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February 08, 2006

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Anonymous Liberal

AL, I beg you--do not give up this quixotic fight.Write Kos and Atrios and the entire gang. Damand impeachment hearings begin.

This may well be a quixotic political fight (though as more and more Republicans refuse to toe the administration's line, it's looking less so), but it's certainly not a quixotic legal fight. If the administration doesn't moot this issue somehow (by, for example, getting explicit congressional approval) this will eventually come before the courts, and the odds of the administration's legal arguments prevailing in court are very slim. They know that, which I why I suspect they will try to moot the case somehow as they are trying to do with the Padilla case right now.

JohnH

AL, you asserted that Cass Sunstein, a liberal as well as prominent constitutional authority, had not offered an opinion on the legality of the NSA program.

Wrong. He was interviewed by Hugh Hewitt and stated with abundant clarity that in his opinion Bush is within his constitutional powers in this matter. The University of Chicago Law School trumpeted this interview on its site. Here is the link. Radioblogger.com also has a transcript.
http://www.law.uchicago.edu/sunstein-hugh-hewitt.html

boris

Furthermore the FISA court ruling was that FISA DID NOT TAKE AWAY ANY PRESIDENTIAL AUTHORITY BECAUSE IT COULD NOT.

Instead (you dummy) it provided the executive WITH A VALID ALTERNATE power to make foreign intelligence AVAILABE to the criminal justice system and was FOR THAT REASON a constitutionally valid statute.

If you even understand this you have provided no evidence in my recollection. When you start with the "you don't understand" and "read the ruling" crap, you sound like a butthead.

boris

the odds of the administration's legal arguments prevailing in court are very slim

Whenever SCOTUS has intervened in the other branches, it acted to constrain overreach rather than impose some policy. In the NSA case there is no executive "overreach". Executive is doing what they have inherent authority to do absent explicit congress restriction. So if SCOTUS does decide to meddle, it would more likely constrain congress overreach than subject the executive to a risky policy outside their area of constitutional responsibility

Anonymous Liberal

Instead (you dummy) it provided the executive WITH A VALID ALTERNATE power to make foreign intelligence AVAILABE to the criminal justice system and was FOR THAT RESON a constitutionally valid statute.

Boris, how old are you? "Dummy"? "butthead"? This is childish ad homimem stuff. You can do better. And your statement above is totally ridiculous. The clear purpose of FISA was not to provide a "valid alternative power" to the executive, but to lay out the "exclusive means" for conducting such surveillance. If you want to claim that FISA is unconstitutional, go ahead, but you can't claim that it didn't intend to provide the exclusive procedure for doing this kind of stuff. It clearly did. Saying otherwise is preposterous.

As for John H., you clearly didn't read my comment very closely. I didn't claim that Sunstein had not offered an opinion on the legality of the program. I claimed that his opinion was not based on an argument that FISA was unconstitutional (but rather that the AUMF provide statutory authority for conducting this surveillance).

clarice

Boris' statement is far from "ridiculous". It is a sound analysis and restatement of existing Constitutional law. Butthead might go too far, but maybe not too too far.

JohnH

AL, I expected that you would parse your answer in this way. Isn't this a distinction without any substance? Sunstein clearly says the President is within his authority. He does not explicitly say that FISA is unconstitutional. But in order for the President to be within his authority, either he reads FISA as not encroaching on the executive's right to conduct surveillance of the enemy, or else he considers the part of FISA that does encroach to be unconstitutional.

Gary Maxwell

I am with Clarice. Actually I think I said it first weeks ago. Please please please bring charges of impeachment before the Huse fo Representatives. It only takes one brave truth to Power weilding Dim. Surely you can muster one of those for such a righteous cause. Please I am begging you.

JohnH

Furthermore, Sunstein says this in the HH interview:
CS: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.

I just don't understand what you are saying by making the distinction between basing his comments on the AUMF.

Anonymous Liberal

Boris' statement is far from "ridiculous". It is a sound analysis and restatement of existing Constitutional law.

Clarice, are you really a lawyer? Really?

Boris entirely mistated the purpose of FISA and ignored its crystal clear statutory language. Far from being a sound statement of law, it's such a ridiculous statement of fact that even the Bush administration doesn't subscribe to. It flies against the clear langauge of FISA as well as a mountain of evidence regarding the legislative history of FISA.

You can argue that FISA is unconstitutional, but you can't argue that it was not intended to be the exclusive means of conducting this type of surveillance. It was. Period. Full stop.

larwyn

Clarice wrote
:it is of a piece with the Rove/Shrum/Soros prior endeavors.(Can an entire party be neurotic? Is there a new DSS classification for this kind of behavior? )

AL wrote:
Senators Brownback, Graham, McCain, Specter, Hagel, and DeWine are all on the record raising serious questions about the legality of this program. So have uber-conservative activists like Bruce Fein and Grover Norquist. Heather Wilson and Jim Sensenbrenner in the House raised serious concerns yesterday

Hold the two thoughts and add fact that Republicans very aware of 2006
elections.

