The Discerning Texan

What's it all about? In one sentence, it comes down to this:

Does the United States Government have the right to conduct secret surveillance of terrorism suspects on American soil?

But the case has become rather more complicated than that. Before we get to the action of August 15, here's the gist of the case in a few short paragraphs, cutting through everyone's double-talk on both sides, and granting everyone's allegations to be true:

A Saudi charity known to finance terrorist activities opened a branch in Oregon. The US government tapped the phones of the Oregon branch and heard evidence that they were helping to finance terrorist activities as well. With this info in hand, the government designated the Oregon branch as terrorists, and froze their assets. The Oregon branch, unaware that they had been sureveilled and that the government had solid evidence against them, challenged this, and during legal proceedings, a government employee accidentally gave logs of the tapped phone conversations to the charity's lawyers.

At that point, the case changed gears: the charity hooked up with liberal lawyers to challenge the very legality of the surveillance, and by extension the legality of all secret surveillance. The decision was made to make the trial into a test case designed to weaken and embarrass the Bush administration. The government sought to circumvent this strategy by suppressing the evidence of the leaked document on grounds that its exposure would endanger national security. The governement requested back and eventually obtained all U.S. copies of the surveillance logs -- but not before an unknown number of copies made their way overseas, presumably into hostile hands. Aside from revealing the fact that the charity was surveilled, it is not clear what "operational details" the leaked document reveals. The government refuses to admit to the wiretapping or to say whether or not a warrant was obtained.

The entire case, as it is now being litigated, hinges on the question: do the plaintiffs even have the legal right to sue the government? In order to prove they have "standing," they must prove they were surveilled; and so must refer to the only evidence which proves this, the mysterious document. The government claims the document is Top Secret, and thus not admissable evidence. It is this question that was being argued before the Ninth Circuit Court on August 15.

That's where things stand at the time of this writing. And even if you knew nothing more about the specifics of the case, deciding which side you favor is almost necessarily dependent on your political philosophy. Even granting the allegation that the surveillance was done without a warrant, there are many who argue that the government would be abdicating its duty to protect its citizens if it did not monitor known terror suspects, warrant or no warrant. But does the "slippery slope" argument apply here: if we allow warrantless surveillance of terror suspects, are we to assume that the government will eventually abuse this power to harrass non-terrorists for politcal reasons (which is obviously what many on the left fear)?

Labels: 9th Circuit, Islamic Fascism, Judicial, NSA Surveillance, Travesty of Justice

Labels: Congress, Defeatocrats, Democrat Sabotage, Intelligence, NSA Surveillance

Newsweek is reporting an interesting development in the FISA leak investigation:

Aug. 13, 2007 issue - The controversy over President Bush's warrantless surveillance program took another surprise turn last week when a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer. The lawyer, Thomas M. Tamm, previously worked in Justice's Office of Intelligence Policy and Review (OIPR)-the supersecret unit that oversees surveillance of terrorist and espionage targets. The agents seized Tamm's desktop computer, two of his children's laptops and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told NEWSWEEK the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media. The raid appears to be the first significant development in the probe since The New York Times reported in December 2005 that Bush had authorized the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. residents without court warrants.

For some quick background on this investigation, see my article from early 2006.

Tom Maguire notes that Mr. Tamm made a contribution to the DNC in 2004.

[...]

I do not know how long Mr. Tamm worked at DoJ but he received an award in 2000,which means he was a holdover from the prior Administration.

Last week we noted that Secrecy News reported that DoJ has announced that is determined that journalists could be prosecuted under the Espionage Act for publishing classified information.

Update: Tamm works at the EqualJustice USA A.J. Strata reveals:

Equal Justice USA
Trial Attorney, United States Department of Justice, 1972-1974. Thomas L. Crowe, Baltimore, MD ... Thomas M. Tamm, Rockville, MD. Assistant State's ...
http://www.ejusa.org/MD_law_enforcement_letter.htm - 15k - Cached

Equal Justice USA is funded by the Quixote Center through a George Soros grant.

From JOM poster "ranger"

I have a feeling that some senior Dems are very concerned about what might come down next summer. One of the interesting aspects of this case it how a reporter obtained the contents of a letter so sensitive that it was hand written and only two copies existed (one in the office of the VP who was the addressee, and the other in the office of Sen. Rockafeller, who was the author). I seriously doubt that information came from the office of the VP.

