Specter, the NSA, And FISA

I am punting over to Orin Kerr; let me know what you think.

Comments

[clarice]

Just took a quick look and here's what I saw:

Two prominent bloggers say that the Specter Bill punts and that the Addington/Yoo contentions about presidential power to monitor communication under FISA has , in fact, has won the day.

[quote]Maybe I’m missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander-in-Chief power.

Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review. [/quote] http://www.orinkerr.com/2006/07/14/the-specter-bills-major-shift-in-constitutional-authority-to-conduct-monitoring/

[quote]Specter's proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, Specter's bill looks like a moderate and wise compromise that expands the President's authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill's oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.[/quote]

http://balkin.blogspot.com/2006/07/specter-gives-up-game-sham-nsa-bill.html

[clarice]

http://americanthinker.com/comments.php?comments_id=5573 Tidied up a bit, the same thing.)

[Lurker]

If the president's Article II is left intact as originally designed AND this lumps all pending 100 lawsuits into one lawsuit, that's ok with me.

I don't see this as a sham bill. I'm surprised Arlen Specter finally understood that the existing NSA terrorist surveillance program was perfectly legal.

[clarice]

The yammering about the program was largely posturing anyway. The key Congressional figures knew about it and approved, and no one had the guts to propose a bill that would undo what the President had quite correctly undertaken--This provides just a thin cover for the the hypocrites.

[Rick Ballard]

Lurker,

The original "Give Our Commies Cover Act" (known as FISA) has been obviated by circumstance for some time. Felt's action in bringing down Nixon was duly noted by Congress and the FBI was defanged to the point where Aldrich Ames et al could go about their work in some degree of comfort. Specter's decision to gut FISA may be due to his concern that the Islamofascists just don't seem to adhere to commie rules very well. If they won't play by the rules then maybe the FBI should be allowed to chase them more effectively.

As to the civil liberties aspects, I'm going to have to reflect on 900 FBI files in Miz Clinton's hands coupled with the IRS audits of administration opponents during the '90's and see if I can work up the proper sense of outrage over the interception of incoming calls from splodeydopes to fellow cell members.

I think it's going to be tough.

[PD Shaw]

This seems to be the logical result that follows when the Courts exercise their perogative to enforce the perogatives of the legislature when the legislature doesn't want the courts to do that.

[Other Tom]

Without having read any of the linked materials (in my dotage I preder to wing it), my initial take on this is that the FISA court won't hear the case. It sounds very much like it is being asked to render an "advisory opinion," which the courts do not do. They are constrained to hear "actual cases and controversies" between litigants. I suppose Clarice will set me straight on this very soon.

[cboldt]

I have to read the fine print, but at a glance, this is the same proposal (S. 2453) that Specter made at the end of February, and introduced to the Senate on March 16. Hagel is a cosponsor.

I first saw it when introduced (March 16), and found Jeralyn's post in a search.

Thanks, TM, for the tip to look at volkh. I'm not sure how a "secret" review allays my concern, which is inability to justify criminal prosecutions based on evidence seized - that is, there is a risk that bad guys will get off in the future, if the surveillance if found by some other court to come short of the protection afforded by the word "reasonable" in the fourth amendment.

[Other Tom]

This is what I get for winging it. What I understood from the gasbag Specter's appearance on the tube last night was that the White House had agreed to submit (in some way) its NSA program to the FISA Court of Appeal, asking it to decide whether the program is constitutional. Now that I have read a bit of the proposed legislation, it appears that nothing of the kind is contemplated (they really couldn't be that stupid, after all). Oh well...

[clarice]

"Side step side step" in the words of the pol in Best Little Whorehouse in Texas..a role no doubt written with the Senator fromPennsylvania in mind. (And a lot of others, I might add.)

[Anonymous Liberal]

I have read the bill. It's hard to see what exactly Specter secured in the way of "concessions" from the White House. This bill essentially does away with FISA, and then gives the president the option of seeking program-wide Fourth Amendment review of programs. He's not required to do anything. Moreover, all cases dealing with the NSA program will be consolidated before the FISA court for secret proceedings. The Court will have the option of dismissing these suits "for any reason."

