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I think I smell something burning....


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But that is the rub, this President's Administration has been systematically unwillingly to put the info out there and engage in a full-scale debate.  Clinton did that regularly and managed to win or modify and compromise and still get his way, despite what the other side was saying. 

 

This President and his minions are too stubborn to see that there are many ways to skin a cat. No matter how you do it, it will still taste like chicken, so give a little, as long as it gets you where you want. 

 

But these, guys aren't able to, too lazy, or too arrogant and don't want to do the hard work to pull it off.  It is more than just P.R., but having the intellect stamina and patience to outduel the otherside with a smile on your face, a sense of humor, while you can't stand who you are dealing with.  That is what makes a good Politician.

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No, there isn't any debate. We no longer allow debate. It's not even debate. Bad word. We now operate from who manages TV the best. Got Kennedy elected over Nixon. In the background, a lot of people got screwed.

 

You just described the Clinton Press Machine, which I don't consider politically motivated as much personally motivated. Political clans. Clinton and the Dem party at the time was a match made in heaven. Perot was the icing, and the opportunity. Now, since no one in this country has an original or logical thought anymore, the Dems keep looking for a TV answer.

 

Or, is that what you are saying? I'll blow off the blow smoke up our ass part.

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As for the specifics of a search, how do you know they are only listening to calls from foreigners to US Citizens?  How do you know that they aren't listening to calls to John Q Uscitizen from his cousin Pierre Frenchcitizen about an upcoming family reunion?  Because they say they aren't?  Is that what passes for safeguarding constitutional rights, a politician's promise not to abuse them?

 

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I have no personal knowledge of whom the administration is wiretapping; all I have to go by is what the administration said, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. I tend to believe the administration because of the wiretap oversight by Democrat and Republican representatives alike. Granted it was not judicial oversight but my stance on this particular issue during a time of war is a pragmatic one not a procedural one.

 

The aim of these wiretaps is to gather information not to prosecute. Not to worry, the illicit activities during your family reunion is safe from prosecution. Even if it were not the wiretaps would be found to be improper and thrown out in a U.S. court. As far as the privacy issue, I believe there can be no expectation of privacy once the conversation leaves the country or connects to a foreign country.

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Or, is that what you are saying? I'll blow off the blow smoke up our ass part.

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Exactly, a false debate, but they laid it out there and got away with it. Of course it was rigged, but folks felt like they participated and let it go....Team Reagan and Team Clinton were great at it.

 

Team Bush sucks at it, which is why I question their stamina and patience.

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Exactly, a false debate, but they laid it out there and got away with it.  Of course it was rigged, but folks felt like they participated and let it go....Team Reagan and Team Clinton were great at it. 

 

Team Bush sucks at it, which is why I question their stamina and patience.

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I question their perception and ego, but I've already bitched in another thread, which is also pointless.

 

They are also lame duck, early. I think that is the only tactic left. Bush is going away, this wasn't about Republican-Democrat. There's a philosophy to the future I don't personally disagree with. But it's a newer concept, and they royally screwed up in execution. Not even now, last two years would have made a difference.

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Exactly, a false debate, but they laid it out there and got away with it.  Of course it was rigged, but folks felt like they participated and let it go....Team Reagan and Team Clinton were great at it. 

 

When it comes to describing what's wrong with the Bush administration and what's right with others, that is as concise and clear a statement as I've ever seen.

 

Problem was, Clinton sold a bucket of sh--. His foreign policy was non-existent...and his administration was so good at marketing, he managed to sell a non-existent foreign policy as a foreign policy. :D:lol: This administration is practically the exact opposite: they have a foreign policy, it's actually a fairly well-formulated and self-consistent one (note, however, that neither of those actually means it's good), but they can't sell it...

 

Team Bush sucks at it, which is why I question their stamina and patience.

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...or won't sell it. Probably a combination of both, and directly related to the confronational attutude vis-a-vis the press this administration purposely formed early on (again, as opposed to Clinton, who courted the press, and was largely loved by them even when they were beating the living sh-- out of him). Tough to deliver your message when you've alienated your messengers by telling them you don't think its their job to deliver the message. :lol::)

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When it comes to describing what's wrong with the Bush administration and what's right with others, that is as concise and clear a statement as I've ever seen. 

 

Problem was, Clinton sold a bucket of sh--.  His foreign policy was non-existent...and his administration was so good at marketing, he managed to sell a non-existent foreign policy as a foreign policy:doh:  :lol:  This administration is practically the exact opposite: they have a foreign policy, it's actually a fairly well-formulated and self-consistent one (note, however, that neither of those actually means it's good), but they can't sell it...

