Good Catch At Powerline

John H at Powerline has caught either the NY Times or the Washington Times in fantasy land in their reporting on Arlen Specter's recent NSA hearing.

The NY Times, which broke the NSA story and is angling for some Pulitzer prizes, led keen observers such as Kevin Drum to suggest that some former FISA judges considered the NSA program to be illegal.  (Note - I reject the possibility that Kevin saw through the Times caveats but is playing to his readership, Times-style.) [Further note - I STRONGLY endorse the suggestion that Kevin Drum was just having some fun with this, especially since he made that suggestion to me himself.]

But over at the Washington Times, judges are quoted with a starkly different view:

    A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).
    The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.
    "If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now," said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. "I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute."
    The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.

The AP coverage does not resolve this, although they reiterate that the judges declined to venture an opinion on the specific NSA program.

Well, a hearing transcript is available at the Federal News Service.  I have inquired with them about pricing, but if a copy dropped in over the transom (or by email!), I would never tell.

UPDATE:  This is brutal - Stephen Spruiel of the NRO Media Blog has pored through the transcript and can't find support for the Lichtblau position assertion.

Powerline reaches a similar conclusion [with more here].

And I will run a different excerpt that reinforces the same point.  The witness is Magistrate Judge Allan Kornblum, who first got involved with these issues in the mid-70's.  In addition to his thoughts on Presidential power, Judge Kornblum was quite interesting on "probable cause" as it relates to foreign intelligence gathering, so I will put in an excerpt on that as well.  First, the constitutional question:

And I'll now just spend a few minutes talking about presidential authority.  Again, I'm not talking about the president's program.   

Presidential authority to conduct wireless surveillance in the United States I believe exists, but it is not the president's job to determine what that authority is.  It is the job of the judiciary. Just as the judiciary determines the extent of Congress' authority to legislate, so it determines the executive's authority to carry out his executive responsibilities.

The president's intelligence authorities come from three brief elements in Article II.  The executive power is vested exclusively in the president.  So is much of the responsibility as commander in chief, as well as his responsibility to conduct foreign affairs.  All three are the underpinnings for the president's intelligence authorities.

Most of the authority I see referred to in the press calls it inherent authority.  I'm very wary of inherent authority.  It sounds like King George.  It sounds like the kind of authority that comes to a head of a nation through international law.     

As you know, in Article I, Section 8, Congress has enumerated powers, as well as the power to legislate all enactments necessary and proper to their specific authorities.  And I believe that's what the president has:  similar authority to take executive action necessary and proper to carry out his enumerated responsibilities, of which today we're only talking about surveillance of Americans.

Again, I emphasize that it's the judicial decisions that define the president's authority.  These decisions predate the FISA statute. And I was reviewing the FBI and NSA applications for warrantless surveillance.   

Those surveillances by law were transferred to the FISA court in 1978, and actually when it began in May of '79.  However, the FISA statute has very specific definitions, and there are intelligence activities that fall outside the FISA statute.  Those activities went forward and have continued to this day and are still being done under the president's authority as set forth in the executive orders describing U.S. intelligence activities.        

There were three orders:  President Ford's order, 11905; President Carter's order, 12036; and the current order, 12333 (text here), which was issued by President Reagan in December of '81.

That order has been used by all of the presidents following President Reagan without change.  And I was responsible for processing those applications that go to the attorney general based on a delegation of authority.

I've asked the staff to give you a copy of the current executive order, and that's the authority that is being used today to some extent. 

The presidential authority that is being used today is being used unilaterally.  I think all of the judges agree with me that when the president operates unilaterally, his power is at its lowest ebb, as has been mentioned in judicial decisions. 

But when Congress passes a law, such as one authorizing the surveillance program targeting communications networks -- when the Congress does that and the judiciary has a role in overseeing it, well then the executive branch's authority is at its maximum.   

What that means is they can do things, I believe, under an amended FISA statute that they cannot do now.   

For example, the president's program says that the president reviews it every 45 days.  But I would think, if Congress authorized the program and the court oversaw it, that the surveillance programs could run for 90 days.

And on the meaning of probable cause:

As you know, the Fourth Amendment bars unreasonable searches and seizures, and the term "unreasonable" is the overarching concept.   
    
The substantive requirements of the Fourth Amendment are for probable cause and particularity.  The standard of reasonableness applies to both substantive provisions.  That is, what is probable cause and what is sufficient particularity are subject to the standard of reasonableness which the Supreme Court has indicated is subject to different standards; that is, the standards under the Fourth Amendment for criminal warrants, for arrest warrants may be different from those necessary for foreign intelligence collection, for counterintelligence investigations. 

...The Supreme Court said that the Fourth Amendment was highly flexible and that the standard for criminal -- what they called ordinary crimes, what I would call traditional law enforcement, need not be the same as that for foreign intelligence collection and that different standards for different government purposes are compatible with the Fourth Amendment.   
    
That decision served as the basis for the FISA statute.   

Comments

[clarice]

How much is the transcript?

[topsecretk9]

TM, here is Media Blog that has and links to the transcript with some good anaysis too

http://media.nationalreview.com/093732.asp

[topsecretk9]

link

[clarice]

Thanks again, ts--Good thing I didn't put my money on Lichtblau..LOL
UNBELIEVABLE!!

[topsecretk9]

Does it work though?

