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Feingold's Response to President's Admissions

Senator Russ Feingold has issued a response to President Bush's admissions during his radio address today that he authorized domestic intelligence wiretaps without a warrant or court order. It is available as a radio actuality at the following number: 800-511-0763, Code 4945:

"The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king."

Here is a fact sheet I received from Sen. Feingold's office on domestic intelligence wiretaps:

  • The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to provide a statutory framework for eavesdropping on individuals within the United States, including U.S. citizens, who are not suspected of having committed a crime but who are likely to be spies or members of terrorist organizations.
  • FISA established a secret court that could issue wiretap orders if the government showed probable cause that the individual to be tapped is an “agent of a foreign power,” meaning he or she is affiliated with a foreign government or terrorist organization. This is an easier standard to meet than the criminal wiretap standard, which requires that there be: (1) probable cause that the individual to be tapped has committed, is committing, or is about to commit a crime, and (2) probable cause that communications concerning that crime will be obtained through the electronic surveillance.
  • In the 27 years since it was established, the FISA court has turned down only a handful of applications for wiretap orders. The number of approved FISA wiretap orders has jumped since September 11, 2001, with 1,754 FISA orders issued last year, up from 934 such orders in 2001.
  • FISA already addresses emergency situations where there is not time to get pre-approval from the court. It includes an emergency exception that permits government agents to install a wiretap and start monitoring phone and email conversations immediately, as long as they then go to the FISA court and get a court order within 72 hours.
  • FISA makes it a crime, punishable by up to five years in prison, to conduct electronic surveillance except as provided for by statute. The only defense is for law government agents engaged in official duties conducting “surveillance authorized by and conducted pursuant to a search warrant or court order.” [50 U.S.C. § 1809]
  • Congress has specifically stated, in statute, that the criminal wiretap statute and FISA “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” [18 U.S.C. § 2518(f)]
  • The target of a FISA wiretap is never given notice that he or she was subject to surveillance, unless the evidence obtained through the electronic surveillance is ultimately used against the target in a criminal trial.

Here is the full text of Sen. Feingold's statement:

“Yesterday morning, Republican and Democratic Senators blocked a flawed bill that extended parts of the Patriot Act that are set to expire without fixing the fundamental problems with the law. Nobody wants these parts of the Patriot Act to expire -- we want to fix them before making them permanent, by including important protections for the rights and freedoms of innocent American citizens.

“With a few modest but critical improvements, like making sure that when the government seeks library records it has to show that those records have some connection to a suspected terrorist or spy, we can give the government the powers it needs while also protecting the constitutional rights of law-abiding citizens. The President can sign a bill into law tomorrow to reauthorize the Patriot Act if he will agree to the bill that the Senate unanimously passed in July or he could extend the law for a short period so negotiations can continue.

“The President's shocking admission that he authorized the National Security Agency to spy on American citizens, without going to a court and in violation of the Constitution and laws passed by Congress, further demonstrates the urgent need for these protections. The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.

“On behalf of all Americans who believe in our constitutional system of government, I call on this Administration to stop this program immediately and to fully cooperate with congressional inquiries and investigations. We have had enough of an Administration that puts itself above the law and the Constitution.”

< Bush on Wiretapping : I Did It And I'll Do It Again | Is FISA Not Clear Enough? >
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    Is there possible legal liability for anyone involved in authorizing these illegal wiretaps? I know the prevailing belief is that a sitting president cannot be indicted, and obviously Bush won't be impeached with the Republicans in charge of the House. But can anyone else go down for this? My god, I truly feel like I am living in Kafka's world.

    The President does not get to pick and choose which laws he wants to follow. He is a president, not a king." It's a shame we didn't have a 'Russ Feingold' during the 30s- we might have avoided Social(ist) (In)Security, the TVA, the CCC, devaluation of the dollar to 57 cents(based on gold), et al ad nauseum...

