Talk:NSA warrantless surveillance controversy/archive 7

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Archive This is an archive of past discussions. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

Contents

NPOV

This is Sanger's seminal "how-to-do" NPOV:

http://nupedia.8media.org/policy.shtml#nonbias

"On every issue about which there might be even minor dispute among experts on this subject, is it very difficult or impossible for the reader to determine what the view is to which the author adheres?"

balance

If we balance one side with the other, does it lose POV or is it just one article with bias views of both sides? Bona Fides 20:55, 17 August 2006 (UTC)

Biased views from both sides with POV outriggers that may neutralize eachother. 24.148.93.88 04:28, 24 August 2006 (UTC)
If only cited conclusions are presented, it just becomes bi-lateral argument from authority. Better to identify the points of contention and perhaps provide the rationale for the conclusiobns using reputable sources Jpat34721 18:39, 2 February 2007 (UTC)

List of Failed Terror Plots

I mentioned this in another article's discussion page, but is there a list of failed terror plots, specifically those which can be attributed to the NSA warrentless wiretapping surveillance? Im sure some that could be included include the 2002 failed plot on the Library Tower in Los Angeles and the recent uncovering of a terrorist cell in Miami of 7 African American muslims who tried and failed to obtain armaments to attack the Sears Tower in Chicago.--Xlegiofalco 00:50, 24 June 2006 (UTC)

The teenagers who were supposedly going to blow up the Sears Tower were parading around in a parking lot pretending to be holy warriors. It didn't take wiretaps, let alone warrantless wiretaps, to identify them. You can be pretty sure that anyone who was indicted was not identified through the warrantless program, because it is very unlikely that a judge would accept any evidence that is derived--directly or indirectly--from a program that ignores the Bill of Rights. Nareek 01:25, 24 June 2006 (UTC)
Im not sure if were talking about the same incident. Go here to see what I mean- [[1]]--Xlegiofalco 00:29, 25 June 2006 (UTC)
You're talking about the same incident. Note the subtitle on the story you link to, "Plot to blow up Sears Tower ‘more aspirational than operational’", this according to the FBI who presumably are not motivated to play down their coup. Crust 22:19, 27 June 2006 (UTC)

moved from /by issue talk page

Organizing legal issues for "legal issues" section. I think this might be something to split off in another article? or maybe it should be this article, and others should be split off? this, and a Talk:NSA warrantless surveillance controversy/Timeline? Kevin Baastalk 16:28, 28 May 2006 (UTC)

Kevin, I think the Timeline is a great idea. Having just viewed it, I'm struck by how the timeline format really helps the Reader to spot interconnections in this unfolding story. My vote goes to giving this page subarticle status and linking it from the controversy article. Since it's a talk page I didn't do any edits - might I suggest linking the html versions of the 2 CRS reports at the collection on civiblog, as well to as the original pdfs? (I did the conversions. Both include Findlaw search form. The Jan. 5 report includes Supreme Court case reference links and numerous links in text and footnotes.). They are:
Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea, CRS, January 5, 2006 (HTML) via thewall.civiblog.org
Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions, by Alfred Cummings, CRS, January 18, 2006 (HTML) via thewall.civiblog.org
Again, I really think this timeline idea deserves development. Thanks for Your efforts, Kevin.
--Dredeyedick 15:46, 30 July 2006 (UTC)

I lumped people who didn't fit neatly into a category at the bottom of the respective section. Kevin Baastalk 18:51, 28 May 2006 (UTC)

I moved the content to the complimentary article page for this talk page. Kevin Baastalk 00:26, 29 May 2006 (UTC)


Redacted:

On February 1, 2006, House Chairman of the Permanent Select Committee on Intelligence, Peter Hoekstra (R-MI), wrote a letter criticising the release and content of two papers analysing the legality of the program by the Congressional Research Service. [1]

On February 8, 2006, Congressman James Sensenbrenner, Chairman of the House Judiciary Committee wrote [2] Congressional Research Service director Daniel Mulholland, complaining about the incomplete analysis of the NSA surveillance analysis and attaching letters by Law Professors Robert Alt [3] and John C. Eastman. [4] Alt is associated with the John Ashbrook Center for Public Affairs and Eastman with the Claremont Institute, both dedicated to teaching the conservative tenets of strict constructionism and limited government.

On May 15, 2006 Sen. Trent Lott (R-Mississippi) Was quoted by CNN as stating

"What are people worried about? What is the problem? Are you doing something you're not supposed to?"[2]

Changed Paragraph 3 for NPOV

In paragraph 3, changed "is expected to pass" to "is considering"; changed "is expected to fail" to "is also considering"; because "is expected" injects a POV, and this unfolding story has been full of surprises and twists. Until a particular piece of legislation is passed, it would be prudent not to plant "expectations" in the minds of the Readers - some of whome might be members of Congress who vote on said legislation.

Before:

After an exchange of letters in June 2006 between Senate Judiciary Committee Chairman Arlen Specter (R-PA) and Vice President Dick Cheney, the committee is expected to pass Specter's bill putting the NSA program under the FISA court and granting retroactive amnesty for warantless surveillance conducted under presidential authority.[5] It is also expected to pass legislation sponsored by Senator Mike DeWine (R-OH), a member of the judiciary and intelligence panels, that would provide a legal foundation for the surveillance program. A third piece of legislation affecting the NSA program, sponsored by Senator Charles Schumer (D-NY), is expected to fail. [3]

After:

After an exchange of letters in June 2006 between Senate Judiciary Committee Chairman Arlen Specter (R-PA) and Vice President Dick Cheney, the committee is considering Specter's bill putting the NSA program under the FISA court and granting retroactive amnesty for warantless surveillance conducted under presidential authority.[6] It is also considering legislation sponsored by Senator Mike DeWine (R-OH), a member of the judiciary and intelligence panels, that would provide a legal foundation for the surveillance program. A third piece of legislation affecting the NSA program, sponsored by Senator Charles Schumer (D-NY), has also been proposed. [4]

fwiw, it would be handy to have links to the full Specter, DeWine, and Schumer bills. I mention this with some reservations, as legislative proposals are very fluid and subject to change. Nonetheless, it would be good for the Reader to be able to compare the various bills being considered. The excerpts serve this purpose to a degree, but there is not yet an excerpt for the Schumer bill.

 --Dredeyedick 18:48, 3 July 2006 (UTC)

Third-party legal analysis

Added embedded link to B.Cunningham Feb 3 Letter to Congress, articles, and FISA

Before:

  • Bryan Cunningham, a national security lawyer and Justice and CIA officer in the Clinton and Bush Administrations (Deputy Legal Advisor to the National Security Council from 2002 - 2004) wrote extensively about the Constitutional and legal authorities supporting the President's authority to authorize the NSA activities in a February 3, 2006 letter to Congress, available on the website of Cunningham's Denver law firm Morgan & Cunningham LLC, along with the relevant federal statute.

After:

  • Bryan Cunningham, a national security lawyer and Justice and CIA officer in the Clinton and Bush Administrations (Deputy Legal Advisor to the National Security Council from 2002 - 2004) wrote extensively about the Constitutional and legal authorities supporting the President's authority to authorize the NSA activities in a February 3, 2006 letter to Congress, and other articles available on the website of Cunningham's Denver law firm Morgan & Cunningham LLC, along with the relevant federal statute (FISA).