It's as if Cheney and Addington wrote their dream bill, and somehow managed to brainwash Specter into supporting it. Truly bizarre.

[Anonymous Liberal]

If Specter's bill passes, it will be more than a little ironic to look back at all the debate back and forth over the last 5 years over the Patriot Act. In terms of its impact on surveillance law, this bill makes the Patriot Act look like something drafted by the ACLU. The Patriot Act merely tinkered with FISA. This guts it. It's like debating what color to paint the walls of your house for 5 years and then bulldozing the entire place.

[davis]

Somebody needs to keep a watch on Bill Clinton. And he has too many friends on the FISA court. So best to keep the programs away from FISA.

[lurker]

I see this as a checks and balance among the 3 branches of federal government. If a future president violates his executive powers, then the other two branches will take care of it. So far, I have not seen the current president violating his executive powers. I'm willing to bet that FISA would've ruled the current program as legal and constitutional if they review it.

As for the Patriot Act being passed the second time with minor tweaks and Specter's bill, I see both as window dressing. The minor tweaks fought by the Senate over the Patriot Act was a major waste of money, effort, and time. Especially, in light of missing the deadline after 4 years in effect.

[Mackenzie]

With no oversight, Executive powers are whatever the current Executive wants them to be.

[Anonymous Liberal]

If a future president violates his executive powers, then the other two branches will take care of it. So far, I have not seen the current president violating his executive powers.

Lurker, the whole reason we passed FISA in the first place was because previous presidents (Republican and Democrat) had greatly abused their surveillance powers, in secret. These abuses only came to light much later. Without and individualized warrant requirement, you're just asking for abuse.

I'm willing to bet that FISA would've ruled the current program as legal and constitutional if they review it.

You're lucky no one will ever have a chance to take you up on that extraordinarly bad bet. The Hamdan case rendered frivolous the administration's only two arguments supporting the program (arguments that were already very weak). That's why the administration is seeking legislation right now; they know they no longer have any legal cover. There aren't even any colorable legal arguments they can point to now.

[clarice]

People have argued that's what the court said. Frankly i find the multiple opinions amount to bafflegab..and I'd not stick my neck out on any part of it. In any event, Congress and the Administration will, I am sure, work out a compromise which like the FISA one covers the partisan hypocrisy and allows the President to do very much of what he's already been doing.

It's hard to argue with success and it's been five miraculous years since 9/11.

[Mackenzie]

... "allows the President to do very much of what he's already doing"

The thing is, Clarice, we actually don't know what he has been doing. And we don't know what he has delegated to the Vice President. And neither one of them wants us to know.

[Rick Ballard]

AL,

When you say "presidents" are you referring to the fact that the FBI ran taps? If so, what proof do you have that a president ordered them? I'll acknowledge that they happened but Hoover wasn't one to ask permission of mere presidents.

[Anonymous Liberal]

Rick,

You're right. Sloppy language choice on my part. I just meant the executive branch, not the president specifically. There was wide-spread and well-documented abuse of surveillance powers by the executive branch in the pre-FISA era.

[Neo]

The thing is, Clarice, we actually don't know what he has been doing.>/i>

That proves that the NYT still has secrets left to expose, even if it is from a jail cell.

[Mackenzie]

What I should have said is the Congress and the FISA court don't know enough about surveillance programs. We the public should only know the broad outline.

[clarice]

For sure he wasn't taping his political enemies' phones or Wilson would be in jail right now along with a lot of others.

[Lew Clark]

Exactly Clarice! As blind as the left is to those successes, they have: 1. Protected us from terrorist attacks (and you know the U.S. is the # target). AND 2. They have done so without infringing on any innocent person's rights, or even level of comfort (except for not curing the mental illness of their opponents).

Mackenzie,
You summarize BDS perfectly. We can find no proof of any "nasty deeds" by Bush or Cheney, but we know they are doing them, because they are just nasty people! And we want to find out what secret nasty things they are doing that they are so clever about that no innocent person is impacted! Dammit!