    David -- YES there is a criminal penalty built into the FISA statute -- Section 1809 provides that "A person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute" AND "(c) Penalties -- An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both." And the wingnutosphere is busy busy spreading misinformation, or showing just how stupid they are, or both -- Posted at the Corner: "EAVESDROPPING INS AND OUTS [Mark R. Levin] Some brief background: The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens -- 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power." Levin has it exactly backward. According to the FISA statute, a warrant is NOT needed if it is for the purpose of intercepting communications involving a foreign power or agent of a foreign power, but IS needed if it involves or even MIGHT involve a US citizen or permanent resident. There is an exception in the case of emergencies, but even then the government is required to seek the warrant within 72 hours or cease the interception.

    It's a shame we didn't have a 'Russ Feingold' during the 30s
    Scott, you maroon, FDR didn't violate any criminal statutes in implementing his programs . . .

    Re: Feingold's Response to President's Admissions (none / 0) (#5)
    by Sailor on Sat Dec 17, 2005 at 05:07:05 PM EST
    Wow! I thought wingnuts were desperate when they invoked clinton and nixon, but FDR!? Howsabout dealing with King Bush. (king bush before the establishment of parliament)

    Re: Feingold's Response to President's Admissions (none / 0) (#6)
    by wg on Sat Dec 17, 2005 at 05:58:22 PM EST
    ...According to the FISA statute, a warrant is NOT needed if it is for the purpose of intercepting communications involving a foreign power or agent of a foreign power, but IS needed if it involves or even MIGHT involve a US citizen or permanent resident .. This is factually wrong, agents of a foreign power ALWAYS require warrants. Practically any non US person can be an agent of a foreign power. There are large number of situations where a US person can be an agent of foreign power too. For example Brandon Mayfield a US citizen by birth (famous Portland FBI case) was an agent of a foreign power for the purposes of FISA. The difference between "US person" vs "non US person" foreign agent is in standards required to authorize surveillance and searches. For US persons there must be probable cause to believe that their activities "may" or "are about to" involve a violation of the criminal statutes of the United States. For non US person no suspicion of anything is required for FISA to authorize surveillance and/or searches. --------------------------------------- Two exceptions where warrants are not required: a) for 14 days after a state of war declaration if exercised by the executive, and b) surveillance of communications between FOREIGN POWERS if there is no substantial likelihood US persons would be affected. In fact courts are specifically forbidden from meddling on spying on foreign powers. Note that you don't have to be a foreign entity to be "foreign power" for purposes of FISA. Domestic institutions qualify too. This is up to the FBI/DoJ.

    Millions of Americans could bring U.S intelligence services to a halt. Get an international phone directory somehow. Call people in Afghanistan, Iraq, Syria and elsewhere. Anybody will do, just pony up the money and dial. File freedom of information requests for floor plans to government buildings. Call the White House asking for Bush's EXACT location on specific days. Buy, check out and sell the most subversive books and magazines you can find. Buy 100 pounds of cheap fertilizer for 3 or 4 months in a row. Sit near an airport runway with binoculars and your car flashers on. Stand around Washington D.C or another major city taking pictures of structures with no tourist value at all. Use your imagination, add to the list. If millions of disgusted citizens did all the above and more there aren't enough intelligence and law enforcement agents in the world to keep track of it all.

    Jack Cafferty (CNN) said it best: "Who cares if the Patriot Act gets renewed. Want to abuse our civil liberties-Just do it! Who cares about the Geneva conventions? Want to torture prisoners-Just do it! Who cares about rules concerning the identity of CIA gents. Want to reveal the name of a covert operative? Just do it! Who cares about whether the intelligence concerning WMD's is accurate. You want to invade Iraq? Just do it. Who cares about qualifications to serve on the nation's highest court. Want to nominate a personal friend with no qualifications? Just do it. And the latest outrage, which I read about in "The New York Times" this morning, who cares about needing a court order to eavesdrop on American citizens. Want to wiretap their phones conversations? Just do it.... What a joke. A very cruel, very sad joke." Yet, it is not a joke, it is an outrage. Some sources on the Web quote Bush as saying that the constitution is "just a goddamned piece of paper." Maybe the quote is not accurate, but his actions show that this is what he believes. How far will we allow this abuse to go? How long will we, by our inaction, encourage such abuse of our fundamental liberties? How long will we sin by our silence and cower at the swagger and conceit of this administration? How far will be drift from our basic beliefs out of fear of terrorists both real and imagined? Is there some concealed agenda on the part of the neocons? It is starting to appear as though there is. There are some very frightening parallels with the 1930's in Germany. Please speak up and create a chorus of courage to keep the US what it claims to be--the land of the free and the home of the brave. If we allow this to continue, we are neither.