Public hearings don't cost a penny from campaign funds and provide
great AD fodder, knowing the Dems won't control themselves, as they
could not at Alito hearings.

I put the two above quotes together and I interpret that "concerned"
Republicans are providing additional Caterpillar,Deere
and some of those mining machines
to help the Dems dig deeper
faster.

Specter calling hearings, appearing "reasonable" to the Dems charges is
actually sucking them in. Could this be part of paying GW back for support
in PA in 2004?

I see the Republicans saying:
"You guys are really handsome and intelligent and look so great on
CSPAN for America to see. And the networks will all cover these
important hearings that show Congress doing their jobs."

The thought balloon over the R's heads reads:

"Let America see who
they can trust.
And also see behavior
that they would
not tolerate from their children."

"Bring it on"

No need for Karl here - self interest comes first - and most R's are
not dummies.

Anonymous Liberal

John H.

A previous commenter had suggested that Sunstein thought FISA was unconstitutional. I simply pointed out that was not the case. As your quote makes clear, Sunstein has simply said "there is an argument" that FISA is unconstitutional, but he has never (to my knowledge) suggested that this is a strong argument or one likely to prevail in court. His postings and statements on this subject put heavy emphasis on the AUMF. He's arguing that the AUMF should be read to supercede certain parts of FISA. Sunstein is in a very small minority in this regard.

boris

Boris entirely mistated the purpose of FISA

We have been here before. You are not permitted to paraphrase me anymore as the result of repeated misstatements of my claims. Your assertions regarding interpretations of ANYTHING are discredited by bogus interpretations of simple points made right under your nose.

I DID NOT MISTATE THE PURPOSE OF FISA. Whatever the INTENT of the writers, the FISA court interpreted it as ...

... providing the executive WITH A VALID ALTERNATE power to make foreign intelligence AVAILABLE to the criminal justice system and was FOR THAT REASON a constitutionally valid statute.

So you are being disingenuous or (more likely) dishonest by conflating your interpretation of congress's intent with FISA court interpretation of the statute.

FISA court said they were doing the "opposite" of constraining executive authority which according to them neither they nor congress could in fact do.

The opposite of constraint is empowerment which is what they interpreted FISA to be. The OPPOSITE Of HOW YOU INTERPRET IT. Hoe frakkin obvious does it have to be that your interpretations don't mean jack sh!t with anybody.


maryrose

AL
The NSA program is the exclusive power of the President to protect the country against terrorists and Al Queda. They have already prevented an attack in 2002. Inform Congress if you want just don't give them too many details because some just don't grasp the seriousness of the current climate.
Extraneus:
You are correct that the NYT and Leakers are lookingRock and Levin} for a justification for what they have done. They fear Goss and probably voted against Goss for confirmation because they thought he was too partisan. They know he means business and watch for them to start getting on the whistleblower wagon and start to downplay what they did. If found culpable they should be run out of town on a rail, even if their liberal constituents refuse to oust them.

Appalled Moderate

Anon. You are made of stronger stuff than I am. The problem we are starting to get in TM's comment sections when the questions get to matters of fact is precisely this.

clarice

larwyn, I'd admonish you for spilling the beans, but actually that's part of the R/S/S strategery:Tell your opponent what he is doing wrong and like a two year old he will continue to do it.

boris

Sheesh, no wonder AL considers "the peice of dictum" to be meaningless. He doesn't undrstand what they were saying with it and why it was included.

The purpose of the dictum was to clarify what they were in fact ruling by excluding what they were not ruling.

FISA CAN NOT CONSTRAIN EXECUTIVE AUTHORITY

FISA has a valid constitutional purpose in doing the opposite. Empowering the executive to validate foreign intelligence for use by criminal justice system because WITHOUT FISA there was no established method for allowing that evidence to be used for criminal prosecution.

Now it is perfectly obvious that AL does not agree with this interpretation. For him the peice of dictum is meaningless and misleading. But this is my "understaning" gained by "reading" the ruling which AL mistakenly claimed I did not do.

clarice

And only AM and AL would regard such a study as valid--It's rather like the one done in Berkeley before the last election which "showed" that lefties were nusances and sophisticated and conservatives were Neanderthal like dunces. Bad Social Studies by Liberals for DUmmies.

Maestro: A Round of
It Ain't Necessarily So", Please.

clarice

Freudian slip " nusances " should be NUANCED

Anonymous Liberal

the FISA court interpreted it as ...

... providing the executive WITH A VALID ALTERNATE power to make foreign intelligence AVAILABLE to the criminal justice system and was FOR THAT REASON a constitutionally valid statute.

