And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there -- to seek his approval for a matter, and explained what the matter was -- which I will not do.

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me -- drawn from the hour-long meeting we'd had a week earlier -- and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, But that doesn't matter, because I'm not the attorney general.

A "very upset" Andrew Card then called Comey and demanded that he come to the White House for a meeting at 11 PM that night. Comey says that “after the behavior I witnessed” at the hospital, he would refuse to meet with Card unless Ted Olson, then the Solicitor General to the White House, was also present at the meeting. Olsen and Comey arrive at the WH, and Card refuses to let Olsen in the room. Nothing gets accomplished at the meeting.

Comey in his testimony said: "The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality."

Comey prepares a letter of resignation. A number of high ranking DOJ officials join in, they are going to resign, too. Ashcroft’s chief of staff calls Comey asking him to until he is out of the hospital, because he wants to resign with the rest.

At a WH meeting the following morning (the daily meeting between the AG and Pres), Bush pulls Comey aside, and basically says: don’t resign, rather, you (Comey) and Mueller make the changes you think you need to make in order for you to sign off on the program. Comey, DOJ, Mueller, etc., indeed do so – it took about three weeks. (In the meantime, however, the NSA program, completely unauthorized and with “no basis in law”, continued on for those three weeks). (Three months later, Goldsmith resigns. Comey resigned on xxx?)

Hack at it, guys! —Preceding unsigned comment added by Sholom (talk • contribs) May 22, 2007

[edit] AUMF Resolution cleanup

The current section on the AUMF resolution discusses Resolution 350 introduced by Sen Leahy. This resolution was introduced into the last congress, was never brought up for debate and died. As far as I can tell, it has not been reintroduced into the current congress. Should this paragraph be deleted because it references dead legislation? Does anybody have an up to date reference that it has been reintroduced into the current (110th) Congress? Flyboy121 21:30, 19 August 2007 (UTC)

[edit] Publication of classified information - added links to SCOTUS decisions

Dredeyedick 14:26, 22 July 2007 (UTC)

[edit] Editorial tags

I removed eight tags requesting that various sections of the article be rewritten, or that section had recentl been rewriten and needed attention, and next to all of these tags there was zero comment on what attention or improvement would be desired. Basically tag cruft on the article. Some of these tags were more than six months old. For those who care about them, state the topic areas needing attention here on the talk page, instead of cluttering up the article. -- Yellowdesk 22:22, 31 August 2007 (UTC)

[edit] Qwest

The Washington Post reports that a former Qwest executive claims the company was approached by the government about a potentially illegal wiretapping program well before 9/11. He also claims the government retaliated against Qwest for not going along with the program by cancelling a separate lucrative contract with the company.[2] I know the source is someone convicted of insider trading, but it seems relevant to note that this seems to put the begining of the program before 9/11 and before any AUMF bill was passed by Congress (which the majority of the arguments defending the program's legality rely upon). Bbrown8370 04:04, 14 October 2007 (UTC)

I incorporated a summary of the story into the article. No barometer of intelligence 19:31, 14 October 2007 (UTC)

[edit] Photo

How do you like the photo? I think it gives the page a little visual interest and helps counteract “wall of text fatigue.” --S.dedalus (talk) 23:43, 25 December 2007 (UTC)

Looks good. Perhaps an actual picture of NSA HQ is in order? — BQZip01 — talk 00:27, 26 December 2007 (UTC)
Well, there’s this one:

What do you think? Better as the top image, or perhaps lower down? --S.dedalus (talk) 01:01, 29 December 2007 (UTC)

[edit] Lengthy

This article is very lengthy--excessively so. Could we perhaps condense portions of this article (to make it more readable), and create sub-articles for overly-long parts? It would improve the quality of this article a lot. ~ UBeR (talk) 22:10, 21 February 2008 (UTC)

Over a quarter of it is references (which is probably good). It is a large article but I don’t think it’s excessively so. It's an in-depth subject after all. --S.dedalus (talk) 05:32, 16 March 2008 (UTC)