I linked to the morgancunningham.net FISA page, since that seemed to be in context. However, I don't think this is a sound practice, since it is more likely a private firm will redesign it's site and page locations (thus breaking the links) than a university or legal resource like Findlaw. I would recommend changing this paragraph to keep the link to the articles at morgancunningham.net, but eliminate the link to the top of their site - it is not an ad for their law firm. Perhaps keep the link to their embedded text version of FISA's table of contents (that's all it seems to be), but actually offer more reliable links to the full text of FISA. For example,

Cornell

http://www4.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html

Findlaw

http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/toc.html

I'm pretty new to wikipedia, and haven't yet had the chance to review all the rules and standards, so this may be a preferred method / source, I don't know. And I think, fwiw, references to case law should be to relatively stable sources like the two listed above - in preference to private firms whose pages may or may not be there tomorrow. (Even so, universities and companies like Westlaw / Findlaw have been known to reorganise from time to time).

--Dredeyedick 03:26, 4 July 2006 (UTC)

Dredeyedick, your edits both here and changing the language away from judging which bills are or are not expected to pass look great -- clear improvements -- to my mind. That said, I tend to think we should delete Cunningham altogether from the "Third Party" opinion section on the grounds that as Deputy Legal Advisor to the NSA he was presumably directly involved with the program from a legal point of view. Perhpas this info could go somewhere else (with your improvements to the links). Crust 12:57, 5 July 2006 (UTC)

Crust, Thanks for the kind words. I had no idea this guy was ever Deputy Counsel for the NSA. It seems to me if that's the case, he might merit mention elsewhere, but definitely doesn't belong among those to be considered / apprehended as "Third Parties." If he was an NSA lawyer at any time during the questionable activity, or working with the NSC since October 2001, then Cunningham is part of the administration, in effect.

So, I agree with You. He, and the Bush Admin, are "First" parties, not 3rd. This should be reflected in the article if he is mentioned at all. (I haven't had a chance to review his writings / legal arguments in support of this program). If his writings are being trotted out as part of the White House, NSC, NSA, or DOJ's arguments, he probably merits mentioning / linking. If not, probably not. That's my immediate take anyway.

 --Dredeyedick 05:30, 6 July 2006 (UTC)
My two cents: That's not as straightforward because he was not deeputy legal advisor when information about the program was leaked. In any case, though, "...wrote extensively about the Constitutional and legal authorities supporting the President's authority to authorize...", besides using the same word three times, should be "alleged power" or something of the sort. "alleged" needs to be in there. and it probably should be noted that it doesn't mention congress's constitutional power to make laws governing the government affairs (such as FISA) or the president's duty to "take care that the laws are faithfully executed". Kevin Baastalk 14:14, 5 July 2006 (UTC)

Kevin_baas, I know what You mean, but I'm not sure about use of the word "alleged." I think perhaps "purported" or "contend" comes closer to what would be a NPOV, because "contending" is what the administration is doing - putting forth the argument that they have this "purported" power.

"Alleged" is coming at it from the other side, outside the administration. For example: "Those who disagree with this alleged abuse of power contend that the Fourth Amendment and FISA explicitly forbid the warrantless wiretapping, while the administration contends the President has this purported inherent power derived from Article II and the AUMF." See what I mean? Maybe a judicious use of each "allege" and "purport" and other near-meaning words (I need a thesaurus).

I'm just concerned about the pejorative connotations associated with "alleged" ... and maintaining the integrity of a neutral, factual description of events, arguments, and actions without loaded terms. And I agree with You that "alleged" needs to be in there; and that it should be accompanied by "purported" to provide balance and ameliorate any pejorative connotations. Because the President does have authority - under the Law. Just not the authority to end run around the Law (FISA) or the Fourth Amendment, or to "fully and currently" brief Congressional oversight per Appendix A, Sec. 11(a) of S.Res. 400, 94th Congress, which established the Senate Select Committee on Intelligence (SSCI).

As President, his oath, after all, is not only to "preserve, protect, and defend" (Commander - in - Chief) the Constitution (not suspend it secretly), yet 'also to "take care that the law is faithfully executed. "

This program seems to give primacy to the first part while ignoring the other. Some who favor impeachment would favor the latter while minimising the former. That some balance must be struck in language describing it, I think, especially important.

(parenthetical - examine Appendix A, Sec. 11(b) of S.Res. 400, 94th Congress wrt stonewalling and ignoring Congressional requests for information, and 11(c) wrt such Whistleblowers as Russel Tice...by not granting clearances to the full oversight committees, the NSA has tossed the legislation that established the oversight structure out the window. It will be interesting to see how the Supreme Court feels about this, eventually, I think).

 --Dredeyedick 05:30, 6 July 2006 (UTC)

Implications of Hamdan for legal arguments

The Supreme Court's decision and the majority's reasoning in Hamdan would seem to undermine both the AUMF and inherent powers arguments for the program. Should we add something to the article about this? The following link has a discussion. [7] (Admittedly the author, Glenn Greenwald, already thought the program was illegal before the Hamdan decision.) Crust 14:26, 10 July 2006 (UTC)

Court order, etc.

The section on legality is biased in favor of the anti-Bush POV.

Obviously the law itself says you have to go to the court if a party to the conversation might be a US citizen; only foreign nationals can be monitored without a court order.

But Attorney General Gonzalez took a different view, based on traditional constitutional interpretations of presidential authority. [8]

I think the article should consider this a verifiable minority POV and therefore include it, acknowledging that there is a dispute rather than endorsing the mainstream press POV. --Uncle Ed 21:04, 15 August 2006 (UTC)

The sentence Ed seems to be objecting to is:
"Under the program, the NSA conducts surveillance on international and domestic phone calls, without Foreign Intelligence Surveillance Act (FISA) court authorization, which the text of FISA defines as a felony."
This is not POV, it is a simple statement of fact (for instance I doubt AG Gonzalez would dispute it). Note the careful wording: "the text of FISA" says it is illegal. This does not necessarily mean that the surveillance is illegal; for example, it may be that FISA is unconstitutional (this is one of the administration's two principal arguments for defending the program). Indeed, the very next sentence in the article states
"The Bush administration argues that the program is in fact legal on the grounds that FISA is an unconstitutional violation of the President's "inherent powers" and/or that FISA was implicitly overridden by other acts of Congress. ".
BTW Ed, FISA says you have to get a warrant if at least one of the parties is in the United States. (Note that this is not equivalent to whether one or both is US citizens as you seem to think.)
In addition to this issue, I don't see much point to Ed's edits. He's split up the long intro into sections which is probably visually nicer, but I think he's done a hack job of it. For instance, the new section heading "Scope of the Foreign Intelligence Surveillance Act" includes a lot of stuff that is not about the scope of FISA. He wants to give equal billing to ethical and legal issues; which is way off in my view, the key issues for critics are the rule of law and separation of powers.
His lead sentence to the article is wildly misleading in my view:
"At issue is whether the NSA's monitoring of international telephone calls (eavesdropping) and analysis of the patterns of numbers called (data mining) violated traditional Western ethics regarding personal privacy or violated US law."
This makes it sound as if the issue is simply eavesdropping in general rather than eavesdropping without warrants as required by an act of Congress.
I've simply reverted his edits for now.Crust 00:39, 16 August 2006 (UTC)
You've proved my point, which is that the wording (to which you reverted) implies that ALL warrantless eavesdropping is illegal. The opposite POV is:
  1. that certain types of warrantless eavesdropping are permitted by the law itself; as well as,
  2. the administration's contention that constitutional and/or ethical principles trump the law
At the very least, we should revise the sentence so that its context is clear: it refers to "warrantless wiretaps" as being a felony only when "there is [a] substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party"
The current version omits the US person aspect. --Uncle Ed 13:58, 16 August 2006 (UTC)

Court Ruling, August 17, 2006

The wiretapping has been declared unconstitutional. Here's an early link [9]. The article will now need to be rewritten a bit to address this ruling.