Oh really? And where in Sealed Case does the court say this? And don't quote me that same line, because that certainly doesn't say what you are saying above.

In fact, Boris, FISA has little to do with the "criminal justice system." In order to use a FISA warrant instead of a normal Title III warrant, you have to demonstrate that "a significant purpose" behind your desire to snoop is the collection of foreign intelligence information (as opposed law enforcement information). The standard used to be "primary purpose." And FISA used to prohibit sharing of information between agencies; this was the wall between foreign intelligence and law enforcement that the Patriot Act did away with (and for good reason). This is what Sealed Case was all about. It addressed the question of whether these changes, which made FISA warrants much more relevant to law enforcement activities (where before FISA was strictly for foreign intelligence gathering), violated the 4th amendment.

FISA is not merely one avenue that the president can follow when surveilling U.S. citizens in the U.S.; it is THE avenue. The FISA court in no way questioned this unambiguous feature of FISA. No court has.

boris

According to your bogus interpretation the "peice of dictum" would clearly be meaningless and misleading.

According to my accurate interpretation it clarifies the issue.

So the writer of that ruling was either being "misleading" or "clarifying".

Hmmmmm ...

I'm going with "clarify".

Rick Ballard

Clarice,

Nusances and sophists works well, too.

Is this a funhouse mirror and smoke generator test site? Home for not quite good enough illusionists?

Risen really is starting to look with horror at photos of Leavenworth.

Anonymous Liberal

According to your bogus interpretation the "peice of dictum" would clearly be meaningless and misleading.

The statement is simply making the obvious point that there are certain powers which FISA (like all statutes) cannot encroach upon. But the Court most certainly did not say that FISA in fact encroached on these powers, much less that the exclusivity provision of FISA encroached on such powers. If it had held that, it would have been duty bound to hold FISA unconstitutional. This is just an example of Bush apologists grasping at straws, taking an innocuous line entirely out of context and using it to justify a position it clearly does not support.

boris

And where in Sealed Case does the court say this?

Oh? Where does it say what you claim ????

At least I can back up my claim with a quote:

The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

The district court in the Truong case had excluded evidence obtained from electronic surveillance after the government’s investigation–the court found–had converted from one conducted for foreign intelligence reasons to one conducted primarily as a criminal investigation.

...

The false premise was the assertion that once the government moves to criminal prosecution, its “foreign policy concerns” recede. As we have discussed in the first part of the opinion, that is simply not true as it relates to counterintelligence.

The statement is simply making the obvious point

The peice of dictum is not only meaninless and misleading, now it's also obvious?

Ok obvious, meaningless, and misleading. Point is it adds nothing to your interpretaion yet clarifies mine.

PaulV

The courts will read FISA in view of President's article 2 powers as augmented by AUMF in way to avoid constitutional conflict. The Court has long history in avoiding Political Questions

Rick Ballard

So you've got a plaintiff ready to go? Because, otherwise, you have nothing but an assertion that will never, ever be tested.

Of course, if you had a plaintiff and your reasoning was revealed to be as specious by court decision as it is on its face and the USSC ruled against your position, then they would be acting politically, no?

Tautologies made to fit while you wait.

boris

Point is it adds nothing to your interpretaion yet clarifies mine.

Should have written:

[According to AL, the peice of dictum] is obvious, meaningless, and misleading. Point is it detracts from the AL interpretation and clarifies the boris interpretation.

Appalled Moderate

Clarice:

I think the study applies to your good friend p. luk as well as to you. (I think both of you often make real good arguments.)

I see posts where reasonable arguments string along, I'm seeing things I don't know, there's discussion and openess to the other side and then, presto change-o, the partisan walls go up and Boris starts yelling everyone is stupid or you equate a study that covered both Democrats and Republicans with something out of Berkely declaring that Liberals are the only smart people in the world.

There are places for good robust partisan bickering. (I am sucker for nasty digs at both Rove and Dean) But when people start doing it when it comes to matters of law or fact, and in the process, mess up the facts, the discussion starts turning useless.

If you are going to challenge AL (a lawyer like you) as to whether a particular part of a decision is non-precedental on the grounds of being dicta, I'd expect something more than "when this issue first hit the airwaves I read that case thoroughly and nothing I've read since then has changed my mind about it" followed by an appeal to authority.

I'm not a lawyer -- so I tend to stay out of the legal issue debates. But I do know enough to see that you haven't really answered AL's comments.

Anonymous Liberal

Boris,

How in the world do you see that paragraph you quoted as "backing up" your interpretation? Which part? What are you talking about?

boris

AL: unless, of course, you subscribe to the silly AUMF argument

boris: If you continue to claim we're just TOO STUPID to understand

AM: Boris starts yelling everyone is stupid

So mister misnamed moniker was it boris who started yelling everyone was stupid ???