[PD Shaw]

On abusing executive powers, would the amendment allow the Executive to use information obtained without a warrant in a criminal prosecution? Would the amendment allow the Executive to use embarassing information to extort public figures?

[Rick Ballard]

AL,

Is the legislative or judicial branch any more free from taint than the executive? I'll acknowledge that the FBI was off the leash for many years but the DoS and certain other parts of the DoJ seem to be "laws unto themselves" as well as the FISC itself. Shoot, the Army Corps of Engineers can do more damage to your rights with a one page memo than the FBI under Hoover.

I would prefer to see FISA (and the FISC) revoked and a fresh start initiated but that's not going to happen. Specter's kludge of a solution isn't particularly appealing but the FISC court's paperwork requirements are less so. American's being deprived of the inalienable right to life due to bureaucratic inertia and legalistic hairsplitting doesn't seem to be worthwhile.

[Other Tom]

Intelligence operations by their very nature are, quite necessarily, secret. In the absence of evidence of any abusive behavior against American citizens, I am prepared to give presidents of both parties wide latitude in conducting these secret operations. We didn't know anything about the Manhattan Project; we didn't know anything about ENIGMA; we didn't know anything about breading the Japanese code; etc. It's a damn good thing we didn't.

[Other Tom]

I would not be at all certain that the Hamdan decision eviscerates Bush's argument about his inherent authority. Hamdan held that his war powers did not give him authority to construct his own judicial tribunals. That's a far cry from the question whether he has the inherent constitutional power to conduct foreign intelligence surveillance. Four federal appellate courts (including the FISA Court of Apppeal) have said that he does. No court has said otherwise. Every president since the enactment of FISA has claimed that they do not understand the act to abridge that power. If the court were to hear a case on the issue, Roberts would be sitting. I have serious doubts whether Kennedy would side with Stevens, Souter and Ginsburg on this one, and perhaps Breyer might not as well. Don't count your chickens.

[Rick Ballard]

Other Tom,

The short of it is that I know damn well that Miz Clinton would egregiously abuse her power in the unfortunate circumstance of her becoming president and I would still not oppose granting her the authority necessary to conduct war as she saw fit.

When subway and train stations stop blowing up we can return to our normal channels. Until then, c'est le guerre.

[boris]

Quick take ... the dicta made law.

[lurker]

Rick Ballard,

Gorelick Wall philosophy == democrats == 9/11 attacks.

[boris]

That's a far cry from the question

Not far enough for me.

Judges should decide issues based on established conventions for interpreting written law, not national security. That's why the founders placed national security poweres EXCLUSIVELY in the domain of the elected branches where the people must rely on whatever nincompoops they choose to elect for their own protection.

[boris]

The short of it is that I know damn well that Miz Clinton would egregiously abuse her power in the unfortunate circumstance of her becoming president and I would still not oppose granting her the authority necessary to conduct war as she saw fit

Me too. People who won't say the same for W are a danger to the rest of us.

[Anonymous Liberal]

I would not be at all certain that the Hamdan decision eviscerates Bush's argument about his inherent authority.

You're quite alone in that regard. Andrew McCarthy, perhaps the administration's most active and zealous legal defender, wrote an article for the National Review claiming that Hamdan "obliterated" the president's arguments regarding the NSA program. In fact, that's pretty much the legal consensus, from both supporters and critics of the program. I am aware of no article or post by a lawyer stating otherwise.

[Jane]

I think you just read one.

[lurker]

That's not what I read of Andrew McCarthy. I'm with Other Tom on this one.

[clarice]

Boris, Have a drink on me...

[lurker]

Andrew McCarthy

[lurker]

"That's a far cry from the question

Not far enough for me.

Judges should decide issues based on established conventions for interpreting written law, not national security. That's why the founders placed national security poweres EXCLUSIVELY in the domain of the elected branches where the people must rely on whatever nincompoops they choose to elect for their own protection."

I agree. So does Andrew McCarthy!

