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Thread: Foreign Intelligence Surveillance Act (FISA)

  1. #1

    Default Foreign Intelligence Surveillance Act (FISA)

    This act is now in the news, here is a link to a PBS site that tells what it is and contains another link to the full text of the law.

    http://www.pbs.org/wgbh/pages/frontl...ols/tools.html

    Basically this law set up a special court that meets once a week in complete secrecy (to protect the knowledge of our necessary efforts to keep tabs on people that are threats to our security) to grant approval for the U.S. government for wire taps on U.S. citizens. According to the PBS site, this court has never refused a request for such a wire tap.

    This morning on NBC's Meet the Press, it was stated that the law allows a wire tap without the approval of this court in an emergency (meaning a wire tap that can't wait 1 week until the court meets). However, if such an emergency wire tap is ever done without approval, the agency that does this is required to appear before the court and explain what they did and why they did it so that even emergency wire taps are reviewed by the court

    It is this law that the President has apparently ignored by personally approving wire taps without the review of this court.
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  2. #2
    Flashaholic* pedalinbob's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Nothing to see here...move along, move along...

    Bob
    Last edited by pedalinbob; 12-21-2005 at 06:21 PM.

  3. #3

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Quote Originally Posted by pedalinbob
    I don't see a problem.
    Everything appears to be legal as well as constitutional--though the FISA law can be pretty murky in application.

    Bob
    Bob, the actual article says:

    "In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States."

    If it really is only in "some cases", that may be where the problem is. The law is pretty clear and includes all cases within the U.S.
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    Flashaholic* pedalinbob's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Yes, I looked at this more closely: It is pretty murky.

    One one hand, the constitution protects American citizen's rights to privacy, but FISA allows snooping under certain circumstances.

    The allegation is that President Bush authorized wire taps on citizens without FISA approval.
    Yet, it appears that congress created a statute (in 2001) which gave the president special powers (with limits) to override FISA in special circumstances.
    These "American citizens" were making or receiving calls from Al Qaeda (a kind of "probable cause"), which creates a unique situation where the president has expanded powers loosely based upon wartime law.
    Further, congress was aware of the program, so it wasn't a case of President Bush being a reckless cowboy.

    I think this COULD be illegal: if so, hang 'em high. I don't believe our rights should be waived arbitrarily.

    In a nutshell: if you aren't calling Al-Qaeda, you don't have to worry about your privacy.

    Merry Christmas, Happy Holidays, Happy Kwanza, Happy Chanukah, etc.

    Bob
    Last edited by pedalinbob; 12-21-2005 at 06:22 PM.

  5. #5

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Quote Originally Posted by pedalinbob
    ... congress was aware of the program
    A few in Congress were aware of this ...not that it changes U.S. law.

    What I really wonder about is, why go around this law?
    It seems like it was set up to allow emergencies.
    If no taps have ever been turned down... why go around it?
    It doesn't make any sense.
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  6. #6

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Quote Originally Posted by pedalinbob
    ...it appears that congress created a statute (in 2001) which gave the president special powers (with limits) to override FISA in special circumstances.
    Bob, out of curiosity, what statute are you referring to from 2001?
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    Flashaholic* pedalinbob's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Oops...how did this get here?

    Take care,
    Bob
    Last edited by pedalinbob; 12-21-2005 at 06:23 PM.

  8. #8

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    So... Bob, the statute that you referred to earlier is in two parts?

    From your post:

    "As President and Commander-in-Chief, I have the constitutional responsibility and the constitutional authority to protect our country. Article II of the Constitution gives me that responsibility and the authority necessary to fulfill it. And after September the 11th, the United States Congress also granted me additional authority to use military force against al Qaeda."

    So:

    1. The President is the Commander In Chief

    "Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States..."

    2. After 9-11 the Congress gave authority to President Bush to invade Iraq if he saw fit

    BTW... that notion from the post about what keeps the power in check:

    "...There is the check of people being sworn to uphold the law, for starters..."

    It does seem to me that down through time, the fact that people swear to uphold the law, doesn't necessarily mean that they will uphold the law. Otherwise we wouldn't need any "internal affairs" types of investigaters in so many of our various government activities (which routinely find people that have broken their various oaths).