Join the club of straw stuffing dummies who claim they understand complex legal arguments while they are completely incapable of sorting out simple net discussion points.

boris

What are you talking about?

If you can't understand what I'm saying then you get no cred with me for asserting what the FISA court said.

Just compare this post with that post.

Appalled Moderate

yes, boris, perhaps at this point I should change my name from "Appalled" to "Amused".

As for legal issues, I've not been discussing them today.

clarice

AM, I've been tied up today, but everytime I tune in I see others have answered as well or better than I would have and see nothing I'd add to their arguments.


But for a moment let's be pragmatic. Assume for the sake of argument that in some case the surveillance crossed over into Fourth Amendment territory. The defendant's counsel, tipped off to this possibility by the leakers, raises the Fourth Amendment issue. DoJ has to show it complied with the law. If it doesn't it cannot present the evidence it wrongfully obtained.

And as for the politics of this, had the Dems not with their usual tin ear, been screaming Bushitler and impeachment, and instead demanded closed hearings or a threat to cut off funds if the program were not refashioned AND ACTUALLY OFFERED UP LEGISLATION TAILORED TO PROTECT NATIONAL SECURITY WHILE AVOIDING THE CLAIMED OVERREACH would they be in a better position than they are now?

larwyn


Public Able Danger hearings February 15th


Hearings in the House Armed Services Committee are scheduled for February 15th.

From the website:

2:30pm - 2118 Rayburn - Open, will Close

The Strategic Forces Subcommittee, joint with the Terrorism, Unconventional Threats and Capabilities Subcommittee will meet to receive testimony on the Able Danger program.

Witnesses:

TBA


Phillpott, Shaffer, Smith, and others are scheduled to testify in both an open and a closed session. This is a huge development.

February 14th, Shaffer will testify about the retaliation by the DIA against him and others. I called the committee and confirmed that this afternoon.

Then on February 15th, the full Able Danger story will finally come out. After 150 days, the wait could finally be over.

Please submit public events that you think C-SPAN should cover - events@c-span.org

1 of 2

Cecil Turner

And, for the thousandth time, there is a world of difference between saying the president has the power to do something when there is no law and saying the president has the power to do that same thing when the law specifically forbids it.

Yet again, what part of "FISA could not encroach on the President’s constitutional power" didn't you get? Saying it's not true is one thing. Saying they didn't say it is ludicrous nonsense. And yes, I understand you've said that many times . . . it'll still be silly the next time you say it.

Even the Bush administration isn't making this argument.

Actually, they are (DOJ NSA Brief):

Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework.
There are literally countless examples of situations where Congress takes away inherent presidential authority.

A lo of people seem to be confused on the point, then, including DOJ, the FISA review court, and occasionally SCOTUS. Here's another bit from the Jackson Youngstown concurrence:

Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. "Inherent" powers, "implied" powers, "incidental" powers, "plenary" powers, "war" powers and "emergency" powers are used, often interchangeably and without fixed or ascertainable meanings.
Your claim that "inherent" is modifiable by Congress (and that's part of Con Law 101) is not persuasive.

You can argue that FISA is unconstitutional, but you can't argue that it was not intended to be the exclusive means of conducting this type of surveillance. It was. Period. Full stop.

You keep saying stuff like this as if repetition made it more convincing. It doesn't.

larwyn

AbleDangerBlog provided the links:

Media is a Plural - Rory O'Connor's Blog
Able Danger Hearings A Go

UPDATE: Rory O'Connor has more details:


SNIP TO THIS GRAPH:
As the fifth anniversary of the attacks approaches, Smith says he’s increasingly worried that all the data he and others on the Able Danger team found was destroyed and may never be found again. “Let me just note that Mohamed Atta was a Tier Three guy - not THAT important in the scale of things,” he concluded. “Sure, we had his picture - but we know where he is now – dead and gone. But what about all the Tier Two and Tier One guys we identified? What about all the pictures of the other, more important people we identified? Where are THEY now? To me, that’s the real danger.”

Dem NSA hearings, dem Patriot Act battles......Oh! Oh! dem Dems! GO!
GO!

Knock yourselves out of polictical
power for decades - GO DEMS GO!


Appalled Moderate

Clarice:

The fundamental problem with the Democrats is that their politicians and their base do not take national security issues seriously. It's why those of us who are concerned with both national security and civil liberties take our cue from people like Lindsey Graham and McCain (and, in my case, blogs like Drezner's and Belgravia Dispatch).

