Why the public interest?

Good morning. It's Friday and it is THE LAST DAY OF SCHOOL...yea!

So, there is not a lot being taken seriously here at TwoBabes--at least not by me--this morning. However, Bombtruck over at ABP has posed a question so I figured I'd offer an answer.

Can anyone tell me why this program is a matter of public interest?

He asks this of the revelations in the NYT this morning that we are sifting through international bank records. (ABP piece here,NYT piece here)

Here is my answer as to why this would be in the public interest:

In the United States, the program has provided financial data in investigations into possible domestic terrorist cells as well as inquiries of Islamic charities with suspected of having links to extremists, the officials said.

and

In terrorism prosecutions, intelligence officials have been careful to "sanitize," or hide the origins of evidence collected through the program to keep it secret, officials said.

Sorry, citizens of the US have rights and no matter what the excuse, the government can't do things contrary to those rights. I don't care how many signing statements the President signs--the Constitution applies to all men (and women) of the United States.

These guys don't think so. They think the law is for everyone else. They think if they disagree with it they don't have to follow it. Well, they do.

And so that is why this program is in the public interest.

I think we should change the law. I think we should amend the Constitution. I think citizens get more rights than non-citizens but we haven't done that yet. SO, this stuff without a warrant of some type and this stuff used in Court without disclosing where it was obtained form is just wrong.

Chris

Others talking about it: Michelle Malkin, Patterico's Pontifications

Comments

[Good Lt]

"Sorry, citizens of the US have rights and no matter what the excuse, the government can't do things contrary to those rights. I don't care how many signing statements the President signs--the Constitution applies to all men (and women) of the United States."

That's fine. This has nothing to do with citizens of the United States. This has to do with overseas operations, so this argument is a straw man that is not relevant. Read this excerpt from the third paragraph of the article:

"The records mostly involve wire transfers and other methods of moving money overseas or into and out of the United States. Most routine financial transactions confined to this country are not in the database."

Its as legal (and the article states this) as the NSA because it is not dealing with purely domestic information - it is dealing with info entering and leaving the US and going to other entities. That is perfectly legal and reasonable for the govt to monitor (they'd be negligent not to), given the obvious fact that terrorists do not conduct their operations in broad daylight (and also because they do cross international boundaries frequently). You can want it to be illegal all day, but FISA and the Constitution don't agree.

"These guys don't think so. They think the law is for everyone else. They think if they disagree with it they don't have to follow it. Well, they do."

Exactly what law is being violated? Citation, please? The article even concedes that it is legal, so again, you have no real argument here. I understand the sentiments, but they aren't supported by legal or operational reality.

"I think we should change the law. I think we should amend the Constitution."

Then do it. Until then, the rules are as they are - the programs are (were) legal and effective (now compromised thanks to the misleading and unnecessary press coverage).

"I think citizens get more rights than non-citizens but we haven't done that yet."

You seem to be arguing against yourself here. Maybe not.

"SO, this stuff without a warrant of some type and this stuff used in Court without disclosing where it was obtained form is just wrong."

No it isn't. You are confusing the arguments. You haven't made a case that the much lauded "right of privacy (not mentioned in the Constitution)" outweighs the need to obtain intelligence from foreign enemies of state conducting communications and transactions over international boundaries. Domestic-to-domestic monitoring still requires a warrant, and the Administration has obtained over 1,000 of them in the past four years for the NSA program. This was disclosed months ago when the NYT tried to do the same hatchet job to the NSA program. Five FISA judges testified on Capital Hill that the program was legal and that the law was being folowed.

If you disagree with any of this, please cite the law being violated in either case (NSA or the Swift program).

Disagreement aside, I like your site.

[Chris]

Good LT--welcome to TwoBabes

I don't think I commented specifically on the legality of the this--I am no lawyer nor do I play one on TV

the question was why is this in the public interest? I think it is in the public interest because they are monitoring American citizens. I understand it said mostly overseas stuff--but it didn't say exclusively

I am not one of those people who wants us fighting terrorists with our hands tied behind our backs. I think we need to use everything we have balanced with and against the principles that make us the greatest country in the world.