The first four or five sentences repeat the 8/17/2006 court ruling thrice. Need to reword to make them flow better. Bona Fides 13:44, 18 August 2006 (UTC)
Added the administration response to the section, but I don't know much to say beyond it, as the DOJ is being rather tight lipped about what they're going to do next.StvnLunsford 02:44, 20 August 2006 (UTC)

Discussion versus Account

Hi! It seems to me the article is more of a Discussion/Debate of the NSA wiretaping rather than a simple NPOV account of the issue. Since it's obviously controversial, was wondering if there was anyone willing to do a little clean up and change some of the wording so it dosn't sound like Wikipedians are using it as a debate forum.

  • for example, in the opening, 2nd paragraph, we have this line: "Most legal scholars outside of the administration find these arguments unconvincing (see "Third party legal analysis", below)" - the sentence is not neccessary where it is, and prevents readers from gaining a clear/brief understanding of the issue. The next sentence anyway says that a court ruled against the program, so the "opinions of 3rd party analysists" dosn't add anything to the introduction.
Re a Discussion/Debate: Note this is the controversy article. There is a separate article (NSA electronic surveillance program) about the program.
Re reference to Third Party scholars: I'm not sure why it prevents a clear understanding (briefer I can see obviously). As you say, a federal judge has ruled that it is unconstitutional but her ruling may (or may not) be overturned on appeal. The ruling of the Supreme Court in Hamdan v. Rumsfeld is suggestive that the Supreme Court would also rule against the program, but who knows. Perhaps we should move today's ruling up in the discussion. Crust 17:38, 17 August 2006 (UTC)

Motivation of opponents

Apparently opponents are not all motivated by a disinterested desire to make sure each part of the American government upholds the law. Rather, some opponents are using legal maneuvers to thwart US anti-terrorism efforts:

  • ACLU executive director Anthony Romero ... called the opinion “another nail in the coffin in the Bush administration’s legal strategy in the war on terror.” (MSNBC)

How can we describe the ACLU's motivation without either condemning it (as good conservatives will wish to do) or praising it (as good liberals will wish)? --Uncle Ed 20:28, 17 August 2006 (UTC)

Ed, I think you are misreading Romero's statement. He's really just predicting that the Bush administration will continue to lose on appeal. Crust 20:35, 17 August 2006 (UTC)
Please note it is simply incorrect to assume that critics think this will thwart anti-terrorism efforts or that doing so is a motivation. To quote one prominent critic (Glenn Greenwald), writing after this ruling:[10]
“ Even with this Order, the Bush administration is free to continue to do all the eavesdropping on terrorists they want to do. They just have to do so with approval of the FISA court -- just like all administrations have done since 1978, just as the law requires, and just as they did when eavesdropping as part of the surveillance they undertook on the U.K. terror plot. ”
Crust 20:51, 17 August 2006 (UTC)

Well, it doesn't really matter what MY interpretation of Romero's comment is. I'm not a source. In general, though, calling something a "nail in the coffin" that you've been fighting against would seem to indicate a degree of opposition.

  • The American Civil Liberties Union filed the lawsuit

Does anyone think they were hoping to make it easier for the administration to conduct surveillance? --Uncle Ed 21:01, 17 August 2006 (UTC)

Well, obviously filing the suit "indicates a [large] degree of opposition" against something, never mind talk about coffins. But that something is warrantless surveillance outside of FISA. That is very different from opposition to fighting terrorism; Greenwald makes the point more eloquently than I could in the quote above. Crust 21:10, 17 August 2006 (UTC)
Not really an issue, now, as it's been deemed illegal and unconstitutional. rootology (T) 21:19, 17 August 2006 (UTC)

I'm not arguing the point - I'm only wondering aloud how to describe the controversy fairly. The ACLU position is pretty clear, but I'm not sure Wikipedia should endorse their position.

Also, the EFF mentions:

  • The administration has admitted to the existence of the classified program, and contends it is limited to situations in which "one party to the communication is outside the United States" and it has "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." [11]

Does the article clarify this limitation? Last time I read it all the way through, I got the impression that Wikipedia was slamming Bush for what the ACLU implied - heading down the slippery slope toward spying on domestic political enemies for partisan advantage. You know, like Clinton did when he ordered the FBI to give him dossiers on 800 White House enemies. (Or, if it's Republicans you distrust rather than Democrats, like Nixon did in the Watergate Affair.)

Anyway, I just want to make sure both sides are in the article - not trying to make Wikipedia say that ACLU is wrong or that Bush is right. --Uncle Ed 21:21, 17 August 2006 (UTC)

Federal court ruling

Despite what Rootology said above, I doubt if the Bush administration will stop its surveillance. Media announcements that a federal court has "struck down" something often result in a feeding frenzy of speculation that "now they will have to stop" but often overlook the appeals process.

I predict that this ruling will have no effect whatsoever until the Supreme Court hears the matter. But I'm not sure enough about that prediction to put it into the article. Maybe we could quote someone from the White House or Justice? --Uncle Ed 21:24, 17 August 2006 (UTC)

While it will not stop the administration, it will move american public opinion. Maybe that will finally convince congress to pass a new law to allow the administration easier access to EZ warrants or automatic warrants. FISA warrants are almost never rejected, but the admin needs to wexplain to congress, preferably in closed executive seesion, why they need quicker and better access to eavesdropping! We just need to regularize it to maintain separation of powers doctrine. Bush will not be prez forever. !!!! Bona Fides 21:40, 17 August 2006 (UTC)
Actually, the appeals process has no bearing on the requirement that they stop. For now, the current ruling has the force of law unless it is overturned on appeal. Now, whether an administration that has shown an utter disdain for the law of the land and a love for secrecy and blatant violation of the constitution will actually cease this operation is another, more practical issue. Unfortunately, the Bushites have yet to grasp the wisom of Ben Franklin's sagacious statement that, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." •Jim62sch• 09:59, 18 August 2006 (UTC)
Does a federal court ruling really have the force of law? And in this case, did the court use its power immediately or did it 'stay the ruling' till September? --Uncle Ed 15:25, 18 August 2006 (UTC)

Targets of the program

According to the ACLU, Bush is abusing NSA surveillance power. Romero called it:

  • Government spying on innocent Americans; and,
  • spying without cause on innocent Americans [12]

I guess for him the fact that it's only for

  1. conversations that betwen US locations and overseas; and,
  2. which are suspected of being related to terrorist groups like Al Qaeda

escaped his notice. Or have I misread his statements?