    That's just my opinion about that piece of it.
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  9. #9

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    The idea that the Iraq war authorization gave the admin authority to wiretap whoever it wanted is bogus political spin. Using the military means sending troops places, blowing stuff up, etc., not domestic wiretaps. If the war resolution was supposed to authorize wiretaps, it would have said so in so many words. The language of overriding an existing statute (like the wiretap laws) has to be specific and they didn't do that.

    The notion that some wiretap requirements are too urgent to wait for prior court approval (at least for a normal request, see below) was also foreseen by the FISA statute. If there's an urgent need to tap someone, prior authorization from the court is not needed. They can start the wiretap right away, as long as they file paperwork with the court within 72 hours after starting the tap. The court can then retroactively authorize the tap; or at worst, it can refuse authorization and in that case any recordings made from the tap have to be erased and not used, but the tap itself was legal. Making a tap with zero court authorization even after the tap is done, as was apparently done here, is a Title III violation and is a crime.

    That a few congressmembers were notified doesn't make it legal, though I agree that those congressmembers should have raised a much bigger stink than they did. Even if the full Congress was notified and voted to authorize the wiretaps, that would not make it legal, unless the courts were brought into the loop. Congress simply does not have the Constitutional authority to allow wiretaps without the courts being involved. Wiretaps are considered to be a type of search, and the Fourth Amendment is explicit that searches are not allowed without warrants, and only courts can issue warrants, not Congress and not the Executive branch.

    It looks like one of two things is going on, both of them scary:

    1) The admin wanted to wiretap people who the FISA court would have refused, for example, they might have wanted to wiretap political opponents with no terror connections. That is, they might have wanted to tap Joe Schmoe but expected the court to say "sorry, your probable cause is insufficient, no warrant", so they bypassed the court. Some of you might remember someone named Nixon who was forced out of office over doing stuff like that. If this is what happened, string them up, it's impeachment time.

    2) The admin wanted to run wiretaps which were wider than FISA court itself was allowed to authorize. That is, instead of saying "we want to wiretap Joe Schmoe" they wanted to wiretap (say) everyone in New York, or intercept all the email coming out of Hotmail, with computers scanning for keywords. Again, the Fourth Amendment prohibits that by saying any warrant must explicitly specify where the search is supposed to happen and what is being sought. It's possible in this case that Congress could have figured out a type of warrant that was narrow enough to satisfy the Fourth Amendment but wider than the current FISA statute allows, but the admin didn't ask Congress to take such a step. If this is is the type of operation that happened, the admin was running an illegal Echelon-like system inside the US, and at the very minimum they usurped the authority of the courts and of Congress.

    This is scary crap. The CALEA Act is the statute that says phone switches must have provisions for wiretaps. The FBI pushed it through Congress in the 90's. It said something like "all phone switches must support some number of wiretaps to be specified in a technical appendix", where the technical appendix wasn't included at the time Congress voted on the Act. At the time, there were 1000 or so court ordered wiretaps per year for the whole country. After the Act got passed, the FBI came out with the technical appendix and lo and behold, it required that phone switches be able to tap something like 1% of all conversations simultaneously, tens of thousands of calls in any big city instead of 1000 in the whole country. There is massively more wiretapping going on than the govt wants to admit to. Anyone wanting to have any kind of private conversation shouldn't rely on the phone system for privacy.
    Last edited by paulr; 12-20-2005 at 04:00 AM.

  10. #10
    Flashaholic C4LED's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    I guess we don't know who all was being tapped.

    Any names released yet...?

  11. #11

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    I don't think any names have been released to the public and they probably won't be since this type of surveillance is highly classified. But they definitely should turn over a complete list to the FISA court and to the congressional intelligence committees, which have proper security clearances and can figure out what the hell is going on. This is not something that can be left up to a single branch of government. We have separate branches for a reason, to prevent any single branch from abusing its powers, and the separation is absolutely needed here.

  12. #12
    Flashaholic C4LED's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Quote Originally Posted by paulr
    I don't think any names have been released to the public and they probably won't be since this type of surveillance is highly classified. But they definitely should turn over a complete list to the FISA court and to the congressional intelligence committees, which have proper security clearances and can figure out what the hell is going on. This is not something that can be left up to a single branch of government. We have separate branches for a reason, to prevent any single branch from abusing its powers, and the separation is absolutely needed here.
    Agreed.