    Hey Soccerdad...are you watching all this....does this mean we finally get to impeach him?

    Re: Feingold's Response to President's Admissions (none / 0) (#10)
    by Linkmeister on Sat Dec 17, 2005 at 09:49:16 PM EST
    Feingold's statement mentions a "handful" of refusals from FISA. Josh Marshall found a table of the data from FISA's inception to 2004, put together by the Electronic Privacy Information Center. Even a handful is almost overstating the number of denials.

    Re: Feingold's Response to President's Admissions (none / 0) (#12)
    by Edger on Sun Dec 18, 2005 at 02:40:50 AM EST
    steve duncan: If millions of disgusted citizens did all the above and more there aren't enough intelligence and law enforcement agents in the world to keep track of it all. Add to that a few million people writing or calling the white house and offering to send them recordings of all their telephone conversations...

    Re: Feingold's Response to President's Admissions (none / 0) (#13)
    by soccerdad on Sun Dec 18, 2005 at 03:06:56 AM EST
    Tampa No one has the stones to impeach him. This is the old Nixon "If the president does it it legal" defense.

    Re: Feingold's Response to President's Admissions (none / 0) (#14)
    by soccerdad on Sun Dec 18, 2005 at 06:21:19 AM EST
    From capitol hill blue
    Some 10 days ago, we reported that Bush, angry in a meeting where reauthorization of the Patriot Act was questioned, called the Constitution “just a goddamned piece of paper.”
    I agonized for some time over whether or not to go with that story. I had it from two sources but went to a third one for additional confirmation before running it. As usual, we have been castigated far and wide for printing the story based on three unnamed sources and for refusing to release the names of those who gave us the information. But I don’t give a damn what these naysayers claim. I believe the story is true because I trust the people who gave me the information. I also believe the actions of the President this past weekend confirm the absolute contempt he holds for the Constitution. His arrogance in a televised interview with Jim Lehrer on Public TV and his speech Saturday declaring his intention to continue using the National Security Agency to spy on Americans clearly shows that he believes that he, as President, is above the Constitution, the laws of the land, or the people he was elected to serve.


    Re: Feingold's Response to President's Admissions (none / 0) (#15)
    by jimakaPPJ on Sun Dec 18, 2005 at 07:33:58 AM EST
    Et al – Sure seems to be a lot of confusion here. Let’s see what it says.
    i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
    Note that a US person must either be a US citizen or someone lawfully admitted to the US for permanent residence. If someone resides in the US on a visa and not a green card, they do not qualify, nor do they qualify if they get a green card under false pretenses.FISA authorizes warrantless surveillance in its opening chapter: So the question becomes, was the listen done only on qualified people.
    B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
    Guess it depends on what the meaning of “is,” is, eh? ;-) Sorry guys. Better put the party back on hold.

    Re: Feingold's Response to President's Admissions (none / 0) (#16)
    by jimakaPPJ on Sun Dec 18, 2005 at 07:36:23 AM EST
    et al - Note third paragraph should have shown as a quote except for the last sentence.

    Re: Feingold's Response to President's Admissions (none / 0) (#17)
    by soccerdad on Sun Dec 18, 2005 at 07:55:52 AM EST
    Of course PPJ ignores the real reason everyone is upset, i.e. the lack of required oversight by the courts. PPJ has trotted out the old well we're only going to spy on "them" meme as if yhat excuses the abuse of power. Nice try Whizzy, back to the kool aid I'm sure you can find another blog that will raise some other irrelevant point.

    Re: Feingold's Response to President's Admissions (none / 0) (#18)
    by soccerdad on Sun Dec 18, 2005 at 08:15:03 AM EST
    Ah yes, here what else our grand propagandists leaves out. They can also spy on an agent of a foreign government. Which is defined to be:
    (2) any person who? (A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States; (B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States; (C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; (D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or (E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B),
    Well gee we thought they were helping the terrorists. They were supporting the terrorists by their dissent etc etc etc

    Re: Feingold's Response to President's Admissions (none / 0) (#19)
    by jimakaPPJ on Sun Dec 18, 2005 at 08:23:08 AM EST
    SaDly - If you are upset about the law, change it. But somehow I don't believe you. And yes.. we are spying on "them." That's what the law allows, that what we have done, and thank goodness for Bush having some commonsense. And since you agree that the act is legal, tell me about the "abuse" of power you rant about?