...or won't sell it.  Probably a combination of both, and directly related to the confronational attutude vis-a-vis the press this administration purposely formed early on (again, as opposed to Clinton, who courted the press, and was largely loved by them even when they were beating the living sh-- out of him).  Tough to deliver your message when you've alienated your messengers by telling them you don't think its their job to deliver the message.  :doh:  :rolleyes:

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P.S. So do Senate and House Dems stink at it, but are getting a little better.

 

Up until recently, the only folks any good at it were House Republicans, that may change some with Delay struggling. But despite recent glitches, I think they will probably rebound and do fairly well after the next election assuming they remain in control.

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I have no personal knowledge of whom the administration is wiretapping; all I have to go by is what the administration said, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.  I tend to believe the administration because of the wiretap oversight by Democrat and Republican representatives alike. Granted it was not judicial oversight but my stance on this particular issue during a time of war is a pragmatic one not a procedural one.

 

The aim of these wiretaps is to gather information not to prosecute.  Not to worry, the illicit activities during your family reunion is safe from prosecution.  Even if it were not the wiretaps would be found to be improper and thrown out in a U.S. court. As far as the privacy issue, I believe there can be no expectation of privacy once the conversation leaves the country or connects to a foreign country.

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There was no oversight by democrat and republican representatives alike, not even close. A handful were informed of the program and told it was classified so that if they breathed a word of it, they were comitting treason. They were not shown who was being tapped, no details, nada, zip, zero.

 

Sorry, this is the same lot that told us all about WMD's, I'm not trusting my constitutional rights to their promises.

 

Please tell me why it is that the ability to tap anyone they want for up to a whole year for the low, low price of simply informing a few congressional big wigs and the FISA court is not enough?

 

Really, if this were a democrat doing this, the impeachment hearing would be in their tenth week by now.

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Please tell me why it is that the ability to tap anyone they want for up to a whole year for the low, low price of simply informing a few congressional big wigs and the FISA court is not enough?

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Because it's a national security issue involving overseas activities, not a criminal law issue involving domestic activities, therefore it's not covered by the 4th Amendment.

 

Agree or disagree (I disagree, as a point of fact)...but that's apparently the reasoning, and it's a perfectly valid reasoning.

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Because it's a national security issue involving overseas activities, not a criminal law issue involving domestic activities, therefore it's not covered by the 4th Amendment. 

 

Agree or disagree (I disagree, as a point of fact)...but that's apparently the reasoning, and it's a perfectly valid reasoning.

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Forget the Fourth then, what about FISA? By its own terms, I think it absolutely applies. By its own terms, it allows the warrantless taps I described. Many who defend this thing, do so by arguing its outcome, nabbing terrorists. Since that is the standard they are using, that is how I approach it with them by asking the question over and over, why couldn't the same terrorists be nabbed under FISA which allows them to tap their proverbial warrantless fannies off? That is usually when they stop replying. :rolleyes:

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Forget the Fourth then, what about FISA?  By its own terms, I think it absolutely applies.  By its own terms, it allows the warrantless taps I described.  Many who defend this thing, do so by arguing its outcome, nabbing terrorists.  Since that is the standard they are using, that is how I approach it with them by asking the question over and over, why couldn't the same terrorists be nabbed under FISA which allows them to tap their proverbial warrantless fannies off?  That is usually when they stop replying. :rolleyes:

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You know FISA accomplished the same goals, only legally. I know FISA accomplished the same goals, only legally. Even a complete simpleton could read it and know that FISA gave the Bush administartion everything that it could ever want to tap anyone that their hearts desired, and legally. Whether through stupidity, arrogance, or malfeasance, the Bush administration felt it necessary to skirt a law that even under the strictest interpretation gave them all the power they could have asked for, provided they just let a court, stacked in their favor BTW, for a warrant after the fact. It's like asking to use a car, having someone give you the keys, and you smash the window and hotwire it any way.

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Okay Mickey, little more info about the FISA court and wiretapping warrants. Guess what? They will not give the administration a warrent unless they can confirm the details of the "overheard" conversation. Otherwise the court will make them stop monitoring the intrested party within your wonderful 72 hours. Isn't that neat? So you can get a warrent anytime you want and yeah you can listen for 72 hours, but FISA says they will not permit any of the evidence from the actual prewarrent conversations to be used as a basis for the warrent. Had a good buddy of mine explain that, who like you happens to be a lawyer. That turned the little light bulb on in my head not too long ago and now I see why the administration used other rules in which to continue wiretapping.