    That's the whole point of process... otherwise no one knows (or almost no one).

  13. #13
    *Flashaholic* gadget_lover's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Is any one else wondering how the administration can have lsist of al-queda phone numbers and yet still not hunt them down?

    OH, They are "affiliates" and suspects. I guess that could be anyone.

    The quote that spoke most about the prez's lack of understanding;
    Quote Originally Posted by the prez
    "The purpose of that amendment is to protect your rights in the judicial system. Military intelligence has never been limited by it abroad or at home. Lets say they wiretap your phone because they suspect you of terrorism. If they find out you are going to meet a pot dealer they cannot arrest you for it because that phone converstation cannot be used as evidence in a trial. The scope of the wiretap is limited to national security."
    Does he not understand that privacy is the right to not expose your affairs to others? He seems to think privacy is only about prosecution.

    I think it would be neat to require that ever moment of the president's life be broadcast so we can be sure he is not really a tool of the terrorists. After all, since Bush started invaiding countries and killing innocents the terrorist acts have increased a hundred-fold. We went from a few suicide bombings a year to several per day. Of course, we will not pay attention when he's in bed with laura, and we won't prosecute him if he really is addicted to coke again. By Bush's definitiuon that should be OK.

    SHEESH!
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  14. #14

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    National security wiretaps are also routinely used by prosecutors, just not as evidence. For example, if the wiretap shows you're talking to a pot dealer, the prosecutor can use the info to "independently" do his own investigation of you which results in a normal law enforcement wiretap, which -does- get used as evidence. The book "Body of Secrets" by James Bamford describes the process. It turns out to not be useful to prosecutors all that often, just because of how the info is organized, but it happens.

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    Flashaholic* pedalinbob's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Gadget, that quote wasn't from the president, it was from a friend of mine--simply a thought on what might be.


    This is a very broad issue, and I admit that my armchair quarterbacking is terribly inadequate. I think it is naive for us to assume that FISA is a perfect system, and that the president's use of surveillance is automatically illegal--as it would be equally naive to assume otherwise.

    Good discussion!

    Take care,
    Bob
    Last edited by pedalinbob; 12-21-2005 at 06:23 PM.

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    Flashaholic* pedalinbob's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Here is some info on FISA. Now I know why I didn't go into law. Medicine is MUCH more straight-forward!

    http://www.law.cornell.edu/uscode/ht...3----000-.html

    http://www.law.cornell.edu/uscode/ht...2----000-.html

    Later,
    Bob<--hoping Mrs Claus will bring me a Surefire!

  17. #17
    Flashaholic* cyberhobo's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    See, Nixon was right!

  18. #18

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    I wouldn't take Toensing seriously. It's ridiculous to say that the IWR authorizes the president to do whatever he wants--if he can throw out the 4th amdt, he can also throw out the other nine. There's a principle in the legal profession that a lawyer is obligated to zealously represent their client no matter how bogus the case is, so we see (e.g.) mob lawyers spinning transparent BS that a 3-year-old could see through, because it's their duty. Toensing doesn't officially represent the govt in this stuff but seems to be taking on the same type of advocacy role. The actual existing caselaw seems to be overwhelmingly against the admin though, as is the principle that if a broad statute (the IWR) conflicts with a specific one (the FISA statute), the specific one takes priority. (IANAL but have been paying fairly close attention to this development).

    It's indeed possible that there's legitimate reasons to want to do court-approved surveillance that the FISC (FISA court) can't authorize right now because it's constitutional but outside the scope of the existing FISA statute. The statute was passed in the 1970's for a reason, namely, to put the kibosh on the types of Presidential surveillance abuses that had taken place during the Watergate era a few years earlier. It rather sharply limits the types of surveillance that are allowed. If events since then have been such that the statute is now too narrow and FISC's authority needs expansion, the solution is obvious: revise the statute. That means have Congress debate the issue, draft new statutory language, and vote on it. Instead, the admin has apparently done the whole thing in secret, sneaking around both the court and the Congress, breaking the law. Well, sunshine, they say, is the best disinfectant. So it will be interesting to see what happens.