Anyway, the point is how to characterize his position. Is he disinterestedly trying to get the laws of the land enforced? Or does he have an agenda? What does he himself say about his agenda? (I remember him saying something about the chilling effect surveillance might have on activism.) --Uncle Ed 15:31, 18 August 2006 (UTC)

Okay, I found some opposing POV:

  • "The privacy of ordinary Americans is fiercely protected in all our activities," Bush said in a statement he read to reporters at the White House. "Our efforts are focused on links to al Qaeda and their known affiliates." [13]

Now how do we get the "innocent American vs. al Qaeda affiliate" issue into the article? --Uncle Ed 15:42, 18 August 2006 (UTC)

Domestic?

This article is sloppy in its use of the words domestic and international. The government has admited to the followin two points:

  • The NSA has a domestic program where it collects information about phone calls, not actual eavsdropping.
  • The NSA has a program where it acutally "listens in" to phone calls between a foreign party and someone in the US. I think it bears mentioning that there is no way to know before hand if the party within the US is acutally a US Citizen. If Osama bin Laden calls an Afghani national currently living in the US, eavesdropping on that conversation can hardly be characterized as "spying on Americans"

The use of the terms "domestic" and "international" mixed together in the article gives the distinct impression to the casual reader that the NSA was conducting domestic eavesdropping on Americans without a court order. That is not the case, and should be clarified. -- Dullfig 21:16, 18 August 2006 (UTC)

The President has said ""What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate." The Foreign Intelligence Surveillance Act (FISA) is clear that listening in on a conversation without a warrant is only permitted when there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. Otherwise, there are specific procedures called for in the law. The Justice Department on their web site admits those procedures are not being followed, claiming they are too cumbersome. So it is very much the case that NSA was conducting domestic eavesdropping on Americans without a court order. President Bush claims he has authority to do this as Commander in Chief and by way of the Iraq war resolution. One judge disagrees. We'll see what happens on appeal. But there is nothing sloppy about calling it "domestic." --agr 21:59, 18 August 2006 (UTC)

Again, I don't know how that constitutes domestic surveillance. To me, domestic means between people living in the US. At any rate, if FISA puts us in a position that we cannot win a war, then FISA is bad law. Here is the problem as I see it:

  • You have no way of knowing where the phone call will originate from; How are you going to know what number Osama is going to call from? We don't even know what country he is in!
  • You have no way of knowing, by definition, who they are calling within the US. They are sleeper cells, remember? they commit no crimes. They sit and wait for a phone call telling them to go blow something up. So the only way to find out who is a sleeper, is to wait for someone to get a call from abroad.
  • Forcing the government to get a warrant from FISA for each call will mean, for all practical purposes, that we will be unable to track sleeper cells at all. Are you OK with that?

Ok, you're the Attorney General. Can you explain to me how you present the situation to FISA, when you don't even know who you're supposed to wiretap?! Going back to my original point, this is not domestic wiretapping, it is foreign intelligence that happens to terminate at a phone in the US. -- Dullfig 23:01, 18 August 2006 (UTC)

Hmm... I guess if I couldn't explain the situation to the FISA court, I coudln't get a warrant, and therefore I couldn't wiretap. Kevin Baastalk 15:21, 19 August 2006 (UTC)
The Constitution is not a suicide pact. If there was an ammendment that said "if we are attacked, we will roll over and play dead", would we abide by it? would we vote to abolish it?. Why would it make any sense that the constitution would block us from defending ourselves? -- Dullfig 17:54, 19 August 2006 (UTC)
No, the Constitution is not a suicide pact. The courts have repeatedly ruled that the president Congress can grant broad powers to take actions in time of war. The Bush administration has had almost five years since 9/11 to ask for FISA to be amended. Their party controls both houses of Congress. Instead they chose to simply ignore the law. Do you think the war on terrorism justifies giving the president dictatorial powers?--agr 04:39, 20 August 2006 (UTC)

President not subordinate to Congress

In the article there is this, unsubstantiated claim:

The president is an officer of the government of the United States, so is subject to Congress's sole authority to make all laws for carrying the powers of the president into execution, while the president is specifically charged with the duty to take care that those laws be faithfully executed.

This is ludicrous. The president is NOT a subordinate to the Legislative branch. The Executive, Judicial and Legislative branches are co-equals. While they each have some, limited, powers over the other branches of government none are subordinate to any other except in extreme circumstances.

The President is subordinate to Congress by virtue of their ability to raise and allocate funds as well as their impeachment and removal from office.

It is NOT a settled legal arguement that Congress even has the power to make the President conform to FISA. If FISA conflicts with the duties of the president as CINC or any of his other constitionally derived powers it's unconstitutional. (apparently posted 03:58, 20 August 2006 by User:Bucs79)

In ACLU v. NSA, Judge Taylor ruled that the President does not have authority to violate the Constitution *OR* the laws of the United States. This isn't a new doctrine; it is backed up by quite a bit of precedent. So unless FISA is ruled unconstitutional, the President is required to conform to it. Note that it is the power of the Supreme Court to determine that laws are unconstitutional; the executive branch does not have the power to do so.
In general, you are correct about the three branches of the US government being coequal. However, the President is very much constrained by law. If the President doesn't like the law, his recourse is to ask Congress to change it, or to ask the Supreme Court to find it unconsistutional. Simply ignoring the law is not within his legitimate powers.
This means that the President is subordinate to the Constitution and Laws of the United States, but not to the Congress. --Brouhaha 16:45, 20 August 2006 (UTC)
While i agree with Brouhaha, the cited sentence ("The president is an officer of the government...") is an unsourced interpretation of the constitutional quotations earlier in the paragraph, which i think can stand on their own. So I have removed that sentence.--agr 18:41, 20 August 2006 (UTC)
User:Kevin Baas restored the sentence in question stating in the edit summary: "these things are stated explicitly in the constitution." Where does it say explicitly in the US constitution that "The president is an officer of the government" or that the president "is subject to Congress's sole authority to make all laws for carrying the powers of the president into execution"? These are interpretations and the latter is simply not true: the president can make recess appointments, without congressional approval, for example, and he participates in law making via the veto power. There is a vast amount of administrative regulations that are created by the executive branch under only general authorization of Congress. See Code of Federal Regulations. These have the force of law. I don't want to get into a revert war, but I would appreciate some sourcing or other justification for this sentence.-agr 20:03, 20 August 2006 (UTC)
The president is not subordinate to anyone. The United States government is divide into 3 co-equal branches, the legislative, the judicial and the executive. As far as the Constitution is concerned, the Executive consists of two people: the president and the vice-president. That's it. Look it up. All other positions (like secretary of state) where established later, but are not mentioned in the constitution. And while the president cannot enact laws, congress cannot enforce laws either. Each branch has an equally important role to play. Say that congress passed a law saying that the president has to wear pink boxer shorts all the time. Guess what? Since it is the president's job to enforce the laws, if he did not want to wear pink boxers, there is pretty much nothing that congress could do about it. -- Dullfig 20:34, 20 August 2006 (UTC)
Well, that's not exactly true. The constitution does specifically mention "the principal Officer in each of the executive Departments," as well as "Ambassadors, public Ministers and Consuls." It also provides that all other officers of the United States "shall be established by Law." The president is charged by the Constitution to "take Care that the Laws be faithfully Executed." Congress can cut of his funds if he acts outside the law and people can and do sue him and lower ranking officials if they fail to carry out the law. If he flat out refuses to obey court orders, then there is a strong case for impeachment. Even President Bush hasn't dared to try that. --agr 22:21, 20 August 2006 (UTC)
Yes, but the different branches act as check and balances on each other. Congress is not omnipotent. They may indeed impeach the president, but congress has no authority to enforce the laws. That is the president's job, and if he does not want to enforce a law, congress does not have much recourse, short of impeachment. By the way, no one would ever say that the judiciary was subordinated to Congress, even though they do not write laws, are appointed by the president, and confirmed by congress. -- Dullfig 23:45, 20 August 2006 (UTC)
This is a semantic argument. 'Subordinate' or 'subject', it doesn't matter. The reality is that the President is bound by law just like any other citizen and is subject to penalties for violations of the law. If that makes him a subordinate then so be it.
The President is charged with enforcing laws, but his failure to enforce the laws of Congress would be a violation of his duties and would most certainly be an empeachable offense (and depending on the circumstances also a criminal offense).
It may be true that the President participates in law-making by the use of his veto power, but Congress is just as involved in law-enforcement since it is they would provide the money to make such enforcement possible. Ultimately, once the President has signed a law (or Congress passes it over his veto), then he is just as subordinate to its rule as anyone else. 70.189.98.191 03:02, 23 August 2006 (UTC)Farous

