This reminds me of a study I took part in years ago on the theory how liberties are tighten and given up during threatening times.

This worries me less than seining up conversations. There's a lot less ambiguity in bank records than in conversations.

Yet another program that isn't illegal being revealed by the NYT, to the detriment of national security. In 1976, Supreme Court ruled that the right to privacy does not extend to protect information in the hands of third parties, such as SWIFT, involving financial transactions. Congress had been briefed and supported the program.

Perhaps the Administration can't do anything against the NYT for revealing yet another Classified program, but they should prosecute the internal sources.

This story was broken by the New York Times, the Washington Post, and the Wall Street Journal, all on the same day. I have yet to see Tony Snow attack the latter two for this. Another political tempest in a teapot.

Johnny, do we have enough information on what they are doing to be sure it's legal? I know the warrantless eavesdropping was justified in a strange way, but ultimately it's not legal and the White House has been brought to the table by Congress because of that,
close to an agreement to subject those monitorings to the FISA court. How do we know this is clearly legal, and not "legal by Presidential fiat", as was claimed for earlier surveillance?

Well, first, the wiretaps were and are legal. Congress can say whatever they want, but they are one branch of Government, and they are not superior to the Executive branch. The President has the inherent constitutional right, as chief executive and commander-in-chief, to conduct warrantless surveillance for national-security purposes, both at home and abroad. This authority has been affirmed by the courts that have discussed the question, although they state that the admissability of the information obtained through such action depends on the specific circumstances in each case. And the FISA court's appellate panel acknowledged that FISA does not extinguish the president's independent constitutional authority in the arena where the warrantless surveillance was conducted.

Regarding the legality, of the bank monitoring, I restate what I said before:

As for culpability of the press, I think running the story was irresponsible, but not criminal. However, I think the reporters should be subpeonaed to reveal their sources, and those sources should be prosecuted for revealing confidential information.

Each branch is supposed to be balanced against each other - this is how the system was set up. The President is NOT above the law, and is required to obey laws that Congress has passed and Presidents have signed. I'm a conservative, remember? You'll have to show me where in the constitution it clearly states that the Executive gets this particular athority, without any of that activist interpetation.

Also, Hi Xilo, welcome to the forum
I like your point, but feel I should mention that the community tends to try and avoid much of the internet shorthand. Anyway, welcome aboard!

By the way: what constitutional precedent is the President using to say that his wire-tapping/bank-record-tapping is legal? I mean, I know he says it's legal and constitutional, but you can't just say that without there being something to back it up. Is there an amendment that supposedly backs him up, or an obscure statute that covers government surveillance of its citizens? Is he talking about the Alien & Sedition acts of 1796 (the ones that, according to David McCullough, almost got John Adams kicked out of office)? Or is it that if it isn't specifically prohibited by the Constitution, then it's constitutional?

Just curious, because I think it's important to know what evidence Bush is using to back up his claim of constitutionality in this whole thing. Maybe one of you know.

ETA: Nevermind. It appears Johnny already answered this question a few posts back. Still, I'm not quite sure I follow it. I'm not up to speed on my FISAs and my SWIFTs.

Johnny, I think your FISA analysis is wrong, but that's another topic. The privacy issue notwithstanding, what are our legal obligations regarding the use of SWIFT data? Are there any? If you don't know, that's fine, I just haven't had time to look into that.

I believe that there are a number of leaks we need to deal with, if we adopt this stance. The leaks from the White House on Iraqi WMDs, the one that busted an ongoing Al Quaeda investigation and other similar national security leaks that were clandestinely provided to the press to support the President's political positions would be an obvious starting point, if we are serious about this.

On the other hand, it's pretty clear this is completely partisan and has nothing to do with any concerns for national security.

The Post, the LA Times, and WSJ were all equally irresponsible for running the story. I saw it in the NYT, so I mentioned them specifically. I can't speak for 'pundits', I can just say that I typed the NYT above because I didn't feel like listing every paper that ran the story once it was leaked.

The only ones I have seen reported are that it led to the capture of "Hambali," who is believed to have planned the bombing of a Bali resort in 2002, and the prosecution and conviction of Uzair Paracha. Paracha is from Brooklyn, was convicted of terrorism-related charges, for laundering $200,000 through a Karachi bank to assist an al Qaeda terrorist in Pakistan.

I never said that the President was above the law, only that he is not subordinate to Congress.

Into Constitutional law. Article 2, Section 1 vests the entirety of the 'executive power' into a single person, the President. By contrast, under Article I, Congress enjoys only those legislative powers "herein granted". The general agreement is that this vesting of executive power confers broad authority to engage in foreign relations.

Combine this with Article 2, Section 2, which expressly names the President as Commander in Chief. There is plenty of discussion around 'making war' vs. 'declaring war', but we can thankfully skip over that. What is relevant is that these two sections combined provide the basis for the President to conduct intelligence operations. Penetrating enemy communications is as much an incident of war-fighting as bombing enemy targets is.

Ever since it became possible to intercept wire communications, Presidents have done so. All of them, going back to FDR, claimed that the powers granted to the chief executive under Article II of the Constitution allowed them to conduct such wiretapping for national-security purposes.