Politically, therefore, Clarice, you are probably right. And, in truth, I'm far more willing to give the administration a pass on past behavior than the Anonymous Liberal. But it seems like something needs to be done about the future behavior, because I don't feel comfortable allowing the president to countervene the law indefinitely. If the Prez wants FISA changed, let him ask for it, rather than put a highly opportunistic spin on the law.

boris

When AL reads "The question before us is the reverse"

Where reverse refers to "FISA could not encroach on the President’s constitutional power"

Apparently AL believes they mean "FISA CAN encroach on the President’s OTHER power"

Instead of what they say "FISA amplifies the President’s power by providing a mechanism" ... whereby "evidence obtained from electronic surveillance" not be "excluded" based "on a false premise".


Gary Maxwell

Ok obvious, meaningless, and misleading.

Reminder alert. You are trying to use logic here. Logic does not compute for libs. And facts mean nothing.

clarice

How APPALLING!

OT but interesting:

First no Cinco de Fitzo, then No Cino de NSA. and now No Cinco De Abramoff:

[quote]Senate Democratic Leader Harry Reid wrote at least four letters helpful to Indian tribes represented by Jack Abramoff, and the senator's staff regularly had contact with the disgraced lobbyist's team about legislation affecting other clients.

The activities _ detailed in billing records and correspondence obtained by The Associated Press _ are far more extensive than previously disclosed. They occurred over three years as Reid collected nearly $68,000 in donations from Abramoff's firm, lobbying partners and clients.

Reid's office acknowledged Thursday having "routine contacts" with Abramoff's lobbying partners and intervening on some government matters _ such as blocking some tribal casinos _ in ways Abramoff's clients might have deemed helpful. But it said none of his actions were affected by donations or done for Abramoff.

"All the actions that Senator Reid took were consistent with his long- held beliefs, such as not letting tribal casinos expand beyond reservations, and were taken to defend the interests of Nevada constituents," spokesman Jim Manley said.

Reid, D-Nev., has led the Democratic Party's attacks portraying Abramoff's lobbying and fundraising as a Republican scandal. [/quote] http://www.breitbart.com/news/2006/02/09/D8FLPHO80.html

Rick Ballard

"If the Prez wants FISA changed,"

Why would he ask for what he doesn't need?

Btw - McCain is more dangerous to civil liberties than even Hillary ever though of being. He's the right fright mask to use on this subject.

boris
"If the Prez wants FISA changed,"

Why would he ask for what he doesn't need?

Or the prez might see FISA as amplifying constitutional executive authority, as the FISA court opinion claimed, to use foreign intelligence as admissable evidence to employ the criminal justice system in the war on terror.

Appalled Moderate

Rick B:

I think we just disagree. But I'll let my comrade in futile commenting make the points about the legality of what Bush is doing today.

boris

Isn't that just a sneaky way of discussing legal issues indirectly ???

As for legal issues, I've not been discussing them today.

But you do weigh in on the other side.

kim

How do you adapt FISA to cover all exigencies? If you can't cover all, how do you keep yourself from getting in the same bind you are now?
=========================================

clarice

The only way McCain will be nominated is if he runs on the to be formed Press Party. (He's like Hamburger Helper polls..someone who'll say what they want so they can run the editorial as a news item.)

Gary Maxwell

I am not discussing legal issues either. Oh by the way your arguments are for crap.

boris

lol

Appalled Moderate

Imagining a moment in the courtroom:

Does learned counsel for the administration have anything to say in response?
Mr. maxwell?

The plaintiff's arguments are crap, your honor.

Excrement, you say? Do you have a citation?

Yes, your honor. Boris says so.

Boris? I am not familiar with this Boris case.

Boris. He's a guy I know. Spends his time making learned commentary and hunting moose and squirrel.

I see. Well, directed verdict for the plaintiff, then.

You arguments are crap too.

And contempt of court....

Well, I got nothing but contempt for this FISA court.

Jail until you apologize...

Hey. Clarice! Didn't you tell me this judge was supposed to be karl Rove in disguise....

Gary Maxwell

Lets see your not a lawyer you just play one in cyberspace?

While you are not talking about legal issue while standing in an imaginary courtroom perhaps you could tell me how you got standing to bring your suit? Case dismissed with extreme prejudice?

Rick Ballard

AM,

Very good. I'm trying to figure out how to get Natasha in on this now.

Appalled Moderate

Gary:

Sure, there is a problem getting this case litigated because it is difficult for any plaintiffs to show actual harm. The ACLU did file a lawsuit in an attempt to get this ssue to the court. I am not sure where that one stands right now.

But, c'mon Gary, the logic being used by the administration (that a general statute overrules a specific statute, though there is no specific language saying so) does not pass a laugh test.

clarice

Look closely at the Bailiff, Rick. Notice anything -un-odd about him?

larwyn

OT
CNN just reported that:

Cindy Sheehan will not run
against Dianne Feinstein!

Now who of you didn't put enought
votes on the:
CONVINCE CINDY website?