 

Do you understand that? Agree or not, the only ones that will be monitored are those that are in contact with "known" bad guys already from overseas. So it begs to question why these folks are calling up bad guys in the middle of the night and striking up phone conversations.

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Forget the Fourth then, what about FISA?  By its own terms, I think it absolutely applies.  By its own terms, it allows the warrantless taps I described.  Many who defend this thing, do so by arguing its outcome, nabbing terrorists.  Since that is the standard they are using, that is how I approach it with them by asking the question over and over, why couldn't the same terrorists be nabbed under FISA which allows them to tap their proverbial warrantless fannies off?  That is usually when they stop replying. :rolleyes:

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The argument is that FISA does not apply in wartime, and the administration is saying that when Congress approved the use of force after 9/11 against non-nation-state terrorists it was tantamount to declaring war on a nation state.

 

If you don't like that interpretation, take it to SCOTUS (and I believe we've had this discussion)

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Forget the Fourth then, what about FISA?  By its own terms, I think it absolutely applies.  By its own terms, it allows the warrantless taps I described.  Many who defend this thing, do so by arguing its outcome, nabbing terrorists.  Since that is the standard they are using, that is how I approach it with them by asking the question over and over, why couldn't the same terrorists be nabbed under FISA which allows them to tap their proverbial warrantless fannies off?  That is usually when they stop replying. :doh:

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Because it's a national security issue involving overseas activities, not a criminal law issue involving domestic activities, therefore it's not covered by the FISA.

 

Agree or disagree (I disagree, as a point of fact)...but that's apparently the reasoning, and it's a perfectly valid reasoning.

 

(Sorry, I thought you were smart enough to equate the 4th with FISA. My bad. :rolleyes:)

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Two groups just filed summary judgement motions...SCOTUSblog

The American Civil Liberties Union and the Center for Constitutional Rights, which launched parallel lawsuits against the domestic spying on Jan. 17 in Detroit and New York, on Thursday filed motions for summary judgment in those cases -- in other words, motions to get an early ruling on the program as a legal matter, without waiting for a trial to explore the facts of the surveillance. A summary judgment motion could be granted only if there were no dispute over key facts. The two groups are arguing that the Administration's vigorous public defense of the program and officials' widespread public discussion of the program's rationale and scope mean that the essential facts are already clear, and are undisputed. President Bush's own comments, beginning with his radio address right after the program's existence was disclosed by The New York Times, form a key part of the factual record, as do statements and testimony from Attorney General Alberto R. Gonzales.

[...]

The new motions by the advocacy groups make the argument that the domestic spying program, conducting without court-approved warrants, violate two federal laws, violates separation of powers principles because it exceeds presidential authority and violates limits set by Congress, and violates free speech rights under the First Amendment and privacy rights under the Fourth Amendment.

 

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The new motions by the advocacy groups make the argument that the domestic spying program, conducting without court-approved warrants, violate two federal laws, violates separation of powers principles because it exceeds presidential authority and violates limits set by Congress, and violates free speech rights under the First Amendment and privacy rights under the Fourth Amendment.

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That separation of powers argument sounds like a load of horseshit - if you're arguing that something is illegal on its face, how do you also argue that it's vested in another branch of government, and in the hypothetical case that the actions ARE legal...what are they, legislative? Judicial? Everything before that...well, yeah, no kidding.

 

Problem being, again, that it's relatively easy to argue the elephant in the room again: that, as a military action in war time, none of those apply. The motions should have thrown "posse comitatus" in for good measure, just to dodge that obvious argument.

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Okay Mickey, little more info about the FISA court and wiretapping warrants.  Guess what?  They will not give the administration a warrent unless they can confirm the details of the "overheard" conversation.  Otherwise the court will make them stop monitoring the intrested party within your wonderful 72 hours.  Isn't that neat?  So you can get a warrent anytime you want and yeah you can listen for 72 hours, but FISA says they will not permit any of the evidence from the actual prewarrent conversations to be used as a basis for the warrent.  Had a good buddy of mine explain that, who like you happens to be a lawyer.  That turned the little light bulb on in my head not too long ago and now I see why the administration used other rules in which to continue wiretapping. 

 

Do you understand that?  Agree or not, the only ones that will be monitored are those that are in contact with "known" bad guys already from overseas.  So it begs to question why these folks are calling up bad guys in the middle of the night and striking up phone conversations.

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Wrong. Outstandingly wrong.

