Date: Mon Dec 19 15:09:00 2005
From: perry at piermont.com (Perry E. Metzger)
Subject: [Clips] A small editorial about recent
	events. (fwd)


"Jamie C. Pole" <jpole@...a.com> writes:
> I'm sorry, but I was also FAR too close to one of the 09/11 attacks.
> While I agree that giving up (supposedly) certain civil liberties is
> most decidedly not a good thing, we need to remember one key point -
> the same liberal whiners that are complaining about the monitoring of
> certain targeted individuals would be shitting themselves to get in
> line to scream about the President not doing enough to protect us if
> there was another attack.  This was not a blanket wiretap against
> every citizen that made a telephone call to London.  These taps were
> conducted under defined circumstances.  If you are not a terrorist,
> and do not associate with terrorists, you have nothing to worry
> about.  The indignation being shown by the liberals right now is
> shocking - this information was not news to anyone within Congress
> (from either party) that was in a position to know it.

Hi Jamie -- long time no see!

1) Not that it is relevant, but I watched the towers fall. My office
was at 14th and 7th, right next to the hospital. Guess what the
area was like that day. I also knew two people who died in the towers,
one of whom was a good friend.

2) Lets say you are right and there was a need to conduct the
surveillance in question. Well, we had a legal process already to
conduct it.

The law provides for spying on US persons if the FISC approves, and
the FISC has never (or, nearly never) denied a request, so there is no
serious issue of getting approval under the legal process. The law
provides that spying can begin 72 hours before the FISC is informed,
so there is never an issue of "we need to start NOW and don't have
time to file the papers".

So, the issue is not whether the administration has the power to
conduct surveillance of US persons. Clearly it does. 

he issue is that there is a legal process for doing that, described
clearly in 50 USC 1801 to 50 USC 1811, which was violated. This
process is very simple to follow and is apparently never an
impediment, but it is a felony not to follow it.

This process was specifically enacted by the Congress in response to
the NSA's activities, so it was without doubt intended to cover these
cases (that is legally relevant), and the law is so utterly
transparently clear and easy to read that I encourage you and anyone
else who wishes to to have a look at it:

http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36_20_I.html

Unlike most laws, it is only a few minutes to read and is trivially
understandable by the non-lawyer.

You cannot reasonably defend these actions on the basis that there
were surveillance needs that the law did not provide for in the wake
of 9/11 given that, as I've said, there is no problem conducting such
surveillance under the existing law. The FISC's record of rubber
stamping every request is legendary and it is not even necessary to go
to the FISC first.

So, we have no real national security reason for violating this
process -- the authority to conduct surveillance is already legally
provided for -- but we do have an administration that decides that it
is too much trouble to follow even the minimal process that Congress
enacted into law.

We also have a felony, committed by the President (see 50 USC 1809) on
the basis that national security required it, and yet there is no
obvious benefit here to national security at all! I'm afraid that if
you are going to find a basis for supporting the President's actions,
you will have to find another one, since this did not allow the NSA to
do anything it could not have done legally had the desire to follow
the law been there.


Perry

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