That means that we have to find a way to do all of this while still insuring that the rights of American citizens are protected.

Me wanting to change the law so tht the rights guarenteed to citizens are not automatically guarenteed to non-citizens is part of what I think should be done to make this fight against terrorists easier.

But when it comes to citizens, I think you have to do all of this correctly and I don't think that this administration has or believes it has to. (No I am not one of those Hate Bush people)

As for the FISA thing--I don't think we know the totality of how that program works--sure certain portions of it were discussed and the FISA judges testified that some of the activities were legal but they can't testify to what didn't come before them which were the instances that were in contention.

There will not be any legal cites today--it is the last day of school and I am busy running naked through my house--tomorrow my house is overtaken by munchkins for the summer

hope you hang around...and disagreeing is what we do here :o)

ps--i don't think the government can or should be able to use information against someone in court if they won't disclose how they got it--wouldn't accept a murder weapon if the government said we can't tell you where we found it, would you?

[Good Lt]

Cool.

I would add that these legal intracasies, international/domestic, domestic-domestic, and international/international distinctions are tantamount to understanding exactly why this program is legal - it doesn't target American citizens (and being an American citizen doesn't protect you from calling or colluding with enemies of the countriy overseas). US citizenship also doesn't protect you domestically - IF the government has a valid warrant. That is the difference. Even if some home grown jihadis are American citizens, there are law enforcement procedures in place (much like those for monitoring drugs dealers and gang activity)to deal with these people if they are in fact operating solely within the borders of the US.

I also think that there is definitely a public interest - a public interest in keeping the program secret so that it can work. The public interest in knowing the details and intracasies of an effective and legal counter-terrorism operation is unnecessary and detrimental to the ongoing effort to thwart future plans and attacke. I know it sounds ambiguous and open-ended, and this is certainly where much of the anti-NSA, anti-Swift program originates. In my humbloe opinion, you'd have to be pretty ignorant given 9-11 to assume that programs like this one and the NSA weren't going on. Hey - its better to nab terrorists planning their crimes and to get a few wrong than to have to sift through the rubble of another successful strike here.

However, I didn't elect the NYT or disgruntled moles in the government to blow the cover off of every counter-terrorism operation we engage in (for political and other reasons), and the fact that they think this is a civic duty of theirs doesn't speak highly for the paper(s) who engage in this kind of activity. The public has a right to have the full force and will of the government protecting it, despite the protestations of the conglomerate and corporate owned media organizations.

Right.

[Good Lt]

Sorry for the typos.

" I know it sounds ambiguous and open-ended, and this is certainly where much of the anti-NSA, anti-Swift program bias and fear originates."

There. That's better.

[Chris]

Good LT--

Three or four years ago, I might have agreed with you--but I have, over time, come to not trust this administration. Their wanton disregard for the Constitution and the existing laws really bothers me. I want to know what kind of oversite is on this program.

COngress has given the President everything he has asked for when it comes to the War on Terror. I want to know why Congress wasn't asked to change existing laws to make these programs legal...publicity? Well, we know from experience that Congress can go into executive session --there are ways to work within the system--this administration doesn't seem to think they have to and that concerns me.

However,I think whoever leaked this should go to jail...no one said living up to your convictions would be easy and for every action there is a consequence.

[Good Lt]

"wanton disregard for the Constitution and the existing laws really bothers me"

This is where you and I part ways. You need to cite evidence of his "wanton disregard for the Constitution" for this to have validity. What laws has he violated? What provisions of the Const? What public case can you cite in which somebody's Constitutional rights were trampled on with no recourse or press coverage? Evidence, dear sir, evidence. Otherwise, these are merely platitudes and emotions not grounded in fact.

"I want to know why Congress wasn't asked to change existing laws to make these programs legal...publicity? Well, we know from experience that Congress can go into executive session --there are ways to work within the system--this administration doesn't seem to think they have to and that concerns me."

Again, Chris, I have to take issue. Are you suggesting that the laws in place that prevented intel gathering abilities and hindered investigation into the 9-11 hijackers should remain in place, or should they be rewritten and updated to evolve with the changing nature of the threats? How is this all illegal if Congress went along with everything anyway (even though they didn't)?

