Cringely on Domestic Eavesdropping

krygny writes "In this week's The Pulpit, Robert X. Cringely presents some interesting factoids he uncovered in his research into the NSA's domestic surveillance. He makes no judgements but offers some interesting stuff you might not have already known." From the article: "Intercepting communications for purposes of maintaining national security is nothing new. From before Pearl Harbor through 1945, EVERY trans-Atlantic phone call, cable and indeed letter was intercepted in Bermuda by the Coordinator of Information (COI) in the White House and later by the Office of Strategic Services (OSS). Sir William Stephenson revealed this in his autobiography, A Man Called Intrepid. They literally tapped the undersea cables and shipped all post to Europe through Bermuda, where every single call was monitored, every cable printed out, and every letter opened. FDR and Churchill needed intelligence and they took the steps they needed to get it."

Comments

Yeah, great, guess what

[Anonymous Coward]

This is exactly why we have a little law called FISA. And FISA is why the domestic spying program is a problem, because under FISA the domestic spying program is illegal. FDR wasn't really subject to FISA because FISA was passed in 1978.

Re:Yeah, great, guess what

[TheNoxx]

Pardon my ignorance, but where, precisely, does the Constitution give the President the authority to override the Bill of Rights?

Re:Yeah, great, guess what

[damsa]

Of course not, he even sent Japanese Americans to happy sunshine camps.

Re:Yeah, great, guess what

[TubeSteak]

Secret Amendment.

And no, Congress and the Senate don't have clearance to read it.

But it's there, honest.

Re:Yeah, great, guess what

[lordholm]

This is intresting, as in Sweden, the goverment is investigating whether to allow for international calls and data transmission in wires to be intercepted. The FRA (Swedish version of the NSA), already intercept radio transmissions, and they want more.

And as usual, international is defined as not-in-sweden, so this includes intra-european traffic as well, which is really way over the line. Not that I am surprised, Sweden have a facshist as minister of justice, who just recently together with his British collegue, pushed through a law in Europe, forcing ISPs, mail-servers, mobile phone companies &.c to log data on their customers communications (not the contents, but bad enough) for TWO years.

While it might be reasonable for European police to be given access to existing records after a court order, this new law is unprecedented in that it regulates what data that is to be stored, which turns out to be a lot more information than was actually stored by telephone and internet companies by default.

This is disgusting and I want none of it.

PS! To any Swede reading this, dispose Bodström in the autum elections, all other questions are secondary! DS!

Re:Yeah, great, guess what

[hdparm]

Cowards is what they are. Scared of freedom.

...says Anonymous Coward...

Re:Yeah, great, guess what

[TheNoxx]

Pardon? The myth that the Japanese could've conquered the United States, is at best, a laughable one. The Japanese attack on American is known as a "naked assault" because they had no chance of winning, at all. After Germany fell, the small, however feirce, Japanese army was *doomed*. Not only that, but the use of massive firebombs on civilian targets was a violation of the Geneva Convention, and is a tactic called, ironically, "Terror-Bombing" (http://en.wikipedia.org/wiki/Terror_bombing). Hundreds of thousands died in the fire-bombing on Tokyo and Kobe, not to mention Dresden and Hamburg, all of which were massive civilian populations, not military installations. While the atomic bombing of a civilian target forced the Japanese to surrender early, the ethics of the genocidal slaughtering hundreds of thousands merely to cow the enemy military into submission is simply barbaric, inhuman, and evil.

Do you see a corellation here? The same tactics the US Military used on its targets is now being used against our own populace by a small, militant Islamic faction to get its way. Hell, we even trained them. Maybe that's why we get angry at the goverment for trying to thieve our rights away for trying to fix its own fuckups.

Re:Yeah, great, guess what

[jcr]

where, precisely, does the Constitution give the President the authority to override the Bill of Rights?

It doesn't.

Article 2 lays out the powers of the president, and they're rather extensive in time of war or insurrection (which is why Lincoln was able to suspend Habeas Corpus). The fact that the last war that was actually declared by the congress as the consitution requires was WW 2, places any claim of wartime power on rather tenuous grounds. There's a reason why the constitution reserves the power to declare war to the congress: it's supposed to be very difficult to do.

Hell, it took a constitutional amendment to prohibit alcohol, and that amendment has been repealed. Where's the constitutional authority to prohibit marijuana? Why are my federal tax dollars spent harassing cancer patients in California, where we've voted to allow them to smoke pot?