    Those who really think the president should get a blank check ought to consider, we just had a very close election: 120k votes flipped last November would mean Kerry would be president right now and have the exact same authority to ignore the 4th amdt, if Bush has that authority. I can't imagine someone like Toensing liking that. If things get crazy enough, Hillary Clinton could be the next president and also have that authority. Toensing's head would explode. Again the solution is obvious. There is no such presidential authority for the admin to do whatever it wants with zero oversight. The president has to follow the constitutional system of checks and balances no matter what.
    Last edited by paulr; 12-21-2005 at 01:51 AM.

  19. #19

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    paulr wrote:

    Those who really think the president should get a blank check ought to consider, we just had a very close election: 120k votes flipped last November would mean Kerry would be president right now and have the exact same authority to ignore the 4th amdt, if Bush has that authority...

    ++++++++++++++++++++++++++++++++++++++++++++++++++ +++++

    Or the...

    2nd: ...right to bear arms
    5th: ...be deprived of life, liberty, or property, without due process of law
    6th: ...speedy and public trial, by an impartial jury
    7th: ...right of trial by jury
    10th: ...powers not delegated to the United States...are reserved to the states respectively, or to the people.

    All rights we cherish as U.S. citizens. If the President has a blank check "in time of war", then when might other rights be eroded as well? If you are content to give up your rights to a President that is in power at the moment, no President lasts forever. There will be another one coming along. Will you feel just as confident that your rights are safe with that next one?

    For that matter, are we now in an official "state of war"? The Congress authorized the use of "all force" to fight Al Queda. Is that the same as declaring a "state of war". That "state of war" triggers all sorts of odd changes in legal behavior.

    Think about this...

    If we are in a "war on terror" and not against another state, with a government and a standing army that can be defeated "in the field". Then who gets to say when that war is over? Might be pretty hard to define... yes? Maybe you feel fine with this President getting special powers because we are "at war". Would you be content to have the next President have "special powers" for an indefinite period of time? Who gets to declare that the "war is over"? There is no one to surrender or to sign terms of a peace. Are you really ready to live under a permanent "state of war" where the President is empowered to ignore the constitution for as long as they wish?

    The framers of the constitution put it together for very specific reasons so that we wouldn't have to re-fight our war of independence from our own government. Being in a "state of war" was intended to be only something that the Congress could invoke for very specific reasons. Are we in such a state now? When will that state end? Who will say?

    This wouldn't be the first time that a free society simply lost their freedom by the government declaring an "emergency", an emergency that somehow never seems to end.
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    Flashaholic C4LED's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Items of interest:

    "US media reports say former UK PM Margaret Thatcher used Echelon to spy on two of her ministers."

    http://news.bbc.co.uk/1/hi/world/europe/820352.stm

    "the two ministers were not suspected of being traitors, but Baroness Thatcher felt they disagreed with her over certain policy matters."

    http://news.bbc.co.uk/1/hi/uk_politics/655996.stm

    ---------

    "We are in bondage to the law so that we might be free."
    Cicero Roman philosopher (106-43 BC)

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    Flashaholic* pedalinbob's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Self edit, of my own accord...

    Bob
    Last edited by pedalinbob; 12-21-2005 at 06:25 PM.

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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    I don't see how this thread has not been locked by the admins, since it's political to it's very core. But since it seems to be OK this time......

    Peddlinbob's found a lot of quotes, but none of them appear to be authoritative sources. The appear to be political analysts and pundits.

    Personally, I'm scared that our president claims that there are checks on his power while he's deliberately sidestepping those very checks with impunity. He's dreamed up this war on terror; It's not a war if your opponent is a loosly organized group of people who disagree with you. He's using it as an excuse to rule as he pleases.

    I would not be surprised if Bush tries to pull a Willie Brown in 2008. Brown was kicked out of office as California's top legislator by term limit laws. He tried to fight it saying he would not leave office because the initiative was invalid. I can just see Bush thinking that, because of his "war" he can stay in offfice an extra term or two.

    I don't see much difference between Bush and a dictator. He ignores the laws, he appoints cronies, he authorized subversive practices and represses free speach in the name of "security". He runs prison camps where torture has taken place.

    The FISA works well enough for every other investigation, why not these? Probably because there was not enough probable cause or because there were alternate motives for the taps.