[clarice]

The link? Absolutely. He nailed the NYT.

[Jake - but not the one]

Clarice, no doubt we differ in our opinions as to the plain language of the 5 judges, but this, to me, is the money quote:

"(UNKNOWN):* No, if there's an enactment, a statutory enactment, and it's a constitutional enactment, the president ignores it at the president's peril."

Presumably this is Baker. To me this says, if FISA is constitutional, then Bush is wrong.

I know that many say Bush has the authority he needs to break the law, but I disagree.

At least it is clear that IF FISA is constitutional, Baker, and at least a couple of the other judges, think Bush has overstepped his bounds.

Clearly the judges were being careful, and because of that their words are subject to interpretation. Even so, I don't think anyone can charcterize this testimony as a ringing endorsement of Bush's position. Neither is it point blank refutation.

The thing is, the law is in fact, the law. Bush's claim of authority is no more a naked assertion supported only by the opinion of his hired legal shills.

None of whom *I* trust.

Jake

[clarice]

Jake, every single judge indicated that it is within the President's authority to ignore a statute which would attempt to limit his Constitutional authority.

Powerline also reviews the transcript,noting the Wash Times may have overstated the testimony but Lichtblau blew it, concluding:

[quote]New York Times reporter Eric Lichtblau has a considerable career investment (and, I suspect, an ideological investment as well) in the idea that the NSA program is illegal. It would seem that Lichtblau's preconceptions and biases prevented him from accurately reporting what happened in the Judiciary Committee hearing yesterday. His suggestion that the main thrust of the judges' testimony was to "voice skepticism about the president's constitutional authority" is simply wrong; in fact, I can't find a single line in more than 100 pages of transcript that supports Lichtblau's reporting. It's a sad thing when a once-respected newspaper can't be counted on for a straight account of a Congressional hearing[/quote] http://powerlineblog.com/

Clarice

[Gary Maxwell]

Nice job on the artful cut and paste there Jake. How about just a tod more of the transcript though?

OK I will give it to you:

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution.

***

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

Ergo Baker made the only comment that could be remotely twisted to reflect a concern for the Presidents actions. The other judges did not and indicated by their silence that they all five agreed that FISA could not override the President's Constitutional granted powers.

This is so clear that the NYT must fire Lichtblau. He just made it up, and as badly as last guy they caught and fired. Blair I think is the name.

[topsecretk9]

Despite the history of reporters playing a form of scrabble with quotes and their incessant omission of context and not being all that familiar with ERIC LICHTBLAU in general, I wonder if much of this is not so much his fault but a NYT's Co. heavy investment in the story they perpped out in such an unseemly manner. The effort, clearly was to boost Risen's book with the added bonus of revealing our national classified secrets.

Risen's story was written in the most provocative way possible to pump his sales, not introduce advance a balanced view on the existence. Now that that approach obviously leaves the Times holding the attorney bill "keeping hope alive" is in their interest. So Eric may have no choice.

Anyways, the Times of late keeps getting it's ass handed on platter with all their story-line investments.

[topsecretk9]

Nice job on the artful cut and paste there Jake.

Despite the history of reporters playing a form of scrabble with quotes and their incessant omission of context

Jakey, say it isn't so?

[Specter]

Where are the rest of the J's...and AL on this? Can't believe they aren't all here telling us how wrong all of these judges are. I mean with all of their constitutional knowledge....

[Sue]

But Jake. The topic was did the NYTs get the story right? Not whether the judges gave a ringing endorsement to Bush. What say you? Did the NYTs get the story right?

[Jake - but not the one]

Everyone is bound by the law.

And statute can't abridge constituttional authority.

I agree with both statements.

But we (that is, all of you {is that an exaggeration?} and me) disagree on what IS and is NOT constitutional authority.

Like I said, we have naked assertion on one hand and an actual law on the other.

I go with the actual law.

Jake

[SteveMG]

Jake:
Bush's claim of authority is no more a naked assertion supported only by the opinion of his hired legal shills.

Question (a bit of a "gotcha" one but I don't think it's entirely unfair):

Are you at all concerned about the possibility of Congress having acted unconstitutionally by passing a law that improperly took away the President's authority as commander in chief?

It seems to me that if one is worried about our elected officials acting beyond their constitutionally given authority, one would also be worried about legislative acts that violated the Constitution.

Correct?

Or does this concern over the rule of law only apply to executive branch officials. And Republican ones at that?

Like I said, I'm being snarky here but there's a legitimate question you need to answer.

SMG

[clarice]

Is there a single thing in the quoted testimony that lends a shred of support to a claim that the constitutional claim by the President was erroneous? If so, I cannot see it.

[Jake - but not the one]

Sue, personally, I favor the NYT interpretation. But it doesn't make a hill of beans difference what I think. It comports with how I intend to vote, and how I intend to proselytize - to the extent I have any such intentions :).

Time will tell, I hope. Or not. Either a case makes it through the court system to a conslusion, or it doesn't. When and if it does, we will know. Until then, I disagree with you but respect your position vis a vis the administration's claims.

SMG, if the law IS unconstitutional, then it needs to be struck down. I have no problem with that.

Jake

[clarice]

Then Congress will have to do it, Jake, because I haven't the imagination to envision who would have an opportunity to raise the question of FISA's constitutionality in Court.