The long and short of it is, the constitution is nothing more than a statement of intentions. Whether it's followed or ignored depends entirely on the willingness of the people to tolerate or fight against encroachments on our liberty by the government.

-jcr

Re:Yeah, great, guess what

[HangingChad]

And the "domestic spying" HAS caught at least one guy. Iyman Faris's plan to destroy the Brooklyn Bridge was discovered through monitoring his phone calls.

This is the guy who was going to cut down the Brooklyn Bridge with a cutting torch. We could have let him try it and he'd still be out there trying to cut through those cables. His plan was so stupid it could qualify as material on the 3 Stooges.

And this is your big "evidence" that domestic spying thwarts terrorism? I think people like you are the problem as much as the Bush administration. You'd sell out liberty and freedom just to preserve a false sense of security for your fat, dumpy Lay-Z-Boy sitting, SUV driving ass. You're a gutless, spineless, disgusting example of what America has become.

Re:Yeah, great, guess what

[frost22]

FISA can't take powers away from the president that he is granted under the constitution.

This is basically a renewed version of the theory of "Divine Grace". Absolute Monarchs in the 16th and 17th century argued that God had made them rulers by His Divine Grace, and therfore considered their power to be absolute and without limits. They were above all laws. Enlightenment and civil revolution finally did away with this nonsense.

Now you just substitute "divine grace" by "the founding fathers"

It is pretty embarassing that a sizeable part of the population in an enlightened country like the US whith a long democratic tradition suddenly adheres to such theories. If you want to know where such lunacy can end, look uzp terms like "Ermächtigungsgesetz"....

Re:Yeah, great, guess what

[Pike]

Try this on for size.

Some commentators have read the constitutional text differently. They argue that the vesting of the power to declare war gives Congress the sole authority to decide whether to make war. (6) This view misreads the constitutional text and misunderstands the nature of a declaration of war. Declaring war is not tantamount to making war - indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to make war. An earlier draft of the Constitution had given to Congress the power to "make" war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from "make" to "declare." 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966) (1911). A supporter of the change argued that it would "leav[e] to the Executive the power to repel sudden attacks." Id. at 318. Further, other elements of the Constitution describe "engaging" in war, which demonstrates that the Framers understood making and engaging in war to be broader than simply "declaring" war. See U.S. Const. art. I, 10, cl. 3 ("No State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."). A State constitution at the time of the ratification included provisions that prohibited the governor from "making" war without legislative approval, S.C. Const. art. XXVI (1776), reprinted in 6 The Federal and State Constitutions 3247 (Francis Newton Thorpe ed., 1909). (7) If the Framers had wanted to require congressional consent before the initiation of military hostilities, they knew how to write such provisions.

Finally, the Framing generation well understood that declarations of war were obsolete. Not all forms of hostilities rose to the level of a declared war: during the seventeenth and eighteenth centuries, Great Britain and colonial America waged numerous conflicts against other states without an official declaration of war. (8) As Alexander Hamilton observed during the ratification, "the ceremony of a formal denunciation of war has of late fallen into disuse." The Federalist No. 25, at 133 (Alexander Hamilton). Instead of serving as an authorization to begin hostilities, a declaration of war was only necessary to "perfect" a conflict under international law. A declaration served to fully transform the international legal relationship between two states from one of peace to one of war. See 1 William Blackstone, Commentaries *249-50. Given this context, it is clear that Congress's power to declare war does not constrain the President's independent and plenary constitutional authority over the use of military force.

Re:Yeah, great, guess what

[ZachPruckowski]

Ok, and this logic would apply if Al Qaeda was launching spontaneous border raids from Mexico/Canada. But the "war"s we're in have lasted several years. This is not a case of an executive avoiding red tape in order to protect the country. The War Powers Act pretty much defines a "military action" as different from a war. If the President wanted a "war", I bet he could easily get one from Congress. But he hasn't declared that the "War on Terror" is as critical as the War on Fascism (WWII), or the War Between the States. Personally, I feel like the President can't have it both ways. He says "Everyone go about your normal lives", then proceeds to use emergency powers designed for times of extreme danger to America. Which is it?

Does this make it right?

[sriehl]

This still doesn't mean that it is right for communications within the US to be monitored. Just because one thing has been done a long time, does not make it right. Look at slavery for example.

Okay...

[TheNoxx]

Well, guess what, murder, genocide, and rape are nothing new either... that doesn't make them any less reprehensible.