 

I was talking about a different provision apart from the 72 hour emergency provision you are referring to. Addressing that provision, under the emergency provision, the AG certifies the tap and then they have 72 hours to listen in while they are gettig their application for the warrant from the FISA court. The tap has to end when they get the info they were looking for, the application to for the warrant is denied or within 72 hours of the AG's certification, whichever is earliest. Of course, if the warrant is granted, they can continue listening in. The only time the info is not allowed in court is when the tap was not ultimately approved by the court. When that happens, it means that the court decided that the the AG's certification was bogus. As we know, the court approves the all applications at about a 99.5% clip. So bottom line, the info is allowed in court if it was in fact a bad guy they were tapping as the AG certified when he started the emergency tap.

 

 

Here are the provisions:

 

"In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial..."

 

and:

 

 

"If the United States district court pursuant to subsection (f) of this section determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure."

 

The law authorizes a 72 hour emergency tap and use of the evidence thereby obtained as long as, when the application is ultimately heard by the court, the order is, after the fact, granted. Thus, such info would be "lawfully authorized and conducted" and as a result, admissible in court.

 

Quite apart from the emergency orders is the provision which allows them to tap a guy for a whole year with extensions available simply by notifying some big wigs and the court.

 

You know, even if your friend was right and he isn't, your argument isn't that the taps were legal, just that they were justified albeit illegal. Its what OJ's attorneys might have called the "they needed killing" defense. :lol:

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Wrong.  Outstandingly wrong.

 

...

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Mickey, I'd like to discuss a different issue. I still see a glaring hole in the FISA procedures which I do not know of a way to get around without giving the executive branch waaay too much authority. That is, FISA does not address wire taps, intercepts, or whatever you want to call them that may be required to keep tracking an agent of a foreign power between the time the individual becomes a suspected terrorist and when the (deputy) AG actually "authorizes" the wire tap. Your posts lead me to believe that you believe these are acceptable under FISA, I still don't see that. I recall your post stating that the AG certification is simply a notification and I agree with that. However, I still do not see anything in the statute that allows for surveillance prior to AG authorization.

 

Based on the manner of how quickly these people change phones and change contacts, I can see the US not acting (listening) during this gray time providing an extreme advantage to the bad guys.

 

If I am misreading something in the statute, can you please point out to me what it is I am missing / misreading? If I am not misreading something, I can understand why the executive wants to work outside of FISA.

 

Although the information gathered is to be used for national security interests, the govt. DOES try to prosecute suspected terrorists (the guys from Lackawana, Jose P., etc.). If the information used to prosecute the suspected terrorists was obtained based off of information obtained during the FISA gray time, wouldn't a good lawyer manage to get everything after that thrown out? I know he would attempt to get everything thrown out, I don't know if he'd be successful. Perhaps you could shed some insight on that. If FISA isn't applicable, and the taps fall under executive priviledge then the information wouldn't get tossed out. (At least not for having been obtained "illegally".)

 

You are right that this is a very serious issue. The only way I see to cover the "gray time" is to give much lower level people the authority to authorize these taps, which WILL result in a lot of the abuse that you suspect is already ongoing. I can not say that that is remotely a good solution to this problem.

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Mickey, I'd like to discuss a different issue.  I still see a glaring hole in the FISA procedures which I do not know of a way to get around without giving the executive branch waaay too much authority.  That is, FISA does not address wire taps, intercepts, or whatever you want to call them that may be required to keep tracking an agent of a foreign power between the time the individual becomes a suspected terrorist and when the (deputy) AG actually "authorizes" the wire tap.  Your posts lead me to believe that you believe these are acceptable under FISA, I still don't see that.  I recall your post stating that the AG certification is simply a notification and I agree with that.  However, I still do not see anything in the statute that allows for surveillance prior to AG authorization.

 

Based on the manner of how quickly these people change phones and change contacts, I can see the US not acting (listening) during this gray time providing an extreme advantage to the bad guys.

 

If I am misreading something in the statute, can you please point out to me what it is I am missing / misreading?  If I am not misreading something, I can understand why the executive wants to work outside of FISA. 

 

Although the information gathered is to be used for national security interests, the govt. DOES try to prosecute suspected terrorists (the guys from Lackawana, Jose P., etc.).  If the information used to prosecute the suspected terrorists was obtained based off of information obtained during the FISA gray time, wouldn't a good lawyer manage to get everything after that thrown out?  I know he would attempt to get everything thrown out, I don't know if he'd be successful.  Perhaps you could shed some insight on that.  If FISA isn't applicable, and the taps fall under executive priviledge then the information wouldn't get tossed out.  (At least not for having been obtained "illegally".)