"I think whoever leaked this should go to jail...no one said living up to your convictions would be easy and for every action there is a consequence."

Agreed. I don't wish to see reporters jailed because of some sick perversion. I want to see some consequences for irresponsible and misleading reporting. It does damage to the entire war effort, and the NYT doesn't give a rat's ass either way (they're not even convinced we're at war). They are committing crimes by publishing and recieving such classified and confidential information. The Espinonage Act of 1917 (never repealed and still valid, although seldom invoked) applies to these govt leakers and journalists (10 bucks the govt leakers are disgruntled carrerist Democrats like the recently outed Mary McCarthy).

The First Amend. is indeed important, but it is not and has never been an absolute. You do not have a 1st Amend. right to use speech to libel or slander. You can not incite imminent lawless action. Et cetra. As such, the First Amend. must be excercised with responsibility, and that is where the NYT decision to publish this information goes astray. They are not going to be held responsible for anything they write (right or wrong), so why worry?

Nice row we've got going here. :-)

[Chris]

For the record, because I think you called me sir, I am the brunette in the logo--so I believe you meant Ma'am :o)

Back up for a second--I said whoever leaked it should go to jail--passing classified info to someone who is not cleared to recieve it is a crime--after that--there isn't any criminal action to be taken against the uncleared person --reporters have a job to do--you don't have to liek it but you can't make it criminal

The close to 800 signing statements make me believe that the President and his guys don't think they have to follow the law--we passed a law against torture--whether you like it or not thats the law--the President said he didn't have to abide by it because his interpretation of the Constitution is different--and so on and so on--if he wanted to interpret the Constitution he should have tried for a seat on the Court :o)

and yes, I am suggesting that certain things would no longer be against the law if Congress changed the law--

the laws in place that prevented gathering and sharing intel have been changed--see the Patriot Act and ensuing legislation

yes I think the laws should evolve with the threat and changing circumstances--that is what laws are supposed to do

[Matt Hurley]

I appreciate the backup LT... :) At this point, the good LT has my POV pretty well covered...

[Good Lt]

"reporters have a job to do--you don't have to liek it but you can't make it criminal."

I've written for a few papers and websites, and I understand this. However, reporters who knowingly have and obtain classified infromation that is vital to national security interests and who wantonly publish this information for our enemies to read, process and adjust their tactics, is a crime. The Espionage Act doesn't make distinctions between journalists and government employees. It has to do with the information. The program is legal anyway, so it is difficult to guage the NYT's reasoning for publishing this stuff.

"800 signing statements make me believe that the President and his guys don't think they have to follow the law--we passed a law against torture--whether you like it or not thats the law--the President said he didn't have to abide by it because his interpretation of the Constitution is different--and so on and so on--if he wanted to interpret the Constitution he should have tried for a seat on the Court "

He never said he didn't have to abide by the law. The President's powers to spy and conduct espionage against the nation's external enemies is an Article II constitutional power that the courts and the Supreme Court have consistently upheld. The courts are with Bush on this one (even though there are plenty of anti-Bushies on those courts). The law is very clear that the President, especialy during wartime, has extensive powers to intercept, analyze and prosecute threats from outside the United States coming in, or to monitor communications and transactions leaving the US to go overseas or to Canada/Mex.

In addition, all Presidents sign numerous executive orders during their terms.

Try this one by Clinton authorizing the same thing Bush authorized with the NSA: (http://www.fas.org/irp/offdocs/eo/eo-12949.htm)

or this one by Jimmy Carter authorizing wiretapping by FISA:
(http://www.fas.org/irp/offdocs/eo12139.htm).

Both were signed during peacetime.

As for us passig a ban on torture, I don't see how this is entirely relevant. We don't torture people in practice or in policy, so why bring it up? Interrogation is not torture, by the way. If it is, then there are hundreds of murderers who would never have confessed during stressful interrogations. Interrogation is legal and effective, and torture is what Islamist psychopaths do. There is a difference (another topic for duscussion...)