McCarthy did the same thing with communism as Bush is doing with terrorism. I still can't believe Bush hasn't even *apolagized* for breaking our fundamental American rights. Just because doing so is unoriginal has no bearing on the fact of it being completely unethical conduct and grounds for legal action against his administration.

Oh well. I suppose we had a good enough run with freedom and personal liberty (something like... 30 or 40 years out of the thousands of years humans have been around?). Time for another Dark Ages. Hooray.

Sounds like a great security measure

[Anonymous Coward]

> From before Pearl Harbor

Soooo... how'd that work out?

Who cares if is wrong.

[Mrs. Grundy]

This controversy gets a little old as people argue the various ethical merits of government wiretaps. The issue is not whether eavesdropping on communications is necessary, right, or wrong, but whether we want to live in a country where the executive charged with running it is not bound by the law. I'm sure the lawyers in the DOJ will put forth some very creative arguments, but I think it is clear to most people that this breaks both the letter and the spirit of the law. As this plays out, we will be well served to remember that congress writes the laws and the executive branch enforces them. When the president and his staff decide they need not adhere to the laws congress has authored, it is time to consider the meaning of 'high Crimes or Misdemeanors."

I know this is all important, but

[Council]

Robert X. Cringely presents some interesting factoids he uncovered

I couldn't help but laugh when I learned, earlier today, that the word "factoid" technically refers to an untrue piece of information that is accepted as true due to repetition in the media.

In a profound stroke of irony, the incorrect definition of 'factoid' (a small piece of information) has become the prevailing one through repetition in the media.

None of this scandal really matters until 2006,

[Clockwurk]

When there is a congressional election. If democrats can take back the house, they could possibly impeach the president; no Republican controlled house would ever betray their parties president (especially after he was re(s)elected). The angle that I don't think has been stressed enough is how Bush acted. If he really thought that having to go through a court that has approved 18,742 wiretap warrants and denied 5 was such an unconstitutional restraint of his power, he should have spoken up when he started doing it. Bush is asking for huge increases in executive power during a war he started under false premises.

According to a recent Zogby poll, 52% of Americans approve of impeaching Bush if he wiretapped an American citizen without a judges approval.

This wiretapping scandal can only get bigger as more and more layers get exposed. It appears Bush may have been wiretapping Americans before 9/11.

Domestic eavesdropping fails

[Anonymous Coward]

Because the people you're eavesdropping on can set up arbitrarily complex networks of people and messages across different communication networks. The following could be a message to my terrorist buddies: fiesufsdkfjdsjhfdsjhfkjdfsdhjk43243. Woohoo. Now, even if you KNOW I'm a terrorist, you have to check up on EVERYONE who accessed those bytes, and you have to correlate all of their communications to all others who might relay the message offline to still others, who might reconstitute it and retransmit it again, etc., ad infinitum.

Good luck figuring all that out, before something blows up when you least expected it.

Re:Tell ya what everyone

[TheNoxx]

The project ECHELON was a collaboration between the American and British intelligence communties and authorized by the FISA court (http://en.wikipedia.org/wiki/FISA_Court), not by Clinton; ECHELON also began operation well before 1992, when Clinton took office.

Fighting FISA goes hand in hand with Bush Sr. and his young boy.

Bad news kids...

[Anonymous Coward]

The country you grew up hearing about in school... dead if it ever existed.

The principles it was founded on... undermined.

The word from all forms of media, public and private... propoganda.

The truth... Too crazy to be believed.

The reality... It's always 1984.

FISA and it's limits

[Anonymous Coward]

FISA is not the be-all and end-all of Surveillaince law, any more than Jim Crow, the law of the land, was consistent with the Constitution. Yes up to and including Plessy vs. Ferguson and a Supreme Court decision affirming the legality of segregation.

FISA was written in 1978, before throw-away cell phones and the idea that terrorism would ever be a threat to Americans. We are at war with a stateless enemy that exists in every nation of the globe and is sworn to our destruction.

Given that, does GWB have the authority under the Consititution to establish basically a giant version of "Snort" on US telco switches and filter out comms to/from Al Qaeda?

My guess is probably. The Constititution and FISA are both notably silent on data mining on telco traffic to/from foreign nations. Though it's worth noting that Bill Clinton and Al Gore asserted JUST such an authority with Echelon back in the 1990s (using the Canadians and Brits to surveill us while we surveilled them and the Aussies and everyone shared). Not to mention Al Gore's defense of the Clipper Chip and Carnivore.