 

You are right that this is a very serious issue.  The only way I see to cover the "gray time" is to give much lower level people the authority to authorize these taps, which WILL result in a lot of the abuse that you suspect is already ongoing.  I can not say that that is remotely a good solution to this problem.

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From the definitions section of FISA:

 

“Attorney General” means the Attorney General of the United States (or Acting Attorney General) or the Deputy Attorney General."

 

Under the FISA provision for emergency orders:

 

"Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

 

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

 

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

 

 

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance."

 

 

We are not talking about a written certification chock full of facts and details justifying the action. The AG simply has to determine that an emergency exists and if he does, the tap is authorized. You are right in that a field agent can't authorize taps but in an emergency, that isn't really a big issue. If there is any idea that an emergency is afoot such as a pending attack, you go ahead and tap even if it then takes an hour or two to get the AG himself on the phone for him to okay it. If it is an emergency involving the national security of the United States, the AG should and I beleive is, available almost immediately. EVen if he isn't, you could use the DAG or any one serving as "Acting" AG which is anyone appointed as such to cover an absence. Getting the AG, etc, on the horn to say, "okay" shouldn't really take that much time. Don't they need time anyway to put the tap in place? Maybe there is a problem finding someone for 30 minutes or so but that doesn't stop much.

 

They would simply tap anyway and the worst that happens is that they lose the use of the info in court gathered in the first 30 minutes or so before they found the AG. They would still have the info needed to stop the attack. The only reason you would need that info would be because the guy tapped was in fact a terrorist up to no good so I doubt that a conviction would be lost because of that unusable 30 minutes. Our prosecutors would have to be pretty bad if they couldn't get a conviction of a terrorist who was so active that tapping his phone presented an emergency. Besides, with the new detention rules, we could just send the guy to Gitmo without trial anyway. Who needs admissible evidence for a conviction anyway?

 

Stopping attacks and nabbing terrorist doesn't have anything to do with this. All we are really talking about is admissibility in court and even that, provided they have a hot line established to the AG, the DAG or Acting AG, it shouldn't be an issue outside of a "24" episode. If the AG and the DAG don't like being on call 24-7, they need to get another job.

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From the definitions section of FISA:

 

“Attorney General” means the Attorney General of the United States (or Acting Attorney General) or the Deputy Attorney General."

 

Under the FISA provision for emergency orders:

 

"Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

 

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

 

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance."

We are not talking about a written certification chock full of facts and details justifying the action.  The AG simply has to determine that an emergency exists and if he does, the tap is authorized.  You are right in that a field agent can't authorize taps but in an emergency, that isn't really a big issue.  If there is any idea that an emergency  is afoot such as a pending attack, you go ahead and tap even if it then takes an hour or two to get the AG himself on the phone for him to okay it.  If it is an emergency involving the national security of the United States, the AG should and I beleive is, available almost immediately.  EVen if he isn't, you could use the DAG or any one serving as "Acting" AG which is anyone appointed as such to cover an absence.  Getting the AG, etc, on the horn to say, "okay" shouldn't really take that much time.  Don't they need time anyway to put the tap in place?  Maybe there is a problem finding someone for 30 minutes or so but that doesn't stop much. 

 

They would simply tap anyway and the worst that happens is that they lose the use of the info in court gathered in the first 30 minutes or so before they found the AG.  They would still have the info needed to stop the attack.  The only reason you would need that info would be because the guy tapped was in fact a terrorist up to no good so I doubt that a conviction would be lost because of that unusable 30 minutes.  Our prosecutors would have to be pretty bad if they couldn't get a conviction of a terrorist who was so active that tapping his phone presented an emergency.  Besides, with the new detention rules, we could just send the guy to Gitmo without trial anyway.  Who needs admissible evidence for a conviction anyway? 

 

Stopping attacks and nabbing terrorist doesn't have anything to do with this.  All we are really talking about is admissibility in court and even that, provided they have a hot line established to the AG, the DAG or Acting AG, it shouldn't be an issue outside of a "24" episode.  If the AG and the DAG don't like being on call 24-7, they need to get another job.

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Definition of "emergency" would send this into another gray area. Would losing the "chatter" about an attack that may be weeks away by losing track of a chain of conversations constitute an "emergency"? I would say that under several circumstances it could.

 

Do you have an idea of how many communications like this we are talking about? (I do not which is why I am asking.) If we are talking a handful per week, then it wouldn't be terribly onerous to meet this requirement. If we are talking 100's or 1,000's, I could definitely see this becoming a paperwork nightmare.

 

I do appreciate your attempts to help me understand the legalese of this issue.

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