The Supreme Court, in Katz v. United States (1967), held that Fourth Amendment protection against unreasonable searches extended to electronic surveillance "” meaning that eavesdropping without a judicial warrant was now presumptively unconstitutional. Congress followed by enacting a comprehensive scheme, known as "Title III," that required law-enforcement agents to obtain a court warrant for probable cause of a crime before conducting electronic surveillance. However, both Katz and Title III recognized inherent presidential authority to conduct national-security monitoring without being bound by the new warrant requirement.

In 1972, the Supreme Court held that a judicial warrant was required for national-security surveillance if the target was a purely domestic threat. However the Court exempted from its ruling the "activities of foreign powers or their agents".

In 1978, Congress passed FISA, whose purpose is to do in the national-security realm what Title III had done in law enforcement. The question is if the president has inherent authority to conduct national-security wiretapping as a function of his constitutional warrant. Every President since FISA was passed argued that FISA cannot limit his power in this area. A constitutional power cannot be altered or limited by statute. Period.

To my limited research ability, it seems that only one decision has ever been rendered by the Foreign Intelligence Court of Review "” the appellate court created by FISA to review FISC decisions. In 2002, the Court of Review overruled FISA regarding the Patriot act and observed that:

That being said, in both cases, the Bush administration vetted the programs, including at the Justice Department, to confirm their legal footing. It briefed the bipartisan leadership of Congress (including the intelligence committees) at least a dozen times. It informed the chief judge of the federal Foreign Intelligence Surveillance Court (FISC) of both programs. And, in the case of the NSA wiretap program, modified the program in mid-2004 in reaction to concerns raised by the chief judge, national-security officials, and government lawyers.

Both programs are legal uses of the President's authority to protect the USA. I wonder at the efficiency of data-mining programs in general, but neither of these programs oversteps the authority of the Executive branch. In both cases, the President briefed Congress, so there weren't any 'secret programs'. And in both cases, the press acted irresponsibly by reporting the existence of the programs.

This is not a matter of free speech or free press. This is endangering the national security of the USA. Oliver Wendell Holmes' said "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic." If both of these programs are legal, what did the press do but shout 'fire'?

If it was used in prosecuting someone, then wouldn't the program have been outed by bringing up the information in court?

Two out of at least tens of thousands, not a very good record.

Terrorist funds-tracking no secret, some say

It appears that the program wasn't quite as secret as some are pretending.

You elide that FISA was specifically intended to provide oversight and prevent Nixon-like abuses of wiretapping. Bush differs from previous presidents in claiming that actions that were not previously contested by any other president are now not subject to FISA. That is, actions that were permissible without notification for a short period are now interpreted as not needing FISA approval at all. This is beyond what was understood in the past, and again, if your reading was correct, the White House would not now be negotiating with Congress to bring these wiretaps under FISA oversight. Last week, it was reported that this was close to finished.

The briefing of Congress on intelligence matters under the Bush presidency has for the first time restricted notification to two members of the Intelligence committee and two others, and also against precedent warned them against disclosure. This means that the very people who would be in a position to raise the issue within the oversight structure are now by virtue of the briefing legally prevented from bringing it under oversight, thus keeping it secret from the oversight committee and from FISA. This is again not standard procedure and has been formally protested by the people involved as insufficient.

All of this fails the Hillary test, much less the Nixon/Cheney test.

The press acted in the role of whistleblower, or more properly, responded to the reports of whistleblowers. The easvesdropping programs were definitely illegal; the banking stuff probably is not but I don't know what we agreed to about the database (and I'm far less concerned about it than the eavesdropping). Your interpretation deliberately states that Congress has no right of oversight over the Executive, which I believe is a dangerous path to set foot on, as evidenced by the damage done to the country by the Bush Administration in walking that thorned trail.

Basically, your view would be that if there doubts about the legality of Presidential actions, the people involved should shut up, and the press should not publish these doubts, especially if claims of national security are made. I think this is a problem. We can't just grant the Executive over-riding powers over the other branches.

This is noteworthy, in that the authority here in question is to wiretap without warrents *foreign* agents, not average citizens of the US. Right at the top of the decision, it is noted that the case in question refers to limits placed by a FISA judge on the wiretapping of *foreign* agents, and it rules that these are not needed. It simply does not apply to the *domestic* eavesdropping program that the Bush Administration engaged in without warrants. Further, the work could have been presented to FISA, and might well have been approved - the warrantless wiretapping was allowed for short periods under the law, but only with FISA brought in within the allowed period. This of course was not done, hence the issues. It does not speak to the issue you are addressing.

If it was the other way around I would smell a conspiracy..but this? Sounds...weird.

Yeah, it does, but this probably explains it. It simply was not a secret; the government has been bragging about how it was monitoring terrorist financing since 2001, even mentioning the use of SWIFT for that purpose. There was even an Executive Order about this kind of work.

Ah, politics. Why do you even bother defending these guys, Johnny? They are not worth your time.

D'oh! You're right, sorry. I should have read that, but I was caught up in a bunch of stuff and forgot to go back to it.

I flip back into work and forget to check the links I need to, sometimes. Sorry, again, you scooped us lol.