There likely needs to be better oversight (sure any technology can be abused) but adhering to FISA rigidly is like not trusting this new-fangled fingerprint business, or DNA testing. As it is this tech gives us LOTS of leads we'd otherwise never get. Your computer can be used to invade people's privacy, I don't see Slashdot readers deciding to abjure technology and go live in a mud hut somewhere.

Point being that with changes in technology and society the understanding of the Constitution changes. We don't live in the 1890's and don't have LEGAL and Supreme Court approved Segregation. I assume that the Supremes will hold that the President DOES have the authority to check out who's in contact with Al Qaeda without a FISA warrant, and like property qualifications for officeholding and voting FISA itself will go away.

Depends on who you listen to.

[jd]

There are plenty of people who argue that Churchill (at least) and possibly FDR knew perfectly well about the impending attack and did nothing, in order to draw America into the war. If you believe this theory, then this is a great method to manipulate others by selectively handing out information for political gain.

There are plenty who argue that neither knew about the attack, which would mean that those planning such things are probably smart enough to be discrete about it, which would mean that such surveillance is utterly worthless.

There are claims that Churchill knew about the attack, because older Japanese diplomatic codes had already been broken and enough could be extracted from messages to know the generalities even if not the specifics. (The newer diplomatic codes used were apparently derived from the ones that had been broken, to the point where partial decryption was possible.) If that is the case, then basic signals intelligence between key figures would seem to be more valuable than general monitoring.

Regardless of which of the popular theories you subscribe to, there is one common aspect - the kind of spying being practiced against American citizens is useless, whether or not other forms of signal intelligence has any value.

(Actually, existing sigint practices in general seem pretty crappy. We've had numerous false alarms, where the threat level has been raised but no evidence of any attack ha ever emerged. On the other hand, actual attacks in very recent times - such as those in London - were missed entirely.)

It does nothing to raise confidence levels when you realize that several top US Government officials have been arrested on spying charges in the US... ENTIRELY through a mix of blind luck, observation and routine detective footwork. If the US monitoring program can't even monitor national secrets and foreign agents, then it's not much use as a monitoring service.

Well, either that or it's not being used to monitor "threats" of that kind at all, which raises the question of what it IS monitoring. Nixon's crusade against the Democrats had far more to do with keeping himself in absolute power than with keeping the country safe, and Hoover was notorious for finding out the dirty secrets of anyone who could threaten his personal powerbase. Not to be cynical (reader: "you expect me to believe that?") but a comparison of results versus approach would seem to indicate that this program isn't as much for the benefit of national security as we're being told.

Intelligence

[carcosa30]

Bush sorely needs intelligence too.

Re:Unlike you, so much the same...

[revscat]

The difference between us is I realize that both of us are rather fond of democracy; I (and other conservatives) just happen to realize Democracy takes some defending even if it means a few calls to known terrorists are tapped.

The difference between us is that I'm not a scared little monkey who willingly sacrifices EVERYTHING out of fear of some overrated boogeyman. Do you think our nation is more at risk now than it was during the American Revolution? Not fucking hardly. Osama bin Laden is nothing more than an Emmanuel Goldstein, and you, cowardly fascist that you are, WANT to absolve your country's principles out of fear.

Someone who claims that someone who protects Democracy is "The Enemy" is I've found someone who has reach the point where there is no reasoning with them. Yes, that's right - it's easier to get a southern baptist to accept gay people than it is to get a blowhard peace loving Democrat to accept that some times when foreign powers are actively trying to hurt U.S. interests that things need to get done.

Peace loving? You argue against strawmen, and think yourself insightful.

I support the war in Afghanistan. I support all efforts to keep those fucksticks in Iran from getting nukes. I supported the military action in Kosovo. I WOULD support military intervention in Sudan.

I do NOT support wholeheartedly throwing away my rights and giving imperial powers to a president in pursuit of those goals. And I am not alone. Your strawmen are pathetic, willfull lies. America's strength comes from it's democracy and its justice system, not its military. We are neither so threatened nor so weak as to necessitate a king who is above the law.

Equal justice FOR ALL, and death to those who oppose it.

Re:Short memories

[quarkscat]

I call "BullShit!" on the parent poster.