[Jake - but not the one]

Clarice, is there anything in the testimony ANYWHERE that unequivocally says the Pres has the right of it?

It's possible I missed something crucial in my intemperate and prejudiced reading.

Jake

[topsecretk9]

Sue, personally, I favor the NYT interpretation.

Well that's a fine how do you do. You'll sacrifice a true contextual account if it comports with your voting inclination? Well, excuse me if you just pimped your credibility.

[clarice]

As I read the interrogation, if the Judge's believed it was, it would have been appropriate for them to note it. At the most one said if he made this judgement in error he'd have to bear the consequences of a misjudgment.

Everyone else as I recall confined their answer to the point that a President is not bound to a statute which impedes on a President's constitutional powers.In context, I read that--fairly I think--as a statement about FISA and the President's war powers.

[Jake - but not the one]

Clarice, would it not be the natural outcome of the several cases now before various courts that as the issues crystalize over questions of constitutional interpretation, the SCOTUS will become the final arbiter?

Jake

[SteveMG]

SMG, if the law IS unconstitutional, then it needs to be struck down. I have no problem with that.

Hmm, okay.

You seem glum over this possibility.

Your level of anger over the possibility that Congress acted unconstitutional doesn't seem to approach your anger over the possibility that the President acted outside of the Constitution.

Both should concern us, correct?

Why so animated about Bush but half-hearted protests about Congress?

As I said, I'm being a bit snarky tonight.

SMG

[clarice]

Do you have a single case in mind where there is a shred of evidence that there was an improper use of the NSA surveillance material--that is where the info wasn't turned over to the FBI who obtained a warrant? I haven't sen a credible one, Jake. Nor has Congress apparently.

[Jake - but not the one]

TS, not to put too fine a point on it, you have made it clear that I have no credibility anyway. Not having any here has become the normal state of affairs, nyet?

It's still a matter of interpretation. Without actually hearing the words, the intonation, the pauses, the gestures accompanying speech and given the careful language used, I feel no need to adopt a position more in accord with yours. All of us who have posted for any length of time have been completely misinterpreted when our words alone carried our meaning. I am sure that judges in oral testimony suffer from the same fate when their words are transcribed into text alone.

Were I there, I would give you my own honest opinion, whether it supported my position or not. Failing that, I don't feel compelled to accept the word of anyone from the NRO as to the actual meaning of anything.

Jake

[Gary Maxwell]

Sue, personally, I favor the NYT interpretation

You are kidding

No really?

then something aobut naked assertions and I lost you

[cathyf]

Suppose Congress passed a law which said that black people could only vote between 7:00am and 7:05am on election day, and all of the local election workers in the US ignored it. They would obviously ignore the law at their peril -- IF it turned out to be constitutional THEN they would be in big trouble for letting blacks vote all day.

Suppose Congress passed a law, let's give it an acronym, the Foreign Combatant Killing Act (FCKA), setting up the Foreign Combatant Killing Court (FCKC), which said that before any soldier on the field of battle could kill an enemy combatant, they had to get a signed death warrant from the FCKC. Oh, and if there wasn't time to get one beforehand, they could get one within 72 hours of the battle. And the warrant had to be specific, individual, and have all the legal niceties -- none of this "Kill however many guys in the house at latitude X longitude Y who are shooting at us" sort of vagueness allowed. IF the Commander in Chief issued an executive order to the armed forces to shoot according to the previous laws of war and to ignore this law, THEN the president would be in peril if the law turned out to be constitutional.

It's that whole subjunctive mood thingy. Geez, I was a math major -- why am I having to explain grammar to journalism majors?

cathy :-)

[Gary Maxwell]

Without actually hearing the words, the intonation, the pauses, the gestures accompanying speech

Ah yes more that fine aged Kerry Nuance

Or dont bother me with the facts, I am busy emoting here.

[danking70]

Didn't the Supreme Court already upheld the FISA Review Court's ruling in the sealed case?

[topsecretk9]

I don't feel compelled to accept the word of anyone from the NRO

That's just it, they had the fortitude to provide a "transcript" to help readers learn which "report" had context and/or come to their "own" conclusion. If you choose the one that you like better fine, but by no means was NRO compelling you other than to make the info available.

Additionally, the transcript does provide a better account of the exchanges that I would think you might feel robbed or condescended to by the NYT's.

[Jake - but not the one]

Clarice, the only case I can point to, and even that I read too casually, is the Oregon case concering the Islamic charity. That tap appears to have been one that required a FISA warrant, and as I understand the case, no warrant of any kind was sought or obtained.

Cathy, when you set up your own little strawman and then shoot it down so successfully, all you prove is that you set your own personal bar pretty low - and not for limbo, either.

A wiretap that you can get authorized AFTER the fact with no penalty is not exactly parallel to the strawmen you so carefully stuffed, is it?

Jake

[Gary Maxwell]

I don't feel compelled to accept the word of anyone from the NRO

given how far from port the NYT docked on this one, you should substitute "inclined" for compelled and "NYT" for NRO and find yourself right on subject.

[Sue]

You guys act surprised. And you wonder how the NYTs keeps getting away with phoney stories. Fake but accurate ring any bells? ::grin::

[clarice]

Lichtblau can click on Mickey K's column today, hit the hyperlink to Kristof's weaselly acknowledgement that his report re Wilson was a crock and just follow that pattern..