Reducing Size

I think it is very important that a majority of this article is condensed to shorten the length. Every detail sould be provided on a seperate page with the "main article" link at the top. I am going to start on this. If anyone has a comment on my changes, feel free to revert and talk to me about it. --Connor K. 16:32, 1 October 2006 (UTC)

New ruling today (Oct 4)

There was a ruling today (see here). I don't have the time or the energy to update this article today. Anybody else up to it?--WilliamThweatt 21:40, 4 October 2006 (UTC)

Could come back to life

Lichtbau filed an NYT story November 28th. He reports that Bush relented on denying security clearances to Justice Department investigators. There was an AP story yesterday about a Bush appointed panel having said that everything was fine. I feel as WilliamThweatt did in regard to editing - "I don't have the time or the energy to update this article today. Anybody else up to it?" Metarhyme 18:32, 28 November 2006 (UTC)

TPMmuckraker has a rather different take than AP. I'm not sure what you mean by "could come back to life". The eavesdropping without court oversight never stopped.Crust 20:04, 28 November 2006 (UTC)
I mean the wikipedia article about the controversy - this article - could return to being a lively scene. Early on one editor got banned for threatening (with specifics) to get an anon sacked. That was perhaps the sharpest incident in the article's Truth vs. NPOV wrangle when the controversy was fresh. The controversy has been languishing due to lack of information. The Administration's ability to cover things up diminishes starting in January. Metarhyme 00:00, 30 November 2006 (UTC)
Thanks, sorry for the confusion.Crust 17:29, 30 November 2006 (UTC)

repeated reverts to Intro

Please stop the revert war! I know that Democrats are convinced it is a done deal, case closed, end of discussion. But it is your POV! if there where not two sides of the coin, it wouldn't be called a controversy, now would it. It would be called a scandal, maybe a crime, but not a controversy. A controversy implies two opposite sides going at it. My intro reflects that, in that it just explains what the controversy is, without declaring (in the intro, no less) that the program is illegal. As the article explains further down, the full legality of the program cannot be asessed until it has been fully de-classified. Democratic arrogance is limitless. My intro takes no sides, it does not say it is illegal, it does not say it isn't either. Again, stop the revert war. -- Dullfig 02:10, 3 January 2007 (UTC)

Your comments above, framing the issue of the content of the intro as 'Democratic arrogance' is far from good faith. To be quite honest, I view the version of the intro you have reverted back to be inferior - not because of political POV, but because your version removes the phrase 'required by the Foreign Intelligence Surveillance Act (FISA).' from after the words 'court oversight'. 'Your version' is in this way less informative, as it doesn't specify whether that court oversight is optional or required by FISA. In addition, 'your version' is presumptive and gramatically flawed, reading awkwardly and employing the word 'source' incorrectly in the phrase 'and this is the source of the controversy'.
I won't revert back to what I believe is a superior version, because I do not want to become a potential target of your vitriolic comments about 'Democratic arrogance' and attribution of bias to other editors - conduct which is highly uncivil. I stridently implore you to remain civil, and not attack other editors (nor an entire political party) in the course of editing the encyclopedia. -- User:RyanFreisling @ 02:41, 3 January 2007 (UTC)
Again, if it was in fact required by FISA, then it would be illegal, and we would not have a controversy, but a scandal. The full facts cannot be known, because the full program is classified. Just to give you a hypothetical: when the police get a court authorization to wiretap a suspect's phone, do they also need a court authorization for each and every person that calls that suspect? Say the intent was to wiretap Bin Laden; why would we then have to go back and get an authorization for each and every person that calls him? and since he is a foreign national, and in any case the information is not intended to become the basis of a lawsuit, but intelligence to fight a war, why would you need FISA anyhow?
I don't mean to start a big discussion over the subject. What I am trying to point out is that the facts and the legality is not a done deal, and the intro should reflect that. Dullfig 03:06, 3 January 2007 (UTC)
PS.: wen u sea gramar arors, u ar welcom to corect dem, instead of putting pepole down.
I certainly didn't 'put you down', and I hope you don't seriously believe that I have. In light of your attacks above, I'll refrain from responding to that smartalecky comment, except to say that your hypothetical is errant. FISA does not require 'going back and getting an authorization for each and every person that calls' a subject of a wiretapping. That certainly isn't at the heart of this 'dispute'. And of course your own view, claiming an exemption of cases of wiretapping Americans in the U.S. to gather 'intelligence to fight a war' is not based in law - whether FISA or the Constitution. In short, your version is inferior and I hope you will move past seeing this issue in (abusive) terms of 'Democratic arrogance', and focus on seeking to improve the encyclopedia. Your attacks are entirely separate from the content at issue, which is why I made the request that I did. Thanks! -- User:RyanFreisling @ 03:37, 3 January 2007 (UTC)
Like I said, I didn't want to start an argument, but I have to correct you. I am talking of wiretapping foreigners in a foreign country placing and receiving phone calls from Americans in the US, and not the other way arround. In fact, and correct me if I am wrong, I believe that it is not known if the program targets foreigners abroad, or Americans in the US. All we know is that spitters where installed in AT&T cabinets, and that the government has acknowledged that they have wiretapped phone calls where "one party is in the US, and the other is abroad".
As for the grammar issue, you made a point about the intro being grammatically inferior. I would call that a put down. We are, after all, trying to convey ideas, not see who has the best grammar. I can write some pretty slanted articles with perfect grammar. That is why I say, if you see grammar errors (english is not my first language) correct them. Althouhg I have to say you're the first person to complain about my grammar. Dullfig 04:06, 3 January 2007 (UTC)
It's not a put-down. I was pointing out that your version (errors and all) is inferior to what was there, and nothing more. And of course, purposefully 'slanted' articles don't belong on an encyclopedia like WP, so I'll close by pointing out that you are seeing this dispute (and this conversation) in very personal terms, which is not constructive. Reverting back to the earlier (in my opinion better) version isn't about Democrats v. Republicans, and it's certainly not about you.
And as far as your first paragraph, the original report specified that international calls made by individuals within the United States were at issue. Here's just a snippet of what the original NYTimes bombshell article titled "Bush Lets U.S. Spy on Callers Without Courts" said:
"While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials." [14]
Note that viewing this article requires free registration, now that it is 1 year old. -- User:RyanFreisling @ 04:22, 3 January 2007 (UTC)
Well, anyways, I didn't think that I was taking things personally, just the grammar thing. I'm a little touchy on the subject, as I always try to convey my ideas with precision. I don't mind people disagreeing with me. Dullfig 04:26, 3 January 2007 (UTC)
Nor do I - but most of all, if you were hurt or insulted by my critique, I am indeed sorry. I'm hoping we can keep the positive energy up, and leave the political attacks to the politicians. In any case, I do wish you well. :) -- User:RyanFreisling @ 04:31, 3 January 2007 (UTC)

