Consider the following hypothetical: Canada invades the U.S. and is beseiging Detroit…

A Declaration of Martial Law covers the eventualities of that hypothetical. Did I miss a Declaration of Martial Law in the GWOT?

The very definition of a Strawman.

Not even John Yoo would come close to agreeing with such a ridiculous statement.

The assertion here is that listening in on the enemy’s communication is a fundamental part of the power to wage war. When Congress authorized the President to wage war against Al Qaida, it also implicitly authorized him to listen in on their phone calls — even the ones they place to perfectly innocent people in the U.S. (The data mining is justified slightly differently.)

How do you determine which Laws can be overridden by the President and which cannot?

Obviously, some Laws (say, those concerning highway safety) are irrelevant to war-fighting. But, of the Laws which are relevant, how do you determine which can be overridden by the President and which cannot?

You may be right that eavesdropping on the latter may be more likely to outrage some NSA staffer (but not a lot more likely; most people take umbrage at being asked to systematically violate the Law, in the course of their job, though they may be reluctant to become whistle blowers, for fear of the consequences), and hence carries a greater risk of discovery.

But the Law makes no distinction between them, nor does it “in fact require” such employees to report the latter to the “heads of the intelligence oversight committee”.

Also note that the relevant Congressional leadership was informed every 45 days, certainly providing some oversight

Jay Rockefeller would disagree with you. And he, unlike you, was one of the “lucky” few to be briefed on the program.

But you didn’t respond to the second half of my comment. I’m really interested in your belief that, in the pursuit of the War on Terror, the President has the right to simply set aside existing Laws and act in what he believes is the national interest.

I’m really interested in understanding the thought process behind that.

“the theory that the President may, in pursuit of the War on Terror, suspend any law he finds inconvenient… Yoo Doctrine…”

The very definition of a Strawman.

Not even John Yoo would come close to agreeing with such a ridiculous statement.

The assertion here is that listening in on the enemy’s communication is a fundamental part of the power to wage war. When Congress authorized the President to wage war against Al Qaida, it also implicitly authorized him to listen in on their phone calls — even the ones they place to perfectly innocent people in the U.S. (The data mining is justified slightly differently.)

Consider the following hypothetical: Canada invades the U.S. and is beseiging Detroit. Would you expect the 1st Infantry Division to go to a judge for a warrant before trying to listen in on their communications (even those placed as domestic phone calls to other people in the U.S.), simply because they are inside U.S. territory? Or would you assume that the President’s authority to wage war against an invading army extended to authorizing such signal intelligence?

Finally, would you consider this argument to mean that the President could authorize our troops to violate “any law he finds inconvenient” during such an invasion by Canada?

“I have no idea how you claim to know who has been spied upon, and to what purpose. Since there is no Judicial oversight, no one outside of the Administration (and the NSA) knows the answer to that question.”

I don’t claim any such knowledge. But in the absence of even a credible accusation of wrongdoing (the original leakers have said no such thing), why would we assume this program is being abused? (Consider the power to arrest people: if we were only just learning that the FBI can arrest people, would we immediately assume that the President’s political enemies were being rounded up by the FBI in a blatant abuse of this power? Why not?) (Also note that the relevant Congressional leadership was informed every 45 days, certainly providing some oversight — these are precisely the people who would hold non-public committee meetings to look into who was spied on — and certainly these are people outside the administration with at least the authority to ask who was being spied on, and some of them are Democrats.)

I feel comfortable that we’re not listening in on Harry Reid’s calls to Howard Dean because I am certain that most NSA employees would immediately report such blatant abuse to the relevant Congressional officials (heads of the intelligence oversight committee) — as the law in fact requires — or to the New York Times.

Echelon intercepts ALL electronic communications in the entire world.

Sorta. By Law, they are forbidden from eavesdropping on Domestic communications and, up till 4 years ago, I tend to believe they adhered to that law (Government bureaucrats tend to be sticklers that way).

Let me (for brevity, but also because it’s the technology I understand the best) pick Internet communications to illustrate why your statement isn’t quite right.