Again - simply asserting that you have a feeling that legal violations have occured is not de facto evidence of actual legal violations. And again, I understand the initial umbridge - probably a symnptom of reading the incomplete legal perspective that papers like the NYT offer.

"and yes, I am suggesting that certain things would no longer be against the law if Congress changed the law--"

Well, then...lobby to change the laws. As of now, there have been no violations of the ones on the books (you would've no doubt heard about in the NYT and everywhere had a violation occured - just look at the hyperventallating that occured over the fake Koran flushing story, for example).

"yes I think the laws should evolve with the threat and changing circumstances--that is what laws are supposed to do"

Awsome. That's what the President is and has been doing, with very little (if any) evidence to the contrary. Unless you show some...I'm open minded.

Apologies for the gender bending :-)

[Good Lt]

Sorry for the bad links - the linker picked up the parentheses!

Here they are:

http://www.fas.org/irp/offdocs/eo12139.htm (Carter Exec. Order)

http://www.fas.org/irp/offdocs/eo/eo-12949.htm (Clinton Exec. Order)

[Chris]

I believe the numbers are 798 to 149--Bush to Clinton but I'm not going looking for the link today--I have already spent my alone time arguing with you...:o)I disagree with your assessment that the government hasn't broken any laws or violated the Constitution--

Padilla
Lackawana Six

read Judge Napolitano's book --the title escapes me but I believe it something about the Constitution in Exile--he is wacky conservative and yet has no patience for the way this administration has done what they've done--

there is always monday for the linkfest :o)

[Good Lt]

So now its OK that Clinton signed over a hundred exec orders? Even one (which I linked) authorizing domestic and international wiretapping? During peacetime? Was he impeached for that? Did he violate the law? Nope.

Interesting. As to the disproportionate ratio of EOs, we are at war, and the President has added pressure and haste in which he may need to get certain duties accomplished. I'm not surprised by the high executive orders, nor am I worried.

Jose Padilla still isn't out in the clear , despite media reports.

I'm also not going to get my panties in a wad over six radicalized Muslims suspected of terrorism who were rounded up and questioned. That's called common sense.

What about John Lindh? Malvo? John Muhhamed? The Tar Heel jihadi? The Miami ring busted yesterday? The Canadian cell busted up two weeks ago? The Buffalo sleeper cell? The Lodi individuals? Getting a bigger picture yet?

If all you can cite are 7 questionable individuals who have ties to radical Islam as "eggregious violations" of the law and of the Constitution, I'm going to predictably say "consider me underwhelmed."

Have a great weekend! :-)

[Chris]

Whoa! 6 radicalized muslims who were rounded up and questioned? Try when the Court said that the government couldn't charge them with listening--the prosecutors threatened to name them enemy combatants and that is why they pleaded guilty to jail sentences in excess of 10 years--and those radicalized Muslims were American citizens (5 of them were) and so yeah, your panties should be in a knot big time--

I never said Padilla was in the clear what I said was he was held for over 2 years and denied his rights and when the Court was going to decide whether the Court could do that the government suddenly decided to chargehim criminally--

enemy combatant status the way this administration uses it is in fact a violation of citizens rights--there is no law that says that the President that has the authority to do it--enemy combatant is a throw away phrase from a dissent in a SC opinion from forever ago..or that is what I understand it to be--like I said I am not a lawyer but American citizens have rights--if they are doing terrorist things charge them with treason--but no one gets to deny them of their rights...

going to lunch will return later

[Good Lt]

OK Bear with me - I just want to let you know where I'm gettin this stuff from. I will attempt to breifly explain 1) why I don't consider the Lackawana six a severe "civil rights violation," and 2) why enemy combatantans (also unlawful combatants) are not characterized in the Geneva Conventions, and do not qualify for traditional "prisoner of war" status. Hence, Gitmo, etc.

--
From CNN

"Twenty-five-year- old Yassin Taher, a father of a 3-year-old son and former co-captain of the Lackawana high school soccer team admitted that he knowingly attended the Al Farouk al Qaeda training camp in Afghanistan and performed guard duty there."

http://transcripts.cnn.com/TRANSCRIPTS/0305/13/se.04.html
--
That's enough evidence to hold the guy and his buds. Fine with me, given 9-11. I don't have any sympathy for al-Qaeda sympathizers or allies.