[Anonymous Liberal]

McCarthy:

Hamdan is a disaster because it sounds the death knell for the National Security Agency's Terrorist Surveillance Program (TSP) . . . . Logically, albeit very unfortunately, the court has simultaneously brushed aside both administration justifications for the TSP.

... Still, far more dire for separation-of-powers concerns, and thus for national security, is the Hamdan majority's obliteration of inherent presidential authorit

Okay, gotta go.

[lurker]

Andy McCarthy does not agree with the Hamdan ruling.

Fight HARD!!

Unfortunately, he closed this article saying that he lost but he is right that the Handan ruling goes against what the Founding Fathers have granted to our US president - article II inherent constitutional powers.

The Hamdan ruling did usurp the US Presidential AND Congress powers, which doesn't bode well for the future.

[lurker]

I hope DOJ will continue with their decision and conclusion and FISA will do the same.

[lurker]

"In any event, I have no quarrel with the notion that Congress can “fix” Hamdan by enacting legislation to authorize military commissions — even in the very form they now exist. My quarrels are (a) that this should be necessary at all, and (b) with the implication that, just because Congress has enacted laws that touch on military commissions, the president’s pre-existing constitutional authority is now deemed to be drastically diminished. The logic of that is that Congress can eclipse presidential power whenever it chooses to — converting our constitutional president into a mere prime minister. The Framers correctly believed, as Matt urges, that an independent, energetic executive was a must for national security."

[cboldt]

McCarthy on the effect of Hamdan on NSA


Matthew J. Franck's comments on the effect of Hamdan on NSA


Andrew McCarthy responds to Matthew Franck


Matthew Franck responds to Andrew McCarthy response

I disagree with McCarthy as to Hamdan undercutting or in any way limiting the power of the president to conduct surveillance relating to foreign intelligence matters, for various reasons. I see the argument he makes, and I expect detractors of the NSA/FISA activity to use that argument (generally and simplistically that the facts of NSA parallel the facts of Hamdan), but I think it is a losing argument.

I also disagree with the administrations argument that AUMF authorizes the NSA surveillance - but that's a different argument.

[lurker]

The primary argument for NSA terrorist surveillance program should be based on the Federalist Papers. AUMF should be used as a secondary argument.

This debate can get very heated.

[Extraneus]

Oh, sure. It "helped push stocks lower." Sheesh, these people are idiots.

NY Times letter had powder, own editorial

[Davod]

It almost redundant writing ths response because the people it is directed to will not acknowledge the basic facts.

Congress knew about every program currently the subject of debate. At a minimum the intelligence committees of both houses were kept updated.

The problem arises where every busybody wants to know everything that is happening everywhere. This is not possible. That's why they have the committee process.

Specter was just one of the busybodies totally out of his depth in the world of intelligence and security matters.

I would suggest the new legislation shows he has been
taken to the woodshed and shown the error of his ways.

[maryrose]

Whatever the Bush administration has done so far has kept us safe for 5 years. Keep up the good work. Change what is necessary to make congress feel a part of the action but do not let your protective guard down against Islamic terrorists. The event this week alone show that unfortunately we can't all get along. I found it interesting that the Hezbollah leader was on the radio but in hiding... what a way to live yourlife... someone at that radio station needs to take him out... I wonder if Val is available with her ak47- oh no ;darnit she's too busy with her lawsuit to REALLY protect our country.

[Marcel]

Davod, the intelligence committees were not informed in every case, only the chairman and ranking members. And they weren't allowed to discuss it. That is not oversight. If you like a unitary form of government, then that's what we are now approaching. It is not the form of government that is set forth in the Constitution, although we haven't actually set about to amend the Constitution.

Intelligent people are discussing whether or not the President needs to obey the law. 9/11 really has changed everything.

[lurker]

To me, that's oversight. We don't need oversight expanded to the entire Congress. Remember Leaking Leahy?

Can we trust classified information to...Cynthia McKinney? Maxine Waters? Barbara Boxer?

Intelligence responsibilities should be limited to those with security clearance.