The ECHELON program is still being used today, except that the Bush regime has expanded it from it's original mission statement of "Intercepting Overseas CONINTEL" to "Intercepting ALL CONINTEL, Including Domestically Against American Citizens".

The US Senate committee that began (01/20/2006) investigating this illegally expanded program revealed that the Bush regime's CONINTEL program has been directed against domestic political opposition, including a Quaker anti-war group in Miami/Dade County.

These are not the actions of a democratically elected government sworn to uphold the US Constitution, the Bill of Rights, and the rule of law. These are the actions of a regime that siezed power illegitimately in November 2000, and has been using the unchecked and expanding power of the Executive Branch to not only wage an illegal foreign war, but also to consolidate and maintain a totalitarian regime.

Re:Unlike you, so much the same...

[kbielefe]

Let me preface my response by saying that I have been Bush's strongest supporter, from Afghanistan to Iraq, and will -- if it comes to that -- support military action in Iran. When I heard about these wiretaps, I felt betrayed. This is why.

Proponents of the wiretap policy have set up a false dichotomy between warrantless wiretaps and no wiretaps at all. They have convinced 60% of Americans that the other 40% of us don't want terrorists' phones to be tapped. That is not true. There is a third option here in the form of a special court specifically designed for obtaining warrants of a sensitive national security nature. I believe that there was just cause for every call that was tapped, and as such, a warrant from the FISA court could have easily been obtained in every individual case.

You talk about protecting democracy. Part of that is protecting individual oversight by a judge every time the rights of an American citizen are abridged, before they are abridged. Oversight as part of a huge list of names, by an overworked congressional committee every few months is not enough.

Counting military casualties (wounded and killed), there have been approximately 20,000 american victims of terrorism since September 11th. In that same time, approximately 6 million americans have been victims of violent crime. Yet, inexplicably, a solid majority of the american public seems to believe that a judge must approve the search of murderers and child rapists on a individual basis, but that an american citizen with even an innocent association with a terrorist does not deserve that individual attention. I disagree, and I'm not the only conservative to do so.

I believe that Bush acted in good faith, but that he made the wrong decision in this case. He had the option of removing all doubt of the legality of his actions, and chose instead to act unilaterally. If one terrorist is released due to a legal technicality that could have been so easily avoided, that will truly be a tragedy.

Re:Unlike you, so much the same...

[SillyNickName4me]

Your logic skills are amazing.

Did it ever occur to you that wiretaps can also be done in a legal way?

Did it ever register with you that prevention of the 9/11 attacks did not happen because of information not ending up at the right people, and misinterpretation of information, not because the information was not there?

It never occured to you that adding more and more information is just going to make that problem bigger and as a result makes things less safe?

Ah well, please go back to your fox induced reality, hope you are happy there, but please don't claim to be a sentient beign untill you learned something about logic and reasoning.

That book is not an autobiography

[chris-chittleborough]

William Stevenson's book, A Man Called Intrepid, is about the activities of Sir William Stephenson and other intelligence leaders during WW2. It is not an autobiography; in fact, it is not really a biography.

(This book was one of the first published after the Ultra secret, Colossus, Bletchley Park etc were declassified 30 years after WW2. It's a good read, full of fascinating information. For instance, did you know that Rommel's success was largely due to the U.S. State Department? It may still be one of the better single-volume histories of Allied intelligence during WW2. However it is not—how shall I put it?—a book that a good historian would use as a primary source.)

The book does say what Mr. Cringely says it does, but it's alarming to see him describe it as an autobiography.

It's not black and white!

[Trinition]

...if it means a few calls to known terrorists are tapped.

And the number of people like me is growing, as witnessed by the 60% approval ratings for wiretapping actions that Bush enjoys.

Why is it that no poll can look like this: What do you think about the wiretapping?

1. Its OK no matter what
2. It would be ok if the admin got FISA to grant warrants
3. It is no tOK under any circumstances

Every time I debate this with people, they always talk about the fact that it's "known" terrorists on the other end so its excusable. I don't care if its your grandma on the other end. If an American at home is on the other end, why is it so imssposible for the administration to just get a warrant?! FISA grants almost every single request. FISA acts quickly, even in the middle of the night. FISA will even let you get the warrant after the fact! So...

Why won't the administration submit requests to FISA?