As I understand it, the contentious POV issue here is whether the first paragraph should say that FISA requires warrants (the original wording) or whether we should say that "[i]n the past courts have ruled that" FISA requires warrants (Dullfig's wording). Frankly, this strikes me as somewhat of a tempest in a teapot, not meriting a section NPOV tag, let alone an article NPOV tag. That said, I prefer the original wording. To answer Dullfig's question as to why this is a "controversy" not a "scandal", as explained in the third paragraph of the intro if FISA is unconstitutional as some argue then the program is nonetheless legal. (That at least is the best argument. The AUMF argument was pretty clearly ruled out by the Supreme Court in Hamdan v. Rumsfeld. As noted in the intro, the Attorney General has acknowledged that the program does involve the type of surveillance covered FISA.) On a more minor note, FISA is the abbreviation for the Foreign Intelligence Surveillance Act not the FIS Court (sometimes abbreviated FISC). Crust 20:45, 3 January 2007 (UTC)

OK< I've had a stab at a compromise by using "stipulated" instead of "required" and trimming the lead para a little. As an aside to Dullfig and RyanFreisling, I enjoyed your repartee about grammar above (probably easier to enjoy as a third party). Crust 21:00, 3 January 2007 (UTC)

Hey Crust. Thanks for helping out and providing some new views. One comment - the wiretapping is not legal if FISA is 'argued' to be unconstitutional, only if FISA is 'ruled' unconstitutional. -- User:RyanFreisling @ 23:19, 3 January 2007 (UTC)

That's true. Dullfig 23:54, 3 January 2007 (UTC)
Dullfig - I just made a grammatical edit (removed the word 'although', and made your addition its own sentence). Glad to discuss it further if you'd like. Good edit, and thanks! -- User:RyanFreisling @ 01:21, 4 January 2007 (UTC)
No, looks good like that. Thanks. Dullfig 01:32, 4 January 2007 (UTC)

I didn't like the bit "The current U.S. administration maintains that the program ... falls outside the scope of FISA" in Dullfig's latest version. That's at best misleading in my view. As I mentioned above, the Attorney General has specifically conceded that the program involves the type of surveillance covered by FISA. I've edited out the reference to the scope of FISA.

RyanFreisling, thanks for your contributions here also. Re unconstitutional and illegal: Sorry if I wrote imprecisely. My point was that one argument (and, post-Hamdan, the least tenuous argument) that the program is legal is that FISA unconstitutionally infringes presidential power. It sounds paradoxical, but it is legal to violate unconstitutional laws. If the courts rule that FISA is unconstitutional and strike it down, then no one can be prosecuted for having violated FISA. The problem with this argument, of course, is that most authorities don't believe that FISA unconstitutionally infringes on presidential power. Indeed, the law was originally passed in 1978 -- and amended various times, most recently as part of the Patriot Act in 2001 -- yet I believe no one publicly argued this before the George W. Bush administration.Crust 15:06, 4 January 2007 (UTC)

Ok, still looks good. I always like a well balanced intro paragraph :-) Dullfig 16:47, 4 January 2007 (UTC)
Excellent, I'll take the NPOV tag off, then. Crust 17:14, 4 January 2007 (UTC)

FISC Judge settles with DoJ

Ah, some developments reported in NYT 18 Jan 07 - the article needs an update:

Court to Oversee U.S. Wiretapping in Terror Cases
White House Retreats Under Pressure
Also, Gonzales to face Leahy and the rest of the Justice Committee Senators 18Jan07; his letter:
Text of Gonzales letter

Metarhyme 07:21, 18 January 2007 (UTC)

proposal for minor re-organization

The responses section currently is organized like this:

# 3 Responses

    * 3.1 Administration response to press stories
    * 3.2 Congressional response
    * 3.3 Foreign Intelligence Surveillance Court developments
    * 3.4 Proposed FISA Amendments
    * 3.5 Third-party legal analysis
          o 3.5.1 Arguing that the program is legal or probably legal
          o 3.5.2 Arguing that the program is illegal or probably illegal
    * 3.6 Legal challenges
    * 3.7 Warrantless wiretapping by NSA ruled unconstitutional by District Court

# 4 FISA Court order

I propose, since these two sections be reorganized like this:

 3 Responses & analyzations

    * 3.1 Administration response to press stories
    * 3.2 Congressional response
    * 3.3 FISA Court analysis
    * 3.4 Third-party legal analysis
          o 3.4.1 Arguing that the program is legal or probably legal
          o 3.4.2 Arguing that the program is illegal or probably illegal

 4 Legal developments

    * 4.1 Congressionally proposed FISA amendments
    * 4.2 Legal challenges 
    * 4.3 Warrantless wiretapping by NSA ruled unconstitutional by district court
    * 4.4 FISA Court order
  • The most significant change is moving "Proposed FISA Amendments" down a few (and pre-pending "congressionally" to it). That is, in fact, the only change in order.
  • Other than that, it's just moving the split point between section 3 and 4 up a few,
  • and some renaming: renaming section 4 "legal developments", section 3 "responses and analyzations", and "Foreighn Intelligence.... developments" to "FISA Court analysis".

Thoughts? Kevin Baastalk 18:29, 20 January 2007 (UTC)

eh, i implemented it. i doubt the change is controversial, and it's easilty reverted anyways. Kevin Baastalk 18:56, 20 January 2007 (UTC)

Seems good to me. My only issue is "analyzations" isn't a word. Crust 17:37, 22 January 2007 (UTC)
Analyzation. 1: The act of analyzing, or separating into constituent parts; analysis. <a href="http://www.thefreedictionary.com/dict.asp?Word=analyzation">from dictionary.com</a> Kevin Baastalk 00:45, 24 January 2007 (UTC)
According to the Columbia Guide to Standard American English, "is a rare and probably seldom-needed synonym of analysis".[15] It's not in the complete OED (standard reference for British English). But I'm getting pedantic. ;) Crust 15:22, 24 January 2007 (UTC)

NPOV??