[Jake - but not the one]

How about WMD's? Niger yellow cake? Fake, but useful, eh?

I don't know which is more truthful. I only know which one I like better.

Even so, I am prepared to wait for the whole thing to work out.

Jake

[Wonderland]

Look, just to pipe in for a sec --

It is altogether unsurprising that some federal judges would say that a statute is unconstitutional to the extend it impinges upon the constitutional authority of the Executive. That's Con Law I, day one.

However, you all (minus Jake) seem to take for granted that the President's Article II authority extends to warrantless electronic surveillance of Americans in the US. I'd venture to say that given its unenumerated, nebulous nature, and in face of the Fourth Amendment and specific Congressional restrictions, it does not.

Moreover, the Washington Times selection has the most bizarre formulation in the world: "The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.

Is that like the best interests of the child? Where did they come up with this legal test? (Answer: Their Ass.)

The true legal test should be formulated:

The President has acted at his own peril if (a) the statute is facially constitutional (which no one can argue, or has argued, otherwise); (b) the statute is constitutional as applied (i.e., it does not impinge upon President's constitutional powers because he has no "inherent authority" under Article II to wiretap Americans without warrants); and
(c) he has conducted "electronic surveillance" as that term is defined -- and prohibited sans court order -- by the statute (the AG has explicitly said they have, although I suppose he could have been lying (wouldn't be the first time)).

If (a), (b), and (c) are all true, and a civil litigant with standing presses suit, there could very well be fireworks, because the statute provides for hefty civil remedies. (I wouldn't expect a criminal prosecution unless a Democrat is elected President in 2008 AND there's evidence of politically-motivated spying.)

By the way, I'd also like to note how quickly and quietly the "THE AUMF AUTHORIZED THE SURVEILLANCE" argument -- trumpeted so confidently and wildly by so many on this site -- fell by the wayside. Interesting to see if the Article II arguments share the same fate.

[topsecretk9]

CathyF
You really rock at analogies, you know that don't you?

[clarice]

Jake, the only Oregon case I can find challenges the FISA warrants:

"an Oregon federal court heard oral arguments on a motion in United States v. Battle, a case against five terrorism suspects. The defendants are accused of conspiring to assist al Qaeda forces in fighting U.S. troops in Afghanistan. Arrested last October, the five are predominantly African-American converts to Islam; the government alleges that together, they constituted a terrorist cell.

In their argument, the defendants contended that the government should reveal the justification that support the issuance -- by the clandestine Foreign Intelligence surveillance Act (FISA) Court -- of the secret warrants that enabled the FBI to surveil them. "http://www.cnn.com/2003/LAW/03/18/findlaw.analysis.ramasastry.warrant/

[topsecretk9]

It is altogether unsurprising that some federal judges would say that a statute is unconstitutional to the extend it impinges upon the constitutional authority of the Executive. That's Con Law I, day one.

Goalposts on the move.

[danking70]

It still applies. We just happened to be talking about his Constitutional Authority at the moment.

Can't we have more than one reason? There's a few more or is that not fair?

[topsecretk9]

Also, NYT's apologists...NYT's really should (if they haven't already) consider putting them on the payroll.

[SteveMG]

Wonderland:
seem to take for granted that the President's Article II authority extends to warrantless electronic surveillance of Americans in the US

You left out: Surveillance for foreign intelligence purposes and of targets who are agents of a foreign government or power.

As you may know, President Clinton's DOJ conducted physical warrantless searches on at least two occasions (Ames and El Hage). And in both instances, courts both upheld the searches and allowed the evidence obtained to be used in criminal cases against the two Americans.

Additionally, and most important for this discussion, the Clinton Administration claimed in both instances that it had the inherent constitutional power to conduct such warrantless searches.

It seems to me that at the very least this is unsettled law. Very nebulous territory that has never been adequately settled by the Supreme Court.

SMG

[maryrose]

Jake:
You and Feingold two peas in a pod. You can be very useful in his 08 campaign.
When President Bush asked the dems why they didn't request he stop the NSA program they answered with SILENCE. They don't want it stopped they just want to whine like you Feingold , Boxer and Harkin. Guess what Jake- no one in Middle America agrees with you guys. They don't want AlQueda calling here unsupervised. They don't trust Holy Land. Wehad an Iman from our city deported already. Wake up and smell the coffee. At least the people in San Francisco have an excuse -they've always been off the deep end. What's your excuse?

[Jake - but not the one]

That's not it, Clarice. The wiretap case involves the ACLU suing the NSA on behalf of two attorneys and a defunct Islamic charity. Here is a link to a CBS article on the case:

NSA Sued On Wiretap Claim.

There is an additional wrinkle that an Oregon paper has gotten into the act because this is the case there one of Fitz's teams accidentally released transcripts of conversations between the the attorneys and the overseas - apparently - founder of the charity.

Even though all charges were dropped against the charity, it may still be that they SHOULD have been wiretapped - but that is what FISA is for.

Jake

[topsecretk9]

Even so, I am prepared to wait for the whole thing to work out.

This is fair of you and all, but no one is forcing you to come to debate at JOM...of which I and others are glad you are here...it's just that the idea of patience or pragmatism isn't lost on anyone so this self righteous sanctimonious bit is dumb. On a comment board. OK, so dispense with that...we know you are in NO WAY INVESTED.