Rick Ballard

The jolly, roly poly one with the thinning hair and glasses? No, nothing odd at all. Seems like a cheerful chap.

Gary Maxwell

You are entitled to your ( nonlawyerly ) opinion. I will rely on the opinions of John Hinderaker and Cass Sunstein. Neither one made my laugh though, funny that.

Gary Maxwell

Here is a cut and paste from a non lawyer but one who has seen a lot as former majority leader of the House, Bob Livingston.

"The President of the United States is the Commander in Chief of our Armed Forces. He is Constitutionally obligated to do everything possible in time of war to safeguard the American People. This tempest in a teapot about treatment of cowardly un-uniformed mass murderers and terror mongers, as well as restriction of his ability to monitor conversations of potential terrorists is in my view asinine, and I will have nothing to do with any effort that might be used to undermine his ability to keep us free from terrorism.

Indeed, we are at war with a most formidable and intractable enemy. He is insidious, cowardly, and bent on the destruction of all civilized society. Innocent men, women and children are cannon fodder in his eyes, and efforts such as the one you are sponsoring will be unappreciated by practitioners of his cause. This effort would have looked insane in Lincoln’s day, and he was far more intrusive in his practice than anything that has been envisioned today. Frankly, some Members of Congress and self-appointed leakers in the Executive Branch have put this country in grave danger with this very discussion. I have seen no evidence at all that American citizens have had their Constitutional 4th Amendment rights infringed upon (as they were in the Kennedy, Johnson, and Nixon eras). Until such evidence is shown, I shall do nothing to keep this President from protecting American citizens from harm’s way."

JM Hanes

Clarice,

I recently read (somewhere, sorry no cite) that Dean had been doing oppo research on Reid and Abramoff. I'm sure he's not the only one so doing, of course, but wouldn't it be fascinating if Dem leadership infighting played any part in this outing? How on earth did Reid end up as the Democratic point man on the culture of corruption with a back story like this one?! Geez, it's like kindergarten without adult supervision -- or a suicide pact. Hard to tell.

clarice

fedora at free republic is an excellent researcher and did a two part series on Mr Clean--He seems to have lots of mob ties, too and an entire family raking in dough as lobbyists.
Yes, I too rea the Dems were doing oppo research on him.

Maybe they'll replace him with Barbara Boxer and make my day complete.

Lew Clark

Hey!
If Judge Tatel can elevate newspaper/magazine articles to the status of case law in his opinions, why can't Gary Maxwell quote Boris as case law. Especially since Boris is nearly always on firmer constitutional ground than either the NYT or Time magazine.

clarice

Why not? Better yet, get a French Court to cite it in an opinion, and the SCOTUS can cite it as authority, too.

Cecil Turner

I suspect the next round in this food fight will be on this:

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.
Two things leap out: 1) if the eavesdropping is legit, why shouldn't it be used for warrants; and 2) the leakfest continues.

Appalled Moderate

1. The FISA judges felt the eavesdropping wasn't legit; and

2. Unlike the NYT revelation, I don't see anything involving national security here. (The WP article is abouthow the FISA judges and DoJ responded to the situation, not what the NSA was doing)

Appalled Moderate

Clarice:

Why would you want a French court citing Boris? He hasn't committed any crimes over there, has he?

JM Hanes

Cecil

This may be a repackaging of an earlier story, which is interesting. As I recall, the/a FISA judge (herself?) expressed concern over info collected in unauthorized wiretaps being used for the purpose of obtaining further warrants, and perhaps not just further wiretapping. She essentially considered it poison fruit which affected the legitimacy of the subsequent ruling. She was either asking the government to provide a listing of all such cases, or observing that they would need to be revisited in some way, I believe, but I can't remember the upshot, if any, offhand.

kim

I wish a French court would cite Saladin to the radical Muslims.
============================================

maryrose

OT
On Hardball Shuster stating Libby's lawyers saying Libby acting under orders from Cheney to leak NIE information. Matthews says it's a ploy to get the case dismissed.

clarice

FNC:Libby's lawyers absolutely deny this report, the source of which is Murray Waas.

CTD

I don't see why people think this issue is a loser for Democrats. Does the average person want the government spying on them? No. Can the average person be persuaded that the surveillance powers we had during the Cold War were sufficient - given that the USSR actually had nuclear material and scientists, instead of religious retards and C4? Quite possibly!

Extraneus

The main reason this issue is a loser for Democrats is that it's silly. It can only resonate with people who think Bush's actions are frivolous and political, who think all aspects of the war on terrorism are simply fodder for domestic politics, or pompous blowhards who just love to hear their own voices theorizing over large questions. The politicians who play it are playing to these people on the one side, and everybody else on the other, and the reason it's a loser for Dems is that there are just not enough of the former to form a majority.