The President is indeed obeying the law and US Constitution and especially as per Federalist Papers. The President was within the limit of his executive powers.

[Marcel]

Some of the programs were not even revealed to the chair and ranking member until after they were in the press. That is not oversight. That is not responsible government.

[boris]

I also disagree with the administrations argument that AUMF authorizes the NSA surveillance - but that's a different argument.

Hardy High Ho Silver Away !!!

There's nothing logically wrong with the argument: "If one is of the blinkered opinion that the president can't legally surveil foreign enemies during peace time then surely one is not so dense as to challange the presidents power, even duty, to surveil them when we are at war."

[Other Tom]

To Anon Lib: "I am aware of no article or post by a lawyer stating otherwise."

Well, apart from my own post, you have Matthew Franck's article in the same publication as McCarthy's. That took two minutes' research, and already I don't feel "quite alone in that regard." McCarthy seems to be discussing what he feels a lower appellate court might feel constrained to do with NSA in light of Hamdan; my argument is devoted exclusively to what might be expected should the matter reach the Supreme Court. I stand by that argument.

[lurker]

"Some of the programs were not even revealed to the chair and ranking member until after they were in the press. That is not oversight. That is not responsible government."

That's because they did not even bother to show up!

[Marcel]

Lurker is entitled to his opinions, which are completely in line with those of David Addington and the other proponents of virtually unlimited Executive power. And maybe some day the Constitution will be amended to reduce the role of Congress and the Courts. But until that time, Articles I, II and III of the Constitution are still operative.

[SteveMG]

Marcel:
and the other proponents of virtually unlimited Executive power.

The proponents of an energetic Executive or what you call "unlimited" powers are viewing those powers when the president is acting as Commander-in-Chief during war. This is not unique. Many folks, on both sides of the political aisle, have supported a powerful president during wartime or other national crises over our history.

The President, as the saying goes, wears many hats. He's chief law enforcement officer, he's commander in chief, he's Head of State, he's CEO of the USA, Inc. and so forth.

You would acknowledge that the powers of the executive during war when he is commanding the troops are far more extensive and have less limits on them than when he is acting during peace time?

It seems to me that the basic problem here with the two sides on this issue is that one side sees the President as acting as the chief law enforcement officer and wish to use the appropriate checks upon his actions that historically have developed over time.

The other side sees the President as acting as military commander during war and view the checks that some as advocating as both un-constitutional, unnecessary and dangerous limits on the executive during combat.

I guess, as the saying goes, what you see depends on where you sit. If one wants the president to use predominantly law enforcement tools and instruments, then you're more likely to want greater monitoring of his actions. If one wants the president to use armed force, then one views those limits as dangerous restrictions on his war-making powers.

SMG

[Marcel]

Steve, I understand your point. But your argument may not apply to the current low-level neverending war. Except for about 1 million troops that have rotated trough Iraq and the region, and their families, this war does not affect very many people. The war is not being funded; taxpayers are not helping with the war (at least not this generation's taxpayers). Congress has met less this year than in any year in recent memory. The President and Vice President take long vacations and spend much of their time campaigning; the war seems to be a low priority. The person most responsible for 9/11 is still out there, mocking us, but his capture is a relatively low priority. Nobody can say specifically what the war's objectives are, and what would signify the end of the war.

[lurker]

I'm with SMG. You must really believe in Michael Moore's F911 movie.

[SteveMG]

Marcel:
Nobody can say specifically what the war's objectives are, and what would signify the end of the war.

That's an excellent point (although your comments about "long vacations" are a little bit of a non-sequitur) and one that I, as a supporter of the President's actions (for the most part), can't answer.

The open-ended nature of this conflict - and the ability of the President (this one or future ones) to accumulate power during the crisis causes me great concern.

However, you seem to want the President - or Washington - to accumulate more power. Am I reading you right? Raise taxes, spend more time legislating, enact more laws (what else will they be doing when in session).

One small point: We are spending in relative terms very little on the war. If you compare this conflict with previous ones, it's far, far less.