[Jake - but not the one]

SMG, the law was changed AFTER Clinton's searches. You can't claim that Clinton "did it, too" when it WASN'T illegal at that time.

Maryrose, I don't know who in middle America does or does not support FISA.

Neither do you.

Either way, the law is the law. If it is an issue, change it, don't break it. Bush has had TWO shots at rewriting FISA to suit him, and he didn't do it. That makes it HIS problem - not the problem of those of us who think he too is bound by the law.

Jake

[clarice]

Jake, we'll have to see how that progresses. I wouldn't give it a big chane, though. It is settled law that the courts do not take moot cases and the case was dismissed.

[Wonderland]

tpsecretk9:

"Goalposts on the move."

Oh please. You're convinced you've won some king of argument because the judges regurgitated boilerplate con law. This is like saying, "Congress could not pass a law that took away he Presidential appointment power." Well, no duh. The issue is, does the President's Article II powers extend to warrantless electronic surveillance of Americans inside the US? Saying that Congress cannot pass laws impinging on such powers is a different statement than saying what those powers are.

and to danking70, who said: "[The AUMF argument] still applies. We just happened to be talking about his Constitutional Authority at the moment."

Hey man, even Arlen Specter knows this argument sucks. It's completely stupid to seriously argue that Congress accidentally provided surveillance authority without even knowing it. The path of the current debate suggests that all but the truest of believers have moved on to the next "legal argument" -- this Article II brouhaha.

[Jake - but not the one]

LOL! I am invested to the extent I believe I am right. I believe my emotional health will take only a moderate hit if I am proven to be wrong.

A hit pretty much like it took Nov 2, 2004.

{sigh}

So, it's not like I haven't been there before.

It's not so much that I was for Kerry as it was I feared the course Bush would steer were he to win.

So far, my fears have all been justified.

And TS, I am not here to convince you of anything, truly. I am here to think, to propose ideas in an unfriendly (not personally unfriendly, just idealogically unfriendly) environment and then to defend them - or abandon them.

No doubt I cling to some beliefs with too much fervor. I work on that as well.

Jake

[SteveMG]

Jake:
SMG, the law was changed AFTER Clinton's searches. You can't claim that Clinton "did it, too" when it WASN'T illegal at that time.

You're right in the Ames case but not in the El Hage case. The El Hage case came after the law was changed (Dec. 2000).

You also missed the key point: The Clinton DOJ argued in court that the executive had the inherent constitutional power to conduct warrantless searches for intelligence gathering.

Here's a link to the El Hage case for you to confirm what I've said:

http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/binladen_12_19_00.pdf

See Section II: An Exception to the Warrant Requirement for Foreign Intelligence Purposes.

Inherent constitutional powers or authority - which is what the Clinton DOJ argued that they had - may not be taken away through legislative actions. The Constitution is the supreme law of the land and trumps congressional actions.

The only way to take away this power is through the Amendment process. FISA, or any other legislative act, simply cannot take aways powers given to the executive by the Constitution.

[topsecretk9]

You can't claim that Clinton "did it, too" when it WASN'T illegal at that time.
Hey man, even Arlen Specter knows this argument sucks.

Back to back.

You're convinced you've won some king of argument because the judges regurgitated boilerplate con law.

No actually, I am just no going to dismiss these Judges just because what hey said doesn't please you ...AKA Regurgitate...AKA What the Fliipin point of these hearings then?

[maryrose]

The Constitution gives the President whoever he is extraordinary power to protect the USA. FISA is a second in command weak law that just does not apply in this case. Specter is not my senator-he does not speak for me. He's lucky to have his chairmanship and had to beg for it. Without President Bush's help he might not have been re-elected. Jake- when your dem president gets in I'd like to hear from you again on this subject.

[topsecretk9]

Jake

I know that, were all invested in debate and it's fun dang it.

[SteveMG]

Jake:
Link got truncated.

Here:

http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/
binladen_12_19_00.pdf

The key point is that this case was decided in December 2000, two years after FISA was changed.

Additionally, as the presiding judge pointed out, the Clinton DOJ argued that:

[S]earches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant.

Now, this case was specifically about whether El Hage's Fourth Amendment rights were violated and whether evidence obtained during those warrantless searches should be suppressed.

That is, of course, much different than whether warrantless electronic searches violate FISA.

But again the key point here is that the Clinton DOJ argued, as I note above, that no warrant is required if the searches are conducted for intelligence purposes and they target agents of a foreign power.

Now, the Clinton DOJ may have been wrong. But it is incorrect to argue that what the Bush DOJ is arguing has no precedent.

SMG

[kim]

Do you know why, Jake, those charges were dropped in Oregon?
=====================================

[Jake - but not the one]

Steve, I attempted to copy your link, but it is too long or something, because it didn't wrap and I don't get the whole thing.

Jake

[clarice]

I do--

"A federal judge in Eugene on Thursday dismissed criminal charges against a defunct Islamic organization in Ashland, a ruling that preserves the government's ability to bring criminal charges against the charity in the future if they decide to.

Al Haramain Islamic Foundation Inc. in Ashland was indicted in February on two tax charges for its role in allegedly laundering $150,000 in donations five years ago to help foreign Islamic fighters. The charity has been designated a terrorist organization by Treasury officials who say the group has links to al-Qaida.