    Quote Originally Posted by peddlingbob
    have looked at the FISA info (I have some specific thoughts on the language, and it appears that when a US citizen interacts with with a known foreign enemy, the US residents then are not considered a US person,
    Personally, I think this is a really bad idea (and probably incorrect). These taps were, according to Bush, on calls to suspected affiliates and associates. Ok. So you call your girlfriend who's brother works with the wife of a guy suspected to be somehow connected to alqueda????


    We need to get real. The FBI, CIA, NSA and all the rest had a lot of information about the 9/11 hijackers and they ignored it. It was not a case of inability to gather info, it was a case of not recognizing it's importance. That has not changed.
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    Flashaholic Diode's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Quote Originally Posted by pedalinbob
    "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."
    It's not clear whether Gorelick claimed authority to conduct warrantless searches on American citizens. In any case, that doesn't make it right.

    "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." -- Benjamin Franklin

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    Flashaholic C4LED's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Something more to condsider:

    http://www.slate.com/id/2132810/nav/tap1/

    "Since 1978, the NSA has insisted that when it intercepts a communication between a targeted foreigner and a nontargeted American it will redact the name of the American from the resulting intelligence report. The redactions are made to protect the privacy of the individual who was not the target, and to satisfy the Constitution's prohibition of warrantless searches. Yet at his hearings, Bolton admitted that on several occasions while he was an undersecretary of state he had asked the NSA to reveal the names of Americans in agency intercepts. The NSA obliged without any showing of cause or process of review. Newsweek investigated and learned that during one 18-month period in 2004 and 2005, the NSA supplied the names of 10,000 U.S. citizens to interested bureaucrats and spies.

    That violation is arguably more egregious than the new revelations of warrantless eavesdropping. It involved vastly more people. (Bush's warrantless eavesdropping reportedly targeted between 500 and 1,000 people a year.) And it was an informal practice, without even the thin legitimacy of a secret executive order."

  25. #25
    Flashaholic* pedalinbob's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    I don't believe I have been political, nor have I been impolite or caustic in any way.

    If anyone believes this, I will delete my posts.
    Edit: nobody has complained, but I have chosen to simply remove much of my posts, since the thread may be getting a little hot.


    I am only stating my opinion, not attackng anyone.
    What is rather surprising is that some appear pretty annoyed with this.
    If so, I apologize sincerely.

    Bob
    Last edited by pedalinbob; 12-21-2005 at 06:28 PM.

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    *Flashaholic* gadget_lover's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Quote Originally Posted by pedalinbob
    I don't believe I have been political, nor have I been impolite or caustic in any way.

    No, you have not been impolite nor caustic. I hope I did not imply that you were. Some would say that pointing out articles that support a political view or support a politician's actions is the same as discussing politics. That's my take on it.

    I'll back of fon this one for a while and see what others say.

    Daniel
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  27. #27

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Quote Originally Posted by gadget_lover
    I don't see how this thread has not been locked by the admins, since it's political to it's very core.
    Hopefully because we are trying to focus on exploring what this act is and how it interacts with legal notions like "we are at war" ...plus trying to avoid terms like "lefties" or "righties", etc.
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    Flashaholic C4LED's Avatar
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Quote Originally Posted by pedalinbob
    Oops...how did this get here?

    Take care,
    Bob
    Bob,

    Regarding your edits, it looks like you may be reconsidering your view... and with a sense of humor.

    Good show!

    C

  29. #29
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    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Other than Gadget Lovers next to last post, which was filled with baiting, politically driven comments, the thread has proceeded pretty smoothly considering.

    Press on

    PS: Gadet Lover, my comment is not intended as a bait, it’s a caution as you strayed over the edge for "above" ground conversation.

  30. #30

    Default Re: Foreign Intelligence Surveillance Act (FISA)

    Apparently today, the New York Times is reporting that the wire taps go way beyond just people talking to overseas Al Queda connections.

    I haven't been able to figure out why the President would even risk violating this act. It seems to allow for emergencies and in time of war you have 15 days after doing an emergency tap to bring it before the court for review.

    I've been wondering... why would they do this? One worrisome explanation is that they were doing taps that they were sure would be denied. I saw on one of the news networks (NBC?) that only 4 have been denied since the beginning of the program decades ago.
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