This article reads more like an ACLU position paper that an unbiased discussion of the controversy. The authors consistently misstates the administration position and have rebuffed all efforts to correct the record.

Take the introductory paragraph

Under the "terrorist surveillance program",[4] the NSA monitors phone calls between the United States and a foreign country, without FISA court authorization, which Attorney General Alberto Gonzales acknowledged[5] is outlawed by the text of FISA.[6][7] The Bush administration has argued that warrantless surveillance of US citizens can nonetheless be legal on the grounds that FISA is an unconstitutional violation of the President's "inherent powers" and/or that FISA was implicitly overridden by other acts of Congress. Most legal scholars outside of the administration find these arguments unconvincing (see Third party legal analysis below).

First its description of the program ("the NSA monitors phone calls between the United States and a foreign country" is overly broad, ignoring that the authorization is restricted to phone calls (and other communication) originating from parties outside the US with known or suspected links to al Qaeda. Everywhere in the article that the program objectives are mentioned, the phrase "phone calls between the United States and a foreign country" is used wrongly implying that calls originating in the US could be monitored.

Next, at no time did Gonzales acknowledged that the Administrations actions were "outlawed by the text of FISA". The supplied citation is taken badly out of context. Gonzales point was exactly the opposite, that is that the text of FISA includes the phrase "unless otherwise authorized by statute or by Congress" which the administration claims is exactly what occurred with the AUMF. The author goes on to state in the very next sentence "The Bush administration has argued that warrantless surveillance of US citizens can nonetheless be legal", as if there is a difference of opinion between Gonzales and the Administration.

The author consistently confuses the universally acknowledged "inherent powers" the executive enjoys under Article II with the more controversial claim of expanded powers under the unitary executive theory. No where has the administration claimed that the authority to authorize warrantless intercepts in this case derive from his unitary executive powers. The author should provide a citation to the contrary or accept my correction which would link "inherent powers" to the corresponding Wikipedia entry and not to the entry on the unitary executive.

"Most legal scholars outside of the administration find these arguments unconvincing". This is typical of the many unsupported assertions found in this article. Not only does such an argumentative statement not belong in the introductory section, absent a reference citing a poll or some other such supporting documentation, "most" should be replaced with a neutral term (many, some).

My rejected rewrite of the above simply states the facts surrounding the controversy without editorial comment.

Under the "terrorist surveillance program",[4] the NSA is authorized by executive order to monitor phone calls and other communication originating from parties outside the US with known or suspected links to al Qaeda, even if the terminus of that communication lies within the US. Critics contend that such "domestic" intercepts require FISA court authorization,[5], while the Bush administration maintains that the intercepts are "foreign intelligence" integral to the conduct of war and as such beyond the purview of FISA and/or that FISA was implicitly overridden by other acts of Congress.

My statement that the administration "maintains that the intercepts are "foreign intelligence" and as such beyond the purview of FISA" was rejected even though exactly true. That is in fact what the administration claims (Constitution trumps FISA during wartime). Whether the author agrees or disagrees with this assertion, to omit it from the introduction is to distort the nature of the controversy.

In short, this whole article needs to be rewritten to remove the blatant POV apparent throughout

Foreign intelligence is beyond the purview of the Foreign Intelligence Surveillance Act???

Two editors have been putting this language in the intro:

the Bush administration maintains that the intercepts are "foreign intelligence" and as such beyond the purview of FISA

(while also deleting the adminstration argument that FISA is unconstitutional). Needless to say, if this were the case, one wonders what if anything would be within the purview of FISA.Crust 22:05, 29 January 2007 (UTC)