You know it's silly when:

1. It's an esoteric legal question that even experts aren't very clear on, yet non-experts argue with vehemence.

2. Nobody talking about the surveillance program even knows exactly what it is, and therefore can only construct and debate hypotheticals, which is all they've been doing.

3. None of the Democrats or anyone else who knows any of the actual details are calling for shutting down the program.

4. Since anyone else could easily go the legal whistleblower route, the implication that Bush could use the NSA to conduct unethical and illegal wiretaps of Americans presupposes that the entire NSA is composed of cynical and loyal Republican operatives.

Compare this with the prospect of your kids and their friends burning to death at daycare as a result of the actions of some fanatical Muslim who could have been caught or killed before he had the chance.

Slartibartfast

Cramer's a conservative enough Democrat that I voted for him a couple of times. Just to calibrate.

Extraneus

I should add that the Hitman for Allah might have been caught or killed, but wasn't because he was tipped off by these leaks to be more careful. That's what needs to be compared with this debate.

CTD

Extraneus,

I agree with #3 for now, although they "still have questions".

1 and 2 are true regarding specifically what has gone on so far, but the existing info and the Administration's defense clearly imply a belief in the unlimited ability to spy without oversight. That's a system that Americans shouldn't tolerate.

4. Whistleblowing is rare for a number of reasons. Fear, organizational loyalty, the desire not to complicate one's life. No one is characterizing other NSA employees as you have hypothesized.

boris

clearly imply a belief in the unlimited ability to spy without oversight

For collecting foreign intelligence. Before FISA that was unconstrained and Americans tolerated it just fine.

The interpretation that FISA could encroach on a presidents constitutional power was ruled out by the FISA court in Sealed Case No. 02-001. Their ruling was that FISA provided a teller window in the Gorelick wall between the executive branch (foreign intelligence, enemy surveilance, detaining enemy combatants, military tribunals etc) and the judicial branch (4th amendment, admissible evidence, criminal prosecution etc). The clerk at the window being the FISA court to validate (bless, launder) foreign intelligence into evidence admissible into the criminal justice system.

boris

A longer more detailed post along the same lines is available at Strata-Sphere.

boris

Scroll up or use this link instead.

CTD

The Strata-Sphere writer thinks that probable cause is bad for our justice system! Funny notion about "justice".

"Before FISA that was unconstrained and Americans tolerated it just fine." - this is hooey. Abuses of that lack of constraint led to FISA.

Sue

From the little we know about the NSA 'domestic spying' program, nothing has changed since the Cold War. The only difference, as far as we know, is the wall keeping that intelligence from the FBI has been scaled. You know, that pesky wall that everyone was screeching about during the 9/11 hearings?

boris

this is hooey

Is not. Americans didn't demand FISA. Abuses by RFK against MLK and FDR against Japanese Americans were far worse without Americans rising up in rage. It was a partisan Democrat congress that overplayed there hand so drastically that the FISA court itself had to warn:

We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.
And come up with an alternate justification to affirm a constitutional purpose for the statute.

boris

Further, the collection of foreign intelligence via international communications was never alleged as an area of abuse by any former president. The notion that Americans or partisan Democrats shouldn't tolerate the NSA program on that basis is bogus.

What the NSA program is doing has never been a problem for any American or partisan Democrat. In fact the so called outrage over the program falls into 2 unrelated points.

(1) The president disregarded the will of congress

(2) Tainted evidence was passed through the FISA teller window

kim

Taint what it seems.
===================

ICallMasICM

'After weeks of insisting it would not reveal details of its eavesdropping without warrants, the White House reversed course Wednesday and provided a House committee with highly classified information about the operation.'

From Nancy Pelosi's lips to Osama's ears.

CTD

I sincerely hope that the defense in the impeachment proceedings is that the President's authority to break the law should be 'taken for granted'.

boris, do you really think the President should have the right to spy on you, "just in case"?

kim

Should we take for granted Congress's right to abrogate authority?
==================================================

boris

do you really think the President should have the right to spy on you, "just in case"?

If you are on the phone to M.Atta in Florida and there's a legal FISA wiretap on Atta, the NSA spies on your converstaion. If they find the conversation interesting, they'll use it to get a FISA warrant to wiretap you.

If you are on the phone with OBL in Iran, the NSA wants to know what you're talking about. If they find the conversation interesting, they'll use it to get a FISA warrant to wiretap you.

The NSA has never needed a warrant to spy on OBL in Iran. The only new part is they don't hang up when he's on the phone with you.

So yeah. I'm chill with it.

BTW the Democrats should really run on the "impeach Bush" campaign in the coming election. I even have some suggestions for cool rhetoric ...

"Don't elect those cowardly chickenhawk Republicans hiding under their beds.!!!

Elect us, we have the courage to bravely let those terrrori ... er freedom fighters kill your family so that CNN reporters can get unhampered access to tyrants, dictators and Islamofascists without some Republican storm trooper invading their privacy!!!"