Nobody knows for sure, but it is widely believed that the NSA has sniffers installed at major internet hubs, like MAE East. So every IP packet passing through MAE East is potentially recordable. Whether it is recorded, depends on software: every IP packet has both a source address and a destination address, and they can say to their sniffer, “record this IP packet if both the source and destination address are outside the US; otherwise, ignore it.”

From a technical standpoint, it would be quite trivial to change that instruction to “record all IP packets, regardless of source or destination.” (Well, OK, in the case of MAE East, that’s a hugely greater volume of data, but they can filter it in other ways, say by restricting only to packets destined for Port 25 (email) or Port 80 (web). And anyway, they’ve got the budget.)

But, legally, that would be a very dramatic change.

What’s technically possible, what’s legally-allowed, and what’s actually happening are three different things. It’s important to distinguish them when you say, “The NSA (or Echelon) does X.”

If you do some more research into the Echelon program you will see that it already does both endpoints.

Echelon intercepts ALL electronic communications in the entire world. That includes, telephone, telegraph, the entire radio spectrum from ULF to UHF (including wireless telephone), all internet traffic including e-mail, chat, instant messages, ect. If it is electronic, it is intercepted. It is then fed through supercomputers that look for strings matching whatever happens to be of interest at the time.

It is a simple matter to get around any domestic spying law: because the program is multinational with partners including the United Kingdom, New Zealand, ect. The United States simply lets the foreign aspects of the system spy in the US and then send the information back. That makes it completely legal.

http://www.fas.org/irp/facility/menwith_13.jpg

That picture represents what the NSA is involved with. It is a global spy network.

One nice thing about the legal argument that this power extends from the 9/11 resolution is that it is only valid in an anti-terrorism context, with no slippery slope to checking up on one’s enemies.

I have no idea how you claim to know who has been spied upon, and to what purpose. Since there is no Judicial oversight, no one outside of the Administration (and the NSA) knows the answer to that question.

I gather that you trust GWB to only use his superpowers for good, instead of evil. Would feel equally confident if the President’s initials were HRC?

Moreover, since you, apparently, buy into the theory that the President may, in pursuit of the War on Terror, suspend any law he finds inconvenient, let me ask some questions I’ve been dying to ask one the supporters of this theory (popularly known as “the Yoo Doctrine”).

The NSA domestic surveilance program is (we have been told) restricted to communications (phone, internet) where one endpoint is outside the USA. This seems kinda artificial. Don’t al Qaeda operatives inside the US talk to each other? Why not extend the program to cover domestic communications (both endpoints inside the US) as well?

The same theory has been used to justify the use of torture and arbitrary detention without trial (only of terrorists, of course; we’d never do that to anyone who wasn’t a terrorist). Why the squeemishness about doing this outside of US territory (since, under this theory, US Courts have no jurisdiction over those detainees, no matter where they are held). Why bother with Guantanamo and “black sites” in Eastern Europe? Why not do the waterboarding (etc) of the terrorists right here in the good, old US of A? Surely the President would want to be on-hand when some high-ranked al Qaeda leader finally cracks.

I realize this wasn’t directed at me, but re: “How about this: If Bush used this program to spy on Democrats, or anti-war protesters, would you call for impeachment? What if he used it to monitor calls/emails/etc. of all Muslim Americans?”

Yes, I would.

And that gets to much of the heart of this. The outrage should appear when a power is abused, not when a power is used that it might be possible for someone else to abuse later.

Show me a President who has his political staff accessing the FBI background checks and unrealeased confidential military files of political candidates from the other party, and using this information in the campaigns… and I’ll happily support impeachment, though conceivably no laws will have been broken.

Show me an administration making use of similar data to see if anyone with a current security clearance has ties to an organization that has just been discovered to be a domestic front for Al Qaida, and I’ll be calling for your head for leaking the previously-unreleased fact that the administration is aware of that organization’s terrorist ties.

It’s entirely about context.

Jaques-

One nice thing about the legal argument that this power extends from the 9/11 resolution is that it is only valid in an anti-terrorism context, with no slippery slope to checking up on one’s enemies.