It is incorrect to state that the administrations position is that FISA is unconstitutional. Rather, their position is that it must be read as to not impinge on the executive's Article II power. Thus its (FISA's) scope (purview) is limited by the Constitution. Big difference. I've modified the phase in dispute to read "the Bush administration maintains that the intercepts are "foreign intelligence" integral to the conduct of war and as such beyond the purview of FISA" which is a precise statement of their position.jpat34721
From a legal point of view, the administration's position is -- as Gonzales has confirmed in Senate testimony -- that we are not in a state of war. Even if we were, FISA explicitly provides for wartime (e.g. allowing a longer lag time for retroactive warrants after a declaration of war). So I'm not sure what your argument is (or rather what the supposed admin argument is) that foreign intelligence is currently beyond the purview of the Foreign Intelligence Surveillance Act.Crust 22:41, 29 January 2007 (UTC)
A formal declaration of war is not required for the executives Article II powers to come into effect, as the USSC has held many times, most recently in Hamdi, where the language in the AUMF was found sufficient to authorize the President to designate and detain US citizens as enemy combatants. In any case, you're judging the merits of the legal arguments rather than just stating what the arguments are. If you are only going to include those Administration arguments you find compelling, you should say so but if you're interested in the Administration position with respect to this, here's the excerpt from the DOJ white paper - jpat34721
Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.
I read this white paper extract as specifically referring to the constitutionality argument. They view FISA as unconstitutional in a "narrow context". (BTW, it is probably a fair point that using the shorthand simply that they argue that FISA is unconstitutional is problematic. One of the challenges with writing about this stuff is that it is hard to come up with wordings that are simultaneously accurate, readable and reasonably brief.) Also, there is less than meets the eye re the FISA Court of Review case in the quote above; see the DOJ's replies to the House Judiciary Committee [16]: "The Terrorist Surveillance Program would not have been relevant to the question before the court in that case." In short this argument really is about whether FISA is -- to some extent and in some contexts -- unconstitutional (and of course if that is the case, the Constitution trumps a statute like FISA).
More generally, I see you are busy making lots of changes to the article and commenting here (always a good thing!). I'm rather busy right now, so for the most part I'm probably going to have to leave it to other people who have been involved with this article to correct/challenge/congratulate in whatever mixture.Crust 21:50, 30 January 2007 (UTC)
They are not saying that "they view FISA as unconstitutional in a 'narrow context'", but rather that if the court were unable to find a reading of FISA that avoids the Constitutional conflict (the administration argues such a construct exists) then in their veiw the portion of FISA that interfers with the executives "sole organ" function in foreign affairs (which broadly includes war fighting) would ne unconstitutional. Jpat34721 17:20, 31 January 2007 (UTC)
That extract is deceptive, at best. Laws are to be read to avoid constitutional conflicts. That extract intentionally reads the law so as to create a constitutional conflict that isn't there. The only article II power the president has during time of war is to command the militia: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" This says that when the militia is called into service of the u.s., the president is the highest ranking officer in it. That's what it means. That's all it means. That's what it says. It raises no issues with FISA. If FISA were to state "Joe shmoe is the highest ranking officer in the militia.", that would raise an issue. But fisa does not say that. Fisa makes no mention of militia or rank. nor does that sentence in the constitution make any mention of survellience. No word, sentence, or phrase in FISA contradicts the statement "The President shall be Commander in Chief of the Army and Navy of the United States...", nor does that statement contradict any word, phrase, or statement in FISA. To propose that there is some logical, literal, or even figurative contradiction between these two bodies of text, is not only a radical abuse of language, it is also an impressive feat of the imagination.
Furthermore, IF there WERE a constitutional issue, that would be for the Judiciary branch to decide, NOT the Executive. "[the president] is placed high, and is possessed of power far from being contemptible; yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment"R. Berger, "The President, Congress, and the Courts" FISA is clear and it clearly states how it applies during time of war. That was written into the bill, and signed into law. The law is clear, and the president's duty is not to make rulings based on the law (that power is reserved for the courts), but, as explicitly stated in the constitution, "to take care that the laws be executed faithfully". Period.
This is simply incorrect. In Marbury v Madison (1803), Marshall adopted the Jeffersonian "departmental" view which holds that all three branches have an equal right (and indeed obligation) to interpret the Constitution in carrying out their respective duties. see Understanding Marbury v. Madison for an excellent review of this principle. In any case, I think we would all be better served to avoid debating the merits of each side's position here and concentrate instead on debating how to make this article Wikipedia worthy. Jpat34721 20:40, 31 January 2007 (UTC)
Certainly, to read and comprehend, one must interpret. Though for some demographics, interpretation has lately become a euphemism for "twisting" and "distorting", sometimes to the point where the final "meaning" has no discernable relation to the text. But I don't think that's what Marshall meant in his ruling. Ofcourse they can interpret the constitution, but that doesn't mean they can strike down laws by simply uttering a magic word. Your response is a non-sequitor: Marbury v Madison did not rule that the legislative and/or executive branches could rule a law unconstitutional and not follow it on those grounds, by that simple demarcation becoming immune to any law of their choosing. To the contrary, the power to declare a law unconstitutional is still solely reserved to the courts, as spelled out in the constitution itself. Kevin Baastalk 05:25, 2 February 2007 (UTC)
Again, that is not he case. The Constitution is silent about the power to declare a law unconstitutional. That's what Marbury was all about. The SC claimed (rightly so in my opinion) that right based on the argument that they were best equiped to do so. But in so doing, Marshall was claiming a "co-equal" right, not an exclusive or supreme right to do so. The Jeffersonian (Republican) view was that only one of the political branches could declare a law unconstitutional and in case of dispute the people would decide the matter through the ballot box. The Federalist strongly held view was that the court and the executive had no power to void a law passed by the legislature. The two sides could not agree (but both agreed the court should have no such power) and so the Constitution itself was silent at its inception. Marshall used the Federalist drubbing in 1800 election as an opportunity to craft a compromise- judicial "concurrency", the equal right to rule on Constitutionality, while being careful not to claim judicial supremacy which the Republican President (Jefferson) would have rejected out of hand. The current situation (judicial supremacy) has been a slow development over the centuries since. It's a pragmatic solution that's now well accepted by the citizenry but it has no Constitutional basis Jpat34721 20:04, 2 February 2007 (UTC)
I stand corrected. It's just that the danger of having an executive that can declare laws unconstitutional is so obvious to me that, well, to entertain the thought that a substantial number of people do not just take it as given, as outright common sense, that no executive should have that power, is profoundly odd to me -- even disturbing. I guess I consistently underestimate the God complex. Kevin Baastalk 23:16, 2 February 2007 (UTC)
Speaking of Separation of Powers, congress - not the president - has the sole 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." (article I of the constitution). Yes, this includes the president, and "all other powers vested" includes war and survellience. And that's exactly what FISA is, a law for carrying into execution a power vested in the government - or a department thereof - or an officer thereof - wherever you want to lay it.
All of the above may or may not be true. The question is can you put your POV aside and provide the objective facts that would allow a reader to make up their own mind? The positions on both side are a matter of record. It should be the goal here to present both sides without judging the merits of the argument. Once the article is completed, the reader should be unable to discern the anti-administration POV you express above. Jpat34721 17:20, 31 January 2007 (UTC)
Who said I was anti-administration? How was what I wrote an anti-administration POV? I was just clearing up a few basic objective facts. I wasn't attacking any member of the administration, or subset thereof. Yes, the position of the administration is a matter of record, and my point was that, as you said, we should present it without judging it on its merits. Kevin Baastalk
I really find it quite ridiculous that the administration is trying to argue that FISA is unconstitutional and thus they don't have to follow it. It's untenable on its face. But they it's clear from statements they've made and letters they've written that that's their position, so as ridiculous as it may be, being it their position, NPOV requires that we present it. Kevin Baastalk 02:51, 31 January 2007 (UTC)


And regarding deletion, is this what is being reffered to? I was looking through the history and that caught my attention. I was going to start a new section about it on the talk page, but as usual, i read through the talk page first. If this is the right thread for this, what is the justification for this edit? Why was the content removed? Kevin Baastalk 02:54, 31 January 2007 (UTC)
Quoting from NPOV?? above

First [the deleted paragraph's] description of the program ("the NSA monitors phone calls between the United States and a foreign country" is overly broad, ignoring that the authorization is restricted to phone calls (and other communication) originating from parties outside the US with known or suspected links to al Qaeda. Everywhere in the article that the program objectives are mentioned, the phrase "phone calls between the United States and a foreign country" is used wrongly implying that calls originating in the US could be monitored.
Next, at no time did Gonzales acknowledged that the Administrations actions were "outlawed by the text of FISA". The supplied citation is taken badly out of context. Gonzales point was exactly the opposite, that is that the text of FISA includes the phrase "unless otherwise authorized by statute or by Congress" which the administration claims is exactly what occurred with the AUMF. The author goes on to state in the very next sentence "The Bush administration has argued that warrantless surveillance of US citizens can nonetheless be legal", as if there is a difference of opinion between Gonzales and the Administration.

Even if you disagree with the above, NPOV requires that editors not draw conclusions. Your original paragraph concluded that the Gonzales statement was "an acknowledgement" and further, by implication, you characterize that acknowledgement to be an admission of guilt. Editors don't get to make such interpretations. Jpat34721 19:50, 31 January 2007 (UTC)
To be clear, I did not write that. I don't claim ownership - or authorship - of any of the text of this article. I've made a few sentence changes and even added a few here and there, but overall my authorship contributions are fairly negligble. I've mostly worked with the organization of the article. Kevin Baastalk 05:25, 2 February 2007 (UTC)

More NPOV corrections

The Administration's position is that President Bush's authority to override FISA and approve such surveillance programs personally, stems from two sources:

  • the September 18, 2001 Congressional Joint Authorization for the Use of Military Force, and/or
  • his inherent powers as described in Article Two of the United States Constitution, Section Two.

Again, this distorts the administration's position. The administrations does not claim that Bush has the authority to "override FISA", rather that FISA does not have the authority to override the Constitution and must be read in light of the avoidance doctine. This important distinction is overlooked throughout the article.

Avoidance doctrine: [I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is "fairly possible," see Crowell v. Benson, 285 U. S. 22, 62 (1932), we [SCOTUS] are obligated to construe the statute to avoid such problems. See Ashwander v. TVA, 297 U. S. 288, 341, 345-348 (1936) (Brandeis, J., concurring); United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909).

There is at least one other Administration argument, that of circuit court precedent upholding the "warrantless exception" when dealing with the collection of foreign intelligence, which I provided with citation. The author removed my revision without comment. Is this article meant to fully inform the public as to the complex and interesting legal questions raised by this controversy or is it a blatent attempt to influence public opinion?