But again, your major observation - that there seems to be no end game or point to this is indeed troubling. That however may be because of the type of enemy we're facing more than it's the failure of the White House to clearly define things.

SMG

[Marcel]

re: Congress spending more tome in session ... I wouldn't want more legislation, just more consideration of the bills they are passing. Bills are often hammered out in secret meetings, printed at night, voted on the next day. No member can possibly read all through them. This is way off topic, but the Senate Immigration Bill contains all kinds of problematic clauses which are only just now coming out (thanks to the Heritage Foundation and others who have actuallt read through them). The Brits have a system of 1st, 2nd and 3rd readings and time to consider amendments, and they actually debate legislation.

[Pofarmer]

Don't worry about Marcel.

He'd be perfectly content if it was "anybody but Bush" in the drivers seat.

[Marcel]

Actually I've voted for a Bush in 5 of the past 6 Presidential elections. I hope that the next 2-1/2 years restore my faith in the President and his party. I know they can do better.

[lurker]

It's mostly up to the conservatives in Congress to affect sweeping changes.

[TCO]

TM check out the Wegman report. It is a bombshell. Big time statistician backs up MM and rips Mann a butthole on the HS debate. See CA for details. Need to start getting some bigger time blogging on this.

[Syl]

marcel

Guess who set up this committee system? Guess who decided that for certain highly classified matters that only the chairman and ranking member of the intelligence committee be informed?

Congress did.

[lurker]

Syl, was it when the dems had the majority?

[Pofarmer]

Marcel

It sounds like you are more miffed at the Congress and the MSM than the President.

You wanna feel involved in the War? You can be involved as you want on as many levels as you want. You wanna tax increase for it? Why?

You want a neat tight all packaged up war? Good luck with that. This enemy, by it's very nature and design is amorphous and hard to track and kill. That is it's strength. The easiest thing would have been to never have begun it, that's what Clinton did.

Somebody wrote a book about Congress titled "Herding Cats". Sounds about right.

[Pofarmer]

And OBL is currently reduced to sending AUDIO TAPES,(maybe) out from his cave. Why in the world would we spark a war with Pakistan and a definate civil war within it to get him? For what? Would you be satisfied then?

[cathyf]

The person most responsible for 9/11 is still out there, mocking us,

No, he's not. I can't believe that even a liberal like you wouldn't have noticed. After he was captured, he became a big liberal "cause" because the CIA used frat-boy techniques to get him to tell them about the operations that were in the planning stages so that they could stop them. Don't you remember?

cathy :-)

[Barney Frank]

Marcel,

At what level of taxation or what length of presidential vacation would the Article II powers of the Executive kick in?

I am not in favor of an overly powerful (or unitary, to use the current buzzword) executice. I would like the executive to merely use those powers it has historically in time of war, and I see no evidence Bush is exceeding those powers; in fact he seems rather restrained compared to icons such as Jefferson, Lincoln, Wilson, the Roosevelts, Truman and others. And the constitution has survived their exercises of power pretty well.
It has been turned on its head in most areas but is still pretty close to its original intent on warpowers.

[Bruce Hayden]

First, in response to a comment way up above - this has never really been about the 4th Amdt. You have nevere had a resonable expectation of privacy in international calls. A lot of this is historical. Nevertheless, in previous wars, international communications were routinely surveiled by our government. Remember, the 4th Amdt. says nothing about tapping phones. That was just bootstapped in later, in response to our expectation of privacy there. Twp other 4th Amdt. philosphies are also implicated here - reasonableness and exigent circumstances. Not all searches are prohibited w/o a warrant, just unreasonable ones. Plus, hot persuit is well accepted as an exigent circumstance here, and that is the primary argument against use of FISA warrants.

Rather, the major discussion all along has been whether FISA applies, and to what extent. By its wording, it does.

The big problem with FISA was that it was written in a different time. The technology was different, as was the threat. It would be fine to tap international calls under FISA as is done by the NSA, if it were possible to do so outside the U.S. It isn't anymore with the advent of fiber optics. That significantly changes the standards applied under FISA. And, it was designed to combat the USSR and the PRC, big, slow, well defined targets, that lent themselves to FISA warrants. Not so anymore, with disposable cell phones and an enemy as hard to see and find as Al Qaeda.