Federal prosecutors sought to drop the case against Al Haramain last month, saying it would be a waste to continue because it is a functionless shell. However, the two men who ran the group are considered international fugitives who are wanted by federal authorities. "http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/1126350179113670.xml&coll=7

[maryrose]

SteveMg
Excellent counter-argument.

[cathyf]

A wiretap that you can get authorized AFTER the fact with no penalty is not exactly parallel to the strawmen you so carefully stuffed, is it?

My buddy da scarecrow has a death warrant that you can get authorized up to 72 hours AFTER the fact without penalty, too. Do you have a reading comprehension problem?

cathy :-)

[Jake - but not the one]

Steve beat me to the punch. :)

The case in Oregon comes in two parts - one that was dropped and one that is new. The new one is not about the old one - except that the surveillance was a part of the old one. I don't know if that makes it moot or not, Clarice.

Kim, I don't know why. It could have been that the gov could not make it's case w/o revealing things it did not want to reveal. Or it could have been that they simply had no case. I have no clue which it is. That is why I say it may be that the charity should have been wiretapped. If so, I also think it should have been wiretapped legally.

Mary, I am not an automatic dem - I might just be an aginner, who knows. I have had trouble with authority figures as far back as I can remember.

Shoot, as far back as my DAD can remember. :)

So, yeah, come talk to me if we ever get a non-Republican president. My position will still be that he or she MUST follow the law.

Jake

[SteveMG]

Jake:
Do a Google of:

el hage usa vs usama bin laden

Links to the entire trial transcript (ugh) will come up. But go to the Syracuse Law School link which should be the first.

SMG

[Jake - but not the one]

Except your straw buddy killed someone, Cathy. Let's see him undo that.

Jake

[Jake - but not the one]

Ok, night all.

Steve, I will read your link tomorrow evening. For now, it is late and my wife and I are going sailing (I hope) on Lake Texoma in the morning.

Thanks, and cu all l8tr.

Jake

[clarice]

The article I cited says it was dropped because the organization was defunct and its organizers had fled. Looks moot to be.

[cathyf]

You really rock at analogies, you know that don't you?

Gee, I thought it was the acronym that really rocked. ;-)

cathy :-)

[cathyf]

Except your straw buddy killed someone,

Well, duh. Article II war powers are about the president directing military operations. What does the millitary do? It kills the enemy & it spies on the enemy. Everything thing else is just ancillary support to those two central functions. My analogy just applies to one military task what the NYT imagines that FISA applied to the other military task.

cathy :-)

[topsecretk9]

Gee, I thought it was the acronym that really rocked. ;-)

That too, but it's all part of the package :; FCKC;;

[Dwilkers]

But we (that is, all of you {is that an exaggeration?} and me) disagree on what IS and is NOT constitutional authority.

Well by all means disagree your little heart out.

The point is, the people that actually work with the law, the ones that are trained and educated to evaluate it, implement it and work with it daily, the actual judges on the FISA court, are unambiguous that you are wrong. That transcript is perfectly clear - it isn't even close to questionable on that point.

There are people out there that think Elvis drove through a gas station on I-10 in Arizona last night too.

[Dwilkers]

Um....who is Jake anyway?

I note he/she/it is using TSK9's e-mail addy. Is he the latest personality manifestation of the same person that has shown up with about 6 different monikers?

[kim]

Yeah, sure, the government had no case, or doesn't want to reveal its case. You should take the cotton out of your ears.
=================================

[Patton]

Jake, please get a clue. Not a single judge in any position of any authority has claimed that the President does NOT have this authority. The left is blowing smoke because they can't find Bushs' stained dress.

Many on the left will never believe simple truths that are easily prvable such as:

Everyone believed Saddam had WMD including going to war during the Clinton amdinstration and KILLING more Iraqis during the Clinton years then since Bush took office. Its a simple truth the left can't admit to or their heads will explode.

The Bush national Guard documents were crude fakes, easily provable, yet many leftuists refuse the simple truth.

Kerry was NEVER ordered by Nixon to go into Cambodia delivering CIA agents as he has claimed. He made it up, yet the left spent tons of ink trying to prove that it 'could' have happened.

AND THE PRESIDENT HAS THE AUTHORITY TO WIRETAP FOR NATIONAL SECURITY JUST LIKE BUSH SAI, GORELICK SAID, CLINTON SAID, ETC. ETC.

[kim]

Aren't you glad? Without the ability to exercise care and caution on a grand scale, do you think a complex society such as ours could be built without lethal fragility built in? This is the delusion that al Qaeda has; that we're fragile.
==============================

[Patton]

Let's refresh Jakes memory on how Clinton rathehed up the idea that Iraq was a grave threat and we needed to; ONE: Bomb them, TWO: Starve them through sanctions, killing Ohh, about 6 Million Iraqis.

Prepare the Country for War" 1998!!

The New York Times reported that at the November 14 meeting the "White House decided to prepare the country for war." According to the Times, "[t]he decision was made to begin a public campaign through interviews on the Sunday morning television news programs to inform the American people of the dangers of biological warfare." During this time, the Washington Post reported that President Clinton specifically directed Cohen "to raise the profile of the biological and chemical threat."