1. They're not wiretapping who they say they are so no court would actually grant such warrants
2. There are so many terrorist-connected calls coming out of America it would overwhelm the system
3. The administration is trying to save taxpayer dollars by cutting down on paper usage

Re:Unitary Executive

[kevinbr]

But has war been declared? We declare wars in the press: War on Terror, War on Drugs.....etc. But these are just labels. The reality is a REAL war the ENTIRE nation is at immediate risk of their live and nation being dissassembled by a foreign threat.

Today in the US over 50,000 people are killed in Auto accidents. We have Nuclear Plants that are an intrinsic threat of mistakes ( not terrorist attacks ) melting down a plant and the surrounding population.

Yet we live with these threats.

This war is endless? Crime is endless......drug taking is endless......car accidents are endless. This is NOT a war. Terrrorists are criminals and we have plenty of resources to track, arrest and convict criminals. You will NEVER defeat terrorism via military means. repeat: NEVER. Anyone who buys into using the military to defeat Ossama et al is a fool.

The reality is that people in power usually get there because they are addicted to power, and like all addict will perform and act, tell any lie, do any action to ensure they can indulge their addiction. The US political system ensures that only crack junkie power crazed junkies get elected.

Once they get enough power they tell more lies to get more crack power. Altruism? Bah!

They believe that they can cement their hold on power via information - they want to know what you are saying they want to know what you are thinking. This attack on Google is motivated on knowing what you are thinking. What better way to find out? You think a thought.....bang you refine information related to that thought via google. Thinking of a wank? Search = favorite porn phrase. Thinking of criticism of your elected leaders = search for validation of your thoughts with other people or organizations. Once Google is defeated, then they can quietly continue to expand until Google is just an appendage of the power crack junkies search for negative thoughts that MUST BE STAMPED OUT.

This is just a power grab by a load of crack junkies that in other times with a real press with spine would be sent for the therapy they need.

Re:Did you vote for Nader in 2000?

[ultranova]

My good man, I voted for Gore, and reluctantly voted for Kerry; not only that, I am more than slightly pissed off at Nader and everyone who voted for him. I'm also completely aware that the GOP even donated money to Nader's campaign to take more votes away from Gore.

Well, everyone who voted for Nader, in my opinion, has some blame to share in the Iraqi civilian deaths, now numbered at 30,000.

You know, you americans desperately need a two-phase presidential elections. In a nutshell, they work like this:

First, you organize the vote normally. This is phase one. If any of the candidates gets over 50% of votes, he gets elected, and that's that. If none does, you organize a new vote, with the only two candidates being the two people who got the most votes in phase one. This is phase two; whoever wins it gets the presidency.

This way, if you don't want Bush in office, you can safely vote anyone but him; you don't need to concentrate your votes behind some "bad but better than Bush" candidate. If more than half of people votes for Bush, he gets elected anyway, no matter how tactical you try to be with your vote; and if less than half votes for him, it doesn't matter how the other votes gets distributed, you'll get a second vote phase anyway. At second phase, you can then choose to vote for Bush's opponent if you think he's better than Bush.

That's the system we use here in Finland, to avoid the kinds of problems you are having.

Of course, this would break the two-party system and turn it into a multiparty system, so it is unlikely to happen.

Educate Yourself

[CrazyDuke]

Educate Yourself I suggest you take some rugged individualistic responcibility for your own education.

From Article II (the presidency) of the US Constitution, the sections that define presidential authority:

Section 2. 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; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Here are the parts related to Executive Orders:
"He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient;" . . . "he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States."

In other words, he can recommend stuff to the legislature for consideration. Make orders to insure the laws are executed faithfully. And order his underlings to accomplish that task.

The only possible strech for this to be a law is if you believe this government is a dictatorship, in which case the legislature and the judiciary are his underlings and he can order them to do what he wants, with the power of the military behind him. Is this what you want?

Re:Unlike you, so much the same...

[rben]

Unlike you, I don't believe that Bush acted in good faith. Every president has access to legal counsel to warn him when he is going beyond the bounds of his constitutional powers. If Bush wasn't warned, than his counsel is incompetant.

I believe that Bush was advised by his political advisors to extend his powers in the hope of regaining some of the executive power that was lost after the Nixon debacle. It's not difficult for federal agents to get court orders to place wiretaps when they are needed. This was just another place where Bush could try to increase the power of the presidency.

Cite?

[antientropic]

You may laugh, but consider this; The Netherlands, the pesky little country I'm from actually has secret treaties with the US. These supercede our own constitution.