Here's relevant text from the Geneva Conventions Its a little dense, but essential to the question of why these people at Gitmo and in other detention centers are not covered by traditional laws of Human Rights (they are treated well in comparison to others in the US's care)

http://www.globalissuesgroup.com/geneva/convention3.html

Convention 3, Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
- - -
OK. The vast majority of the folks at Gitmo are of the unlawful combatant stripe - about 50 people have been released since the war began (and some were reapprehended again on the battlefield). The question should not be whether or not they should be detained (they should, and always have been throughout modern warfare history), but for how long. That's a differnet question, though.

The key provision of the Geneva Conventions that the terrorist fighters and cells reject (besides all of them) have to do with wearing and identifying themselves from the civilians with some kind of flag, banner, uniform, etc. That's for civilian's protection. They do not subscribe to that.

They are not the arms of any government. They are decentralized packs of fighters that do not abide by any conventional laws of warfare, as the Geneva Conventions clearly require for proper prisoner of war status to be relevant. The Convention for POW status clearly states several times that thosecaptured must be abiding by the international laws of combat. If not, they are not considered POWs. They are combatants, for sure, but they do not follow the laws of warfare, and are not afforded the benefits therein. I can't stress that enough, because it is the crux of te argument against "unlawful POW treatment."

As such, I think your assertion that the Administration's detention of these rouge fighters and terrorists based on their "enemy combatant" status is somehow a violation of civil rights that they don't have under the US constitution rings a little hollow. They aren't even covered by international law, let alone ours.

Whew. Let me know what ya think. :-)

[USMC Steve]

Actually Chris, if a person not authorized to receive, possess, or pass on classified information has reason to believe they have such information, and they then pass that information on to others, they are indeed committing a criminal act. Should the government want to take it that far, they could quite probably make that case. If I am talking to a government source with knowledge of such classified programs, who then provides me with the details of how the programs work, it is reasonable to assume I know I now have information I don't rate having, and it can go on from there. The Feds won't bust the reporter or the NYT, but all it would take to encourage some much more responsible and thoughtful journalism would be a single conviction based on this type of thing. All of a sudden the scum of the 4th estate would realize there actually ARE repercussions for their stupidity.

The fact of the matter is that here as with the NSA matter, a valuable tool which was applied only to probable enemy personnel and their sympathizers and cohorts is now crapped out. At some time, people will be killed because of its compromise. The question is who and how many, and when will it happen.

As to the treason thing, that is a more complicated issue. Check out the definition of treason and what it takes to complete the requisite act in order to prosecute for it.

[Chris]

"Twenty-five-year- old Yassin Taher, a father of a 3-year-old son and former co-captain of the Lackawana high school soccer team admitted that he knowingly attended the Al Farouk al Qaeda training camp in Afghanistan and performed guard duty there."

That's enough evidence to hold the guy and his buds.

I agree. Absolutely enough to hold them. Eventually though, given that they are citizens, you have to charge them with something and go to Court. The Sourt ruled that the charges filed against them were not cool--so the government threatened to make them enemy combatatants and drop them down a hole. THESE GUYS ARE CITIZENS. I'm not talking about Gitmo detainees, although I would direct you to the report that says most of the people held at Gitmo are not really bad guys and the way we got them was by offering money to people in Afghansitan who rounded up people and gave them to us--

I'm not saying that there are no bad guys at Gitmo--but they aren't all bad guys--two of them we admit to not having any need to hold them but their country won't take them back and we don't want to just let them go here so we keep them in prison...

I'll try to find the report--I have a hard copy--not sure where to find it on the net...

Good LT--I am referring to American Citizens arrested here--not found on a battlefield in another country fighting against us--

USMC Steve--can I get a link or source for that because that is not my understanding--my understanding is that the criminal act lies strictly with the person who knows that the info is classified and legally has access to it--my understanding is that legally--not ethically--the citizen who was not provided that info through legitimate means has no culpability--not that I don't believe you but would be interested in reading the info