Should work great.

clarice

(stealing from bookworm and reworking it) What's the Dems' 2006 motto:"Bush Lied, Terrorists' Died?"

clarice

The Sealed Case-----How it arose, what it means, why it means the NSA surveillance is legal.
(It's at a pay to view site, but has been reproduced here http://www.freerepublic.com/focus/f-news/1576697/posts:)

Key graphs:
[quote]Read today, In re: Sealed Case does more than simply outline the president’s authority. It also puts the administration’s warrantless-surveillance decision in some context. What was going on at the time the president made the decision to go ahead with the surveillance? Well, first Congress passed the Patriot Act, giving the administration new powers. Then the FISA Court refused to recognize those powers and attempted to impose outdated restrictions on the administration. Then the White House, faced with the FISA Court’s opposition — and with what administration officials believed were some inherent weaknesses in the FISA law — began to bypass the FISA Court in some cases. And then, in In re: Sealed Case, the administration received irrefutable legal support for its actions.

After the decision was handed down, the American Civil Liberties Union, which had submitted a brief in support of the FISA Court’s actions restricting the administration, asked the Supreme Court to review In re: Sealed Case. The justices declined to take any action. That is not the same as the Court’s upholding the ruling, but it does mean that the justices looked at the decision and chose not to intervene.

Today, the opinion stands as a bedrock statement of presidential power. And ironically, it came from a case that was not about whether the president had overstepped his bounds, but about whether the courts had overstepped their bounds. The Court of Review ruled strongly in favor of the president, and the Supreme Court declined to reconsider that decision. Reading the opinion, it’s no wonder that George W. Bush has so strongly defended the surveillance program. If the FISA Court of Review is right, he has the Constitution on his side.[/quote]


boris

Ha, maybe the French really should cite boris!

kim

Maybe the NYT lawyers saw 'sealed case' and didn't think they should look at it.
==========================================

CTD

The cases you "are chill with", boris, are all cases where a FISA warrant can be granted anyway. I don't know why you bother bringing it up - because the problem is that Bush broke the law by bypassing FISA.

You can't have it both ways - either FISA is valid, or the President can order a wiretap if you call your Mom while visiting Canada.

You might say, ah, but what about the foreign intelligence requirement? There's no way any intelligence could be gained by listening to that call! This is the problem at the heart of our discussion, though.

Without oversight, it's impossible to keep the Executive from abusing its spying ability.

CTD

Regarding the pure political appeal of impeaching the President for spying: 52% favored "consideration" of it in a Zogby poll. Compare to 36% who had favored it for Clinton. I won't get up and say that the website hosting the story is (cough) unimpeachable, but Zogby is a legit polling org.

http://democrats.com/bush-impeachment-poll-2

boris

are all cases where a FISA warrant can be granted anyway.

Actually not. Just being on the phone with OBL in Iran is not "probable cause" to monitor the call. You need to know enough about the program, the law and the constitution for an informed opinion or coherent discussion.

boris

Regarding the pure political appeal of impeaching the President

I highly recommend it!

kim

You find abuse by Bush, CTD, and it's a different story. You won't, but how do you prevent it in the next executive? This authority is not new by the way. How has abuse been prevented in the past?

Where did I read that the only thing we can learn from history is that we can't learn from history?
============================================

TexasToast

Just being on the phone with OBL in Iran is not "probable cause" to monitor the call.

Quite correct - and exactly the problem. These folks changed the standard for spying to something less than what was statutorily authorized - because they felt like it - and then proceed to claim thay had "inherent" authority to go beyone the statute. This is a hell of a lot further than a mere "signing statement" - its legislating by the executive and a threat to seperation of powers - at the least. Clinton was impeached for "breaking the law" by lying in a deposition - these guys are making the law up as they go along.

kim

And sticking to it; laudable when the legislature would leave you in anarchy or danger.
==========================================

boris

then proceed to claim thay had "inherent" authority to go beyone the statute

The FISA court of Review said exactly the same thing. Get over it.

maryrose

Zogby is a legit polling org" By whose standards; the dems? Rasmussen is much more reliable because it polls equally and ask straightforward questions. Zogby's gotten it wrong many times and consistently ranks GWB lower than other polling units.

CTD

>Just being on the phone with OBL in Iran is not "probable cause" to monitor the call.

OK, now I see where you stand vis a vis reality.

kim, the problem is indeed "the next executive". Bush may have done nothing morally wrong, but we don't want this to stand as precedent for someone who might.

boris

OK, now I see where you stand vis a vis reality.

Back at you. If you think it is "probable cause" that explains why you don't see a need for the program in the first place.

If it helps your understanding ... instead of calling you directly OBL calls Marwan in Pakistan who then calls you.

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