So, the Administration, seeing a signficant real need for this program, justified it basically two ways. First, they argued that the AUMF effectively overrode FISA here. And, secondly, that FISA, if applied here, would be unconstitutional as infringing on the President's plenary Article II powers. The major argument against the latter is Justice Jackson's one Justice concurrance in the Korean War steel cases, where he laid out three different categories of executive action, and category III was where the president's actions would violate a Congressionally passed statute - and in that case, Jackson suggested his power was at its lowest ebb.

The Administration's position was bolstered by the Hamdi decision, which gave some weight to the AUMF, and where only the two most liberal Justices tried to assert Jackson's concurrance.

But Hamdan went the other way, with a chunk of the Court picking up Jackson, and the AUMF being significantly limited. The argument made by those opposed to the NSA program is that this settled things.

I would disagree, for any number of reasons, including the political - that the Court is not about to shut down this sort of program, and be blamed for another 9/11 type attack. More importantly though, to distinguish this situation from Hamdan, that case involved an after-the-fact situation. They could tell the Administration and Congress to come back with something that passes muster, and while they are doing that, the Gitmo detainees would just have to languish down there, putting on weight by eating well for the first time in their lives, reading their Quorans, etc. In the NSA case, it would have the effect of depriving the Administration of what it claims is a potent weapon against terror.

Nevertheless, the preferred solution has always been political, and not judicial.

The basic problem with FISA is the warrant requirement. The Emergency Orders provision doesn't appear to provide much relief (according to the AG). It is extremely cumbersome, and takes a lot of time to comply with. Fine, when dealing with the USSR and PRC, not practical when dealing with al Qaeda, in particular.

But the opponents of the program have legitimate concerns about abuse. There is no indication that this President has abused the program, but we do have the memory of multiple presidents in the past abusing their power, notably, as mentioned above, Nixon and Clinton, but also LBJ, and maybe even FDR and Truman.

So, they are now proposing a reasonable solution to this problem - oversight to make sure that the FISA exceptions here aren't being abused, but also giving the president the freedom to do what needs to be done here.

I should also note that the reason that the entire two intelligence committees weren't fully briefed is because they are known to leak. My memory is that Senator Rockefeller was, in essence, recently thrown off for just this sort of thing. Adding up all the members of these two committees, plus their staffers, just left way too many people to keep a secret - esp. when it was on a need-to-know basis at the NSA.

[lurker]

Bruce, you explained a 1000 times better than I. Here's what AJStrata just said about Arlen Specter (See, Specter (poster), I used first name!).

I think emailing to Arlen and our senators made a difference! I emailed to John Cornyn and Kay Bailey Hutchinson of my disdain of Arlen Specter's tactics for the last several months. Glad to see he's finally came to the realization of what the writers of the Federalist Papers had intended for the 3 branches and that we should honor those writers. Boy, those writings of the Founding Fathers have held up for so many years. There needs to be a checks and balance between the 3 branches. None of them should and have blank checks but the Hamdan ruling has just given the Supreme Court far too much power.

Incidentally, the Supreme Court did NOT usurp powers when they ruled based on Safe Harbor in year 2000. The Florida Supreme Court's behavior was DEPLORABLE, partisan, and baised.

[Tom Maguire]

It's as if Cheney and Addington wrote their dream bill, and somehow managed to brainwash Specter into supporting it.

Yet people deride the efficacy of waterboarding...

[clarice]

TM--Blabbing secrets again..

[TCO]

TM please check this out:

http://www.climateaudit.org/?p=750

[Matt]

You want a neat tight all packaged up war? Good luck with that. This enemy, by it's very nature and design is amorphous and hard to track and kill. That is it's strength. The easiest thing would have been to never have begun it, that's what Clinton did. -

I have to agree completely with this point. Don't fight a war the way primitived do - didn't we lear this in Vietnam?

[boy spank doctor]

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