    Re: Feingold's Response to President's Admissions (none / 0) (#20)
    by john horse on Sun Dec 18, 2005 at 08:24:33 AM EST
    the real reason everyone is upset, i.e. the lack of required oversight by the courts.
    Soccerdad, Good point. I would also add that it involves authorization. Bush claims that he can do this because of his "inherent" right as President. As Senator Feingold points out "If that's true, he doesn't need the Patriot Act because he can just make it up as he goes along. I tell you, he's President George Bush, not King George Bush. This is not the system of government we have and that we fought for." By the way, according to the NY Times Bush was wiretapping "Americans", not foreign nationals residing in the US.

    Re: Feingold's Response to President's Admissions (none / 0) (#21)
    by Edger on Sun Dec 18, 2005 at 08:28:06 AM EST
    Watch your head near those ceiling beams, Whizzy... ;-)

    jimbo, why do you even bothering to post? everybody knows what you're going to say before you post, you're as predictable as a corrupt republican.

    SD, PPJ is here telling us that he shouldn't be allowed near any zebra crossings ;).
    Note that a US person must either be a US citizen or someone lawfully admitted to the US for permanent residence
    a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence,
    Guess it depends on what the meaning of “is,” is, eh? ;-)
    Like this guy here?"
    The writer was a relatively low level Brit writing a summary of what he thought was happening. And, again, you have the use of the word "but" when, if you want to say intellogence was being skewed, the word "and" should have been.
    Link et al, BTW, substantial numbers of members doesn't mean 'all' the last time I checked. and as jh pointed out in another thread: By the way, according to the NY Times Bush was wiretapping "Americans", not foreign nationals residing in the US. TTFN, Whizzy.

    Re: Feingold's Response to President's Admissions (none / 0) (#24)
    by jimakaPPJ on Sun Dec 18, 2005 at 10:32:48 AM EST
    bignut12 writes:
    you're as predictable as a corrupt republican.
    But alas not near as rich. I tried to write a book but no publisher would give me a million dollar advance... BTW - Care to comment on the quotes I provided, or do you just want to complain about someone providing you with what the law actually says. Darkly - The NYT is making a claim. And, secondly, it very likely is legal. Read my comment, and SD's. As to your other blatherings, shall we return to those days of yore when we pick on each other's writing skillss? I seem to remember you fled to the old trick of writing gibberish. So go argue the law. Which says:
    )B there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
    Guess we need to figure out what "substantial likelihood" is, eh? BTW - Powell just came out stating that the intelligence agencies didn't come clean with the administration. Opps there goes another fake claim by the Left. edgey - Since you deny that car bombers are terrorists, I understand that you believe that no one could qualifiy as a legal wire tap.

    Re: Feingold's Response to President's Admissions (none / 0) (#25)
    by Sailor on Sun Dec 18, 2005 at 11:44:12 AM EST
    BTW - Powell just came out stating that the intelligence agencies didn't come clean with the administration.
    Riiiiight, the admin doctors intelligence at the admin's request and powell, who lied to the UN is shocked, SHOCKED I tell you ...
    But alas not near as rich.
    funny, consid ering how this poster is always bragging about how the admin's tax cuts benefit him so much. If you aren't rich, the 'tax cuts' don't benefit you at all. \Uhh whizzy, the quotes you provided were rw lies about the actual FISA laws. Next!