On November 16, Cohen made a widely reported appearance on ABC's This Week in which he placed a five-pound bag of sugar on the table and stated that that amount of anthrax "would destroy at least half the population" of Washington, D.C. Cohen explained how fast a person could die once exposed to anthrax. "One of the things we found with anthrax is that one breath and you are likely to face death within five days. One small particle of anthrax would produce death within five days." And he noted that Iraq "has had enormous amounts" of anthrax. Cohen also spoke on the extreme lethality of VX nerve agent: "One drop [of VX] from this particular thimble as such -- one single drop will kill you within a few minutes." And he reminded the world that Saddam may have enough VX to kill "millions, millions, if it were properly dispersed and through aerosol mechanisms."

"The War of Words Grows; U.S.: Poisons Are World Threat" headlined the New York Daily News Monday morning.9 CBS News said the White House had begun "a new tack, warning in the darkest possible terms of the damage which Saddam Hussein could inflict with his chemical and biological weapons."10 And in "America the Vulnerable; A disaster is just waiting to happen if Iraq unleashes its poison and germs," Time wrote that "officials in Washington are deeply worried about what some of them call 'strategic crime.' By that they mean the merging of the output from a government's arsenals, like Saddam's biological weapons, with a group of semi-independent terrorists, like radical Islamist groups, who might slip such bioweapons into the U.S. and use them."11

This message was echoed in a series of remarks President Clinton delivered the same week.
--------------------------------------------
So the very idea of selling a war against Saddam by using WMD as a threat was perfedted by the Liberals years ago.

[Rick Ballard]

"Um....who is Jake anyway?"

It's too early in the morning for Ayn Rand so let's just leave it "a rather ill informed individual as capable of being brainwashed as he is incapable of being educated", it's kinder that way.

[Sue]

http://justoneminute.typepad.com/main/2006/03/good_catch_at_p.html#comment-15560238>Jake

You really want to compare what you consider a deliberate lie, i.e., WMDs, yellowcake, to a reporter who had the actual transcript in front of him? Tsk...tsk...

[Specter]

Jake,

I read the article you posted and the googled the "foundation". I found a press release from the DOJ about the indictments here. It does not talk about ways and means - but does give a lot of inidications about IRS rules being violated - leading to the indictments.

Where are the allegations that NSA had anything to do with it coming from?

All,

Gotta love this. The left and the MSM make a big deal about one judge leaving the FISC over "disagreement" with the WH. I mean - that was big news. And the left pointed to it daily for many months as "proof" that Bush broke the law. Now the FISC judges come forward and overwhelmingling say that they don't think that is the case - that the TSP is within rights of the President. OOOPPPS. I guess they didn't get the memo....

But what is funny is now we see yet again the left following the "Murtha Doctrine" - CUT AND RUN......Change the subject quick....We don't want anyone to be able to hold up what we said last week.....LOL

[Gary Maxwell]

Well he did say Lake Texoma ( Therefore likely a DFW resident) and we have not seen Texas Toast in awhile and his arguments are of the kinder gentler variety so I would say it aint JayDee/Katrina/etal. Texas Toast or maybe TSDoggie just got bored? Hey TS remember our little X = Y war a week ago? TS = Jake !!! Better hope he does not have your social security number too!

[Sue]

Gary,

The email addy of Jake is not anywhere close to Top's email addy.

[Gary Maxwell]

OOps! My mistake for not checking. I assume Dwilkers had it right. Should have looked for myself.

Texas Toast is a good guess. He was polite and rational most of the time.

[Sue]

The ISP is out of Austin. He has hinted that he is working with the ACLU, but he has said he isn't a lawyer. So....

[cathyf]

During this time, the Washington Post reported that President Clinton specifically directed Cohen "to raise the profile of the biological and chemical threat."

And remember, what Clinton said about the danger of Saddam was true! If the 2001 anthrax attacks had targetted different targets, then Saddam would be a prime suspect. Nothing that we have learned about Iraq's WMD programs and their capabilities since the invasion has in any way ruled out the possibility that Saddam could have (easily) carried out an attack of that magnitude using those methods. The only factor that makes a foreign terrorist unlikely for the 2001 attacks is the choice of targets -- 90% of Americans have no clue what a "Senate majority leader" is, and it's hard to imagine any foreign terrorists having a clue. But make no mistake -- in 2001 Iraq was quite capable of launching just such an attack. Only they would have targetted the president, pentagon, hollywood, big corporations, etc. Imagine if they had blanketed Washington, DC, with a junk-mail envelope full of coupons and some anthrax. It would have decapitated the government...

cathy :-)

[noah]

Where is AL on this turn of events? I love being cruel but AL was absolutely certain that the courts would rule against Bush and even claimed that certain law professors would "bet the ranch" on a constitutional showdown. He He He!

[Barney Frank]

Sue,

I took Jake to mean he had given the ACLU money and was therefore a 'card carrying member' only, not actually working with them.

[Barney Frank]

Noah,

AL is a smart cookie and a pretty polite one, but I must confess he lost pretty much all credibility with me when I went to his site and read his posts about how he was responsible for some of the Democrats hard questioning to DOJ on the NSA because he had informed some Dem congressmn that he (or she), AL, had received a piece of mail with 'Homeland Security' tape on it. LOL. Crafty spooks, they put a sign on the mail they open. Maybe as a recruitment tool; "We read your mail. Would like an exciting career reading other people's?"

Presumably, while warrantless wiretaps are proceeding, the suspects hear an intermittent beep followed by the message that their call is being recorded. Sheesh.