Do you have any citation for that? I'm Dutch and I've never heard of anything like this. In any case it sounds like it would be quite unconstitutional:

Article 91
(1) The Kingdom shall not be bound by treaties, nor shall such treaties be denounced without the prior approval of the Parliament. The cases in which approval is not required shall be specified by Act of Parliament.
(...)
(3) Any provisions of a treaty that conflict with the Constitution or which lead to conflicts with it may be approved by the Chambers of the Parliament only if at least two-thirds of the votes cast are in favor. (...)

Please don't perpetuate urban legends without providing proof.

Re:Executive orders

[mesocyclone]

Wikipedia, which is a noble experiment and a great resource, has long acknowledged that in controversial areas, its accuracy is suspect. And indeed it is. During the 2004 election campaign, I put some information that was unfavorable to John Kerry into it. I gave a reference, which was an easily obtained book. My change was rejected because "the book probably doesn't exist" even though the simplest Amazon search showed that it does and was available.

Even today, if you read the Bush and Kerry sections, you will find the phrasing of the Kerry section to be much more favorable than that of Bush (if you have ever studies actual propaganda, you will recognize the technique). The concentration of various facts to be similarly more favorable - selective editing - I'm sure the many Bush haters on here are itching to tell me that both are accurate. They are not - in either case.

Hence citing the Wikipedia as authorithy on *controversial* subjects is ridiculous, as has been discussed here before.

I praise the Wikipedia effort, but one unfortunately side effect is that those who control the keys to the kingdom, or the faction which works the hardest to change an entry, determine the content, regardless of truth and damgingly against balance. Wikipedia is trying to change this, although I cannot think of any methodology that are consistent with its character that will work.

And no, I'm not going to debate this. If you don't believe me, go find some other controversial area and eventually you will discover this sort of shading to be common.

Hypocracy

[MarkusQ]

I find it amusing how the new school "conservatives" (I'm an old school conservative) are so gung-ho about strict interpretation of the constitution, and not "deriving" governmental authority on abstruse theories (commerce clause, anyone?) but they are willing to turn a blind eye to plain language when it suits them:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

A vaguely remember when conservatives were in favor of limiting government, especially the federal government, and most especially the executive branch. Seems like, what, maybe five years ago they just dropped that long standing pillar of conservative ideology, along with fiscal restraint and sound judgment. Now the "conservatives" are all about a nanny state on steroids that spends like a drunken sailor and treats the constitution like a "quaint" piece of litter from the past, to be ignored when it doesn't suit them.

I almost wonder if perhaps they never really were conservative in the first place, and just used us in a cynical grab for power.

--MarkusQ

Re:Executive orders

[mOdQuArK!]

Hey, a rational response - I'm impressed!

The article you link to (and everything else that I have read) doesn't say that Executive Orders can be used to override Congressional laws, although some Presidents have tried to use them to do so (and when direct conflict between Congressional law & the Executive Order came about, the courts have ruled against the President).

It _does_ say (and I'd agree) that the Executive Orders use the gray areas caused by sloppy Congressional law-writing to bend/multilate/spindle the law in a way that a President wishes to interpret it, and that the courts have traditionally been pretty lenient about the scope of these gray areas.

When it comes down to it, though, the precedence is pretty straightforward: Constitution (including amendments) trumps all, then Congressional law, then Executive Orders, then agency regulations. As much as it annoys the executive branch, there is no legal way thay can overrule the power of the Constitution & Congressional statutes - it can only interpret in the bounds of any wiggle room that the Constitution & Congress sees fit to grant it.

Of course, if the Supreme Court doesn't have the cajones to call the executive branches on abuses of this law-making power-order, then it's pretty obvious that a President would have essentially the same power as a dictator - making, enforcing & passing judgement.

Fundamental misunderstanding

[Software Cowboy]

Having been in the intelligence community (though not NSA), I think it is clear why people are confused on this issue. The administration is treating the "war on terror" as a literal war on terror. Under that definition, the President can intercept these communications to suspected Al Qaeda members as part of a military campaign. Many of the people who are up in arms about this are viewing the "war on terror" as an extended police operation. FISA clearly applies to criminal investigations. It is generally accepted that military actions in war time are held to a different standard.

I believe the courts will probably uphold the administration's version, since they are in many cases, choosing to engage those on the other end of the communication with military (deadly) force. I think if they were just trying to arrest people and prosecute them, the administration's case would be far weaker.

I don't know that it is as clear cut as those on either side say. We'll have to wait for the courts to decide.