Mr. Tamm may have been one of the original leakers, but there were confirming sources at the FISA Court and in the Senate who could become significant political liabilities if indictments were filed or unsealed in 2008.

Labels: Media Bias, Media War, NSA Surveillance, Treachery, Treason

Speaker Pelosi is in a very untenable position. She now bears entirely the weight of improving the national security of the United States. She will try to spin it differently, but every moment she waits, trying to find a political way out of the predicament she finds herself in, she is vulnerable to being held responsible if something really bad happens here. If the McConnell-Bond bill were to pass the House, it would be signed immediately by the President, and become law that second. There is no implementation delay. As soon as the ink is dry, Admiral Mike McConnell can start changing procedures he deems vital for the protection of the country at once.

So what are Pelosi’s options? She could bring up the bill as is, with no amendments, and call for a vote. Considering the number of Democrats in the Senate who helped it pass, it's almost certain to pass the House. But if Pelosi plays games with this, or if one comma is changed in the House version, the bill would have to go to a conference committee, which can’t now happen anytime soon because the Senate has recessed. They’ve done their job. Pelosi has to pass the bill as is. We hope she sees this and does what’s better for the country than satisfying her ACLU base.

Here’s her conundrum, however. If Pelosi does push this bill through, which she almost certainly has to, she will send her members home after the vote for their August recess to face a base that will be just as angry, just as ramped up as the Republican base by and large was during the recent immigration debate. Will she have the courage to stand up to her kook fringe and do what’s right? Will she be able to regain control of the reins of the House of Representatives after she so badly mismanaged it this week? Or is she so beholden to powerful lobbies within the Democratic base that she will turn her back on the national security of the country to placate the left wing fringe? We’ll stay tuned and report.

Labels: Congress, Defeatocrats, Democrat Sabotage, National Security, NSA Surveillance

President Bush approved this terrorist surveillance not long after 9/11, allowing intelligence officials to track terrorist calls overseas, as well as overseas communications with al Qaeda sympathizers operating in the U.S. The New York Times exposed the program in late 2005, and Democrats and antiwar activists immediately denounced it as an "illegal" attempt to spy on Americans, à la J. Edgar Hoover.

Democratic leaders were briefed on the program from the first and never once tried to shut it down. But once it was exposed, these same Democrats accused Mr. Bush of breaking the law by not getting warrants from the special court created under the Foreign Intelligence Surveillance Act (FISA) of 1978. Mr. Bush has rightly defended the program's legality, but as a gesture of compromise in January he agreed to seek warrants under the FISA process.

This has turned out to be an enormous mistake that has unilaterally disarmed one of our best intelligence weapons in the war on terror. To understand why, keep in mind that we live in a world of fiber optics and packet-switching. A wiretap today doesn't mean the FBI must install a bug on Abdul Terrorist's phone in Peshawar. Information now follows the path of least resistance, wherever that may lead. And because the U.S. has among the world's most efficient networks, hundreds of millions of foreign calls are routed through the U.S.

That's right: If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists. If this makes you furious, it gets worse.

Our understanding is that some FISA judges have been open to expediting warrants, as well as granting retroactive approval. But there are 11 judges in the FISA rotation, and some of them have been demanding that intelligence officials get permission in advance for wiretaps. This means missed opportunities and less effective intelligence. And it shows once again why the decisions of unaccountable judges shouldn't be allowed to supplant those of an elected Commander in Chief.

When the program began, certain U.S. telecom companies also cooperated with the National Security Agency. But they were sued once the program was exposed, and so some have ceased cooperating for fear of damaging liability claims. We found all of this hard to believe when we first heard it, but we've since confirmed the details with other high-level sources.

Director of National Intelligence Michael McConnell more or less admitted the problem last week, albeit obliquely, when he told the Senate that "we're actually missing a significant portion of what we should be getting." That's understating things. Our sources say the surveillance program is now at most one-third as effective as it once was.

Labels: Democrat Sabotage, Intelligence War against Bush Admin, NSA Surveillance, The Left

Labels: Democrat Sabotage, National Security, NSA Surveillance, Unbridled Partisanship