    Re: Feingold's Response to President's Admissions (none / 0) (#26)
    by soccerdad on Sun Dec 18, 2005 at 12:44:07 PM EST
    PPJ - can you be any more dishonest, didn't think so. At least you have no pride which allows you to consistenly post here and make a fool out of your self

    Re: Feingold's Response to President's Admissions (none / 0) (#27)
    by john horse on Sun Dec 18, 2005 at 12:55:31 PM EST
    Lets be clear about this issue. The President is not above the law. He does not have the authority to wiretap Americans without a court order. Even my rightwing friend PPJ agrees on this point (if I understand his explanation of FISA, it only allows wiretaps for foreigners residing in the US "without a green card"). So the question is whether Bush authorized the wiretapping of American citizens without a court order. According to the NY Times, he did. This has been corroborated by Condoleeza Rice today on Meet The Press. She is asked by Russert about what authority the President had to wiretap "Americans" without a court order. Notice that she does not deny that this is what Bush did.

    The NYT is making a claim. And, secondly, it very likely is legal. Read my comment, and SD's. 'substantial number' doesn't mean the same as all, PPJ. This is the second time I've had to point this out to you. You gonna try for 3, so you can qualify for the Whizzy lifetime troll award? Typical, isn't it, SD? The best response to Whizzy is to greet his claim with all it deserves: SS, DD. shall we return to those days of yore when we pick on each other's writing skillss? Why, are you doing your Gollum imitation now, PPJ? It also helps if you don't cheat by helping your opponent in the beginning rounds. Just a little friendly advice. Besides, anyone who remembers the weekend you refer to remembers that you never kept your promise to correct my spelling on the posts that I made that Saturday, a shock to all of us who thought you were a man of your word! ;) Since you can't abide by the plain facts of the English language, arguing law with you would be a sleeveless errand, IMHO. TTFN, Whizzy

    Re: Feingold's Response to President's Admissions (none / 0) (#29)
    by jimakaPPJ on Sun Dec 18, 2005 at 08:31:49 PM EST
    Darkly - Nope, I do, however, remember the gibberish you wrote in a failed attempt to run and hide. And one more time: The law says:
    there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
    I have no idea where your quote re numbers comes from. But if you will bother to read, the guide says no substantial likelihood.... That could apply to hundreds..is that substantial? What does "is" mean? Fuzzy thinking, Darkly. And no, just imitating you. Ta Ta - Fuzzy Sailor - The tax cuts benefited all of us. Even you. Care to look at the post - pre tax tables. Of course if you were paying no taxes the cut didn't net you much. Even in the world of the Left, anything times zero equals zero. SD - It must be hell to always be associated with a losing cause.

    I said that I wouldn't argue the law with you, and the fact that you bring up a section other than the one I was talking about shows my decision as correct. And, as usual PPJ, you forget to add that you were the only commentator who characterized my creative spelling as 'gibberish', and you don't have the cool 'skills' that I do to carry out such writing over the span of an entire post. Your futzy post is to be expected, as an expression of envy, no doubt, but there you go. Have fun today, PPJ aka dim.

    Re: Feingold's Response to President's Admissions (none / 0) (#31)
    by soccerdad on Mon Dec 19, 2005 at 07:28:19 AM EST
    PPJ I would rather be with a losing cause then to be a dishonest unethical, immoral lying piece of trash like you.

    SD, those are harsh words for PPJ aka dim. I think you omitted 'delusional', 'tries to adjust reality to fit his world view', mud-throwing', 'nasty-tempered' and 'incompetent at invecative' in your list. Hope this helps you in your continuing description of our unbeloved card remora. and I almost forgot: TTFN, Whizzy aka dim.

    You left out disengenous and pretentious.

    Re: Feingold's Response to President's Admissions (none / 0) (#34)
    by Edger on Mon Dec 19, 2005 at 10:25:44 AM EST
    DA: Hope this helps you in your continuing description of our unbeloved card remora. An ant crawls up a grass blade and slides down again, repeating the process over and over. "To what end?" asks Daniel Dennett, a philosophy professor and director of the Center for Cognitive Studies at Tufts and a leading defender of evolutionary theory. "Is it a fluke?" Yes, it is, he answers: specifically, the lancet fluke, a parasite that makes the ant act in ways that threaten its own survival. The fluke is one of several parasites that infect their host’s brain, inducing suicidal behavior to advance the parasite’s life cycle. "Does anything like that ever happen to humans?" Dennett asks. He points to religions, political ideologies, and high human ideals like freedom and democracy. "What we have here are ideas to die for," he says.