[Specter]

Naw...they are out trying to figure out just why these judges are wrong...and if not that the next "Scandal du Jour"

[Gary Maxwell]

Facts are a mere inconvenience to the bulk of all Liberals. So the fact that the Judges made hash out of their meme will not stop the meme. If necessary they will just get angry and use foul language, cuz it makes their point so much better.

[clarice]

AL was absolutely certain that the courts would rule against Bush and even claimed that certain law professors would "bet the ranch" on a constitutional showdown Undoubtedly the same top law professors who lost the military recruitment on campus case.

If you have time, there is a very interesting criminal case against a federal prosecurot by the DoJ and he has filed a civil suit against the Dept.http://www.washingtonpost.com/wp-dyn/content/article/2006/03/29/AR2006032901583.html

[TM]

AL appears as a guest at Greenwald's site, but I fear, from the intro, thathe has adopted the Greenwald style of wild assertion:

Yesterday the Washington Times published an article with the headline: "FISA judges say Bush within law." The article, by Brian DeBose, reported:

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

Bush's defenders wasted no time jumping to the conclusion that Bush had been vindicated and all this talk of FISA and illegality was utter nonsense.

That phrase, "Bush's defenders" sort of cries out for a link, yes? Well, it's not there. Instead, he goes on to point out that even Powerline was skeptical o fthe Wash Times. Oh, dear.

[Sue]

Barney,

Could be.

[windansea]

Barney

I saw that too...LOL

"looky...I personally will bring the Chimperor down!!!"

[cathyf]

clarice's link

and a coupla </i>'s

cathy :-)

[Sue]

Powerline said the WashTimes overstated their position. Powerline didn't say the WashTimes was flat out wrong...as they said about the NYTs.

[windansea]

TM

perhaps they fear linking to JOM

I can understand why

[clarice]

(here is the lede on the Convertino case) Sorry to be OT but this is amazing:

"A former federal prosecutor and a State Department security officer were indicted yesterday on charges that they lied during a bungled terrorism trial in Detroit and then sought to cover up their deceptions once the case began to fall apart.

Former assistant U.S. attorney Richard G. Convertino, 45, and State Department special agent Harry R. Smith III, 49, were charged with conspiracy, obstruction of justice and making false statements in connection with the 2003 prosecution, according to an indictment handed up by a federal grand jury in Detroit.

The charges mark the latest embarrassment for the government in a case that was once hailed by former attorney general John D. Ashcroft as one of the most important terrorism prosecutions since the Sept. 11, 2001, attacks. It disintegrated after a federal judge ordered an investigation of Convertino's conduct.

Legal experts said yesterday that an indictment of a prosecutor for improper conduct in a federal courtroom is extraordinarily rare, if not unprecedented, in modern times.

"The charge is essentially that he prosecuted too aggressively and crossed the line," said Stephen Gillers, a New York University law professor who specializes in legal ethics. "This is simply astonishing."

[PeterUK]

Mr Ballard,
"It's too early in the morning for Ayn Rand so let's just leave it "a rather ill informed individual as capable of being brainwashed as he is incapable of being educated", it's kinder that way."

The cleaning instructions on the Empathiser MkI explicitly state,"To be dry cleaned only",washing makes the logic circuit soggy.

[Soylent Red]

cathyf:

To truly decapitate the government, multiple envelopes full of anthrax, emblazoned with "Your campaign contribution enclosed".

Those are the ones politicos tear open with their teeth.

All:

Lotsa good thoughtful stuff up here. My guess is that this NSA business, even if somehow construed to be outside Article II, will simply go away quietly.

I say that because it is a political loser for the Dems to pursue it at this time, particularly with all the "eliminate Bin Laden" B-movie hero rhetoric.

We've probably all had a boss who assigns a difficult task, then gives you no resources or authority to complete it. Then possibly bitches or wants to can you for not succeeding. That's what this will boil down to in the eyes of most people who don't go into the debate with an opinion.

The Dems have already set themselves up as a party of overbearing nannies. They surely can't be stupid enough to position themselves as a party of A-hole bosses too.

[Rick Ballard]

SR,

If Plan A is "We're gonna ketch Binny", what would you suppose Plan B would consist of if Bush holds up ol' Binny's head at a press conference in late July?

Once again, they've gone for the "Acme Political Strategy Plan For Victory in '06" as sold by Arlie K. Evor. You would think at this point they might ask, "Victory for whom?".

I agree that peddling the 'Terrorist Bill of Rights Act' position is going to fade quietly - aside from the DoJ investigation of the NSA leaks.

Mr UK,

I've been meaning to have my the Empathiser MkI repaired since 1978. Thank you for the reminder, I'll just add it to my 'To Do' list.

Eventually.

[clarice]

Arlie AKA R/S/S to you, Rick..motto:"We will deliver the votes of the truly stupid; the rest is up to you.")

[Gary Maxwell]

Clarice:

Interesting.

So just compare and contrast. How much more agressive do you have to be to get indicted than charging a guy with obstruction of an investigation for which there is no undelying crime? Or is the difference that the defendent is a suspected terrorist whose has constitutional rights, as opposed to say a goverment employee who wavied his rights ( probably under some duress) and fully cooperated with the investigators and the prosecutor?

Prolly just me having a bad day though...

[danking70]

Rick re: Plan B

Dems: "Hey, they stole our plan!!!"