Key passage in USA Today Story: NSA Refused to Go to FISA Courts

for fear they'd lose their case. Pointed out by the ever-astute Glenn Greenwald:

http://glenngreenwald.blogspot.com/2006/05/no-need-for-congress-no-need-for.html

Thursday, May 11, 2006
No need for Congress, no need for courts

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I just this morning read the obviously significant USA Today article detailing the fact that the NSA is maintaining a comprehensive data base of every call made by every American – both internationally and domestically – whether they have anything to do with terrorism or not, obviously all of this without warrants or oversight of any kind. I'm not going to pretend to have all of the legal issues figured out in two hours, and so I won't yet opine as to whether there are serious grounds for arguing either that this is legal or that it’s illegal.

But there is one highly significant, and revealing, item buried in the USA Today article regarding Qwest's refusal to cooperate with the NSA’s demands (and it heroic refusal to capitulate to the NSA’s intimidation tactics and threats) that it turn over its customers' calling data:


The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

This theme emerges again and again. We continuously hear that the Bush administration has legal authority to do anything the President orders. Claims that he is acting illegally are just frivolous and the by-product of Bush hatred. And yet, as I detailed here, each and every time the administration has the opportunity to obtain an adjudication of the legality of its conduct from a federal court (which, unbeknownst to the administration, is the branch of our government which has the authority and responsibility to interpret and apply the law), it does everything possible to avoid that adjudication.

This continuous evasion of judicial review by the administration is much more serious and disturbing than has been discussed and realized. By proclaiming the power to ignore Congressional law and to do whatever it wants in the area of national security, it is seizing the powers of the legislative branch. But by blocking courts from ruling on the multiple claims of illegality which have been made against it, the administration is essentially seizing the judicial power as well. It becomes the creator, the executor, and the interpreter of the law. And with that, the powers of all three branches become consolidated in The President, the single greatest nightmare of the founders. As Madison warned in Federalist 47:


From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.

His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.

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If Bush ever gets his ass dragged into the Senate over this, he better get it kicked from here to the next millennium.

principles of a free constitution", silly!

Or did USA Today go after the story with Qwest after a leak from inside the NSA or CIA?

Either way, Qwest is heroic in this matter.

The heroic thing to do would have been to hold a press conference the day after the NSA made the request and Quest attorneys concluded the would not comply.

That would have put the spotlight on the other companies and helped them resist, if they were so inclined. At the least, it would have let the public know sooner.

There's no need to have a "leak". Just come out and say it. And there's no reason why they couldn't have done that.

Greenwald writes:

Amazingly, again and again, they don't even want their own Justice Department to know what they are doing because they are afraid that DoJ lawyers will tell them that it is against the law. They don't want to hear that it is against the law. As USA Today reported: "For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events." They know very well that their conduct might be, and in some cases that it is definitely is, illegal, but they are purposely avoiding having the DoJ be able to opine on the legality of their behavior.

I don't care if Shrub thinks its ok to engage in cat juggling. If it's a crime punish the son of a bitch.

To me they're equal.

They were afraid FISA would shoot them down, so they bypassed the court completely. That's why Dimson blinks like a lying whore when he insists it's all legal.

of course. Bush blinks because he's got a brain the size of a pea, and blinking is about the only way to exercise it. But his minions run around fixing it so Bush boy gets exactly what he wants.

Greenwald points out something very few people are talking about:


One of the disturbing aspects of the NSA warrantless eavesdropping program was that it was seen by many intelligence professionals as a radical departure from the agency's tradition of not turning its spying capabilities on the American public domestically. The program disclosed yesterday decimates that tradition by many magnitudes. This is a program where the NSA is collecting data on the exclusively domestic communications of Americans, communicating with one another, on U.S. soil -- exactly what the NSA was supposed to never do.

Our domestic security is their domain. At least until the HS Gestapo was created.

so we get to find out exactly how the FBI feels about this. If I were a G-Man I'd be totally disgusted. The Bushists are like a tone-deaf, rhythm challenged orchestra conductor. Well, they're actually far worse, it should go without saying, but the point is, they're holding the score and giving it out in pieces to separate sections as they see fit and not telling anyone which page the other guys' have.

Which attack was prevented because NSA needed the info so quick they had to bypass FISA. Wasn't that shrubs whole excuse is that FISA wasn't fast enough? More BS.

Back in, oh, 2000. When one dialed-out thru Verizon, they used two outgoing servers. One of them was Qwest, can not recall the other.

There was some sort of small announced tiff. No big headline news. Verizon squeezed out Qwest and re-routed all DSL and dial-outs through the other announcing Qwest was history.

Timing seems about right. Wish I could recall more. But remember this part vividly.

Edited from being so d$%(*) mad.

from about 2002, when I bought the piece of shit that is my present home computer. (It wasn't a piece of shit then, in fairness.) I remembered something vaguely negative about Qwest (when I was buying a broadband service), and looking through past articles about the company, I found that it was one of those post-Enron companies found to have been playing around with its accounting to the tune of more than $1 billion. So they're not pure of heart after all. But their lawyers in this case clearly are heroes. Maybe they acted as they did because they felt they'd been in enough trouble as it was.

I can't tell you how many times I have been slammed by AT&T/SBC. They kind of just try to convince you that its such a good deal that you should keep it, and I always get lured into that BS.

They new NSA info is now available on Qwest, I don't think it was there yesterday.

that stood out for me immediately.

This is going to be a five alarm fire for days to come. Hayden kiss it goodbye. ...Gonzalez, get yourself a lawyer. You're gonna need one!!

Bush, pack your bags.

people outside the US were spied on.

The irony is that his minions have made it clear that they do everything they do because "it's what the president <sic> wants." It's going to be a pain in the ass trying to make the case that they operated on the old Bush I principle of plausible deniability when they've also been claiming all they have been doing is Bush II's will.

at the big cheese's desk. At least the America I once knew and loved use to feel as such.

simply forgetting things and not being able to "anticipate" anything more complex than the sun rising in the east.

The dumbing-down of America. Toss a gaming system in front of the kids. Out souring of history teachers so the truth remains gone and long forgotten.

At least the sun is still rising, but it's looking mighty bright these days.

issues, and remebering lots of information as skill sets for being president.

.....that no wiretaps could be done without a court order.

It seems like such a logical thing to do.

Maybe others would have resisted, too.